*^Qto. s. Diosjsy/ 
 
 LAW BOOK 
 v80 NASSAU sp, N.Y.,j. 
 
 
 Cornell University Law 
 
 Library 
 
 The Moak Collection 
 
 
 PURCHASED FOR 
 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 
 
 1893 
 
 IN nenoRY of 
 
 1 
 
 JUDQE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 
 By his Wife and Daughter 
 
 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
CORNELL UNIVERSITY LIBRARY 
 
 924 103 359 620 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924103359620 
 
DIGEST 
 
 OF 
 
 THE DECISIONS 
 
 OF THE 
 
 SUPREME JUDICIAL COURT, 
 
 OF THE 
 
 STATE OF MAINE, 
 
 CONTAENED IN 
 
 Volumes Fifty-Seven to Sixty-Eight, (Both Inclusive), 
 
 OF THE 
 
 MAINE REPORTS. 
 
 By GEORGE C. HOPKINS. 
 
 PORTLAND: 
 
 liOBinSTG-, SHORT & ILAJRMiOIir. 
 
 1879. 
 
Copyriglit, 1879. 
 LOKING, SHORT & HAKMON. 
 
 jTjji. M. Marks, Printer, Portland. 
 
PREFACE. 
 
 A word of explanation as to the causes wHch led to the publica- 
 tion of this volume may not be out of place. Several years ago I 
 began the preparation of a new Digest of the Reports, which was 
 substantially completed eirly in the past winter, but which, owing to 
 causes which need not be adverted to, I was unable to publish, with- 
 out giving the credit of the labor to others. The Digest so often 
 promised by other parties had not even been commenced, and I knew 
 by experience that the compilation of a suitable Digest of all the 
 Reports would require at least two years' time. I therefore conclud- 
 ed to withdraw from my MSS. the motes of the cases in the undigested 
 Reports and publish theW in/Order tha\the urgent want of the pro- 
 fession might be met. The result is this'volum©*-'^ 
 
 I have generally followed the arrangement of the former Digests, 
 although, having the material abeady prepared, I have made a few new 
 titles. It seems to me that titles like "Consideration" or "Negligence" 
 must be found useful in breaking up the longer titles, and in bringing 
 together cases based upon the same general principles and not other- 
 wise easily or readily found and compared. 
 
 In the preparation of the notes I have, in the cases taken from the 
 later Reports, followed the language of the opinion, when possible ; but 
 the weU known excellence of the notes prepared by Judge Virgin has 
 precluded any attempt to change them. 
 
 I have used catch-words sparingly, as their indiscriminate use has 
 seemed to me as liable to mislead, as to be a help. • 
 
 I have spared no labor in the effort to make this a useful and con- 
 venient Digest — one in which the reported cases upon any subject 
 can be readily found, — but if, through inexperience, I have in any 
 particular fallen short of my attempt I ask the lenient judgment of a 
 "generous and learned profession." 
 
 GEO. C. HOPKINS. 
 
 PoETLAND, June 10, 1879. 
 
TABLE OF CASES. 
 
 [IfAMES OF PIAINTIFFS ARBANGED ALPHABETICALLY.] 
 
 67, 304. 
 
 62, 194. 
 
 66, 19. 
 
 65, 143. 
 
 62, 583. 
 
 66, 474. 
 
 60, 494. 
 
 63, 532. 
 
 60, 124. 
 
 64, 175. 
 68, 247. 
 68, 232. 
 68, 572. 
 
 58, 539. 
 
 68, 19. 
 
 64, 441. 
 
 65, 40. 
 
 58, 425. 
 63, 590. 
 
 67, 579. 
 
 66, 523. 
 
 59, 90. 
 
 60, 440. 
 
 60, 396. 
 
 68, 38. 
 60, 250. 
 
 57, 392. 
 68, 427. 
 
 65, 533. 
 
 58, 109. 
 57, 304. 
 
 66, 287. 
 
 59, 580. 
 
 60, 207. 
 
 Abbott V. Abbott, 
 
 V. Rose, 
 
 Adams v. Blethen, 
 
 V. McFarlane, 
 
 V. McGlinchy, 
 
 V. 
 
 Divorce, 186. Husband and Wife, 287. Mar- 
 ried Woman, 361. ( 
 
 Bills and Notes, 69, 73. Estoppel, 216. For- 
 gery, 269. Negligence, 385. Witness, 588. 
 
 Bills and Notes, 66, 71. 
 
 Abatement, 3, 5. Arbitration, 27, 29, 30. 
 Arrest, 31. Contract, 119. Jurisdiction, 
 329. Waiver, 562. 
 
 Costs,. 187. Officer, 400. Replevin, 486. 
 
 Allen V. Androscoggin 
 
 E. E. Co., 
 V. Ham, 
 
 ■ V. Jay, 
 
 ■ V. Lawrence, 
 
 ■ V. Somers, 
 
 Intoxicating Liquors, 317. 
 Trespass, 540, 541. 
 
 Officer, 403. 
 
 Allum V. Perry, 
 American Bible Soci- 
 ety V. Wells, 
 Andrews v. Marrett, 
 
 Eailroad, 464. Waiver, 563. Way, 574. 
 Constitutional Law, 106. Lien, 344, 
 
 Pleading, 427. 
 Constitutional Law, 108. 
 Exceptions, 243. 
 Jurisdiction, 329. 
 Bills and Notes, 71. Estoppel, 218. 
 
 345. 
 
 Interest, 313. 
 Bills and Notes, 
 
 Surety, 517. 
 Deed, 166. 
 
 64. Consideration, 100. 
 
 V. Pearson, 
 ^;inW.P.Co. 
 V. Bethel S. M. Co., Corporation, 181. Penalty, 421. 
 Androscoggin Company 
 
 V. Metcalf, Assumpsit, 42. 
 
 Angler v. Smalley, Statutes, 514. 
 
 Anon., Verdict, 559. 
 
 Appleton V. Belfast, Constitutional Law, 107. Pauper, 415. 
 
 Asbury Insurance Co. 
 
 V. Warren, 
 Atkins V. Brown, 
 Atkinson v. Runnels, 
 
 V. White, 
 
 Atwood V. Chapman, 
 
 Evidence, 286. Jury, 381. 
 Assumpsit, 40. Bills and Notes, 73. 
 Assignment, 35. Bills and Notes, 70. 
 
 lease, 482. 
 Judgment, 826. 
 Fraud, 272. 
 
 Ee- 
 
 V. Winterport, Evidence, 220, 240. 
 Augusta V. North. Constitutional Law, 105. Tax, 524. 
 
 Augur V. Couture, Assignment, 85. Contract, 112. Registry 
 
 of Instruments, 481. 
 Austin V. Dunham, Review, 489. 
 
 v. Goodale, Scire Facias, 503. 
 
 V. York, Town, 533. 
 
 Averill v. Longfellow, Assignment, 34. Attorney at Law, 50. 
 
 V. Eooney, Verdict, 560. 
 
 Ayer v. Gleason, Amendment, 18. 
 
Tl 
 
 TABLE OP OASES. 
 
 62, 526. 
 68, 253. 
 
 61, 361. 
 
 62, 168. 
 
 62, 524. 
 
 62, 205. 
 
 57, 388. 
 
 59, 223. 
 
 63, 443. 
 
 58, 199. 
 57, 363. 
 
 59, 481. 
 
 64, 305. 
 
 57, 436. 
 
 60, 285. 
 
 60, 290. 
 68, 425. 
 
 67, 294. 
 62. 536. 
 
 B. 
 
 Bachelder v. Bickford, Assumpsit, 38. Day's Work, 156. 
 
 V. Pinkham, Exceptions, 242. Master and Servant, 363 
 
 Bailey v. Bailey, 
 
 V. Blanchard, 
 
 V. Carville, 
 
 Fraud, 
 
 Lord's 
 
 Baker v. Atkins, 
 V. Cooper, 
 
 ■ V. Mitchell, 
 
 ■ V. Moor, 
 
 • V. Portland, 
 
 • V. Stinchfield, 
 
 Baldwin v. Bean, 
 Ballou V. Presoott, 
 
 Bangor v. Kowe, 
 Bangor & Piscat. E. E. 
 
 Co. V. Chamberlain, Costs, 135. 
 Bangor & Piscat. E. (Damages, 148, 155, 
 
 E. Co. V. McComb, ) 463. Way, 575. 
 Bangs V. Beaoham, Attachment, 48. 
 Baptist Meeting House 
 
 V. Webb, Corporation, 133. 
 Barbour v. Ellsworth, Town, 531. 
 V. Martin, 
 
 Divorce, 187. Forcible Entry, 268. 
 274. 
 
 Contract, 114. Evidence, 219, 241. 
 Day, 354. Eecord, 480. Sale, 494. 
 
 Abatement, 3, 4. Arrest, 31. 
 
 Bank, 55. Equity, 207, 208, 209. 
 
 Bank, 55. Exceptions, 246. Execution, 248. 
 Forcible Entry, 268. 
 
 Limitations, 352. 
 
 Executors, 257. Judgment, 326. Eecord, 479. 
 
 Way, 581. 
 
 Bills and Notes, 72. Judgment, 323, Set-off, 
 507. 
 
 Equity, 205. Device and Legacy, 176. 
 
 EvidencCj 231. Law and Pact, 340. Physi- 
 cian, 421. 
 
 Landlord and Tenant, 335. Nuisance, 395. 
 
 Interest, 312. Eailroad, 
 
 Physician, 
 
 66, 286. Barnes v. Barnes, 
 
 65, 405. 
 
 67, 460. 
 63, 287. 
 63, 292. 
 
 60, 246. 
 
 68, 358. 
 
 58, 350. 
 62, 209. 
 
 59, 354. 
 59, 157. 
 65, 180. 
 
 62, 540. 
 
 57, 178. 
 
 63, 9. 
 
 58, 82. 
 
 63, 293. 
 
 Barter v. Greenleaf, 
 Bartlett v. Bangor, 
 
 V. Corliss, 
 
 V. Hamlin's 
 
 Grant, 
 
 V. Jones, 
 V. Kittery, 
 V. Lewis, 
 
 57, 295. 
 
 67, 228. 
 
 60, 465. 
 
 61, 577. 
 
 67, 530. 
 
 59, 293. 
 65, 580. 
 
 68, 522. 
 
 60, 568. 
 
 Evidence, 228. Negligence, 385. 
 
 421. Practice, 443. 
 Appeal, 25. Evidence, 230, 232. Insanity, 
 
 299. Probate Court, 460. Will, 586. 
 Assumpsit, 39. Deed, 170, Estoppel, 214. 
 Damages, 156. Way, 575, 577. 
 Deed, 165. Evidence, 221. 
 
 Plantation, 422. 
 
 Assumpsit, 39. Landlord and Tenant, 337. 
 
 Way, 583. 
 
 New Trial, 392. Practice, 450. Verdict, 560. 
 
 V. West. Un- ) Damages, 154. Evidence, 231. Telegraph, 
 
 ion Tel. Co., ] 528. 
 
 Bates V. Avery, Evidence, 220. Practice, 451. 
 
 V. Poster, Deed, 161, 169. 
 
 V. Hurd, Equity, 207. Trust, 549. 
 
 Baxter v. Baxter, Devise and Legacy, 177, 179. Guardian and 
 
 Ward, 282. 
 
 V. Ellis, Bills and Notes, 68, 73. Witness, 588. 
 
 Beals V. Thurlough, Limitations, 351. Penalty, 421. Statutes, 515. 
 Bean v. Atlantic & St. 
 
 Lawrence E. E. Co., Damages, 155. Insurance, 300. Eailroad, 465. 
 Bean v. Atlantic & St. 
 
 Lawrence E. E. Co., New Trial, 391. Eailroad, 465. 
 
 Exceptions, 250. Pleading, 426, 432, 436. 
 
 Practice, 441. 
 Fraud, 274. Husband and Wife, 284. Mer- 
 ger, 864. Mortgage, 373. 
 Bills and Notes, 63. Lien, 344. 
 Evidence, 220. Practice, 444. Witness, 590. 
 Justice of the Peace, 332. Mandamus, 358. 
 Appeal, 25. Way, 569. 
 Pauper, 413. 
 •o „ , ^ , , Officer, 398. Pauper, 412. 
 
 Belfast Bank v. Har- 1 Alteration of Instruments, 17. Law and 
 
 riman, . f Fact, 339. 
 
 Belfast & M. L. E. E. 1 Condition, 95. Corporation, 128. Presump- 
 Co. V.Brooks, ] tion,455. Town, 533, 534, 536. ^ 
 
 67, 482. Bean v. Ayers, 
 
 — V. Boothby, 
 
 V. Dolliff, 
 
 Bell V. Woodman, 
 Belcher v. Treat, 
 Belfast V. Co. Com, 
 
 V. Lee, 
 
 V. Morrill, 
 
TABLE OF CASES. Vll 
 
 66, 185. Belfast & M. L. R. R. 
 
 Co. V. Cottrell, Condition, 95. Corporation, 128. 
 
 60, 561. Belfast & M. L. R. K. 
 
 Co. V. Moore, Condition, 95. Corporation, 12Y. 
 
 62, 148. Belfast & M. L. R. K. 
 
 Co. V. Unity, Contract, 112. Corporation, 127. Town, 535. 
 
 65, 108. Bellamy v. Oliver, Abatement, 4, 6. 
 
 61, 414. Bellatty v. Thomaston 
 
 Mut. Fire Ins. Co., Insura,noe, 311, 404. 
 
 66, 199. Bellows v. Murray, Abatement, 2. Appeal, 25. Evidence, 232. 
 
 Precedents, 453. 
 65, 170. Benjamin v. Webster, Limitations, 353. 
 
 62, 544. Bennett v. Davis, Assumpsit, 43. Pleading, 426, 432. Record, 
 
 479. 
 60, 160. Benson v. Swan, Descent and Distribution, 173. 
 
 60, 99. Berry v. Sands, Arbitration, 30. 
 
 58,422. v. Whittaker, Executors, 261. Real Action, 478. Review, 
 
 488. 
 65, 342. Bessey v. Unity, Bounty, 79. Plantation, 422. Town, 532. 
 
 65, 200. Bethel v. Albany, Deed, 168. Fees, 265. Town, 537. 
 
 60, 535. v. Co. Com., Certiorari, 87. Presumption, 454. Way, 
 
 568, 572. 
 
 58, 89. Bethel & Hanover Toll- 
 
 Bridge Co. V. Bean, Corporation, 133. Pleading, 427. 
 
 57, 9. Bethel Steam Mill Co. 
 
 V. Brown, Sale, 491. 
 
 59, 181. Bibber v. Simpson, Physician, 421. 
 
 59, 162. Bigelow v. Foss, Estoppel, 213, 217. Evidence, 233, 234. 
 
 Trust 551. 
 64, 450. Bingham v. Smith, Execution, 251, 253. Tax, 523. 
 64, 550. Bird v. Decker, Agency, 12. Amendment, 21. Deed, 159. 
 
 Mortgage, 371, 381. Real Action, 478, 
 
 Signature, 511. 
 
 66, 337. V. Munroe, Evidence, 221. Statute of Frauds, 280. 
 
 63, 12. Bishop V. Small, Fraud, 271. 
 68, 104. V. White, Contract, 122. 
 
 66, 49. Black v. Mace, Damages, 156. Penalty, 421. Pleading, 429. 
 
 Precedents, 353. Trespass, 543. 
 
 68, 227. V. Nichols, Account, 8. Auditor, 51. Limitations, 349. 
 
 68, 574. V. Rogers, Bills and Notes, 61. 
 
 66, 332. Blaokington v. Rock- 
 
 land, Evidence, 234. Way, 583. 
 
 68, 269. Blaisdell v. Pray, Abatement, 3. Attachment, 46. Judgment, 
 
 327. Partition, 404. 
 
 64, 177. Blake v. Blake, Husband and Wife, 287. Married Woman, 
 
 361. 
 
 65, 522. v. Madigan, Deed, 163, 164. Mills, 366. New Trial, 391. 
 
 68, 365. V. Newfield, Way, 580. 
 
 59, 202. Blanchard v. First Asso- 
 ciation, Corporation, 125. 
 62,119. Blanchardv.Hodgkins, Evidence, 233. Exceptions, 244. Practice, 
 
 443. 
 
 63, 434. V. Moulton, Damages, 149. Prescription, 454. 
 
 58, 437. Blethen v. Lovering, Bills and Notes, 70. Limitations, 349. 
 
 68, 201. Bliss V. Day, Constable, 103. Officer, 400. Poor Debtor. 
 
 4.36, 437. 
 
 67, 499. Blodgett v. Sleeper, Partnership, 406. 
 
 66, 154. Blood v. Bangor, Drains, 192. 
 
 67, 476. V. Drummond, Contract, 122. Damages, 151. 
 
 59, 225. Bodge v. Hull, Arbitration, 27, 29. Pleading, 432. Prece- 
 
 dents, 452. 
 
 67, 551. Bolster v. China, Amendment, 19, 22. 
 
 62, 248. Bonney v. Foss,' Fixtures, 267. Landlord and Tenant, 338 
 
 Title, 530. 
 
 57, 368. V. Morrill, Attorney at Law, 49. Evidence, 228. Exe- 
 
 cution, 248. Judgment, 327. 
 
 64, 403. Boothbay v. Giles, Collector, 92. 
 
 68, 160. V. Bond, 75. Collector, 92. 
 
 68, 351. V. Race, Statutes, 513. Tax, 522, 526. 
 
Ylii TABLE OF CASES. 
 
 66,387. Boothby V. Woodman, Exceptions, 243. , ^„ „ . , „„„ 
 
 57 602 Boody v. Goddard, Contract, 128. Bailment, 53. Evidence, 220. 
 
 ■^ Law and Fact, 340. Lien, 344. NegU- 
 
 gence, 384. 
 67, 263. Boston & Maine K. Co. , „ , . 
 
 V. Durgin, Forcible Entry and Detainer, 269. 
 
 58 499. Bourne v. Stevenson, Evidence, 224, 239. Exceptions, 250. Exec- 
 
 utors, 260, 262. Practice, 446. 
 
 63 427. V. Todd, Estoppel, 217. Executors, 261. Judgment, 
 
 ' 326. Limitations, 350. 
 
 63, 497. Bowdoinham v. „ .^ , „„„ n 
 
 Phippsburg, Evidence, 231. Insane Hospital, 298. Pau- 
 
 per, 412, 413. Waiver, 564. 
 
 60, 172. Bowker v. Hill, Attachment, 47. Corporation, 130, 132. 
 
 Scire Facias, 504. Trustee Process, 555. 
 67, 395. Bowler v. European & 
 
 N. A. E. K. Co., Trustee Process, 555, 558. 
 62, 302. V. Washington, Jury, 331, 332. 
 
 58, 236. Boynton v. Clay, Infant, 297. 
 
 62, 253. V. Libby, Kegistry of Instruments, 481. 
 
 67, 587. V. Payrow, Bailment, 52. Executors, 256. 
 
 59, 494. Bradbury V. Cony, Estoppel, 216. 
 
 62, 223. V. Jury, 331. 
 
 68,103. Bradford v.Hanscom, Husband and Wife, 287. 
 
 63, 164. Bradley v. Pinkham, Poor Debtor, 438. 
 
 58, 357. V. Wilson, Deed, 167. Evidence, 223. 
 
 64, 204. Bradstreet v. Brad- 
 
 street, Exceptions, 243. Jury, 330. Practice, 447. 
 
 Probate Court, 460. 
 
 59, 155. V. Partridge, Review, 489. 
 
 61, 335. V. Keview, 489. 
 
 61, 444. Bragg v. Burleigh, Plantation, 422. Public Lands, 461. 
 66, 157. V. White, Pleading, 428. Real Actions, 474. 
 
 60, 342. Braiuard v. Shannon, Exceptions, 243. Officer, 401. Payment, 
 
 419. Scire Facias, 504. Tender, 529. 
 Trustee Process, 554, 556. 
 66, 355. Bremen v. Bristol, Town, 538. 
 
 62, 62. Brewer Brick Co. v. 
 
 Brewer, Constitutional Law, 105. 
 
 57, 543. Bridges v. Sprague, Cases Overruled, 84. Partnership, 405. 
 
 Shipping, 509, 510. Trustee Process, 654. 
 
 68, 535. Briggs v. Haynes, Fence, 266. 
 
 65, 427. Brightman v. Bristol, Damages, 149. ITegligence, 388. Nuisance, 
 
 395. Riot, 489. Town, 632. 
 
 62, 456. Brooks v. Blaney, Bills and Notes, 66, 67, 74. Evidence, 241. 
 
 61, 307. V. Goss, Evidence, 223, 224. Executor, 261. Excep- 
 
 tions, 247. Trespass, 540. Witness, 590, 
 592. 
 
 66, 316. Brown v. Brown, Deed. 159. 
 
 67, 535. V. Burns, Payment, 418. 
 
 63, 241. V. Chesterville, Actions, 10. Payment, 420. School District, 
 
 499. School Teacher, 503. 
 
 68, 537. V. Co. Com., Way, 573. 
 
 58, 384. v.E. & N. A.E. 
 
 E. Co., Case, 83. Infant, 297. Practice, 449. 
 
 61, 564. V. Joy, Justices of the Peace, 332. Executions, 251. 
 
 57, 55. V. Eice, Indictment, 294. Sentence, 507. 
 
 59, 372. V. Thompson, Mortgage, 382. 
 
 66, 402. V. Vinalhaven, Contagious Sickness, 110. Town, 531. 
 
 68, 313. Brunswick Sav. Institu- 
 tion V. Commercial 
 Ins. Co., Insurance, 303. 
 
 59, 165. Bryant v. Jackson, Equity, 209. Mortgage, 372, 377. 
 
 61, 300. V. Knox & Lin- 
 
 cohi R. R. Co., Exceptions, 245. New Trial, 391. Railroad, 
 
 464. Way, 575. 
 
 61, 108. V. Pennell, Accession, 7. Mortgage, 382. 
 
 62, 646. V. Sparrow, Landlord and Tenant, 336. Trespass, 538 
 
TABLE OP CASES. 
 
 IX 
 
 68,. 532. 
 61, 232. 
 
 68, 33. 
 
 67, 295. 
 
 65, 536. 
 
 68. 81. 
 
 64, 404. 
 57, 417. 
 
 63, 529. 
 
 65, 135. 
 
 61, 251. 
 
 64, 23. 
 
 64, 78. 
 
 59, 423. 
 
 62, 122. 
 
 63, 298. 
 
 68, 580. 
 
 60, 288. 
 
 64, 215. 
 
 64, 130. 
 
 61, 514. 
 67, 225. 
 
 66, 472. 
 
 67, 385. 
 63, 447. 
 61, 583. 
 
 65, 576. 
 57, 340. 
 
 Buck V. Merchants Ins. 
 
 Co. 
 
 Corporation, 131, 133. 
 
 Buckingham v. Buck- 
 ingham, Divorce, 186. 
 
 Bucksport V. Woodman, Tax, 521. 
 
 Bucksport & Bangor 
 K. E. Co. V. Brewer, 
 
 V. Buck, 
 
 Condition, 95, 98. Contract, 120. Waiver, 562. 
 Condition, 95. Coi'poration, 127. 
 Condition, 95. Corporation, 128, 132. Town, 
 
 535. Waiver, 562. 
 Executors, 259. Tax, 526.- 
 Judgment, 324. Trustee Process, 558. 
 Sale, 493. 
 
 Constitutional Law, 109. Contract, 116. Ped- 
 dler, 420. Sale, 498. 
 Burkett v. Trowbridge, Husband and wife, 285. 
 
 Burleigh v. White, Equity, 198, 212. Fraud, 278. Trust, 560. 
 Witness, 588. 
 
 Bulfinch V. Benner, 
 Bunker v. Tufts, 
 
 V. McKeuney, 
 
 Burbank v. McDufEee, 
 
 Pauper, 409, 411. 
 
 Attorney at Law, 49. Partnership, 407. 
 
 Trustee Process, 555, 557. 
 Bills and Notes, 62. Divorce, 187. 
 
 Burlington v. Swan- 
 
 ville, 
 Burnell v. Weld, 
 
 Burnett v. Paine, 
 Burnham v. Grand 
 
 Trunk Railway, Eailroad, 468. 
 
 Burnham v. Pittsfield, Pauper, 411. 
 Burns v. Annas, Public Lands, 461. Way, 672, 576, 577. 
 
 V. Collins, Insurance, 305. Mortgage, 370. 
 
 Burr V. Bucksport & \ Exceptions, 244. New Trial, 391. Eailroad, 
 Bangor K. E. Co., ( 464. Way, 575. 
 V. Hutchinson, Equity, 201, 207. 
 
 Probate Court, 460. 
 
 Intoxicating Liquors, 314. 
 
 New Trial, 393. Way, 579. 
 
 Deed, 170. Evidence, 223. 
 
 Burroughs v. Bourne, 
 Bush V. Murray, 
 Butler V. Bangor, 
 
 V. Huse, 
 
 Butterfield v. School 
 
 District, 
 Byard v. Parker, 
 Byron, Applt., 
 
 Mills, 367. 
 
 School District, 499, 500. Town, 534. 
 Judgment, 323. Lien, 347. 
 Appeal, 25. Statute, 512. 
 
 67, 582. Cables v. Presoott, 
 
 65, 407. 
 
 65, 439. 
 
 68, 158. 
 
 66, 350. 
 
 68, 217. 
 
 64, 249. 
 
 62, 650. 
 
 69, 4.30. 
 
 62, 552. 
 
 59, 582. 
 
 65, 203. 
 
 63, 304. 
 
 Callv. Call, 
 V. Perkins, 
 
 V. Pike, 
 
 Calais v. Whidden, 
 
 Cameron v. Little, 
 Campbell v. Mon- 
 mouth Mutual 
 Fire Ins. Co., 
 Campbell v. Portland 
 Sugar Co., 
 
 Cannell v. Phoenix 
 
 Ins. Co., 
 Canton v. Smith, 
 
 Canwell v. Canton, 
 
 c. 
 
 Descent and Distribution, 174. Insurance, 
 
 302. 
 Divorce, 186, 187, 188. 
 Deed, 158. Equity, 200, 211. Husband and 
 
 Wife, 286. Married Woman, 360. 
 Deposition, 173. 
 Contempt, 111. Deposition, 173. Justice 
 
 of the Peace, 333. Trespass, 642. 
 Deposition, 173. Evidence, 230. Justice of 
 
 the Peace, 333. Witness, 691. 
 Contract, 118. Demand, 172. Officer, 398. 
 
 Town, 536. 
 Landlord and Tenant, 337", 338. 
 
 > Exceptions, 245. Insurance, 306, 310. Neg- 
 ) ligence, 385. 
 
 ) Agency, 16. Damages, 148. Landlord and 
 
 > Tenant, 336. Master and Servant, 362 
 ) Negligence, 386. Pleading, 425. 
 
 Evidence, 237. Insurance, 304. 
 
 Contract, 118. Damages, 151, 152. Town 
 
 534. 
 Bounty, 78. 
 
TABLE OF CASES. 
 
 64, 456. Cape Elizabeth v. Co. 
 
 Com., 
 
 63, 455. Capen v. Crowell, 
 
 66, 282. V. 
 
 67, 531. Carbury v. Sullivan, 
 
 65, 547. Cardv. Ellsworth, 
 67, 77. Caileton v. Lewis, 
 
 59, 438. V. Ryerson, 
 
 59, 296. Carter v. Allen, 
 
 64, 458. V. Bailey, 
 
 62, 459. Carville v. Additon, 
 59, 361. Cary v. Herrin, 
 
 Way, 568. 
 Evidence, 228. 
 Interest, 313. 
 Fixture, 267. 
 Way, 579, 582. 
 Exceptions, 241, 242, 244. 
 Attachment, 46. 
 Collector, 93. 
 Copyright, 124. 
 
 ants, 322. 
 Amendment, 23. 
 
 93. Fees, 265, 
 
 Equity, 203. Joint Ten- 
 
 Assessor, 33. Collector, 91, 
 Lord's Day, 355. Tax, 524. 
 
 62, 
 
 16. 
 
 63, 
 
 571. 
 
 58, 
 
 164. 
 
 61, 
 
 434. 
 
 64, 
 
 40. 
 
 60, 
 
 230. 
 
 67, 
 
 452. 
 
 67, 
 
 198. 
 
 63, 
 
 588. 
 
 68, 
 
 375. 
 
 65, 
 
 102. 
 
 61, 
 
 505. 
 
 66, 
 
 271. 
 
 67, 
 
 85. 
 
 62, 
 
 175. 
 
 57, 
 
 157. 
 
 68, 
 
 204. 
 
 60, 
 
 282. 
 
 62, 
 
 255. 
 
 65, 
 
 42. 
 
 63, 
 
 393. 
 
 58, 
 
 133. 
 
 62, 
 
 47. 
 
 67. 
 
 118. 
 
 59, 
 
 262. 
 
 58, 
 
 326. 
 
 57, 346. 
 
 64, 31. 
 68, 524. 
 
 61, 304. 
 57, 449. 
 
 62, 501. 
 
 57, 181. 
 
 64, 37. 
 
 63, 459. 
 
 58, 416. 
 
 67, 25. 
 
 68, 482. 
 
 64, 65. 
 58, 451. 
 58, 309. 
 57, 100. 
 57, 410. 
 
 65, 92. 
 62, 568. 
 68, 484. 
 
 65, 382. 
 
 - V. . 
 
 ■ V. Warner, 
 
 Caswell V. Johnson, 
 Cassidy v. Bangor, 
 Chamberlain v. Black, 
 
 V. Lancy, 
 
 Chapman v. Eames, 
 
 V. Pingree, 
 
 V. Kich, 
 
 Chase v. Collins, 
 
 V. Davis, 
 
 V. Hathome, 
 
 V. Marston, 
 
 V. Phoenix Life 
 
 Ins. Co., 
 
 V. Silverstone, 
 
 V. Willard, 
 
 V. Wingate, 
 
 Chipman v. Todd, 
 Clark V. Clark, 
 
 V. Cousins, 
 
 V. Lebanon, 
 
 V. Kobinson, 
 
 V. Scammon, 
 
 Cleaves v. Dockray, 
 Clifford, Applt., 
 Cobb V. Lime Eock F. 
 
 & M. Ins. Co., 
 Coburn v. Haley, 
 
 Coe V. Co. Com., 
 Colby V. Bunker, 
 
 V. Wiscasset, 
 
 CoUagan v. Burns, 
 
 CoUey V. Doughty, 
 
 V. Westbrook, 
 
 Collins V. Bradbury, 
 
 V. Buck, 
 
 Colson V. Wilson, 
 Colton V. Stanwood, 
 
 Comins v. Eddington, 
 Conant v. Norris, 
 Concord v. Delaney, 
 Connor v. Atwood, 
 V. Madden, 
 
 Convention v. Port'd 
 Coolidge V. Wiggin, 
 Coombs V. Co. Com., 
 
 V. Charter Oak 
 
 Equity, 212. Executors, 264. Mortgage, 
 
 377. Witness, 589. 
 Equity, 211, 212. Payment, 419. 
 Merger, 364. 
 
 Bond, 75. Damages, 153. Fish, 267. 
 City, 90. Way, 571, 572, 575. 
 Equity, 203, 212. Interest, 812. 
 Equity, 199, 206. 
 Partnership, 405. Sale, 498. 
 Condition, 96. Estoppel, 217. 
 Infant, 297, 
 Poor Debtor, 437. 
 
 Devise and Legacy, 181, 184. Trust, 550, 552. 
 Bank, 54. Bills and Notes, 65. Corporation, 
 
 130. Deposition, 172. Surety, 517. 
 Mortgage, 379. 
 
 Insurance, 301. 
 
 Actions, 10. Case, 83. Water, 565. 
 Sale, 491. 
 
 Deed, 170. Fixture, 268. Mortgage, 372. 
 Surety, 517. 
 
 Fees, 265. Trustee Process, 556. 
 Conflict of Law, 99. 
 
 Juiy, 331. Negligence, 388. Way, 581. 
 Equity, 199. 
 Deed, 168. 
 
 Bond, 75. Executors, 261. Pleading, 424. 
 Way, 569. 
 
 Insurance, 306. 
 
 Bills and Notes, 71. Consideration, 101. 
 
 Fraud, 271. 
 Statute, 512. 
 Interest, 313. 
 Exceptions, 246. 
 Evidence, 236. Execution, 248. Practice, 
 
 442. Will, 586. 
 Lien, 347. 
 Way, 582. 
 
 Bills and Notes, 60. Pleading, 430. 
 Bailment, 52. Lien, 344. 
 Attachment, 44, 46. 
 Amendment, 19, 22. Bond, 76. Pleading, 
 
 Pleading, 427, 429. Precedents, 452. 
 
 Constitutional Law, 109. Town, 532, 536. 
 
 Fence, 266. 
 
 Assumpsit, 40. Contract, 114. Fraud, 270. 
 
 Condition, 97. 
 
 Arrest, 31. Attachment, 45. 
 
 Tax, 519. 
 
 Bills and Notes, 65, 70. Evidence, 229. 
 
 Way, 569, 570. 
 
 Company, 
 
 Evidence, 221. Insurance, 301. 
 
TABLE OF CASES. 
 
 XI 
 
 59, 111. Coombs v. Gordon, 
 
 62, 192. 
 59, 426. 
 
 67, 140. 
 57, 69. 
 
 62, 124. 
 66, 161. 
 59, 105. 
 
 68, 488, 
 
 66, 360. 
 
 67, 280. 
 
 65, 156. 
 67, 326. 
 
 Executions, 255. Market Overt, 359. Ke- 
 plevin, 484. 
 Cooper V. Page, Deed, 161. Real Action, 474. 
 
 Continen'l Mills v. Dow, Costs, 137. 
 
 Corey v. Perry, 
 
 V. Ripley, 
 
 Cota V. Mishow, 
 
 V. Ross, 
 
 Cottle V. Young, 
 Cotton V. MoKee, 
 
 v. Smithwick, 
 
 Cousens v. School Dis- 
 trict, 
 
 Courtenay v. Fuller, 
 Crabtree v. Clapbam, 
 
 Cratty v. Bangor, 
 Crocker v. Pierce, ' 
 Crockett v. Millett, 
 
 V. Scribner, 
 
 Crooker v. Crooker, 
 
 V. Holmes, 
 
 V. Hougbton, 
 V. Rogers, 
 
 58, 479. Craig V.Franklin Co., 
 
 66, 517. Craigin v. Craigin, 
 
 57, 423. 
 
 61, 58. 
 
 65, 191. 
 
 64, 447. 
 
 57, 395. 
 
 65, 195. 
 
 61, 337. 
 
 58, 339. 
 
 62, 528. 
 
 64, 466. 
 
 63, 167. 
 57, 146. 
 
 59, 206. 
 
 65, 140. 
 62, 504. 
 
 65, 301. 
 
 57, 420. 
 
 Bankruptcy, 57. 
 
 Bankruptcy, 57. Constitutional Law, 108. 
 
 Jurisdiction, 328. 
 Set-Off, 508. Trustee Process, 555. 
 Scire Facias, 503, 504. Statutes, 515. 
 Deed, 163, 167. Prescription, 453. 
 Mortgage, 369. 
 Estoppel, 217. Evidence, 222. Devise, 184 
 
 School House, 502. 
 
 Contract, 114. Evidence, 221. 
 
 Damages, 146. Partnership, 406. Replevin, 
 484, 485. 
 
 Condition, 97, 98. Corporation, 133. Equi- 
 ty, 197. Estoppel, 215. Real Action, 472. 
 Seizin, 506. Trust, 547. 
 
 Descent and Distribution, 174. Executors, 
 256. Insurance, 302. 
 
 Lord's Day, 354. 
 
 Equity, 198. Trust, 553. 
 
 Mills, 365, 367. 
 
 Fraud, 279. 
 
 Equity, 202. Title, 530. 
 
 Bills and Notes, 62. Condition, 98. Con- 
 tract, 120. Mortgage, 376, 381. Time, 529. 
 
 Equity, 197. 
 
 Equity, 196, 199, 206. 
 
 Crossmanv. Owen, Officer, 400. 
 Cumberland Bone Co. 
 
 V. Andes Ins. Co., Insurance, 300. 
 Cumberland Bone Co. 
 
 V. Atwood Lead Co., Contract, 112. 
 Cumberland and Ox- 
 ford Canal Co. v. 
 Hitchings, Limitations, 350. 
 
 Cumberland and Ox- 
 ford Canal Co. v. 
 
 Hitchings, Actions, 9. Trespass, 539. 
 
 Cumb. & Oxford Canal 
 
 Co. V. Hitchings, Damages, 147. Nuisance, 397. Trespass, 539. 
 Cumb. & Oxford Canal 
 
 Co. V. Portland, Precedents, 453. Town, 531. 
 
 Cummings v. Garvin, Trustee Process, 555. 
 
 Cunningham v. Hortou, Executions, 248. Landlord and Tenant, 333. 
 335. 
 Assault, 32. Damages, 149, 156. Evidence, 
 
 225. Verdict, 559. 
 Arbitration, 30. Contract, 111. 
 Appeal, 25. Way, 572. 
 Officer, 398. Town, 533, 535. 
 New Trial, 393. Way, 567, 570. 
 New Trial, 393. Way, 568, 569, 576, 578. 
 
 63, 323. Currier v. Swan, 
 
 59, 483. Curtis v. Portland, 
 
 60, 55. V. 
 
 57, 541. Gushing v. Frankfort, 
 
 62, 20. Cyr v. Dufour, 
 
 68, 492. V. 
 
 D. 
 
 61, 
 
 160. 
 108. 
 
 60, 303. 
 63, 396. 
 
 61, 395. 
 61, 140. 
 
 Dane v. Young, 
 Darling v. Bangor, 
 Davie v. Jones, 
 Davis V. Bangor & Pis- 
 cataquis R. R. Co., 
 V. Co. Com., 
 
 - V. Davis, 
 
 - V. Emery, 
 
 Bank, 55. Corporation, 130, 132. 
 Drains, 192. Town, 533. 
 Witness, 592. 
 
 Jury, 330. Railroad, 464. Way, 574. 
 Mandamus and Prohibition, 358. Practice. 
 441. ' 
 
 Dower, 190. Judgment, 324. 
 
 Sale, 494. 
 
3m 
 
 TABLE OP CASES. 
 
 64, 427. 
 64, 159. 
 57, 593. 
 
 65, 366. 
 
 59, 210. 
 58, 273. 
 
 61, 369. 
 
 66, 406. 
 
 68, 322. 
 
 61, 51. 
 
 62, 574. 
 
 64, 254. 
 
 63, 350. 
 
 57, 425. 
 
 60, 519. 
 
 58, 217. 
 
 66, 140. 
 57, 379. 
 57, 381. 
 68, 191. 
 
 59, 103. 
 68, 542. 
 
 65, 87. 
 
 67, 180. 
 
 68, 173. 
 
 63, 15. 
 
 63, 537. 
 67, 438. 
 
 63, 462. 
 
 59, 200. 
 
 64, 183. 
 
 64, 138. 
 59, 118. 
 
 66, 348. 
 62, 365. 
 59, 393. 
 
 59, 474. 
 
 60, 512. 
 
 63, 465. 
 60, 351. 
 65, 218. 
 
 62, 24. 
 
 58, 187. 
 
 63, 174. 
 63, 17. 
 57, 108. 
 
 Davis V. Eoby, 
 
 V. Eogers, 
 
 V. Stevens, 
 
 Day V. Chandler, 
 Dearborn v. Morse, 
 
 v. Union 
 
 National Bank, 
 
 V. 
 
 Decker v. Somerset 
 
 Ins. Co., 
 Deering v. Saco, 
 Dela V. Stanwood, 
 
 Practice, 444, 445. Witness, 590. 
 
 Mortgage, 379. 
 
 Absent Defendant, 6. Cases Overruled, 84. 
 
 Deed, 161. Dower, 191. Execution, 251. 
 
 Mills, 366. 
 Practice, 452. Trustee Process, 557. 
 Contract, 113. Estoppel, 214. Evidence, 222. 
 
 Evidence, 229. Trover, 545. 
 Bailment, 53. Collateral Security, 91. Evi- 
 dence, 226. 
 
 Evidence, 230. Exceptions, 242, 245. 
 Arbitration, 27, 28. Waiver, 563. 
 Constitutional Law, 106. Dower, 190. Mort- 
 gage, 379. Revenue, 487. 
 
 V. Dower, 191. Equity, 204. Mortgage, 375. 
 
 Deming v. Houlton, Bond, 77. Consideration, 100. 
 
 Dennett v. Hopkinson, Devise and Legacy, 175. Executors, 256. 
 
 V. Pen. Fair 
 
 Ground Co., Contract, 122. Landlord and Tenant, 337. 
 
 Dennison v. Portland 
 
 Co., Arbitration, 30. Error, 218. 
 
 Derocher v. Continental 
 
 Mills, Infant, 296. 
 
 Dillingham v. Blood, Bills and Notes, 66, 68. 
 Dingley v. Buffum, Trespass, 544. 
 
 -■ \V. Fixtures, 267. Landlord and Tenant, 334. 
 
 Dinsmore v. Savage, Equity, 205. Mortgage, 371, 376, 378. 
 
 ■ V. Webber, Contract, 117. Executors, 257. Infant, 296. 
 
 Dixon V. Eaton, Mills, 367. 
 
 Doherty v. Dolan, Amendment, 21. Damages, 151. 
 
 Dolbier v. Agricultural 
 
 Ins. Co., Insurance, 304, 311. 
 
 DoUifE V. B. & M. E. E. 
 
 Co., Drains, 192, 194. 
 
 Donnell v. Webster, Tax, 523. 
 Doolittle V. Hilton, Devise and Legacy, 181. 
 Dorr V. Phoanix Life 
 
 Ins. Co., Insurance, 302. 
 
 Douglass V. Gardiner, Abatement, 3. Officer, 399. Replevin, 483. 
 Writ, 593. 
 Eeal Actions, 474, 477. 
 Alteration of Instruments, 17. Bond, 74. 
 
 Eatification, 472. Town, 531. 
 Seizin, 506. 
 
 Mortgage, 372, 380. Waiver, 562. 
 Way, 580. 
 
 Amendment, 22. Certiorari, 88. 
 Conflict of Law, 99. Contract, 114. Mort- 
 gage, 383. 
 DriscoU V. Lewiston E. 
 
 C. Company, Corporation, 126, 131. Estoppel, 214 
 
 Dryden v. Grand Trunk 
 
 Eailroad, Constitutional Law, 108. Corporation 131 
 
 Eailroad, 468. ' 
 
 Dudley v. Kennedy, Accord, 7. Nuisance, 396. 
 Duly V. Hogan, Amendment, 18. 
 
 Dunham v. Felt, Poor Debtor, 437. 
 
 Dunn V. Burleigh, Constitutional Law, 105. Deed, 164 Pub- 
 
 lic Lands, 461. 
 
 V. Grand Trunk 
 
 ^- ^-J „.„ Carrier, 82. Eailroad, 468. 
 
 V. Hill, Pleading, 433. 
 
 V. Record, Attorney at Law, 49. 
 
 V. Libby, 
 
 Dover v. Robinson, 
 
 Dow V. McKenney, 
 
 V. Moor, 
 
 Doyle V. Vinalhaven, 
 Dresden v. Co. Com., 
 Drew V. Smith, 
 
 Dunning v. Merchants' 
 
 Mut. M. Ins. Co., Insurance, 306. Shipping, 509, 511 
 
 ,ra,n v. Av«. D^^ages, 152. Interest,^313.' Partnership, 
 
 67, 145. Duran v. Ayer, 
 
TABLE OP CASES. 
 
 XUl 
 
 64, 473. Durgin v. Bartol, 
 68, 143. V. Dyer, 
 
 65, 583. Button v. Simmons, 
 
 61, 587. Dyer v. Brackett, 
 
 63, 170. V. Fitch, 
 
 63, 173 and 692: Dyer v. Fred- 
 ericks, 
 61, 45. Dyer v. Libby, 
 68, 472. V. Morris, 
 
 Bills and Notes, 60, 72. 
 
 Contract, 117. Sale, 495. 
 
 Attachment, 46. Misnomer, 368. Officer, 
 
 401. 
 Amendment, 20. Lien, 347. 
 Contract, 121. 
 
 Evidence, 219. 
 Fraud, 279. Sale, 494. 
 Practice, 442. Set-OfE, 508. 
 
 61, 405. 
 
 62, 126. 
 
 65, 251. 
 64, 244. 
 67, 533. 
 
 67, 540. 
 59, 510. 
 
 68, 63. 
 
 59, 620. 
 
 66, 221. 
 
 60, 255. 
 64, 68. 
 60, 118. 
 
 59, 418. 
 
 60, 209. 
 
 67, 387. 
 
 64, 297. 
 
 67, 39. 
 
 62, 578. 
 
 63, 32. 
 63, 33. 
 
 63, 357. 
 
 61, 99. 
 66, 456. 
 
 62, 128. 
 
 64, 214. 
 
 66, 276. 
 
 68, 292. 
 
 63, 308. 
 
 61, 22. 
 61, 595. 
 60, 453. 
 
 59, 277. 
 
 59, 325. 
 
 67, 497. 
 
 E. 
 
 Eames v. Gray, Bastardy, 58. Seal, 505. 
 
 V. Trickey, Trover, 545. 
 
 Eastman v. Wadleigh, Judgment, 327. 
 Eastport v. Lubec, Pauper, 410. 
 
 Ea. Maohias v. Bradley, Pauper, 413. 
 Eaton V. Boissonnault, Interest, 313. 
 
 V. Carson, Bills and Notes, 73. Evidence, 234. 
 
 v.NewEngland) Estoppel, 218. Evidence, 226, 234. Excep- 
 
 Telegraph Co., ) tions, 249. Practice, 452. Waiver, 564. 
 
 V. European & I Cases Overruled, 85. Corporation, 131. Rail- 
 
 N. A. E. E. Co., ) road, 462, 470. Trespass, 539. Way, 574. 
 V. Waite, Surety, 518. 
 
 Interest, 312. 
 
 Executors, 259. Partnership, 407. 
 
 Evidence, 223. Mortgage, 382. 
 
 Verdict, 560. 
 
 Evidence, 230. Libel and Slander, 343. 
 
 Emery v. Brann, 
 V. Hobson, 
 
 V. 
 V. 
 
 Edwards v. Moody, 
 Egery v. Howard, 
 Elder v. Miller, 
 Elliott V. Grant, 
 Ellis V. Buzzell, 
 
 Emerson v. European ) Assignment, 34. Cases Overruled, 84. Con- 
 & N. A. R. E. Co., J tract, 114, 123. Mortgage, 371. Sale, 490. 
 
 V. Hewins, Devise and Legacy, 184. Executors, 262. 
 
 Fraud, 278. Trust, 562. 
 Certiorari, 88. Poor Debtor, 436. Presump- 
 tion, 456. 
 Assumpsit, 41. Consideration, 100. Check, 
 
 89. 
 Check, 89. 
 Eevenue, 487. 
 
 Absent Defendant, 6. 'Amendment, 22. 
 Deed, 159. Execution, 251, 253, Practice, 
 451, 452. 
 Surety, 518. 
 Pleading, 433, 434, 435. 
 New Trial, 393. 
 Practice, 444. 
 Deed, 165, 167. 
 Equity, 202. 
 
 Fence, 265. Negligence, 389. 
 
 Jurisdiction, 329. 
 
 Joint Tenants, 322. Trover, 546. 
 
 Deed, 163. Public Lands, 461. 
 
 Contract, 113. Corporation, 130. 
 Devise and Legacy, 175, 177, 182, 183, 184. 
 Damages, 146. Mortgage, 383. Sale, 493. 
 
 V. Legro. 
 
 V. Eichardson, 
 
 Endicott v. Morgan, 
 Enfield v. Buswell, 
 Erskine v. Erskine, 
 
 V. Moulton, 
 
 Esten V. Jackson, 
 Estes V. Atlantic & St. 
 
 Lawrence R. E. Co., 
 
 V. White, 
 
 Estey V. Boardman, 
 European & N. A. E. 
 
 E. Co. V. Dunn, 
 European & N. A. E. 
 
 E. Co. V. Poor, 
 Everett v. Carr, 
 
 V. Hall, 
 
 66, 385. Fairfield v. Co. Com., Certiorari, 86. 
 
 60, 372. Fairfield Bridge Co. 1 Consideration, 102. Contract, 121 Mort- 
 V. Nye, J gage, 382, 383. Eeplevin, 483. Sale, 492 
 
XIV 
 
 64, 373. 
 63, 44. 
 
 63, 46. 
 60, 472. 
 62, 451. 
 
 65, 19. 
 
 64, 74. 
 
 59, 561. 
 
 68, 326. 
 
 60, 282. 
 
 TABLE OF CASES. 
 
 Fales V. Hemenway, 
 
 Arbitration, 28, 30. Damages, 153. Mort- 
 gage, 374, 381. 
 Falmouth v. Windham, Exceptions, 247. New Trial, 391. Practice, 
 
 444. 
 Farmer v. Portland, Amendment, 19. 
 Farmington v. Stanley, Bond, 74. Surety, 517. Town, 536. 
 Farnsworth Co. v. 
 
 Lisbon, Constitutional_Law, 105. 
 
 Famsworth Co. 
 
 Band, 
 Farrar v. Smith, 
 
 V. Pearson, 
 
 Farrell v. Lovett, 
 Farris v. Ware, 
 
 1 Collector, 91. Evidence, 220. Exceptions, 247. 
 
 ) Officer, 399, 402. Tax, 522, 524. Trespass, 542. 
 
 Cases Overruled, 84. Deed, 170. Estoppel, 
 
 214. Evidence, 222. Sale, 491. 
 Account, 8. Joint Tenants, 321. Partner- 
 ship, 406. Pleading, 424. 
 Bills and Notes, 69. Fraud, 273. 
 Assumpsit, 39. Contract, 117, 122. Fraud, 
 
 272. 
 Assumpsit, 88. Contract, 112. Officer, 398. 
 Salary, 490. 
 Fayette v. Livermore, Pauper, 410, 411, 412, 413. 
 Penderson v. Belcher, Lien, 344. 
 
 Ferguson v. Brooks, Husband and Wife, 286, 287. Married Wo- 
 man, 361. Pleading, 433, 434. Verdict, 559. 
 
 V. Spear, Fraud, 274. Husband and Wife, 285, 286. 
 
 Fessenden v. Forest Pa- 
 per Co., Damages, 153. 
 Field V. Tibbetts, Bills and Notes, 68. Intoxicating Liquors 
 
 314. 
 Fifield V. Maine Central 
 
 R. E. Co., Execution, 255. Fixtures, 267. Trover, 546. 
 
 First Baptist Society v. 
 
 Grant, Easement, 193. Meeting House, 363. 
 
 First National Bank v. I Bills and Notes, 69, 72. Pleading, 430. Pre- 
 
 McKenney, ) cedents, 452. Surety, 518. 
 
 First National Bank v. 
 
 62, 206. Farwell v. Eockland, 
 
 62, 229. 
 68, 59. 
 67, 251. 
 
 65, 277. 
 
 63, 175. 
 
 57, 358. 
 62, 77. 
 59, 245. 
 
 67, 273. 
 
 57, 405. 
 
 65, 364. 
 
 58, 258. 
 
 62, 420. 
 
 68, 183. 
 68, 78. 
 68, 52. 
 
 66, 205. 
 
 59, 566. 
 
 60, 545. 
 
 65, 11. 
 59, 194. 
 
 64, 408. 
 
 59, 131. 
 
 67, 152. 
 
 60, 109. 
 
 63, 245. 
 
 68, 121. 
 
 61, 559. 
 
 64, 32. 
 
 64, 389. 
 68, 43. 
 67, 46. 
 
 66, 172. 
 66, 229. 
 
 Redman, Executions, 252. Lien, 246, 347. 
 
 Flagg V. Bates, Trustee Process, 557. 
 
 • V. Badger, Landlord and Tenant, 334. 
 
 Intoxicating Liquors, 317. Officer, 402. 
 Assault, 32. Evidence, 228. Precedents, 453. 
 Attachment, 45. Partnership, 407. 
 Practice, 448. Waiver, 564. 
 Equity, 196. Executor, 263. Infant, 297. 
 
 Guardian and Ward, 282. Trust, 550. 
 Absent Defendant, 6. Audita Querela, 51. 
 Costs, 134. 
 Deposition, 172. 
 Witness, 588. 
 Way, 576. 
 Evidence, 222. Executions, 254. Mortgage, 
 
 370. Real Action, 473. 
 Equity, 201. 
 Bankruptcy, 57. 
 
 Auction, 51. Deed, 160. Executor, 258, 265. 
 Fraud, 277. Presumption, 454. Probate 
 Court, 457, 459. 
 Devise and Legacy, 177, 179. 
 Pauper, 410. 
 Alteration of Instruments, 17. Bond, 74. 
 
 Constable, 102. Officer, 402. 
 Agency, 12. Contract, 115. Exceptions, 250. 
 Judgment, 324. Sale, 495. 
 Frankhn Co. v. Lew- ) Assumpsit, 42. Bank, 55. Contract, 116. 
 
 iston Sav. Bank, J Corporation, 132. 
 Franklin Wharf v. Port- 
 land, Drains, 192. Nuisance, 397. 
 Freedom v. Co. Com., Tax, 523. 
 
 Freeman v. Underwood, Landlord and Tenant, 337. Sale, 498. Tro- 
 ver, 547. 
 
 Flaherty v. Longley, 
 Flint V. Bruce, 
 Eoggv. Lawry, 
 
 V. Littlefield, 
 
 Fogler V. Buck, 
 
 Folan V. Folan, 
 
 V. Lary, 
 
 V. 
 
 Folsom V. Chapman, 
 Ford V. Co. Com., 
 Forsyth v. Eowell, 
 
 Foster v. Kingsley, 
 
 V. Wylie, 
 
 Fowle V. Coe, 
 
 Fox V. Rumery, 
 Foxcroft V. Corinth, 
 Fournier v. Cyr, 
 
 Foye V. Southard, 
 
TABLE OP CASES. 
 
 XV 
 
 62, 452. 
 64, 583. 
 61, 502. 
 67, 186. 
 
 63, 326. 
 61, 203. 
 
 60, 468. 
 
 67, 414. 
 
 67, 408. 
 
 68, 145. 
 
 57, 168. 
 
 58, 40. 
 61, 525. 
 66, 446. 
 64, 410. 
 
 66, 430. 
 
 67, 35. 
 
 French v. Auburn, 
 
 V. Co. Com., 
 
 V. Crosby, 
 
 V. Holmes, 
 
 V. Motley, 
 V. Patterson, 
 
 Frost V. Frost, 
 
 V. Walker, 
 
 Frye v. Maine CentralS. 
 
 K. Co., Damages, 152. 
 
 V. Burdick, Bailment, 52, 
 
 Sale, 493. 
 Fryeburg v. Brownfield, 
 
 Pauper, 412. 
 
 Assumpsit, 38. Eatiflcation, 471. 
 
 Statutes, 515. Way, 569. 
 
 Dower, 190. 
 
 Fraud, 274, 276. Gift, 282. Husband and 
 
 wife, 285. 
 Fraud, 277. Husband and Wife, 285. 
 Tax, 522, 525, 526. 
 Equity, 208. Limitations, 348, 351. Trust, 
 
 549, 551, 553. 
 Joint Stock Association, 320. 
 
 Contract, 116. Mail, 365. 
 
 Fuller V. Miller, 
 
 V. , 
 
 V. Wilder, 
 
 Fulton V. Nason, 
 
 V. Norton, 
 
 Furbish v. Ponsardin, 
 
 v. Robertson, 
 
 Pleading, 429, 433. 
 Contract, 111. 
 
 Prece- 
 
 dents, 452. 
 Assumpsit, 48. 
 Amendment, 21. 
 
 Evidence, 226. Partnership, 408. 
 Executors, 264. Practice, 440. 
 Deed, 170. Fixtures, 267. 
 Arbitration, 30. Exceptions, 244. 
 Abatement, 2, 6, 6. Pleading, 435. 
 
 G, 
 
 63, 361. 
 
 67, 184. 
 
 57, 442. 
 
 63, 49. 
 
 57, 334. 
 
 62, 49. 
 
 60, 186. 
 
 '63, 668. 
 
 65, 469. 
 
 60, 235. 
 
 59, 491. 
 
 66, 273. 
 
 67, 517. 
 
 57, 277. 
 
 63, 582. 
 
 57, 202. 
 
 59, 308. 
 
 67, 514. 
 
 60, 52. 
 63, 863. 
 
 60, 828. 
 65, 280. 
 
 60, 402. 
 
 57, 143. 
 65, 223. 
 62, 414. 
 65, 168. 
 
 58, 293. 
 
 Gains v. Hasty, Evidence, 235. 
 
 Gammon v. Huff, Real Actions, 477. 
 
 Gardiner Bank v. Hagar, 
 
 Fraud, 278. 
 
 Gates V. Thompson, 
 Gee V. Patterson, 
 Gerry v. Dunham, 
 
 v. Eppes, 
 
 V. Stimson, 
 
 Getchel v. Gooden, 
 Gilbert v. Duncan, 
 
 Sale, 494. Shipping, 509. 
 Arrest, 31. Damages, 148. 
 Fraud, 276. Limitations, 353. 
 Arbitration, 27, 28, 30. Assumpsit, 37. 
 Dower, 189. Equity, 205, 206. Evidence, 
 
 223. Trust, 549, 650. 
 Lien, 346. 
 
 Executors, 259, 260, 262, 263. Judgment, 327. 
 Probate Court, 457. 
 Gilman v. European & 
 
 N. A. E. E. Co., Exceptions, 243. Negligence, 387. Railroad, 
 
 465. 
 Gilman v. Waterville, Actions, 10. Assumpsit, 36, 40, Tax, 527. 
 
 V. Wills, Deed, 165. Mortgage, 371, 375, 381. 
 
 Gilmore v. Matthews, Damages, 148. Intoxicating Liquors, 314. 
 
 Pleading, 426, 431, 432. 
 Gilpatrick v. Saco, Tax, 521, 527. 
 
 Gleubum v. Oldtown, Pauper, 418. 
 
 Goddard v.G. T. R.E., Carrier, 81. Damages, 148. Eailroad, 468. 
 Assumpsit, 41. Limitations, 349. 
 Equity, 198. Execution, 263. 
 Appurtenance, 26. Landlord and Tenant, 
 
 834, 886. 
 Review, 488. 
 
 Godfrey v. Eice, 
 Goodell V. Buck, 
 Goodenow v. Allen, 
 
 Gooding v. Baker, 
 Gogdwin v. Boston & 
 
 Maine E. E. Co., 
 Goodwin V. Co. Com., 
 
 V. Clarke, 
 
 V. Nye, 
 
 V. Hardy, 
 
 V. Hersom, 
 
 V. Jack, 
 
 Gordon v. Merry, 
 
 V. Readfleld, 
 
 Costs, 135. 
 
 Certiorari, 85. Way, 572. 
 
 Assumpsit, 48. Contract, 115. Dealer, 157. 
 
 Intoxicating Liquors, 814. Sale, 498. 
 School House, 501. 
 Corporation, 130. 
 Physician, 422. Pleading, 480. 
 Evidence, 240. Trespass, 544. 
 Jurisdiction, 329. Trespass, 543. 
 Bounty, 78. 
 
XYl 
 
 TABLE OF CASES. 
 
 Bond, 74. Collector, 92. Damages, 156. 
 Jury, 330. Practice, 450. 
 Goss V. Coffin, Bankruptcy, 57. 
 
 Gould V. Monroe, Assessor, 33. Collector, 91. Officer, 399. 
 
 Tax, 521. Town, 536. 
 Grafiam v. Boston & 
 
 Maine E.R. Co., Carrier, 81. Kailroad, 467. 
 
 Grand Trunk Company 
 
 ~ " Damages, 151. Judgment, 326. Master and 
 
 Servant, 361. 
 Deed, 167, 170. Seizin, 506. 
 ter Course, 566. 
 Grant v. Ward, Fraud, 274. 
 
 Gray v. Chase, Equity, 199. Fraud, 275. 
 
 V. Houlton, Insane Hospital, 298. 
 
 V. Insane Hospital, 298. 
 
 V. Millay, Sale, 497. 
 
 Jury, 330. New Trial, 393. 
 Officer, 399. Tax, 521, 522. 
 
 67, 58. Gorham v. Hall, 
 
 66, 432. 
 61, 544. 
 
 67, 234. 
 
 63, 177. 
 
 V. Latham, 
 
 64, 292. Granger v. Avery, 
 
 64, 239. 
 
 57, 658. 
 
 63, 566. 
 
 65, 521. 
 61, 327. 
 
 64, 211. 
 
 58, 518. 
 58, 54. 
 
 63, 311. 
 60, 270. 
 57, 270. 
 60, 123. 
 67, 317. 
 
 64, 44. 
 
 67, 100. 
 
 57, 589. 
 63, 405. 
 
 Greeley V. Mansur, 
 Greene v. Lunt, 
 v. No. Tar- 
 
 Title, 530. Wa- 
 
 Witness, 589. 
 Town, 636. 
 
 mouth, 
 
 V. Walker, 
 
 Griffin v. Creppin, 
 
 V. Nitcher, 
 
 V. Pinkham, 
 
 Grindle v. Eastern 
 
 Express, 
 
 V. School Dis- 
 
 trict, 
 
 Grows V. Maine Cen- 
 tral R R. Co., 
 Guilford v. Delaney, 
 Guptil v. Home, 
 
 Husband and Wife, 286. 
 Tax, 522. 
 
 Tax, 526. Trespass, 644. 
 Equity, 199. Fraud, 275. 
 Amendment, 19. 
 
 Carrier, 80. Damages, 154. 
 
 School District, 500. 
 
 Pleading, 424. 
 
 62, 257. 
 
 Law and Fact, 339. Negligence, 387, 390. 
 
 Poor Debtor, 437, 438. Waiver, 563. 
 
 Amendment, 18. Bills and Notes, 66. Equi- 
 ty, 196. Married Woman, 360. Verdict, 
 561. 
 V. Eichardson, Complaint, 94. Intoxicating Liquors, 315. 
 Jurisdiction, 329. Officer, 402. Trespass, 
 641. Warrant, 665. 
 
 H, 
 
 57, 548. 
 66, 21. 
 
 Hacker v. Everett, 
 V. Johnson, 
 
 61, 31. Hackett v. Lane, 
 
 59, 460. 
 
 63, 502. 
 
 62, 439. 
 
 60, 436. 
 
 63, 506. 
 
 63, 509. 
 
 68, 167. 
 
 64, 339. 
 
 62, 325. 
 59, 421. 
 
 67, 112. 
 
 68, 100. 
 
 57, 529. 
 
 58, 222. 
 
 58, 101. 
 62, 268. 
 68, 368. 
 
 59, 557. 
 
 Limitations, 352. 
 
 Auditor, 51. Equity, 204. Partnership, 407. 
 Replevin, 484, 485. 
 
 Cases Overruled, 85. Estoppel, 216. Plead- 
 ing, 433. Poor Debtor, 439. 
 
 Hagar v. New England 
 
 Mut. Mar. Ins. Co., Insurance, 306. 
 
 V. Arbitration, 29,, 30. New Trial, 392. 
 
 V. Randall, Trover, 546. Waiver, 562. 
 
 V. Springer, Judgment, 323. Limitations, 363. Payment, 
 
 419. Review, 488. 
 V. Limitations, 352. 
 
 ■ V. Union National 
 
 Bank, Bank, 54. Corporation, 130. 
 
 Haley v. Hobson, Assumpsit, 44. Pleading, 426. 
 
 Hall V. Barker, Assumpsit, 37, 43. Precedents,' 452. Ship- 
 
 ping, 511. 
 
 V. Co. Com., Way, 571. 
 
 V. Falmouth, Bounty, 78. 
 
 V. Merrill, Executors, 258, 259. Limitations, 350. 
 
 V. Preble, Deed, 163. Devise and Legacy, 177. 
 
 V. Unity, Way, 579. 
 
 Ham V. Wales, Way, 583. 
 
 Hamilton V. Wentworth, Devise and I-egaoy, 176. Real Actions, 473. 
 
 Hamlin v. McGillicuddy, Equity, 200, 208. 
 
 Hampden v. Bangor, Pauper, 412. 
 
 v. Levant, Pauper, 409, 411. 
 
TABLE OF CASES. 
 
 XTll 
 
 67, 370. 
 
 66, 246. 
 
 62, 84. 
 
 59, 442. 
 65, 510. 
 
 60, 340. 
 
 63, 315. 
 
 V. Watson, 
 
 Harding v. Hagar, 
 
 68, 195. Hardy v. Tilton, 
 
 65, 448. 
 
 60, 347. 
 
 61, 222. 
 
 61, 227. 
 61, 233. 
 
 63, 437. 
 
 59, 428. 
 
 65, 516. 
 
 63, 51. 
 
 60, 276. 
 
 66, 5.36. 
 
 67, 442. 
 
 64, 474. 
 58, 535. 
 
 Harlow v. Harlow, 
 
 V. Stinson, 
 
 Harmon v. Harmon, 
 
 Hampden v. Kewburg, Contagious Sickness, 110. Pauper, 412. 
 
 Hanscom v. Builum, Assignment, 36. 
 
 Hanson v. European ) Assault, 32. Carrier, 81. Damages, 148. 
 
 & N. A. K. E. Co., ) Railroad, 468. Trespass, 543. 
 Hapgood V. Needham, Bills and Notes, 68. Conflict of Law, 99. 
 Evidence, 231. Intoxicating Liquors, 314. 
 Abatement, 2. Amendment, 19. Limita- 
 tions, 349, 352. Partnership, 407. 
 Contract, 114. 
 Contract, 114. Partnership, 405. Revenue, 
 
 487. 
 Attachment, 45. Execution, 255. Money, 
 
 369. Officer, 400. 
 Probate Court, 459. 
 Fence, 265. Prescription, 453. 
 Evidence, 225. Exceptions, 242. Fraud, 
 277. License, 243. 
 
 V. Duress, 193. 
 
 V. Damages, 148. Libel and Slander, 343. Lim- 
 
 itations, 348. 
 
 V. Exceptions, 242. Pleading, 430. 
 
 V. Moore, Attachment, 44, 48. Mail, .355. ' 
 
 V. Wright, Evidence, 228. Exceptions, 247. 
 
 Harris v. Brown, Deposition, 172. 
 
 Hartshorn v. Ellsworth, Mandamus and Prohibition, 357. School Dis- 
 trict, 499. 
 
 Divorce, 188. 
 
 Exceptions, 242, 247. Practice, 443. 
 
 Amendment, 20. Pleading, 426. 
 
 Abatement, 1. Jurisdiction, 328. Pleading, 
 433. 
 
 Deposition, 172. Evidence, 220, 233. Fraud, 
 277. Real Action, 475. 
 
 Arbitration, 28. 
 
 Dower, 189. Mortgage, 372, 373. 
 
 Harvey v. Lane, 
 Harriman v. Sanger, 
 Harrington v. Tuttle, 
 Haskell V. Woolwich, 
 
 63, 410. Hatch v. Brown, 
 
 57, 283. 
 
 58, 271. 
 61, 466. 
 66, 71. 
 
 ■ V. Hatch, 
 -V. Palmer, 
 
 Hathaway v. Sherman, Insurance, 300. 
 Haverty v. Bass, 
 
 Contagious Sick- 
 
 66, 534. 
 66, 305. 
 
 60, 205. 
 68, 505. 
 
 59, 386. 
 
 66, 93. 
 68, 343. 
 
 68, 489. 
 
 67, 156. 
 
 65, 302. 
 39, 96. 
 
 68, 433. 
 
 63, 314. 
 
 64, 419. 
 
 61, 105. 
 
 66, 435. 
 
 67, 526. 
 67, 554. 
 
 62, 236. 
 
 66, 209. 
 59, 282. 
 61, 541. 
 
 63, 364. 
 
 67, 501. 
 
 Constitutional Law, 105. 
 
 neas, 110. 
 Equity, 208. 
 
 Mandamus and Prohibition, 358. 
 Execution, 255. Officer, 402. Trespass, 540. 
 Amendment, 18. Execution, 251. Officer, 
 
 400. 
 Deed, 168. 
 
 Amendment, 21. Deed, 165. Judgment, 325. 
 Law and Fact, 339, 340. Superior Court, 
 515. 
 
 Healy v. Gray, Bailment, 52. 
 
 Hearne v. Brown, Arbitration, 27. Practice, 441. 
 
 V. Chadbourne, Fraud, 281. Presumption, 456. 
 
 V. Waterhouse, Fraud, 279. 
 
 Heath v. Jaquith, Bills and Notes, 69. Evidence, 235. Prac- 
 
 tice, 449. 
 Hebron v. Co. C^m., Certiorari, 87. Way, 571. 
 
 Hawes v. Bragdou, 
 
 V. White, 
 
 Hayes v. Buzzell, 
 Hayford v. Everett, 
 
 Haynes v. Jackson, 
 
 V. 
 
 Hazen v. Jones, 
 
 Henderson v. Hender- 
 son, 
 Henry v. Miller, 
 Herriok v. Marshall, 
 Hersey v. Elliott, 
 Hewins v. Cargill, 
 
 V. Currier, 
 
 Hichborn v. Fletcher, 
 Hickey v. Veazie, 
 Hill V. Morse, 
 
 V. Stephenson, 
 
 V. Treat, 
 
 2* 
 
 Divorce, 187. Review, 488. 
 
 Cost, 135. Probate Court, 459. 
 
 Deed, 164. Easement, 194. Estoppel, 217. 
 
 Bankruptcy, 57, 58. Bills and Notes. 66. 
 
 Alteration of Instruments, 17. Bills and 
 
 Notes, 62. 
 Bail, 51. Debt, 157. Scire Facias, 503. 
 Bills and Notes, 61, 73. Surety, 518. 
 Arbitration, 29. 
 Judgment, 326. Surety, 518. 
 Gift, 281. Judgment, 326. 
 Executor, 260. Partnership, 406. Will, 587. 
 
XTtU 
 
 TABLE OP CASES. 
 
 57, 324. 
 66, 118. 
 
 66, 573. 
 
 60, 184. 
 68, 226. 
 57, 360. 
 
 61, 257. 
 60, 578. 
 
 67, 244. 
 
 66, 410. 
 
 68, 241. 
 63, 579. 
 65, 215. 
 
 67, 446. 
 
 66,- 520. 
 
 68, 215. 
 
 68, 416. 
 63, 318. 
 68, 525. 
 
 63, 420. 
 60, 201. 
 
 59, 464. 
 
 57, 273. 
 
 58, 146. 
 
 60, 267. 
 
 64, 477. 
 
 63, 486. 
 
 64, 93. 
 
 64, 445. 
 
 65, 308. 
 
 64, 86. 
 
 66, 17. 
 
 63, 258. 
 
 65, 287. 
 
 64, 344. 
 68, 262. 
 64, 241. 
 
 67, 507. 
 
 64, 572. 
 
 62, 423. 
 59, 269. 
 57, 493. 
 66, 192. 
 59, 170. 
 
 63, 184. 
 
 nines V. Robinson, 
 
 Deed, 169. Joint Tenants, 321. Mills, 365. 
 Seizin, 505. 
 Hinkley & E. Iron Co. 
 V. Maine Mutual Ins. 
 
 Company, Bills and Notes, 63. Insurance, 309. 
 
 Hobbs V. East. E.E. Co., Damages, 148. Evidence, 239. Negligence, 
 390. New Trial, 393. 
 
 V. Walker, Deed, 159. Executions, 254. 
 
 Hodgdon v. Co. Com., Certiorari, 87. 
 
 Hosffner v. Stratton, Clerk of Courts, 90. Judgment, 323. 
 
 Replevin, 485. 
 Hoey V. Candage, Damages, 146. Mortgage, 381. Verdict, 560. 
 
 Holbrook v. Connor, Fraud, 271. 
 
 V. Ejiight, Bastardy, 58. Exceptions, 243, 245. 
 
 V. Tobey, Damages, 153. 
 
 Holden v. French, Shipping, 510. Partnership, 405. 
 
 v. Glenbum, Pauper, 413. 
 
 v. Robinson Co., Damages, 149. Evidence, 238. Water-course, 
 
 566. 
 Holden S. M. Co. v. Wes- 
 
 tervelt. Assumpsit, 39, 43. 
 
 HoUey v. Young, 
 
 V. 
 
 Holmes v. Brooks, 
 
 V. Farris, 
 
 V. French, 
 
 V. Holmes. 
 
 V. Robinson 
 
 Evidence, 221. Landlord and Tenant, 337. 
 
 Attorney at Law, 49. Evidence, 234. Prac- 
 tice, 450. 
 
 Limitations, 350. Witness, 589. 
 
 Fraud, 276. 
 
 Constitutional Law, 107. Statute, 512. 
 Usury, 558. 
 
 Divorce, 186. 
 
 Manufacturing Co., Amendment, 19. 
 Holt V. Holt, Citizenship, 90. Desertion, 174. Interest, 
 
 312. 
 Hooper v. Hobson, Water Course, 566. 
 Hope Iron Works v. 1 Assignment, 34. Contract, 120. Corporar 
 
 Holden, J tion, 130. Patent, 408. Verdict, 560. 
 
 Hopkins v. Fogler, Certiorari, 86. Poor Debtor, 437, 438. 
 Houghton v. Nash, Contract, 118. 
 
 Hovey v. Storer, Contract, 114. Equity, 204. 
 
 Howard v. Hinkley and 
 
 E. Iron Co., Bills and Notes, 63. Insurance, 308. 
 
 V. Houghton, Amendment, 21. Mortgage, 374, 381. Real 
 
 Actions, 478. 
 Amendment, 20. Auditor, 51. Evidence, 
 
 223. Judgment, 325. Practice, 443, 445. 
 Bills and Notes, 60, 63. Consideration, 100. 
 
 Insurance, 308, 309. 
 Equity, 200. 
 Assumpsit, 40. Poor Debtor, 439. Practice, 
 
 451. 
 Equity, 212. 
 
 Interest, 312. Shipping, 509. 
 Receipt, 478. 
 
 Agency, 16. Dower, 191. 
 Deed, 168. Estoppel, 217. Evidence, 234. 
 Exceptions, 249. New Trial, 391. Real 
 Action, 476. 
 Witness, 588. 
 
 Assumpsit, 42. Exceptions, 249. Fraud, 279. 
 Jury, 331. New Trial, 393. Waiver, 564. 
 Jury, 331. 
 
 Cases Overruled, 84. Payment, 417. 
 Bills and Notes, 60. 
 Divorce, 186. Precedents, 453. 
 
 V. Kimball, 
 
 V. Palmer, 
 
 Howe V. Whitney, 
 Howes V. Tolman, 
 
 Huff V. Curtis, 
 Hunt V. Barker, 
 
 V. Brewer, 
 
 V. Hotchkiss, 
 
 Hunter v. Heath, 
 
 V. Lowell, 
 
 V. Randall, 
 
 Hussey v. Allen, 
 
 V. Mclntire, 
 
 V. Sibley, 
 
 V. Winslow, 
 
 Huston V. Huston, 
 
65, 167. Industry v. Starks, 
 
 59, 513. Irving T. Co. Com., 
 68, 113. Ingalls v. Chase, 
 
 TABLE OP CASES. XIX 
 
 I. 
 
 Champerty, 89. Consideration, 100. Con- 
 tract, 115. Pauper, 412. Town, 537. 
 
 Way, 569, 574. 
 
 Amendment, 23. Forcible Entry, 269. Rec- 
 ognizance, 479. 
 
 V. Jewett, 
 V. persons un- 
 
 known, 
 
 v. Bicker, 
 
 64, 133. Jackman v. Garland, 
 
 63, 55. Jackson v. Portland, 
 
 65, 138. James v. Josselyn, 
 60, 557. V. Tibbetts, 
 
 67, 810. Jarvis v. Albro, 
 
 57, 345. Jay v. Gray, 
 
 68, 373. Jellerson v. Jordan, 
 
 58, 275. Jenkins v. Village 
 
 Bank, 
 
 64, 97. Jenks v. Walton, 
 63, 468. Jennings v. Wayne, 
 
 68, 172. Jewett v. Hamlin, 
 
 58, 234. 
 61, 408. 
 
 68, 377. 
 
 67, 528. 
 
 68, 237. 
 
 64, 553. 
 68, 34. 
 63, 188. 
 
 67, 93. 
 
 61, 480. 
 
 68, 334. 
 
 57, 42. 
 
 65, 273. 
 
 66, 585. 
 
 59, 180. 
 61, 25. 
 57, 572. 
 66, 242. 
 
 63, 189. 
 63, 193. 
 
 60, 540. 
 
 57, 352. 
 
 Johnson V. Kingsbury. 
 
 v. Leonards, 
 
 V. Smith, 
 
 Jones V. Bacon, 
 V. Boston & Al- 
 bany E. K. Co., 
 
 V. Burnham, 
 
 V. Hodgkins, 
 
 V. McNarren, 
 
 V. Portland, 
 
 T. Roberts, 
 
 T. Sanford, 
 
 T. Simpson, 
 
 V. Skinner, 
 
 V. Tibbetts, 
 
 V. Winthrop 
 
 Savings Bank, 
 Jordan v. Haskell, 
 
 V. 
 
 V. School Dis- 
 
 trict, 
 V. Staples, 
 
 1 
 
 Constitutional Law, 109. Statute, 512. 
 Damages, 156. Drains, 192. Way, 576. 
 Contract, 115. 
 Evidence, 223. Fence, 266. 
 Mortgage, 374, 379. Payment, 417. Pre- 
 sumption, 456. 
 Reform School, 480. 
 Assumpsit, 42. Fraud, 281. 
 
 Bailment, 52. Bank, 54. Contract, 121. 
 
 Condition, 97. Partition, 404. 
 
 Animals at Large, 24. New Trial, 393. Way, 
 
 584. 
 Judgment, 325. Mortgage, 374, 381. Real 
 
 Action, 473. 
 Pleading, 434, 435. 
 
 Evidence, 240. Partition, 404. 
 Deed, 164. 
 
 Executors, 263. Probate Court, 458. 
 Deed, 169. Mortgage, 372, 373. 
 Damages, 148, 149. Evidence, 225. 
 Devise and Legacy, 177. 
 
 Carrier, 80. Trover, 546. 
 
 Consideration, 101. Law and Fact, 339. 
 
 Patent, 408. 
 Agency, 16. Sale, 494. Trover, 545. 
 Deed, 160, 166. Execution, 254. Registry of 
 
 Insti-uments, 481. Title, 530. 
 Way, 571. 
 Deed, 159. Evidence, 219. Exceptions, 245. 
 
 Fraud, 274. Practice, 443. 
 Law and Pact, 339. Town, 532, 534. 
 Witness, 588. 
 
 Pleading, 429. Statutes, 515. 
 Will, 587. Witness, 588. 
 
 Bank, 55. Tax, 519. 
 School House, 501. 
 Waiver, 564. 
 
 School House, 501. 
 
 Landlord and Tenant, 334, 336. Trespass, 538. 
 
 61, 273. 
 
 67, 163. 
 
 63, 57. 
 
 68, 197. 
 65, 59. 
 
 Kallock V. Perry, 
 Keeley v. Boston & 
 Maine R. R. Co., 
 Kelley v. Morris, 
 
 V. Wevmouth, 
 
 Kellogg V. Curtis, 
 58, 114 Kelton v. Hill, 
 
 K. 
 
 Husband and Wife, 287. Trespass, 539. 
 
 Railroad, 469. 
 
 Arrest, 31. Execution, 251. 
 
 Trustee Process, 554. 
 
 Estoppel, 216. Exceptions, 245. Law and 
 
 Fact, 339. Negligence, 385, 390. 
 Set-ofi, 507. 
 
XX TABLE OF CASES. 
 
 59,259. Kelton V. Hill, Witness, 589,591. 
 
 59, 9. Ken. & Port. R. R.Co. v. 
 
 Port. & K. E. R. Co., Mortgage, 379. 
 65, 594. Kennedy v. Cochran, Contract, 116. Conflict of Law, 99. 
 67, 538. V. Jones, Lien, 344. Payment, 420. Sale, 496. 
 
 65, 596. V. Weston, Pauper, 414. 
 
 61, 134. Kenney v. Burke, Review, 419. 
 64, 472. Kidder v. Sawyer, Practice, 452. 
 
 62, 305. Kimball v. Sumner, Assumpsit, 37. Descent, 174. Executors, 
 
 256, 262. Heirs, 283. Joint Tenants, 321. 
 Pleading, 425. 
 
 63, 567. King v. Aroostook Co., Way, 578. 
 
 61, 244. V. Crowell, Bills and Kotes, 66, 67. 
 
 67, 543. Kirkpatrick v. Hall, Exceptions, 245. Infant, 296. 
 
 68, 540. Kneeland v. Webb, Exceptions, 245. Statutes, 515. 
 59, 445. V. Willard, Sale, 495. Revenue, 487. 
 
 67, 291. Knight v. Aroostook 
 
 R. R. Co., Railroad, 465. Statute, 512. 
 
 57, 174. V. Dyer, Deed, 160. Easement, 193. Mortgage, 369. 
 
 67, 591. V. Taylor, Amendment, 23. 
 
 63, 261. Knowles v. School Dis- 
 
 trict, School House, 502. 
 
 57, 495. V. Scribner, Bastardy, 58. Cases Overruled, 84. Evi- 
 
 dence, 230. 
 
 58, 172. V. Toothaker, Deed, 167. 
 
 L. 
 
 64, 347. Ladd v. Jacobs, Costs, 136. Trustee Process, 558. 
 
 66, 97. V. Patten, Contract, 122. 
 
 62, 240. Lake v. Milliken, Case, 83. Negligence, 387, 389. 
 
 59, 322. Lamb v. Danforth, Joint Tenant, 321. Pleading, 424. 
 62, 272. Lancaster v. Kennebec 
 
 Co., Practice, 441. 
 
 68, 28. Lanoey v. White, Limitations, 350. 
 
 65, 26. Lauder v. Arno, Evidence, 220. Judgment, 325, 327. 
 68, 178. Lane v. Smith, Assumpsit, 42. 
 
 65, 160. Lapan v. Co. Com., Certiorari, 86. 
 
 58, 412. Larrabee v. Hodgkins, Deed, 166. Tax, 527. 
 
 66, 376. V. Sewall, Fraud, 278. Negligence, 390. Practice, 446. 
 
 Way, 585. 
 68, 208. Laughton v. Harden, Equity, 200, 208, 209. Fraud, 275. 
 62, 463. Lawler v. Androscoggin 
 
 E. R. Co., Master and Servant, 362. Negligence, 386. 
 
 62, 275. Lawrence v. Buck, Lost Goods, 355. 
 
 61, 38. V. Rokes, Equity, 197, 204, 209, 210. Limitations, 348, 
 
 351. 
 
 58, 432. Lee v. Chase, Assumpsit, 37. Executors, 256, 262. Insur- 
 
 ance, 300. 
 
 59, 480. V. Lanahan, Bailment, 53. Demand, 171. Limitations, 
 
 349. Married Woman, 360. 
 
 57, 481. V. Pembroke Iron 
 
 Co., Case, 83. Constitutional Law, 106. Mills, 364. 
 
 58, 408. Leighton v. Haynes, Cost, 136. 
 
 57, 85. V. Kelsey, Attachment, 47. Bankruptcy, 56. 
 
 58, 63. V. Leighton, Devise and Legacy, 179. Remainder, 482. 
 
 62, 322. Lennox v. Knox & Lin- 
 
 coln R. R. Co., Exceptions, 247. Jury, 332. Verdict, 561. 
 
 59, 135. Lentell v. Getchell, Bills and Notes, 64. Payment, 416. 
 
 62, 468. Leslie v. Lewiston, Infant, 298. Negligence, 389. Way, 584. 
 
 67, 429. Levant v. Co. Com., Amendment, 22. Cases Overruled, 85. Cer- 
 
 tiorari, 86, 88. Tax, 523. 
 65, 555. Lewis v. Poster, OfBoer, 399. Poor Debtor, 437. 
 
 61, 874. V. Meserve, Abatement, 3. Dower, 189, 191. Estoppel, 
 
 215. 
 67, 206. V. Smart, Evidence, 232. Exceptions, 242. Practice, 
 
 446. Replevin, 483, 486. 
 
TABLE OF CASES. XXI 
 
 63, 65. Libby v. Brainard, Trustee Process, 556. 
 
 64, 479. V. Thornton, Deed, 161, 166. 
 
 60, 407. Lime Rock Ins. Co. v. 
 
 Hewett, Bills and N'otes, 60. Limitations, 352. 
 
 58, 415. Lime Kock Fire & Ma- 
 rine Ins. Co. V. Treat, Partnersliip, 407. 
 
 65, 368. Lindley v. Union Ins. 
 
 Co., Insurance, 302, 304. 
 
 66, 212. Lindsay v. Hill, Conflict of Law, 98. Contract, 123. Interest, 
 
 313. Usury, 558. 
 
 57, 406. Linscott v. Fuller, Trespass, 548. Trustee Process, 553. 
 
 66, 239. Little v. Boston & Me. I Carrier, 81, 82. Damages, 154. Negligence, 
 
 R. R., ) 386. 
 
 62, 328. V. Merrill, Equity, 203. 
 
 58, 86. V. Thurston, Bills and Notes, 71. Condition, 97. Consid- 
 
 eration, 101. 
 
 65, 248. Littlefield v. Boston & 
 
 Me. R. R. Co., Amendment, 22. 
 
 67, 212. Littlewood v. Wardwill, Executions, 252. 
 
 63, 368. Lord v. Bourne, Cases Overruled, 85. Devise and Legacy, 
 
 176. Heirs, 283. 
 
 61, 420. V. French, Assumpsit, 41. Fraud, 272. 
 
 67, 399. V. Haseltine, Shipping, 511. 
 
 61, 462. V. Kennebunkp't, Assumpsit, 40. Demand, 171. Duress, 193. 
 
 Exceptions, 247 
 
 66, 265. V. Lord, Divorce, 185, 186. Pleading, 432. Precedents, 
 
 453. 
 58, 49. Long v. Woodman, Fraud, 271. 
 
 65, 56. V. Assumpsit, 39. Contract, 123. Cost, 134. 
 
 Fraud, 271. 
 61, 590. Longfellow v. Long- ) Landlord and Tenant, 338. Real Actions, 
 fellow, ) 478, 474. 
 
 68, 479. Look v. Ramsdell, Review, 489. 
 
 64, 556. Loring v. Loring, Payment, 417. Shipping, 509, 510. 
 
 60, 592. Lovegrove v. Brown, Corporation, 129. 
 58, 9. V. Hunt, Corporation, 129. 
 
 68, 386. Lovejoy v. Richardson, Deed, 159. Signature, 511. 
 
 61, 566. Low V. Dunham, Attachment, 48. Demand, 171. Lien, 345, 
 
 347. Statutes, 513. 
 
 66, 78. Lowell v. Newport, Infant, 297. Pauper, 409. 
 58, 321. Luce v. McLoon, Limitations, 350. 
 
 66, 309. Lynde v. Rockland, Amendment, 21. Assumpsit, 38. Conta- 
 
 gious Sickness, 110. Town, 581. 
 
 M. 
 
 67, 180. Macintosh v. Bartlette, Assault, 32. Damages, 149. Evidence, 225. 
 
 Exceptions, 242. 
 
 63, 68. Mahoney v. Atlantic & 
 
 St. Lawrence R. R. Co., Railroad, 468. 
 
 64, 95. Maine Mut. Ins. Co. v. ( Bills and Notes, 63. Insurance, 308. Part- 
 
 Blunt, ) nership, 406. 
 
 66, 133, V. Farrar, Insurance, 309. 
 
 66, 109. V. Hodgkins, Fraud, 270. 
 
 66, 130. V. Pickering, Bills and Notes, 63. Insurance, 309. 
 
 67, 382. V. Stockwell, Bills and Notes, 68. Insurance, 309. 
 
 62, 47.3. Manheim v. Carr, Carrier, 80. Exceptions, 241. 
 58, 35. Mansfield v. New Eng- 
 land Express Co., Trustee Process, 554. 
 
 62, 38. Mansur v. Blake, Deed, 166. Mills, 364. Practice, 443. Pre- 
 
 scription, 453. 
 
 67, 203. Marble v. Hinds, Limitations, 354. 
 
 60, 332. v. McKenney, Appeal, 25. Equity, 205. Record, 479. School 
 
 District, 499. School House. 501. 
 
 65, 9. Marden v. Jordan, Mortgage, 381. Landlord and Tenant, 335. 
 
 New Trial, 391. Trespass, 538. 
 60, 524. Marrett v. Brackett, Check, 89. Payment, 416. 
 
xxu 
 
 TABLE OF CASES. 
 
 66, 539. 
 61, 685. 
 
 64, 315. 
 
 67, 78. 
 
 60, 531. 
 67, 546. 
 64, 101. 
 58, 56. 
 
 66, 459. 
 
 61, 106. 
 
 67, 314. 
 
 57, 546. 
 61, 562. 
 
 68, 423. 
 64, 136. 
 61, 523. 
 
 58, 95. 
 58, 348. 
 67, 167. 
 66, 600. 
 
 64, 
 
 198. 
 
 68, 
 
 530. 
 
 66, 
 
 270. 
 
 58, 
 
 152. 
 
 63, 
 
 31. 
 
 58, 
 
 537. 
 
 62, 
 
 312. 
 
 61, 
 
 153. 
 
 57, 
 
 493. 
 
 68, 
 
 363. 
 
 60, 
 
 165. 
 
 63, 
 
 74. 
 
 61, 
 
 136. 
 
 57, 170. 
 
 58, 398. 
 66, 226. 
 61, 277. 
 
 65, 411. 
 
 65, 172. 
 
 62, 315. 
 
 66, 123. 
 
 66, 90. 
 
 59, 217. 
 
 60, 77. 
 68,, 390. 
 65,^ 118. 
 68, 412. 
 
 57, 152. 
 
 63, 78. 
 65, 79. 
 
 67, 70. 
 
 68, 514. 
 68, 94. 
 
 64, 438. 
 
 Marshall v. Dunham, 
 Marsh River Lodge v. 
 
 Brooks, 
 Marson v. Plummer, 
 Marshall v. Perry, 
 Martin v. Jordan, 
 Mason v. Mason, 
 Matthews v. Fiske, 
 
 V. Kelsey, 
 
 Mattocks V. Young, 
 
 Maxwell v. Mitchell, 
 Maynell v. Sullivan, 
 Mayo V. Hutchinson, 
 
 V. Stevens, 
 
 McAlpine v. Smith, 
 McAuley v. Reynolds, 
 
 V. Tracy, 
 
 McCabe v. McRea, 
 MoCann v. Bangor, 
 McCarthy v. Portland, 
 McClellan v. McClellan, 
 
 McCrillis v. Mansfield, 
 McDonough v. Web- 
 ster, 
 McFadden v. Bubier, 
 McGlinchy v. Hall, 
 
 V. Winchell, 
 
 McGreary v. Chandler, 
 Mclntire v. Talbot, 
 
 V. Bowden, 
 
 V. Hussey, 
 
 V. Plaisted, 
 
 MoKee v. Garcelon, 
 McKenney v. Haines, 
 McKenzie v. Wardwell, 
 
 McLaughlin v. Atlan- 
 tic Mutual Ins. Co., 
 
 V. Bangor, 
 
 • — V. Randall, 
 
 McLean v. Weeks, 
 
 McLeery v. McLeery, 
 McLoon v. Spaulding, 
 
 McPheters v. Morrill, 
 Meader v. White, 
 Melcher v. Ocean Ins. 
 Co., 
 
 V. 
 
 Melleu V. Moore, 
 Merrill v. Bickford, 
 V. Crossman, 
 
 V. Curtis, 
 
 V. Merrill, 
 V. 
 
 V. 
 
 V. Schwartz, 
 Merry v. Lynch, 
 Meserve v. Lewiston 
 S. M. Co., 
 
 Mortgage, 370. Registry of Instruments, 481. 
 
 Amendment, 18. 
 
 Replevin, 484. 
 
 Custom, 114. 
 
 Fraud, 271. 
 
 Mortgage, 371, 382. 
 
 Exceptions, 246. Trover, 546. 
 
 Railroad, 468. 
 
 Contract, 112, 114, 119. Presumption, 456. 
 
 Tender, 529. Waiver, 562. 
 Exceptions, 243. Trespass, 539, 544. 
 New Trial, 391, 392. Practice, 443. 
 Married Woman, 360. 
 Accord, 7. Payment, 418. 
 Abatement, 3. Writ, 593. 
 Amendment, 20. 
 Trustee Process, 556. 
 Lien, 347. 
 
 Estoppel, 213. Way, 567, 583. 
 Way, 584. 
 Dower, 191. Equity, 208. Infant, 297. 
 
 Trust, 549, 552. 
 Collector, 92. Tax, 526. 
 
 Gaming, 281. 
 Bastardy, 58. 
 
 Assignment, 34. Set-off, 508. 
 Trustee Process, 556. 
 Abatement, 2. 
 
 Easement, 19.3. Prescription, 453. 
 Contract, 112. Equity, 202. 
 Jury, 331. 
 
 Insurance, 304. Mortgage, 376. 
 Attachment, 45. Sale, 491, 492. 
 Damages, 151. 
 
 Attorney at Law, 50. Conflict of Law, 98. 
 Lien, 394. Presumption, 455. Statutes, 514. 
 
 Insurance, 300, 306. 
 
 Damages, 146. Interest, 312. Way, 584. 
 
 Deed, 159. Seal, 505. 
 
 Arrest, 31. Assumpsit, 41. Executors, 260. 
 Gift, 282. 
 
 Assumpsit, 41. Cases Overruled, 84. Evi- 
 dence, 220. Executors, 259, 260, 262. Gift, 
 282. Probate Court, 458. 
 
 Dower, 189, 190, 191. Estoppel, 215. 
 
 Evidence, 232. Executors, 265. Practice, 
 448. Probate Court, 460. 
 
 Certiorari, 87. Poor Debtor, 437. 
 
 Lord's Day, 355. 
 
 Evidence, 221. Insurance, 306, 311. 
 
 Insurance, 306. 
 
 Agency, 14. Bills and Notes, 61. 
 
 Annuity, 24. Devise and Legacy, 180, 181. 
 
 Abatement, 2. Probate Court, 460. Stat- 
 utes, 515. 
 
 Amendment, 18. Jurisdiction, 328. Prac- 
 tice, 441. 
 
 Limitations, 352. 
 
 Exceptions, 250. 
 
 Evidence, 241, 242, 243. Practice, 442. 
 
 Bankruptcy, 57. 
 
 Agency, 12. 
 
 Contract, 121. 
 
TABLE OF CASES. 
 
 XXIU 
 
 63, 518. Meserve v. Meserve, 
 
 63, 522. 
 
 64, 484 
 60, 322. 
 
 60, 169. 
 62, 477. 
 
 61, 316. 
 
 57, 
 
 64, 
 
 46. 
 
 48. 
 
 57, 314. 
 63, 82. 
 
 60, 110. 
 
 58, 506. 
 
 59, 448. 
 
 67, 338. 
 59, 504. 
 
 61, 581. 
 59, 391. 
 
 57, 37. 
 61, 264. 
 
 68, 155. 
 68, 405. 
 68, 148. 
 
 58, 279. 
 
 65, 494. 
 61, 417. 
 
 65, 124. 
 57, 375. 
 
 68, 131. 
 65, 178. 
 
 67, 353. 
 
 63, 553. 
 62, 443. 
 58, 329. 
 
 62, 445. 
 
 59, 453. 
 
 63, 84. 
 
 67, 172. 
 62, 455. 
 
 60, 121. 
 
 64, 218. 
 
 61, 592. 
 
 60, 260. 
 
 68, 521. 
 
 61, 478. 
 68, 346. 
 
 Millay v. Whitney, 
 Miller v. Miller, 
 
 V. Thompson, 
 
 Millett V. Holt, 
 
 V. Marston, 
 
 Milliken v. Bailey, 
 
 V. Warren, 
 
 Mitchell V. Black, 
 
 V. Burnham, 
 
 V. Dockray, 
 
 V. Gooch, 
 
 y. McNabb, 
 
 V. persons 
 
 unknown, 
 
 V. Smith, 
 
 Monmouth Mut. Fire 
 
 Ins. Co. V. Lowell, 
 Monroe v. Thomas, 
 Monticello v. Co. Com., 
 Montine v. Deake, 
 Moody V. Camden, 
 
 V. Moody, 
 
 Mooers' Appeajf, 
 Moore v. Durgin, 
 Mooers v. Kennebec & 
 Portland R. E. Co., 
 Moore v. Knowles, 
 V. Moore, 
 
 Morgan v. Boyes, 
 
 V. Hallowell, 
 
 V. Hefler, 
 
 Morrill v. Goodenow, 
 
 Morrison v. Bucksport 
 & Bangor K. R. Co., 
 
 V. Dingley, 
 
 Morse v. Morse, 
 V. Sleeper, 
 
 V. Williams, 
 
 Mosher v. Jewett, 
 
 V. Smith, 
 
 Morton V. Franklin Co., 
 Moulton V. Raymond, 
 
 v. Trafton, 
 
 Mowe V. Stevens, 
 
 Mudgett V. Morton, 
 Murphy v. Kelley, 
 
 V. Webber, 
 
 Mussey v. Mussey, 
 
 Devise and Legacy, 184. Husband and Wife, 
 
 287. 
 Agency, 13. 
 
 Bond, 76. Divorce, 187. 
 Sale, 494. Shipping, 509. Trover, 545. 
 Assumpsit, 37. Partnership, 405, 408. 
 Evidence, 221. Exceptions, 246. 
 Amendment, 23. Equity, 204, 206, 212. 
 
 Mortgage, 374, 376, 377. 
 Lien, 343. Sale, 496. 
 Betterments, 59. Estoppel, 215. Judgment, 
 
 324. Trespass, 539, 544. 
 Equity, 204, 210. Mortgage, 372, 374, 377. 
 Arbitration, 28. Executors, 262. Waiver, 563. 
 Attachment, 47, 48. 
 Debt, 157. 
 
 Partition, 404. Seizin, 506. 
 Deed, 169. Evidence, 222. 
 
 Insurance, 310. 
 Amendment, 20. 
 , Way, 569. 
 
 Exceptions, 248. Superior Court, 515. 
 Exceptions, 246. Pleading, 431. Practice, 
 
 443. Way, 584. 
 Mortgage, 384 
 Way, 570. 
 Contract, 117. Damages, 149. Trespass, 542. 
 
 Equity, 205, 209. Limitations, 350. 
 
 Pleading, 433, 434, 435. Practice, 451. 
 
 Bail, 51. Practice, 441. Seizin, ,506. Writ, 
 593. 
 
 Easement, 194. Trespass, 539. 
 
 Actions, 10. Master and Servant, 361. IsTeg- 
 ligence, 384. Nuisance, 394. Town, 531, 
 532. Way, 583. 
 
 Damages, 152. Set-Off, 508. 
 
 Bills and Notes, 62. Bond, 75. Considera- 
 tion, 102. Contract, 115. Nonsuit, 394. 
 Seal, 505. Trover, 545. 
 
 Railroad, 466. Water, 565, 566. 
 
 Sale, 492. 
 
 Arbitration, 28, 29. 
 
 Cases Overruled, 84. Error, 212. Execu- 
 tions, 252, 253. Real Actions, 472, 474. 
 Seizin, 505. 
 
 Easement, 193. Prescription, 454. 
 
 Animals at Large, 24. Impounding, 288. 
 Trespass, 540. 
 
 Exceptions, 250. Impounding, 288. Lien, 
 344. Superior Court, 516. 
 
 Bailment, 53. 
 
 Mills, 367. 
 
 Constitutional Law, 109. 
 
 Deed, 163, 164. Real Actions, 474 
 
 Easement, 193. Executor, 256. Presump- 
 tion, 455. Seizin, 506. 
 
 Intoxicating Liquors, 314. Payment, 420. 
 
 Water, 565. ' 
 
 Payment, 419. 
 
 Evidence, 227. Exceptions, 247. 
 
XXIV 
 
 TABLE OF CASES. 
 
 66, 100. 
 
 62, 480. 
 
 63, 381. 
 63, 346. 
 
 62, 519. 
 
 60, 84. 
 
 61, 298. 
 
 57, 563. 
 
 63, 491. 
 57, 188. 
 
 68, 396. 
 
 60, 154. 
 66, 402. 
 58, 29. 
 
 61, 74. 
 68, 87. 
 68, 548. 
 58, 261. 
 58, 207. 
 
 68, 275. 
 
 65, 183. 
 61, 426. 
 
 68, 235. 
 65, 589. 
 61, 422. 
 64, 490. 
 
 N. 
 
 Nason V. First Church, Devise and Legacy, 175, 182. Evidence, 239. 
 Executors, 263. Trust, 551. 
 
 V. Jordan, Evidence, 220, 235. 
 
 V. Kicker, Tax, 521, 525, 527. 
 
 Nat. Exchange Bank v. 
 
 Abel, 
 Nat. Traders' Bank v. 
 
 Ocean Ins. Co., _-^..-„ , 
 
 Neal V. Hanson, Pleading, 432. Trover, 545. 
 
 v. Knox & Lincoln 
 
 K. E. Co., Executors, 256. Railroad, 464. Way, 573. 
 
 Keally v. Segar, Execution, 260, 263. 
 
 Newbit V. Appleton, Pauper, 414. 
 ISew England Express 
 Co. v. Maine Central 
 R. E. Co., 
 Kewport Sav. Bank, 
 Newry v. Gilead, 
 Nichols V. Athens, 
 v. Perry 
 
 Debt, 157. Pleading, 427, 433. 
 
 Equity, 201. 
 Pleading, 432. 
 
 Nickerson v. Mills, 
 Nobleboro v. Clark, 
 
 V. Co. Com., 
 
 Norris v. Laberee, 
 No. Yarmouth v. West 
 
 Gardiner, 
 Norton v. Craig, 
 
 v. Perry, 
 
 Novrell v. Tripp, 
 
 Nowlan v. Griffin, 
 Noyes v. Gilman, 
 
 V. Staples, 
 
 Nutter V. Vickery, 
 
 Carrier, 80. Railroad, 467. 
 
 Bank, 55. 
 
 Pauper, 411. 
 
 Way, 580. 
 
 Attachment, 45. . 
 
 Practice, 451. Superior Court, 516. 
 
 Agency, 13, 14. Deed, 158. Town, 535. 
 
 Amendment, 23. Certiorari, 87. 
 
 Condition, 97. Deed, 151. Equity, 201. 
 
 Domicile, 188. Pauper, 410. 
 
 Fixtures, 268. Husband and Wife, 285. 
 
 Manure, 359. Trespass, 540. 
 Appeal, 25. School House, 501. 
 Cases Overruled, 85. Collector, 93. Tax, 
 
 528. Trespass, 541. 
 Assault, 32. Trespass, 543. 
 Bills and Notes, 60, 65. 
 Shipping, 510. 
 
 Devise and Legacy, 175, 180. Executors, 257. 
 Trust, 551. 
 
 o 
 
 68, 
 
 552. 
 
 66, 
 
 551. 
 
 65, 
 
 34. 
 
 57, 
 
 24. 
 
 63, 
 
 584. 
 
 58, 
 
 353. 
 
 66, 
 
 54. 
 
 65, 
 
 129. 
 
 68, 
 
 429. 
 
 58, 
 
 590. 
 
 61, 
 
 601. 
 
 62, 
 
 596. 
 
 64. 
 
 588. 
 
 64, 
 
 596. 
 
 68, 
 
 582. 
 
 68, 
 
 587. 
 
 68, 
 
 589. 
 
 68, 
 
 593. 
 
 68, 
 
 594. 
 
 61, 
 
 552. 
 
 66, 
 
 60. 
 
 57, 
 
 517. 
 
 61, 
 
 431, 
 
 O'Brien v. McGlinchy, 
 Ockiugton v. Law, 
 O'Connell v. Lewiston, 
 O'Donnell v. O'Donnell, 
 O'Leary v. Delaney, 
 
 Oldtown v. Bangor, 
 Oliver v. Woodman, 
 O'Malia v. Wentworth, 
 
 O'Neal V. Bailey, 
 Opinion of the Justices, 
 
 Omeville t. Pearson, 
 
 Orono V. Peavey, 
 V. Veazie, 
 
 V. — 
 
 Infant, 298. Negligence, 389. 
 
 Bills and Notes, 62. Condition, 98. 
 
 Lord's Day, 355. 
 
 Assumpsit, 37. 
 
 Fraud, 279. Husband and Wife, 286. Land- 
 lord and Tenant, 336. 
 
 Citizenship, 90. Deserter, 174. Pauper, 409. 
 
 Lien, 344, 347. 
 
 Complaint, 94. Habeas Corpus, 283. Officer, 
 400. Reform School, 480, 
 
 Replevin, 487. Writ, 593. 
 
 Constitutional Law, 108. 
 
 Constitutional Law, 103. 
 
 Constitutional Law, 104. 
 
 Constitutional Law, 103. Elections, 194, 195. 
 
 Constitutional Law, 103. Elections, 195. 
 
 Constitutional Law, 106. 
 
 Elections, 195. Signature, 512. 
 
 Elections, 195. 
 
 Pauper, 415. 
 
 Constitutional Law, 104. 
 
 Collector, 92. Money, 369. Payment, 419, 
 Tax, 524. 
 
 Contageous Sickness, 110. 
 
 ■Evidence, 229. Real Actions, 475. Tax, 526. 
 
 Tax, 523, 527. 
 
TABLE OF CASES. 
 
 XXV 
 
 68, 49. 
 
 58, 73. 
 
 67, 174. 
 
 63, 197. 
 
 Osborne v. Knox & 
 
 Lincoln E. E. Co., 
 Osgood V. Abbott, 
 
 V. Miller, 
 
 Otisfieldv. Mayberry, 
 
 68, 371. Oxton v. Groves, 
 
 Master and Servant, 363. 
 
 Condition, 96, 97. Estoppel, 215. 
 
 Surety, 517. 
 
 Bills and Kotes, 71. Damages, 146. Trover, 
 
 545. 
 Deed, 167. 
 
 59, 404. Packard v. Brewster, 
 
 64, 51. 
 
 60, 485. 
 
 63, 472. 
 
 68, 80. 
 
 57, 26. 
 
 61, 236. 
 
 60, 528. 
 
 58, 70. 
 
 64, 54. 
 
 66, 392. 
 
 59, 398. 
 
 61, 489. 
 
 68, 289. 
 61, 457. 
 
 59, 564. 
 
 58, 344. 
 
 57, 428. 
 
 60, 220. 
 
 67, 560. 
 64, 500. 
 
 58, 419. 
 
 61, 211. 
 64, 188. 
 60, 157. 
 
 66, 415. 
 64, 430. 
 
 64, 140. 
 
 60, 306. 
 
 65, 566. 
 
 67, 470. 
 
 61, 533. 
 
 58, 402. 
 
 59, 319. 
 
 68, 152. 
 63, 181. 
 
 59, 315. 
 
 66, 545. 
 65, 400. 
 57, 552. 
 
 60, 411. 
 
 Page V. Bucksport, 
 
 V. Gilbert, 
 
 V. MoGlincb, 
 
 Paine v. Caswell, 
 Palmer v. Merrill, 
 
 V. Palmer, 
 
 Parker v. Latner, 
 
 V. Moody, 
 
 V. Murch, 
 
 V. Wright, 
 
 Parkman v. If utting. 
 Parks V. Crockett, 
 
 Parlin v. Small, 
 Parsons v. Bangor, 
 Partridge v. WEite, 
 
 Patten v. Bangor, 
 
 V. Pearson, 
 
 Patterson v. Snell, 
 
 V. Triumph 1 Arbitration, 27, 
 
 Ins. Co., 
 Paul V. Meservey, 
 Peacock v. Peacock, 
 Pearson v. Canney, 
 V. Hamlin's 
 
 Grant, 
 Penley v. Eecord, 
 Penney v. Walker, 
 
 Bond, 76. Debt, 158. Pleading, 424. Scire 
 Facias, 503. 
 
 Way, 582. 
 
 Bills and Notes, 67. 
 
 Landlord and Tenant, 334, 338. Pleading, 
 424, 434. Presumption, 455. 
 
 Bills and Notes, 61. Interest, 313. 
 
 Bankruptcy, 57. 
 
 Amendment, 22. Executors, 257, 260. Pro- 
 bate Court, 459. 
 
 Lord's Day, 354. 
 
 Contract, 112. Interest, 312. 
 
 Amendment, 21. Deed, 161. Keal Actions, 
 473. Trust, 551. 
 
 Partnership, 407. Trustee Process, 555, 557. 
 
 Amendment, 19. 
 
 Cases Overruled, 85. Lien, 345, 346. Stat- 
 utes, 513. 
 
 Fraud, 273. 
 
 Domicile, 188. 
 
 Agency, 14, 17. Evidence, 235. Mortgage, 
 382. Eatification, 471. 
 
 Bounty, 78. 
 
 Bills and Notes, 65, 70. Evidence, 223. 
 Mortgage, 375. Sale, 496. 
 
 Auction, 50. Mortgage, 370. Trust, 552. 
 
 Deed, 160, 166._ Presumption, 456. 
 
 Insurance, 305, 311. Plead- 
 
 ) ing, 424. 
 Contract, 117. 
 Guardian and Ward, 282 
 Collector, 91, 93. 
 
 Bounty, 78. 
 Pleading, 426. 
 Arrest, 31. Mail, 355. 
 
 Officer, 399. Pardon, 
 
 Penobscot Bar V. Kim- ) Attorney at Law, 50. 
 
 ■ ball, i 403. 
 
 Penobscot E. E. Co. [ Assignroent, 34. Assumpsit, 43. Pleading, 
 
 V. Mayo, 
 
 ■ V. 
 
 • V. 
 
 Penobscot Boom Co. v. 
 
 Penobscot L. A., Boom, 77. 
 Penobscot Tribe v. 
 
 Veazie, 
 Perkins v. Emerson, 
 
 ( 434. Trust, 553. 
 Limitations, 353. 
 Assumpsit, 43. Fraud, 271. 
 353. 
 
 Limitations, 
 
 Deed, 165, 170. Title, 530. Eeal Actions, 475. 
 Mortgage, 382. Eegistry of Instruments, 
 
 481. Shipping, 509. 
 Way, 581, 582. 
 
 Attorney at Law, 49. Practice, 447, 452. 
 Bounty, 78. Constitutional Law, 109. 
 Practice, 447. Town, 538. Way, 582, 583. 
 Equity, 207, 209. Infant, 297. 
 Attachment, 44, 47. Bankruptcy, 56. 
 Pettingill v. Pettingill, Devise and Legacy, 180. Executors, 257, 258, 
 
 261, 262. Interest, 312. Trust, 551. 
 
 Widow, 585. 
 
 V. Fayette, 
 
 V. MoDuffee, 
 
 V. Milford, 
 
 V. Oxford, 
 
 Perry v. Perry, 
 
 • V. Somerby, 
 
XXvi TABLE OF CASES. 
 
 64 350. Pettinslll v. Pettingill, Auditor, 51. Bond, 76. Executors, 258. 
 ' Probate Court, 460. 
 
 57, 491. Phelps v. Dennett, Bills and Notes, 61. Consideration, 101. 
 
 Contract, 113. 
 
 63, 477. Philbrick v. Pittston, Way, 579. 
 
 65, 70. Phillips V. Moses, Payment, 418, 420. 
 
 61 548. v. Sherman, Abatement, 2. Mills, 367. Pleading, 424. 
 
 Presumption, 455. Tax, 527. 
 
 64, 171. V. Law and Fact, 340. Mills, 364. 
 
 67, 404. Pierce v. Bent, Keview, 488. 
 
 63 252. V. Co. Com., Certiorari, 86. Way, 578. 
 
 68, 445. Pike v. Shore Line, Corporation, 126, 128. Estoppel, 214. Trus- 
 
 tee Process, 557. 
 
 61, 274. Pillsburyv.Willoughby, Tender, 529. 
 68, 17. Pingree V. Chapman, Deed, 165. 
 23, 251. Piper v. Goodwin, Record, 479. 
 
 60, 178. Piscataquis E. & M. ) Equity, 198, 199, 206. Pleading, 224. Cor- 
 
 Ins. Co. V. Hill, ) poration, 133. 
 
 65, 95. Pitman v. Thornton, Arbitration, 30. Equity, 201. Exceptions, 
 
 244. 
 
 66, 469. V. Mortgage, 376, 377, 379. 
 
 62, 91. Plaisted v. Lincoln, Tax, 519. 
 
 63, 576. V. Palmer, Lord's Day, 355. 
 
 61, 517. Plantation No. 4. v. Hall, Carrier, 80. Evidence, 231. Negligence, 385. 
 59, 232. Piatt v. Jones, Fraud, 276. Partnership, 408. Pleading, 
 
 426, 427, 432. Precedents, 452. 
 
 64, 360. Plimpton v. Gardner, Damages, 147. Precedents, 453. 
 59, 115. V. Eiohards, Case, 83. Executors, 257. 
 
 58, 59. Plummer v. Erskine, Payment, 418. 
 
 67, 363. V. Penobscot ) Bond, 77. Corporation, 132. Damages, 149. 
 
 L. A., ) Water-course, 566. 
 
 65, 410. T. Stone, Arbitration, 28. 
 
 62, 93. Pollard v. Grand Trunk 
 
 Railway, New Trial, 392. 
 
 59, 270. Poor v. European & N. 
 
 A. E. R. Co., Actions, 10. Pleading, 431, 432. 
 
 66, 482. V. Knight, Attorney at Law, 49. Poor Debtor, 436, 438, 
 
 439. 
 
 58, 543. V. Larrabee, Attachment, 46. Betterment, 59. Deed, 
 
 159, 160, 161. Dower, 191. Executors, 258. 
 Executions, 253. Limitations, 354. Pre- 
 sumption, 454. Real Actions, 476. Seizin, 
 506. Statutes, 514. 
 
 64, 379. V. Willoughby, Corporation, 129. 
 
 65, 162. Pope v. Jackson, Abatement, 2. Evidence, 232. Fixtures, 
 
 267. Mortgage, 370. Pleading, 424, 434. 
 Replevin, 486. 
 
 67, 556. Porterfield v. Augusta, Domicile, 188. Husband and Wife, 286. 
 
 Tax, 521. ' 
 
 66, 485. Portland v. At. & St. 1 Consideration, 101. l)ebt, 157. Precedents, 
 L. R. R. Co. ) 452. Railroad, 466. 
 
 V. Bangor, Cases Overruled, 84. Constitutional Law, 
 
 105. 
 
 V. Water Co., Constitutional Law, 105. Law and Fact, 339. 
 
 Tax, 520. . 
 
 Portland & O. R. R. Co. 
 
 V. Standish, Presumption, 456. Town, 535. 
 
 V. Co. Com., Certiorari, 87. Way, 575. 
 
 Portland & O. C. R. I Condition, 96. Mandamus, 357. Town, 534. 
 
 R. Co. V. Hartford, j Waiver, 561. 
 P., S. & P. R. E. Co. V. I Constitutional Law, 107. Equity, 200, 210. 
 
 B. & M. R. R. Co., 5 Railroad, 471. 
 
 V. Co. Com., Certiorari, 85. 
 
 V. Saco, Evidence, 232. Practice, 450. Tax, 519. 
 
 V. Grand Trunk, Contract, 124. Equity, 203. Railroad, 470. 
 
 59, 212. Potter v. Lucas, Amendment, 20. 
 
 63, 440. V. Monmouth 
 
 Ins, Co., Contract, 118. Fraud, 270. Payment, 418. 
 
 65, 
 
 120. 
 
 67, 
 
 135. 
 
 65, 
 
 63. 
 
 64, 
 
 58, 
 
 505. 
 23. 
 
 65, 
 
 122. 
 
 65, 
 60, 
 63, 
 
 292. 
 
 196. 
 
 90. 
 
TABLE OP CASES. 
 
 XXVll 
 
 64, 9. Powers v. Gary, 
 
 63, 102. 
 68, 344. 
 60, 430. 
 
 64, 115. 
 63, 321. 
 
 63, 569. 
 
 64, 155. 
 
 67, 345. 
 
 65, 559. 
 62, 211. 
 62, 447. 
 
 64, 422. 
 59, 146. 
 
 62, 428. 
 
 65, 478. 
 
 63, 200. 
 
 68, 256. 
 
 66, 202. 
 68, 559. 
 
 63, 22. 
 
 66, 442. 
 62, 44. 
 68, 58. 
 
 Pownal V. Co. Com., 
 Pratt V. Sweetsir, 
 Pray v. Mitchell, 
 Preble v. Bangor, 
 
 V. G-llead, 
 
 Prentiss v. Co. Com., 
 
 V. Garland, 
 
 V. 
 
 V. Parks, 
 
 Prescott V. Knowles, 
 
 V. Morse, 
 
 V. Prescott, 
 
 V. 
 
 V. 
 
 Prime v. Cobb, 
 Proctor V. Lothrop, 
 PuUeu V. Glidden, 
 
 : V. 
 
 Pulsifer v. Crowell, 
 
 V. Pulsifer, 
 
 Putnam v. Burrill, 
 
 V. Woodbury, 
 
 Amendment, 20. Damages, 148. Evidence, 
 233. Law and Fact, 340. Libel and Slander, 
 341, 342. Practice, 442, 445. Witness, 590. 
 
 Certiorari, 85. 
 
 Abandonment, 1. Easement, 194.- 
 
 Equity, 204. Fraud, 279. Partnership, 406. 
 
 Officer, 398. Town, 536. 
 
 Bounty, 78. 
 
 Way, 578. 
 
 Guaranty, 282. 
 
 Lien, 345. Payment, 417. 
 
 Judgment, 327. Jurisdiction, 329. Mills, 368. 
 
 Actions, 9. Trespass, 543. 
 
 Assumpsit, 37. Devise and Legacy, 178. 
 Executors, 263. 
 
 Executors, 257, 263. 
 
 Divorce, 187. Error, 212. 
 
 Divorce, 187. Executions, 251, 252. 
 
 Amendment, 21. Debt, 157. 
 
 Demand, 171. Replevin, 483. 
 
 Arrest, 31. 
 
 Malicious Prosecution, 356. 
 
 Evidence, 237. Exceptions, 244. Malicious 
 Prosecution, 357. 
 
 Evidence, 228, 233. 
 
 Cases Overruled, 85. Limitations, 352. 
 
 Equity, 211. 
 
 Consideration, 101. Mail, 356. 
 
 Q 
 
 61, 77. Quimby v. Frost, 
 64, 366. Quinn v. Besse, 
 
 Devise and Legacy, 184. Probate Court, 457 
 Arbitration, 27. Mills, 367. 
 
 R. 
 
 63, 269. 
 
 60, 216. 
 
 64, 546. 
 
 61, 366. 
 61, 111. 
 
 63, 103. 
 
 64, 191. 
 
 65, 43. 
 60, 37. 
 
 59, 338. 
 63, 105. 
 
 57, 343. 
 63, 110. 
 63, 112. 
 
 60, 114. 
 
 60, 479. 
 68, 139. 
 
 58, 225. 
 
 Railroad Coms. v. P. 
 & O. C. R. R. Co., 
 Ramsdell v. Butler, 
 
 V. Buswell, 
 
 Ramsey v. O'Leary, 
 Rand v. Nesmith, 
 
 V. SkiUin, 
 
 V. Webber, 
 
 Randall v. Bradley, 
 
 V. Kehler, 
 
 V. Randall, 
 V. Smith, 
 
 Rawson v. Taylor, 
 Raymond v. Co. Com., 
 
 v. 
 
 V. No. Ber- 
 
 wick, 
 Read v. Fogg, 
 
 V. Hilton, 
 
 Record v. Howard, 
 
 65, 53. Reed v. Cumb. & Oxford 
 
 I Constitutional Law, 107. Mandamus, 358. 
 ) Railroad, 470. 
 
 Assumpsit, 37. Bailment, 54. Equity, 197 
 
 Replevin, 483. 
 
 Real Actions, 474. 
 
 Assumpsit, 41. Damages, 150. 
 
 Real Actions, 475, 476. 
 
 Amendment, 21. Assumpsit, 39. 
 
 Mortgage, 373, 376, 379. 
 
 Agency, 16. Constitutional Law, 104. Jurv 
 330. •" 
 
 Deed, 163. 
 
 Custom, 144. 
 
 Real Actions, 473. 
 , Presumption, 455. Waiver, 563. Way 569 
 
 Way, 569. 
 
 Pauper, 409. 
 
 Deed, 161. Estoppel, 215. Real Actions, 473 
 Deed, 161. Estoppel, 215. Remainder, 482' 
 Conflict of Law, 99. Executor, 264. Juris- 
 diction, 328. Probate Court, 457. 
 
 65, 132. 
 
 Canal Co., 
 
 -V. 
 
 59, 
 
 359. 
 
 V. Fish, 
 
 68, 
 
 568. 
 
 V. Reed, 
 
 60, 
 
 481. 
 
 V. Whittemore, 
 
 57, 
 
 350. 
 
 Reynolds, Appt. 
 
 Exceptions, 241. Quo Warranto, 461. 
 Constitutional Law, 104. Exceptions 244 
 
 Practice, 449. Quo Warranto, 462. ' 
 Guaranty, 282. 
 
 Partition, 404. Remainder, 483. 
 Deed, 161. 
 Descent and Distribution, 173. 
 
XXVIU 
 
 TABLE OP CASES. 
 
 61, 145. Rice v. Perry, 
 
 57, 51. 
 66, 249. 
 
 64, 62. 
 62, 280. 
 66, 373. 
 
 61, 351. 
 
 65, 128. 
 
 61, 499. 
 
 62, 95. 
 60, 879. 
 
 Evidence, 235. Exceptions, 249. Fraud, 274, 
 277. Witness, 591. 
 Eichards v. Stephenson, Contract, 119. 
 Richardson v. Rich, Abatement, 4. Real Actions, 473. 
 V. Richardson, Deed, 161. Joint Tenants, 822. 
 
 V. Wyman, 
 
 Richmond v. Brown, 
 
 Richmond Fac. Asso. 
 
 Clarke, 
 Ridlon V. Cressey, 
 Riggs V. Lee, 
 Rines v. Baohelder, 
 Ripley v. Hebron, 
 
 57, 76. 
 
 58, 426. 
 
 64, 108. 
 
 63, 335. 
 
 62, 369. 
 
 60, 225. 
 
 63, 116. 
 57, 163. 
 68, 61. 
 
 60, 425. 
 
 68, 170. 
 
 57, 441. 
 
 58, 390. 
 58, 395. 
 
 58, 305. 
 62, 101. 
 
 67, 456. 
 
 66, 564. 
 
 62, 244. 
 
 68, 21. 
 57, 565. 
 
 65, 570. 
 
 59, 488. 
 
 63, 203. 
 59, 256. 
 62, 496. 
 
 66, 167. 
 
 ■ V. Moseley, 
 
 Rising Sun Lodge v. 
 
 Buck, 
 Roberts v. Lane, 
 
 V. Plaisted, 
 
 Robinson v. Adams, 
 
 V. Hersey, 
 V. Larrabee, 
 V. SafEord, 
 V. Stuart, 
 
 -i- 
 
 Rookland W. P. Co. v. 
 
 Pillsbury, 
 Rodick V. Coburn, 
 Rogers v. Greenbush, 
 
 V. 
 
 V. 
 
 V. Hogan, 
 V. Newport, 
 V. Rogers, 
 
 Rolfe V. Rumford, 
 Rollins V. Crocker, 
 Rowell v. Mitchell, 
 Rumrill v. Adams, 
 
 Rumsey v. Berry, 
 Runnells v. Webber, 
 Russell V. Brown, 
 
 V. Turner, 
 
 V. ■ 
 
 Ryder v. Mansel, 
 66, 557. Ryerson v. Chapman, 
 
 Dower, 190. Merger, 364. 
 Assumpsit, 41. Bankruptcy, 57. 
 Collector, 93. Damages, 153. Payment, 419. 
 
 Corporation, 125, 129. Statutes, 515. 
 
 Constitutional Law, 107. 
 
 Bounty, 78. 
 
 Equity, 198, 202, 207. Trust, 550. 
 
 Amendment, 19. Evidence, 227, 229. Ex- 
 ceptions, 246. Pauper, 414. Pleading, 
 426. Precedents, 452. Presumption, 454. 
 
 Damages, 151. 
 
 Assumpsit, 38. Landlord and Tenant, 336. 
 
 Bank, 54. Bills and Notes, 66, 69, 70, 72. 
 Contract, 115. 
 
 Exceptions, 248. Practice, 445. 
 
 Evidence, 232, 236, 237. Insanity, 297. Prac- 
 tice; 448. Will, 586. 
 
 Guardian and Ward, 282. 
 
 Lieu, 344. 
 
 Set-off, 507. 
 
 Bill of Lading, 59. Evidence, 234. Shipping, 
 510, 511. 
 
 Record, 479. 
 
 Agency, 13. Trover, 545. 
 
 Assumpsit, 42. 
 
 Assumpsit, 36. 
 
 Statutes, 513. Tax, 527. 
 
 Contract, 121. 
 
 Way, 579, 581. 
 
 Executors, 257. Probate Court, 459. Set-off, 
 508. 
 
 Exceptions, 245. Practice, 450. 
 
 Fraud 279 
 
 Mortgage, 374, 381. Real Action, 473, 475, 477 
 
 Contract, 123. Evidence, 224, 230. Excep- 
 tions, 247. 
 
 Contract, 116. Sale, 495. 
 
 Damages, 150. 
 
 Trespass, 539. 
 
 Exceptions, 245. 
 
 Amendment, 22. Mills, 367. 
 
 Estoppel, 216. Misnomer, 368. Mortgage, 
 379. 
 
 Damages, 150. 
 
 63, 340. Saco Nat. Bank v. San- 
 born, Bills and Notes, 67, 73. 
 
 66, 182. Sampson v. Alexander, Husband and Wife, 285. Married Woman, 
 
 360. 
 
 67, 523. V. Fixtures, 267. 
 
 63, 328. V. Sampson, Constitutional Law, 107. Heirs, 284. Limi- 
 tations, 348. Payment, 419. Pleading, 425. 
 60, 325. Sanborn v. Paul, Arbitration, 29. 
 
 57, 308. Sanderson v. Brown, Assumpsit, 37. Consideration, 101. Con- 
 tract, 120. 
 
 68, 431. Sanford v. Phillips, Guardian and Ward, 283. 
 
TABLE OF CASES. 
 
 XXIX 
 
 65, 591. 
 
 59, 345. 
 
 59, 500. 
 
 63, 25. 
 
 58, 429. 
 
 66, 453. 
 
 57, 39. 
 
 57, 500. 
 
 61, 529. 
 
 62, 330. 
 
 66, 370. 
 
 67, 239. 
 
 68, 74. 
 64, 224. 
 
 64, 120. 
 
 67, 491. 
 61, 400. 
 
 57, 416. 
 
 58, 246. 
 
 66, 420. 
 
 58, 254. 
 
 60, 249. 
 
 65, 485. 
 
 57, 22. 
 
 61, 83. 
 
 61, 486. 
 
 66, 65. 
 66, 138. 
 57, 137. 
 
 63, 118. 
 
 64, 371. 
 
 68, 164. 
 
 Sargent v. Machias, 
 Savage v. Holyoke, 
 
 Sawyer v. Pernald, 
 
 V. Uaroelon, 
 
 V. Lufkin, 
 
 V. Naples, 
 V. Parker, 
 
 Deed, 171. Exceptions, 242. Way, 574. 
 Married Woman, 360. Tax, 527. Trespass, 
 
 544. 
 Bills and Notes, 61. Consideration, 101. 
 
 Surety, 516. 
 Evidence, 239, 240. Judgment, 328. Law 
 
 and Fact, 339, 340. Practice, 449. Record, 
 
 480. 
 Limitations, 352. 
 Notice, 394. Way, 583. 
 Revenue, 487. 
 V. Skowhegan, Estoppel, 213. Odd Fellows' Lodge, 397. 
 
 Real Actions, 472. Trust, 551. 
 Assignment, 34. Fraud, 276. Officer, 402. 
 
 Trespass, 540, 541. 
 I Agency, 13, 14. Exceptions, 246. Insurance, 
 1 303. Ratification, 471. School District, 499. 
 Abatement, 2. Practice, 442, 449. 
 Assumpsit, 38. Cases Overruled, 84. Offi- 
 cer, 400. School District, 499. 
 Scribner v. Mansfield, Poor Debtor, 438, 4-39. 
 
 V. Wilson, 
 
 School District v. 
 jEtna Ins. Co., 
 
 V. 
 
 V. Tebbetts, 
 
 Seavey v. Coffin, 
 
 V. Preble, 
 
 Sebec v. Poxoroft, 
 Seeking v. Goodale, 
 
 Severy v. Bartlett, 
 
 V, Nye, 
 
 Shanny v. Andros- 
 coggin Mills, 
 Shaw V. Coffin, 
 
 V. Nickerson, 
 
 V. Wilshire, 
 
 Limitations, 352. 
 
 Contagious Sickness, 109. Trespass, 539. 
 
 Pauper, 410. 
 
 Cases Overruled, 84. Collector, 93. Officer, 
 
 402. Tax, 524. Trespass, 541. 
 Bankruptcy, 56. 
 Abatement, 3, 5, 6. Officer, 401. Pleading, 
 
 432. 
 
 60, 477. 
 68, 380. 
 
 58, 157. 
 
 61, 267. 
 65, 385. 
 
 60, 262. 
 
 62, 155. 
 
 64, 317. 
 
 61, 70. 
 
 62, 432. 
 68, 268. 
 67, 169. 
 
 Master and Servant, 362. 
 Infant, 296. 
 Attachment, 46. 
 
 Bailment, 52. Cases Overruled, 84. Mort- 
 gage, 383. Registry of Instruments, 481. 
 Shepley v. Atlantic & 
 
 St. L. R. R. Co., Equity, 210. 
 
 Sheridan v. Carpenter, Agency, 14. Alteration of Instruments, 17. 
 Bills and Notes, 71. Mistake, 368. 
 
 V. Ireland, Lien, 345, 346. 
 
 V. Lien, 346. 
 
 V. Costs, 136. 
 
 Shurtleff v. Phcenix 
 
 Ins. Co., Insurance, 302. 
 
 v. Thompson, Review, 488. 
 
 Sidelinger v. Bucklin, Bastardy, 58. Evidence, 233. 
 Simonton v. Loring, Landlord and Tenant, 335. Master and Ser- 
 vant, 363. Negligence, 386. 
 
 Assignment, 33. Superior Court, 516. Trus- 
 tee Process, 555, 557. 
 
 Carrier, 80. 
 
 Devise and Legacy, 176, 178, 185. Equity, 
 198. Trust, 552. 
 
 Divorce, 186. Exceptions, 245. Judgment, 
 o^4. 
 
 59, 196. Simpson v. Bibber, 
 
 Skinner v. Hall, 
 ^Slade V. Patten, 
 
 V. Slade, 
 
 Sleeper v. Union Insur- 
 ance Co., Evidence, 235. 
 
 Small V. Clewley, 
 V. 
 
 Smart V. Smart, 
 Smith V. Brown, 
 
 V. Folsom, 
 
 V. Campbell, 
 
 V. Colby, 
 
 Executors, 262. Insurance, 311. Judgment, 
 
 326. Pleading, 424. 
 Libel and Slander, 341. 
 Bills and Notes, 73. Cases Overruled, 84. 
 
 Evidence, 232. 
 Attachment, 46. 
 Poor Debtor, 437, 438. 
 Arbitration, 29. 
 Coal, 90. Sale, 495. 
 Trover, 547. 
 
Xrx TABLE OF CASES. 
 
 64,510. Smith V. Harlow, Bond, 76. Bills and Notes, 69. 
 
 58, 361. V. Larrabee, Aeenoy, 12. Equity, 204. Junsdiction, d28. 
 
 Mortgage, 378, 379. Waiver, 562. 
 59 214. V. Smith, Advancement, 11. Descent and Distribution, 
 
 173. 
 63, 205. V. Strout, Bailment, 53. Consideration, 102. 
 
 63, 344. V. Swett, Malicious Prosecution, 356. 
 
 64, 412. Smithfield v.Waterville, Pauper, 410, 412. 
 
 66, 580. Sneed v. Lord, Sale, 493, 496. Waiver, 562. 
 
 65, 48. Snell v. Mitchell, Equity, 203. 
 
 66, 384. Snow v. Bartlett, Executors, 264. 
 65, 230. V. B. & M. K. K. 
 
 Company, Evidence, 238. Practice, 449. 
 
 57, 397. Snowman v. Harford, Equity, 202, 211. Exceptions, 244. . Title, 
 
 530. 
 
 62, 434. V. Actions, 10. Equity, 202. Title, 530. 
 
 61, 379. Somerset E. R. Co. v. 
 
 Clark, Corporation, 126. 
 
 65, 542. Somes v. Wliite, Shipping, 510. 
 
 67, 584. Soule v. Bruce, Amendment, 21. Assault, 32. Evidence, 237. 
 
 Precedents, 453. 
 
 64, 518. V. Winslow, Infant, 297. 
 
 66, 447. V. Exceptions, 245, 248. Malicious Prosecu- 
 
 tion, 356. 
 
 68, 575. Southard v. Sutton, Equity, 208. Estoppel, 218. Mortgage, 378. 
 
 63, 139. So. Boston Iron Co. v. 
 
 Brown, Bills and Notes, 62. Consideration, 100. 
 
 62, 319. Spaulding v. Parwell, Equity, 208, 210. 
 
 57, 411. V. Fisher, Bankruptcy, 57. Fraud, 276. 
 
 61, 329. V. N. T. Life 
 
 Ins. Co., Agency, 15. Insurance, 310. 
 
 65, 220. V. Record, Evidence, 224. Poor Debtor, 436. 
 
 63, 207. Speck v. Judson, Malicious Prosecution, 356. 
 
 66, 26. Spofford v. Bucksport 
 
 & B. R. R. Co., Certiorari, 86, 88. Railroad, 462. 
 
 66, 51. V. Equity, 196, 206. 
 
 60, 253. Sprague v. Frankfort, Assignment, 34. 
 
 68,279. Stacyv.PortlandPub-l Damages, 148. Evidence, 238. Libel and 
 lishing Co., ) Slander, 342. Practice, 444. 
 
 59, 472. Stanley v. Kempton, Mortgage, 372, 380. Real Actions, 477. 
 59, 121. Stauwood v. Mitchell, Arbitration, 26. 
 
 63, 209. V. Whitmore, Evidence, 237. Libel, 342. 
 
 58, 453. Staples v. Wellington, Exceptions, 247. Execution, 248, 249. In- 
 
 sanity, 298. New Trial, 392. Practice, 442. 
 Presumption, 454. 
 
 62, 9. V. Accord, 7. Pleading, 434. Practice, 448. 
 
 Release, 482. 
 
 64, 570. Starbird v. Henderson, Amendment, 20. Practice, 450. 
 
 65, 374. Starrett v. Rockland F. 
 
 & M. Ins. Co., Corporation, 126, 131. Estoppel, 213. 
 
 64, 386. State v. Ames, . Indictment, 291. Witness, 592. 
 
 68, 187. V. Belfast, Intoxicating Liquors, 315. 
 
 64, 267. V. Benner, Evidence, 225. Exceptions, 246. Indictment, 
 
 293. Jury, 330. Practice, 443, 444, 447. 
 Witness, 592. 
 
 63, 210. V. Black, Exceptions, 246. Indictment, 294. Rape, 
 
 471. Witness, 588. 
 
 65, 556. v. Blackwell, Constitutional Law, 109. Intoxicating 
 
 Liquors, 315. 
 
 64, 523. V. Boardman, Evidence, 237. House of 111 Fame, 284. 
 
 Indictment, 295. Superior Court, 516. 
 
 61, 171. V. Bowe, Adultery, 11. Evidence, 239. Indictment, 
 
 295. Marriage, 359. Practice, 443. 
 64, 607. V. Bundy. Assault, 32. Indictment, 291. 
 
 59, 366. V. Bunker, Cases Overruled, 84. Nuisance, 395. Way, 
 
 576. 
 66,127. V.Burke, Deed, 170. Intoxicating Liquors, 316. War- 
 
 rant, 565. 
 
TABLE OF CASES. 
 
 XXXI 
 
 66, 116. 
 68, 477. 
 64, 369. 
 59, 298. 
 
 68, 258. 
 
 58, 564. 
 
 63, 212. 
 
 64, 521. 
 
 59, 137. 
 
 60, 103. 
 60, 504. 
 59, 303. 
 
 66, 358. 
 
 67, 479. 
 
 66, 142. 
 
 63, 121. 
 67, 423. 
 65, 30. 
 
 62, 509. 
 
 65, 270. 
 
 67, 247. 
 
 68, 418. 
 
 58, 176. 
 
 59, 189. 
 
 60, 145. 
 
 61, 114. 
 
 59, 410. 
 
 66, 307. 
 
 67, 598. 
 
 67, 504. 
 
 68, 202. 
 
 65, 100. 
 
 60, 410. 
 
 66, 114. 
 
 61, 520. 
 
 63, 121. 
 
 65, 362. 
 
 67, 558. 
 58, 238. 
 
 57, 30. 
 63, 215. 
 
 67, 564. 
 
 57, 574. 
 
 60, 58. 
 66, 440. 
 
 58, 267. 
 
 59, 538. 
 63, 546. 
 
 State V. Carson, 
 
 V. Chapman, 
 
 V. Clary, 
 
 V. Cleaves, 
 
 - V. Cleland, 
 
 ■ V. Cleaveland, 
 
 ■ V. Connelly, 
 
 ■ V. Corkrey, 
 
 V. Corson, 
 
 V. Crowley, 
 
 V. Dougherty, 
 
 V. Dyer, 
 
 V. Erskine, 
 
 V. European & N, 
 
 A. R. R. Co , 
 V. Flemmlng, 
 
 ■ V. Garland, 
 
 ■ V. 
 
 ■ V. Goodenow, 
 •V. Gould, 
 
 ■ V. Gorham. 
 
 • V. Grames, 
 ■V. G. T. R. R., 
 
 - V. • 
 ■ V. - 
 
 Liquors, 
 
 V. Hatch, 
 V. Haynes, 
 V. Hesselton, 
 V. Hiohbom, 
 V. Hlnes, 
 V. Howley, 
 V. Hussey, 
 T. Hynes, 
 V. Intoxicating 
 
 - V. Johnson, 
 
 ■ V. Eenniston, 
 
 ■ V. Kingsbury, 
 
 ■ V. Kirhy, 
 • V. Lang, 
 
 - V. Lashus, 
 
 ■ V. Lawrence, 
 
 ■ V. Leaoh, 
 
 ■ V. Leavitt, 
 
 - V. Litchfield, 
 
 ■ V. Madison, 
 
 - V. 
 
 Evidence, 225. Witness, 592. 
 
 Fraud, 275. 
 
 Conspiracy, 102. 
 
 Evidence, 229. Indictment, 294. Husband 
 
 and Wife, 286. Witness, 592. 
 Statute, 512. 
 
 Indictment, 294. Verdict, 559. 
 Complaint, 94. Intoxicating Liquors, 315, 
 
 316. 
 Abatement, 6. Appeal, 24. Indictment, 292. 
 
 Waiver, 564. 
 Constitutional Law, 104. Penalty, 421. 
 Recognizance, 479. 
 Constitutional Law, 104. 
 Witness, 588. 
 Intoxicating Liquors, 316, 317. Warrant, 565. 
 
 Mortgage, 371. Railroad, 467. 
 
 Abatement, 3, 5. Amendment, 22. Consti- 
 tutional Law, 104, 109. Indictment, 289. 
 Jury, 330. Precedents, 453. 
 
 Superior Court, 516. 
 
 Indictment, 293. 
 
 Adultery, 11. Presumption, 455. 
 
 Exceptions, 248. Law and Pact, 340, 343. 
 Libel, 343. 
 
 Evidence, 239. Indictment, 292. Intoxi- 
 cating Liquors, 319, 320. 
 
 Evidence, 239. Intoxicating Liquors, 319. 
 Practice, 446. 
 
 Intoxicating Liquors, 316, 317. 
 
 Carrier, 82. Indictment, 294. Railroad, 466. 
 468. 
 
 Railroad, 466. 
 
 Indictment, 290. Negligence, 385. Railroad, 
 467. 
 
 Actions, 9. Negligence, 385. Railroad, 467. 
 
 Pleading, 428. Rec6gnizanoe, 478. 
 
 Arson, 31. 
 
 Abatement, 5. 
 
 Executors, 259. 
 
 Sentence, 507. 
 
 Intoxicating Liquors, 317, 318. 
 
 Indictment, 290, 291. 
 
 Evidence, 226. Intoxicating Liquors, 319. 
 
 Intoxicating Liquors, 318. Sale, 496. 
 
 Agency, 15. Intoxicating Liquors, 315, 318. 
 liaw and Fact, 340. Verdict, 560. 
 
 Judgment, 327. Penalty, 430. 
 
 Intoxicating Liquors, 318. Officer, 401. 
 
 Arson, 31, Evidence, 224, 232. Exceptions, 
 246. Jury, 331. Practice, 442. Witness, 589. 
 
 Abortion, 6. 
 
 Exceptions, 242. Indictment, 289, 290, 292, 
 294. Exceptions, 242. Intoxicating Liq- 
 uors, 318. Judgment, 327. Nuisance, 396. 
 Precedents, 453. Verdict, 559. Waiver, 563. 
 
 Intoxicating Liquors, 320. Nuisance, 396. 
 
 Indictment, 294. Insanity, 298. Presump- 
 tion, 454. 
 
 Indictment, 288, 294. 
 
 Larceny, 339. Precedents, 453. 
 
 Accomplice, 7. Evidence, 240. Practice, 
 442. Telegraph, 528. Witness, 591. 
 
 Franchise, 269. Verdict, 559. Waiver, 563. 
 Way, 576, 584. 
 
 Certiorari, 88. Indictment, 290, 292. Way, 
 585. 
 
xxxu 
 
 TABLE OF CASES. 
 
 60,490. State v.M. O.K. K. Co., Kegligence, 385. Railroad, 467, 
 
 63, 223. 
 
 59, 383. 
 61, 116. 
 67, 372. 
 
 65, 465. 
 
 65, 466. 
 
 67, 428. 
 61, 56. 
 65, 468. 
 
 65, 514. 
 
 64, 531. 
 
 65, 210. 
 
 66, 418. 
 
 68, 473. 
 58, 123. 
 
 60, 498. 
 63, 124. 
 
 65, 293. 
 
 65, 111. 
 
 64, 534. 
 
 57, 402. 
 
 58, 46. 
 
 63, 127. 
 67, 380. 
 
 60, 550." 
 
 62, 129. 
 
 67, 127. 
 
 66, 324. 
 
 68, 543. 
 
 64, 263. 
 
 63, 266. 
 
 61, 386. 
 
 65, 257. 
 
 64, 423. 
 
 67, 328. 
 
 67, 125. 
 64, 157. 
 67, 242. 
 62, 284. 
 67, 148. 
 
 61, 178. 
 
 Constitutional Law, 107. Corporation, 125, 
 132. Tax, 520. 
 
 - V. McCafferty, Intoxicating Liquors, 316, 318, 320. 
 
 - V. McCann, Intoxicating Liquors, 316, 318. 
 
 - V. Intoxicating Liquors, 317, 318. Verdict, 559. 
 
 - V. Intoxicating Liquors, 320. Officer, 399. 
 
 Statutes, 515. 
 
 - V. McDonald, Exceptions, 248. 
 
 - V. Evidence, 219. Witness, 591. 
 
 - V. Morse, Witness, 591. 
 
 ■ V. Murphy, Manslaughter, 358. 
 
 - V. Neagle, Evidence, 239. Intoxicating Liquors, 318. 
 Jury, 330. Record, 480. Verdict, 561. 
 
 V. Norridgewook 
 
 Bridge Co., Way, 568. 
 
 V. Nowlan, 
 
 V. Oxford, 
 
 V. Page, 
 
 V. Patterson, 
 
 V. Peck, 
 
 Verdict, 559. 
 
 - V. Pettis, 
 
 - V. Pierre, 
 
 - V. Pike, 
 
 • V. Plunkett, 
 ■ V. Portland & 
 
 Intoxicating Liquors, 316, 318. 
 
 Way, 576, 585. 
 
 Intoxicating Liquors, 320. Nuisance, 396. 
 
 Indictment, 288. Law and Fact, 339. 
 
 Pleading, 431. Practice, 450. Precedents, 
 453. 
 
 Pleading, 434, 435. 
 
 Evidence, 233. Indictment, 295. Larceny, 
 338. 
 
 Intoxicating Liquors, 319. Justice of the 
 Peace, 333. Nuisance, 396. 
 
 Abatement, 6. Evidence, 220, 228, 238, 242. 
 Exceptions, 247, 248. Indictment, 292. 
 Jury, 330. New Trial, 391, 393, 394. Plead- 
 ing, 435. Practice, 446. Waiver, 563. Wit- 
 ness, 589. 
 
 Evidence, 225, 233, 239. Indictment, 295. In- 
 toxicating Liquors, 317. 
 
 - V. Regan, 
 
 • V. Reagan, 
 
 - V. Reed, 
 ■ V. 
 
 Kennebec R. R. Co., Indictment, 291. 
 
 V. Portland, Saco 
 
 & Portsmouth Co., Nuisance, 395. Railroad, 466. 
 
 Exceptions, 249. Indictment, 295. 
 
 Complaint, 94. Indictment, 292. Waiver, 
 563. Warrant, 565. 
 
 Witness, 290. 
 
 Evidence, 230, 233. Exceptions, 246, 248. In- 
 dictment, 293, 295. Practice, 445, 446. 
 Witness, 590. 
 
 Indictment, 289. 
 
 Indictment, 290, 292. 
 
 Accessory, 7. Indictment, 290, 293. Intoxi- 
 cating Liquors, 320. 
 
 Plantation, 422. 
 
 Fish, 267. 
 
 Indictment, 289, 292. Intoxicating Liquors, 
 319. 
 
 Manslaughter, 359. Practice, 446, 447. Pre- 
 cedents, 453. 
 
 Indictment, 291. Penalty, 421. Precedents, 
 453. 
 
 Constitutional Law, 104. Indictment, 289, 
 293. Judgment, 327. Jury, 330. Stat- 
 utes, 513. 
 
 Intoxicating Liquors, 320. Nuisance, 396. 
 
 Cheating by False Pretences, 89. 
 
 Intoxicating Liquors, 320. 
 
 Indictment, 290, 292. Larceny, 338. 
 
 Desertion, 174. Elections, 194. Indictment, 
 291. 
 
 County, 137. Evidence, 227. Indictment 
 289, 296. Jurisdiction, 328. Law and Fact, 
 339. 
 
 • V. Robbins, 
 
 • V. Euby, 
 
 ■ V. Shaw, 
 
 ■ V. Skolfield, 
 
 ■ V. Smith, 
 
 - V. Stafford, 
 
 - V. Stanley, 
 
 - V. Starr, 
 
 - V. Stevens, 
 
 ■ V. Symonds, 
 
TABLE OF CASES. 
 
 XXXUl 
 
 62, 106. State v. Walton, 
 
 63, 225. 
 
 64, 545. 
 68, 515. 
 
 63, 128. 
 
 65, 74. 
 67, 60. 
 
 65, 234. 
 
 64, 532. 
 
 68, 409. 
 
 59, 568. 
 
 63, 143. 
 
 ■ V. Ward, 
 
 - V. 
 
 - V. Waterville Sav- 
 
 Collector, 91. 
 
 290. 
 Abatement, 4. 
 Abatement, 5. 
 
 Embezzlement, 195. Indict- 
 
 59, 376. 
 
 62, 498. 
 
 61, 89. 
 
 65, 94. 
 
 66, 74. 
 
 58, 439. 
 
 63, 539. 
 
 58, 299. 
 58, 106. 
 
 60, 447. 
 
 58, 508. 
 
 64, 200. 
 
 66, 197. 
 
 59, 286. 
 
 60, 48. 
 
 67, 420. 
 67, 217. 
 
 61, 9. 
 
 62, 286. 
 59, 94. 
 67, 493. 
 
 62, 160. 
 
 63, 227. 
 67, 549. 
 
 64, 195. 
 59, 172. 
 
 Cases Overruled, 85. Statute, 514. Tax, 520. 
 
 Arson, 32. Evidence, 219, 225. iCxceptions, 
 248. Indictment, 293, 294, 295, 296. Ver- 
 dict, 559. Witness, 591. 
 
 Evidence, 237. 
 
 City, 90. Intoxicating Liquors, 320. Officer, 
 398. 
 
 Cases Overruled, 84. Complaint, 94. Con- 
 stitutional Law, 104. Evidence, 225. In- 
 dictment, 292. Intoxicating Liquors, 319. 
 320. Practice, 444. Waiver, 564. Witness, 
 592. 
 
 Jury,330. Lord's Day, 355. 
 
 Constitutional Law, 105. Intoxicating Liq- 
 uors, 316, 320. Warrant, 565. 
 Stearns v. Sampson, Landlord and Tenant, 334, 335. 
 Stephenson v. Thayer, Damages, 146. Exceptions, 244, 246, 249. 
 New Trial, 373. 
 
 Damages, 156. Water-course, 567. Way, 
 
 Mortgage, 380. Trust, 549. Waiver, 562. 
 
 ings Bank, 
 V. Watson, 
 
 • V. 
 
 ■ T. Weeks, 
 
 - V. Wentworth, 
 
 • V. Wheeler, 
 - V. Woods, 
 
 60, 313. Stetson v. Bangor, 
 
 V. Everett, 
 
 Stevens v. Androscog- 
 gin W. P. Co., 
 
 V. Burgess, 
 
 V. Doherty, 
 
 V. European & 
 
 K. A. R. E. Co., 
 
 Stewart v. Campbell, 
 
 V. Davis, 
 
 Steward v. Walker, 
 Stickney v. Jordan, 
 
 Stilphen v. Houdlette, 
 
 v. Stilphen, 
 
 Stinchiield v. Gerry, 
 Stockton V. Staples, 
 Stockwell V. Brewer, 
 Stone V. Perry, 
 Storer v. Hayues, 
 Stover V. Poole, 
 Strang v. Hirst, 
 
 Stratton v. Hussey, 
 
 V. Staples, 
 
 Straw V. Missionary 
 
 Societies, 
 Stringer v. Coombs, 
 
 S trout V. Stewart, 
 Stuart V. Morrison, 
 Stubbs V. Lee, 
 Sturdivant v. Hull, 
 
 62, 289. Sturgis v. Bobbins, 
 
 67, 531. Sullivan v. Carberry, 
 57, 520. Sullivan Granite Co. 
 Gordon, 
 3* 
 
 Bills and Notes, 64. 
 
 Devise and Legacy, 175, 176, 180, 184. Ex- 
 ecutors, 256, 258. Trust, 551. 
 Pleading, 433. 
 
 Evidence, 231. Railroad, 469. 
 
 Cases Overruled, 84. Frauds, 278. 
 
 Deed, 166. Judgment, 324, Mortgage, 371, 
 
 374, 375, 379, 380. Waiver, 562. 
 Abatement, 4. Costs, 134. Trustee Process, 
 
 557. Waiver, 563. 
 Bills and Notes, 61. Conflict of Law, 99. 
 
 Interest, 312. 
 Divorce, 186. Dower, 190. 
 Divorce, 186. Pleading, 432, 434, 435. 
 Deed, 169. 
 Domicile, 188. 
 Partnership, 405. Tax, 521. 
 Sale, 495. Waiver, 562. 
 Amendment, 23. Bankruptcy, 56. 
 Equity, 196, 202, 209. 
 Abatement, 2. Amendment, 20. Bills and 
 
 Notes, 64. Evidence, 229. Partuershiti 
 
 408, 416, 424. Pleading, 434. 
 Attorney at Law, 50. 
 Case, 83. Negligence, 384. Practice, 447. 
 
 Devise and Legacy, 183. 
 
 Conflict of Law, 99. Contract, 123. Dam- 
 ages, 152. Executions, 251. Monev. 369 
 Writ, 593. ■" 
 
 New Trial, 392. 
 
 Lien, 347. 
 
 Justice of the Peace, 332. Officer, 398. 
 
 Agency, 14. Bills and Notes, 61, 73. Evi- 
 dence, 223. 
 
 Evidence, 231, 241. Negligence, 386. Prac- 
 tice, 444. 
 
 Landlord and Tenant, 335. Title, 530. 
 
 Evidence, 236. Real Actions, 476. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 67, 64. 
 
 62, 54. 
 
 58, 294. 
 57, 523. 
 
 66, 583. 
 
 65, 225. 
 
 59, 191. 
 
 Sutherland v. Wyer, 
 Swett V. Hooper, 
 
 Damages, 152, 153. 
 Bills and Notes, 68, 
 312. 
 Swanton v. Lynch, Pleading, 430. 
 Swasey v. Amer. Bible 
 
 Society, Devise and Legacy, 181, 183. 
 Sweetser v. Boston & . ,-„ 
 Maine K. R. Co., Contract, 113. Presumption, 456. 
 V. McKenney, Estoppel, 216. Forcible Entry, 269. Land- 
 lord and Tenant, 337. 
 Symonds v. Barnes, Bankruptcy, 57. Jurisdiction, 328. 
 
 Evidence, 231. Interest, 
 
 Equity, 198. 
 
 68, 97. 
 66, 329. 
 
 65, 296. 
 
 64, 539. 
 59, 229. 
 
 66, 515. 
 63, 425. 
 63, 228. 
 
 67, 177. 
 67, 159. 
 
 57, 290. 
 
 59, 545. 
 
 60, 463. 
 63, 384. 
 
 67, 235. 
 59, 395. 
 
 62, 166. 
 
 63, 149. 
 
 62, 437. 
 
 68, 249. 
 
 63, 480. 
 68, 295. 
 63, 564. 
 59, 183. 
 
 62, 189. 
 68, 316, 
 67, 544. 
 
 61, 123. 
 
 65, 449. 
 67, 573. 
 
 58, 288. 
 
 Tarr v. Smith, 
 Teele v. Otis. 
 Thomas v. Clark, 
 
 V. Johnson, 
 
 V. Stetson, 
 
 Thompson v. Dudley, 
 
 V. Goding, 
 
 V. Gray, 
 
 V. Hinds, 
 V. Pennell, 
 V. Perkins, 
 V. Pittston, 
 
 Thorn v. Mosher, 
 Thornton v. Leavitt, 
 Thorpe v. Shapleigh, 
 Thurlough v. Chick, 
 v. Kendall, 
 
 Thurston v. Portland, 
 Tibbetts v. Knox & L 
 
 K. K. Co., 
 Ticonic Bank v. Bagley 
 
 Ticonic Co. v. Lang, 
 Tillson v. Bobbins, 
 Timony v. Timony, 
 Tobin V. P. S. & P. 
 
 E. E. Co., 
 Todd V. Chipman, 
 Tolman v. Hobbs, 
 Toole V. Beckett, 
 Toothaker v. Winslow, 
 Topsham v. Lisbon, 
 Torrey v. Otis, 
 Townsend v. Meader, 
 
 64, 201. Tracey v. Eome, 
 
 T. 
 
 Evidence, 236. Exceptions, 249. 
 
 Agency, 15, 16. 
 
 Assignment, 35. Precedents, 453. 
 
 Executions, 253. 
 
 Surety, 517. 
 
 Agency,'l3. Officer, 401. Practice, 442. 
 Bills and Notes, 64. Consideration, 100. 
 
 Married Woman, 360. 
 Bills and Notes, 62. Fraud, 270. 
 Trustee Process, 554. 
 Appeal, 24. 
 
 Constitutional Law, 109. Exceptions, 243. 
 Exceptions, 250. Superior Court, 516. 
 Abatement, 2. Jurisdiction, 329. 
 Husband and Wife, 285. 
 Practice, 450. Probate Court, 458. 
 Estoppel, 217. Executors, 259. Practice, 
 
 451. Waiver, 563. 
 Way, 574. 
 
 Master and Servant, 361. Eailroad, 470. 
 , Bank, 54. Bills and Notes, 72. Corpora- 
 tion, 134. Payment, 420, 434. 
 Agency, 14. Corporation, 128. 
 Libel and Slander, 34. 
 Pleading, 435. Practice, 452. 
 
 Carrier, 82. Eailroad, 469. 
 Eeview, 488. 
 Tax, 526. 
 
 Landlord and Tenant, 335. 
 Case, 83. Pleading, 425. Water- course, 566. 
 Damages, 147. Negligence, 388. Way, 568. 
 Attachment, 48. Officer, 400. 
 Executions, 254. Judgment, 323. Officer, 
 401. 
 
 Jurisdiction, 329. Pauper, 
 
 57, 268. Tjaip v. Traip, 
 
 59, 419. Trask v. Pennell, 
 
 57, 63. Traubv. Milliken, 
 
 59, 341. Treat v. Dwinel, 
 68, 394. V. Smith, 
 
 58, 117. Trowbridge v. Holden, 
 67, 28. True v. Emery, 
 
 64, 573. V. Freeman, 
 
 60, 9. V. International 
 
 Tel. Co., 
 
 58, 461. Tuck v. Moses, 
 
 65, 352. Tucker v. Beau, 
 63, 151. Tukey v. Gerry, 
 
 Abatement, 1. 
 
 414. 
 Seizin, 505. 
 Mortgage, 383. 
 Agency, 16. 
 
 Executors, 263. Pleading, 425. 
 Deed, 158. Tax, 527. 
 Equity, 212. Gift, 281. Witness, 588. 
 Attachment, 46. Execution, 254. Officer, 401. 
 Way, 573, 575. 
 
 Damages, 154. Telegraph, 528. 
 Amendment, 23. Cases Overruled, 85. Dam- 
 ages, 145. Replevin, 484, 486. 
 Equity, 207, 211. Infant, 297. 
 Assumpsit, 43. Pleading, 432, 
 
TABLE OF CASES. 
 
 XXXV 
 
 57, 586. Tunks v. Grover, 
 
 59, 290. 
 
 68, 221. 
 
 63, 526. 
 
 59, 466. 
 
 67, 267. 
 
 Husband and wife, 287. Married Woman, 
 361. Trustee Process, 554, 557. 
 Turner v. Friend, Amendment, 18. Writ, 593. 
 
 V. Whitehouse, Abatement, 2, 3. Deed, 171. Mills, 367. 
 
 V. Whitmore, Abatement, 3, 5. Pleading, 425. 
 
 Tuxbury v. Abbott, Bills and Notes, 71. Interest, 312. 
 
 appt., Probate Court, 460. Statutes, 515. 
 
 u. 
 
 68, 229. Union Ins. Co. v. Grant, Agency, 15. Bills and Notes, 64. Estoppel, 
 
 214. Insurance, 303, 309. 
 
 64, 123. V. Greenleaf, Bills and Notes, 60, 65, 69. Corporation, 131, 
 
 Insurance, 309. Statutes, 515. 
 
 66, 400. Union House v. Eowell, Easement, 193. Meeting House, 363. 
 
 V. 
 
 60, 97. 
 
 63, 154. 
 65, 481. 
 68, 442. 
 60, 192. 
 68, 511. 
 60, 142. 
 65, 578. 
 68, 318. 
 
 59, 457. 
 
 64, 229. 
 58, 379. 
 
 Van Valkenburg v, 
 
 Smith, 
 Varney v. Bowker, 
 
 V. Hatbom, 
 
 v. Hawes, 
 
 V. Pope 
 
 Bond, 75. Consideration, 102. 
 
 Field Driver, 267. Impounding, 288. 
 
 Assumpsit, 41. 
 
 Agency, 16. Mortgage, 370. Payment, 417. 
 
 Equity, 205. Nuisance, 396. 
 
 Way, 583. 
 
 Infant, 297. 
 
 Husband and Wife, 285, 286. 
 
 Devise and Legacy, 178, 179. Eemainder, 
 482. 
 Vigoreaux v. Lime Kock 
 
 Ins. Co., Insurance, 306, 310. 
 
 Vose v. Frankfort, Bounty, 79. Tax, 522, 528. Town, 532, 537. 
 
 V. Treat, Agency, 14. Assignment, 34 lasurance, 
 
 311. Eatification, 471. 
 
 Teazie v. Eockland, 
 Vehue v. Pinkham, 
 Verrill v. Parker, 
 V. Weymouth, 
 
 w, 
 
 63, 257. Wait v. Chandler, 
 
 66, 225. Waite v. Princeton, 
 
 62, 184. V. Yose, 
 
 63, 385. Wakefield v. Boston 
 
 & M. R. E. Co., 
 
 65, 341. V. Marr, 
 
 65, 354. Walker v. Bailey, 
 
 67, 496. V. Tewksbury, 
 
 61, 347. — V. Thompson, 
 
 64, 225. Wallace v. Stevens, 
 
 66, 190. V. 
 
 60, 356. Walton v. Greenwood, 
 
 65, 534. Ware v. Gowen, 
 57, 391. v. Hewey, 
 
 61, 391. V. Peroival, 
 
 60, 227. Warner v. Moran, 
 
 61, 19. Warren v. Durham, 
 
 59, 264. V. Kimball, 
 
 57, 97. V. Milliken, 
 
 68, 133. V.Webb, 
 
 64, 163. Washburn v. Gilman, 
 
 62, 341. Washington Ice Co. I 
 
 V. Webster, ( 
 
 68, 449. V. 
 
 Bills and Notes, 69. 
 Tax, 528. 
 
 Condition, 98. Contract, 118. Exceptions, 
 248. Payment, 417. 
 
 Eailroad, 464. Way, 575. 
 
 Equity, 207. Infant, 297. 
 
 Practice, 449. 
 
 Trustee Process, 558. Writ, 593. 
 
 Contract, 118. Evidence, 226. Fraud," 277. 
 
 Equity, 205. Mortgage, 372, 376. 
 
 Mortgage, 377. 
 
 Bond, 76. Condition, 96. Constitutional 
 
 Law, 108. Exceptions, 244. Mandamus, 358. 
 Trustee Process, 555. 
 Limitations, 349. 
 Actions, 9. Assessors, 33. Assumpsit, 42. 
 
 Estoppel, 216. Judgment, 324. Tax, 528. 
 Husband and Wife, 286. 
 Actions, 10. Town, 532. 
 Attachment, 45. Eeal Actions, 477. 
 Agency, 12. Estoppel, 217. Sale, 491. 
 Devise and Legacy, 178. 
 Damages, 147. Mills, 365. Negligence, 388. 
 
 Nuisance, 396. 
 Damages, 145, 146. Frauds, Statute of, 279. 
 
 Eeplevin, 484, 485, 486. 
 Damages, 146, 147, 149. Evidence, 234, 238, 
 
 240. Practice, 443, 448. 
 
XXXVl 
 
 TABLE OF CASES. 
 
 61, 537. 
 
 68, 267. 
 
 59, 450. 
 
 63, 156. 
 
 64, 321. 
 
 59, 80. 
 
 57, 117. 
 
 59, 356. 
 
 66, 177. 
 65, 564. 
 
 62, 512. 
 58, 317. 
 
 57, 364. 
 
 63, 27. 
 
 64, 434. 
 
 64, 436. 
 
 58, 230. 
 
 58, 168. 
 
 58, 139. 
 
 65, 285. 
 
 59, 416. 
 68, 301. 
 63, 267. 
 
 67, 368. 
 67, 17. 
 
 62, 484. 
 
 63, 231. 
 
 60, 88. 
 
 62, 246. 
 
 61, 452. 
 
 63, 493. 
 
 67, 196. 
 
 66, 254. 
 
 68, 579. 
 
 67, 287. 
 67, 20. 
 57, 91. 
 
 64, 236. 
 61, 199. 
 
 64, 541. 
 67, 377. 
 
 59, 143. 
 
 67, 595. 
 
 63, 389. 
 
 65, 332. 
 65, 81. 
 61, 569. 
 
 64, 57. 
 
 60, 176. 
 59, 253. 
 
 68, 71. 
 
 Wass V. Maine Mutual 
 
 Marine Ins. Co., Agency, 13. Insurance, 306, 310. 
 
 V. Plummer, Husband an^ Wife, 287. Trespass, 540. 
 
 Waterford v. Co. Com., Way, 568. 
 
 Waterman v. Hawkins, Devise and Legacy, 175. Executors, 261. 
 Waterville v. Barton, Justice of tlie Peace, 332. Officer, 402. Tres- 
 pass, 542. Way, 570. 
 
 V. Co. Com., Constitutional Law, 109. 
 
 Webb V. Portland, S. ) Exceptions, 250. Law and Fact, 340. Neg- 
 & P. K. E. Co., > ligence, 389. Pleading, 430. Practice, 447. 
 ) Kailroad, 466. Way, 576. 
 Accord, 7. Contract, 113. 
 Deed, 167. 
 Evidence, 232. Exceptions, 246. Keplevin, 
 
 487. 
 School Committee, 498. School District, 500. 
 Judgment, 325. 
 
 Damages, 155. Poor Debtor, 439. 
 Statutes, 514. 
 
 Actions, 9. Statutes, 514. 
 Appeal, 25. 
 Equity, 199. Executions, 252. Exceptions, 
 
 243. Fraud, 274. 
 Deed, 169. Mills, 365, 366. Seizin, 505. 
 Divorce, 186. Married Woman, 361. 
 Weeks v. Parsonsfield, New Trial, 392. Way, 581. 
 Weld V. Bangor, Tax, 524. 
 
 V. Farmington, Pauper, 415. 
 
 Wendell v. Greaton, Costs, 136. 
 
 Wentwortb v. Hinkley, Fraud, 276. Penalty, 421. Pleading, 429. 
 
 West V. Furbish, Bankruptcy, 56. Pleading, 435. 
 
 V. Jordan, Husband and Wife, 286. Judgment, 323. 
 
 Pi-actice, 440. 
 Westbrook v. Deering, Cases Overruled, 85. Town, 532, 537. 
 Westbrook Mnf. Co. I Attachment, 47. Bankruptcy, 56. Fiction 
 j of Law, 266. Time, 529. 
 I Insane Hospital, 298. Limitations, 351. 
 I Pauper, 413. 
 Equity, 207, 208, 209. 
 Verdict, 560. 
 Witness, 589. 
 Deed, 171. Easement, 194. Estoppel, 215. 
 
 Practice, 449, 451. Way, 577. 
 Accord, 8. 
 
 Attorney at Law, 49. Officer, 401. 
 Deed, 166. 
 
 V. Stuart, 
 
 Webber v. Overlock, 
 
 V. Kead, 
 
 V. Stover, 
 
 Webster v. Adams, 
 
 V. Bailey, 
 
 V. Co. Com., 
 
 V. 
 
 V. 
 
 V. Folsom, 
 
 V. Holland, 
 
 ■ V. Webster, 
 
 V. Grant, 
 West Gardiner v. 
 
 Hartland, 
 Weston V. Blake, 
 
 V. Gilmore, 
 
 White V. Brown, 
 V. Bradley, 
 
 ■ V. Gray, 
 
 ■ V. Johnson, 
 
 ■ V. Jones, 
 • V. Eepublic 
 
 Fire Ins. Co., 
 Whitaker v. Berry, 
 Whiteley v. China, 
 
 Insurance, 304. 
 Evidence, 224. Way, 584. 
 
 Damages, 151. 
 Review, 489. 
 Damages, 147. 
 Whitney V.Cumberland, Way, 580. 
 
 V. Kelley, Assignment, 36. Trustee Process, 554. 
 
 Whittier v. Mclntyre, Fence, 265. Trespass, 539. Way, 578. 
 Wickersham v. South- 
 ard, Shipping, 510. 
 Wiggin v. Goodwin, Assumpsit, 37. Contract, 114. Evidence, 
 
 221. Mistake, 369. Partnership, 406. 
 Wilder v. Maine Cen- ) Constitutional Law, 107. Negligence, 390. 
 
 tralR. K. Co., ) Railroad, 465. 
 
 Willard v. Randall, Assumpsit, 41. Fraud, 272. Law and Fact, 
 340. Sale, 498. 
 Jury, 332. Negligence, 387. Practice, 446. 
 
 Verdict, 561. Way, 581. 
 Way, 579, 580. 
 Deed, 161. 
 
 Pleading, 428. Real Actions, 473. 
 Real Actions, 476. Registry of Instruments, 
 481. 
 
 Willey V. Belfast, 
 
 V. Ellsworth, 
 
 V. Haley, 
 
 V. Nichols, 
 
 V. Williamson, 
 
TABLE OF CASES. XXXVU 
 
 61, 67. Williams v. Phoenix Ins. 
 
 Co., Insurance, 305. 
 
 59, 517. V. Richmond, Way, 574. 
 
 32, 559. Williamson v. Dow, Officer, 402. 
 
 62, 488. Willis v. Grand Trunk 
 
 R. R. Co., Carrier, 82. Negligence, 386. 
 
 66, 273. Wills v. Gilman, Trespass, 539. 
 62, 112. Wilson v. European & 
 
 N. A. R. R. Co., Partition, 404. 
 
 67, 358. V. Mortgage, 372. Railroad, 464. 
 
 57, 138. V. Grand Trunk 
 
 R. R. Co., Carrier, 81. Railroad, 467. 
 
 62, 115. V. Prescott, Landlord and Tenant, 334, 335. 
 
 57, 489. V. Woodside, Bastardy, 58. 
 
 59, 505. Wing v. Andrews, Witness, 588, 589. 
 
 57, 383. V. Merchant, Gift, 281. 
 
 66, 62. V. Wing, Libel and Slander, 341. 
 
 61, 118. Winship v. Smith, Agency, 15. Contract, 112. 
 57, 356. Winslow v. Lambard, Error, 212. 
 
 63, 161. V. Lane, Damages, 150. 
 
 68, 362. V. Morrill, Jury, 332. 
 
 66, 285. Winthrop Savings 
 
 Bank v. Blake, Exceptions, 245. Pleading, 435. 
 
 67, 570. V. Jackson, Bailment, 53. Damages, 154. Set-off, 508. 
 
 65, 14. Withee v. Brooks, Actions, 9. Exceptions, 242. Executors, 
 
 263. Fraud, 272. Trespass, 543. 
 
 57, 447. Withamv. Witham, Joint Tenants and Tenants in Common, 322. 
 
 Replevin, 483, 485. 
 
 66, 542. Wood v. Decoster, Assignment, 35. Debt, 157. Pleading, 426, 
 
 433. 
 66, 234. Woodcock v. Calais, Town, 531. 
 
 68, 244. V. Evidence, 230, 234. Exceptions, 243. Prac- 
 
 tice, 450. 
 
 62, 490. Woodis v. Jordan, New Trial, -391. Practice, 446. Trover, 546. 
 66, 389. Woodman v.Boothbay, Bills and Notes, 61, 69, 72. Partnership, 407. 
 
 58, 282. Woods v. Cooke, Attachment, 47. Scire Facias, 503. 
 
 61, 215. V. Amendment, 23. Demand, 171. Scire 
 
 Facias 504 
 66, 206. V. Woods, Mortgage, 372, 381. 
 
 66, 569. Woodstock v. Bethel, Pauper, 409, 413. 
 
 68, 42. Woodward v. Libby, Contract, 123. Sale, 496. 
 
 67, 565. V. Robinson, Exceptions, 246. Trespass, 543. 
 
 57, 281. Works v. Farmers' Mut- 
 ual Fire Ins. Co., Insurance, 305. 
 
 64, 335. Worthing v. Worthing, Evidence, 236. Exceptions, 249. Real Ac- 
 
 tions, 477. Witness, 591. 
 57, 600. Wright v. Roach, Damages, 146. 
 
 67, 524. V. Williamson, Agency, 16. Ratification, 472. Will, 587. 
 
 66, 171. Wyman v. Banton, Assumpsit, 42. New Trial, ^91. 
 
 59, 100. V. Fox, Dower, 190. Equity, 199. Executions, 252. 
 
 Executors, 259. Fraud, 275. 
 
 62, 29S. V. Richardson, Dower, 191. Equity, 199. 
 
 Y. 
 
 65, 
 
 221. 
 
 Yates V. Lurvey, 
 
 Married Woman, 360. 
 
 60, 
 
 495. 
 
 V. Wormell, 
 
 Attachment, 48. Trespass, 541. 
 
 65, 
 
 126. 
 
 Yeaton v. Chapman, 
 
 Practice, 444. 
 
 67, 
 
 260. 
 
 York v. Goodwin, 
 
 Actions, 9. Collector, 92. Precedents, 452. 
 Statutes, 614. Tax, 526. Waiver, 564. 
 
 63, 
 
 587. 
 
 
 Bills and Notes, 64. Consideration, 100. 
 
 67, 
 
 286. 
 
 York Co. M. F. Ins. 
 
 Co. 
 
 
 
 V. Bowden, 
 
 Insurance, 310. 
 
 60, 
 
 272. 
 
 Young V. Blaisdell, 
 
 Fraud, 279. 
 
 59, 
 
 441. 
 
 V. Estes, 
 
 Widow, 585. 
 
 64, 
 
 563. 
 
 
 Accord, 8. Payment, 418. 
 
 
 59, 
 62, 
 
 349. 
 56. 
 
 
 Execution, 253. 
 Equity, 201, 206. 
 
 V. 
 
TABLE OF CONTENTS. 
 
 ABANDONMENT, 1 
 
 ABATEMENT, 1 
 
 ABORTION, 6 
 
 ABSENT DEFENDANT, 6 
 
 ACCESSION, 7 
 
 ACCESSORY, 7 
 
 ACCOMPLICE, 7 
 
 ACCORD AND SATISFACTION, 7 
 
 ACCOUNT, 8 
 
 Accounts, 8, 203, 374. 
 
 Account Annexed, 8, No. 25, p. 426, 
 ACTITIONS AND REMEDIES 
 
 IN GENERAL, 9 
 
 ADULTERY, 10 
 
 Ad damnum. No. 14, p. 329. 
 
 Admission, No. Ill, p. 450. 
 
 ADVANCEMENT, 11 
 
 Advance Payment, 11, No. 36, p. 
 419. 
 
 Adverse Possession, 505. 
 AGENCY, 12 
 ALTERATION OF INSTRU- 
 MENTS, 17 
 AMENDMENT, 17 
 ANIMALS AT LARGE, 24 
 ANNUITY, 24 
 APPEAL, 24 
 APPURTENANCE, 26 
 ARBITRATION, 26 
 ARREST, 31 
 ARSON, 31 
 ASSAULT, 32 
 ASSESSORS, 33 
 ASSIGNMENT OF CHOSES IN 
 
 ACTION, 33 
 ASSIGNMENT FOR THE BEN- 
 EFIT OF CREDITORS, 35 
 ASSUMPSIT, 36 
 
 Atlantic & St. Lawrence Rail- 
 road Company, 44. 
 
 ATTACHMENT, 44 
 
 ATTORNEY AT LAW, 48 
 
 AUCTION, 50 
 
 AUDITA QUERELA, 51 
 
 AUDITOR, 51 
 
 BAIL, 
 
 BAILMENT, 
 
 BANK, 
 
 BANKRUPTCY, 
 
 BASTARDY, 
 
 51 
 52 
 54 
 56 
 58 
 
 BETTERMENTS, 59 
 
 Bill of Sale, No. 3, p. 481; No. 
 16, p. 492. 
 
 Bill of Lading, 59. 
 BILLS AND NOTES, 60 
 
 BOND, 74 
 
 Book Account, 77. 
 BOOM, 77 
 
 BOUNTY, 77 
 
 Bridge, 79. 
 
 Burden of Proof, 79. 
 
 By-Laws, 79. 
 
 CARRIERS, 80 
 CASE, 83 
 CASES OVERRULED, 84 
 CERTIORARI, 85 
 CHAMPERTY, 89 
 CHEATING BY FALSE PRE- 
 TENCES, 89 
 CHECK, 89 
 CITY 90 
 
 City Physician, No. 57, p. 536. 
 
 City Solicitor, No. 59, p. 536. 
 
 City Treasurer, No. 58, p. 536. 
 
 CLERK OF COURTS, 90 
 
 COAL, 90 
 
 COLLATERAL SECURITY, 91 
 
 COLLECTOR, 91 
 
 Commissionei-, No. 15, p. 399. 
 
 Committee, No. 51, p. 536. 
 
 COMPLAINT, 94 
 
 Compromise, 94. 
 
 Compatibility of officers. No. 4, 
 p. 398. 
 
 CONDITION, 94 
 
 CONFLICT OF LAW, 98 
 
 CONSIDERATION, 100 
 
 CONSPIRACY, 102 
 
 CONSTABLE, 102 
 
 CONSTITUTIONAL LAW, 103 
 
 CONTAGIOUS SICKNESS, 109 
 
 CONTEMPT, 110 
 
 CONTRACT, 111 
 
 Conviction, 124. 
 
 COPYRIGHT, 124 
 
 Coroner, No. 53, p. 403. 
 
 CORPORATIONS, 125 
 
 COSTS, 134 
 
 COUNTY, 137 
 
 County Attorney, 138. 
 
 COUPON, 138 
 
TABLE OF CONTENTS. 
 
 XXXIX 
 
 COURTS, 138 
 
 COUNTY COMMISSIONER, 139 
 
 COVENANT, 142 
 
 Criminal Law, 144. 
 
 Crops, No. 4, 256; No. 16, 371. 
 
 CUSTOM, 144 
 
 DAMAGES, 145 
 
 DAY'S WORK, 156 
 
 DEALER, 157 
 
 DEBT, 157 
 
 Dedication, see Way, p. 576. 
 
 DEED, 158 
 
 Demand, 171. 
 
 DEPOSITION, 172 
 DESCENT and DISTRIBUTION, 173 
 
 DESERTION, 174 
 
 DEVISE AND LEGACY, 174 
 
 Disinterested person. No. 9, p. 
 173 ; No. 18, p. 569. 
 
 DIVORCE, 185 
 
 DOMICILE, 188 
 
 Donatio causa mortis et inter 
 vivos, 189. 
 
 DOWER, 189 
 
 DRAINS AND SEWERS, 192 
 
 DURESS, 193 
 
 EASEMENT, 193 
 
 ELECTIONS, 194 
 
 Emancipation, No. 15, p. 297. 
 
 EMBEZZLEMENT, 195 
 
 Emblements, No. 15, p. 371. 
 
 EQUITY, 196 
 
 ERROR, 212 
 
 Estate Tail, No. 33, p. 161 ; No. 17, 176 
 ESTOPPEL, 213 
 EVIDENCE, 218 
 EXCEPTIONS, 241 
 EXECUTIONS, 250 
 EXECUTORS AND ADMINIS- 
 TRATORS, 255 
 
 False Representations, see Fraud, 
 p. 271. 
 
 FEES, 265 
 
 FENCE, 265 
 
 FICTION OP LAW, 266 
 
 FIELD DRIVER, 267 
 
 Fire, No. 15, p. 386. 
 
 FISH, 267 
 
 FIXTURES, • 267 
 
 Flats, No. 81, p. 167; No. 11, p. 566 
 FORCIBLE ENTRY AND DE- 
 TAINER, 268 
 
 Forfeiture, 97. 
 
 FORGERY, 269 
 
 FRANCHISE, 269 
 FRAUD AND FRAUDULENT 
 
 CONVEYANCES, 270 
 
 FRAUDS, STATUTE OF, 278 
 
 Freshet, No. 31, p. 388. 
 
 GAMING, 281 
 
 GIFT, 281 
 
 GUARANTY, 282 
 
 GUARDIAN AND WARD, 282 
 
 HABEAS CORPUS^ 283 
 
 Hawker and Peddler, see Ped- 
 dler, p. 420. 
 Health, see Contagious Sick- 
 ness, p. 109. 
 HEIRS, 283 
 
 HOUSE OF ILL FAME, 284 
 
 HUSBAND AND WIFE, 284 
 
 Identity, see Marriage, p. 359; 
 
 No. 114, p. 381; No. 130, p. 382; 
 
 No. 120, p. 451. 
 
 IMPOUNDING, 287 
 
 INDICTMENT, 288 
 
 INFANT, 296 
 
 Inferior Court, 329. 
 
 Inn Keeper, No. 3, p. 52. 
 INSANE HOSPITAL, 298 
 
 INSANITY, 298 
 
 INSURANCE, 299 
 
 Intent, No. 51, p. 318; No. 16, p. 
 455. 
 INTEREST, 312 
 
 INTOXICATING LIQUORS, 313 
 
 JOINT STOCK ASSOCIATION, 320 
 JOINT TENANTS AND TEN- 
 ANTS IN COMMON, 321 
 JUDGMENT, 322 
 
 Judicial Notice, No. 4, p. 138. 
 JURISDICTION, 328 
 
 JURY, 330 
 
 JUSTICES OF THE PEACE AND 
 TRIAL JUSTICES, 332 
 
 Land Agent, 461. 
 LANDLORD AND TENANT, 333 
 
 LARCENY, 838 
 
 LAW AND FACT, 339 
 
 Lease, 3.36. 
 LIBEL AND SLANDER, 341 
 
 LICENSE, 343 
 
 LIEN, 343 
 
 Life Estate, No. 17, p. 176; No. 
 9, p. 3.34; No. 4, p. 364; No. 7, 
 p. 505. 
 LIMITATIONS, STAT. OP, 348 
 
 Lis Pendens, No. 5, p. 530. 
 
 Logs, 345, No. 2, p. 384. 
 LORD'S DAY, 354 
 
 LOST GOODS, 355 
 
 MAIL, 
 
 Majority, see School Com., 498, 
 Mo. 35, p. 534; No. 51, p. 5-36. 
 MALICIOUS PROSECUTION, 
 MANDAMUS AND PROHIBI- 
 TION, 
 MANSLAUGHTER, 
 
 Manure, 359. 
 MARKET OVERT, 
 
 Manufacture, No. 16, p. 280. 
 MARRIAGE, 
 
 Marriage Settlement, No. 34, p. 
 MARRIED WOMAN, 
 MASTER AND SERVANT, 
 MEETING HOUSE, 
 
 355 
 
 356 
 
 357 
 358 
 
 359 
 
 359 
 553. 
 360 
 361 
 
xl 
 
 TABLE OF CONTENTS. 
 
 MERGER, •« 364 
 
 MILLS, 364 
 
 Misconduct in ofiSce, 288. 
 
 Misdemeanor, see Accessory, p. 7. 
 MISNOMER, 368 
 
 MISTAKE, 368 
 
 Mittimus, No. 12, p. 383. 
 
 Mob, see Riot, p. 489. 
 MONET, 369 
 
 MORTGAGE, 369 
 
 Municipal Court, 2, 94, No. 11, p. 329 
 
 Murder, 296, 592. 
 
 Necessaries, 285 ; No. 26, p. 556. 
 NEGLIGENCE, 384 
 
 NEW TRIAL, 390 
 
 NONSUIT, 394 
 
 NOTICE, 394 
 
 NUISANCE, 394 
 
 Odd Fellows Lodge, 397 
 
 Oath, No. 3, p. 35; No. 47, p. 347, 399; 
 No. 20, p. 563. 
 OFFICER, 397 
 
 Overseer of the Poor, 398, 412, 414. 
 
 PARDON, 403 
 
 Parent and child, 403. 
 
 Parish, 403. 
 
 Parol Demise, No. 5, p. 505. 
 PARTITION, 403 
 
 PARTNERSHIP, 405 
 
 PATENT, 408 
 
 PAUPER, 409 
 
 PAYMENT, 416 
 
 PEDDLER, 420 
 
 PENALTY, 421 
 
 PERJURY, 421 
 
 Personal Property, No. 60, p. 497. 
 
 Pew Holder, No. 4, p. 472. 
 
 Permit, No. 21, p. 540. 
 PHYSICIAN AND SURGEON, 421 
 
 Plaint, No, 12, p. 398. 
 PLANTATION, 422 
 
 PLEADING, 423 
 
 Pledge, 436. 
 POOR DEBTOR, 436 
 
 Possession, No. 143, p. 234; No. 33, 
 p. 408; No. 21, p. 493. 
 PRACTICE, 440 
 
 PRECEDENTS, 452 
 
 Precept, No. 12, p. 398 ; No. 49, p. 402 
 PRESCRIPTION, 453 
 
 PRESUMPTION, 454 
 
 Privity, No. 9, p. 314. 
 
 Privity of Contract, No. 34, p. 16 ; 
 No. 29, p. 336; No. 18, p. 886. 
 PROBATE COURT, 457 
 
 Property, No. 11, p. 437. 
 
 Public Charity, No. 1, p. 547. 
 PUBLIC LANDS, 461 
 
 QUO WARRANTO, 
 
 RAILROAD, 
 RAPE, 
 
 461 
 
 462 
 471 
 
 RATIFICATION, 471 
 
 REAL ACTIONS, 472 
 
 Real Estate, See Fixture, p. 267 ; 
 No. 4, p. 282. 
 
 RECEIPT, .. 478 
 
 RECOGNIZANCE, 478 
 
 RECORD, 479 
 
 Recoupment, see Damages, p. 153. 
 
 REFEREE, 480 
 
 REFORM SCHOOL, 480 
 
 Registry of Deeds, 480. 
 REGISTRY OF INSTRUMENTS, 481 
 
 RELEASE, 481 
 
 REMAINDER, 482 
 
 REPLEVIN, 483 
 
 Respondeat Superior, 487. 
 
 REVENUE, 487 
 
 REVIEW, 487 
 
 RIOT, 489 
 
 Riparian Proprietors, 490. 
 
 Rules of Court, 490. 
 
 SALARY, 490 
 
 SALE, 400 
 
 Savings Bank, 55, 519, 520. 
 SCHOOL COMMITTEE, 498 
 
 SCHOOL DISTRICT, 499 
 
 SCHOOL HOUSE, 500 
 
 SCHOOL TEACHER, 503 
 
 SCIRE FACIAS, 503 
 
 SEAL, 505 
 
 SEIZIN, 505 
 
 Secret Society, see Odd Fellows' 
 Lodge, p. 397. 
 
 Selectmen, No. 17, p. 399; No. 
 38, p. 412 ; No. 48, p. 535. 
 SENTENCE, 507 
 
 Service of Precepts, No. 22, p. 
 899. 
 SET-OFF, 507 
 
 Sewer, see Drain, p. 192. 
 SHIPPING, 508 
 
 SIGNATURE, 511 
 
 Small Pox, see Contagious 
 Sickness, p. 109. 
 
 Spiritualism, see Insanity, p. 298. 
 
 State, Conveyance of Land by, 
 see Deed, No. 52, p. 163. 
 STATUTES, 512 
 
 Stumpage, No. 70, p. 122. 
 SUPERIOR COURT, 515 
 
 SURETY, 516 
 
 Surveyor of Highways, No. 5, p. 
 581; No. 108, p. 578. 
 
 TAX, 519 
 
 TELEGRAPH, 528 
 
 TENDER, 529 
 
 Threatening Communication, 288 
 TIME, 529 
 
 Timber, see Trespass, No. 21, 
 p. 540. 
 TITLE TO PROPERTY, 530 
 
 Toll Bridge, 530. 
 TOWN, 530 
 
 Township, see Plantation, p. 
 422. Way, p. 578. 
 
TABLE OF CONTENTS. 
 
 xli 
 
 TRESPASS, 538 
 
 Trial Justice, 544 
 
 TROVER, 545 
 Truant Officer, No. 22, p. 399. 
 
 TRUST, 547 
 
 TRUSTEE PROCESS, 553 
 
 Use, see Trust, 1, p. 548. 
 Useless Act, see Tender, 1, p. 529. 
 USURY, 558 
 
 VERDICT, 559 
 
 Venire, see Abatement, No. 
 21, p. 3. 
 VOLUNTARY ACT, 561 
 
 Vote, see Deed, No. 52, p. 163. 
 Plantation, No. 7, p. 422. 
 
 Presumption, No. 18, p. 455. 
 School District, No. 11, p. 
 500. Tax, No. 3, p. 519. 
 Town, p. 534. 
 
 Wager, 5B1 
 
 WAIVER, 561 
 
 WARRANT, 565 
 
 Waste, see Real Action, No. 
 53, p. 478. 
 
 WATER, 565 
 
 WATER-COURSES, 566 
 
 WAY, 567 
 
 WIDOW, 585 
 
 WILL, 586 
 
 WITNESS, 587 
 
 WRIT, 593 
 
 ERRATA. 
 
 Page 108, No. 58, for 502, read 512. 
 " 186, No. 4, " Webster v. Blake, read Blake v. Blake. 
 " 366, No. 11, " Blake ». Mulligan, read Blake v. Madiyan. 
 " 391, No. 5, " Banton v. Boston, read Wyman v. Banton. 
 " 539, No. 14, " Wills v. Oilman, read Gilman v. Wills. 
 
DIGEST. 
 
 ABANDONMENT. 
 
 Non-user of an easement for twenty years is evidence of an inten- 
 tion to abandon ; but it is open to explanation, and it may be con- 
 trolled by evidence that the owner had no such intention while 
 omitting to use it. Pratt v. Sweetsir, 68 — 344. 
 See Contract, 81, p. 123. 
 Insueancb, 61, p. 307. 
 School House, 7, p. 501. 
 
 ABATEMENT. 
 
 I. CAUSES OF ABATEMENT. 
 
 (a) Jtjbisdiction. 
 
 (b) Paeties. 
 
 (c) Wkit astd seevice. 
 
 (d) Otheb cattsbs. 
 
 II. HOW AND WHEN TO TAKE ADVANTAGE OP MATTERS IN 
 ABATEMENT. 
 
 III. FORM OF PLEA. 
 
 IV. JUDGMENT. 
 
 I. CAUSES OF ABATEMENT. 
 
 (a) Jurisdiction. 
 
 1. Weong Cottntt. If a local action is brought in the wrong 
 county, the objection need not be taken in abatement. Hash&ll v. 
 
 "Woolwich, 58—535. 
 
 2. Nor need the objection that a petition by one of the kindred of 
 a pauper, for an alteration of an assessment for the support of the 
 pauper, was not filed in the county where the assessment was originally 
 made. Tracy v. Rome, 64 — 201. 
 
 1 
 
2 ABATEMENT. 
 
 3. MxTiaciPAL CouET. If a transitory action is brought in a mu- 
 nicipal court, having jurisdiction of the subject matter, but in a 
 county where the defendant does not reside, the objection comes too 
 late, after a general appearance, an account filed in set-off, and a 
 continuance. Thornton v. Leamtt, 63 — 384. 
 
 4. "Where an action was returnable before a trial justice, and 
 there was a plea in abatement to the jurisdiction on account of the 
 interest of the magistrate, a traverse joined, a judgment for the de- 
 fendant and an appeal to this court, where at the trial neither party 
 offered any proof, and the presiding justice adjudged the plea bad, 
 overruled it, and the defendant alleged exceptions ; held, that in the 
 absence of proof, it was not for the court to presume the existence 
 of the alleged interest, and that the burden of showing it was upon 
 the defendant who alleged it. Bellows v. Murray, 66 — 199. 
 
 5. Probate Appeal. The action for money had and received, 
 commenced by one claiming to be a creditor o.f an insolvent estate 
 under administration, in pursuance of the provisions of R. S., 1871, c. 
 66, § 11, cannot be regarded as a probate appeal cognizable by the 
 supreme judicial court as the supreme court of probate without regard 
 to the amount involved ; and if commenced in Cumberland county, 
 and, by reason of the amount claimed, it falls within the exclusive 
 original jurisdiction of the superior court for that county, it must be 
 brought in that court, and if brought in the supreme judicial court, it 
 is abatable. Merrill v. Crossman, 68 — 412. 
 
 (b) Parties. 
 
 6. The objection to the right of a sueviving paetnbe to maintain 
 a suit because he has not given bond must be taken in abatement. 
 Strang v. Hirst, 61 — 9. Pope v. Jackson, 65 — 162. 
 
 7. NoN-joiNDEE OF A co-PEOMisoE must be taken advantage of in 
 abatement. Mc Greary v. Chandler, 58 — 587. Hapgood v. Watson, 
 65—510. 
 
 8. And the plea must show that the co-defendant was alive, and 
 resident within the State at the date of the writ. Furbish v. Robert- 
 son, 67 — 35. 
 
 9. On a promissory note in which the Machias Mining Co. prom- 
 ised to pay, signed by three persons as directors, the company being 
 an unincorporated association, an action was held maintainable 
 against the individuals signing, unless they plead in abatement the 
 
 ■ non-joinder of their associates. Mc Greary v. Chandler, 58 — 537. 
 
 10. Plea. Non-existence of a plaintiff coepohation must be 
 pleaded in abatement. Dresden Sch. Dist. v. ^tna Ins. Co., 66 — 370. 
 
 11. The non-joinder of all the co-tenants as complainants in a 
 complaint for flowage, need not be taken in abatement. Phillips v. 
 Sherman, 61 — 548. Turner v. Whitehouse, 68 — 221. 
 
 12. When on petition for paetition by a firm it appears that 
 another co-partnership, one of whose members is also a member of the 
 petitioning firm, is named as a respondent, and the respondent firm is 
 defaulted, an objection by the other respondents, who plead sole seizin 
 in themselves and another, from whom both firms derive title, and 
 deny the title and seizin of both firms, the objection that the same 
 person cannot be both plaintiff and defendant seems to be one in the 
 
ABATEMENT. 3 
 
 nature of a plea to the ability of the petitioners to prosecute, which 
 should have been taken by plea in abatement, if at all. Blaisdell v. 
 Pray, 68—269. 
 
 13. In complaint for flowage if all the owners of the dam are not 
 joined in the complaint, the process should not abate but the com- 
 plaint be amended, and the other owners summoned in. Turner v. 
 Whitehouse, 68—221. 
 
 Abatement bt Death of Pakties. See Actions, p. 9. 
 
 (c) Defects in writ and service. 
 
 14. If the affidavit upon a writ, in an action upon a contract, to 
 procure the arrest of the defendant, is defective, and service of the 
 writ is made by arrest of the defendant, the action may be abated. 
 Bailey v. CarviUe, 62 — 524. 
 
 See Aebbst, p. 31. 
 
 15. The objection that a replevin bond is not in double the value 
 of the goods replevied, must be taken in abatement, although the de- 
 fendant first learns the fact at the trial. Douglass v. Gardner, 63 — 
 462. 
 
 16. The service of a writ by arrest of the defendant, will not be 
 ground of abatement, or illegal, simply because he was not a resident 
 nor within the State when the writ was made and the oath that he 
 was about to depart, &c., was taken. Adams v. McFarlane, 65 — 143. 
 
 17. A writ in the supreme court returnable at a term after an inter- 
 vening term, at which it might have been returnable, is voidable and 
 may be abated on motion seasonably filed. McAlpine v. Smith, 68 — 
 423. 
 
 See Real Action, 6, p. 473. 
 
 Writ, or Walker v. Tewksbury, 67 — 496. 
 
 (d) Other causes. 
 
 18. The pendency of an action against a deputy sheriff, for his 
 wrongful acts done under color of his office, cannot be pleaded in 
 abatement of an action against the sheriff for the same cause. Severy 
 V. Nye, 58—246. 
 
 19. When a contract is joint and several, the pendency of an action 
 against all on the joint liability cannot be pleaded in abatement of a 
 several action against one of the parties defendant. Turner v. Whit- 
 more, 63 — 526. 
 
 20. In an action of dower the objection that the defendant was not 
 tenant of the freehold when the action was commenced, must be 
 taken in abatement. Lewis v. Meserve, 61 — 874. 
 
 21. It is good cause for the abatement of an indictment, that the 
 grand jurors finding it were drawn by virtue of venires not having 
 the seal of court upon them. State v. Flemming, 66 — 142. 
 
 See Public Laws, 1877, c. 156. 
 
 II. HOW AND WHEN TO TAKE ADVANTAGE OP MATTEES IN 
 ABATEMENT. 
 
 22. How. If the oath endorsed on the writ to procure the arrest on 
 
4 ABATEMENT. 
 
 mesne process of a debtor by contract is defective, the action will be 
 dismissed upon motion seasonably made. Bailey v. Garville, 62 — 524. 
 
 23. When. R. S., c. 86, § 16, providing that the principal defend- 
 ant in a trustee process, on whom no personal service of the writ 
 has been made, "may assume the defense of the suit," does not per- 
 mit him, after the time allowed therefor by the rule of court, to file a 
 motion in abatement for the want of service upon him. Steward v. 
 
 Walker, 58—299. 
 
 24. Thus, a resident of the county, summoned as trustee, disclosed 
 at the March term, 1867, that he was executor of a certain will, and 
 that it was then uncertain whether anything, or if anything, how 
 much would ever be due to the principal defendant. There having 
 been no service upon the principal defendant, except a nominal at- 
 tachment, notice to him by publication in a newspaper was ordered, 
 but never given, and the action stood continued for the further dis- 
 closure of the trustee until September term, 1869, when, on the 
 second day of that term, the principal defendant volunteered a 
 special appearance by attorney, and filed a motion in abatement on 
 the ground that the supposed trustee was never trustee of the princi- 
 pal defendant ; that none of his property had been attached, nor any 
 personal service made on him. The next day the trustee was dis- 
 charged. Jleld, that the principal defendant could not voluntarily 
 assume the defense by pleading in abatement after the time fixed by 
 the rule ; and that the action be dismissed without costs. lb. 
 
 25. The entry of a a special appearance does not dispense with the 
 necessity of filing a plea in abatement within two days after the entry 
 of the action. Richardson v. Rich, 66 — 249. 
 
 26. If the court has jurisdiction of the parties and of the subject 
 matter, any defect in the form or, service of a writ which is amendar 
 ble, or which may be waived by the party suffering, is matter of 
 abatement, and can be taken advantage of only under rule sixth of 
 this court, and in accordance with its provisions. Ih. 
 
 27. Where a writ of entry was a capias, and was served by arrest 
 instead of attachment and summons, or original summons, as by stat- 
 ute required ; held, that the error in the form of the writ, or manner 
 of service could only be taken advantage of by a plea or motion in 
 abatement, filed within the first two days of the term, as by rule of 
 court provided. Ih. Ante, 3, 17. 
 
 See Waives, 22, p. 563. 
 
 ni. FORM OF PLEA. 
 
 28. Affidavit. The plea is bad if it have no affidavit, or a defec- 
 tive one. Bellamy v. Oliver, 65 — 108. 
 
 29. An affidavit bearing date the day preceding the commencement 
 of the term at which the writ to be abated is returnable, is fatally 
 defective. Ih. 
 
 30. Duplicity. A plea i'n abatement, to the sufficiency of the grand 
 jury, alleging defects in the drawing of several jurors which are not 
 dependent for proof upon the same evidence, is bad for duplicity. 
 State V. Ward, 63—225. 
 
 81. A plea in abatement which tenders an issue upon two or more 
 
ABATEMENT. 6 
 
 separate and independent matters of fact is bad for duplicity. State 
 V. Seselton, 67—598. 
 
 32. A plea to an indictment alleging that the county had not been 
 legally divided into jury districts, that two towns had in their jury 
 box more names than the law allowed, and that in two other towns 
 from which grand jurors were drawn no notice of the drawing of 
 jurors was given, is bad for duplicity. lb. 
 
 33. Certainty. The plea is bad on demurrer unless it contains 
 matter which of itself, without resorting to any inference of fact, is 
 sufficient ground for abatement, alleged with such precision and cer- 
 tainty as to exclude all such supposable matters as would, if alleged 
 on the opposite side, defeat it. Adams v. McFarlane, 65 — 143. 
 
 34. A plea in abatement should state facts, not argument. 
 Example. — A plea to an action of trespass against a sheriff which, 
 
 after reciting the pendency of a suit against the deputy for the same 
 cause of action, alleges that the plaintiff by electing to sue the deputy 
 has released the sheriff is argumentative. Severy v. Nye, 58 — 246. 
 
 35. When a defendant pleads in abatement the pendency of another 
 suit for the same cause of action, it seems that he should enroll in or 
 with his plea the record or process on which he relies. Turner v. 
 
 Whitmore, 63—526. 
 
 36. Where in assumpsit upon a promissory note against one, the 
 defendant pleads in abatement the pendency of a prior suit brought 
 against himself and others, he must aver that the note is not several 
 as well as joint, or his plea will be defective. lb. 
 
 37. A plea in abatement for the non-joinder of a co-defendant is 
 fatally defective when it does not allege that he was, at the date of 
 the writ, alive and resident within this State. Furbish v. Robertson, 
 67—35. 
 
 38. To sustain a plea in abatement the court will take knowledge 
 of an implication of law, but not of an inference of fact. State v. 
 
 Ward, 64—545. 
 
 39. The law requires that the number of names in the jury box 
 shall not be less than one nor more than two for every one hundred 
 persons in the town, according to the census taken next before pre- 
 paring the box. A plea in abatement alleged the disqualification of 
 one of the grand jurors, in that the last census of the town from 
 which the juryman was taken in 1870, yet that the town at the 
 time of the drawing had no jury box which did not contain more 
 than two names for every hundred persons according to said census, 
 but did not allege that the juror was drawn or the box prepared after 
 the census of 1870. Held, that as it was not certain whether the 
 juror was drawn from an improper box, or the municipal officers had 
 neglected to prepare a box at the time fixed by law, the plea was 
 bad. lb. 
 
 40. In a criminal case a plea in abatement is sufficient, if it is free 
 from duplicity and states a valid ground of defense to an indictment 
 in language sufficiently clear and not to be misunderstood ; the strict- 
 est technical accuracy, such as is sometimes required in purely dila- 
 tory pleas in civil suits, should not be exacted. State v. Flemminq, 
 66—142. 
 
6 ABOETION — ABSENT DEFENDANT. 
 
 41. Dbmueeee. The defects of a plea in abatement, whether of 
 form or substance, are reached by a general demurrer. Severy v. 
 Nye, 58—246. Bellamy v. Oliver, 65—108. 
 
 IV. JUDGMENT. 
 
 42. When a plea in abatement is adjudged bad on demurrer, the 
 judgment is always respondeat ouster. State v. Pike, 65 — 111. 
 
 43. Upon a plea in abatement in a municipal court in a search and 
 seizure process, a decision that "the complaint ought not to be 
 quashed by reason of anything" contained in the plea is a sufficient 
 conviction. State v. Corkrey, 64 — 521. 
 
 44. In a civil case, when a demurrer to a plea in abatement is sus- 
 tained, and the defendant without asking leave to plead anew files 
 exceptions, and enters his action in the law court, this is a waiver of 
 his right to answer further, and if the exceptions are overruled, the 
 judgment will be final against him, to be entered the next term after 
 the decision is certified. Furbish v. Mobertson, 67 — 35. 
 
 See Waivbe, 26, p. 564. 
 
 ABOETION. 
 
 On the trial of an indictment under the first clause of R. S., 1871, 
 c. 124, § 7, providing for the punishment of a woman who is willingly 
 delivered in secret of a child, which if born alive, would be a bas- 
 tard, and conceals the death thereof, so that it is not known whether 
 it wag born dead or alive, the accused is entitled to an acquittal if it 
 appears that the child was born dead. State v. Kirhy, 57 — 30. 
 
 ABSENT DEPENDANT. 
 
 1. An execution issued on a judgment by default against an absent 
 defendant, within one year after the rendition of the judgment, and 
 without the plaintiff's first giving the bond required by statute, is 
 void. Davis v. Stevens, 57 — 594. 
 
 See Public Laws, 1877, c. 149. 
 
 2. If a non-resident, not within the State when a writ is sued out 
 against him, and his property attached, afterwards comes within the 
 State, and has actual notice of the pendency of a suit through a per- 
 sonal service by an officer of the court, the provisions of statute (R. 
 S., 1871, c. 82, §§3 and 4) for a continuance, and the filing of a bond 
 before execution can be issued do not apply. Emery v. Legro, 
 
 3. A judgment debtor, who was absent from the State and not 
 served with process, may maintain audita querela, to set aside an 
 execution issued on a judgment rendered on default, in a personal 
 action, within one year thereafter, without first giving the bond pre- 
 scribed in R. S., c. 82, § 4, notwithstanding the execution has been 
 returned satisfied by a levy on the debtor's real estate, Folan v. 
 Folan, 59—566. 
 
ACCESSOEY — ^ACCORD AND SATISFACTION. 7 
 
 ACCESSION. 
 
 Under a mortgage of plants and shrubs, other plants and shrubs 
 raised by the mortgager, after giving the mortgage, from cuttings 
 from the plants and shrubs mortgaged, pass to the mortgagee by- 
 accession. Bryant v. Pennell, 61 — 108. 
 See FixTUBBS, p. 267. 
 
 ACCESSORY. 
 
 In misdemeanors there are no accessories. In the commission of 
 any offense of that nature all are principals whose relations to it are 
 such as, were it a felony, would constitute them accessories before 
 the fact. State v. Buby, 68—543. 
 
 ACCOMPLICE. 
 
 1. The degree of credit to be given to the testimony of an accom- 
 plice is to be determined by the jury. State v. Litchfield, 58 — 267. 
 
 2. A conviction may be had on the testimony of the accomplice 
 alone. Ih. 
 
 ACCORD AND SATISEACTION. 
 
 1. Courts incline to regard with favor any compromise, not fraudu- 
 lently made, which puts an end to litigation. Staples v. Wellington, 
 62—9. 
 
 2. An unsealed agreement, signed by the plaintiff and five other 
 creditors of the defendant stipulating "to take fifty per cent, of the 
 amount due us in full, for account against" him, is no defense to an 
 action on the original account, nothing having been paid in pursuance 
 of said agreement, Webh v. Stuart, 59 — 356. 
 
 3. Partial payment of a debt, with an agreement that the debtor 
 shall have his own time to pay the balance, does not come within the 
 operation of R. S., 1871, c. 82, § 38, and an action may be maiatained 
 for the balance. Mayo v. Stevens, 61 — 562. 
 
 4. In order to render payment of part an extinguishment of the 
 whole debt, under the statute, both parties must concur in the under- 
 standing that the amount is paid and received for the whole debt. Ih. 
 
 5. The plaintiff having suffered special damage by reason of an 
 obstruction placed in a navigable stream by the defendant, the latter 
 promised to pay all damages, but afterwards refused to do so. Held, 
 that the contract was no bar to a special action for the damages 
 caused by the nuisance. Dudley v. Kennedy, 63 — 465. 
 
 6. An agreement under seal by a creditor to accept a certain sum, 
 less than the amount, of the debt, in payment thereof, and to transfer 
 to some third party his debt on receipt of the same, within a specified 
 
8 ACCOXJNT — ACCOUNT ANNEXED. 
 
 time, followed by a tender of the sum -vrithin the time limited and a 
 refusal to accept it by the creditor, is no defense to an action to 
 recover the debt. Young v. Jones, 64 — 563. 
 
 7. A mere tender of performance of the accord wUl not suffice. Ih. 
 
 8. A defense, based on an alleged accord and satisfaction, can be 
 sustained only when the accord has been completely executed. Neither 
 an offer to perform, nor an actual tender of performance is sufficient. 
 Nothing short of actual performance — meaning thereby, performance 
 accepted — will sustain such a defense. White v. Gray, 68 — 579. 
 
 9. The debtor's remedy, if the creditor has wrongfully refused to 
 accept performance, is a separate action upon the agreement. lb. 
 
 10. The distinction between an agreement which \&,per se, to satisfy 
 and extinguish an existing debt, and an agreement, the performance 
 of which is to have that effect, must not be overlooked. The former 
 operates as an immediate satisfaction of the debt. The latter only 
 when performed. lb. 
 
 See CoNTEACT, 17, p. 113. 
 
 PoTTEE V. Ins. Co., 63 — 440. 
 
 ACCOUNT. 
 
 1. Two members of a co-partnership can not maintain a joint action 
 of account against the third member, to recover their share of the 
 net profits, unless there has been an adjustment of the affairs of the 
 partnership, and a balance ascertained ; or it appears the defendant 
 co-partner is liable to account to the plaintiffs jointly. Farrar v. 
 Pearson, 59 — 561. 
 
 2. In the action of account, whatever would constitute a bar to the 
 action, must be pleaded in bar, before the interlocutory judgment to 
 account, and no such matter can be pleaded before the auditor. 
 Black V. Nichols, 68—227. 
 
 3. When no issue is raised before the auditor and reported by him, 
 his report is conclusive, and the defendant has no right to trial by 
 jury. lb. 
 
 See Limitations, 1, p. 348. 
 
 ACCOUNTS. 
 
 See Equity, p. 203. Conteact, 35, p. 115. Limitations, 38, 
 BT SBQ., p. 352. 
 
 ACCOUNT ANNEXED. 
 See Pleading, 25, p. 426. Eecoed, 4, p. 479. 
 
ACTIONS Airo REMEDIES IN GBNBBAI;. 
 
 ACTIONS AND REMEDIES IN GENERAL. 
 
 I. REMEDIES GIVEN BY STATUTE. 
 
 II. SURVIVAL OF ACTIONS. 
 
 III. MULTIPLICITY OF ACTIONS. 
 
 IV. GENERALLY. 
 
 I. REMEDIES GIVEN BY STATUTE. 
 
 1. A petition for the location of a highway, pending before county 
 commissioners, is not an "action pending," within the meaning of the 
 section of c. 1, R. S., 1871, providing that actions pending at the 
 time of the passage or repeal of an act shall not be affected thereby. 
 
 Webster v. County Gommissioners, 63 — 27. /Same r. Same, 64 — 434. 
 
 2. A provision in the plaintiff's charter, providing that if any per- 
 son shall willfully, maliciously and contrary to law, commit certain 
 trespasses upon plaintiff's canal, such person shall forfeit a certain 
 sum and be liable to indictment, does not take away from plaintiff 
 the common law remedy of trespass quare clausum. Cumberland S 
 Oxford Canal Co. v. Sitchings, 59 — 206. See also Plummsr v. 
 Penobscot L. A., 67—863. 
 
 3. The remedy for the collection of taxes by suit by the town, is 
 additional to that, by arrest or distraint, and not concurrent. Yorh 
 V. Goodwin, 67—260. 
 
 II. SURVIVAL OF ACTIONS. 
 
 4. When one is injured through the carelessness of a railroad cor- 
 poration, but the injury is not such as to produce immediate death, a 
 right of action accrues to such person, which, in case of his subse- 
 quent death, survives to his personal representatives. State v. Gfrand 
 Trunk Pailroad Company, 61 — 114. 
 
 5. An action of trespass for double damages, for injury done by a 
 dog, survives the death of the plaintiff during its pendency. Prescott 
 V. Knowles, 62—277. 
 
 6. The provisions of the statutes in regard to the survival of 
 actions make no distinction in respect to survivorship between' 
 actions of trespass upon the person and upon property, or between 
 actions of trespass at common law, and those created by statute. 
 Prescott v. Knoioles, 62—277. Withee v. Brooks, 65—14. 
 
 7. When a woman is led into a void marriage with a married man, 
 under the false pretense that he is single, he being at the time a mar- 
 ried man, an action for the deceit is an action of trespass on the case 
 and survives against the personal representative of the defendant. 
 
 Withee v. Brooks, 65 — 14. 
 
 IIL MULTIPLICITY OP ACTIONS. 
 
 8. A claim arising from one entire and continuous tortious act can 
 not be divided and made the subject of separate actions. Ware v 
 Percival, 61—391. 
 
 IV. GENERALLY. 
 
 9. A declaration alleging that the plaintiff, at the request of the 
 
10 ACTIONS AND EBMEDIES IN GENERAL. 
 
 defendant, a railroad company, had conveyed his stock therein, to 
 third persons to hold in trust for certain purposes, and that the de- 
 fendant, in consideration thereof, agreed with such trustees, not to 
 issue any additional stock without the consent of the trustees — con- 
 tractors who were building the road ; but that defendant without such 
 consent, issued other stock, whereby the value of that conveyed in 
 trust by the plaintiff had been diminished, discloses no ground of 
 action. Poor v. European & North American R. H. Company, 
 59—270. 
 
 10. To recover in an action against a town, founded upon its vote, 
 the plaintiff must bring his claim strictly within the terms of such 
 vote. Warren v. Durham, 61 — 19. 
 
 11. One, who in good faith, digs a well on his own land to obtain 
 water for domestic uses, and thereby diverts the water which had 
 been accustomed to flow in an unknown subterranean channel into the 
 spring of an adjacent land owner, is not liable to the latter in dam- 
 ages. Chase v. Silverstone, 62 — 175. 
 
 12. The rule that whoever takes a conveyance of land during the pen- 
 dency of a bill in equity, to enforce a specific performance of a contract 
 for its conveyance, is bound by the decree in the suit, may be made 
 available in an action at law. Snowman v. Harford, 62 — 434. 
 
 13. The voluntary payment of another's debt by a stranger, will 
 give the payef no right of action against the debtor. Brown v. Ches- 
 terville, 63—241. 
 
 14. Nor will the advancement of the debt by a stranger, bar the 
 right of action by the original creditor against the debtor ; or, defeat 
 a suit prosecuted by the payer, in his name and with his consent. lb. 
 
 15. An action under R. S., c. 6, § 114, to recover damages sustained 
 by reason of the mistakes, errors, or omissions of the assessors, col- 
 lector, or treasurer, cannot be sustained, when it does not appear that 
 the plaintiff has paid more than his tax ; or more than he would have 
 paid, if the mistakes, errors, or omissions had not occurred ; or that 
 he has in his person or property suffered injury on that account. Oil- 
 man V. Waterville, 59—491. 
 
 16. A city is not liable at common law for gross negligence in omit- 
 ting to place guards indicating the position of an excavation made by 
 the servants of the city without the limits of a street. Morqan v. 
 Sallowell, 57—375. 
 
 See Aebiteatiow, 2, p. 26. 
 
 JUEISDICTTOK, p. 328. 
 
 Limitations, 35, p. 352. 
 Railroad, 43, p. 466. 
 Replevin, 40, p. 486. 
 Review, 4, p. 488. 
 
 AD DAMNUM. 
 See JuEiSDiCTiON, 14, p. 329. Weit, 1, p. 593. 
 
ADULTERY — ADVANCEMENT. 11 
 
 ADMISSION. 
 See Evidence, p. 232. 
 
 ADULTERY. 
 
 1. It is no defense to an indictment for adultery, of parties who 
 have cohabited as husband and wife, while the woman was lawfully- 
 married to another man, who was still alive ; that the lawful husband 
 had married again ; that the magistrate who married the defendants, 
 advised them that on that account they had the right to inter-marry, 
 and that believing this advice to be true, and acting upon it in good 
 faith, they did marry. State v. Goodenow, 65 — 30. 
 
 2. Testimony of the particeps cripiinis that she was "married two 
 years ago by C. L., at his house," it not appearing that C. L. professed 
 to be "a justice of the peace or an ordained or licensed minister of 
 the gospel," or that the marriage was "consummated with a full belief 
 on the part of either of the persons married that they were lawfully 
 married," is not sufficient evidence of a marriage upon an indictment 
 for adultery. State v. Howe, 61 — 171. 
 
 ADVANCEMENT. 
 
 A father, by deed of warranty, conveyed to his son certain land, 
 and received back a writing from the son, acknowledging the receipt 
 of five hundred dollars as the full share of his father's estate, and re- 
 linquishing all his right, title, and interest in his father's estate, at his 
 decease, which he should otherwise have had. The land was worth 
 seven hundred dollars, and the son verbally agreed to pay the father 
 two hundred. The father died before the son, intestate. Held, that 
 the conveyance was an advancement in full to the son. Smith v. 
 Smith, 59—214. 
 
 See Action, 14, p. 10. 
 Payment, 40, p. 420. 
 
 ADVANCE PAYMENTS. 
 
 See Payment, 36, p. 419. 
 
 ADVERSE POSSESSION. 
 See Seizin, p. 505. 
 
12 AGENCY. 
 
 AGENCY. 
 
 I. APPOINTMENT AND REVOCATION, HOW PROVED. 
 
 II. EXTENT OF AUTHORITY. 
 
 III. RATIFICATION. 
 
 IV. WHETHER THE PRINCIPAL OR AGENT IS BOUND. 
 V. RIGHTS OF PRINCIPAL AND AGENT. 
 
 VI. FACTORS. 
 
 VII. PLEADINGS AND EVIDENCE. 
 
 I. APPOINTMENT AND REVOCATION, HOW PROVED. 
 
 1. The plaintiff agreed to sell the defendant a quantity of un- 
 branded hay, which agreement was in contravention of the statute then 
 in force. After part of it had been put on- board defendant's vessel, 
 a dispute arose concerning the quality of some of the hay hauled to 
 the wharf, and the plaintiff told the defendant he must take all or 
 none, and then sold the hay to a third person, and delivered to him 
 what was upon the wharf. As to the hay already on board the 
 vessel there was some dispute, the defendant not wishing to unload 
 it, and, after a remark by the plaintiff indicating that the defendant 
 might do what he pleased with it, the defendant carried it away in 
 his vessel and sold it. The plaintiff brought trover against the de- 
 fendant for the hay so taken, but failed in the suit. He then brought 
 assumpsit for the proceeds of the hay. Held, that there was evi- 
 dence from which the jury might infer that the defendant carried 
 away the hay and sold it, as bailee or agent of the plaintiff. Foye v. 
 Southard, 64—389. 
 
 2. A grantor unable to write may by parol authorize another person 
 to sign his (the grantor's) name to a deed in his presence, and the 
 deed so executed will be valid. Bird y. Decker, Q4i — 550. Lovejoy 
 V. Richardson, 68 — 386. 
 
 3. Where a published notice of a foreclosure of the mortgage is 
 signed with the name of the mortgagee, by "A. B., his attorney," 
 and the party afterwards recognizes and adopts the proceeding as 
 effectual, he may rely on these facts as prima facie evidence of the 
 authority of the attorney. Smith v. Larrabee, 58 — 361. 
 
 4. A grain elevator company holds grain stored therein, as agents 
 for the owners of the grain. Warren v. Milliken, 57 — 97. 
 
 5. Revocation. An agent for the sale of goods, with an interest 
 in the proceeds, is not deprived of the power to sell, by the death of 
 the principal. Merry v. Lynch, 68 — 94, 
 
 6. A person received goods with an agreement that he should sell 
 them, and out of the proceeds pay certain lien and other claims, and 
 apply the balance, first to the payment of certain notes he held 
 against the principal and return the overplus to the principal. Held, 
 that the power was not extinguished by the death of the principal ; 
 that the agent had the right to sell and apply the proceeds as agreed, 
 and pay his own notes in full, though the estate was rendered insol- 
 vent and other creditors received only a percentage. Ih. 
 
 See Post, 31, 38. 
 
 Attoenbt at Law, 8, p. 49. 
 
AGENCY. 13 
 
 II. EXTENT OF AUTHORITY. 
 
 7. Secebt Instetjctions. When an open policy of insurance is 
 issued to an agent, one effecting insurance under it is not affected by 
 instructions to the agent from the company, not contained in the pol- 
 icy, and not made known to him, limiting the authority of the agent 
 to a certain class of risks. Wass v. Maine Ins. Go., 61 — 537. 
 
 8. Sale on Ckedit. A specific authority to sell does not authorize 
 a sale on credit, unless, at the place of sale there is an usage of busi- 
 ness, general or special, in reference to which authority to sell on 
 credit is supposed to be given. /School Dist. in Dresden v. ^tna 
 Ins. Co., 62—330. 
 
 9. Public Agents. If there is any distinction between the extent 
 of the power of agents of quasi corporations, like towns and school 
 districts, and the agents of ordinary business corporations, or persons, 
 when both are acting in pursuance of special authority, it would seem 
 that the acts of public agents are to be construed more strictly than 
 those of the agents of private persons. lb. 
 
 10. If the execution creditor is entrusted by the assignee of the 
 judgment to procure a levy to be made, pay the expenses of it, choose 
 an appraiser and accept delivery of seizin, and the extent of the author- 
 ity is not disclosed to the officer, and an arrangement is made between 
 the officer and the execution creditor that the latter will cause the 
 levy to be recorded, and the officer has no notice to the contrary 
 from the assignee, the officer is not liable for a neglect to cause the 
 levy to be recorded. Thompson v. Goding, 63 — 425. 
 
 11. A telegram by the owner of a cargo, which had been attached 
 as the property of another, as follows : "To A. Get cargo bonded ; 
 will hold bondsmen harmless and come down if necessary. See Spauld- 
 ing. B." does not authorize A. to sign B.'s name to a sheriff's re- 
 ceipt, which would estop B. from claiming the cargo as his own 
 property. Millay v. Whitney, 63 — 522. 
 
 12. If the owner of an article of personal property delivers it to 
 another to sell, the latter has no right to deliver it to his creditor in 
 payment of his own pre-existing debt ; and if he does so, the owner 
 may maintain trover against the creditor without a previous demand. 
 EodicJc V. Goburn, 68—170. 
 
 13. Implied Authority. The authority of an agent to execute a 
 deed in behalf of his principal, need not be given in express terms ; 
 but may be implied from the express power given. Nohlehoro v. 
 Glarh, 68--87. 
 
 14. The power to sell the land of the principal necessarily implies 
 the power to execute a proper deed to carry the sale into effect. Ih. 
 
 15. A vote of a town as follows : "Choose H. agent to sell the bal- 
 ance of the town landing, if he thinks it will be for the interest of the 
 town to do so, and to settle all other matters with the railroad com- 
 pany," authorizes H. to sell the balance of the landing to any person 
 he may see fit, and to execute a deed thereof. Ih. 
 
 See CoRPOEATiON, 88, p. 180. 
 
 III. EATIFICATION. 
 
 16. Where, after judgment on a marine policy recovered in the 
 
14 AGENCY. 
 
 name of the owner of one-eighth interest, alone, the owner of the re- 
 maining seven-eighths settled with the attorney recovering judgment, 
 by agreeing with him as to the amount of fees he should receive, and 
 receiving from him the balance of a partial collection on the execu- 
 tion, after the deduction of the amount of his fees, together with the 
 execution, the balance of which the defendant subsequently collected, 
 and thereupon agreed to pay to the assignee of the one-eighth inter- 
 est, his share thereof; it was held, that the acts of the defendant con- 
 stituted a ratification of the original suit, and that assumpsit would 
 lie upon the special promise by the assignee. Yose v. Treat, 58 — 378. 
 
 17. By bringing a suit to recover the value of goods mortgaged to 
 him, the mortgage being taken by his attorney without authority, the 
 plaintiff thereby ratifies the act of his attorney in taking the mort- 
 gage. Partridge v. White, 59 — 564. 
 
 18. A presumption of the ratification of the unauthorized action of 
 an agent by the principal, arising from the non-action of the princi- 
 pal, is less inferable where the principal is a corporation, like a school 
 district, than in case of an individual. School District in Dresden 
 V. ^tna Ins. Co., 62—330. 
 
 19. The rule that where a principal has full knowledge of the acts 
 of his agent, he must dissent and give notice of his dissent within a 
 reasonable time, is stringent in its application only where the agent 
 and those dealing with him are acting in good faith, and the principal 
 receives a direct benefit therefrom. lb. 
 
 20. Where one without authority subscribed for stock in a corpo- 
 ration for another, and the latter repudiated the transaction as soon as 
 informed of it, but gave another person a proxy to vote upon shares, 
 at the next meeting for the choice of officers, with the express under- 
 standing that it should be used in case certain persons could be ex- 
 cluded from the board of directors, in which event he promised to fill 
 the subscription, and the proxy was not used, as the condition could 
 not be complied with, it was held, that the transaction was not a rati- 
 fication of the subscription. Ticonic Co. v. Lang, 63 — 480. 
 
 IV. WHETHER THE PRINCIPAL OR AGENT IS BOUND. 
 
 21. FoBM OF Insteument. A note, running "I promise, etc.," 
 signed "A. B., treasurer of St. Paul's Parish," is the note of A. B. 
 Sturdivant v. Hull, 59 — 172. 
 
 v22. But the same signed "A. B., treasurer for St. Paul's Parish, 
 duly authorized," is the note of the Parish. Sheridan v. Carpenter^ 
 61—83. 
 
 23. A promissory note of this form : "One year after date, we 
 promise to pay to the order of A. B., one thousand dollars, value re- 
 ceived," and signed "George Moore, treasurer of Mechanic Falls 
 Diarying Association," is the note of Moore and not of the associ- 
 tion. Mellen v. Moore, 68—390. 
 
 24. If a deed is executed by an agent or attorney, with authority 
 therefor, and it appears by the deed that it was the intention of the 
 parties to bind the principal or constituent, — that it should be his deed 
 and not the deed of the agent or attorney, — it must be regarded as 
 the deed of the principal or constituent, though signed by the agent 
 or attorney in his own name. Nohleboro v. Clark, 68 — 87. 
 
AGENCY. 15 
 
 25. A deed set forth that the inhabitants of the town of N. con- 
 veyed to Clai-k, a certain traicf of land. In "witness whereof, they, 
 "by the hand of Hatch, hereunto duly authorized, . . have set 
 their seal, and the said Hatch has hereunto subscribed his name." 
 Hatch, as agent of N., acknowledged the instrument to be the free 
 act and deed of the inhabitants of the town. Held, that it was the 
 deed of the inhabitants of N. Ih. 
 
 26. Generally, when a party is inforrhed that the person with whom 
 he is dealing is merely the agent of another, and prefers to deal with 
 the agent personally, on his 'own credit, he will not be allowed af- 
 terwards to charge the principal. Union Insurance Go. v. Grant, 
 68—229. 
 
 27. In order to bind the principal, it is necessary that it should ap- 
 pear that the agent acted for, or in behalf of the principal, but it is 
 not necessary that these identical words be used. The question, 
 whether in a particular case, a person acts as agent is to be determined 
 from the whole instrument, and not from any prescribed form of lan- 
 guage. Winship V. Smith, 61 — 118. 
 
 28. In construing a contract, to determine whether the signers in- 
 tended to bind thernselves personally, or executed it as agents for 
 another party, the rights of the parties may depend upon the answers 
 to the questions : From whom did the consideration move ? For 
 whose benefit was the contract entered into? To whom did the 
 plaintiff look for security when he made the contract? Had the party 
 sued authority to bind his principal ? Did he name his principal in 
 the contract? Did he intend to bind himself or his principal ? lb. 
 
 29. When the principal is known, and the agent is acting for such 
 principal, and not for himself, and has full authority so to act, he does 
 not become personally responsible. Teele v. Otis, 66 — 329. 
 
 30. Example. The defendant learning that certain suits had been 
 brought against his son, and having authority to act for him, wrote to 
 the plaintiff, an attorney at law, requesting him to attend to the suits 
 against his son, and if possible prevent judgment being taken at that 
 term. Jfeld^ tkaX the defendant was not liable, as principal, to the 
 plaintiff, for his fees for attending to the suits. lb. 
 
 V. RIGHTS OF PRINCIPAL AND AGENT. 
 
 31. The plaintiff was appointed agent for a life insurance com- 
 pany, the appointment being revocable at the pleasure of either party. 
 The rules of the company provided that agents should receive a com- 
 mission of ten per cent on first year's premium, and five per cent on 
 each renewal collected and transmitted by them. Held, that the 
 plaintiff, after his agency terminated, was not entitled to commissions 
 on renewals on policies procured by him during its continuance, and 
 not collected and remitted by him ; although he was ready to make 
 such collections, and the agency was terminated without his fault. 
 Spaulding y. I^. T. Life Ins. Co., 61—329. 
 
 32. Though a purchaser of goods does not disclose to the seller 
 that he is purchasing as agent for another, yet, if he is in fact an 
 agent, a delivery of the goods to him will vest the title in the princi- 
 pal. 8tate V. Intoxicating Liquors, 63 — 121. 
 
16 AGENCY. 
 
 33. A claimant of dower being in possession of the land, occupying 
 it for her own benefit under a contract made with the owners, by a 
 third person, the owners being out of the State, may make a valid 
 demand for dower upon the general agent of the owners, within the 
 State, who has authority to protect their interests in the land. Hunt 
 V. HotchMss, 64—241. 
 
 34. If one who has no right to lease a building does so, and his 
 agent receive the rents, the owner of the building may recover from 
 the agent what rents are in his hands. Wright v. Williamson, 67 
 —524. 
 
 35. There is no rule of law which prohibits a man from mortgag- 
 ing to an agent, in order to procure credit from his principal, or which 
 should prevent the agent to whom such mortgage was given from en- 
 forcing the same as the trustee of his principal. Varney v. Sawes, 
 68—442. 
 
 See Trust, 14, p. 550. 
 
 VI. FACTORS. 
 
 36. If a foreign factor sells goods in his own name, and receives in 
 part payment therefor, his own check and the balance in money, the 
 principal can not recover the price of the goods sold from the vendee, 
 if the latter has no knowledge of the vender's representative charac- 
 ter. Traub v. Milliken, 57 — 63. 
 
 87. It seems that a factor may warrant the soundness of flour sold 
 on commission, when not restricted by positive instructions. Bartr 
 doll V. Kehler, 60—37. 
 
 38. If one buys of, or makes a payment to a commission merchant, 
 after the revocation of his authority, the purchase and payment are 
 alike valid, if the person purchasing or paying is ignorant of the re- 
 vocation. Jones V. HbdgJeins, 61—480. 
 
 39. Where the owner of goods, under the care and control of a 
 commission merchant, with authority to sell, sold them to the plain- 
 tiff, and afterwards the commission merchant, ignorant of the prior 
 sale, sold and delivered them to a third person ; it was field, that the 
 factor was not liable to the purchaser from the owner for their value, 
 after demand and refusal to deliver the goods. lb. 
 
 VII. PLEADING AND EVIDESTCE. 
 
 40. One who has distinct grounds of action against principal and 
 agent ; against the agent for his own negligence, against the principal 
 because the law makes him responsible for the neglect of his servant, 
 cannot recover against both in one suit. Campbell v. Portland Sugar 
 Company, 62 — 552. 
 
 41. A plaintiff who had obtained a verdict against a principal and 
 his agent for injuries caused by the negligence of the agent was not 
 allowed to elect against which of the parties he would discontinue to 
 avoid the consequence of the misjoinder, but was required to discon- 
 tinue as to the principal, it appearing that the verdict might have 
 been enhanced by declarations of the agent. lb. 
 
 42. If a person falsely represents that he is the authorized agent of 
 another, the remedy of one contracting with him as such agent, is 
 by an action on the case for deceit. Teele v. Otis, 66—329. 
 
ALTERATION OP INSTETJMBNTS. 17 
 
 43. The declarations of an agent, in regard to a past transaction, 
 are not admissible against the principal. Partridge v. Wliite, 
 59—564. 
 
 See EviDEKCE, 144. 
 
 Law and Fact, 18. 
 Mortgage, 3. 
 Opficbe, 6, 8. 
 Plantation, 8. 
 Teovbe, 3, 8, 23. 
 
 ALTERATION OF INSTRUMENTS. 
 
 1. Note. A material alteration of a note in the hands of an in- 
 dorsee, without the knowledge of the indorser, discharges the latter. 
 Sheridan v. Carpenter, 61 — 83. 
 
 2. An alteration of a note for five hundred dollars to one for four 
 hundred is material. Hewins v. Uargil, 67 — 554. 
 
 3. Whether there be an alteration of a note and the time of it, the 
 manner of it, by whom it was made, with what authority, or design, 
 or on what grounds, are all questions of fact for the jury. Belfast 
 Bank v. Harriman, 68 — 522. 
 
 4. Bond. A town can not maintain an action against the sureties 
 on a collector's bond, the penal sum of which has been altered and 
 increased by the principal, since its delivery, with the knowledge and 
 consent of the selectmen of the town, and without the consent or 
 subsequent ratification of the sureties. Dover v. Robinson, 64 — 183. 
 
 5. Such a case is not that of a spoliation by a stranger. lb. 
 
 6. If a constable's bond is good at the time a writ is served by him, 
 he can not be made a trespasser by any subsequent avoidance of his 
 bond, through the unauthorized alteration of it by another. Four- 
 nier v. Cy?-, 64 — 33. 
 
 7. The erasure of the signatures of the selectmen, approving a con- 
 stable's bond, placed where they should not have been, is not a fraud- 
 ulent alteration. Fournier v. Gyr, 64 — 32. 
 
 See Osgood v. Millbk, 67 — 174. 
 Oeficee, 47. 
 Teusteb Peocess, 44. 
 
 AMENDMENT. 
 
 WRITS. 
 
 (a) Op Defects in Foem. 
 
 (b) Paetibs. 
 
 (o) Declaration. 
 (d) Teems. 
 
 2 
 
18 AMENDMENT. 
 
 II. OTHER LEGAL PROCEEDINGS. 
 
 III. RECORDS. 
 
 IV. OFFICER'S RETURNS. 
 V. EFFECT. 
 
 I. WRITS. 
 
 (a) Defects in Form. 
 
 1. The ad damnum of a writ returnable to the supreme court for 
 Cumberland county, originally fixed at a sum within the exclusive 
 jurisdiction of the superior court, may be increased before trial, so as 
 to bring the action within the jurisdiction of the supreme court. 
 Merrill v. Curtis, bl — 152. 
 
 2. DiEECTiON. A writ directing the attachment of specific prop- 
 erty may be amended by inserting after the word "attach," the words 
 "the goods and estate of" the defendant. Turner v. Friend, 
 59—290. 
 
 3. Rbtuen. a defect as to the time and place, at which a writ is 
 made returnable, may be amended on motion, after a general appear- 
 ance by the defendant, and the expiration of the time for filing pleas 
 in abatement. Guptil v. Home, 63 — 405. 
 
 4. Generally. An amendment should be allowed or disallowed, 
 according as it is or is not in the furtherance of justice. There can 
 be no other rule to guide the court in exercising its discretionary 
 power in such cases. Hayford v. Everett, 68 — 505. 
 
 5. When land was sold on execution, with technical and without 
 actual notice to the owners, they knowing nothing of the sale until 
 too late to redeem therefrom, and the value of the land greatly exceeded 
 the price bid for it ; the purchaser and the seller could be restored 
 substantially to their former conditions if the sale be not upheld, and 
 the owners would be serious losers if upheld, an amendment to cor- 
 rect the execution, so that the sale, otherwise invalid, should be made 
 valid, was refused. Ih. 
 
 (b) Parties. 
 
 6. New Paeties. Plaintiffs. In trover, an amendment by 
 inserting the names of other plaintiffs is not allowable. Ayer v. 
 Gleason, 60—207. 
 
 7. When the members of a voluntary association, as a Masonic 
 Lodge, bearing a certain name become incorporated under a different 
 name, and a suit is brought in the name of the voluntary association ; 
 an amendment substituting the corporate name is not allowable. 
 Marsh Biver Lodge v. Brooks, 61 — 585. 
 
 8. Defendants. In an action founded on a contract, commenced 
 against a sole defendant, the plaintiff can not under R. S., 1871, c. 82, 
 § 11, summon as additional defendants, joint promisors, unless he in- 
 tends to prosecute his action against the party originally sued, or in 
 case of his death against his personal representative. Duly v. Hogan, 
 
 9. Since the passage of § 128, laws of 1870, R. S., 1871, c. 87, § 
 10, surviving joint promisors, may be summoned in as additional 
 
AMENDMENT. 19 
 
 defendants in an action founded on a contract, when the only 
 original defendant is the personal reiDresentative of a deceased 
 joint promisor, if a joint execution can issue. Therefore _ they can 
 not be summoned as additional defendants with the administrator of 
 an insolvent estate. Ih. 
 
 10. Generally. A writ served out in the name of Charity Griffin, 
 to wit. Charity Pinkham, may be amended by striking out the words 
 "to wit. Charity Pinkham." Griffin v. Pinkham, 60 — 123. 
 
 11. A note signed A. & Co. was declared on as a note by the de- 
 fendant subscribed, "by the name of A. Jr." Held, That an amend- 
 ment by striking out tjae words, "by the name of A. Jr." was allowa- 
 ble. . JSapgood v. Watson, 65 — 510. 
 
 12. When the name of one of the obligees in a bond is "Carleton," 
 but in a suit on the bond the name of that obligee as plaintiff is given 
 as "Colton," with no averment of identity, the declaration may be 
 amended, by inserting such an averment. Colton v. Stanwood, 67 — 25. 
 
 See Post, 38, 48. 
 
 (c) Declaration. 
 
 13. New Cause of Action. An amendment introducing a new 
 cause of action is not allowable. Farmer v. Portland, 63 — 46. 
 
 14. In an action to recover (under the statute) compensation from 
 a town for the destruction of buildings by its municipal officers, to 
 prevent the spread of a fire, an amendment by a new count alleging 
 the destruction of the building by a riotous mob introduces a new 
 cause of action. lb. 
 
 15. In assumpsit on an account annexed for hay, a new count, on a 
 parol submission and award for the same hay, introduces no new 
 cause of action. 
 
 Hut a count on a parol submission and award, not of same hay, but 
 of divers controversies, does introduce a new cause of action, yet, if no 
 evidence is introduced to sustain such count, exceptions will not be 
 sustained for its allowance. Holmes v. Robinson Manf. Co., 60 — 201. 
 
 16. Where the earliest item in the account annexed was dated Jan- 
 uary 15, 1864, and the specification under the money counts was for 
 the money delivered to defendant according to the account annexed, 
 held, that an amendment to enable the plaintiff to recover sums re- 
 ceived by defendant since January 1, 1863, introduced a new cause of 
 action. Parkman v. Nutting, 59 — 398. 
 
 17. In an action by one town against another, to recover the value 
 of supplies furnished a pauper, a declaration alleging that the pauper 
 fell into distress in the plaintiff town on Dec. 2, 1868, and the plain- 
 tiffs furnished the pauper with supplies from that time to Nov. 24, 
 1869, to the amount in all of |469, maybe amended by substituting 
 1867 for 1868. Pipley v. Hebron, 60—379. 
 
 18. A declaration upon an account annexed, in favor of a physician, 
 in an action against a town for attendance upon a pauper of the town, 
 may be amended after an appeal by the defendant from the judgment 
 of atrial justice, by inserting a count under R. S., 1871, c. 24, sec. 34, 
 without terms. Polster v. China, 67 — 561. 
 
 19. In an action of covenant broken, upon the covenants in a lease 
 
20 AMENDMENT. 
 
 for not keeping in repair the outside of a house "but suffering the 
 blinds to remain in a shattered state," the plaintiff without objection 
 offered evidence relating to the damage to the window glass. When 
 the plaintiff had nearly concluded his closing argument the presiding 
 judge allowed him to amend by adding after the word "state" the 
 words "by reason whereof the window glass was broken and de- 
 stroyed." Held^ (1) that the amendment introduced no new cause of 
 action, and (2) if the defendant had objected when the evidence was 
 offered the amendment might then have been made. Potter v. Lucas, 
 59—212. 
 
 20. A declaration against the drawer of an unaccepted bill of ex- 
 change, may be amended by inserting a count for the goods for which 
 it was given. Strang v. Sirst, 61 — 9. 
 
 21. And in an action on a note given on Sunday, in settlement of an 
 account, the plaintiff had leave to amend by adding a count upon the 
 account. McAulay v. Reynolds, 64 — 136. 
 
 22. A declaration describing a note payable in money may be 
 amended by inserting a count upon a similar note payable in labor, 
 with an allegation of a demand and refusal of performance. Starbird 
 v. Henderson, 64 — 570. 
 
 23. Where the plaintiff in his specification under the money counts 
 claimed "the amount of money the defendant was owing one P., the 
 same having been transferred by said P. to the plaintiff and for which 
 the said defendant agreed to account to the plaintiff, as creditor to 
 said P.," an amendment introducing a count upon an order drawn by 
 P. upon the defendant, in favor of the plaintiff, for any balance due is 
 allowable. Howard v. Kimball, 65 — 308. 
 
 24. Bill op Items. A declaration containing only a count "for 
 balance of account" with the amount stated, but with no account an- 
 nexed, may be amended by filing, by leave of court, a biU of particu- 
 lars for a sum not exceeding the amount mentioned in the declaration. 
 Harrington v. Tuttle, 64—474. 
 
 25. In an action upon an account, some of the items of which are 
 for intoxicating liquors sold in violation of law, the plaintiff may 
 amend by striking out the items for liquors, and recover on the amend- 
 ed account. Monroe v. Thomas, 61 — 581. 
 
 26. This may be done although the account is for a stock of goods 
 sold at one time, but each article for a separate and distinct agreed 
 price. lb. 
 
 See Goodwin v. Claekb, 65 — 280. 
 
 27. In a suit to enforce a lien on a vessel, where through forgetful- 
 ness there was an omission in the specification of certain small credits, 
 and the omission was discovered before the trial and seasonably com- 
 municated to the defendant, who disclaimed any objection on account 
 of it, the plaintiff had leave to amend by crediting the sum omitted. 
 Dyer v. BracJcett, 61 — 587. 
 
 28. Libel. Where there is no imputation of professional or official 
 misconduct in the declaration in an action for a libel, but only an im- 
 putation of personal misconduct, an amendment alleging that the libel 
 was published of and concerning the plaintiff in his capacity of coun- 
 selor at law and collector of customs, does not enlarge the basis of 
 damages, and can cause no injury to the defendant. Powers v. Carey, 
 
AMENDMENT. 21 
 
 29. Misdescriptions in contracts or judgments in suit, are amend- 
 able, at the discretion of the court as to terms. Prescott v. Prescott, 
 65—478. 
 
 30. FoEM OF Action. The plaintiff having brought assumpsit 
 when that form of action could not be maintained, and it appearing 
 that the statute of limitations would prevent another suit, had leave 
 to have the writ amended, and the pleadings reformed conformably 
 to an action of tort, upon paying costs and receiving none up to the 
 date of the amendment. Rand v. Webber, 64 — 191. 
 
 31. Where in an action upon a contract, the declaration was in the 
 nature of a general count, though not teohnioaUy such, and the action 
 was tried in the same manner and upon the same proofs as if the 
 writ had contained the money counts, and the rule of damages given 
 by the court and followed by the jury would have been correct under 
 the money counts, but was incorrect as the declaration stood, the law 
 court advised the court below to permit an amendment, substituting 
 the count for money had and received in place of the original count, 
 upon the terms that neither party should recover costs in the suit ; if 
 this should be done the exceptions should be overruled, otherwise to 
 be sustained. Doherty v. Polan, 65 — 87. 
 
 32. Trespass. In trespass quare clausum, where a part of the 
 locus is described as being in the town named, an amendment de- 
 scribing it as being in another town in the same county is allowable. 
 Haynes v. Jackson, 66 — 93. 
 
 33. Writs of Entry. An insufficient description of the land in 
 the writ in a real action is amendable. Pird v. Decker, 64 — 550. 
 
 34. A writ of entry for two parcels of land may be amended by 
 striking out one of them. Howard v. Houghton, 64 — 445. 
 
 35. If the demandant in a writ of entry claims a fee when the proof 
 shows that he is entitled to a life estate in an undivided portion in com- 
 mon, the writ may be amended upon reasonable terms, so that the 
 allegations shall correspond with the proof. Parker v. Murch, 64 — 54. 
 
 36. When Made. An amendment by striking a clause from the 
 declaration, which has the efEect to reduce the plaintiff's claim for 
 damages, may be made at any time during the trial. Soule v. Bruce, 
 67 — 584. See also Topsham v. Lisbon, 65 — 449. 
 
 37. When a case is reported to the law court with the agreement 
 that if the action can be sustained upon proof of the allegations of 
 the declaration, then it is to stand for trial, otherwise a non-suit to be 
 entered, it is too late to move for an amendment of the declaration 
 before the law court. Lynde v. Rockland, 66^309. 
 
 See Ante, 31. Post, 45, 50. 
 
 (d) Terms. 
 
 38. When there are two or more defendants, the writ may be 
 amended by striking out one or more of them on payment of costs to 
 him at that time. Fuller v. Miller, 58 — 40. 
 
 39. Thus, where at a certain term, one of two defendants was de- 
 faulted, and, at a subsequent term the plaintiff discontinued as to the 
 defaulted defendant, and recovered judgment against the other, — the 
 former was held entitled to costs to the time o£ the discontinuance. 
 lb. 
 
22 AMENDMENT. 
 
 40. When a demurrer to a declaration is sustained, the plaintiff can 
 amend only upon payment of costs from the time the demurrer was 
 filed. Colton v. Stanwood, 67 — 25. 
 
 41. The power to grant amendments upon terms which are within 
 the discretion of the presiding judge, includes the power to dispense 
 with terms if, in his opinion, justice requires it. The exercise of this 
 discretion will not be examined on exceptions. Bolster v. China, 
 67—551. 
 
 II. OTHER LEGAL PROCEEDINGS AND WRITS. 
 
 42. Flowage., After a trial on the merits, and a verdict in favor 
 of the complainant (no demurrer being filed), a complaint for flowage 
 may be amended by inserting an allegation that the dam was erected 
 on land owned by the defendant. JRussell v. Turner, 62 — 496. 
 
 See Mill. 
 
 43. Decedent Estates. If commissioners to decide upon claims 
 against an estate, in fact notify the parties, and otherwise comply with 
 the directions of the statute, but omit so to state in their report, the 
 defect may be cured by amendment. Palmer v. Palmer, 61 — 236. 
 
 44. Venire. After an indictment has been found by a grand jury, 
 drawn by virtue of venu-es not having the seal of court upon them, 
 the venires cannot be amended by placing the seal of the court upon 
 them. State v. Flemming, 66 — 142. 
 
 See Aebiteation, 40. 
 
 III. RECORDS. 
 
 45. It is competent for the clerk to correct a mistake or omission in 
 the copies of papers which make part of a case reported to the law 
 court for decision, after the case had been entered upon the law 
 docket. Emery v. Legro, 63 — 357. 
 
 See Cleek oe Couets. 
 
 46. County Commissionees may correct any error of omission in 
 their records at any legal meeting. Dresden v. Go. Com., 62 — 365. 
 Levant v. Co. Com., 67 — 429. 
 
 47. JSt^q^ petition for certiorari to quash the proceedings of county 
 commissioners, in laying out a town way, because it does not appear by 
 the record that the commissioners adjudicated that the selectmen of 
 the town unreasonably refused to lay out the way, when it appears 
 that the commissioners actually made the adjudication, but through 
 negligence did not place it upon their record, which they would amend 
 if allowed, they should be allowed to do so. Dresden v. Co. Com., 
 62—365. 
 
 48. County commissioners can not, after judgment on a petition for 
 damages for land taken for a railroad, and after the right to appeal 
 has ceased to exist by lapse of time, amend the record of the judg- 
 ment by inserting, as parties, names not embraced in the petition. 
 Littlefield v. Boston and Maine B. B. Co., 65—248. 
 
 49. When one recognizance has been returned by the magistrate, 
 allowing an appeal, and duly entered upon the records, another shall 
 not be permitted to take its place so as to have the effect of another 
 and different record, without the sanction of some judge of the court 
 
AMENDMENT. 23 
 
 who is satisfied that truth and justice require it, and that the proposed 
 amendment is in accordance with the actual facts, and truly sets 
 forth the contract into which the parties entered. Ingalls v. Chase, 
 68—113. 
 
 50. The legal location of a town-way was ]3roperly alleged in the pe- 
 tition for increase of damages to the county commissioners, the allega- 
 tion presenting a case within their jurisdiction. Held, That it was 
 too late for the town, after the result of the proceedings against it, 
 and after final judgment, to cause its records to be amended so as to 
 show that the way was not legally accepted, and thereby make the 
 amended records the foundation for a petition for a writ to quash the 
 proceedings before the commissioners. Nohlehoro v. Lincoln Com- 
 missioners, 68 — 548. 
 
 IV. OFFICER'S RETURNS. 
 
 51. An ofiicer may amend his returns so as to state his fees at four 
 cents a mile each way instead of eight cents one way. Carville v. 
 Additon, 62—459. 
 
 52. In scire facias against a trustee the officer may be allowed to 
 amend his return on the execution by certifying that he kept it to a 
 date later than the date named in his first return. Storer v. Haynes, 
 67—420. 
 
 53. Amendments of an officer's return are permissible, when the 
 party to be affected, who has no rights to be affected resembling those 
 of a stranger thereto, on looking at the return as it was, must have 
 understood that the proceedings of the officer had been substan- 
 tially what the amended return shows them to have been. Knight v. 
 Taylor, 67—591. 
 
 54. While an amendment by an officer can not affect the intervening 
 rights of third parties, such parties can not make use of the officer's 
 mistake to cause a forfeiture of another's rights, which can be pro- 
 tected by the amendment. Millihen v. Bailey, 61 — 316. 
 
 55. An intervening assignee of a mortgage can not complain that an 
 amendment of an officer's return of a sale of the equity of redemption 
 makes it good so that it relates to the date of the original attachment, 
 when the return as unamended would not convey to the purchaser 
 any right to redeem, because it can make no difference to the assignee 
 who redeems the mortgage. Ih. 
 
 56. If an officer returns an execution with a certificate of a de- 
 mand upon the trustee, but without any statement of a search for 
 goods of the principal debtor, he may, after the return day, amend 
 his return by stating that he made such search. "Woods v. Cooke, 
 61—215. 
 
 V. EFFECT. 
 
 57. An amendment of the officer's return upon a replevin writ, 
 made after final judgment in the suit, can not affect that judgment, 
 as long as it is unreversed. Tuck v. Moses, 58 — 461. 
 
 See Pleading, 95. 
 Practice, 10. 
 Peobate Cotjet, 28, 85. 
 Vbedict, 10. 
 
24 ANIMALS AT LARGE. 
 
 ANIMALS AT LARGE. 
 
 1. It is sufficient to constitute the o-vmer of animals their keeper, 
 in a given case, that he possesses the means upon which a person in 
 the exercise of ordinary care, judgment, and intelligence, would rely- 
 to control their actions. Jennings v. Wayne, 63 — 468. 
 
 2. Whether or not the animals are thus in charge, is a question of 
 fact to be determined by the jury, under proper directions. Ih. 
 
 3. Such charge does not in all cases imply direct physical power to 
 control the actions of the animals. Ih. 
 
 4. The plaintiff's bull broke and entered the barn of the defend- 
 ant, who immediately, not knowing who was the owner, posted no- 
 tices thereof in three public places, and advertised the same in a daily 
 paper. Within ten days afterward, the plaintiff saw the bull, and 
 after ten days, the defendant offered to deliver the buU to plaintiff on 
 proof of property, payment of five dollars for keeping, and indemni- 
 ty against the claim of any other owner ; but plaintiff did hot comply 
 with the conditions. In thirty days, plaintiff demanded the bull. In 
 replevin, held, that defendant had no right to possession of the bull, 
 or any lien upon him, which would authorize a judgment in his favor 
 for expense of keeping, or for his damages. Mosher v. Jewett, 
 59^53. 
 
 5. In a town in which there is no pound, or pound keeper, a person 
 may legally detain in his custody, an animal taken upon his premises 
 damage feasant, and has a lien upon such animal for expenses neces- 
 sarily incurred in taking suitable care of it. Mosher v. Jewett, 63 — 84. 
 
 ANNUITY. 
 
 1. An annuity to continue "during the natural lives of" the person 
 to whom it is to be paid "and his present wife," does not cease upon 
 the death of one of them. Merrill v. Bickford, 65 — 118. 
 
 2. An annuity payable to a husband during the natural lives of 
 himself and wife, does not, upon the death of the husband, become 
 payable to the wife, but becomes assets in the hands of the husband's 
 administrator, and can be given to the widow, only by a decree of the 
 judge of probate. Ih. 
 
 See Devise and Legacy, 48. 
 
 APPEAL. 
 
 1. Fbom Teial Justices. No appeal lies from the judgment of a 
 trial justice, rendered against a defendant by his express consent. 
 Thompson v. Perkins, 57 — 290. 
 
 2. In a criminal case, within the jurisdiction of a municipal court, 
 the respondent, by going to trial, solely upon a plea of misnomer, 
 waives his right to plead anew in the appellate court, and have a trial 
 upon the merits. State v. Corkrey, 64—521. 
 
APPEAL. 25 
 
 3. Upon a plea in abatement, alleging interest in tlie magistrate 
 before whom an action is returned, and a traverse by the plaintiff, i£ 
 the magistrate decides the issue in favor of the plaintiff, and an 
 appeal taken, the burden is upon the defendant in the appellate court, 
 to show the existence of the alleged interest. Bellows v. Murray, 
 66—199. 
 
 See Rbcognizancb. 
 
 4. Peobate. Upon an appeal from a decree of a judge of probate 
 allowing a will, only those questions are open for consideration which 
 are assigned in the reasons for appeal. Barnes v. Barnes, 66 — 286. 
 
 See Pkactice, 85. 
 Peobate Cotjet. 
 
 5. School Disteict. At a legal meeting of a school district, for 
 the purpose of locating a school house, the clerk cannot prevent an 
 appeal to the municipal officers of the town, by refusing to record the 
 application, if proof of the fact and subsequent legal proceedings can 
 be made aliunde. Marhle v. McKenney, 60 — 332. 
 
 6. If the location made by the municipal officers, from any cause, 
 is not valid, the location made by the district from which the appeal 
 was taken, and which was vacated by the appeal, is not revived. 
 Norton v. Perry, 65 — 183. 
 
 See School House, 1, 14. 
 
 7. Wat. An appeal lies from the decision of the county commis- 
 sioners, rendered on a petition setting out an unreasonable refusal of 
 a town to accept a town- way, duly laid out from land under improve- 
 ment therein to a town-way, by its selectmen on the petition of an 
 owner of such land. Byron appt., 57 — 340. 
 
 8. The city council of Portland, under § 9 of their charter, laid 
 out a street across petitioner's land, for which they awarded no dam- 
 ages, and from their adjudication as to damages, an appeal was taken. 
 After the appeal a portion of the street was discontinued. Held, That 
 the petitioner may abandon the appeal with costs, or pursue it and 
 have the damages assessed for so much of the street as is not discon- 
 tinued. Curtis V. Portland, 60 — 55. 
 
 9. When the statute provides for an appeal from the decision of 
 county commissioners, to be taken before the next session of the 
 appellate court, an appeal taken on the first day of the session, and 
 after it has commenced, is too late. "Webster v. County Commission- 
 ers, 64—436. 
 
 10. On an appeal from a decision of county commissioners, laying 
 out a highway, when a committee has been appointed, one of whom 
 resigns, it is the duty of the appellant to apply to the court to fill the 
 vacancy at the term when it occurs. Bdfast v. County Commis- 
 sioners, 67 — 530. 
 
 See Statute, 21. 
 Waives, 26. 
 Way. 
 
26 AltBITEATION. 
 
 APPURTEITAlsrCE. 
 
 The plaintiffs were tenants at will, under the defendants, of a lot 
 of land, with a store upon it. They were themselves, owners of an- 
 other building (personal property), situated on the same land, affixed 
 to the rear of the store in such a manner that the two buildings could 
 be used as one. They mortgaged their own building to the defend- 
 ant, describing it as personal property, and as a "building and appur- 
 tenances." Held, That the word appurtenances did not carry with 
 the title of the building, what rights the plaintiffs had as tenants at 
 wLU of the store adjoining. Goodenow v. Allen, 68 — 308. 
 See Easement, 4. 
 Wareant, 5. 
 
 ARBITRATION. 
 
 I. SUBMISSION. 
 
 (a) Under the Statute. 
 
 (b) At Common Law. 
 
 (c) Pakol. 
 
 (d) Effect. 
 
 II. POWERS AND DUTIES OF AEBITRATOES. , 
 
 III. AWARD. 
 
 IV. RETURN OP THE AWARD TO COURT AND PROCEEDINGS 
 
 THEREON. 
 V. REMEDIES. 
 
 I. SUBMISSION. 
 
 (a) Under the Statute. 
 
 1. The plaintiff claimed to be a member of a firm, consisting of 
 himself, the defendant, and others ; that the profits earned had from 
 time to time been apportioned and paid over by the defendant, as 
 agent and business manager of the firm, to all the members except 
 himself ; and that the dividend belonging to him was retained by the 
 defendant. The defendant contended that by the articles of copart- 
 nership, members were entitled to the profits only in proportion to 
 the assessments paid ; that the plaintiff did not pay his assessments 
 for the last year, but that the defendant did pay what the plaintiff 
 should have paid, and claimed the earnings accordingly. The matter 
 in controversy between the parties was submitted to referees, who 
 found that the plaintiff was a member of the firm ; that he did not 
 pay, but that the defendant paid for him his assessment for the past 
 year ; and awarded that the defendant pay to the plaintiff the balance 
 of the dividend earned by his share, after deducting the money paid 
 by the defendant for the plaintiff and certain interest and bonus. On 
 motion to accept the report of the referees, held, That the report be 
 accepted. Stanwood v. Mitchell, 59 — 121. 
 
 2. A. agreed to furnish to B., lumber necessary to build a vessel, 
 and B. to build the vessel and pay for the lumber with an interest in 
 the vessel at cost. A controversy arose between the parties, and B., 
 
AEBITEATION. 27 
 
 after the completion of the vessel, caused her to be enrolled in the 
 names of himself and others, not including A., as part owner. Held, 
 That A. was not limited for his remedy, to a bill in equity for a specific 
 performance, that he might maintain a personal action for the breach 
 of the contract, and that the claim was a proper one for submission to 
 arbitration under the statute. Gerry v. Eppes, 62 — 49. 
 
 3. A complaint for flowage may be submitted to referees, under the 
 statute authorizing the submission of "all controversies which may be 
 the subject of a personal action," when it does not appear that the 
 title to real estate is necessarily involved, and their judgment is valid 
 unless it appears that they attempted to pass upon such title. Quinn 
 V. Besse, 64—366. 
 
 4. A submission signed by the parties, recited that they "do hereby 
 submit all demands, claims and accounts which the said W. H. Deer- 
 ing (plaintiff), has against the city of Saco, on account of the con- 
 struction of said Gooch street bridge, or growing out of, or resulting 
 from the same in any way," etc. Held, That the claim was sufficient- 
 ly specified and signed and being incorporated into the submission, 
 was "annexed," in compliance with R. S., c. 108, § 2. Deering v. 
 Saco, 68—322. 
 
 5. If the plaintiff does not annex a specific demand to the submis- 
 sion, the defendant, being aware of the fact, must raise the question 
 before the referees, or it will be considered as waived. lb. 
 
 (b) At Common Law. 
 
 6. The claim to be investigated by arbitrators, need not be stated 
 and annexed to a submission at common law. Bodge v. Hull, 
 59—225. 
 
 7. On submission of all mutual accounts between an agent and his 
 principal relating to the business of the agency, an agreement that a 
 statement of his disbursements and collections, made by the agent, 
 and annexed to the submission, shall be taken to be correct, does not 
 preclude the arbitrator from allowing the agent for other disburse- 
 ments by him in the business, and not included in the statement. 
 Adams v. Macfarlane, 65 — 143. 
 
 8. Correct in such case does not mean complete. lb. 
 
 See Post, 17, 18. 
 
 (c) Parol. 
 
 9. In order to make an award upon a parol submission binding, and 
 a bar to an action upon the original claim, it must be proved that the 
 parties mutually and concurrently agreed to abide by it. Patterson 
 V. Triumph Ins. Co., 64 — 500. 
 
 (d) Effect. 
 
 10. When it is plain from the terms of the agreement to refer an 
 action pending, that it was the intention of the parties that the cause 
 should remain upon the docket of the court, and that the award should 
 be returned to court and judgment then entered in accordance with 
 the award, there is no discontinuance of the action. Hearne v. 
 Brown, 67 — 156. 
 
28 AUBITEATION. 
 
 11. In such case, if either of the referees declines to act, the cause 
 will stand for trial. Ih. 
 
 II. POWERS AND DUTIES OF ARBITKATOES. 
 
 12. There seems to be no reason why arbitrators under the statute, 
 may not make a valid award for the transfer of the title and posses- 
 eion of any chattels, which are the subject of a contract, when the 
 mutual claims and rights of the parties under that contract are sub- 
 mitted to them, provided the award makes certain what it is which is 
 to be transferred. Gerry v. Mppes, 62 — 49. 
 
 13. "When a claim for a breach of a contract to make a payment in 
 specific articles is submitted to arbitration, it is competent for the 
 arbitrators to order the payment of their award, to be made in the 
 particular mode mentioned in the original contract of the parties. lb. 
 
 14. A. agreed to furnish to B. lumber necessary to build a vessel, 
 and B. to pay for it with an interest in the vessel at oost. After the 
 completion of the vessel, B. caused her to be enrolled in the names of 
 himself and others, not including A., as part owner. All claims of the 
 parties against each other, growing out of the contract, were referred 
 to arbitrators. Seld^ That the arbitrators did not exceed their au- 
 thority in awarding that B. should convey to A. a specified part of the 
 vessel in part payment for the lumber furnished by him, and should 
 pay for the balance a small sum in cash. lb. 
 
 15. CoNCLTJSivB Judges of the Law. If an action be referred by 
 a rule of court, which contains no restriction upon the powers of the 
 referee, his award upon the law, as well as upon the facts, is conclusive. 
 Satch V. Hatch, 57 — 283. Morse v. Morse, 62—443. Mitchell v. 
 Dochray, 68—82. 
 
 16. On the submission of a claim against a city, the fact that the 
 contract submitted was void, because in contravention of R. S., 1871, 
 c. 3, § 29, was raised before the referees. The submission was uncon- 
 ditional. Held, That in the absence of any suggestion tending to 
 impugn the integrity of the tribunal selected by the parties, their 
 decision in favor of the plaintiff was final. Deering v. S<xco, 68 — 322. 
 
 17. In a rule of court, the clause "the rights of parties under offer 
 to be defaulted to be preserved," is simply directory, and leaves those 
 rights to the determination of the referees. Hatch v. Hatch, 
 57—288. 
 
 18. The submission of a controversy, by rule, '■Ho be decided accord- 
 ing to the principles of law" does not require the referees to report 
 the facts and their conclusions upon them to the court ; but they are 
 equally the judges of the law and the facts. Plummer v. Stone, 
 65—410. 
 
 19. Costs. A referee under rule of court, may award costs as he 
 sees fit. Hatch v. Hatch, bl — 283. Morse v. Morse, 62 — 443. 
 
 20. When a suit upon a mortgage is unconditionally referred by rule 
 of court, it is the duty of the referee to determine the amount for 
 which the conditional judgment should be rendered. Fales v. Herrv- 
 enway, 64 — 373. 
 
 21. Rbheakinq. "While it is the duty of referees to make their 
 report in the first instance, within the time specified in the submis- 
 sion, they may, even against the protest of one of the parties, give 
 
ARBITEATION. 29 
 
 the parties a new hearing, and make a new report after that time, 
 when authorized by a recommitment of the report first made. Hickey 
 V. Veazie, 59—282. 
 
 22. Admissiok of Testimontt. If the submission contains no 
 provision in relation to the rules of evidence that shall govern the 
 referees, they are not governed by the rules of the common law, but 
 may receive the statements of parties, without requiring them to be 
 first sworn. Sanborn v. Paul, 60 — 325. 
 
 23. Where the subject of the dispute was a written contract, it mat- 
 ters not that the signatures were not proved, if the referees had the 
 right one. lb. 
 
 24. Referees may receive testimony which by the rules of the com- 
 mon law, would be inadmissible. Smith v. Gorman, 41 — 405. 
 Hagar v. N. M. Insurance Co., 63 — 502. 
 
 III. THE AWARD. 
 
 25. The delivery to the parties by arbitrators of a paper, contain- 
 ing a detailed statement of their conclusions, but not designed to be 
 their formal award, will not prevent them from making and publish- 
 ing a formal award. Bodge v. Hull, 59 — 225. 
 
 26. Surplusage. In a real action, referred by rule of court, the 
 referee decided that the plaintiff was entitled to the land described 
 in his writ, and further stated where he found the true line between 
 the parties to be, and this last statement was held not to vitiate the 
 award. Smith v. Folsom,, 62 — 432. 
 
 27. A loose memorandum, containing certain legal propositions, re- 
 turned by the referee with the papers in the case, but not made a part 
 of his report (which is peremptory), will not avail to impose on the 
 court the duty of revising his decision, and is properly excluded. 
 Morse v. Morse, 62 — 443. 
 
 28. Statement oe Items. Upon a submission providing that the 
 arbitrator may make a statement and adjustment of certain accounts 
 between the parties, an omission by the arbitrator to include in his 
 award a detailed statement of all the items does not render it invalid, 
 neither party requesting it, and he having the means of furnishing it 
 at any time when requested. Adams v. Macfarlane, 65 — 143. 
 
 29. Construction. When an action is referred by an unrestricted 
 rule of court, and the referee makes an award and reports that his 
 award is absolute unless he has authority to submit to the court a 
 question of law therein stated, his decision as to the law is conclusive. 
 Mitchell V. Dochray, 63 — 82. 
 
 IV. THE KETURN" OP THE AWARD INTO COURT AND PRO- 
 
 CEEDINGS THEREON. 
 
 30. WTiile it is the duty of referees to make their report in the first 
 instance within the time specified in the submission, they may, even 
 against the written protest of one of the parties, give them a new 
 hearing and make a new report after the specified time, when author- 
 ized so to do by a recommitment of the former report. Hickey v. 
 
 Veazie, 59—282. 
 
 31. A report of referees made under a statute submission stipulat- 
 ing that the report shall be made to the January term, 1871, can not 
 
30 AUBITEATION. 
 
 be made to and accepted at the January term, 1872, although the par- 
 ties, on Jan. 26, 1871, indorsed upon the submission that "in case the 
 court should adjourn before the referees should make up their report, 
 when it is made up, it is to be entered on the docket at the term at 
 which it is made returnable." Berry v. Sands, 60 — 99. 
 
 32. When a written submission stipulates that the arbitrator shall 
 make his award within a specified time, the parties may waive the 
 provision, and extend the time by a subsequent verbal agreement. 
 Adams v. Macfarlane, 65 — 143. 
 
 33. Objections to. When the report of referees itself presents a 
 question of law upon the determination of which the result is made 
 to depend, the 21st rule of the supreme court, requiring parties ob- 
 jecting to the acceptance of the report to file their objections in writ- 
 ing, does not apply. Curtis v. Portland, 59 — 483. 
 
 84. Exceptions. That a presiding judge accepts or rejects a re- 
 port of referees, appointed under a rule of court, being a matter 
 within his discretion, affords no ground for exceptions. Furbish v. 
 Ponsardin, 66 — 430. 
 
 35. If a presiding judge allows a motion to recommit the report of 
 a referee, "as a matter of law," the legal power of the court to exer- 
 cise the discretion to recommit may be presented by exceptions. 
 Pitman v. Thornton, 65 — 95. 
 
 36. The general rule is that the court will not inquire into an al- 
 leged mistake of referees in law or fact, not apparent upon their 
 award, unless upon suggestion of misconduct on the part of the 
 referees, or some fraud or imposition on the part of the party at- 
 tempting to set up the award, by means of which the referees were 
 misled. Hagar v. New England Ins. Co., 63 — 502. 
 
 37. If misconduct of referees, sufficient to justify the setting aside 
 their report is known when their report is presented for acceptance, 
 the party thereby aggrieved has a remedy by exceptions, if the report 
 is accepted. Dennison v. Portland Co., 60 — 519. 
 
 38. If the facts are not known when the report is accepted, but are 
 subsequently discovered, the case will stand like any other case of 
 newly discovered evidence. The remedy of the party will be by 
 petition for review. lb. 
 
 39. The neglect of the counsel for the aggrieved party to be pres- 
 ent at the acceptance of the report, of itself affords no ground for 
 relief. lb. 
 
 40. Amendment. A referee under a rule of court may, with the 
 permission of the presiding judge, amend his report after it has been 
 returned to court, so as to make it more intelligible, without a formal 
 order to recommit. Fales v. Semenway, 64 — 373. 
 
 V. REMEDIES. 
 
 41. If an award is in part for the payment of money and in part 
 for the performance of some particular act, as to deliver a certain 
 chattel, assumpsit is the proper remedy for the failure or refusal of 
 the party to perform the act directed. Gerry v. Eppes, 62 — 49. 
 
 See EsTOPPBi, 24. 
 Pleading, 79. , 
 Review, 3. 
 
ABEBST. 31 
 
 ARREST. 
 
 1. Mesne Process. On a writ against two defendants the body of 
 one may be arrested and the property of the other attached. Connor 
 V. Madden, 57 — 410. 
 
 2. The oath required to authorize the arrest on mesne process of a 
 defendant, in an action on a contract, may be administered by the 
 plaintiff's attorney. McLean v. 'Weeks, 61 — 277. 
 
 3. The arrest of a debtor on mesne process upon an affidavit that 
 he is about to depart and take with him "property or means of own;" 
 omitting the word his, is illegal, and an action based on such certifi- 
 cate will be dismissed on motion seasonably made. Bailey v. Car- 
 mile, 62—524. 
 
 4. An affidavit that the property about to be taken by the debtor 
 is more than is required for "immediate support" is not sufficient. It 
 should state that it is more than is required for "his immediate sup- 
 port." Proctor V. Lothrup, 68 — 256. 
 
 5. To justify the affidavit necessary to procure the arrest on mesne 
 process of a debtor, the affiant must not only believe that the debtor 
 is about to leave the State, but must have good reason for so believ- 
 ing. Gee V. Patterson, 63 — 49. 
 
 6. The service of a writ by arrest of the defendant is not illegal, or 
 sufficient ground for abatement, simply because he was not a resi- 
 dent of, nor within the State, at the time the oath that he was about 
 to depart, necessary to authorize his arrest, was taken. Adams v. 
 Macfarlane, 65 — 143. 
 
 7. It seems that the arrest, upon a writ, of either a resident or non- 
 resident of the State is legal, if the certificate endorsed on the writ 
 shows that the plaintiff has made the requisite oath, unless the plain- 
 tiff's good faith in so doing is impeached. lb. 
 
 8. Execution. An execution issued on a judgment founded on a 
 prior judgment on a contract, when the original debt remaining due, 
 exclusive of interest, is less than ten dollars, does not run against the 
 body. Kelley v. Morris, 63 — 57. 
 
 9. Criminal. A mail carrier, who is engaged in carrying the 
 United States mail, is liable to arrest by an officer holding a warrant 
 for his arrest for a violation of the liquor law. Penny v. Walker, 
 64—430. 
 
 See Abatement, 16. 
 Presumption, 25. 
 Practice, 8. 
 
 ARSON. 
 
 1. On the trial of an indictment under R. S., 1857, c. 119, § 3, for 
 setting fire to a meeting house, proof that the building was occupied 
 as a house for public worship is sufficient. State v. Kingsbury, 58 • 
 
 JiOO, 
 
 2. The owner of a dwelling house, who burns it in the night time, 
 is not liable to an indictment for arson. State v. Saynes, 66 307. 
 
32 ASSAULT. 
 
 3. Nor, when the house is insured, is one, who, at the request of 
 the owner, sets fire to it, for the purpose of defrauding the insurance 
 company, guilty of arson. lb. 
 
 4. An indictment under R. S., 1857, c. 119, § 1, need not expressly 
 allege the intent when the arson is committed by setting fire directly 
 to the dwelling house of another. State v. Watson, 63 — 128. 
 
 5. Aliter, when the fire was set to an adjoining building. lb. 
 
 6. In an indictment charging the defendant with setting fire to a 
 barn with intent to burn a dwelling house, which was thus burned, it 
 is not necessary to allege that any one was lawfully in the dwelling 
 house. lb. 
 
 See Evidence, 167. 
 
 ASSAULT. 
 
 1. One who seeks to justify ?i prima facie case of assault must show 
 that no more force was used than was suited in kind and degree to the 
 exigencies of the situation, or the justification fails. Sanson v. 
 European ,& N. A. B. B. Co., 62—84. 
 
 2. There was an affray between the plaintiff and one of the de- 
 fendants in the afternoon. In the evening of the same day the 
 defendants assaulted the plaintiff at his house. Held, That the 
 defendants could show the fact of the affray in the afternoon, but not 
 its details, in mitigation of damages for the last assault. Currier v. 
 Swan, 63—323. 
 
 3. In an indictment for assault and battery, or assault with intent 
 to murder, the name of the person assaulted is used only for purpose 
 of identification, and when such person is commonly known by two 
 names the use of either is sufficient. State v. JBundy, 64 — 507. 
 
 4. In a civU action for an assault and battery the defendant can not 
 show that the plaintiff was an irritating and provoking man, and had 
 trouble with others in reference to transactions similar to the one 
 which was the occasion of the assault. Macintosh v. Bartlette, 
 67—130. 
 
 5. In an action for an assault and battery evidence of the peaceful 
 character of the defendant is not admissible. Soule v. Bruce, 67 — 584. 
 
 6. The plaintiff was assaulted by the defendant, while interfering 
 to protect her father in an affray between them. Held, that, while 
 the fact of the affray and an injury to her father may have been ad- 
 missible in evidence, the detailed account of its subsequent conse- 
 quences would not be. Flint v. Bruce, 68 — 183. 
 
 7. It is not the law of this State that the civil remedy of a person 
 injured by a felonious assault and battery is suspended till the offender 
 has been prosecuted criminally. Nowlan v. Griffin, 68 — 235. 
 
 See Assignment, 3. 
 
 DiVOECE, 3. 
 
ASSIGNMENT OF OHOSBS IN ACTION. 33 
 
 ASSESSORS. 
 
 1. A person whose property has been sold to pay an assessment 
 which was illegal for want of jurisdiction in the assessors, he not be- 
 ing a resident of the town, having brought assumpsit against the town 
 and recovered judgment therein, which has been satisfied, cannot 
 afterwards maintain trespass against the assessors. Ware v. Percival, 
 61—391. 
 
 2. A town making no choice of assessors, voted that the selectmen 
 act as assessors, and the persons so chosen made oath "faithfully and 
 impartially to discharge the duties of selectmen and assessors ;" it was 
 held that this was a full compliance with R. S. of 1857, c. 6, § 61, and 
 that the selectmen were assessors. Gould v. Monroe, 61 — 544. 
 
 3. An assessment made by persons so chosen, may be properly signed 
 by them as assessors, without any statement that they are selectmen 
 acting as assessors. lb. 
 
 4. The neglect or refusal of the person chosen as collector by the 
 town, to take the oath or furnish the requisite bond creates a vacancy 
 in that office which may be filled by the assessors by appointment, 
 and there need be no record of such neglect or refusal in order to 
 render the appointment valid. lb. 
 
 The record of the warrant to the collector is a sufficient record of 
 his appointment. lb. 
 
 5. If the collector neglects and refuses to complete the collection 
 of taxes committed to him, and surrenders the lists to them, the 
 assessors may appoint another person to complete the collection. 
 Garville v. Additon, 62 — 459. 
 
 See Officer, 14. 
 Plantation, 10. 
 Tax. 
 Town, 55. 
 
 ASSIGNMENT OF CHOSES IN ACTION. 
 
 1. A verbal assignment of an account made in good faith, for a val- 
 uable consideration, will transfer such an interest in the account as 
 will be protected to the assignee in a trustee process. Simpson v. 
 Mbber, 59—196. 
 
 2. At a legal meeting held January 28, 1865, the defendant town 
 voted a bounty of 1300 to each person regularly mustered into the 
 military service of the U. S., as a substitute for an enrolled man, and 
 counted on the town's quota; and at a meeting held February, 1865, 
 the vote was reconsidered. At a meeting held March, 1865, they vot- 
 ed a bounty of $300 to any enrolled man who should furnish a substi- 
 tute. The plaintiff, thereupon, in accordance with a parol agreement 
 with one Clark, in consideration of $600, entered the service as his 
 substitute, Clark to have all the plaintiff's bounties. The last two 
 meetings having been decided by the full court to be illegal, one 
 Treat procured a written assignment of the plaintiff's claim to a boun- 
 ty from the town, with full knowledge of the parol assignment to 
 
 3 
 
34 ASSIGNMENT OP CHOSES IN ACTION. 
 
 Clark, and brought this action to recover the bounty under vote of 
 January, 1865. Held, that the parol assignment was valid, and that 
 the action could not be maintained. Sprague v. Frankfort, 60 — 253. 
 
 3. Damages foe Assault. No effectual assignment of a sum 
 that may be recovered in an action of trespass for a personal assault, 
 can be made before final judgment. McGlinchy v. Hall, 58 — 152. 
 Averill v. Longfellow, 66 — 237. 
 
 4. Of Thing Not Existing. An assignment of a mere expecta- 
 tion of earning money, if there is no contract of any kind on which 
 to found the expectation is of no effect. Emerson y. E. & N. A. 
 B. R. Co., 67—387. 
 
 5. Permit. An assignment of a permit to cut timber, transfers to 
 the assignee the trees afterwards cut under it, so as to enable him to 
 maintain trespass against an officer attaching the property as the prop- 
 erty of the assignor. Sawyer v. Wilson, 61 — 529. 
 
 6. Patent. A certificate that a person is "the owner of five for- 
 tieth parts" of the letters patent and property of an incorporated but 
 unorganized corporation, and stipulating that the holder shall be en- 
 titled to receive, upon surrender its equivalent value in shares in the 
 capital stock of the company when organized, does not operate as an 
 assignment to the holder of any interest in the letters patent. Sope 
 Iron Works v. Holden, 58 — 146. 
 
 7. Suits. Where, after judgment on a marine policy recovered in 
 the name of the owner of one-eighth interest, alone, the owner of the 
 remaining seven-eighths, settled with the attorney recovering judg- 
 ment, by agreeing with him as to the amount of fees he should re- 
 ceive, and receiving from him the balance of a partial collection on 
 the execution, after the deduction of the amount of his fees, together 
 with the execution, the balance of which the defendant subsequently 
 collected, and thereupon agreed to pay to the assignee of the one- 
 eighth interest, his «hare thereof ; it was held, that the acts of the de- 
 fendant constituted a ratification of the original suit, and that assump- 
 sit would lie upon the special promise to the assignee. Yose v. Treat, 
 uo — o /y. 
 
 8. If a person whose own note is deposited in trust for others, 
 among whom its proceeds are to be divided, obtain possession of it 
 without the consent of the cestuis que trust, an action for money had 
 and received brought against him, in the name of the depositary, by 
 and for the benefit of one of those entitled to a share of the amount 
 due on the note, is maintainable ; nor can the suit be discontinued by 
 the nominal plaintiff, or his assignee without the assent of the party in 
 interest. Penobscot H. B. Co. v. Mayo, 60 — 306. 
 
 9. The bona fide assignee of a chose in action, will, in general, be 
 protected against the release of the nominal plaintiff, executed after 
 notice to the defendant of the assignment ; but where the payee of a 
 negotiable promissory note fraudulently indorsed it before maturity, 
 and without value to the plaintiff, for the purpose of excluding any 
 inquiry into the fraudulent inception of want of consideration of the 
 note, and by fraudulent assertions and devices concealed the true 
 relations of the parties — in an action of scire facias to obtain an alias 
 execution upon the judgment recovered upon such note, in favor of 
 the indorsee against the maker. Held, that the court would not set 
 
ASSIGISMENT FOB BENEFIT OF CEEDITOES. 35 
 
 aside a release from the judgment creditor to the defendant, but let 
 it have its legitimate effect. Atkinson v. Runnels, 60 — 440. 
 
 10. The assignee of a judgment for debt and costs may maintain 
 an action of debt thereon, in his own name, under the, act of 1874. 
 Wood V. Decoster, 66—542. 
 
 11. An assignment of a contract and of future earnings under it is 
 not the assignment of wages, and need not be recorded under c. 93, § 
 1, of the acts of 1876, providing for the record of assignments of 
 wages. Augur v. Couture, 68—427. 
 
 See Pleading, 27, 28, 92. 
 Peacticb, 58. 
 Railroad, 32. 
 Teusteb Peocbss, 18, 34. 
 Trespass, 21. 
 
 ASSIGNMENT FOR THE BENEFIT OF CREDITORS. 
 
 1. AocouN"T OE Assignee. The requirement that the account of 
 the assignee shall be rendered to the judge of probate, within six 
 months, does not require that it shall be allowed within that time. 
 Thomas v. Clark, 65—296. 
 
 2. The true consideration for an assignment, is the agreement of 
 the assignee to perform the trusts imposed upon him, and this in law, 
 constitutes an adequate consideration. lb. 
 
 8. Affidavit to Assignment. An aflSdavit by the assignor that 
 he has "placed and assigned all his property of every description in 
 the hands of said A. B., to be divided among all my creditors, who 
 shall become parties to said assignment within three months from the 
 date thereof, in proportion to their respective claims," signed and 
 sworn to, is a suiEcient compliance with the requirement that the 
 assignor shall make oath to the truth of the assignment. li. 
 
 4. A clause limiting the responsibility of the assignee to "actual re- 
 ceipts or willful defaults," does not vitiate an assignment, as it does 
 not release the assignee from the use of due diligence to collect the 
 debts due the assignor. lb. 
 
 5. Trustee Process. The provision of the statute protecting 
 property in the hands of the assignee from attachment, or trustee 
 process, for six months or two years if the probate court extend the 
 time so long, does not intend that after that time, the assignee may be 
 held as trustee in favor of a creditor who has not become a party to 
 the assignment. At no time can the assignee be charged as trustee 
 for more than the excess in his hands after payment of the debts of 
 the creditors who have become parties to the assignment. lb. 
 
 6. Prefeebnoe. An insolvent debtor sold certain property to the 
 firm of W. & G. for the purpose of giving them a preference over 
 his other creditors, and then made an assignment to W. for the 
 benefit of his creditors. W. settled his account in the probate court, 
 accounting for all the property that passed to him by virtue of the as- 
 signment, except the goods conveyed to W. & G., and paid the same 
 to the creditors, who became parties, and was afterwards summoned 
 
36 ASSUMPSIT. 
 
 as trustee of the debtor by a creditor who did not become a party to 
 the assignment. Held, that the assignee was not chargeable, either 
 on the ground of the preference, or on the ground that the goods sold 
 to W. & G. passed to "W., as assignee, and as he did not account for 
 them in his settlement in the probate court, he was chargeable for the 
 amount remaining in his hands after payment of the debts and ex- 
 penses. Hanscom v. JBuffum, 66 — 246. 
 
 7. Remedy ijt Case of Peepeeence. When an insolvent debtor 
 conveyed certain property to the firm of W. & G., for the purpose of 
 giving them a preference over his other creditors, and then made an 
 assignment to W. for the benefit of his creditors. Held, that the 
 conveyance to W. & G. could be avoided only by those creditors who 
 became parties to the assignment, that the remedy for those creditors 
 who became parties to the assignment, was in the probate court when 
 the assignee settled his account, and that the assignee was not charge- 
 able as trustee at the suit of a creditor who did not become a party 
 to the assignment. lb. 
 
 8. ASSIGSMEJTT IN CONTEAVENTIOlSr OF THE StATTJTE. A bill of 
 
 sale of all the stock in trade, and an assignment of the debts due an 
 insolvent firm, given by the firm to one who has knowledge of the 
 insolvency, for the purpose of enabling the assignee to pay a stipulated 
 per centage to certain specified creditors of the firm, is in contraven- 
 tion of the statutes regulating assignments, and a creditor not a party 
 to the transaction may attach the property in the hands of the assignee 
 by trustee process. Whitney v. Kelley, 67 — 377. 
 See SuEETY, 16. 
 
 ASSUMPSIT. 
 
 I. GENERALLY. 
 
 II. IMPLIED PROMISE. 
 
 III. MONET COUNTS. 
 
 IV. PLEADING AND EVIDENCE. 
 
 I. GENERALLY. 
 
 1. Assumpsit will not lie by a resident owner to recover from his 
 town, money paid under protest to redeem land sold for taxes, raised 
 for a legal purpose, but assessed in an irregular and defective manner. 
 Rogers v. Greenhush, 58 — 390. 
 
 2. Nor will it lie to recover damages sustained by a tax payer, "by 
 reason of the mistakes, errors, or omissions" of the assessors, collec- 
 tor, or treasurer. Oilman v. Waterville, 59 — 491. 
 
 3. Mistake. The plaintiff and defendant being joint tenants of 
 a certain parcel of land, agreed to cut the wood and timber there- 
 from, and to share equally the expenses and proceeds of the opera^ 
 tion. The plaintiff's expenses amounted to 13,088.58, and the defend- 
 ant's to $421. In their settlement, the plaintiff paid the defendant 
 11,727.29, a sum equal to one-half of the whole expense. Held, that 
 
ASSUMPSIT. 37 
 
 the plaintiff paid the defendant too much by $421, and that it may- 
 be recovered back in action of assumpsit. Millett v. Holt, 60 — 169. 
 
 4. In case of a mistake in writing a contract, if the parties subse- 
 quently settle upon the basis of the contract as it should have been 
 written, and a verbal promise is made to pay or allow the balance thus 
 found, such promise will be enforced. Wiggin v. Goodwin, 63 — 389. 
 
 5. No action can be maintained for services rendered, without the 
 knowledge or request, expressed or implied of the defendant, not- 
 withstanding he promised to pay therefor after their rendition. San- 
 derson V. Brown, 57 — 308. 
 
 6. Decedent Estates. One son cannot recover in assumpsit 
 against another, his distributive share of money left by their father 
 at the time of his decease in the possession of their mother, and by 
 her delivered to the defendant,^who appropriated it to his own use. 
 O'Donnell v. O'Donnell, 57—24. 
 
 7. A widow of an intestate can not maintain assumpsit against a 
 third person to whom an insurance company had paid a sum due on 
 an insurance on the life of the intestate, to recover the proportion 
 which descends to her by virtue of the statute. J^ee v. Chase, 
 58—432. 
 
 8. When a legacy is by the wiU to be placed in the hands of the 
 executor, to be paid to the legatee as he may need it, and the execu- 
 tor gives bond as testamentary trustee, and dies before paying any part 
 of the legacy, and the legatee also dies, the administrator of the leg- 
 atee may maintain assumpsit against the administrator of the execu- 
 tor, or trustee, to recover the legacy. JPrescott v. Morse, 62 — 447. 
 
 9. Assumpsit lies in favor of the heirs at law, to recover of the 
 administrator, the rents and profits of the real estate of a deceased 
 insolvent debtor. Kimball v. Sumner, 62 — 305. 
 
 10. When Equity is the Peopbe Remedy. On November 27, 
 1860, the plaintiff conveyed with co^'enants of warranty, certain real 
 estate to one J.; but some doubt having been thrown upon the title 
 by a levy of a creditor of the plaintiff 's husband, the plaintiff, in ac- 
 cordance with a written agi-eement with her grantee, deposited with 
 the defendant the consideration money, "to remain with him as col- 
 lateral to said warranty for a reasonable and satisfactory time." On 
 June 27, 1870, the grantee having deceased, and the premises passed 
 to his devisee, the plaintiff demanded the money of the defendant, 
 and, upon refusal to deliver it up, sued him in an action for money 
 had and received. Held, that the action was not maintainable, but 
 that a suit in equity was the proper remedy. Ramsdell v. Butler, 
 60—216. 
 
 ll.AwAED. When an award under a statute submission, is in 
 part for the performance of some particular act, as to deliver a par- 
 ticular chattel, or the like. Assumpsit is the proper remedy if the 
 defendant fails to perform. Gerry v. Eppes, 62 — 49. 
 
 12. Demukeage. When a vessel is unreasonably detained at the 
 port of delivery before being unloaded, and the shipper becomes lia- 
 ble to the owner for damages in the nature of demurrage, such dam- 
 ages may be recovered in assumpsit. Hull v. Barker, 64r — 339. 
 
 13. If the owner of a building, taken and used as a hospital for 
 small pox patients, by the health ofiicers of a city would recover for its 
 
38 ASSUMPSIT. 
 
 use on the ground of a contract, or that it was lawfully impressed, 
 the suit should be in assumpsit with proper averments to establish the 
 legal liability of the city to pay rent, or a just compensation. Lynde 
 V. Rockland, 66^309. 
 
 14. ISTbglect of Official Duty. "When a legal duty is imposed 
 by competent authority, upon a municipal corporation, assumpsit may 
 be maintained for neglect of performance. Farwell v. Rockland, 
 62—296. 
 
 15. The broad remark made by the court in Bailey v. JButterfield, 
 14 — 112, that assumpsit as implied by law, is never an appropriate 
 remedy against a public officer for neglect or misbehavior in office, 
 might under some unusual condition of things need qualification. 
 School District v. Tebhetts, 67—239. 
 
 II. IMPLIED PROMISE. 
 
 16. If a laborer, hired for a per diem compensation, payable 
 weekly, to work in a grist mill, works nights, after his legal day's 
 work is done, at the request of his employer and for his benefit, the 
 law implies a promise on his part to pay for such labor. Rachelder 
 V. Biddeford, 62—526. 
 
 17. By accepting a deed oi real estate, subject to all the grantor's 
 liabilities to the grantor's lessee, the grantee assumes performance of 
 the condition from which the law will imply a promise to a legal 
 assignee of the lessee. Rising Sun Lodge v. Ruck, 58 — 426. 
 
 18. Thus, in December, 1850, the owner of a two story building, 
 by a lease under seal demised to the treasurer of a lodge of Odd Fel- 
 lows, the upper room, with the right to assign the same, for the term 
 of ninety-nine years, covenanting in the lease that the lessor's "ad- 
 ministrators and assigns shall, at their own cost, at all times during 
 said term, well and sufficiently repair, maintain, and keep the outside 
 of said building with diligence and in good and proper order and 
 condition, . . . and all the grants, covenants, and conditions herein 
 contained, shall extend to and be binding on the parties and their 
 legal representatives respectively." In April, 1861, the said treas- 
 urer assigned the lease to the plaintiffs. In January, 1866, the owner 
 of the building conveyed it to the defendant, "subject to all" the 
 grantor's "liabilities to the" plaintiifs "for the hall." Subsequently, 
 upon being notified by the plaintiffs that the roof was out of repair, 
 the defendant neglected to make the necessary repairs, whereupon 
 the plaintiffs made them, and brought indebitatus assumpsit to 
 recover compensation for the same. Held, that the action was 
 maintainable. lb. 
 
 19. The legislature established a police court for a city "to be 
 held at such place as the city shall provide." The judge, after notice 
 to the city to provide a place, and failure on its part to do so, hired 
 a room in which he held the court, and paid the rent therefor. Held, 
 that there was no implied promise on the part of the city to pay to 
 the judge the rent paid by him. French v. Auburn, 62—452. 
 
 20. A child, ten years of age, went to live with the plaintiff, under 
 a verbal agreement with her mother that she was to stay tiU of age for 
 her board, but left when thirteen years of age, by the act, or with the 
 consent, of the mother. Seld, that the plaintiff might maintain 
 
ASSUMPSIT. 39 
 
 assumpsit against the mother for the board of the child, less the value 
 of the child's services. Chapman v. Itich, 63 — 588. 
 
 21. The defendant conveyed a farm to the plaintiff, the deed to be 
 void if the plaintiff should fail to pay him certain notes at maturity. 
 The first note not being paid at maturity, the defendant took posses- 
 sion of the premises and leased them. Afterwards the plaintiff paid 
 the notes, took possession of the farm and brought assumpsit to re- 
 cover the rent received by the defendant. Held, that no promise 
 was implied from these facts. JBartlett v. Jones, 60 — 246. 
 
 22. Feaud. Convetance of Land. Where the fraudulent repre- 
 sentations of the seller of property, whereby the purchaser was in- 
 duced to buy, were such as give the latter the right to rescind, and he 
 does rescind the sale and surrender possession to the vender, the law 
 implies a promise, on the part of the seller, to pay the purchaser for 
 labor and materials in making reasonable repairs upon the property. 
 Farris v. Ware, 60—282. 
 
 23. Thus, the defendant fraudulently represented the water-power 
 connected with his tannery, to be sufficient to work it continuously 
 throughout the year, and the plaintiff, having no knowledge of the 
 premises and relying upon the representations, was thereby induced 
 to purchase the tannery, and thereupon, after taking a bond thereof 
 and giving his notes for the price, the plaintiff entered into possession, 
 and, under the advice of the defendant, expended large sums in re- 
 pairs ; but the water failing, the plaintiff abandoned the property and 
 notified the defendant that • he considered the contract of purchase 
 rescinded, whereupon the defendant took possession of the premises, 
 and had the benefit of the repairs. In assumpsit to recover for the 
 labor and materials in making the repairs, held, that the action was 
 maintainable. lb. 
 
 24. When a grantor bargains away a parcel of land, consisting of 
 two lots, and one gross sum is paid for the whole, but through the 
 fraud of the gi-antor, or by mutual mistake, only one of the lots is 
 conveyed by the deed, the grantee, without rescinding the contract, can 
 not recover back in assumpsit so much of the consideration money as 
 the omitted parcel was actually worth. Handy. Webber, &4: — 191. 
 
 25. The plaintiff conveyed a lot of land to the defendant by deed, 
 absolute in form, but intended as security for money borrowed, the 
 defendant verbally agreeing to give the plaintiff a bond of a later 
 date to reconvey the land on payment of a specified sum of money 
 within a specified time. The defendant afterwards refused to give 
 the bond, or to reconvey on tender of payment. Held, that assump- 
 sit might be maintained to recover the value of the land. Long v. 
 
 Woodman, 65 — 56. 
 
 26. It seems that when a promise of payment, or of some other con- 
 sideration has been relied upon, as the consideration of a conveyance, 
 and there is a refusal to perform, the other party may recover the 
 value of his property as upon an implied assumpsit. Barter v. 
 Greenleaf, 65 — 405. 
 
 27. Goods sold undbe an Express Contract. In an action for 
 goods sold and delivered under an express contract, it is not com- 
 petent for the plaintiff to abandon such contract while it is in force, 
 and recover on an implied one. Holden Steam Mill v. Westervelt, 
 67—446. 
 
40 ASSUMPSIT. 
 
 28. SiTPPOET OF Debtor in Jail. To enable a creditor to recover 
 of the debtor the sum paid for the support of the latter in jail, upon 
 execution, it is not indispensable to show a formal complaint to the 
 jailer. Any evidence which shows that the debtor knew that the 
 jailer required payment from the creditor, and that the debtor in- 
 tended that the creditor should pay his board raises an implied prom- 
 ise of repayment. Howes v. Tolman, 63 — 258. 
 
 III. THE MONET COUNTS. 
 
 29. The action for money had and received is an equitable action 
 and requires no privity of contract to support it, except what results 
 from the defendant's having money of the plaintiff which in equity 
 he ought to pay over to him. 
 
 But the equitable nature of the action is available for the defend- 
 ant as well as the plaintiff. Concord v. Delaney, 58 — 309. 
 
 30. The plaintiff town, at a legal meeting called for the purpose, 
 "voted to raise six hundred and twenty-five dollars to each man who 
 enlists to fill Concord's quota on the last call," and that "the select- 
 men hire money and pay the volunteers after they are mustered into 
 the United States service." Thereupon the selectmen hired the 
 money and paid fifty-four hundred dollars to the defendants, who 
 fraudulently assured them that pursuant to their contract with the 
 selectmen, the defendants had caused to be enlisted, accepted, and 
 placed to the quota of the plaintiff town nine men for three years 
 each, when in fact eight of the men were enlisted and credited for 
 one year only. In an action for money had and received to recover 
 back the money paid, held, that the action is maintainable, without 
 first placing the defendants in statu quo. lb. 
 
 31. To enable a plaintiff to maintain an action on the money 
 counts, it is not always necessary to show that money has been actu- 
 ally received by the defendant, if anything, even real estate, has been 
 received in lieu of money, it equally entitles the plaintiff to recover. 
 Lord V. J^ennehunh, 61 — 462. 
 
 32. Under R. S., 1871, c. 6, § 114, an action for money had and re- 
 ceived is not the appropriate remedy to recover the damages a tax- 
 payer has sustained by reason of the mistakes, errors or omissions of 
 the assessors, collector or treasurer. Gilman v. Waterville, 59 — 491. 
 
 33. The defendant originally owning three-fifths, after purchasing 
 the remaining stock of the Augusta Shovel Co., gave to the plaintiffs 
 a note of the following tenor, — "Portland, Aug. 29, 1863. One 
 month after date, we promise to pay to the order of E. Atkins & Co. 
 four hundred and forty-four dollars. Value received. Augusta 
 Shovel Co. A. D. Brown, Pres,," — which being discounted at a bank, 
 Brown paid one hundred dollars on it, and on Deo. 18, 1863, wrote 
 the plaintiffs requesting them to allow on the note a balance of ac- 
 count due him, for property of the Shovel Company, purchased of 
 him by the plaintiffs, and "to take up the note and we can arrange 
 the balance when I see you. I have written the cashier that you will 
 take care of the note." Upon receipt of the letter, the plaintiffs took 
 up the note, and the defendant subsequently promised to pay them. 
 Held, that the evidence sustained a count for money paid. Atkins 
 V. Brown, 59 — 90. 
 
 34. When the first indorser of a negotiable note has been compelled 
 
ASSUMPSIT. 41 
 
 to pay it, by a judgment in a suit commenced prior to the interven- 
 tion of the statute of limitations, he may recover the amount of the 
 maker in an action for money paid. Godfrey v. Rice, 59 — 308. 
 
 35. Thus, in May, 1859, the defendant gave his negotiable promis- 
 sory note payable on time, to the plaintiff's intestate, who indorsed it 
 to a third person who indorsed it and got it discounted. The note 
 went to protest, and the indorsers were seasonably notified. The lat- 
 ter indorser sued the former and recovered judgment in October, 1870, 
 for the amount of the note. After paying the judgment, the former 
 indorser brought this action for money paid. Held, that the action 
 was maintainable ; and that the cause of action accrued when the 
 payment was made. Ih. 
 
 36. To support a count for money paid it is not necessary that the 
 defendant be relieved from any liability by the payment. This form 
 of action is maintainable in every case where there has been a pay- 
 ment of money by the plaintiff to a third party at the request of the 
 defendant on his promise, expressed or implied, to repay it. Mmery 
 V. Hobson, 62—578. 
 
 37. In an action for money had and received, where the defendant 
 has the right to retain a portion of the money, the plaintiff, having 
 the means of proving it, must show that the defendant has not 
 retained more than he is entitled to. Vctrney v. Sathorn, 65 — 481. 
 
 38. Feaud. Where the seller agrees to sell a stock of goods at the 
 Boston prices of similar goods, but fraudulently makes out a bill with 
 prices above Boston prices, if the purchaser is thereby deceived and 
 pays the bill, he may recover of the seller, in an action for money had 
 and received, the difference between the Boston prices and those 
 stated in the bill as Boston prices. Lord v. French, 61 — 420. 
 
 39. And where the seller agrees to sell an article at cost, and falsely 
 states the cost to be a larger sum than it really was, and the purchaser 
 pays this larger sum, it may be left to the jury to determine whether it 
 was a sale at cost or at the price stated by the seller as the cost, and if 
 it is decided to have been a sale at cost, the purchaser may recover of 
 the seller, on the money counts, the difference between the cost price 
 and the price paid by the purchaser. Willard v. Randall, 65 — 81. 
 
 40. An action for money had and received lies by a town against a 
 collector for taxes received by him, and not paid over. Richmooid v. 
 Brown, 66 — 373. 
 
 41. In an action for money had and received, the plaintiff is entitled 
 to recover no more than the sum actually received for his use by the 
 defendant. An instruction that he can recover so much as his prop- 
 erty converted by the defendant into money was reasonably worth, is 
 erroneous. Rand v. Nesmith, 61 — 111. 
 
 42. The administrator of an insolvent estate, in an action for money 
 had and received, may recover for money given by his intestate, after 
 he became insolvent, without a valuable consideration. McLean v. 
 
 Weehs, 61^277. Same v. same, 65 — 411. 
 
 43. The trustees of the Lewiston Institution for Savings subscribed 
 for $50,000 of the capital stock of the Continental Mills, and having 
 no money to pay for it, the Franklin Company, another corporation, 
 paid that amount to the Continental Mills, taking the notes of the 
 savings institution therefor, and a certificate of the stock in their own 
 
42 ASSUMPSIT. 
 
 name as collateral security for the payment of the notes. The Frank- 
 lin Company sought to recover the amount of the notes from the 
 savings bank on the ground that, vrhen a contract has been executed, 
 in -whole or in part, and the corporation has thereby received a 
 benefit, a recovery may be had by the other contracting party to the 
 extent of the benefit thus conferred, notwithstanding the contract 
 was ultra vires. Held, that, although, by the terms of the agree- 
 ment, the Franklin Company was to hold the stock as collateral 
 security merely, still, the agreement being ultra vires, could not be 
 enforced. Nothing possessing the slightest intrinsic value, not even 
 a right of action, was ever secured to or vested in the savings bank. 
 There was absolutely nothing on which a quantum meruit or a quan- 
 tum valebat claim could be sustained. Franklin Co. v. Lewiston 
 Savings Bank, 68 — 43. 
 
 44. The defendant subscribed for shares in a patent right to be 
 held by him without payment therefor. By his subscription others 
 were induced to subscribe for shares and give their notes therefor for 
 greatly more than the value of the shares ; the notes afterwards came 
 into his hands by purchase, and were by him negotiated for money 
 and paid by the makers. Held, that these facts would not entitle 
 the makers to maintain an action against him for money had and 
 received. Lane v. Smith, 68 — 178. 
 
 45. Statute of Feauds. An action for money had and received 
 lies to recover back money paid by a party to an agreement invalid 
 by the statute of frauds, which the other party refuses to perform. 
 Jelleson v. Jordan, 68 — 373. 
 
 IV. WAIVING THE TORT. 
 
 46. The plaintiff's land was sold for taxes, and a deed given to the 
 town, whose agent cut and carried away timber therefrom. Held, 
 that in the absence of any evidence that the timber had been con- 
 verted into money, the plaintiff could not waive the tort and main- 
 tain assumpsit. Rogers v. Greenbush, 57 — 441. 
 
 47. A judgment in assumpsit, and satisfaction, estop the plaintiff 
 from setting up a tort, the waiver of which was the foundation of his 
 suit in assumpsit. Ware v. Percival, 61 — ^391. 
 
 48. It seems that if the plaintiff can show that he was induced to 
 part with his money by the false and fraudulent representations of a 
 third person as to his credit, ability, etc., the defendant concurring 
 and conspiring therein, and receiving a portion of the money in pay- 
 ment of a debt due from such third person to himself, the defendant 
 may be liable in an action for money had and received, the plaintiff 
 waiving the tort. Hunter v. Randall, 62 — 423. 
 
 49. The right of the plaintiff to waive a tort, and sue in assumpsit, 
 is limited to cases where the defendant has converted the property 
 into money or its equivalent. Androscoggin Co. v. Metcalf, 65 — 40. 
 
 50. When a miller saws logs at his mill, for a log owner, and retains 
 the slabs made therefrom, claiming them as his own by a usage exist- 
 ing in the place where manufactured, the log owner cannot recover 
 for the value of such slabs in assumpsit upon an account annexed, in 
 the absence of any promise of the manufacturer to pay for them. 
 
 Wyman v. Banton, 66 — 171. 
 
ASSUMPSIT. 43 
 
 51. The nominal plaintiff sold to the defendant certain of its honds, 
 the defendant giving his note for the amount agreed to be paid there- 
 for. When the note was given it was verbally agreed that if the 
 defendant did not sell the bonds, or receive any compensation therefor, 
 his note should be cancelled and given up to him. Some time after 
 the defendant falsely and fraudulently represented to the plaintiff 
 that he had turned over the bonds to certain parties without compensa- 
 tion, and thereby procured the surrender of his note without payment. 
 Held, that the fraudulent procurement of the surrender of the note by 
 the defendant without payment was equivalent to the receipt by him 
 of the money due upon it, that the plaintiff might waive the tort and 
 maintain assumpsit for money had and received, and that such an ac- 
 tion was not an action upon the note. Penobscot JR. JR. Co. v. Mayo, 
 67—470. 
 
 V. PLEADING AND EVIDENCE. 
 
 52. Paktibs. To maintain assumpsit for goods sold and delivered 
 against two defendants, the plaintiff must show a joint promise by 
 the defendants. Fuller v. Miller, 57 — 168. 
 
 53. Proof that the goods were delivered upon the credit of one of 
 the defendants as original promisor is not sufficient to bind both. li. 
 
 54. Account Annexed. A declaration in assumpsit, in common 
 form upon an account annexed, the only charge stated in the account 
 being, "To groceries as per bill of particulars rendered," is bad on 
 demurrer. JBennett v. Davis, 62 — 544. 
 
 55. In an action on an account annexed one of the items charged 
 was the amount of a draft, with a brief description of it. The gen- 
 eral issue was pleaded. Held, that the draft was admissible in 
 evidence to support the charge. Tukey v. Gerry, 63 — 151. 
 
 56. Illegal Items. The plaintiff is not to fail in his claim alto- 
 gether because he sues in the same action for items legal and items 
 illegal, each class of which would support an action of itself (but for 
 the illegality), and having no other connection than that they are 
 embraced in the same account annexed to the writ. Goodwin v. 
 Clark, 65—280. 
 
 57. It seems that a running account for goods sold and delivered, 
 money loaned, or money had and received at different times, does 
 not constitute an entire demand, unless made so by custom or special 
 agreement. Ih. 
 
 58. Where there is a Written Contract. If the plaintiff pro- 
 ceeds upon the common counts, for goods furnished, a written con- 
 tract being admitted, he must produce it or prove its contents by 
 competent testimony and show that it has been fulfilled on his part, 
 or that a departure from its terms was without intention on his part, 
 or by consent of the defendant, or that the defendant has received 
 some benefit. Holden 8. M. Co. v. Westervelt, 67 — 446. 
 
 59. Special Coitnt. In assumpsit to recover damages in the nature 
 of demurrage the cause of action should be set out in a special count. 
 Hall V. Barker, 64^339. 
 
 60. The filing of a bill of particulars, either upon the motion of the 
 plaintiff or the defendant, is not objectionable as introducing a new 
 cause of action, though the plaintiff had no such cause in his mind as 
 
44 ATTACHMENT. 
 
 the bill states when he commenced the action. Haley v. Sohson, 
 68—167. 
 
 See Judgment, 15. 
 
 Landloed and Tenant, 29. 
 
 Limitations, 35. 
 
 Pleading. 
 
 ATLAIJTIC AND ST. LAWRENCE RAILROAD COMPANY. 
 
 See New Trial, 1. Railroad, 33, 59, 60. 
 
 ATTACHMENT. 
 
 I. WHAT IS ATTACHABLE. 
 II. VALIDITY OF THE ATTACHMENT. 
 
 (a) GBIfBEALLT. 
 
 (b) Of pebsonal propbrtt. 
 
 (c) Of rbal bstatb. 
 
 ni. EFFECT. 
 
 IV. DISSOLUTION. 
 
 V. OF EECEIPTORS. 
 
 VI. EIGHTS AND LIABILITIES OF THE OFFICER. 
 
 L WHAT IS ATTACHABLE. 
 
 1. The interest which the real owner has in a steamer in his pos- 
 session may be attached though another person has the record title as 
 collateral security for a debt. Perry v. Somerhy, 57 — 552. 
 
 2. A debtor, owning a pair of working cattle and also one or two 
 horses exceeding in value three hundred dollars, must exercise his right 
 to elect which shall be exempt from attachment when the attachment 
 is made, if he has the opportunity so to do. Colson v. Wilson, 58 — 
 416. 
 
 See Waiver, 30. 
 
 3. Mail. An attachment, knowingly, of a team consisting of two 
 horses harnessed to a wagon, standing in front of a post-office, on a 
 mail route, in charge of the mail-carrier waiting for the mail, is a will- 
 ful obstruction and retarding of the passage of the mail, within the 
 meaning of the Act of Congress, of March 3, 1825, § 9, and therefore 
 void. Harmon v. Moore, 59 — 428. 
 
 4. And a receiptor for such property, thus attached, is not liable 
 therefor on his receipt, stipulating to pay one hundred dollars, or re- 
 deliver the property. lb. 
 
 5. Partnership. A creditor of one of the partners of a firm may 
 attach such partner's interest in a specific portion of a stock of goods 
 belonging to the firm, and is not required, in order to render the 
 
Attachment. 45 
 
 attachment regular, to take the partner's interest in the entire stock of 
 goods. Fogg v. jLawry, 68 — 78. 
 
 See Paetneeship, 24, et. seq. 
 
 6. Money collected by an officer on legal process, while it remains in 
 his hands, is to be regarded as in custodia legis, and not the subject 
 of levy or attachment in any form. Hardy v. Tilton, 68 — 195. 
 
 II. VALIDITY OF AN ATTACHMENT. 
 
 (a) Generally. 
 
 (b) Op PBBSONAIi PBOPEBXY. 
 
 (c) Of real estate. 
 
 (a) Generally. 
 
 7. On a writ against two defendants the body of one may be arrest- 
 ed, and the property of the other attached. Conner v. Madden, bl — 
 410. 
 
 8. Notice oe peioe deed. An attachment of land previously 
 deeded, by one having actual knowledge of an elder deed of the same 
 land, will not avail the attaching creditor to defeat the prior right of 
 the first grantee. Warren v. JSjimhall, 59 — 264. 
 
 9. In the trial of a real action where the plaintiff's title depends 
 upon a deed of warranty from his grantor, acknowledged September 
 16th, and recorded September 19th, 1865 ; and the defendants, upon an 
 attachment bearing date the 15th and recorded the 19th September, 
 1865, made on a writ in favor of the defendant against the plaintiff's 
 grantor, bearing same date as the attachment, — it is competent for the 
 plaintiff to show that the defendant's writ was not made on the 15th, 
 but that the defendant having seen and examined the deed to the 
 plaintiff, in the registry of deeds, on the 19th September, and thereby 
 ascertained that the plaintiff's grantor had conveyed the demanded 
 premises, thereafterwards, on the evening of the same day, made the 
 writ and antedated it. lb. 
 
 10. Notice to the officer, who makes an attachment, of an existing 
 encumbrance or conveyance of the property is not notice to the cred- 
 itor unless communicated to him. McKee v. Garcelon, 60 — 165. 
 
 See Bank, 3. 
 
 COEPOEATION, 34. 
 
 (b) Personal Property. 
 
 11. Under Public Laws of 1859, c. 114, § 1, the mortgagee of per- 
 sonal property attached on a writ against the mortgager, could not 
 commence an action against the attaching officer until forty-eight 
 hours after he had given him a "written notice of his claim, and a 
 statement of the amount actually due to him on the mortgage." 
 Nichols V. Perry, 58 — 29. 
 
 12. The fact that the officer knew there was such a mortgage on 
 record, and took a bond of indemnity from the attaching creditor, 
 would not excuse the mortgagee's omission to give the statute notice. 
 lb. 
 
 13. A written notice to an attaching officer that "there is now 
 actually due me," from the mortgager "on note and account, exceed- 
 ing nine hundred dollars," is a sufficient "statement of the amount." lb. 
 
46 ATTACHMENT. 
 
 14. The notice need not allege, in so many -words, that the amount 
 stated is "actually and justly due on the mortgage," if it appear, from 
 the whole notice. lb. 
 
 See Sale, 50. 
 
 15. Where the owner of a pair of oxen, having the opportunity, 
 omitted to elect to have them exempted from attachment, and the 
 mortgagee of the oxen omitted for the space of ten days, after due 
 notice of their having been attached, to "deliver to the officer a true 
 account of the amount due on" his mortgage, as required by Public 
 Laws of 1859, c. 114, § 2 (R. S., c. 81, § 43), the mortgagee "thereby 
 waived the right to hold the property" on his mortgage. Colson v. 
 
 Wilson, 58—416. 
 
 (c) Heal Estate. 
 
 16. No valid attachment of real estate can be made on a writ con- 
 taining only a count for money had and received, without any speci- 
 fication of the claim to be proved under it. Shaw v. Nickerson, 60 — 
 249. 
 
 17. The statute of 1838, making an attachment of real estate upon 
 a writ containing money counts, without a specification of the claims 
 to be proved under them, invalid, applied to suits pending at the time 
 of its passage. I'oor v. Larrabee, 58—543. 
 
 18. To constitute a valid attachment of real estate under R. S., 
 1841, c. 114, the officer's return on the writ must show that an attested 
 copy was filed in the office of the register of deeds. Carleton v. 
 Byerton, 59 — 438. 
 
 19. A certificate by an officer to the register of deeds of an attach- 
 ment of real estate of Henry M. Hawkins, when the true name of the 
 defendant, and the name by which he is sued, is Henry F. Hawkins, 
 is fatally defective. JDutton v. Simmons, 65 — 583. 
 
 20. An officer's certificate to the registry of deeds, of an attachment 
 of real estate is admissible in evidence to contradict his return upon 
 the writ. Dutton v. Simmons, 65 — 583. 
 
 21. When two several creditors make simultaneous attachments 
 upon a debtor's real estate consisting of an equity of redemption, as 
 between themselves, each one obtains a lien upon an undivided half 
 of the equity, and, as against the debtor upon the whole. True v. 
 Emery, 67—28. 
 
 22. The rule that two creditors attaching their debtor's property at 
 the same moment take in moieties, has no application to a case where 
 the judgment in favor of one of them can be and is fully paid with 
 less than the proportion to which he would be entitled in case of a 
 deficiency. Blaisdell v. Pray, 68 — 269. 
 
 III. EFFECT. 
 
 23. The statute, R. S., 1871, c. 82, § 39, authorizing a subsequently 
 attaching plaintiff, to defend a prior suit in which tlie same property 
 is attached, requires both suits to be pending, and does not permit the 
 defense to be made by a creditor who has obtained a judgment and 
 satisfied his execution from the property attached. Sm,art v. Smart, 
 64r-317. 
 
ATTACHMEKT. 47 
 
 IV. DISSOLUTION. 
 
 24. The delivery by an officer of property attached by him to receipt- 
 ors, and taking from them a written agreement, reciting the attachment 
 and promising to return the property to the officer holding the execu- 
 tion, within thirty days after judgment, and limiting their responsi- 
 bility to a specific sum, does not discharge the lien upon the property, 
 as regards the receiptors. Perry v. Somerby, bl — ^552. 
 
 25. When property attached is delivered by the officer to receiptors, 
 who promise to pay him a certain sum or re-deliver the property, the 
 attachment is dissolved. Mitchell v. Gooch, 60 — 110. 
 
 26. The plaintiff, as an officer, having on July 13th attached a 
 debtor's personal projjerty, took from the present defendant an alter- 
 native receipt to pay a certain sum or re-deliver the goods attached on 
 demand, whereupon the goods went back into the debtor's possession. 
 On Sept. 2d, the debtor filed his petition in bankruptcy, and on the 
 succeeding 27th was adjudged a bankrupt. In an action on the 
 receipt in the name of the officer for the benefit of the assignee of the 
 debtor, held, that the attachment was dissolved by the taking of the 
 receipt. lb. 
 
 27. When a person is adju.dged a trustee for "specific property in 
 his hands, which he is bound to deliver at a future day," a demand 
 need not be made upon him "within thirty days next after final judg- 
 ment," to prevent a dissolution of the attachment. Woods v. Cooke, 
 58—282. 
 
 28. By the termination of the existence of the Piscataqua Ins. Co., 
 all attachments against the company were dissolved. jBowker v. JERM, 
 60—172. , 
 
 29. The discharge of a bankrupt, duly pleaded, in an action pending 
 against him in a State court, will not dissolve an attachment made by 
 virtue of the writ in the action more than four months previous to the 
 commencement of the defendant's proceedings in bankruptcy — and an 
 attachment thus made may be enforced by the rendition of soch judg- 
 ment in the court where the process is pending as will enable the 
 party making it to perfect the lien thus acquired. Leighton v. Kelsey, 
 57 — 85. Perry v. 8o7nerby, 57 — 552. 
 
 30. The maxim that in law there are no fractions of a day does not 
 apply to proceedings in bankruptcy, where the exact time when the 
 event occurred is made certain by record ; therefore, where a debtor's 
 property was attached at seven o'clock in the afternoon of March 8, 
 and his petition in bankruptcy under the U. S. Bankruptcy Act of 
 1867, was filed at two o'clock and fifty minutes in the afternoon of 
 the 8th of July next succeeding ; held, that under § 14, the attachment 
 was dissolved, the time between the two events falling short of four 
 months by four hours and ten minutes. Westbrook Manufacturing 
 Company v. Grant, 60 — 88. 
 
 V. OF EECEIPTOES. 
 
 31. Demand. A receipt was given for a vessel attached in a suit 
 to enforce a lien upon her. By its terms the receiptors agreed to 
 re-deliver the property attached to the officer, on demand, at a place 
 named ; and if no demand should be made, that they would, within 
 thirty days after judgment in the action, re-deliver the property as 
 aforesaid that it might be taken on execution. The plaiatiff recovered 
 
48 ATTOKNBY AT LAW. 
 
 judgment, but execution issued against the vessel contained no order 
 of sale and the officer holding it made a demand upon the receiptors. 
 The execution was corrected within thirty days from judgment but no 
 second demand was made, the vessel being at sea. Held, that the 
 receiptors were liable. Low v. Dunham, 61 — 566. 
 
 32. The liability of the receiptor is limited to, and determined by, 
 that of the officer. Hermon v. Moore, 59 — 428. Mitchell v. Oooch, 
 60—110. 
 
 33. If neither creditor nor debtor has any claim upon an officer for 
 property attached by him, which has gone back into the hands of the 
 debtor, the officer cannot maintain any action upon the receipt. Mitch- 
 ells. 6*000^,60—110. 
 
 34. When an officer, upon his own responsibility delivers the prop- 
 erty attached to a third person, and takes an accountable receipt 
 therefor, such receipt constitutes a contract between him and the 
 signer alone, and so long as his responsibility to either party continues, 
 can be discharged only by his consent. Torrey v. Otis, 67 — 573. 
 
 35. An officer, after attaching goods, upon his own responsibility 
 and for his own convenience, delivered them to a third person, taking 
 an accountable receipt therefor* The creditor, after obtaining judg- 
 ment, and taking proper steps to hold the officer responsible for the 
 goods attached, gave the receiptor a written discharge from the receipt. 
 Held, that the discharge did not constitute a defense to a suit on the 
 receipt by the officer. Ih. 
 
 36. The receiptor is bound to surrender the property to the attach- 
 ing officer, on seasonable demand, whether there has been a judgment 
 in the suit on which the attachment was made, or not. Bangs v. 
 Beacham, 68 — 425. 
 
 37. He can not show, in a suit on the receipt, any invalidity in the 
 attachment or judgment. Ih. 
 
 Ante, 4. 
 
 VI. EIGHTS AND LIABILITIES OF THE OFFICER. 
 
 38. An action of trespass lies against an officer who attaches the 
 goods of a stranger, notwithstanding they are so intermingled with 
 those of the debtor that the officer can not distinguish them, if the 
 owner is present and offers to select his, and is prevented from so 
 doing by the officer. Yates v. Wormell, 60 — 495. 
 
 See Replevin, 9. 
 Sale, 55. 
 Trespass, 27. 
 
 ATTORNEY AT LAW. 
 
 L ATJTHOKITT. 
 
 II. EIGHTS AND LIABILITIES. 
 
 IIL LIEN. 
 
 IV. EEMOVAL. 
 
ATTOENET AT LAW. 49 
 
 I. AUTHOEITT. 
 
 1. The employment of a counselor and attorney at law to prosecute 
 a suit for land, of which the party alleges he has been disseized, car- 
 ries with it an authority to such attorney to compromise the claim 
 against the disseizor for mesne profits during the pendency of the suit, 
 if the attorney deems it best for the interest of his client to avoid all 
 the chances of litigation, and secure the spfeedy and successful termin- 
 ation of the principal suit in the most economical manner thereby. 
 Bonney v. Morrill^ 57 — 368. 
 
 2. An attorney of record in a suit has authority to apjirove a bond 
 given by the debtor to obtain his release from arrest upon the execu- 
 tion, and in so doing may use the name of the creditor, or he may 
 sign the approval by his own name as attorney. Poor v. Knight, 
 66—482. 
 
 3. The ADMISSIONS of attorneys of record may be given in evidence, 
 "even upon a new trial." Holley v. Young, 68 — 215. 
 
 4. If such admissions are made improvidently or by mistake, the 
 court will, in its discretion, relieve the party. lb. 
 
 5. The authority of an attorney who has obtained a judgment for 
 his client continues in force until the judgment is satisfied. White v. 
 Johnson, 67^287. 
 
 6. If an oiEcer returns an execution to the creditor's attorney, at 
 his request, he is relieved from further responsibibity in relation to it. 
 lb. 
 
 7. Payment to the attorney will protect the officer against a suit by 
 the client. lb. 
 
 8. Rbvocation. To constitute a revocation of the attorney's 
 authority notice must be given. The opposite party and all others 
 interested have a right to presume that his authority continues until 
 notified to the contrary. lb. 
 
 II. RIGHTS AND LIABILITIES. 
 
 9. An attorney who purchases of his client a claim which is the 
 subject of litigation, is bound to show the perfect fairness, adequacy, 
 and equity of the transaction. Dunn v. Record, 63 — 17. 
 
 10. If a client assigns to his attorney a claim during litigation, and 
 the assignment is not upheld, the consideration paid by the attorney 
 may be allowed to him as money advanced. lb. 
 
 11. In an action to recover compensation for services as an attorney 
 at law, the necessity of evidence that the plaintiff has t,he qualifications 
 required by statute is not dispensed with by proof that he has been a 
 practicing lawyer, and has appeared in court as an attorney. Perkins 
 V. McDuffee, 63—181. 
 
 12. A person appearing as an attorney at law in a case, and not 
 possessing the qualifications required by statute, may recover for his 
 disbursements in the case. lb. 
 
 13. Money collected by an attorney for his client may be attached 
 in his hands by trustee process. Burnell v. Wdd, 59 — 423. 
 
 See Aeeest, 2. 
 
50 ATTOENEY AT LAW. 
 
 III. LIEK. 
 
 14. In a suit on a judgment to enforce an attorney's lien for costs 
 it is not necessary that the declaration allege that the object of the 
 suit is to enforce the lien. McKenzie v. Wardwell, 61 — 136. 
 
 15. Where a writ is made by an attorney with the understanding 
 that another attorney is to take charge of the case in court, who 
 accordingly does so, the latter, with the assent of the former, may 
 enforce a lien on the judgment recovered, not only to the extent of 
 the costs accruing after the entry of the action, but for the writ and 
 service. Stratton v. Sussey, 62 — 286. 
 
 16. The lien of an attorney does not attach until final judgment 
 is rendered. Averill v. Longfellow, 66 — 237. 
 
 IV. REMOVAL. 
 
 17. An attorney at law is an officer of the court. The tenure of 
 his office is during good behavior and he can be deprived of it only for 
 misconduct ascertained by the court after an opportunity to be heard 
 has been afforded. Penobscot Bar v. Eimhall, 64 — 140. 
 
 18. The power to remove an attorney at law from his office is given, 
 to the court, not as a mode of inflicting a punishment upon the individ- 
 ual, but to prevent the reproach which would be occasioned to the 
 administration of the law by the continuance in office of those who had 
 abused their trust, and as a measure necessary for the protection of 
 the public. Ih. 
 
 19. As a good moral character is a condition precedent to the admis- 
 sion of an attorney at law he niay be disbarred for any acts or causes 
 which show that he no longer possesses such character. Ih. 
 
 20. And it is immaterial whether the acts by which he forfeits the 
 possession of a good moral character are done in his "office as attorney," 
 or in his private capacity. Ih. 
 
 21. The proceedings for the removal of an attorney at law do not 
 partake of the nature of a criminal procedure in which a party has a 
 right to a full, formal, and technical description of the matter with 
 which he is charged. Ih. 
 
 22. Proceedings for the removal of an attorney at law are usually 
 commenced by motion to the court, setting forth the misconduct 
 of the attorney in terms that may be readily comprehended by him, 
 and praying for a rule on him to show cause why he should not be 
 removed from the bar for the causes assigned. 1 h. 
 
 23. The motion may be made to, and the rule to show cause granted 
 by, the judge at chambei-s, the rule being returnable to the court in 
 session. Ih. 
 
 AUCTION". 
 
 1 . If the endorser of a note, secured by a mortgage containing a power 
 of sale can disaffirm an auction sale of the premises to the assignee of 
 the mortgage, he must do so within a reasonable time. Patten v. 
 Pearson, 60—220. 
 
AXTDITOE — BAIL. 61 
 
 2. The fact that lands sold at public auction, under an order of pro- 
 bate court, are sold for a very small sum compared with their value, 
 affords no reason for avoiding the sale. Fowler v. Coe, 63 — 245. 
 
 AUDITA QUERELA. 
 
 A judgment debtor, who was absent from the State, and not served 
 with process, may maintain audita querela to set aside an execu- 
 tion, issued on a judgment rendered on default, in a personal action, 
 without first giving the bond prescribed in R. S., 1871, c. 82, § 4, 
 notwithstanding the execution has been satisfied by levy on real estate. 
 Folan V. Folan, 59—566. 
 
 AUDITOR. 
 
 1. An auditor to whom an executor's account is sent has no author- 
 ity to allow a greater sum for a specific item than is claimed in the 
 account itself. Pettengill v. Pettengill, 64 — 350. 
 
 2. The case had been before an auditor, who returned his minutes 
 of the testimony taken before him as part of his report. The plaintiff 
 offered the report in evidence. The defendant objected to its admis- 
 sion. The presiding judge admitted the report, except that portion 
 which contained the documents and evidence laid before the auditor. 
 Held, that if the objection was upon the ground that the evidence 
 before the auditor was irregularly made a part of the report that it 
 could not be sustained, as it is competent for the presiding judge to 
 reject such portions as are not competent to go to the jury and admit 
 the remainder. Howard v. Kimball, 65 — 308. 
 
 3. Held, also, that the auditor's report was prima facie evidence of 
 the amount which the plaintiff was entitled to recover, that it was com- 
 petent for the defendant to disprove it, but it must stand unless he 
 had impeached it. Ih. 
 
 4. An auditor may be appointed in any case involving accounts. 
 Hacker v. Johmon, 66 — 21. 
 
 5. "Where, in an action of account, no issue is raised before the auditor 
 and reported by him, his report is conclusive. Black v. Nichols, 
 68—227. 
 
 See Law and Fact, 14. 
 Lien, 43. 
 Officbe, 14. 
 Peactice, 107, 140. 
 
 BAIL. 
 
 1. The court will not quash a capias writ, because it appears that 
 excessive bail was required and given. Moore v. Moore, 61 — 417. 
 
 2. Debt does not lie on a bail bond. Hewins v. Currier, 62 — 236. 
 
52 BAILMENT. 
 
 3. A bail bond is not invalid as a statute bond, in -which the condi- 
 tion is that the debtor shall "abide, do and perform the judgment"— 
 these words meaning no more than "abide." Ih. 
 
 
 
 BAILMENT. 
 
 I. 
 
 GENERALLY. 
 
 
 II. 
 
 PLEDGE. 
 
 
 III. 
 
 COLLATERAL SECURITY. 
 
 IV. 
 
 REMEDIES. 
 [. GENERALLY. 
 
 
 ] 
 
 
 1. A naked Terbal promise to return, in good order, at a specified 
 time, a thing hired, does not as a matter of law, import a contract on 
 the part of the hirer to insui-e it against loss occurring without his 
 fault. Jenkins v. Village Banlc, 58 — 275. 
 
 2. The receipt of property to be safely kept and returned at a spec- 
 ified time, unless paid for, the value of the ai-tioles being stated in the 
 receipt, but not as an agreed price, is a bailment of the property re- 
 ceived and not a sale. JFrye v. Surdick, 67 — 408. 
 
 3. Innkbepbe. To create the common law liability of an innkeep-- 
 er, the technical relation of guest and innkeeper must exist. Sealey 
 V. Gray, 68—489. 
 
 4. When one leaves his horse with an innkeeper, with no intention 
 of stopping at the inn himself, but stops elsewhere, he is not a guest 
 of the inn. lb. 
 
 5. In such a case, the liability of the landlord is that of an ordinary 
 bailee for hire. lb. 
 
 II. PLEDGE. 
 
 6. To constitute a pledge, there must be a delivery and retention of 
 the possession of the thing pawned. Collins v. Suck, 63 — 459. 
 
 7. The pledgee must have exclusive possession of the pledge. Col- 
 lins V. Buck, 63 — 459. 
 
 8. The delivery of a savings bank book to a third person, to be de- 
 livered to a creditor of the person making the delivery, as security 
 for the debt, is a good pledge to the creditor. Boynton v. Payrow, 
 67—587. 
 
 9. A receipted bill of parcels, accompanied with a formal delivery 
 and designed as security for debt, amounts only to a pledge of the 
 property, of which the pledgee must retain possession to make good 
 his right to it against bona fide purchasers or attaching creditors of the 
 party, who pledges the property to him. Shaw v. Wilshire, 65 — 485. 
 
 See Mortgage, 128. 
 
 10. Instettctions in Substance, (1) that if the pledgee, after 
 the delivery of the property to him, allows it to go back into the posses- 
 sion of the pledger, upon the promise of the latter to re-deliver it, or 
 pay the debt within a specified time, then a purchaser from the 
 
BAILMENT. 53 
 
 pledger without fraud will obtain a good title against the pledgee, 
 but (2) if the purchase of the property from the pledger was not in 
 good faith, but for the purpose of defrauding the pledgee, the latter 
 might retake the property from the purchaser, and hold it under 
 the agreement as a pledge ; and (3) if at the time the pledge was al- 
 leged to have been made, the property was not actually delivered to 
 the pledgee, so that it was in his actual possession and control, but 
 was merely an agreement that the property should beheld as security 
 to be taken by the pledgee, if the debt should not be paid within the 
 time specified, then the pledgee could not contest the purchaser's 
 title, although it was fraudulent, were held not exceptionable. Moah- 
 er V. Smith, 67—172. 
 
 III. COLLATERAL SECURITY. 
 
 . 11. A person taking a lien upon logs as collateral security to secure 
 advances "until the same is finally marketed, and payment received 
 therefor," is not thereby authorized to manufacture the lumber at the 
 risk of the general owner, and to account for only the net proceeds, 
 provided they did not amount to the market value of the logs, at the 
 time possession was taken under the contract. Boody v. Goddard, 
 57—602. 
 
 12. Liability op Baelbe. A writing executed by the cashier of a 
 bank, acknowledging the receipt of bonds "to be returned" upon pay- 
 ment of a certain note, discounted by the bank, does not increase the 
 common law liability of the bank for ordinary care of the bonds. 
 Jenkins v. Village iBank, 58 — 275. 
 
 13. In Case or Theft. Buedbn of Proof. "When a bond is 
 deposited as collateral security for a loan, if it appears that the bond 
 has been stolen from the bailee, this is a prima facie justification for 
 the failure of the bailee to re-deliver them. The burden of j)roof to 
 show negligence, is on the bailer. Winthrop Savings Bank v. Jack- 
 son, 67—570. 
 
 14. In a suit to recover the value of certain bonds claimed to have 
 been left with a bank as security for money, the plaintiff testified that 
 on a certain day he went to the bank to obtain a loan upon them as 
 security, that the bonds (which were in the bank before that time), 
 could not be found, but that he obtained the loan. A requested instruc- 
 tion that if the bonds were not found in the bank at the time of the 
 loan, and were not afterwards found, the jury were not authorized 
 to find that they were taken and held as collateral security for the 
 loan, was properly refused. The question was not whether they 
 were found there, but whether they were actually there. Dearborn 
 V. Union National Bank, 61 — 369. 
 
 15. A creditor who holds railroad bonds as collateral security, for 
 his debt, is not bound by an unexecuted contract, without considera- 
 tion, to give them up. Sm,ith v. Strout, 63^205. 
 
 16. Nor does he lose his right to hold the bonds by suing the debtor 
 upon the principal debt and arresting his body upon the execution. 
 Ih. 
 
 IV. REMEDIES. 
 
 17. Demand. When money has been deposited for safe keeping, 
 no action lies for it without proof of demand and refusal. Lee v. 
 Lanahan, 59 — 480. 
 
54 BANK. 
 
 18. Equity. The plaintiff conveyed, with covenants of ■warran- 
 ty, real estate to one J., and there being some doubt about the title, 
 the consideration money was placed in the hands of defendant as col- 
 lateral to the warranty, for a reasonable and satisfactory length of 
 time, by agreement iu writing. Held, that defendant was not obliged 
 to give up the money until the title had been judicially settled, and 
 that equity, not an action for money had and received, are the proper 
 remedy for the plaintiff. Ramsdell v. JButler, 60 — 216. 
 
 See Limitations, 10, 11. 
 Teoveb, 1. 
 
 BAITK. 
 
 I. GENERALLY. 
 II. INSOLVENT BANKS. 
 IIL SAVINGS BANKS. 
 
 I. GENERALLY. 
 
 1. A writing, executed by the cashier, acknowledging the receipt 
 by the bank of certain United States bonds from the maker of a note 
 discounted by the bank, "to be returned to him on the payment of 
 his note in four months, dated May 9, 1866," is not a contract which 
 increases the common law liability of the bank, even if the cashier 
 had the authority to do so. Jenkins v. National V. Bank of JBow- 
 doinham, 58 — 275. 
 
 2. A bank has a right to hold a cash dividend as pledged for the 
 indebtment of the shareholder to the bank. Haqar v. Union Nat. 
 Bank, 63—509. 
 
 3. The act of Congress, providing that no national bank shall pur- 
 chase or hold shares of its own capital stock, unless necessary to pre- 
 vent a loss upon a debt previously contracted in good faith, does not 
 require the bank to accurately inf onn itself of the necessity, before it 
 can attach the shares of a stockholder for a debt due the bank. Tb, 
 
 4. A note payable to a savings bank purchased of the makers by a 
 party, not the payee, the bank having no interest in it, may be in- 
 dorsed without recourse by the bank to such purchaser, to enable him 
 to maintain a suit in his own name thereon ; and the authority of the 
 treasurer to indorse it for the bank, may be inferred from the conduct 
 of the trustees without any express direction or vote. Chase v. Ra- 
 thorn, 61 — 505. 
 
 5. The fact that a note was indorsed by the maker and discounted 
 by a bank with but one name, in violation of the statute prohibiting 
 banks, from discounting notes without two names, will not avaU the 
 maker in defence of a suit upon the note by an indorsee from the bank, 
 as the violation of the statute by the bank is collateral to the contract 
 of the maker of the note. Boberts v. Lane, 64—108. 
 
 6. Whatever a natural person might lawfully do in closing up a 
 transaction respecting an overdue and protested note, a national bank 
 may do. Ticonic Bank v. Bagley, 68—249. 
 
BANK. 55 
 
 II. INSOLVENT BANKS. 
 
 7. The charter of a savings bank expires when a decree of seques- 
 tration is passed upon complaint of the trustees. Jones v. Winthrop 
 Savings Bank, 66 — 242. 
 
 8. By R. S., 1857, c. 47, § 64, it is the duty of receivers of an insol- 
 vent bank, to take possession of its real estate, and to commence suit 
 to obtain possession if necessary. HaJcer v. Cooper, 57 — 388. 
 
 9. Where an execution in favor of an insolvent bank has been ex- 
 tended on real estate, and seizin thereof delivered to the receivers, 
 they may maintain in their own names, process of forcible entry and 
 detainer against the debtor if he continues in possession without their 
 consent. Ih. 
 
 10. Holders of stock in a bank at the expiration of its charter are 
 liable to contribute for the redemption of all unpaid bills issued by 
 the bank, in the proportion that the number of shares held by them 
 respectively bears to the number of shares held by all the stockhold- 
 ers. Dane v. Young, 61 — 160. 
 
 11. The liability of a portion of the stockholders is not affected 
 by the fact that in consequence of their refusal to "pay in" a certain 
 sum on each share, to make good previous losses. A vote of the 
 stockholders was passed reducing the par value of their stock, while 
 that of the other stockholders remained unchanged. lb. 
 
 12. "When the total sum to be raised by an assessment upon the 
 stockholders of an insolvent bank has been determined by an adjudi- 
 cation of court, a mistake or error in the adjudication can not be 
 reached on a demurrer to a bill in equity brought to enforce payment 
 of the assessment. JBaker v. Atkins, 62 — 205. 
 
 See Equity, 111, 137. 
 
 III. SAVINGS BANKS. 
 
 13. It is not competent for the trustees of a savings bank to pur- 
 chase on credit property of any kind, not needed for immediate use, 
 or the investment of existing_ funds. No such power is expressly 
 conferred upon them ; nor can it be sustained as an incidental power. 
 Franklin Co. v. Lewiston Savings Bank, 68 — 43. 
 
 14. It is not competent for the trustees of a savings bank, at a time 
 when there are no funds in the bank for investment, to agree to take 
 shares in a manufacturing corporation, and thereby create a debt 
 binding upon the bank. lb. 
 
 15. Under the act of 1877, c. 218, § 36, the supreme court has no 
 power to proceed and reduce the deposits of a savings bank, if it ap- 
 pears, upon an examination of its assets and liabilities, and from other 
 evidence, that it has exceeded its powers, or failed to comply with the 
 rules, restrictions and conditions provided by law for its government 
 in the management of its affairs ; notwithstanding such violation of 
 law has not caused nor contributed to its insolvency. Newport Sav- 
 ings Bank Vase, 68 — 396. 
 
 .16. In making investments and managing the affairs of the bank, 
 the trustees represent the corporation. In regard to these matters, a 
 violation of the rules, restrictions and conditions provided by law for 
 the investment of the funds and deposits of the bank by the trustees, 
 
56 BANKRUPTCY. 
 
 is a violation of such rules, restrictions and conditions by the corpo- 
 ration, within the meaning of said act. Ih. 
 
 17. The court has no power to order the sums to which the depos- 
 its are reduced to be paid by installments. Ih. 
 
 See Ante, 4, 7. 
 
 Bills and Notes, 46. 
 coepoeation, 5. 
 Tax, 5. 
 Teoybr, 1, 2. 
 
 BANKRUPTCY. 
 
 I. GENERALLY. 
 
 II. THE DISCHARGE AND ITS EFFECT. 
 III. TITLE FROM THE ASSIGNEE. 
 
 I. GENERALLY. 
 
 1. An attachment made more than four months before the com- 
 mencement of the debtor's proceedings in bankruptcy, maybe enforced 
 by an execution issued upon a special judgment, rendered by the 
 court in which the action was prosecuted. Perry v. Somerhy, 57 — 
 552. Leighton v. Kelsey, bl — 85. 
 
 2. Where an attachment was made on the eighth day of March, in 
 
 the afternoon, and the debtor went into bankruptcy on the eighth day 
 
 of July following, in the forenoon, the attachment was dissolved, the 
 
 rule tliat in law there are no fractions of a day not being applicable. 
 
 Westbrook 3Ianf. Co. v. Grant, 60—88. 
 
 3. Bankruptcy does not dissolve the lien created by a seizure of the 
 property of the debtor on execution. Storer v. Haynes, 67 — 420. 
 
 4. Where an action was commenced by trustee process, and judg- 
 ment obtained against the principal defendant and trustee, and within 
 thirty days from its rendition, an officer holding the execution issued 
 thereon, made due demand on the trustee, such demand was held 
 equivalent to a seizure of the property of the defendant, and pro- 
 ceedings in bankruptcy by the principal defendant commenced within 
 four months from the time of the service of the writ upon the trustee 
 but not until after the demand of the ofBcer, were held not to dis- 
 solve the lien of the creditor upon the goods or credits of the princi- 
 pal defendant in the hands of the trustee. Ih. 
 
 5. Suggestion of Bankeuptct. If the defendant suggests his 
 bankruptcy, c. 157, public laws of 1868, providing that the plaintiff 
 may strike a bankrupt defendant's name from the suit, without costs, 
 applies to cases where there is but one defendant. Severy v. Bart- 
 lett, 57—416. 
 
 6. In an action against several joint contractors, upon suggestion 
 of the bankruptcy of one of the defendants, the plaintiff may dis- 
 continue as to such defendant without costs, and prosecute his action 
 against the other defendants. West v. Furhush, 67 — 17. 
 
 7. The plaintiff, after proceeding to trial and becoming nonsuited, 
 
has no right to suggest the bankruptcy of the defendant, and strike 
 his name from the suit. Palmer v. Merrill, hi- — 26. 
 
 8. The fact that a debtor has filed his petition and been adjudged 
 a bankrupt is no defense to an action by a creditor against a third 
 person for knowingly aiding such debtor in the fraudulent transfer of 
 his property. Spaulding v. Fisher, bl — 411. 
 
 9. The payee of a negotiable bill or note, who before bankruptcy 
 sells and delivers the same without indorsement, may, after bankruptcy, 
 indorse the note so that the holder may maintain an action thereon in 
 his own name. Hersey v. Elliott, 67 — 526. 
 
 10. An account, payable to one who has gone into bankruptcy, may 
 be sued in the bankrupt's name, notwithstanding his assignee sold it to 
 another for whose benefit the action was brought. Foster v. 'Wylie, 
 60—109. 
 
 II. THE DISCHARGE AND ITS EFFECT. 
 
 11. How AVOIDED. A discharge can not be impeached in a State 
 court for any reason which would have prevented the granting it, or 
 would be good cause for annulling it, in the U. S. courts, on motion 
 of a creditor. Corey v. Ripley, 57- — 69. 
 
 12. In order to avoid a defendant's discharge under the U. S. Bank- 
 rupt Act of 1867 on the ground that the schedule did not contain a 
 statement of his debt to the plaintiff and that the latter had no notice 
 of the proceedings in bankruptcy, it must appear that the omission 
 was fraudulent, and it seems that the discharge must be set aside by 
 the court in which it was granted. Symonds v. J3arnes, 59 — 191. 
 
 13. A debt due a town from a collector of taxes for taxes collected 
 by him and not paid over is a fiduciary debt, and is not barred by 
 the discharge of the collector. Richmond v. Brown, 66 — 373. 
 
 14. In an action by the town against the collector, the former must 
 account for dividends received, and for those which might have been 
 received but for its own neglect. Ih. 
 
 15. When a member of a fii-m files his petition in bankruptcy, giv- 
 ing no schedule of firm debts and assets, nor praying for a discharge 
 from firm liabilities, his discharge will relieve him from his individual 
 indebtedness only, and not from his partnership liability. Corey v. 
 Perry, 67—140. 
 
 16. When a claim originates in contract, although fraudulently in- 
 duced, and is prosecuted in an action sounding in damages, it consti- 
 tutes a provable debt, although the fraud must be proved in order to 
 recover. Merrill v. Schwartz, 68 — 514. 
 
 17. If the bankrupt give a deed with warranty of title when he had 
 no deed for the land, his liability on the warranty is released by his 
 discharge. It matters not whether the warranty relates to real or 
 personal property. The result is the same. Ih. 
 
 III. TITLE OF AJSTD THEOUGH THE ASSIGNEE. 
 
 18. In the absence of fraud, an assignee in bankruptcy takes only 
 such rights and interests as the bankrupt himself could assert at the 
 time of his bankruptcy. Goss v.. Coffin, 66 — 432. 
 
58 BASTARDY. 
 
 19. An unrecorded conveyance (lease for life) executed prior to 
 the bankruptcy will prevail against a subsequent title derived from 
 the assignee. lb. 
 
 20. In general, only such right, title, and interest as the bankrupt 
 himself has in law and equity in any estate or property passes by 
 bankruptcy to the assignee. Sersey v. Elliott, 67 — 526. 
 
 BASTARDY. 
 
 I. ACCUSATION AND COMPLAINT. 
 II. PROCEEDINGS IN COURT. 
 III. EVIDENCE. 
 
 I. ACCUSATION AND COMPLAINT. 
 
 1. A complaint under the bastardy act is a civil suit. Knowles v. 
 Scribner, 57 — 495. 
 
 2. The voluntary statement of a complainant in bastardy, during 
 the time of her travail, without being interrogated in relation thereto, 
 that the child of which she is about to be delivered "is the child of 
 the" respondent, "and he knows it is his child," is a sufficient compli- 
 ance with R. S., c. 97, § 6, providing that having "been put upon the 
 discovery of the truth of such accusation at the time of her travail," 
 she "thereupon accused" the respondent with being the father of the 
 child. Wilson v. Woodside, 57 — 489. 
 
 3. The complaint in a bastardy process can legally be made before 
 a justice of the peace. McFaddan v. £ubier, 66 — 270. 
 
 4. Or before a trial justice. Sidelinger v. BucMin, 64 — 371. 
 
 5. Copies. When a bastardy warrant is returned before, and the 
 respondent is required to give bond by a justice other than the one 
 who received the complaint copies of the complaint and warrant are 
 properly certified up by the justice to whom they were returned. 
 lb. 
 
 n. PROCEEDINGS IN COURT. 
 
 6. The objection in writing by the selectmen of the town interest- 
 ed in the support of the mother or child, to a settlement with the 
 father, by the complainant, is seasonable if made at the trial of the 
 respondent on the complaint. JEames v. Gray, 61 — 405. 
 
 7. When the declaration states the time when the child was begot- 
 ten as between two dates, the jury are authorized to find the re- 
 spondent guilty, on sufficient proof, though the child was begotten 
 outside those dates. Holbrooh v. Knight, 67 — 244. 
 
 8. The particulars of time and place are material only as bearing 
 upon the credit to be given the complainant as a witness. lb. 
 
 IIL EVIDENCE. 
 
 9. In the trial of a declaration in bastardy charging a married man 
 with being the father of the child, the complainant is not required to 
 
BETTBEMENTS — BILLS OF LADING. 69 
 
 establish the respondent's guilt beyond a reasonable doubt. Snowies 
 V. Scribner, 57 — 495. 
 
 10. On the trial of a bastardy case evidence that the complainant 
 had the reputation of being a prostitute is inadmissible. Sidelinger 
 V. Bucklin, 64—371. 
 
 11. The declarations of a complainant in bastardy, made at various 
 times before and after her formal accusation and examination, that 
 the respondent was the father of her child are inadmissible, either to 
 show that she continued constant, or to sustain her credibility. lb. 
 
 BETTERMENTS. 
 
 1. Prior to statute of March 1, 1843, a grantee or assignee of a 
 tenant for life, or in dower, could acquire no right to betterments as 
 against the reversioner. 
 
 Otherwise as to improvements made since that time. R. S., 1871, 
 c. 104, § 23. Poor v. Larrabee, 58—543. 
 
 2. Conceding a right to betterments is an admission that the pos- 
 session during the time in which this right was acquired, was adverse. 
 Moore v. Moore, 61 — 417. 
 
 3. The owner of "betterments" has no interest in the land itself. 
 Mitchell V. Black, 64 — 48. 
 
 4. A right to "betterments" may be conveyed by parol and delivery. 
 Ih. 
 
 5. A conveyance of such right in land as the grantor has by pos- 
 session and improvement does not convey any right or interest in the 
 land itself, but only an equitable right to compensation in case the 
 owner of the soil dispossesses the owner of the improvements. lb. 
 
 6. Where one mortgages his right in land by possession and 
 improvement, and subsequently acquires an indefeasable title by con- 
 tinuous adverse possession, such title does not enure to the benefit 
 of the mortgagee. lb. 
 
 BILL OF SALE. 
 
 See Sale, 16. 
 
 ■ » ■ 
 BILLS OF LADING. 
 
 Bills of Lading are transferable by indorsement. Robinson v. 
 Stuart, 68—61. 
 
60 BILLS AND NOTES. 
 
 BILLS AND NOTES. 
 
 I. 
 
 FORM. 
 
 II. 
 
 VALIDITY. 
 
 III. 
 
 EFFECT. 
 
 IT. 
 
 ACCEPTANCE. 
 
 V. 
 
 ENDORSEMENT. 
 
 VI. 
 
 DEMAND. 
 
 VII. 
 
 NOTICE. 
 
 VIII. 
 
 PROTEST. 
 
 IX. 
 
 RIGHTS OF THE PARTIES TO THE NOTE, 
 
 
 (a) Indobseb v. Maker. 
 
 
 (b) Indorsee v. Indoeser. 
 
 
 (c) Between the original pajbties. 
 
 
 (d) Generally. 
 
 X. 
 
 PLEADING AND PRACTICE. 
 
 XI. 
 
 EVIDENCE. 
 
 
 I. FORM. 
 
 1. The following, "Nobleboro, October 4, 1869. Nathaniel 0. 
 Winslow, Cr. By labor 16| days at $4.00 per day, $67.00. Good to 
 bearer. Wm. Vannah," is a negotiable promissory note, payable to 
 bearer, on demand. Sussey v. Winslow, 59 — 170. 
 
 2. An instrument which in terms and form is a negotiable promis- 
 sory note does not lose that character because it contains the words, 
 "Said promise made for a colt this day taken ; said colt holden for 
 the payment of said amount." Collins v. Bradbury, 64 — 37. 
 
 3. A negotiable promissory note in common form is not rendered 
 unnegotiable because, when given for insurance it contains the num- 
 ber of the policy, and the words "this note must be jjaid at maturity 
 without regard to the termination of the risk " are printed across its 
 face. Union Ins. Co. v. Greenleaf, 64 — ^123. 
 
 4. A note payable to the order of A. B. is equivalent to one payable 
 to A. B. or order. Howard v. JPahner, 64 — 86. Durgin v. JBartol, 
 64—473. 
 
 5. Not Negotiable. A written promise to pay the plaintiff 
 Insurance Co. the sum of two hundred and twenty-five dollars, and 
 such other sums as may arise as additional premium on an insurance 
 policy, is not a promissory note, because not for a sum certain. Lime 
 Hock Ins. Co. V. Hewitt, 60 — 407. 
 
 6. The payee of a negotiable note drew an order upon the maker, 
 directing him to pay the amount of the note to a person therein 
 named. The date and time of payment of the note was not stated 
 in the order, nor was the amount due upon the note. The order was 
 not presented to the maker of the note, but he was informed of it by 
 letter, and replied that he would pay the note to the person named in 
 the order. Held, that as the order was not drawn for an absolutely 
 certain sum, and was payable only upon a contingency, it could not 
 be regarded as a negotiable instrument. JVbyes v. Qilman, 65 — 589. 
 
 7. Signature. Where three names appear as the makers of a 
 
•BILLS ASD NOTES. 61 
 
 note, with the word surety written after one of them, if this is prima 
 facie evidence that that one was surety for the other two, still, 
 parol evidence is admissible to show the true relations between the 
 makers of the note. Hichborn v. Fletcher, 66 — 209. 
 
 8. When one not otherwise a party to a note puts his name upon 
 the back at the request of the maker, and before delivery to the 
 payee, he becomes a co-promisor. 'Woodman v. Boothhy, 66 — 389. 
 
 9. A note as follows : "One year after date we promise to pay to 
 the order of O. A. S. Maybury one thousand dollars, value received, 
 and interest at eight per cent, per annum. George Moore, Treas. of 
 Mechanic Falls Dairying Association," is the individual note of 
 George Moore. The use of the words "we promise" instead of "I 
 promise," is not material. Mellen v. Moore, 68 — 390. 
 
 10. A note running "I promise," signed J. T. H., treas. St. Paul's 
 Parish, is the individual note of J. T. H. Sturdivant v. Hull, 
 59—172. 
 
 11. Attestation. Whether an attestation upon the face of a 
 note should apply to a signature upon the back of it, unless the attes- 
 tation clause expressly so states, may be doubtful. Ulach v. Rogers, 
 68—574. 
 
 12. When Payable. A note containing merely a promise to pay, 
 but stating no time of payment, or that it is to be paid on demand, is 
 payable on demand. Paine v. Caswell, 68 — 80. 
 
 13. Where. When no place of payment is named in a note the 
 makers are to be regarded as undertaking to pay it in the State where 
 it was made. Stickney v. Jordan, 58 — 106. 
 
 II. VALIDITY. 
 
 14. When no place of payment is named in a note, it is payable at 
 the place where it is made, and must be construed according to the 
 law of that place. Stickney v. Jordan, 58 — 106. 
 
 15. The liability of the maker of a promissory note must be deter- 
 mined by the instrument alone. Sturdivant v. Hull, 59 — ^172. 
 
 16. CoNSiDBEATioN. Where the defendant, in accordance with the 
 terms of a compromise agreed upon between the parties, paid to the 
 plaintiff the amount claimed of him, except fifty dollars, and after- 
 wards the defendant voluntarily gave the plaintiff his note for the 
 fifty dollars remitted in their settlement, held, there was no consider- 
 ation for the note. Phelps v. Dennett, 57 — 491. 
 
 17. The defendant's husband borrowed fourteen hundred dollars of 
 the plaintiff, for which he then gave his promissory note, and, at the 
 same time agreed to procure a good additional signer the next day. 
 Eighteen months afterwards, in the sick room of the husband where 
 he was confined to his bed in his last sickness, and four days prior to 
 his death, the defendant, without receiving any consideration there- 
 for, in the absence of the plaintiff, in ignorance of her husband's 
 agreement, but at his request, placed her name upon the back of the 
 note. In an action on the note against her, held, that she was not 
 liable. Sawyer v. Fernald, 59 — 500. 
 
 18. Where, at the request of the party with whom he deals, one 
 makes his promissory note (which is to be a partial payment for a piece 
 of work to be done for him) payable to a third party, who is a creditor 
 
62 BILLS AJNI> NOTES. 
 
 of the party with whom he contracts for the work, and it is credited 
 by the payee to such party in good faith, the maker cannot set up a 
 failure of consideration as between himself and the party with whom 
 he deals, in defense of a suit upon such note, in the name of the 
 payee. South Soston Iron Co. v. Brown, 63 — 139. 
 
 19. DivoECH. Notes given in settlement 6i alimony while pro- 
 ceedings for divorce are pending, deposited before, to be delivered 
 after, a divorce is decreed, are valid, if there be no collusion to pro- 
 cure the divorce. Burnett v. Paine, 62 — 122. 
 
 20. Given to Suppress a Ceiminal PEOSECtrTioisr. A note given 
 for no other purpose than to aid in the suppression of a criminal 
 prosecution is void. Morrill v. Goodenow, 65 — 178. 
 
 21. Condition. A note, payable "when I sell my place where I 
 now live," is also payable absolutely, and if the maker by his indebt- 
 edness suffers a levy to be made upon the place so that he is unable 
 to sell it, his liability upon the note at once accrues. Crooker v. 
 Holmes, 65 — 195. 
 
 22. When promissory notes are given for a conveyance of a patent 
 right, and, at the same time, a contract of sale of the right is made 
 and signed by both parties, which provides that if there shall be de- 
 fault in either or any of the payments, then the deed shall become 
 void and the purchaser shall forfeit the money paid, the condition is 
 for the benefit of the seller only. The purchaser after part payment 
 of the notes cannot elect to consider the contract void and refuse to 
 pay the remainder of the notes. Ockington v. Law, 66 — 551. 
 
 28. The payee of a note agreed with the maker that if he would 
 pay a certain sum the time of payment of the balance should be ex- 
 tended until the maker could realize enough out of the clothes pin 
 business to pay the note, and accordingly the maker did pay the sum 
 agreed upon to the payee. Held, that the agreement did not post- 
 pone the payment of the note, indefinitely at least, until it. appeared 
 that the maker had made proper exertions to realize the money from 
 the business, that the burden of proof upon this point rested upon 
 the maker, that the extension, if made, would only be for a reasonar 
 ble time, and that, in the absence of proof as to the profits of the 
 business, it could not be said that a few months (4) was not a reason- 
 able time. Ih. 
 
 24. Alteration. A change of a note for five hundred dollars to 
 one for four hundred, is a material alteration, and if made without 
 his consent wiU discharge a signer or indorser. Hewins v. Carqil, 
 67—554. 
 
 25. Featid. In an action upon a promissory note given by a mother 
 in settlement of a claim for an alleged assault by her son upon the 
 payee, an instruction that if the note was given for the purpose of 
 compounding a felony, or if it was obtained by the false and fraudulent 
 representations as to the extent of the injuries, the payee and other 
 persons conspiring to extort money from the defendant, then she was 
 not liable, was held correct. Thompson v. Hinds, 67 — 177. 
 
 26. The plaintiff, having money of B. in his hands upon which he 
 had a lien to secure himself against a liability to C, on account of a 
 debt due from B. to C, paid the money over to the defendant at the 
 request of B. and took for it the note in suit, which he was to hold 
 as security for the same claim for which he held the money. Subse- 
 
BILLS AND NOTES. 63 
 
 quently, on tlie same day the debt due C. from B. was settled by the 
 latter. Hdd, that by this payment the note was released from 
 any lien the plaintiff had upon it, that the plaintiff having paid over 
 the money at the request and as the agent of B. would not be liable 
 to him for it, but only for what was received in its place, that the de- 
 fendant was liable to B. on the note, and that the plaintiff could not 
 recover' upon it. Bean v. Dolliff, 67 — 228. 
 
 27. CoNsiDEEATiON. INSURANCE. When the charter of a mutual 
 insurance company authorizes it to receive, for the better security of 
 dealers with the company, approved notes in advance from persons 
 intending to receive j)olicies, to allow the makers of such notes a 
 compensation therefor, to surrender the notes to the signers when the 
 interest of the company requires and the safety allows, and to nego- 
 tiate the notes when required for the purpose of paying claims or 
 otherwise, premium notes given for open policies of insurance, in 
 accordance with the charter, may be enforced by the company, or by 
 the receivers in case of its insolvency, when necessary to pay the 
 debts of the company, although no insurance has been effected under 
 the policy for which the notes were given. Howard v. Palmer, 64 — 86. 
 
 28. So also may notes given in renewal of such premium notes. 
 Howard v. Hinkley and E. Iron Co., 64 — 93. 
 
 29. When premiums have been earned by the company while the 
 note has been running the maker of the note is not liable for the pre- 
 mium in addition to the note. Maine Mut. Ins. Co. Y.Slunt, 64 — 95. 
 
 30. But if the premiums have been paid in cash, the maker of the 
 note can not have them deducted from the amount due on the note. 
 Howard v. Hinkley and E. Iron Co., 64 — 93. 
 
 31. The fact that the insolvency of the company rendered it unable 
 to perform its agreement to furnish insurance for the makers of the 
 note does not change the legal status of the note. Hinkley and E. 
 Iron Co. V. Maine Mut. lis. Co., 66 — 118. 
 
 32. liTor is it competent for the trustees of the company which has 
 received such notes for the better security of those concerned, in lien 
 of capital stock, to surrender such notes to the makers thereof upon 
 no other consideration than their agreement to claim nothing of the 
 company for their use, if the surrender will operate to the injury of 
 the creditors of the company. Maine Mut. Ins. Co. v. Pickering., 
 66—130. 
 
 33. The maker of a premium note given to a mutual insurance 
 company for the nominal premium upon an open policy executed to 
 cover such risks as may be afterwards indorsed thereon, is liable to 
 the company on such note, only to the amount of the actual pre- 
 miums assumed by the company and indorsed thereon. Maine Ins. 
 Co. V. Stockwell, 67—382. 
 
 34. Whether a premium note is given in the usual course of busi- 
 ness for an open policy, or is given under the charter for the better 
 security of dealers with the company, is a question of fact for the 
 jury. lb. 
 
 See Post, 87, 88. 
 
 III. EFFECT. 
 
 35. The acceptance of a negotiable promissory note for a pre-exist- 
 
64 BILLS AND NOTES. 
 
 ing debt, if the note is made payable at a future day, necessarily and 
 by operation of law, suspends the right of the creditor to enforce 
 payment of his debt till the pay day of the note arrives. Andrews 
 V. Marrett, 58 — 539. Thompson v. Gray, 63 — 228. York v. Pier- 
 son, 63—587. 
 
 36. An accepted bill of exchange is prima facie evidence of pay- 
 ment of the debt for which it is given, aliter, as to an unaccepted 
 bill. Strang v. Hirst, 61 — 9. 
 
 37. An accommodation indorser of a negotiable promissory note 
 can not recover of the maker the amount of the note, on the ground 
 of payment thereof by another note, unless it appears that the second 
 note was given under such circumstances as to constitute it a pay- 
 ment by the plaintiff. Lentell v. Getchell, 59 — 135. 
 
 38. Thus, the plaintiff, at the request and for the accommodation of 
 the defendant, became second indorser of a promissory note made 
 payable to the order of, and signed and indorsed by the defendant. 
 At maturity the note was taken up by one of like tenor, signed and 
 indorsed by one Thompson, and further indorsed by the plaintiff and 
 one Sumner. When the second note matured, it was taken up by a 
 note of like tenor, signed and indorsed by Sumner, and further in- 
 dorsed by the plaintiff who paid it at maturity. While the second 
 note was outstanding, and before its maturity, the plaintiff sued the 
 defendant, claiming to recover for payment of the latter's note, and 
 interest on the money paid ; held, that the a:ction could not be main- 
 tained, in the absence of proof, that the second note was given as 
 payment by the plaintiff. lb. 
 
 39. A negotiable note given to an insurance company for premiums 
 for policies issued for the benefit of whom it may concern, by the 
 person receiving the policies, is prima facie payment thereof, and 
 the company after receiving such note can not afterwards resort to 
 the person for whose benefit the insurance was effected, although 
 such person has not in fact paid the premiums to the person giving 
 the note to the company therefor. Union Ins. Co. v. Grant, 68 — 229. 
 
 See Payment, 7, et. seq. 
 
 IV. ACCEPTANCE. 
 
 40. Conditional. A letter from the drawee to the payee of an 
 order, saying he should not pay any orders of the drawer until settle- 
 ment with him, and that if there is anything over he will keep it back 
 for that purpose, is a conditional acceptance. Stevens v. Androscog- 
 gin W. F Co., 62—498. 
 
 41. A conditional acceptance becomes absolute upon the performance 
 or happening of the condition. lb. 
 
 42. When the acceptance of an order is conditional the assent of the 
 holder may be presumed from the fact that he allows the drawee to 
 retain the order, keeps the acceptance himself, and neglects to other- 
 wise secure his debt for which the order was given. lb. 
 
 43. The payer of a negotiable note drew an order upon the maker 
 directing him to pay the amount of the note to a person named in the 
 order. The date and time of payment of the note was not stated in 
 the order, which stated that the amount "was" eight hundred dollars. 
 The order was not presented to the maker of the note but he was inform- 
 
BILLS AOTD NOTES. 65 
 
 ed of it by letter and replied in effect that h.e would pay the note to 
 the person in whose favor the order was drawn. Held, that if there was 
 an acceptance it was a conditional one. Noyes v. Gilman, 65 — 589. 
 
 V. INDOESEMENT. 
 
 44. Indoksembnt merely to pass the title. It is competent for 
 one who has indorsed a negotiable promissory note in blank, in a suit 
 brought against him by his immediate indorsee, to show in defense, 
 that he indorsed the note merely to pass the title, and that the under- 
 standing between the parties was, that the defendant's indorsement 
 was made solely for the purpose of transferring the note, and that he 
 assumed no liability, conditional or otherwise, thereby. Patten v. 
 Pearson, 57 — 428. 
 
 45. When the plaintiff's testimony shows enough to justify the jury 
 in finding that the indorsement was made for such purpose only, and 
 that such an understanding did subsist between the parties, it is erron- 
 eous to instruct the jury to find for the plaintiff, if they are satisfied 
 that the note was indorsed by the defendant prior to its delivery to 
 the plaintiff. lb. 
 
 46. By Coepoeation. Where a note made payable to a corporation 
 is purchased of the maker by a third person, the corporation has the 
 power to use its name, in the indorsement of the note, to enable the 
 purchaser to maintain a suit against the maker in his own name. 
 Chase v. Hathorne, 61 — 505. 
 
 47. This right or power may be exercised by a savings bank as 
 well as any other banking institution. lb. 
 
 48. When the president of an insurance company has power by a by- 
 law to adjust all losses or claims against the company, his indorsement of 
 a premium note belonging to the company for the purpose of paying a 
 debt due from the company to the indorsee, and which does have that 
 effect is prima facie valid,' and passes the title to the note, it not 
 appearing that the company object to the indorsement, notwithstand- 
 ing another by-law of the company authorizing him to indorse notes 
 when authorized by the directors. Union Ins. Co. v. Greenleaf, 64 
 —123. 
 
 49. Joint oe Several Indorsement. When several signatures 
 appear upon the back of a negotiable note, below that of the original 
 payee, the prima facie presumption is that the signers are successive 
 indorsers in the order in which the names appear, but this presumption 
 may be rebutted by proof of any other contract between them, express 
 or implied. Coolidge v. Wiggin, 62 — 568. 
 
 50. The rule that when the names of several persons appear below 
 that of the original payee, upon the back of a negotiable promissory 
 note, the prima facie presumption is that they are successive indorsers, 
 in the order in which their names appear, applies to paper indorsed 
 for the accommodation of the maker. lb. 
 
 51. Evidence that the maker of a negotiable promissory note pre- 
 sented it to a bank for discount indorsed by the payee and another 
 person, and that upon the refusal of the bank to discount it the maker 
 procured another indorser who knew the others to be accommodation 
 indorsers, upon which the note was discounted, does not show a joint 
 
66 BILLS AND NOTES. 
 
 undertaking, and the last indorser, having paid the note may recover 
 of any prior indorser. lb. 
 
 52. Bt Maebied WoMAif. When a negotiable promissory note pay- 
 able to a single v^oman is transferred by her for a valuable considera^ 
 tion and delivered to the assignee without indorsement, and subse- 
 quently she marries the maker of the note, her indorsement of the 
 note after the marriage is effectual to transfer the legal title to the 
 assignee. Cruptil v. Some, 63 — 405. 
 
 53. Bt Bankrupt. A bankrupt, the payee of a negotiable biU 
 or note, who before bankruptcy sells and delivers the same without 
 indorsing it, may indorse it after bankruptcy so that the holder may 
 maintain an action thereon in his own name. JSersey v. Elliot, 67 — 
 526. 
 
 54. Special Indoesement. When the payee of a negotiable note 
 signs his name upon the back under these words "I this day sold and 
 delivered to C. M. A. the with not ," he thereby assumes all the liar 
 bilities of an ordinary indorsement of the note to C. M. A. Adams v. 
 JBlethen, 66—19. 
 
 55. In such case the indorser cannot claim that as the contract is in 
 writing, and expressed, nothing more than a sale can be implied. The 
 contract is in part expressed, and in part implied. li. 
 
 56. The liabilities implied by indorsing a note can be qualified or 
 restricted only by express terms. lb. 
 
 57. If the first indorsee of a promissory note acquire a right of action 
 against the maker, by being a bona fide purchaser, without notice 
 and before maturity, he can transfer a good title as well after as before 
 the note becomes due. Roberts v. Lane, 64 — 108. Dillingham v. 
 Blood, 66—140. 
 
 58. This rule is applicable to a note given for intoxicating liquors 
 sold in violation of law. lb. 
 
 VI. DEMAND. 
 
 59. How Made. The actual exhibition of the note, at the time of a 
 demand for payment, is not necessary, if the holder has it with him 
 and is not requested to produce it. King v. Crowell, 61 — 244. 
 
 60. Whbee Made. A demand of payment of a note payable gener- 
 ally may be made upon the maker in the street, his place of business 
 being closed, and no objection being made to the place of the demand. 
 lb. 
 
 61. When no place of payment is specified on a note a presentment 
 at the residence of the maker will suffice, though he be out of town at 
 the time. Brooks v. Blaney, 62 — 456. 
 
 62. A demand at a former place of business of the maker of the 
 note is not sufficient to charge the indorser. lb. 
 
 63. The testimony of the notary that after making diligent search 
 for the maker of a note at his late place of business, and at other places 
 named, he ascertained from the directory where he resided, went to 
 the house, presented the note, demanded payment, and was informed 
 that the maker was not in, that the informant did not know where he 
 was, and that no money was left to pay the note, is, in the absence of 
 other testimony, sufficient to authorize the inference that the demand 
 
BILLS AZSTD NOTES. 67 
 
 was at the actual place of residence of the maker, and that sufficient 
 effort to present the note to him personally was made. Ih. 
 
 VII. NOTICE. 
 
 63. What it Must Contaiu-. A notice to the indorser of a note 
 merely informing him of the non-payment of the note and demanding 
 payment of him, without stating that payment had been demanded of 
 the maker, or giving any legal excuse for not demanding it of him is 
 insufficient to charge the indorser. Page v. Gilbert, 60 — 485. 
 
 64. A notice to an indorser of the non-payment of a note need not 
 state the name of the ])ayee, if it sufficiently identifies the note, and 
 shows the indorser's liability. Brooks v. Blaney, 62 — 456. 
 
 65. When Given. A notice to an indorser upon the last day of 
 grace, after demand upon and refusal of payment by the maker, is not 
 premature. King v. Crowell, 61 — 244. 
 
 66. Where Sent. An averment of notice of the dishonor of a bill 
 or note is sufficiently proved by evidence that a letter, containing the 
 proper information, was seasonably put into the post office, directed to 
 the indorser at the town where the holder had good reason to believe, 
 and did believe, he resided. Saco Nat. JBanh v. Sanborn, 63 — 340. 
 
 67. If the indorser changes his residence, and the holder has no 
 knowledge of such change, and is not guilty of negligence in not 
 knowing it, notice sent to his former place of residence is sufficient. lb. 
 
 68. When nothing has occurred to suggest a change no inquiry is 
 necessary. lb. 
 
 69. If upon inquiry of a person likely to know, such an answer is 
 received as leaves no reasonable doubt upon the mind of the inquirer 
 that the indorser's residence is ascertained, no further inquiry is neces- 
 sary, lb. 
 
 70. If there are two or more post offices in a town, notice directed 
 to the town generally is sufficient, unless the sender knew, or was 
 negligent in not knowing, the particular office at which the indorser 
 was in the habit of receiving his letters. lb. 
 
 VIII. PROTEST. 
 
 71. A statement in the official certificate of the notary that he 
 "delivered notice of the non-payment of said note" to the indorser, 
 "demanding payment of him" is insufficient to charge the indorser. 
 Page v. Gilbert, 60^85. 
 
 72. It is competent for the notary who protests a note to testify as 
 to the contents of the notice sent the indorser, though no notice is 
 given the indorser to produce the notice at the trial. Brooks v. 
 Blaney, 62—456. 
 
 IX. EIGHTS OF THE PAETIES TO THE NOTE. 
 
 (a) Indoesbe ». Makbb. 
 
 (b) Indoksbe b. Indobsbe. 
 
 (c) Bbtwbbjst the oeiginal paetibs. 
 
 (d) G-ENEEALLT. 
 
 (a) Indorsee v. Maker. 
 
 73. Intoxicating Liquoes. The indorsee of a negotiable promis- 
 
68 BILLS AND NOTES. 
 
 sory note given for intoxicating liquors, sold in violation of law, is 
 presumed to be the "holder" thereof "for a valuable consideration and 
 ■without notice of the illegality of the contract." Baxter v. Ellis, 57 
 —178. 
 
 74. A negotiable promissory note, payable by installments, is dis- 
 honored when the first installment is overdue and unpaid. Field v. 
 Tibbetts, 57—358. 
 
 75. By virtue of Public Laws of 1858, c. 33, § 27, the fact that a 
 negotiable promissory note was overdue when negotiated, will not, in 
 an action thereon by "any holder for a valuable consideration, and 
 without notice of the illegality of the contract," subject it to the 
 defense that it was given in part for intoxicating liquors unlawfully 
 sold. lb. 
 
 76. And, under the statute, the fact that a note is overdue is not 
 notice express or implied, that it was given for intoxicating liquors. lb. 
 
 11. If in the trial of an action on a negotiable promissory note, 
 brought by an indorsee against the maker, the defendant avers that 
 the note was given in whole or in part for intoxicating liquors sold in 
 violation of law, the burden of j^roof is upon him. Mapgood v. 
 
 NeedJiam, 59 — 442. 
 
 78. If the plaintiff replies that he is a holder for a valuable considerar 
 tion, the burden is upon him. lb. 
 
 79. If the defendant would avail himself of the fact that the plaintiff 
 had notice of the illegality of the consideration when he took it, the 
 defendant must prove it. lb. 
 
 80. If a negotiable note given for intoxicating liquors sold in violar 
 tion of law is indorsed before maturity, for a valuable consideration, 
 to an indorsee without notice of the illegality, a subsequent indorsee 
 for a valuable consideration, although having knowledge of the original 
 illegality, succeeds to all the rights of the first indorsee. Dillingham 
 V. JBlood, 66—140. 
 
 81. The original payee of the note is the only person who can not 
 by purchase succeed to the rights of the first innocent holder. lb. 
 
 82. If the first indorsee of a negotiable promissory note acquires a 
 right of action against the maker, by being a bona fide purchaser for 
 value, and without notice of any invalidity in the note as between the 
 original parties, from fraud in its inception or want of consideration, 
 he can transfer a perfect title to the note as well after the maturity of 
 the note as before. Moberts v. Lane, 64—109. Billinqham v. 
 Blood, 66—140. 
 
 83. When it is shown that a note is procured by fraud, or founded 
 on an illegal consideration the indorsee who sues it, must show that 
 he came by it for value, in due course of business, unattended with 
 any circumstances justly calculated to awaken suspicion. This 
 appearing, the presumption arises that the note was obtained without 
 any knowledge of the fraud or illegality, upon the part of the pur- 
 chaser, until the contrary is shown. Swett v. Sooper, 62 — 54. 
 
 84. In an action on a negotiable promissory note brought by a bona 
 fide indorsee, who purchased before maturity, evidence that the payee 
 obtained the note by fraudulent representations, or that by a separate 
 writing it was agreed at the time that the maker should not be required 
 to pay it until he should realize from the sale of certain property money 
 
BILLS AND NOTES. 69 
 
 sufficient for that purpose, is inadmissible. Wait v. Chandler, 63 — 
 257. 
 
 85. Blakk Note peaudulen-tlt filled out. A person who neg- 
 ligently signs and delivers to another a printed blank note, not know- 
 ing it tp be such, but supposing it to be some other agreement, is 
 liable thereon if the blanks are afterwards wrongfully filled and the 
 note then transferred to a bona fide holder for value without notice of 
 the fraud. Abbott v. Rose, 62—194. 
 
 86. Also, if he signs a note without reading it, and relying upon the 
 representations of the payee that the signature was for another pur- 
 pose. Kellogg v. Curtis, 65 — 59. 
 
 87. Mbee knowledge by the indorsee of a negotiable note given to 
 an insurance company, that the note was given for a policy of insurance, 
 and that the company had met with severe losses, will not prevent the 
 indorsee from recovering against the maker, although after the indorse- 
 ment the company becomes insolvent, and the policy is surrendered. 
 
 Union Ins. Co. v. Greenleaf, 64 — 123. 
 
 88. Illegal Discottnt ov. The fact that a note was indorsed by 
 the maker, and discounted by a bank, with but one name, in violation 
 of the statute prohibiting banks from discounting paper without at 
 least two responsible names, will not avail the maker in the defense 
 of a suit upon the note by an indorsee from the bank, as the violation 
 of the statute by the bank is collateral to the contract of the maker 
 of the note. Roberts v. Lane, 64 — 108. 
 
 89. When a note given by one of the members of a firm to the firm 
 is indorsed by the firm before maturity, but the maker not paying it 
 at maturity it is taken up by the firm, and passed by delivery to a 
 third person, an action against the maker may be maintained by such 
 third person. Woodman v. Boothby, 66 — 389. 
 
 90. The payee of a note became a party to an assignment by the 
 principal debtor of his property for the benefit of his creditors at the 
 request of the sureties upon the note, and by memorandum in writing 
 the sureties agreed that by so doing the payee should release no right 
 against them on the note. 
 
 Held, that the right of action of the payee against the sureties was 
 not suspended until the final distribution of the principal debtor's 
 property under the assignment, nor would the discharge of the prin- 
 cipal release the surety. First National Banh v. McKenney, 
 67—273. 
 
 ,91. It is only when the circumstances attending the negotiation 
 are justly calculated to awaken suspicion that the purchaser of nego- 
 tiable paper is put u.pon inquiry. Smith v. Harlow, 64 — 510. 
 
 92. The holder of negotiable paper, taking it before maturity for 
 good consideration in the usual course of business, without knowl- 
 edge of facts impeaching its validity, holds it by a good title. 
 Farrell v. Lovett, 68—326. 
 
 93. To defeat his recovery it is not enough to show that he took it 
 under circumstances that ought to excite suspicion in the mind of a 
 prudent man. lb. 
 
 94. In a suit by an indorsee, to whom the note was indorsed before 
 maturity against the maker, the defendant may prove that the note 
 originated in fraud ; and if he establishes such a defense, a presump- 
 
70 BILLS AJSTD NOTES. 
 
 tion arises that the plaintiff was the holder without value, and to 
 overcome this presumption, the plaintiff must prove that he paid 
 value for it. But upon the issue of fraud in the inception of the 
 note, the law imposes the burden of proof upon the defendant ; and 
 the plaintiff is not called upon to prove that he was the holder for 
 value, until the fraud is proved. Heath v. Jaquith., 68 — 433. 
 
 95. Intermediate Innocent Holder. It is well settled that if 
 any intermediate holder between the plaintiff and the payee takes the 
 note under such circumstances as give him the rights of a bona fide 
 indorsee the plaintiff will have the same rights, although he may 
 have purchased when the note was overdue, or with knowledge of its 
 infirmity as between the original parties. Moherts v. Lane, 64 — 108. 
 
 96. Nor does it change the rule that the note was payable to the 
 order of the maker, is indorsed by him in blank, and bears no other 
 indorsement, if in fact the note passes through the hands of an kino- 
 cent holder. lb. 
 
 97. Fraud. Discharge by Payee. The bona fide assignee of a 
 chose in action will, in general, be protected against the release of 
 the nominal plaintiff, executed after notice to the defendant of the 
 assignment ; but where the payee of a negotiable promissory note 
 fraudulently indorsed it before maturity, and without value to the 
 plaintiff, for the purpose of excluding any inquiry into the fraudu- 
 lent inception or want of consideration of the note, and by fraudulent 
 assertions and devices concealed the true relations of the parties — in 
 an action of scire facias to obtain an alias execution upon the judg- 
 ment recovered upon such note in favor of the indorsee against the 
 maker ; held, that the court would not set aside a release from the 
 judgment creditor to the defendant, but let it have its legitimate 
 effect. Atlcinson v. Hunnells, 60 — 440. 
 
 See Post, 112. 
 
 (b) Indorsee v. Indorser. 
 
 99. As between the indorsee of negotiable paper and any one but 
 a holder in good faith for value, all the circumstances of the negotiar 
 tion may be inquired into, for the purpose of ascertaining whether 
 the indorser assumed any liability to the person to whom he passed 
 the paper, and where the indorsee's testimony shows enough to justify 
 the jury in finding that the indorsement was made only to transfer 
 the title, an instruction that a liability attached if the indorsement 
 was made before delivery is erroneous. Patten v. Pearson, 57 — 428. 
 
 100. If the payee of a negotiable promissory note, by his indorse- 
 ment thereon "without recourse" implied by warrants that it was given 
 for a valuable consideration, the statute of limitations begins to run 
 from the time the indorsement was made, and not from the date of a 
 verdict in favor of the maker in a suit by the indorsee. Plethen v. 
 Iiovering, 58 — 437. 
 
 101. When several signatures appear upon the back of a negotiable 
 note below that of the payee the prima facie presumption that the 
 signers are successive indorsers in the order in which the names 
 appear may be rebutted by proof of any other contract between them, 
 express or implied. Coolidge v. Wiggin, 62 — 568. 
 
 102. Where it appears that the maker of a negotiable note pre- 
 sented it to a bank for discount indorsed by the payee and another 
 
BILLS AND NOTES. 71 
 
 /' 
 person, and that upon the refusal of the bank to discount it the maker 
 procured another indorser who knew the first to be acconimodation 
 indorsers, there is not such evidence of a joint agreement as will over- 
 come the presumption of their several undertaking and the last 
 indorser having paid the note may recover of any prior endorser. lb. 
 
 103. When the payee of a negotiable note signs his name upon the 
 back under these words, "I this day sold and delivered to C. M. A. 
 the with not ," he thereby assumes all the liabilities of an ordinary 
 indorsement of the note to C. M. A. Adams v. Elethen, 66 — 19. 
 
 104. Alteration. A material alteration of a note, inthe hands of 
 an indorsee, without the knowledge of the indorser, discharges the 
 latter. Sheridan v. Carpenter., 61 — 83. 
 
 105. An indorser, ignorant of facts accruing subsequently to his 
 transfer of the indorsed note which operate to discharge him from 
 liability thereon, paying its amount to the holder, upon discovery of 
 such facts, can recover the sum so paid in an action for money had 
 and received, lb. 
 
 106. An offer to return the note to the defendant, made at the trial, 
 is sufficient, lb. 
 
 (c) Between the original parties. 
 
 107. An assertion in his bond for the sale of land that the obligor 
 is "possessed and seized in fee" of the premises, when in fact he has 
 only a bond for a deed thereof from the real owner, is, between the 
 original parties thereto, a good defense to a promissory note given in 
 consideration of the bond. Ooburn v. Haley, 57 — 346. 
 
 108. And, in such case, the maker of the note may rely upon the 
 misrepresentation in defense without returning the bond. lb. 
 
 109. Where the obligor of a bond, for the conveyance of certain 
 land to the obligee, upon the latter's payment of certain notes, at 
 maturity,^ conveys away the land, upon the failure of the obligee to 
 pay the notes according to their tenor, the administrator of the estate 
 of the obligor cannot enforce payment of them. Little v. Thurston, 
 58—86. 
 
 110. In an action on a promissory note, given in 1869, payable on 
 time, with interest at seven and one-half per cent, the plaintiff may, 
 under R. S. of 1857, c. 45, recover judgment for the amount of the 
 note at simple interest. Tuxbury v. Abbott, 59 — 466. 
 
 See Ante, 25. 
 
 (d) Generally. 
 
 111. The maker of a note is entitled to its possession upon pay- 
 ment. Otisjleld V. Mayberry, 63 — 197. 
 
 112. The assignment and delivery of a negotiable promissory note 
 before maturity, without indorsement, gives to the assignee only the 
 rights of the payee, though it may have been taken in good faith and 
 for value. Allum v. Perry, 68 — 232. 
 
72 BILLS AND NOTES. 
 
 X. PLEADIKG AND PRACTICE. 
 
 113. Who mat Sue. An action on a negotiable promissory note, 
 indorsed by the payee in blank, may be brought in the name of any 
 person who consents thereto, although the note is the property of an 
 insolvent bank in the hands of receivers. Baker v. Stinchjield, 
 57—363. 
 
 114. A note payable to the order of a person named may be sued 
 by him without indorsement. Durgin v. Bartol, 64 — 473. 
 
 115. When a note, payable to the order of the maker, and indorsed 
 in blank by him is discounted by a bank without other names, if on 
 account of a statute prohibition, the property in the note does not 
 pass to the bank, then the officer of the bank who directed the pur- 
 chase, and who is responsible to the bank for the use of its funds 
 to make the purchase, must, it seems, be deemed the bearer of the 
 note, and may enforce it against the maker. Roberts v. Lane, 64 — 
 108. 
 
 116. When a note, given by one of the members of a firm to the 
 firm, is indorsed by the firm, the indorsee may maintain a suit there- 
 on. Woodman v. Boothby, 66 — 387. 
 
 117. Agreement not to Sue. An agreement by a creditor with 
 a surety upon a note not to sue until the termination of certain pro- 
 ceedings by which he expected to obtain part payment from the 
 principal, will not bar an action by the creditor against the surety 
 prior to the termination of the proceedings. The remedy of the sure- 
 ty would be by suit for breach of the contract. First National 
 Bank v. McKenney, 67—273. 
 
 118. Rule X. of the supreme court does not preclude a defendant 
 in a suit upon a note from taking the burden upon himself, and prov- 
 ing a material alteration which would avoid the contract, without 
 making an affidavit of its alteration. JSewins v. Gargil, 67 — 554. 
 
 119. Dbclaeation. Joint and Several Note. In a suit upon 
 a joint and several note, against one of the makers, it is sufficient, in 
 the declaration, to set out the note according to its legal import and 
 effect, as the note of that maker, without setting out the joint contract. 
 First National Bank v. McKenney, 67 — 273. 
 
 120. And in such a suit, the fact that some of the makers are de- 
 scribed in the note as principals, and some as sureties, need not be 
 noticed. Ih. 
 
 121. Vabiance. ISTor can it be objected that there is a variance 
 between the note and declaration, when the declaration sets out a 
 promissory note of the defendant, by him signed, and the note offered 
 in evidence is a joint and several note signed by the defendant and 
 others, some of the signers being described as principals and some as 
 sureties. Ih. 
 
 See Pleading, 66. 
 
 122. Nominal Plaintiff. The promisor upon negotiable paper 
 cannot avoid judgment against him in a suit upon his broken con- 
 tract inerely upon the ground that the person or party in whose name 
 the suit is brought or prosecuted has no interest in the enforcement 
 of the promise. Ticonic Bank v. Bagley, 68 — 249. 
 
 123. Provided the promisor is not thereby deprived of any just and 
 
BILLS AST) NOTES. 73 
 
 legal defense or in any way defrauded or oppressed, he has no cause 
 of complaint because his promise is construed, as it runs, to pay to 
 the order of any person into whose hands it may lawfully fall. Jb. 
 
 ■124. It is no defense to a suit against the maker of a negotiable 
 promissory note by a national bank which had discounted the note 
 for an indorser, that since the commencement of the suit the indorser 
 has paid the bank and taken an assignment of the suit and is prose- 
 cuting it for his own beneiit. lb. 
 
 XI. EVIDENCE. 
 
 125. The Dbclaeations of the payee of a negotiable note, illegal 
 in its inception, are not admissible to prove him the holder after 
 maturity or to prove the illegality, unless it affirmatively appears that 
 he held the note when he made the declarations. Baxter v. Ellis., 
 57—178. 
 
 126. If the plaintiff claims a note was made payable to one when 
 the money for which it was given belonged and was lent to the 
 maker by another, the admissions of the jiarty having the beneficial 
 interest in the note, that it has been paid are admissible, and the fact 
 that the maker denies that the consideration moved from such ben- 
 ificiary does not preclude him from presenting evidence of such ad- 
 mission. Eaton V. Garson, 59 — 510. 
 
 127. Pakol evidence is inadmissible to control the legal effect of 
 bills of exchange. Sturdivant v. Hull^ 59 — 172. 
 
 128. Where the word surety is attached to the signature of one of 
 several makers of a note, if the person to whose name the word is 
 attached is to be regarded jon'ma facie as surety for all the other 
 makers, parol evidence is admissible to show the true relation be- 
 tween the makers, who were sureties and who principals. Ilichborn 
 V. Fletcher, 66—209. 
 
 129. Vaeiancb. a note, reading, we promise, etc., signed Augus- 
 ta Shovel Co., A. D. B., Pres., is not admissible under a count describ- 
 ing it as the note of A. D. B. alone, or a count describing it as the 
 joint and several note of the Shovel Co., and A. D. B. Atkins v. 
 Brown, 59—90. 
 
 See Ante, 121. 
 
 130. BuEDEN OP Peoop. When want of consideration is set up 
 as a defense to a note, in a suit between the original parties, and 
 proof is introduced on both sides, the burden is on the plaintiff to 
 show that there was a consideration. Small v. Clewley, 62 — 155. 
 
 131. Makbe of Note as Witness. The maker of a negotiable 
 note is a competent witness to prove that he was induced to sign it 
 by the fraudulent representations of the payee that it was another 
 and different instrument. Abbott v. Rose, 62 — 194. 
 
 132. Evidence of Notice to Indoesee. In an action by an 
 indorsee against an indorser an averment of notice is sufficiently 
 proved by evidence that a letter containing the proper information 
 was seasonably put in the post office directed to the indorser at the 
 town where the plaintiff had reason to believe and did believe he 
 resided. Saco National Banh v. Sanborn, 63 — 340. 
 
 133. In such action it is competent for the notary who protests a 
 note to testify as to the contents of the notice sent by him to the 
 
74 BOND. 
 
 indorser, though no notice is given to the indorser to produce the 
 notice at the trial. Brooks v. Blaney, 62 — 456. 
 
 See Alteration of Instruments, p. 17. 
 
 consideeation. 
 
 Limitations, Statute oe, 33, 34. 
 
 Mortgage, 49. 
 
 Payment, 86. 
 
 Trover, 5, 9. 
 
 Sale, 21. 
 
 Witness, 1, 14. 
 
 BOND. 
 
 I. EXECUTION AND VALIDITY. 
 II. CONSTRUCTION AND BREACH. 
 III. PLEADING AND EVIDENCE. 
 
 I. EXECUTION AND VALIDITY. 
 
 1. Collector. Approval. After default in an action on a col- 
 lector's bond, if it conforms in terms to the requirements of the 
 statute, has been accepted by the selectmen and acted under by both 
 parties as a statute bond, it will be regarded as such, though not ap- 
 proved in writing. Gorham v. Hall, bl — 58. 
 
 2. Treasurer. The failure of the selectmen to examine the ac- 
 counts of a town treasurer, as directed by R. S., 1871, c. 6, § 152, will 
 not affect the liability of the sureties on the bond. 
 
 Nor will a surety be released if the selectmen, failing to detect 
 an error in addition certify the treasurer's account to be correct, 
 when, in fact, there is a deficit ; even if this certificate is made known 
 to the surety soon after its entry upon the treasurer's books, and 
 while the treasurer has attachable property to cover the deficit, and 
 he subsequently dies insolvent. Farmington v. Stanley, 60 — 472. 
 
 8. Alteration. A town can not maintain an action against the 
 sureties upon a collector's bond which, after its delivery and approv- 
 al, has been altered by the principal, by changing the penal sum from 
 twenty-five hundred to twenty-five thousand dollars, without the 
 knowledge of the sureties, but with the knowledge of the selectmen. 
 Dover v. Bobinson, 64—183. 
 
 See Alteration op Instruments, p. 17. 
 
 4. Form. It is not necessary that the names of the obligors ap- 
 pear in the body of the bond. It is sufficient if it be signed by them. 
 Fournier v. Oyr, 64 — 82. 
 
 5. Signature. Nor is it material that the signatures and seals 
 are between the penal part of the bond and the condition. Ih. 
 
 6. Date. A bond, after delivery, will be valid though it bear no 
 date, or an erroneous one. Ih. 
 
 7. Constable. Approval. In the statute providing that every 
 constable, before he shall serve any writ, shall give a bond, "with two 
 
BOND. 75 
 
 sureties sufficient in the opinion of the selectmen who shall indorse 
 their approval on said bond, and in their own hands," the written 
 approval of the selectmen is not essential to the validity of the bond, 
 the provision as to them, being directory only. Ih. 
 
 8. Statute Bond. In the absence of any statutory provision de- 
 claring a variance from the statute form fatal, in case of a bond given 
 for the purpose of conforming to the statute, such variance does not 
 render the bond invalid as a statute bond when the condition does 
 not impose upon the obligors a greater burden than the law allows. 
 Cleaves v. Dochray, 67 — 118. 
 
 9. Good at Common Law. But if it imposes more onerous burdens 
 than the statute allows, and if, after rejecting the additional matter as 
 surplusage, there is not enough left to meet the requirements of the 
 statute, it can not be enforced as a statute bond, but may be good at 
 common law. lb. 
 
 10. Seal. All the obligors in a bond may adopt one seal. Booth- 
 hay V. Giles, 68 — 160. 
 
 11. The fact that an instrument contains the words "witness our 
 hands and seals," when there is no seal attached, does not make it a 
 bond or sealed instrument. lb. 
 
 12. A seal will, in general, avoid a defense of want or failure of 
 consideration. Van Yalhenburg v. Smith, 60 — 97. 
 
 13. But not a defense founded on an illegality of consideration. 
 Morrill v. Qoodenow, 65 — 178. 
 
 14. A bond in a penal sum, given by the treasurer of State, with 
 sureties, to the State, conditioned for the faithful performance of the 
 official duties of the treasurer ; that he will render an account, when 
 required by the legislature, of all sums of money he shall receive into 
 the treasury, and pay to his successor or any other person appointed 
 by the legislature to receive the same, all such sums of money and 
 property upon settlement of his accounts as shall be found due from 
 him,- as treasurer, to the State ; "that during his continuance in office, 
 he will not engage in any business of trade or commerce, or as a 
 broker, nor as agent or factor for any merchant or trader;" "that he 
 will render a true account ... to the legislature ... on the first Wed- 
 nesday of January " following the date of such bond, and faithfully 
 and without delay deliver to his successor all the moneys, books, 
 property and appurtenances of said office remaining in his hands, and 
 pay over all such balances as shall appear due, etc., is a "contract in a 
 penal sum for the performance of covenants or agreements " within 
 R. S., c. 82, § 16. State v. Feck, 58—123. 
 
 II. CONSTRUCTION" AND BREACH. 
 
 15. A condition that the defendant will "not engage in the retail 
 sale of fish" is broken if he engages in the retail sale of oysters. 
 Caswell v. Johnson, 58 — 164. 
 
 16. Penalty. In a bond in which the defendant acknowledges 
 himself bound and obliged unto the plaintiff in the sum of five hun- 
 dred dollars, conditioned that in part consideration of the sale by the 
 defendant to the plaintiff of his fish market and stock, he, the defend- 
 ant, will not engage in the retail sale of fish in a town named, the five 
 hundred dollars is a penalty and not liquidated damages. H. 
 
76 BOND. 
 
 17. The bond of the town of Skowhegan and the inhabitants 
 thereof, to the county and the county commissioners, executed in behalf 
 of the town by the selectmen in their official capacity, and also as a 
 committee specially authorized therefor, agreeing to convey to the 
 county, in such form and at such time within five years of this date 
 
 as they may require, a suitable site for county buildings, 
 
 to the acceptance of the county commissioners, is a sufficient compli- 
 ance with the condition of Public Laws, 1872, c. 8, that the town shall 
 secure the conveyance of a suitable site for county buUdings. Wal- 
 ton V. Greenwood, 60 — 356. 
 
 18. Where the several obligors in a bond are each responsible for 
 his own share alone, an overpayment by one is not a matter which 
 the others can inquire into. Pettingill v. Pettingill, 64 — 350. 
 
 19. DiscHAEGE. Dbath. Alimont. a bond given to secure the 
 payment of alimony until the further order of court, is not discharged 
 by the death of the libelee. Miller v. Miller, 64 — 484. 
 
 III. PLBADIITG Al^D EVIDENCE. 
 
 20. The principal defendant, having been arrested on a writ in 
 favor of the plaintiff, gave a bond with sureties, therein acknowledg- 
 ing themselves bound unto the deputy sheriff who made the arrest, 
 by name, in a specific sum, "to be paid unto the plaintiff," i.e. with the 
 condition in the usual form of a bail bond. In debt on the bond 
 brought in the name of the plaintiff. Mid, that if it be deemed a 
 valid common law bond, the action must be in the name of the sher- 
 iff, to whom it was given. Packard v. Brewster, 59 — 404. 
 
 21. It is not good ground of demurrer that a bond, though several 
 as well as joint, is not so described, the action being joint, is sustained 
 by the joint bond of the defendants. Colton v. Stanwood, 67 — 25, 
 
 22. In debt on bond, it is not necessary for the plaintiff in his dec- 
 laration, to count upon any other than the penal part of the instru- 
 ment ; leaving the condition to be pleaded by the defendant, if it 
 affords him any defense. Colton v. Stanwood, 68 — 482. 
 
 23. Evidence. G., the cashier of a bank in Portland, received a 
 letter from a person, supposed to be a banker or broker in New York, 
 asking for a purchaser for the bonds of a Maine Railroad Company. 
 G. informed H. of the matter, and the latter authorized G. to offer 
 ten per cent of their face for the bonds. The offer was accepted; 
 the bonds forwarded to G., who delivered them to H., and transmit- 
 ted the pay therefor to the New York party. Neither G. or H. had 
 personal knowledge of the New York Party, or made inquiries as to 
 his title to the bonds, and more than one year later, G., when giving 
 his deposition, could not recollect his name and refused to look over 
 the files of the bank to ascertain to whom the money was sent, alleg- 
 ing that it would take too much of his time. It was not shown that 
 the market value of the bonds was more than the price paid. Held, 
 on report that these facts did not overcome the testimony of G. and 
 H., that they acted in good faith, and that they had shown a pur- 
 chase in the usual course of business, and unattended with circum- 
 stances calculated to awaken suspicion. Smith v. Harlow, 64 — 510. 
 
 24. Innocent Holder. The purchaser of bonds purporting to be 
 issued by authority of law, and payable to bearer, is presumed prima 
 
BOOM — BOUNTY. 7T 
 
 facie to be an innocent holder for value, whose title accrued before 
 maturity. Deering v. Houlton, 64 — 254. 
 
 25. Coupon. And the possession of coupons is prima facie evi- 
 dence that the holder of them is the holder of the bonds from which 
 they were cut. lb. 
 
 26. Town Bond. In a suit against a town by a bona fide holder 
 of its bonds, whose title accrued before maturity, where the town 
 has authority to issue such bonds, want of compliance with the form- 
 alties required by statute, or fraud on the part of the agents of the 
 town issuing them, can not be shown in defense. lb. 
 
 See Opmcee, 47. 
 
 Pleading, 67, 70. 
 Review, 13. 
 Town, 3. 
 
 BOOK ACCOUNT. 
 
 See Witness, 40. 
 
 BOOM. 
 
 1. The plaintiff corporation, by authority from the legislature, 
 leased to the defendant its booms and other property, the latter pay- 
 ing a specified toll for each log, "passing through said booms." There 
 ■were two booms some distance from each other, and sometimes logs 
 once rafted from the upper boom were again rafted at the lower. 
 Held, that the plaintiff was entitled to but one toll for such logs as 
 were twice rafted, they passing through the booms but once. Pen- 
 obscot Soom Company v. Penobscot I/umbering Association, 61 — 
 533. 
 
 2. When the charter of a boom corporation provides that it shall 
 so construct its booms as to admit the safe passage of rafts and boats, 
 and preserve the navigation of the river, it has no right to swing a 
 boom across the river and obstruct its navigation, though done ever 
 so carefully. Plum/mer v. Penobscot L. A. 67 — 363. 
 
 See Lien, 39. 
 
 Watee Couese, 10. 
 
 BOUNTY. 
 
 1. Under an article in the warrant, "to see what action the town 
 will take relative to aiding the State in complying with the late requi- 
 sition of the president," for men and means to suppress the rebellion, 
 the town "voted that the soldiers from this town have five dollars per 
 month added to the government pay." Held, that to enable the 
 plaintiff to recover he must show that he entered the army under the 
 
T8 BOTXNTY. 
 
 call of the president issued prior to the date of the article. Gordon 
 T. Eeadfield, 58—293. 
 
 2. When a resolve of a city government provided that for the pur- 
 pose of filling the quota of the city, under a specified call, a certain 
 bounty should be paid "to each man who has volunteered or shall 
 volunteer," the payment to be made "on receiving satisfactory proof 
 that such man has volunteered, and been accepted, and mustered into 
 the military service as part of said quota," proof that the enlisted 
 man was credited upon the quota by the proper authority was held 
 essential to recovery. A memorandum upon the muster roll made by 
 a mustering officer in Florida was held insufficient. Patten v. -Saw- 
 gor, 58—344. 
 
 3. The confirming statutes of 1868, 1864 and 1865, do not authorize 
 a town to refund money voluntarily contributed by an individual to 
 aid the town in procuring soldiers to fill its quota. Perkins v. Mil- 
 ford, 59—315. 
 
 4. In an action on a town order given to a drafted man under a 
 vote "to pay each man that is conscripted and examined by the sur- 
 geon and accepted," the plaintiff must show that he was examined 
 and accepted. Sail v. Falmouth, 59 — 421. 
 
 5. None of the soldiers who enlisted, or were drafted, and went any 
 time during the war, are entitled to any of the surplus reimbursed by 
 the State, unless they represented their town in the army. Pearson 
 V. HamlirUs Grant, 60 — 157. 
 
 6. The soldiers entitled to share in the surplus mentioned in the 
 act of. 1868, c. 225, are those who served on the town's quota without 
 receiving a bounty from the town. Their shares are in proijortion to 
 the length of time they served. Riggs v. Lee, 61 — 499. 
 
 7. A soldier may recover his share of the surplus, in an action of 
 assumpsit, after demand upon the selectmen and a refusal to pay it. 
 
 8. The plaintiff, an inhabitant of another town, was by mistake, 
 upon his re-enlistment in March, 1864, enrolled as of the defendant 
 town. 
 
 In September, 1864, upon discovering the mistake, and after the 
 plaintiff had received three hundred dollars from the State, the 
 selectmen of the defendant town agreed with the plaintiff that if he 
 would not correct the mistake the town would pay him the bounty 
 the town was then paying. Held, that, under the act of 1864, pro- 
 hibiting any person fi-om receiving any sum in addition to the bounty 
 provided for in that act, he could not recover, nor could he recover 
 under the act of March 7, 1868, as he had already received the boun- 
 ties which were the consideration for his enlistment. Canwell v. 
 Canton, 63—304. 
 
 9. The fact that a town has received from the State, by mistake, 
 one hundred dollars under the act for the equalization of bounties, 
 because the name of a soldier was on the quota of the town, does not 
 give the soldier the right to recover that sum of the town. Ih. 
 
 10. Under a vote to pay a bounty to "each volunteer to fill the 
 town's quota for the present call," a volunteer, enlisted after the 
 quota was filled, is not entitled to the bounty. Preble v. Gilead, 68 
 —321. 
 
BRIDGE — BUEDBN OP PEOOP. 79 
 
 11. In order to maintain an action against a town to recover the 
 one hundred dollars received by it under the reimbursement act of 
 March 7, 1868, on account of the services of the plaintiff as a soldier, 
 it is necessary that it should appear that the town under that act 
 received a surplus above the amount actually paid out. Ih. 
 
 12. The ratifying acts of 1865 and 1866 place on the same footing 
 the substitute, the drafted man, and the volunteer, whether he enlist- 
 ed before or after the passage of the vote of the town. Yose v. 
 Frankfort, 64—229. 
 
 13. The ratifying act of 1865 making valid notes and town orders 
 given by the municipal officers of cities, towns and plantations for the 
 benefit of volunteers, applied only to such notes and other contracts 
 as were in existence at the time of the passage of the act. Bessey y. 
 Unity, 65—342. 
 
 14. The similar act of 1866, ratifying acts of municipal officers is not 
 limited in its operation merely to such securities as were executed by 
 the municipal officers. 11). 
 
 15. But if an agent was authorized by vote to give "obligation 
 binding the inhabitants of the plantation," and was entrusted with 
 an order signed in blank by the assessors, to be filled up and deliv- 
 ered to the person from whom he should procure the means to pay 
 the bounties, such order when delivered to the party lending the 
 money, for that purpose, comes within the description of the con- 
 tracts made valid by the statute. Ih. 
 
 16. Only the doings of meetings legally notified and held were 
 made valid by the ratifying acts. Ih. 
 
 BRIDGE. 
 
 See Indictment, 31. Nbgligencb, 31. Waives, 16. Wat, 3, 4. 
 
 BURDEN OF PROOF. 
 
 See Abatekbnt, 4, p. 2. Bills and Notes, 74, et. seq., p. 68, 
 94, p. 69. Bond, 23, p. 76. Caeeiee, 6, p. 80. Evi- 
 dence, 102, et. seq. Railroad, 63. Will, 11. 
 
 BY LAWS. 
 
 See Complaint, 4. Odd Fellows Lodgb. Town, 20. 
 
80 CAEEEEES. 
 
 CARRIERS. 
 
 I. RIGHTS AND DUTIES AS CAKEIERS OF GOODS. 
 II. OP PASSENGERS. 
 III. GENERALLY. 
 
 I. OF GOODS. 
 
 1. The M. C. R. R. Co. let to the Eastern Express Co. for four years 
 the exclusive use of a specified space in a car attached to their pas- 
 senger trains, for the purpose of transporting the express company's 
 messenger and merchandise, and agreed that they would not, during 
 that time, let any sjsace in any car on their passenger trains to any 
 other express carrier ; and the R. R. Co. before the expiration of the con- 
 tract, but after reasonable notice to them, refused to receive upon any 
 terms from the plaintiff, when and where they received the Eastern 
 Express Company's freight, such packages as are usually carried by ex- 
 press companies, to be transported by their passenger trains. Seld, 
 that the railroad company were liable in an action for damages, under 
 Public Laws, 1868, c. 193, and also, that at common law the railroad 
 company would have been liable to an action under the same circum- 
 stances. New England Express Co. v. Maine Central M. H. Co., 
 57—188. 
 
 2. Loss OF Goods beyond the Caeeiee's Route. Where a com- 
 mon carrier takes goods to forward and deliver, if within his route, if 
 not, to deliver to the connecting express or a stage at the most conven- 
 ient point, his liability as a common carrier ceases when the goods ar- 
 rive at such convenient point of intersection. The common carrier then 
 becomes a forwarder and he ceases to be an insurer of the safety of 
 the goods forwarded. Plantation JVb. 4 v. Hall, 61 — 517. 
 
 3. A carrier is not liable for goods lost beyond the end of his route, 
 unless by special contract. Shinner v. Hall, 60 — 477. Grindle v. 
 Eastern Express, %1 — 317. 
 
 4. Proof of a contract to carry beyond the route of the carrier should 
 be clear. Grindle v. Eastern Express Co., 67 — 317. 
 
 5. Receiving goods marked for a place beyond the regular route is 
 not sufiicient evidence of a contract to carry to that place. Ih. 
 
 6. BiTEDEN OP Peoof. When a common carrier takes goods to be 
 delivered to a connecting stage or other conveyance, and does deliver 
 them to the driver of the connecting stage, who converts them to his 
 own use, in an action against the carrier the burden of proof is not 
 upon him to show that the driver of the stage was honest and trust- 
 worthy, but upon the plaintiff to show negligence in the carrier in 
 delivering the goods to the driver. Plantation No. 4 v. Sail, 61 — 517. 
 
 7. Delivery. If a truckman receives no other direction than to 
 take a box "to the early train," he fulfills his contract, by taking it 
 there, and finding neither the owner, nor any authorized agent'of his 
 to receive it there, placing it in the depot, with the knowledge of the 
 baggage master, upon the platform where articles going upon the 
 train are usually put. Manheim v. Carr, 62 — 473. 
 
 8. The plaintiff contracted with the Red Line Co., consisting of 
 several R. R. companies, including the defendant, to transport a 
 
CAEEIBES. 81 
 
 quantity of corn from Deleyan, Ohio, to East Boston, Mass. The 
 corn was intended for further conveyance to Springvale, Maine, but by 
 mistake of the shipper, or of the railway clerk, was billed to Spring- 
 vale, N". H. By mistake of the agent of the Red Line Co., at 
 Toledo, the word Springfield was substituted for Springvale in the 
 way bill. Upon its arrival at East Boston one oar load was sent to 
 the station nearest to Springfield, IST. H., and thence back to East 
 Boston, where it was demanded by the plaintiff upon his tender of 
 the charges from Delevan to East IBoston. The defendant refused to 
 deliver it to him unless he would pay the charges incurred by the 
 trip from East Boston to the station nearest Springfield and back, and 
 upon his refusal to do this, after notice to him, sold the corn at jjub- 
 lic auction. Meld, that the defendant was liable for its value in 
 trover. Jones v. Boston & Albany R. R. Go., 63 — 188. 
 
 9. Acceptance. In the absence of fraud a common carrier is liable 
 for the loss of a parcel, however valuable, though ignorant of 'its con- 
 tents, unless he make a special acceptance. Little v. Boston tt Me. 
 B. B. Co., 66—239. 
 
 10. But if the owner of the goods is guilty of fraud or imposition, 
 as by fraudulently concealing the value of the goods, or leading the 
 carrier to regard them of little value, he can not hold him liable for 
 their loss. li. 
 
 11. The carrier has the right to inquire as to the value of the articles 
 entrusted to him for carriage, and the owner is bound to answer truly ; 
 but if no inquiry is made, he is not required, in the absence of fraud, 
 to state the value of the goods. lb. 
 
 II. OF PASSENGERS. 
 
 12. Assaults upon Passengees. A common carrier of passengers 
 is responsible for the willful misconduct of his servant toward a pas- 
 senger. Goddard v. Grand Trunk B. B., bl — 202. Hanson v. E. 
 & JV. A. B. B. Co., 62—84. 
 
 13. If the servant is first assaulted he may defend himself. If 
 resisted in the proper performance of his duty he may use force suffi- 
 cient to overcome the resistance. But the assault being over, or the 
 resistance ended, he can not pursue and punish the wrong doer. Han- 
 son V. European c& JV. A. B. B. Co., 62 — 84. 
 
 14. Disobedience to the rules of the company will give it the right 
 to refuse to carry the passenger further, but will not operate as a 
 license to the employees to maltreat him, while continuing to perform 
 the contract for his conveyance. Jb. 
 
 15. If a brakeman, employed on a railway passenger train, assault 
 and grossly insult a passenger thereon, and the company retain the 
 offending servant in their service after his misconduct is known to 
 them, they will be liable to exemplary damages. Goddard v. G. T. 
 B. B. Co., 57—202. Hanson v. European & N. A. B. B. Co., 62 
 —84. 
 
 16. Baggage. Baggage subsequently forwarded by his direction, 
 in the absence of any special agreement with, or negligence on the 
 part of the carrier, is liable like any article of merchandise to the pay- 
 ment of the usual freight. Wilson v. Grand Trunk Bailway, 57 — 
 138. Graffum v. Boston <& Me. B. B. Co., 67—234. 
 
 6 
 
82 CAHEIEES. 
 
 17. And, like any merchandise, must be paid for by the carrier if 
 lost. Ih. 
 
 18. Railway Teains. When a passenger enters a railway train, 
 and pays the regular fare to be transported from one particular station 
 to another, his contract does not obligate the corporation to furnish 
 him with safe egress and ingress at any intermediate station. State 
 V. Grand Trunk Railway of Canada, 58 — 176. 
 
 19. And when such train turns out upon a side-track, at an inter- 
 mediate station, and there stops to await the crossing of another train 
 out of time, and the passenger, not destined to that station, without 
 objection made or notice given, leaves the car, he thereby does no 
 illegal act, but for the time surrenders his place as a passenger, and 
 takes upon himself the direction and responsibility of his own motions 
 during his absence. lb. 
 
 20. When such passenger thus leaves the car, and is on the plat- 
 form, or near the track when his train is about to start, or the coming 
 train has signalled its approach, the corporation, through its officer 
 or servant, should give reasonable and seasonable notice for such pas- 
 senger to return to the car, by using proper diligence, caution and 
 care ; and if there be an established signal by the blowing of the 
 whistle for passengers to resume their places in the cai-s, that should 
 also be given. lb. 
 
 21. But if the passenger go out of sight, and out of the reach of the 
 voice which giyes the usual loud and distinct notice for all passengers 
 to repair on board, the corporation is not required to go after him. lb. 
 
 22. If a person enters the saloon-car of a freight railway train, and 
 when the train starts, without being requested or directed to leave, 
 remains there as a passenger, contrary to the rules of the company, 
 but with the knowledge of the conductor, who receives from him the 
 usual fare of a first-class passenger, — the corporation incurs the same 
 liability for his safety as if he were in their regular passenger train. 
 Dunn V. Grand Trunk Railway of Canada, 58 — 187. 
 
 III. GENERALLY. 
 
 23. A railroad corporation is liable to a a hackman for an injury 
 received while carrying a passenger to their depot for transportation, 
 by stepping, without fault, into a cavity in their platform, and occar 
 sioned solely by the want of ordinary care on the part of the corpora- 
 tion in leaving their platform in an unsafe condition. Tobin v. P. 
 S. & P. R. R. Co., 59—183. 
 
 24. And under such circumstances the liability is not changed by 
 the fact that their platform was erected and maintained by them 
 within the limits of the highway. lb. 
 
 25. Stipulation fob Exemption from Liability. Common car- 
 riers can not stipulate for exemption from responsibility for losses 
 occasioned by the misconduct or negligence of themselves or their 
 servants. Willis v. Grand Trunk Railway, 62 — 488. Little v. 
 Boston cb Me. R. R. Co., 66—239. 
 
 See Custom, 3. 
 
 Rail Road, 46, et. seq. 
 Trustee Process, 17. 
 
CASE. 83 
 
 CASE. 
 
 1. If an act of the legislature, granting to certain persons author- 
 ity to erect a dam across tide waters, provides no method for ascer- 
 taining and paying the damages, directly resulting, to an ancient 
 mill flowed by such dam, the owner thereof has a remedy at common 
 law therefor. Lee v. Pembroke Iron Go., 57 — 481. 
 
 2. A child of nine years, who, in the day-time, jumps from a side- 
 walk, lawfully constructed by a railroad company on the side of its 
 railway bridge, upon the properly constructed draw, while the same 
 is being lawfully closed, is so wanting in ordinary care and prudence 
 as not to be entitled to maintain an action for the injury resulting there- 
 from. Brown v. E. & JST. A. B. B. Co., 58—384. 
 
 3. The defendant was the owner of a block of stores, the entrance 
 to the south store was by steps from the street, and immediately 
 north of the steps was a roUway leading to the cellar, and unpro- 
 tected, except by a buttress nine inches high. In front of the remain- 
 ing stores was a platform extending from the rollway to the extreme 
 north end of the block. The plaintiff went upon the platform, at the 
 north end of the block, in the evening, and while passing along, in 
 the exercise of ordinary care, for the purpose of entering the south 
 store on legitimate business, fell into the rollway and was injured. 
 Held, that the verdict of the jury finding the defendant guilty of 
 negligence would not be disturbed. Stratton v. Staples, 59 — 94. 
 
 4. Case will not lie against executors as such for damages, caused 
 by their raising the dam on a stream, whereby the plaintiff 's mill was 
 fl-owed, when the dam and the lands on which it is situated, had, un- 
 der the will of their testator, become vested in the executors and 
 others. Plimpton v. Bichards, 59 — 115. 
 
 5. The Richardson Lake Dam Company, under its charter, c. 104, 
 of the Private and Special Laws of 1853, has the right to maintain 
 its dams and to keep its gates closed, although the natural flow of 
 the water from the lake, may thereby be impeded and diminished. 
 Toothaker v. Winslow, 61 — 123. 
 
 6. The remedy for an illegal hoisting of these gates, is not confined 
 to the corporation, but may be sought in an action brought by any in- 
 dividual injured thereby, in his own name, and for his own benefit, 
 declaring upon the particular and special injury done to him. Ih. 
 
 7. One who digs a well in good faith, upon his own land, for the 
 obtaining of water for his own domestic uses, is not liable for any 
 damage which may incidentally result by reason of thereby diverting 
 the water which had been accustomed to percolate or flow in an un- 
 known subterranean current into the spring of an adjacent proprietor. 
 Chase v. Silverstone, 62 — 175. 
 
 8. Every person who does wrong, is at least responsible for all the 
 mischievous effects that may reasonably be expected to result 
 from the ordinary consequences of such misconduct. Lake v. Milli- 
 ken, 62—240. 
 
 See Actions, IY, p. 9. 
 Agenct, 42, p. 16. 
 Negligence. 
 Oeeicee, 29. 
 Watee. 
 
84 CASES OVEKETJIiED OE MODIFIED. 
 
 CASES OVERRULED OR MODIFIED. 
 
 1. Steele v. Adams, 1 — 1. Estoppel. Considekation Clause in 
 Deed. Apparently overruled. Farrar v. Smith, 64 — 74. 
 
 2. Gardiner Mnfg. Co. v. Seald, 5 — 381. Execution against 
 ABSENT Dependant. Apparently overruled. Davis v. Stevens, b1 
 —593. 
 
 3. Tillson V. Bowley, 8—163. Low v. Mitchell, 18—872. Ckoss- 
 Examination. Questioned. State v. Wentworth, 65 — 234. 
 
 4. Russell Y. Bichards,10 — 429. And subsequent cases, holding that 
 buildings which are apparently a part of the realty, but which are 
 the personal property of a third person, do not pass to a iona^ fide 
 grantee of the land, seem opposed to the general course of decision. 
 Fifield V. M. a. B. B. Co., 62—77. 
 
 5. JSTott's Case, 11 — 208, and Portland v. Bangor, 42 — 403, are 
 rendered obsolete by the 14th amendment to the U. S. Constitution. 
 Portland Y. Bangor, 65 — 120. 
 
 6. Bailey v. Butterfield, 14 — 112. Assumpsit against Opfioee. 
 Qualified. School District v. Tehhetts, 67—239. 
 
 7. Bussell Y. Babcock, 14 — 139. Statute op Frauds. Consid- 
 eration. See Stewart v. Campbell, 58 — 439. 
 
 8. State V. Sturdivant, 18 — 67. State v. Berry, 21 — 169. Town- 
 way. How Established. Overruled. State v. Bunker, 59 — 366. 
 
 9. Abbott V. Goodwin, 20^408. Mortgage to covee aptee 
 Purchased Goods. Apparently overruled. Emerson v. E. & J!f. 
 A. B. B. Co., 67—387. 
 
 10. Williams v. Williams, 28 — 17. Freight Monet. Earned by 
 vessel sailed by master on shares not attachable by creditor of mas- 
 ter by trustee process. Dicta not sustainable. Bridges v. Sprague, 
 57_543. 
 
 11. Sawyer v. Vaughan, 25 — 386. Quimby v. Morrill, 37 — 470. 
 Burden op Proop. Overruled. Small v. Clewly, 62 — 155. 
 
 12. Caswell v. Caswell, 28 — 332. Impeachment op Adjudica- 
 tion op Commissioners op Insolvency. Limited or overruled. 
 McLean v. Weeks, 65 — 411. 
 
 13. Smith V. Keene, 26 — 411. That levy maybe good and relate 
 to date of attachment although the judgment is greater than the 
 AD damnum. Apparently overruled. Morse v. Sleeper, 58 — 329. 
 
 14. Baxter v. Duren, 29 — 484. Payment by worthless paper. 
 Sale. Questioned. Hussey v. Sibley, 66 — 192. 
 
 15. Thayer v. Boyle, 30—475. Paul v. Currier, 53—526. Evi- 
 dence IN Civil Cases. Reasonable Doubt. Overruled. Knowles 
 V. Scribner, 57—495. Mlis v. Buzzell, 60—209. 
 
 16. Williamson v. Dow, 32 — 559. Oppicbr. Trespasser ab 
 initio. Marginal note incorrect. Seekins v. Qoodale, 61 — 400. 
 
 17. Knight v. Nichols, 34 — 208. Registry op Absolute Bill op 
 Sale op Personal Property. Overruled. Shaw v. Wilshire, 
 65—485. 
 
CEETIOEAEI. 85 
 
 18. Winslow V. Co. Com., 37 — 561. Cbetioeaei. Overruled. 
 Levant v. Co. Com., 67—429. 
 
 19. ITow V. /Saunders, 38 — 350. Statute ov Limitations. Dic- 
 tum not good law. Pulsifer v. Pulsifer, 66 — 442. 
 
 20. Oreeley v. Currier, 39 — -516. Replevin. Tuck v. Moses, 58 
 —461. 
 
 21. MoPheters v. Lumbert, 41 — 469. Lien. Appeaeance ore 
 Geneeal Owners. Dictum has not been followed. Parks v. Crock- 
 ett, 61—489. 
 
 22. Mace v. Cushman, 45 — 250. That word heie includes widow. 
 Overruled. Lord v. Bourne, 63 — 368. 
 
 23. Coffin V. Rich, 45 — 507. Constitutional Law. Overruled. 
 State V. Waterville Savings Bank, 68 — 515. 
 
 24. Foss V. Edwards, 47 — 145. Damages on Pooe Debtoe Bonds. 
 Overruled. Hackett v. Lane, 61 — 31. 
 
 25. Veazie v. Penobscot B. B. Co., 49 — 119. Respondeat Supee- 
 lOE. Liability oe Raileoad Company eoe Toets op Conteact- 
 OES. Modified. Eaton v. European <t N. A. B. B. Co., 59 — 520. 
 
 26. Bowker v. Lowell, 49 — 429. Collectoe oe Taxes. When 
 Peotected by Waeeant. Apparently overruled. N'owell v. Tripp, 
 61—426. 
 
 27. Frankfort v. Winterport, 54 — 250. Powee oe Town to 
 Incue Expense in Opposing its Teeeitoeial Division. Overruled. 
 
 Westbrook v. Leering, 63 — 231. 
 
 CERTIORARI. 
 
 I. IS WHAT CASES THE WEIT WILL BE GRANTED, 
 
 n. WHEN REFUSED. 
 
 III. PRACTICE. 
 
 IV. EVIDENCE. 
 
 I. WHEN GRANTED. 
 
 1. Way. On application to the county commissioners to lay out 
 a town road, founded on the alleged unreasonable neglect or refusal 
 of the selectmen to lay it out, or of the refusal of the town to accept 
 it, the unreasonableness of the neglect or refusal must be adjudged 
 by the commissioners and entered of record or their location of the 
 way will be quashed on certiorari. Goodwin v. Co. Com., 60 — 328. 
 Pownal V. Co. Com., 63—102. 
 
 2. Where an adjudication of county commissioners does not con- 
 tain a description of that portion of the old way which is discontinu- 
 ed, or of the new way which is attempted to be established, except by 
 reference to a plan, and the plan is unintelligible unless aided by parol 
 evidence, the wHt will be granted. Portland, S. <& P. B. B. Co. v. 
 Co. Com., 65—292. 
 
 8. Foe want of Jueisdiction. Certiorari cannot be refused 
 
86 CBETIOEAEI. 
 
 where county commisssioners have rendered a judgment in a matter 
 of which they had no jurisdiction, even if no injustice was done. 
 Fairfield v. Co. Com., 66—385. Levant v. Co. Com., 67—429. 
 
 4. Wat in Unincoepokatbd Places. "When the county com- 
 missioners, in laying out a way in an unincorporated township, or- 
 dered the owners of the land over which it passed to open and make 
 the same, when by law they should have appointed an agent to open 
 and make the road, and, as a part of the proceedings in establishing 
 it, should have assessed upon the lands that would have been en- 
 hanced in value by its location a sum sufficient to build it, to be ex- 
 pended under the direction of the agent, which they omitted- to do, 
 the location was quashed upon certiorari. Pierce v. Co. Com.., 63 — 
 252. 
 
 5. Tax. If the county commissioners undertake to assess a tax for 
 the repair of a road not legally located, the proceedings may be 
 quashed. Ih. 
 
 6. Also, if in making an assessment of a tax for the repair of a way 
 in an unincorporated township, no notice thereof is given the land 
 owners. Ih. 
 
 7. A writ of certiorari lies only to correct errors in law. Lapan 
 V. Co. Com., 65—160. Levant v. Co. Com., 67—429. 
 
 8. DiscKETioN. Although a petition for certiorari is addressed to 
 the discretion of the court, that discretion is to be exercised accord- 
 ing to the rules of law, and if it appears that a substantial wrong has 
 been done to the petitioner, and his estate taken without a compli- 
 ance with the rules of law, the writ will issue. Spofford v. Lucks- 
 port & L. R. B. Co., 66—26. 
 
 II. WHEN REFUSED. 
 
 9. Formal Defects. Applications for certiorari are addressed to 
 the judicial discretion of the court, and will not be granted for mere- 
 ly formal defects. Sopleins v. Fogler, 60 — 267. Fairfield v. Co. 
 Com., 66—385. 
 
 10. PooK Debtor. In a poor debtor's disclosure, when the errors 
 are trivial and no injustice will be done, it wiU be denied. Hopldns 
 V. Fogler, 60—267. 
 
 11. Thus, where a debtor has been imprisoned on execution, and 
 released upon giving a bond approved in writing, by two disinterest- 
 ed justices of the peace and of the quorum, one of whoni was chosen 
 by the jailer for the creditor, and the other by the debtor, and it is 
 apparent from the debtor's answers made before a tribunal formally 
 organized to hear his disclosure, that, having no real or personal es- 
 tate, the poor debtor's oath was properly administered to him ; this 
 court, in the absence of all proof upon the subject, will not, for the pur- 
 pose of quashing proceedings otherwise regular, assume that the jailer 
 chose the justice for the creditor before the latter had refused, or un- 
 reasonably neglected to choose one. Tb. 
 
 12. Where a creditor, on account of the erroneous decision of mag- 
 istrates in discharging a poor debtor without requiring him to first 
 pay the jailer for his board, voluntarily paid it himself, and it was not 
 alleged in the petition that the debtor had sufficient means to have 
 paid his board himself, the writ was denied, on the ground that the 
 
CERTIOEAEI. 87 
 
 erroneous decision did not appear to have injured the petitioner. 
 McPJieters v. Morrill, 66—123. 
 
 13. Wat. If the petitioners for a town way are in fact inhabitants 
 of the town, the want of a formal allegation in the petition is not 
 good ground for quashing the proceedings on certiorari. Hebron v. 
 Co. Com., 63—314. 
 
 14. Nor, where the prayer of the petitioner is definite for the lay- 
 ing out of a town way, is its character changed to a petition for a 
 highway because it alleges that the public convenience and necessity 
 requires the location of the way prayed for. Ih. 
 
 15. The selectmen of a town, after due proceedings, laid out a 
 town way, and awarded to one of the land-owners an under-pass 
 for his cattle, in addition to a specific sum as damages, and the town 
 refused to accept the road. Thereupon the county commissioners, 
 upon petition seasonably presented, laid out the road, omitting the 
 under-pass. Held, that a writ of certiorari will not be granted on a 
 petition of the town to quash the proceedings of the commissioners. 
 JBethel v. Oxford Co. Com., 60—535. 
 
 16. Where it appears by the record that the selectmen filed on 
 Sept. 1st, a return of their proceedings in laying out the way, and on 
 the same day issued their warrant for a town meeting, containing an 
 article to see if the town will accept the "road as laid out" by them, 
 — a writ of certiorari will not be issued to quash the proceedings of 
 the commissioners in a subsequent laying out by them, on the ground 
 that it does not appear that the warrant for town meeting was issued 
 after the filing of the return of the selectmen. lb. 
 
 17. Under the statute providing that when a party fails to prose- 
 cute a petition for a revision of land damages, awarded by county 
 commissioners, at the next regular session after the filing of the same, 
 it should be dismissed, unless good cause for the delay is shown, the 
 determination of the commissioners as to the suificiency for the delay, 
 is not to be revised on certiorari. Portland & 0. R. M. v. Co. Com., 
 64—505. 
 
 18. Certiorari lies only to correct errors in law. Lapan v. Co. 
 Com., 65—160. Levant v. Co. Com., 67 — 429. 
 
 19. While an appeal is pending from the decision of the county 
 commissioners locating or discontinuing a way, a petition for a writ 
 of certiorari to quash the record of the county commissioners will not 
 be granted. The objections that might be made on the petition may 
 be taken on the appeal. Hodgdon v. Co. Com., 68 — 226. 
 
 20. When the Remedy is by Eeeok. On petition for certiorari 
 to quash the proceedings of county commissioners in awarding dam- 
 ages for land taken for a town way the alleged error of want of notice 
 to the town of the time and place of hearing before the jury did not 
 appear in the records of the county commissioners, but in the records 
 of the supreme court. Held, that when there is no error apparent in 
 the record of the commissioners, and the error appears only in the 
 records of the supreme court, of the proceedings in that court, a writ 
 of certiorari is not the proper remedy to correct such error. The 
 remedy is by writ of error. Nobleboro v. Lincoln Commissioners, 68 
 —548. 
 
88 CEKTIOEAEI. 
 
 III. PRACTICE. 
 
 21. The mere granting of a writ of certiorari is not tantamount to 
 issuing the writ and quashing the proceedings thereon. State v. 
 Madison, 63 — 546. 
 
 22. "When, on petition for certiorari to quash proceedings of county- 
 commissioners in the abatement of a tax, it did not appear whether 
 the applicant for the abatement had answered the inquiries in writing 
 of the assessors, the report of the case in the law court was discharged, 
 that the commissioners might make a return on oath stating the nec- 
 essary facts. Levant v. Co. Com,., 67 — 429. 
 
 23. Party Respondbnt. The tribunal to which the writ will be 
 addressed is the only real party respondent, and should have notice. 
 Ih. 
 
 24. The PETITION should state that the errors complained of appear 
 by the record of the proceedings. Emery v. JBrann, 67 — 39. 
 
 25. Answer. If the respondent wishes to invoke the doctrine of 
 estoppel and make it appear that the petitioner by his own laches has 
 deprived himself of this remedy, the facts should . be set out in the 
 answer and proved. Spofford v. JBucksport S B. R. R. Co., 66 — 26. 
 
 26. The respondent tribunal should file an answer under oath, set- 
 ting forth therein (when not annexed to the petition) a copy of the 
 record. Levant v. Co. Com., 67 — 429. 
 
 27. When the record does not contain a statement of the facts (not 
 evidence) and rulings, so as to enable the court to determine the 
 questions of law raised by the petition, the omission should be sup- 
 plied by the answer. Ih. 
 
 28. When completed, the answer, being in the nature of a return, 
 is conclusive as to all matters of fact within its jurisdiction. Ih. 
 
 29. If the tribunal does not file their answer so that the case may 
 be decided upon its merits, the court, having power to correct abuses 
 as well as errors, may require a statement of the facts and rulings to 
 be certified together with the record. Ih. 
 
 IV. EVIDEKCE. 
 
 30. No testimony can be presented by the petitioner outside the 
 record, either to affect the record, or to prove other facts not appear- 
 ing in it. Emery v. JBrann, 67 — 39. 
 
 31. When the object of the petition is to require the justices to 
 certify up the record in the case of a poor debtor disclosure, the pe- 
 titioner can not introduce evidence outside the record to show error 
 in the proceedings, or fraud, or that injustice was done. Ih. 
 
 32. When extrinsic evidence is introduced by the respondents to 
 show that substantial justice does not require the proceedings to be 
 quashed, then the petitioner may introduce like evidence in rebuttal. 
 Levant v. Co. Com., 67 — 429. 
 
 33. At the hearing on a petition for certiorari to quash the proceed- 
 ings of county commissioners, evidence aliunde the record is admissi- 
 ble to show a compliance with statutory requirements which the 
 record fails to show, or the record may be amended at any regular 
 session. Dresden v. Co. Com., 62 — 365. Levant v. Co. Com., 67 — 
 429. 
 
CHAMPERTY — CHECK. 89 
 
 34. But after the writ has issued, and the record is before the court 
 on certiorari, evidence extrinsic to the record is inadmissible. Dres- 
 den V. Co. Com., 62—365. 
 
 CHAMPERTY. 
 
 If one having an interest in an action, however remote, obtains 
 permission from the plaintiff or defendant, to prosecute or defend the 
 suit, promising to indemnify him against all costs which may be 
 recovered against him, such promise can not be avoided on the ground 
 of maintenance. Industry v. StarJcs, 65 — 167. 
 
 CHEATING BY FALSE PRETENCES. 
 
 One who has knowingly, designedly and falsely, asserted a horse to 
 be sound which he well knew was unsound, with intent to deceive and 
 defraud, and thereby induced the party deceived to exchange horses, 
 relying upon such representations, and has thus defrauded him, is 
 liable to an indictment for cheating by false pretences. State v. 
 Stanley, 64 — 157. 
 
 See CoNSPiEACT. 
 
 CHECK. 
 
 1. The taking of a check for an existing debt is not, ipso facto, 
 payment of the debt. Marrett v. Brachett, 60 — 524. 
 
 2. The acceptance of a check implies an undertaking on the part 
 of the holder to use due diligence in presenting it for payment. li. 
 
 3. The holder is in the exercise of due diligence when he presents 
 it for payment in accordance with the usage of the banks where pay- 
 able, and of the persons having accounts with such banks — provided 
 the usage is well established, reasonable, and lawful, and recognized 
 by the mercantile community and the parties to the check. Ih. 
 
 4. And it makes no difference that the check is that of the agent of 
 the debtor. Ih. 
 
 5. An accommodation indo;rser of a bank check, who waives de- 
 mand and notice, is not discharged because the holder delays thirteen 
 months before he presents the check at the bank for payment. Emery 
 V. Hobson, 62—578. 
 
 6. The maker of a check can not object to any delay in presenting 
 it unless he can show special injury to himself on account of the 
 delay. Emery v. Sobson, 63 — 32. 
 
 7. If the maker of a check withdraws all his funds from the bank 
 upon which it is drawn, he suffers no injury from a delay in its pre- 
 sentation. Ih. 
 
 8. The maker of a check is bound to keep funds in the bank upon 
 which it is drawn. Ih. 
 
90 CITIZENSHIP — CLEEK OF COUETS. 
 
 CITIZENSHIP. 
 
 1. By virtue of the act of congress, approved Feb. 10, 1855, the 
 child of a naturalized citizen of the United States is a citizen thereof, 
 and not an alien, though born without the limits of the United States. 
 Oldtown V. Bangor, 58 — 353. 
 
 2. The rights of citizenship are not lost by desertion from the U. S. 
 service unless the deserter is also convicted by a court marshal. Holt 
 V. Holt, 59—464. 
 
 CITY. 
 
 1. In cities, an agent for the sale of liquors may be appointed by a 
 majority of the municipal board consisting of the mayor and aldet- 
 men. State v. Weeks, 67 — 60. 
 
 2. A vote of a city council may be reconsidered at an adjournment 
 of the same meeting upon a subsequent day. Oassidy v. Bangor, 
 61—434. 
 
 3. A city council is so far a continuing body that an assessment of 
 damages may be made for land taken to widen a street, by a council 
 elected after the street has been widened. lb. 
 
 See Town. 
 Way. 
 
 CLERK OF COURTS. 
 
 1. If the certificate of a decision of the law court happen to be so 
 imperfect or ambiguous, that the clerk is in doubt as to the judgment 
 which he ought to record, it is competent for any member of the court 
 to direct him and he will be protected if he follows such directions. 
 Hoeffner v. Stratton, 57 — 360. 
 
 2. A clerk of court has, ex officio, no right, without an express or- 
 der of court to that effect, to complete, alter, or amend the record 
 kept by his predecessor in that office, whose term has expired. Rock- 
 land Water Go. v. Pillshury, 60 — 425. 
 
 COAL. 
 
 R. S., c. 41, § 13, providing that the seller of coal shall not main- 
 tain a suit for the price thereof, unless he has caused the same to be 
 weighed by a sworn weigher and a certificate of the weight delivered 
 to the buyer, is not complied with when the weigher is either the 
 owner of the coal or sells it on commission. Smith v. Campbell, 68 — 
 268. 
 
COLLECTOR. 91 
 
 COLLATERAL SECURITY. 
 
 Suit was brought to recover the value of certain bonds which had 
 been left at a bank as collateral security for money which might, 
 from time to time, be advanced the plaintiff. July 1, 1868, he went 
 to the bank to obtain a loan ujDon this security. The bonds could not 
 be found, but he received the money. The defendant requested the 
 court to instruct the jury that "if the bonds were not found by the 
 bank when the note of July 1st was offered, and were not afterwards 
 found, the jury are not authorized to find that they were taken and 
 held as collateral security for the note of July Ist." Held, that this 
 instruction was properly refused. Dearborn v. Union Nat. Bank, 
 61—369. 
 
 See Bailment, p. 53. 
 
 COLLECTOR. 
 
 I. GENERALLY. 
 II. LIABILITY TO THE TOWN. 
 III. TO OTHERS. 
 
 I. GENERALLY. 
 
 1. A collector of taxes is a public officer. State v. Walton, 62 — 106. 
 
 2. Refusal to Accept. The refusal, on the part of one chosen 
 collector of taxes, to give the bond required by statute, is to be regard- 
 ed as a non-acceptance of the office. Gould v. Munroe, 61 — 544. 
 
 3. Appointment bt Assessors. It is not necessary that the 
 refusal of the person chosen as collector of taxes to accept the office 
 should appear on the records of the town, to authorize the assessors 
 to appoint a suitable person to act as collector. Ih. 
 
 4. Record. The warrant of the assessors for the collection of taxes, 
 given to a person appointed by them to act as collector, which is 
 necessarily recorded, is a sufficient record of an appointment by them 
 in case of a neglect by the town to elect, or the refusal of the person 
 elected to act. IT). 
 
 5. If a collector refuses to complete the collection of taxes com- 
 mitted to him, and surrenders the lists to tUe assessors, another may 
 be appointed, although there is no vacancy in the office. Carville v. 
 Additon, 62—459. 
 
 6. Oath of Office. If one elected constable and collector of taxes 
 takes the oath of office as constable, this does not qualify him to act 
 as collector. Farnsworth v. Hand, 65 — 19. 
 
 7. Delinquent Collectoe. A town treasurer is authorized to 
 issue a warrant of distress only against a delinquent collector of taxes 
 who has a legal warrant and perfect list of taxes under the hands of 
 the assessors. Pearson v. Ganney, 64 — 188. 
 
 8. Such distress warrant, if illegally issued, is not good for taxes 
 actually received by the collector. Ih. 
 
92 COLLECTOE. 
 
 9. The provisions of R. S. of 1857, c. 6, §§ 103, 104, 121, and 122 
 are not mandatory, but they are cumulative remedies at the discretion 
 of the municipal officers. Gorham v. Hall, 57 — 58. 
 
 10. Action by. In an action by a collector to recover a poll tax, 
 the defendant may show that he was not an inhabitant of the town at 
 the time the tax was assessed, although the collector's warrant is 
 formal and regular. McCrillis y. Mansfield, 64 — 198. 
 
 11. The DEMAND to be made before a town can bring a suit for a 
 tax may be made by the collector. York v. Goodwin, 67 — 260. 
 
 12. It seems that a suit brought by a town to recover a tax must 
 be regarded as a waiver of procedure by arrest or distraint. lb. 
 
 13. Bond. The giving of an official bond by a collector is not, in 
 the absence of a demand therefor, a condition precedent to his assum- 
 ing the duties of his office, R. S. of 1857, c. 6, § 85, being only direct- 
 ory. Soothbay v. Giles, 68 — 160. 
 
 II. LIABILITY TO THE TOWN. 
 
 14. Generally, a collector is chargeable with all taxes committed to 
 him, to enforce the payment of which he has not, within the period 
 allotted for their collection, exhausted his authority. Gorham v. HaU, 
 57—58. 
 
 15. When the terms of his bond conform to the requirements of 
 the statute, and it has been actually accepted by the selectmen, and 
 both parties have acted under it as a statute bond, it will be regarded 
 as such, although it has not been approved in writing by the municipal 
 officers. lb. 
 
 16. Waeeant. To render a collector liable upon his bond for omit- 
 ting to act it must be shown that he was armed with a legal warrant by 
 which collection could be enforced. Boothbay v. Giles, 64 — 403. 
 
 17. When the warrant for the collection of taxes directs an exempt- 
 ion from distress of property not exempted by statute, the collector is 
 not compelled to act vmder it, and in a suit upon his official bond he 
 and his sureties are discharged from liability for uncollected assess- 
 ments. Orneville v. Pearson, 61 — 552. 
 
 18. Where a collector of taxes, who was also a selectman, by order 
 of the overseers of the poor, advanced money for town purposes from 
 collections of taxes made by him, and the selectmen afterwards, with- 
 out knowledge that the money so advanced came from official sources, 
 drew an order in his favor for the amount, which he applied to his 
 own benefit, it was held, tlat the sureties on his bond could not require 
 that the money so advanced should be applied upon his liability as 
 collector. lb. 
 
 19. Where a person was collector of taxes for consecutive years, 
 money paid, without any appropriation on his part, by him to the 
 treasurer, who applied it to the oldest liability without any notice that 
 the money came from the assessments of any particular year, cannot 
 afterwards be applied by the collector upon his liabilities for a subse- 
 quent year though collected from that year's taxes, lb. 
 
 See Payment, 33. 
 
 20. Compensation. A collector is not entitled to compensation 
 from the town for committing persons to jail after one year from the 
 
COLLECTOR. 93 
 
 time the tax is committed to him, although he does so by special order 
 of the selectmen. Ih. 
 
 21. An action for money had and received may be maintained by 
 a town against a collector for taxes collected and not paid over. 
 Richmond v. Urovm, 66 — 373. 
 
 22. A BOND conditioned for "the faithful performance of the duties 
 of collector" will hold him and his sureties to pay over money which 
 he has actually collected after the delivery of the bond. Booihhay v. 
 Giles, 68—160. 
 
 23. So also will an instrument, containing the same terms, but not 
 under seal, voluntarily and deliberately made and delivered in lieu of 
 a bond. Ih. 
 
 24. Its acceptance by the assessors in lieu of a .statute bond is a 
 sufficient consideration to cover all official delinquencies, so far as not 
 paying over money actually collected after such acceptance is con- 
 cerned. Ih. 
 
 in. TO OTHERS. 
 
 25. A collector of taxes who, after selling property for the payment 
 thereof, fails to restore the balance to the owner after deducting the 
 taxes due and unpaid and legal expenses of sale is a trespasser, ah 
 initio. Garter v. Allen., 59 — 296. 
 
 26. Thus, where a collector of taxes for three successive years 
 applied a portion of the proceeds of a distress sold according to law 
 to a tax of the second year already paid, and another portion to illegal 
 charges, and made a written account thereof accordingly, which, with 
 the balance as therein appearing, he tendered to the owner, held, that 
 the collector was a trespasser ah initio. Ih. 
 
 27. If a collector of taxes keeps property, which he has seized on 
 his warrant, beyond the time within which it could be legally sold, he 
 becomes a trespasser, ah initio, and the owner may replevy it. Farns- 
 worth Company v. Rand, 65 — 19. 
 
 28. Where a collector, after selling enough to pay the tax and 
 expense of sale, sells other personal property distrained, he will not 
 become a trespasser ah initio as to any of the articles seized, except 
 such as he has sold in excess of his authority. Williamson v. Dow, 
 32 — 559, explained. Seeking v. G-oodale, 61 — 400. 
 
 29. Sale op Distbess. The words "the distress shall be openly 
 sold," as used in R. S., c. 6, § 104, are not io be construed as author- 
 izing a collector of taxes to sell any additional articles after enough 
 have been sold to pay the tax committed to him and the expense of 
 sale. Ih. 
 
 30. A collector of taxes is not bound to sell distrained property 
 within the limits of the town where it is seized. Garville v. Additon, 
 62—459. 
 
 31. When Peoteoted by his Waeeant. A collector of taxes 
 legally qualified, acting within the scope of his powers under a warrant 
 from competent authority, is protected against all illegality but his 
 own. N'owell v. Tripp, 61 — 426. GarviUe v. Additon, 62 — 459. 
 
94 COLLECTOR — COMPLAINT. 
 
 32. Although the person taxed was not a resident of, or liable to be 
 taxed, in the town. Nowell v. Tripp, 61 — 426. 
 
 See Tax. 
 Town, 3. 
 
 COMPLAINT. 
 
 1. When it is provided by law that the duties of the judge of a 
 municipal court in relation to criminal business may be performed by 
 the clerk "whenever the said judge shall be engaged in the transaction 
 of civil business, or be absent from the court-room," an allegation in 
 the complaint that the judge is "busy in court," does not authorize the 
 clerk to perform the duties of the judge. Guptil v. Richardson, 62 
 —257. 
 
 2. Nor will a subsequent decree of the forfeiture of liquors seized by 
 virtue of a warrant issued by the clerk upon such complaint remedy 
 the error. lb. 
 
 3. An allegation in a complaint for search and seizure that intoxica- 
 ting liquors are kept and deposited by the defendant with intent to 
 sell them in this State in violation of law is a sufficient allegation that 
 the keeping and deposit is unlawful. State v. Connelly, 63 — 212. 
 
 4. Complaints made to the municipal court of the city of Portland 
 need not contain a recital of the city by-laws on which they are 
 founded. O'Malia v. Wentworth, 65—129. 
 
 5. In a complaint for a violation of the law prohibiting the sale of 
 intoxicating liquors technical accuracy is not required in the averment 
 of a former conviction for a similar offense. State v. Wentworth, 65 
 —234. 
 
 6. When the respondent in a criminal case appears generally and 
 pleads not guilty to a complaint he thereby waives all objections to 
 matters of form in the warrant. State v. Megan, 67 — 380. 
 
 See Insane Hospital. 
 
 Intoxicating Liquors, 22, et. seq. 
 
 Officee, 12. 
 
 Waeeant. 
 
 COMPKOMISE. 
 
 See CoNTEACT, 17. Accoed and Satisfaction, p. 7. 
 
 CONDITION. 
 
 I. WHEK PRECEDENT OR SUBSEQUENT. 
 II. FORFEITURE AND PROCEEDINGS THEREUPON. 
 III. GENERALLY. 
 
CONDITION. 95 
 
 I. WHEN PRECEDENT OR SUBSEQUENT. 
 
 1. Whether a condition in a contract is precedent or subsequent is 
 a question of intent, to be determined by considering the language 
 of the whole contract, the nature of the act required, and the subject 
 matter to which it relates. Sucksport <& Sanger R. R. Co. v. 
 Brewer, 67—295. 
 
 2. The defendant agreed in writing, that on the execution and de- 
 livery to him by the directors of the railroad of certain mortgage 
 bonds mentioned in said agreement, he would pay the assessments 
 theretofore made to the amount of the par value of the stock previ- 
 ously subscribed by him. Held, that the delivery of the bonds was 
 a condition precedent to the payment of the assessments. Belfast 
 <b M.B. R. Co. V. Moore, 60—561. 
 
 3. Where railroad stock is subscribed for, in behalf of a town, 
 upon the condition that the road "shall be built through the town on 
 the line as run by the engineer, with a suitable depot for the conven- 
 ience of the public," — such a condition is a condition subsequent, and 
 will not defeat an action for the amount subscribed, although the 
 condition had not been performed when the action was commenced. 
 Belfast & M.L.R. R. Co. v. Brooks, 60—568. 
 
 4. A subscription, by a town, to the capital stock of a railroad 
 company, "upon condition" that the road be located through a speci- 
 fied town "satisfactory to the selectmen of said town," is, upon con- 
 dition, precedent. Bucksport <& Bangor R. R. Co. v. Brewer, 
 67—295. 
 
 5. The subscription cannot be enforced unless the company shows 
 a location satisfactory to the selectmen. lb. 
 
 6. It is not sufficient for the company to show that the "road was 
 located wisely, prudently and judiciously for the interests of said 
 corporation and said town." lb. 
 
 7. The defendant signed an agreement to take a certain number of 
 shares in a railroad corporation upon condition that no assessment 
 should be made upon the shares until the full amount be secured for 
 the completion of the road to Newport. Held, that the condition 
 was precedent. Belfast & M. L. R. R. Co. v. Cottrell, 66 — 185. 
 
 8. A subscription for stock in a railroad company contained the 
 clause, "no subscription shall be binding until the sum of one hundred 
 thousand dollars shall have been subscribed by good responsible par- 
 ties," also, "It is understood that the capital stock of the contem- 
 plated railroad shall be three hundred thousand dollars." Held, that 
 the last clause was not a condition precedent to the subscriber's 
 liability upon his subscription. Bucksport <& Bangor R. R. Co. v. 
 Buck, 65—536. 
 
 9. When the subscription for stock in a corporation, by the defend- 
 ant, contains a stipulation relating to changes in the charter, a clause 
 in the subscription "such alterations, if any, to be in accordance with 
 a vote of a majority of the board of directors, legally chosen by the 
 stockholders of the road," if it is anything more than an expression 
 of the wishes of the defendant, or directory to the board of direc- 
 tors, it is a condition subsequent and constitutes no bar to an action 
 to recover the subscription. Bucksport & Bangor R. R. Go v 
 Buck, 68—81. 
 
96 CONDITION. 
 
 10. A town voted to issue bonds in aid of a railroad "at such time 
 as the raih-oad company shall build its railroad to Canton Mills, pro- 
 vided it shall be completed to Canton Mills, and the cars running and 
 transporting freight and passengers on or before Jan. 1, 1870," other- 
 wise the vote to be void. Held, that the condition required a com- 
 pletion of the road as well as a running of the cars. Portland S 
 Oxford Central B. E. Co. v. Hartford, 58—23. 
 
 11. Where, "in consideration of having a meeting-house erected 
 and continued upon it" the owner of a certain lot of land duly exe- 
 cuted and delivered to the "proprietors of the South Chapel, in 
 Fryeburg," a deed thereof, with the stipulation therein that the "lot 
 being given for a meeting-house lot, is to revert to me, unless it should 
 be improved for that purpose," habendum "to the said proprietors and 
 their successors forever, provided it be improved for the above pur- 
 pose," — an estate in freehold upon condition subsequent passed. 
 Osgood V. Abbott, 58 — 73. 
 
 12. A grant of a township of land upon condition that the grantee 
 settle thereon a certain number of families within a specified time, is 
 upon condition subsequent. Chapman v. Pingree, 67 — 198. 
 
 13. A conveyance upon condition subsequent vests the title in the 
 grantee subject to its being revested in the grantor by entry for a 
 breach of the condition. lb. 
 
 14. By virtue of Public Laws of 1872, c. 8, § 3, the previous sec- 
 tions thereof (changing the place of holding the supreme judicial 
 court from Norridgewook to Skowhegan, and authorizing the county 
 commissioners to erect a court-house in the latter place), were to be 
 void, unless the town or citizens of Skowhegan should, on or before 
 March 1, 1872, without expense to the county, provide suitable room 
 and other accommodations for the court and ofBcers, to the accept- 
 ance of a majority of the county commissioners ; and secure to the 
 county the use thereof for the purposes, and during the time therein 
 specified, and the conveyance of a suitable site in Skowhegan for the 
 county buildings. By § 4, when such room and accommodations had 
 been provided, the county commissioners should cause the records in 
 all the county oflices, with the records and files of all the courts, to 
 be removed to the places prepared in Skowhegan, and cause notice 
 of the facts to be published as therein directed. Held, that the legis- 
 lature did not intend to make the selection of a site on or before 
 March 1, 1872, mentioned in § 2, an indispensable pre-requisite to the 
 taking effect of the act. Walton v. Orenwood, 60 — 356. 
 
 15. Also held, that the conditions provided in § 3 did not require the 
 town or its citizens to furnish a jail. lb. 
 
 16. A saw mill owned by A. and W. having been destroyed by fire, 
 A. proceeding under K. S., 1841, c. 86, rebuilt the same, and subse- 
 quently, in consideration of the full value, conveyed to the plaintiff 
 one-half the privilege and all the mill, subject to the claims of M. in 
 said mill, and at the same time gave an obligation to procure a release 
 from M., or fully indemnify the plaintiff for his claim. Afterwards, 
 not being able to procure a release from M., A. gave the plaintiff the 
 bond in suit, referring to the conveyance, and conditioned to procure 
 a release from M., or save the obligee harmless from all claims by M. 
 or his assigns, and closing as follows, "it is hereby agreed that said 
 obligee shall keep a full and correct account of the amount of lumber 
 
CONDITION. 97 
 
 sawed in the mill, and the expense of all repairs on the mill, and at 
 all times secure and afford to said A. free access to the books of ac- 
 count, to enable him to settle his claims with said M. and procure his 
 release. Held, that the last clause was not a condition precedent. 
 Connor v. Atwood, 51 — 100. 
 
 II. FORFEITUEE AND PROCEEDINGS THEREUPON. 
 
 17. Entry. Notwithstanding the breach of a condition precedent 
 the estate will continue in the grantee until defeated by an actual en- 
 try made for the purpose of claiming a forfeiture by some one having 
 the right so to do. Osgood v. Abbott, 58 — 73. 
 
 18. The heirs of the grantor, after the death of the latter, and after 
 breach, may make such entry. lb. 
 
 19. Where lands are conveyed upon condition subsequent, the right 
 to enter for a forfeiture can be exercised only by the original grantor 
 or his heirs. Craig v. Franklin County, 58 — 479. 
 
 20. How MADE. An entry upon land for condition broken must 
 be made for the purpose of taking the land back, and the intention 
 must be sufficiently shown either by the act itself or by words ac- 
 companying it. Jenhs v. Walton, 64 — 97. 
 
 21. It is not necessary to turn the grantee off the premises, nor take 
 possession in his presence, nor to give actual notice to him. Still 
 the act must be of such a character as would serve to indicate to the 
 person in possession that his right to the locus was regarded as ter- 
 minated. Jenhs V. Walton, 64—97. 
 
 22. Rbliep feom Foefeitttee. Where the grantor in a condition- 
 al deed, after entry for condition broken, has obtained a verdict in a 
 suit to obtain possession of the land conveyed, the court has probably 
 the power to grant a motion to ascertain what sum of money would 
 be sufficient to relieve the forfeiture, and, upon the payment of such 
 sum and costs, stay further proceedings in the suit. Jenhs v. Walton, 
 64^97. 
 
 23. But the court will not grant the motion when there is no evi- 
 dence to show whether it is meritorious or not. Ih. 
 
 24. Where land is conveyed upon condition subsequently to be 
 performed'by the grantee, and the land is reclaimed by the grantor 
 for condition broken, the grantee can not recover back that part of 
 the consideration paid, nor can the grantor enforce the payment of 
 notes given for a part of the consideration and remaining unpaid. 
 lAttle V. Thurston, 58 — 86. 
 
 See Equity, 67. 
 
 III. GENERALLY. 
 
 25. Liability to Peeeoem. Acceptance of Deed. Where a 
 son having conveyed a farm to his father, in mortgage, conditioned 
 for the support of the father, died childless, and the father subse- 
 quently conveyed the farm to another son by a quit claim deed, the 
 consideration being expressed as the conditions to be performed 
 agreeably to the mortgage of the deceased son, the acceptance of the 
 deed rendered the grantee personally liable to perform the conditions 
 mentioned, but created no lien upon the land. Norria v. Laheree, 
 58—261. 
 
 7 
 
98 CONTLICT OP LAW. 
 
 26. Abeogatiok of Condition by Contetance. Where one con- 
 veys land upon condition subsequent, and afterwards releases all his 
 claim to the premises to a stranger, the only effect of the release is to 
 abrogate the conditions annexed to the original grant. Craig v. 
 Franhlin County, 58 — 479. 
 
 27. Peeformance. If a creditor takes a cash order, drawn on 
 himself, in payment of his debt, on condition that the amount of the 
 order is due from him to the drawer, the payment is absolute if in 
 fact the amount is then due, though it is not ascertained until some 
 time after. It is the fact and not the ascertainment of it that con- 
 stitutes performance of the condition. Waite v. Vose, 62 — 184. 
 
 28. When it becomes Absolute. A note payable "when I sell 
 my place" is not payable upon any contingency but absolutely, and if 
 the maker suffers a levy to be made upon the place and becomes 
 unable to sell, his liability upon the note at once accrues. CrooJcer v. 
 Holmes, 65 — 195. 
 
 29. Waiver. He alone for whose benefit a condition is made can 
 waive it. Ockington v. Law, 66 — 521. 
 
 30. When promissory notes are given for a conveyance of a patent 
 right, and at the same time a contract of sale of the right is made 
 and signed by both parties, which provides that if there shall be 
 default in any of the payments, then the deed shall become void 
 and of no effect to convey the right, and the purchaser shall forfeit 
 the payments already made, the condition is for the benefit of the 
 seller only. The purchaser can not elect to consider the contract 
 void, after part payment, and decline payment of the remainder of 
 the notes. lb. 
 
 31. An action can not be maintained upon a contract which con- 
 tains two conditions to be performed by the plaintiff, one subsequent 
 which has been performed, and one precedent which has not been per- 
 formed by him. Bucksport d> Bangor M. B. Co. v. Brewer, 67 — 295, 
 
 See Agency, 20, p. 14. 
 Insurance, 23, 25, 32. 
 Landlord and Tenant, 29, 31, 36. 
 Patmjbnt, 11, 16, 17. 
 Trustee Process, 81. 
 Sale, 20, 23. 
 
 CONFLICT OF LAW. 
 
 I. LEX LOCI. 
 II. LEX FOKI. 
 
 I. LEX LOCI. 
 
 1. The lex loci is presumed to be the same as the lex fori, unless 
 the contrary is shown. McKenzie v. Wardwell, 61 — 136. 
 
 2. Where contracts are made and to be performed in a foreign 
 country, their legal effect must be determined according to the laws 
 of that country. Lindsay v. Sill, 66 — 212. 
 
CONFLICT OF LAW. 99 
 
 3. Where no place of payment is named in a promissory note, it 
 must be construed according to the law of the place where it is made. 
 Stickney v. Jordan, 58 — 106. 
 
 4. Compound Interest may be recovered in this State, on a note 
 made in New Hampshire, when such interest is recoverable by the 
 laws of that State. Ih. 
 
 5. The plaintiff, a citizen of Vermont, there delivered to one P. 
 certain chattels and received from him his promissory note, and also 
 a writing stipulating that the chattels were to remain the property of 
 the plaintiff until the note was paid. By the laws of Vermont the 
 contract was valid without record. Held, that the title to the property 
 remained in the plaintiff after it was brought into this State, by vir- 
 tue of lex loci. Drew v. Smith, 59 — 393. 
 
 6. Payments. The defendant, at London, England, agreed to pay 
 the plaintiffs a commission on the charter of a vessel. The amount 
 of the freight due on the charter party was agreed upon, and was pay- 
 able in hard Spanish dollars. Held, that the plaintiff was entitled to 
 judgment for the sum in coin of the United States which would be 
 the equivalent of the sum in Spanish dollars which he would have 
 received had the commission been paid in London, and that execu- 
 tion should issue specifically for the coin. Stringer v. Coombs, 
 62—160. 
 
 7. Insolvency. A note given by the defendant to the plaintiff in 
 another State, while both were residents of that State, and included 
 in a discharge in insolvency regularly granted under the laws of that 
 State, while both parties were still citizens thereof, can not be 
 enforced here. Clark v. Cousins, 65 — 42. 
 
 8. Illegal Conteact. A contract, prohibited and void by the 
 law of the State where it is made, will not be enforced in another 
 jurisdiction. Kennedy v. Cochran, 65 — 594. 
 
 See Sale, 20. 
 
 II. LEX FORI. 
 
 9. In an action on a note given in another State, if the rules of 
 law in that State are more favorable to a defense based on the fact 
 that the note was given for intoxicating liquors than they are in this 
 State, the defendant must prove what those rules are, or they wiU not 
 avail him. Hapgood v. N'eedham, 59 — 442. 
 
 10. JuEiSDiOTiON. Probate. When administration is, without 
 fraud, commenced upon the assumption that the deceased was a citi- 
 zen of this State, and no appeal is taken from the decree granting 
 administration, final distribution must be made according to the laws 
 of this State, and not according to the laws of the State where in 
 fact the deceased had her domicile at the time of her death. Record 
 V. Howard, 58—225. 
 
 11. Penalty. Usury. When the laws of another country impose 
 upon a person receiving interest above six per cent, a forfeiture of the 
 principal sum and all the interest, and a suit is brought upon the 
 security, in this State, the defendant can not recoup usurious pay- 
 ments made after the debt was overdue, the forfeiture being in the 
 nature of a penalty which could be enforced only in the courts of the 
 country where the contract was made. Lindsay v. Hill, 66 — 212. 
 
100 CONSIDERATION. 
 
 CONSIDERATION. 
 
 I. WHAT IS A SUFFICIENT CONSIDERATION. 
 II. WANT AND FAILURE OF CONSIDERATION. 
 III. SEAL. 
 
 I. WHAT IS A SUFFICIENT CONSIDERATION. 
 
 1. A. loaned money to B., taking the bank check of the latter, made 
 payable to C. B. at the same time agreed that C. should indorse 
 the check, and immediately, upon receiving the money, went to C, 
 informed him of the agreement and requested him to indorse the 
 check. Thereupon C. went to the oiBce of A. and indorsed it. Held, 
 that the loan to B. was a sufficient consideration for the indorsement 
 of C. Emery v. Hobson, 62 — 578. 
 
 2. Where at the request of the party with whom he deals, one 
 makes his promissory note, which is to be a partial payment for work, 
 payable to a third person, who is a creditor of the party with whom 
 he contracts for the work, and it is credited by the payee to such 
 party in good faith, the maker can not set up a failure of considera- 
 tion as between himseU and the party with whom he deals, in defense 
 of a suit upon such note by the payee. South Boston Iron Co. v. 
 Brow7i, 63—139. 
 
 3. Delay. The acceptance of a negotiable promissory note, pay- 
 able at a future day, for a pre-existing debt, suspends the right of the 
 creditor to enforce payment of his debt until the maturity of the 
 note, and this suspension alone is a sufficient consideration for the 
 note. Andrews v. Marrett, 58 — 539. Tork v. Pearson, 63 — 587. 
 Thompson v. Gray, 63 — 229. 
 
 4. The charter of a mutual marine insurance company provided 
 that the company, for the better security of those concerned, might 
 receive notes for premiums in advance of persons intending to receive 
 policies, and might negotiate such notes for the purpose of paying 
 claims, or otherwise in the course of business, and also provided for a 
 compensation to be paid the signers. The by-laws provided that the 
 company, for the better security of its dealers, might receive approved 
 notes in advance, and allow a compensation to_ the signers. The 
 defendant and others agreed in writing to advance their notes for pre- 
 miums in accordance with the charter and by-laws. Held, that notes 
 so given for an open policy under which no insurance was effected, 
 were not void for want of consideration. Howard v. Palmer, 64 — 86. 
 
 5. When Implied. The fact of a sale implies a consideration, 
 and, in the absence of proof of fraud or deception, an adequate one. 
 Dem,ing v. Houlton, 64 — 254. 
 
 6. Indemn^itt. If one receives the permission of the plaintiff or 
 defendant in a suit to prosecute or defend the same, promising to hold 
 him harmless against costs, such permission is a sufficient consid- 
 eration for the promise to hold the nominal party harmless from 
 costs. Industry v. Starks, 65 — 167. 
 
 7. Without the statute of 1871, c. 186, a railroad company would 
 be liable to a city or town for the amount of damages which such city 
 or town had been compelled to pay by reason of a defect in one of its 
 
CONSIDBEATION. 101 
 
 Streets caused by the negligence in the construction or maintenance 
 of a railroad crossing on such street ; and if the company bad been 
 properly notified of the original suit, and the suit was defended by the 
 city in its behalf and on its request, it would be liable for the costs as 
 well as the damages. Portland v. Atlantic & St. L. H. It. Co., 66 — 
 485. 
 
 8. There is therefore sufficient consideration for a contract on the 
 part of the railroad company with the city for the defense of such a 
 suit, and for a promise to rejDay the city such sum as it should be 
 compelled to pay, therein. lb. 
 
 9. If a patentee, in consideration of a royalty, gives to another a 
 license to use the patent, the validity of the patent being then in liti- 
 gation, and the facts are well known to both parties, the licensee can 
 not defend a suit for the royalty, for the use of the patent for the time 
 the contract continues in force, on the ground that the patent was 
 void for want of novelty, although it is afterwards declared void for 
 that reason, by the court of final jurisdiction. Jones v. Jiurnham, 
 67—93. 
 
 See CoLLECTOE, 13, p. 92. 
 
 Adequacy op Consideeation, see Release, 3. 
 
 II. WANT AND FAILUKE OP COKSIDEEATION. 
 
 10. An assertion in his bond for the sale of land that the obligor is 
 "possessed and seized in fee" of the premises, when in fact he has 
 only a bond for a deed thereof from the real owner, is, between the 
 original parties thereto, a good defense .to a promissory note given in 
 consideration of the bond. Coburn v. Haley, 57- — 346. 
 
 11. Where one performs services for another without his knowledge 
 or consent a subsequent promise to pay for such services is without 
 consideration. Such promise may, however, afford evidence from 
 which a jury may infer a request. Sanderson v. Urown, 57 — 308. 
 
 ] 2. Where the defendant, in accordance with the terms of a com- 
 promise, paid to the plaintiff the amount claimed of him less fifty 
 dollars, and afterward voluntarily gave the plaintiff his note for the 
 fifty dollars; held, that there was no consideration for the note. 
 Phelps V. Dennett, 57 — 491. 
 
 13. Where the obligor of a bond, for the conveyance of land to the 
 obligee, upon payment by the latter of certain notes at maturity, con- 
 veys away the land upon the failure of the latter to pay the notes 
 when they become due, neither the obligor or his administrator can 
 enforce payment of the notes. lAttle v. Thurston, 58 — 86. 
 
 14. A promise to pay a mail contractor for carrying the mails in 
 accordance with his contract with the post-office department is with- 
 out consideration. Putnam v. Woodbury, 68 — 58. 
 
 15. The defendant's husband borrowed money of the plaintiff for 
 which he gave his promissory note, and at the same time agreed to 
 procure a good additional signer the next day. Eighteen months 
 afterward, the defendant, without receiving any consideration there- 
 for, in the absence of the plaintiff, and in ignorance of her husband's 
 agreement, but at his request, placed her name on the back of the 
 note. Held, that she was not liable to pay it. Sawyer v. Fernald. 
 59—500. 
 
102 CONSPIRACY — CONSTABLE. 
 
 ' 16. Bill of Sale. A. agreed to build for the plaintiff, piers 
 for a bridge, to be paid for at a certain rate per yard, in monthly 
 installments, until the piers were completed, when the whole was to 
 be paid. Thereupon A. procured the stone, placed it near the location 
 of the bridge, and fitted and marked it for the piers. The plaintiff 
 paid the first four installments but refused to pay the fifth unless A. 
 would give security, whereupon A. gave plaintiff an absolute bill of 
 sale of the stone. JSeld^ that as against an attaching creditor of A., 
 the bill of sale was void for lack of consideration. Fairfield Bridge 
 Co. V. Nye, 60—372. 
 
 17. A creditor who holds collateral security for the debt is not 
 bound by an unexecuted promise to the debtor, made to the debtor 
 without consideration, to give it up. Smith v. Strout, 63 — 205. 
 
 See CoNTEACT, 17. 
 
 III. SEAL. 
 
 18. An obligor in a bond can not defend an action thereon on the 
 ground of a want of consideration, or that the consideration has 
 failed. ValJcenburg v. Smith, 60 — 97. 
 
 19. A seal will not avoid a defense founded on the illegality of 
 the consideration. Morrill v. Goodenow, 65 — 178. 
 
 See Married Woman, 10. 
 Seal, 1, 3. 
 Surety. 
 
 CONSPIRACY. 
 
 1 . A conspiracy to cheat and defraud one, and deprive him of his 
 property, is not a conspiracy to "injure the person, character, business 
 or property of another," within R. S., 1871, c. 126, § 17. The injury 
 contemplated by that statute is to the property in rem. State v. 
 Clary, 64^869. 
 
 2. An indictment alleging that the defendants conspired, by false 
 pretences, to deprive a person of his property, and did falsely pretend 
 that one of them, an officer, had papers giving him authority to take 
 from such person the property named, and did take the property 
 against the will of the owner, whereas the officer had no such papers, 
 does not set forth the doing of any "illegal act injurious to the pub- 
 lic trade, health, morals, police or administration of public justice." 
 
 CONSTABLE. 
 
 1. If a constable delivers to the selectmen the bond required by law 
 to be given by him, before he is authorized to serve civil precepts, 
 with sureties sufficient in their opinion, he may serve such precepts, 
 although they neglect to indorse their written approval upon the 
 bond. Fournier v. Cyr, 64 — 32. 
 
CONSTITUTIONAL LAW. 103 
 
 2. A consta-ble is a oompetent officer to serve the citation in a poor 
 debtor's disclosure, althougli the amount due the creditor is more than 
 a hundred dollars. JBliss v. Day, 68 — 201. 
 
 3. Such service is valid although the constable has not given bond, 
 if he is an officer de facto. lb. 
 
 CONSTITUTIOlSrAL LAW. 
 
 I. ELECTIOlsrS. 
 
 II. OFFICES. 
 
 III. LAWS AFFECTED BY THE BILL OF RIGHTS. 
 
 IV. TAXATION. 
 
 Y. VESTED RIGHTS. 
 
 VI. RETROSPECTIVE LAWS. 
 
 VII. OTHER LAWS. 
 
 I. ELECTIONS. 
 
 1. Under R. S., 1871, c. 78, § 5, the governor and council can only- 
 act upon the returns signed and returned by the proper officers, except 
 in reference to the number of votes, and the persons voted for. 
 Opinions of Judges, 64—588. 
 
 2. If the returns do not appear to be signed by the proper officers 
 they must be disregarded. If the names are forgeries that fact may 
 be shown. Jb. 
 
 3. In canvassing the votes returned to the secretary of State, the 
 governor and council can not include in the number of votes for 
 William H. Smith, votes for W. H. Smith, or W. Smith. Opinions 
 of Judffes, 64—596. 
 
 4. Nor can they count the votes for W. H. Smith as for William 
 H. Smith, although the municipal officers seal up with their return a 
 certificate that William H. Smith and W. H. Smith are one and the 
 same person. Jb. 
 
 5. Nor can they receive evidence showing that the return of votes 
 cast in any town for senators or representatives to the legislature does 
 not agree with the record made by the clerk of the town, and allow 
 the return to be so amended. Jb. 
 
 See Election, 7. 
 
 II. OFFICES. 
 
 6. An elected register of probate holds his office for the full term 
 of four years from the first day of January next succeeding his elec- 
 tion, although his last elected predecessor may have vacated the office 
 before the expiration of the term for which he was chosen. Opinions 
 of Judffes, 61 — 601. 
 
 7. When a register of deeds is elected to fill a vacancy, the election 
 is only for the unexpired term of the register whose place is thus 
 filled. Opinions of Judges, 64 — 596. 
 
104 CONSTITTJTIOlSrAL LA"W. 
 
 8. Under the constitution and laws of this State, a woman can not, 
 if duly appointed and qualified as justice of the peace, legally perform 
 all acts pertaining to such office. Opinions of Judges, 62 — 596. 
 
 9. It is competent for the legislature to authorize the appointment 
 of a married or unmarried woman to administer oaths, take the 
 acknowledgment of deeds, or solemnize marriages, so that the same 
 shall be legal and valid. Ih. 
 
 10. A trial justice or a justice of the peace and quorum is not to 
 be considered a justice of an inferior court, under the provisions of 
 section 2, of article 9, of the constitution of the State. Opinions of 
 Judges, 68 — 594. 
 
 11. A register of deeds can properly be commissioned by the gov- 
 ernor as a trial justice or a justice of the peace and quorum. lb. 
 
 III. LAWS AFFECTED BY THE BILL OF RIGHTS. 
 
 12. Indictment. The legislature did not exceed its constitutional 
 power in prescribing the statute form of an indictment for perjury. 
 State V. Corson, 59 — 137. 
 
 13. An indictment is not valid, and can not be made valid by the 
 legislature, unless it is found by a grand jury selected, organized and 
 qualified in accordance with some pre-existing law. State v. Doherty, 
 60—504. State v. Flemming, 66—142. 
 
 14. The criminal jurisdiction of the superior court for Cumberland 
 county having been taken away by an act of the legislature which took 
 effect Feb. 1st, 1871, and restored by an act which took effect Janu- 
 ary 13th, 1872, so much of Public Laws of 1872, c. 1, as purported to 
 confirm and make valid, the doings of the Superior court in criminal 
 cases, when that court had no criminal jurisdiction is unconstitutional 
 and void. State v. Doherty, 60 — 504. 
 
 15. When an indictment has been found by a grand jury drawn by 
 virtue of venires issued without the seal of the court upon them, it 
 is not within the constitutional power of the legislature to enact that 
 such indictment shall be valid notwithstanding such defect. State v. 
 Flemming, 66 — 142. 
 
 16. The act of 1877, c. 156, providing that irregularities in 
 venires for grand jurors shall not invalidate indictments found by 
 them, unless it is made to appear that the accused have been or may 
 be injured by the irregularity complained of, is undoubtedly constitu- 
 tional. State V. Smith, 67 — 328. 
 
 17. JuEY. Public laws of 1868, c. 151, § 6, providing that "the 
 party demanding a jury shall pay the jury fee, and tax the same in 
 his costs, if he prevail," is not in contravention of Art. 1, § 20, of the 
 constitution of this State. Randall v. Kehlor, 60 — 37. 
 
 18. A party has no constitutional right to file answers or pleas, or 
 to a trial by jury, after the time has elapsed within which, according 
 to the regular course of proceedings in the court where, he is 
 called to answer, he should have done so. Reed v. Cumberland 
 and Oxford Canal Co., 65 — 132. 
 
 19. Defendant in Criminal Case as Witness. A defendant 
 in a criminal case who becomes a witness at his own request, waives 
 the constitutional privilege of exemption from giving evidence against 
 himself. State v. Wentworth, 65 — 234. 
 
CONSTITUTIONAL LAW. 105 
 
 20. Due Process op Law. Any statute authorizing the summary- 
 seizure and sale of the property of a supposed trespasser upon the 
 public lands, without any other proceeding than the ex parte deter- 
 mination and command of the land agent, is unconstitutional. Dunn 
 V. Burleigh, 62—24. 
 
 21. Under the 14th amendment to the constitution of the United 
 States, declaring that no person shall be deprived of life, liberty, or 
 property, without due process of law, an ex parte commitment of a 
 person to the work house as a vagrant, by the overseers of the poor, 
 (R. S., 1871, c. 21, § 1 and 11), can not be sustained. Such a pro- 
 ceeding is not due process of law. Portland v. Bangor, 65 — 120. 
 
 22. Stjmmakt Removal. Health. A statute authorizing the 
 municipal officers of a town in which any person is infected with a 
 disease dangerous to the public health, to remove such person to a 
 separate house, with or without a warrant, provided it can be done 
 without great danger to his health is constitutional. Saverty v. 
 Bass, 66—71. 
 
 23. Ex Post Facto Law. The act of 1877, o. 215, imposing a 
 heavier penalty upon a person convicted of a violation of the liquor 
 law, if such person has been before convicted of a similar offense, is 
 not liable to objection as ex post facto, although applied to cases where 
 the first conviction took jilace before the passage of the act. State 
 V. Woods, 68-469. 
 
 24. The offender, in such case, is punished not for what he did 
 before the act of 1877 took effect, but for his subsequent violation of 
 the law, with the increased penalty before his eyes. lb. 
 
 IV. TAXATION". 
 
 25. Neither § 11, nor § 22, of article 1, of the constitution of this 
 State, limits or restricts the power of the legislature to repeal any 
 statute by which taxes have been imposed, or to prohibit the collec- 
 tion of taxes after they have been duly assessed and committed to 
 the collector. Augusta v. North, 57 — 392. 
 
 26. The legislature, may, by general and uniform laws, exempt cer- 
 tain descriptions of property from taxation, and lay the burden of 
 supporting the government elsewhere. Brewer Brick Co. v. Brewer, 
 62—62. 
 
 27. But it can not constitutionally transfer to towns the power to 
 exempt property, afterwards to be located within their limits, the 
 same property being entered upon their assessment books, and 
 returned for the purpose of making the State valuation. Brewer 
 Brick Co. V. Brewer, 62 — 62. Farnsworth Company v. Lisbon 
 62—451. 
 
 28. When the charter of a Water Company incorporated for the 
 purpose of supplying the inhabitants of a city with water, requires it 
 to furnish to the city without expense, all the water for its public 
 buildings, and also places it under other obligations to the city and 
 State, the legislature may constitutionally authorize the city gov- 
 ernment to exempt the property of the Company from taxation for a 
 term of years. Portland v. Water Co., 67 — 135. 
 
 29. Such an exemption is not unconstitutional, because it does aot 
 
106 CONSTITUTIONAL LAW. 
 
 at the same time, exempt all other water works in the State from 
 taxation. Ih. 
 
 30. Such exemption may be valid, upon the ground that the water 
 works built by the company are public works. Ih. 
 
 31. The city having an extensive supervisory direction over the 
 construction and management of the works, and having the right, at 
 any time to become sole owner thereof, the power relating to the 
 local and internal affairs of the city, being a police regulation for the 
 supply of water, the delegation of the power of exemption to the 
 city is valid. Ih. 
 
 32. Under the power to exempt for six years, an exemption for 
 five is valid. Ih. 
 
 33. When the power to exempt property from taxation is delegated 
 to the municipal government, it must be exercised within a reasona- 
 ble time. Ih. 
 
 34. The legislature has authority under the constitution to assess a 
 general tax on the property of the State, for the purpose of distribu- 
 tion, under an act to establish the school mill fund for the support of 
 common schools, approved February 27th, 1872. Opinions of Judges, 
 68—582. 
 
 35. The legislature may exempt particular parcels of property, or, 
 the property of particular persons or corporation^ from taxation, 
 either for a specified period, or perpetually, or may limit the rate or 
 amount of taxation to which such property shall be subjected. State 
 T. M. O. B. B. Co., 66—488. 
 
 36. The exemption, however, must be in clear and explicit terms, 
 leaving nothing to doubt or inference. Ih. 
 
 V. VESTED EIGHTS. 
 
 37. The owners of a dam across tide waters, erected in accordance 
 with a legislative grant, are not thereby protected from liability to 
 the owner of an ancient mill injuriously flowed by such dam. Xee v. 
 PemhroJce Jron Co., 57 — 481. 
 
 38. When, by the law in force at the time of the execution of a 
 deed of real estate, the release therein by the infant wife of the 
 grantor of her dower in the premises was voidable by her at her 
 election after attaining her majority, a subsequent act of the legislar 
 ture, making such release effectual to bar her dower is not constitu- 
 tional, and it is immaterial whether the release is avoided by the wife 
 before or after the passage of the act. Dela v. Stanwood, 61 — 51. 
 
 39. Lien. A statute can not confer a lien to enforce contracts pre- 
 viously made, if the rights of persons not parties to the contract are 
 to be affected. Allen v. Sam, 63 — 532. 
 
 40. But if the only effect of the statute is to give the creditor an 
 additional remedy for the collection of his debt, tliere seems to be no 
 good reason why it should not be used by him. Ih. 
 
 41. A lien given by statute, is only a part of the remedy afforded 
 by law for the collection of the debt, and is liable to be modified, or 
 wholly abrogated, even while proceedings are pending in court for its 
 enforcement. Ih. 
 
 42. Limitations. It is competent for the legislature to shorten 
 
CONSTITUTIONAL LAW. 107 
 
 the period at the expiration of which the limitation bar shall take 
 effect, provided a reasonable time is allowed for parties to bring suit 
 before their claims are to be deemed barred by the new enactment. 
 /Sampson v. Sampson, 63 — 328. 
 
 43. Attachment. An act that should undertake to restore an at- 
 tachment already dissolved, where the property had been, conveyed 
 to a honafide purchaser, would be unconstitutional and void. liidr 
 Ion V. Cressey, 65 — 128. 
 
 44. Chaetees. When the charter of a railroad corporation pro- 
 vides that it shall be bound to receive persons and articles for transpor- 
 tation, at all proper times and places, and also that the legislature may 
 inquire into the doings of the corporation, to correct and prevent 
 abuses of the franchise, an act authorizing the railroad commission- 
 ers to direct the company to erect and maintain a depot at a place on 
 the road, determined by them to be required by public convenience, 
 and necessity, is constitutional, and not an infringement upon the 
 charter, as it adds no new duties or burdens. JR. R. Oom.h v. P. dt 
 0. 0. R. Co., 63—269. 
 
 45. An act prohibiting any railroad company from constructing or 
 maintaining any track, or running any engines or cars on any street 
 or highway, so near any depot of any other railroad, as to endanger 
 the safe and convenient access to and use of such depot for ordinary 
 depot purposes, is a police regulation for the safety of the public, and 
 constitutional. Portland, S. <b P. R. R. Co. v. Boston <£ Maine R. 
 R. Co., 65—122. 
 
 46. The statute requiring railroad corporations to enclose the land 
 taken for their road with fences is a police regulation for the safety 
 of public travel and transportation and is obligatory upon all railroad 
 corporations, whether chartered before or after its passage. Wilder 
 V. Maine Central R. R. Co., 65—332. 
 
 47. A charter of incorporation granted by the State constitutes a 
 contract between the State and the corporators which the State can 
 not violate. State v. Maine Central R. R. Co., 66 — 488. 
 
 48. UsuET. Usury being a mere statutory defense, not founded 
 upon any common law right, either legal or equitable, it was clearly 
 within the power of the legislature to take it away. Holmes v. 
 French, 68—525. 
 
 See Salaet. 
 
 VI. EETEOSPECTIVE LAWS. 
 
 49. A statute providing that, when^it appears in a suit between 
 towns, involving the settlement of a pauper, that a marriage was pro- 
 cured to affect it by the collusion of the officers of either town, the 
 settlement is not affected by such marriage, is constitutional as apply- 
 ing to already existing marriages. AppUton v. Belfast, 67 — 579. 
 
 50. The legislature has the right, by fixed and general rules, to 
 change the pauper settlements of inhabitants as already existing, and 
 transfer them from one town to another. -Ih. 
 
 VII. OTHER LAWS. 
 
 51. JuEisDicTiON OE Couets. Bankeuptct. The authority to 
 set aside and annul a discharge in bankruptcy, conferred upon the 
 
108 CONSTITUTIONAL LAW. 
 
 federal court, is incompatible with the exercise of the same power by 
 a State court ; and the former is paramount. Corey v. Bipley, 57 — 69. 
 
 52. Towns. Powers of. The legislature has no authority under 
 the constitution to pass laws enabling towns, by gifts of money or 
 loans of bonds, to assist individuals or corporations to establish or 
 carry on manufacturing of various kinds, within or without the limits 
 of said towns. Opinions of Judges, 58 — 590. 
 
 53. Nor to authorize towns to establish manufactures entirely on 
 their own account, and run them by the ordinary town officers, or 
 otherwise. Ih. 
 
 54. Loan of Credit. The legislature can not constitutionally au- 
 thorize towns to loan their credit to such persons as, in consideration 
 thereof, will engage therein in manufacturing for their private emol- 
 ument. Allen V. Jay, 60 — 124. 
 
 55. Thus, the defendant town, at a meeting legally called therefor, 
 voted to loan its credit to Hutchings & Lane, to the amount of ten 
 thousand dollars, at six per cent annually, issue its bonds therefor, and 
 exempt H. & L.'s mill and lumber from taxation for ten years, pro- 
 vided H. & L. would invest twelve to thirteen thousand dollars, at or 
 near Jay Bridge, in building a steam saw mill with box machinery, 
 and in putting in one run of stones for grinding meal ; keep the same 
 in good repair, and amply insured ; secure the town by mortgage on 
 the property, at the rate of one dollar for every seventy-five cents 
 thus loaned and pay all interest, and ten per cent on the principal 
 annually, after three years ; and carry on said manufacturing business 
 not less than ten years. Thereupon the legislature enacted, that, 
 whereas, upon due investigation and consideration, we deem it for the 
 benefit of the town of Jay, and of the people of this State, said 
 town is hereby authorized to loan the sum of ten thousand dollars to 
 Hutchings & Lane, in accordance with a vote taken by said town for 
 the encouragement of manufactures in said town. On petition for 
 injunction, held, that the act of the legislature is unconstitutional; 
 and that the respondents be perpetually enjoined from issuing the 
 bonds. lb. 
 
 56. It is for the court, and not the legislature, to determine whether 
 the use for which private property is taken, in a given case, is or is 
 not a public use. lb. 
 
 57. Public Laws of 1872, § 3 of which provides that the previous 
 sections (changing the shire town of a county) shall be void, unless 
 the town of Skowhegan shall, on or 'before a fixed day, without 
 exj)ense to the county, provide suitable room and other accommodar 
 tions for the court and officers, to the acceptance of the county com- 
 missioners, and shall secure a suitable site for the erection of county 
 buildings, is constitutional. Walton v. Greenwood, 60 — 356. 
 
 58. The Grand Trunk Railway of Canada, is a foreign corpora- 
 tion, and its charter creates no obligations and imposes no restraints 
 upon the legislative authority of this State. Dryden v. G. T. JR. of 
 Canada, 60—502. 
 
 59. Under the lease of the At. & St. L. Railroad Company, the 
 Grand Trunk Railway Company hold the property therein demised, 
 subject not only to all the laws then in force, but such also as the leg- 
 islature might thereafter enact. lb. 
 
CONTAGIOUS SICKNESS. 109 
 
 60. Whether the statute relating to hawkers and peddlers, R. S., 
 1871, c. 42, § 1, is constitutional, see JBurbank v. McDuffee, 65 — 135. 
 
 61. Impoetbd Liquors. Imported foreign liquors are liable to sei- 
 zure and forfeiture under the statutes of this State while the importer 
 retains possession thereof in the original package, but for the purpose 
 and with the intent to break and sell them in this State in quantities 
 less than a package. State v. Blackviell, 65 — 556. 
 
 62. Geneeal Laws. The legislature can not by act or resolve dis- 
 pense with a general law for a particular locality, or a particular class 
 of cases. State v. JFlemming, 66 — 142. 
 
 63. The legislature may by private statute authorize the county 
 commissioners to lay out a highway across a river running between 
 two towns, and apportion the expense of building and maintaining 
 the bridge iipon the towns in proportion to their respective State val- 
 uations. Such statute is not in contravention of Art. IV., part III., 
 § 1, of the constitution of the State, upon the ground that it changes 
 the rights and liabilities of persons interested by taking them out of 
 the operation of the general law relating to the subject matter. 
 
 Waterville v. County Com. Kennebec County, 59 — 80. 
 
 64. The principle that one legislature can not bind another except 
 in cases involving a contract, does not render unconstitutional the 
 statute fixing the time when acts shall take effect at thirty days after 
 the adjournment of the legislature passing them, unless otherwise 
 provided. Jackman v. Garland, 64r— -133. 
 
 65. Bounties. The constitution does not authorize a town to raise 
 money to refund money given to it without expectation of rejjay- 
 ment. Perkins v. Milford, 59 — 315. 
 
 66. So much of acts of 1869, c. 55, as attempts to ratify the action 
 of towns in voting money to reimburse the amount paid by individ- 
 uals as commutation under act of Congress of March 3, 1863, is 
 beyond the sphere of constitutional legislation. Thompson v. Pitts- 
 ton, 59 — 545. Mculton v. Raymond, 60 — 121. Comins v. Mdding- 
 ton, 64 — 65. 
 
 CONTAGIOUS SICKNESS. 
 
 1. When the public health and human life is concerned the law 
 requires the highest degree of care, therefore a city physician, who 
 had ordered the removal of paper from the walls of a room in which 
 small pox patients had been confined, was held justified in so doing, 
 although the testimony of doctors, as to its necessity, was conflicting. 
 Seavey v. Preble, 64—120. 
 
 .2. A person sick with the small pox was removed by the municipal 
 ofiicers of the town, where he was taken sick, to a separate house, and 
 provided with nurses, supplies, and other necessaries. The expense 
 of such necessaries was paid by the town, repaid by the town in 
 which the sick person had his settlement, and the latter town brought 
 an action against the person so removed to recover the amount paid. 
 The action was brought under R. S., 1871, c. 14, § 1. The defendant 
 was not able to pay the whole amount of the experises. Held, (1) 
 that there was no implied promise on the part of the defendant to 
 
110 CONTEMPT. 
 
 pay for the supplies, (2) that he was not liable, under the statute, to 
 pay the town furnishing them for the supplies unless he was able to 
 pay the whole amount, and (3) that he was not liable to the plaintiff 
 town for the amount paid by them. Orono v. Peavey, 66 — 60. 
 
 3. The town incurring such expenses may recover them of the town 
 in which the sick person has a pauper settlement, if the sick person 
 is unable to pay them. Hampden v. Newhurg, 67 — 370. 
 
 4. But such recovery cannot be had if the person for whose relief 
 the expenses are incurred has property sufficient to pay them. Ih. 
 
 5. The statute (R. S., 1871, c. 14) authorizing the municipal officers 
 of a town in which any person is infected with a disease dangerous to 
 the public health, to remove such person to a separate house if they 
 think it best for the safety of the inhabitants, and it can be done with- 
 out great danger to his health, and also providing that any two justices 
 of the peace may issue a warrant for such removal, does not make 
 the power of removal by the municipal officers depend upon the issuing 
 of a warrant. They may remove a sick person without a warrant, or 
 they may, if necessary, resort to the warrant to obtain the assistance 
 necessary to effect the removal. Haverty v. Bass, 66 — 71. 
 
 6. The health officers of a town have no authority to impress any 
 building for a hospital. That power is conferred only upon two 
 justices of the peace. Lynde v. Hockland, 66 — 309. 
 
 7. And if the health officers unlawfully impress a building for use 
 as a hospital, the town is not liable. lb. 
 
 8. If the owner of a building taken and used as a hospital would 
 recover of the town for its use, on the ground of a contract, or that it 
 was lawfully impressed, the suit should be in assumpsit with proper 
 averments to establish the legal liability of the town to pay the rent, 
 or a just compensation. lb. 
 
 9. Where the health officers negligently suffered a nurse employed 
 ^ by them to go from the pest house without being properly disinfected, 
 
 the town was held not liable to one to whom the disease was commu- 
 nicated by the nurse. Brown v. Vinalhaven, 65 — 402. 
 
 CONTEMPT. 
 
 1. The fact that the respondent, during the pendency of a bill to 
 compel specific performance of his contract for the conveyance of 
 land had, in pursuance of a subsequent contract, conveyed the prem- 
 ises to a third person, creates, in equity, no inability, and affords no 
 excuse for refusing to obey the decree requiring a conveyance to the 
 complainant. /Snowman v. Harford, 57 — 397. 
 
 2. Nor does it make any difference that the respondent had con- 
 tracted to make the conveyance to such third person before the 
 commencement of the complainant's bill to compel performance of 
 the prior contract with him. lb. 
 
 3. Where, by the terms of the decree, the complainant is entitled 
 to a clear conveyance from the respondent, a deed of the premises 
 executed by the latter, reciting that "having conveyed said land" to 
 a third person named, "I now make this conveyance by order of said 
 
COKTKACT. Ill 
 
 court, in order to purge myself of contempt in not conveying said land 
 according to said order of said court," is not sufficient to purge the 
 respondent of contempt. lb. 
 
 4. A tardy and reluctant compliance with the decree after the issu- 
 ing and service of a writ of attachment for refusing to obey the decree, 
 does not purge the contempt. lb. 
 
 5. An attachment against a party respondent in a bill in equity for 
 not obeying a decree of the court, is not an appeal purely to the dis- 
 cretion of the judge before whom it is heard. lb. 
 
 6. In such a process, where the facts upon which the rulings were 
 predicated are not in dispute, and are stated as the ground of the rul- 
 ings, it is proper for the presiding judge to allow exceptions in order 
 to present the case to the full court for revision ; and if the rulings 
 are found incorrect, they may be set aside. lb. 
 
 7. There can not be in law a contempt of the authority of a magis- 
 ti-ate in a case in which he has no authority to act. Gall v. Pike, 66 
 —350. 
 
 See also same case, 68 — 217. 
 
 CONTRACT. 
 
 I. EXECUTION OF THE CONTRACT. 
 
 (a) Paetibs. 
 
 (b) What will constitttte ob peove a conteact. 
 II. VALIDITY. 
 
 (a) Gbneeallt. 
 
 (b) Illegal coNTKACTS. 
 
 III. EECISSION. 
 
 IV. CONSTRUCTION. 
 
 (a) When sbpaeate papebs aee to be coitstkubd toobtheb. 
 
 (b) Mutual, oostbitional and independent stipulations. 
 
 (c) Paeticulae ageeements. 
 V. IMPLIED CONTRACTS. 
 
 VI. GENERALLY. 
 
 L EXECUTION OF A CONTRACT, 
 (a) Parties. 
 
 1. Proof that goods were delivered upon the credit of one of two 
 defendants, as original promisor, impliedly negatives liability on the 
 part of the other. Fuller v. Miller, 57 — 168. 
 
 2. To make a written contract between contractors and the commit- 
 tee on streets binding on the city, it must be signed by at least a 
 majority of the committee; and they cannot give their chairman 
 authority to execute it without this. Curtis v. Portland, 59 — 483. 
 
 3. In construing a contract, to determine whether the signers 
 intended to bind themselves personally or merely executed it as 
 agents for another party, the intention is to be gathered from the 
 
112 CONTRACT. 
 
 ■whole instrument and not from any particular collocation of words 
 or form of expression used in signing. Winship v. Smith, 61 — 118. 
 
 (b) What will constitute or prove a contract. 
 
 4. Where the payee of a promissory note, payable on time, without 
 interest, upon being asked by the maker if he would accept partial 
 pre-payments, and allow interest on them, replied, "I think it will be 
 all right, there will be no trouble about it," the maker might thereby 
 understand the payee as assenting to the allowance of interest. Par- 
 ker v. Moody, 58 — 70. 
 
 5. Deliteet. a contract not signed by all the persons named as 
 parties thereto, and not delivered by the person signing, can not be 
 regarded as a completed contract. Mclntire v. Bowden, 61—153. 
 
 6. Public Ofeices established by the legislature are mere agencies 
 for the benefit of the people, not contracts on their part with the 
 office-holder for his benefit. Farwell v. Rockland, 62 — 296. 
 
 7. A town having voted to take stock in a railroad company, the 
 selectmen signed the subscription books for shares, and in so doing 
 added other conditions than those recorded therein. Among those 
 conditions was one that .the road be located through the town. The 
 company did not formally assent to the conditions, and afterwards 
 located the road on a line not passing through the town. The town 
 afterwards rescinded -their vote authorizing the subscription. Held, 
 no completed contract of subscription for shares. Belfast <& Moose- 
 head Lake R. B. (Jo. v. Unity, 62—148. 
 
 8. A PEOPOSiTiON becomes a contract only when it is met by an 
 acceptance which corresponds to it entirely and adequately. C'wm- 
 ierland Bone Co. v. Atwood Lead Co., 63 — 167. 
 
 9. The plaintiff made a proposition by letter to' the defendant that 
 the latter should furnish the former with sulphuric acid. The defend- 
 ant replied accepting it with the exception of the terms of payment, 
 which were to be arranged. In the correspondence, no time was 
 named during which the acid should be furnished by the one side, or 
 taken by the other. Held, that no binding executory contract was 
 entered into, and that either side could at any time retire from such 
 an arrangement. Ih. 
 
 10. SiGNATUEE. A contract is binding when signed by the party 
 making it, though he may use an English translation of a French 
 name, in his signature thereto. Augur v. Couture, 68 — 427. 
 
 11. When a contract (under seal), prepared, and signatures thereto 
 written, by a person not authorized to make the paper a binding con- 
 tract is afterwards signed by certain persons as agents of the persons 
 whose names were attached to the contract, and the name of one of 
 the agents was originally upon the paper as one of the signers, the 
 agent so signing does so for the purpose of giving life to the instrument 
 and can not assert that the instrument is not his deed. Mattocks v. 
 
 Young, 66—459. 
 
 12. Implied Assent. Where it appeared that the agent of the 
 defendant asked permission from the plaintiff to take gravel from his 
 land, and it did not appear what the answer was, but the gravel was 
 afterwards taken without objection, and was of such character as to 
 permanently injure the estate, it was held that it might be inferred 
 
CONTKACT. 113 
 
 that the permission was given. Sweetser v. Boston <& Maine H. H. 
 Co., 66—583. 
 
 See Insueance, 1. 
 
 II. VALIDITY. 
 
 (a) Gbnbkai,lt. 
 
 (b) Illegal contkacts. 
 
 (a) Generally. 
 
 12. The interests of the parties to a contract, whether of purchase 
 or sale, or for work or labor, are adverse and inconsistent with each 
 other, i:. & JSr. A. Railwatj Go. v. Poor, 59—277. 
 
 13. If a director of a railroad corporation enter into a contract for 
 the construction of the road of his corporation, he cannot then, nor 
 subsequently, personally derive any benefit from such contract. lb. 
 
 14. The plaintiff, having an equitable interest in real estate, with 
 the consent of the holder of the legal title, sold the same to the 
 defendant for a specified sum, a certain portion to be paid to the legal 
 owner, and the balance to the plaintiff. The defendant paid the 
 amount due the legal owner and received from him a deed in which 
 the consideration named was the sum paid. Held, that the plaintiff 
 might enforce the parol agreement of the defendant to pay him the 
 balance beyond the sum named in the deed. Dearborn v'. Morse, 
 59 — 210. See also Long v. Woodman, 65 — 56. 
 
 15. CoNsiDEEATiON". When a debt is discharged, by consent of the 
 creditor, for less than its amount, a subsequent promise to jjay it will 
 not be binding. Phelps v. Dennett, b1 — 491. 
 
 16. Thus, where the defendant, in accordance with the terms of a 
 compromise agreed upon between the parties, paid to the plaintiff the 
 amount claimed of him except fifty dollars, and afterwards the 
 defendant voluntarily gave the plaintiff his note for the fifty dollars 
 remitted in their settlement, held, there was no consideration for the 
 note. lb. 
 
 17. In the trial of an action of assumpsit, on an account annexed, 
 the defendant offered in evidence an unsealed, written agreement, 
 signed by the plaintiff and five other creditors of the defendant, 
 therein stipulating to "take fifty per cent of the amount due us in 
 full, for account against" him ; and oral evidence that the defendant, 
 prior to the commencement of this suit, presented to the plaintiffs 
 the draft of a third person, of an amount equal to fifty per cent of 
 the account in suit, and claimed a receipt in full; but that the plain- 
 tiffs refused to accept the draft and give the receipt ; held, (1) that 
 the evidence disclosed no consideration for or a mutuality in the writ- 
 ten agreement ; and (2) that the defense was not within R. S., c. 82, 
 § 38. Webb v. Stuart, 59—856. 
 
 18. In 1869, the plaintiff being then and still a citizen of Brighton, 
 Vt., then and there delivered to one Philbrick, then and still a citizen 
 of Maine, four horses, six stage harnesses, and a covered two-horse 
 wagon, receiving from the latter his promissory note, of that date, 
 together with a writing signed by him, dated at Brighton, reciting 
 what the note was given for, and stipulating that the "said horses, 
 harnesses, and wagon are to remain the property of the said" plaintiff 
 
114 CONTRACT. 
 
 "until said note is paid, the said" plaintiff "to have and apply toward 
 the payment of the said note the sums paid by the TJ. S. Government 
 for transportation of the mails from East Machias (Maine) to Lubec 
 (Maine) as the same shall become due." The statute of Vermont 
 does not require such a contract to be recorded. Held, that the law 
 of Vermont governed the contract, and that R. S., c. Ill, § 5 does not 
 affect it. Drew v. Smith, 59 — 393. 
 
 19. SuEVET. When the parties to a contract for the cutting, haul- 
 ing, or sale of logs mutually agree upon a person to survey them, and 
 determine the quantity and quality, the scale made by such person is 
 conclusive upon the parties, in the absence of fraud or unfair practices 
 by the party seeking to uphold it. Bailey v. Blanchard, 62 — 168. 
 
 20. Mistake. If a material mistake in a written instrument has 
 been subsequently rectified by a verbal agreement between the parties, 
 such subsequent agreement may be enforced. Wiggin v. Goodwin, 
 63—389. 
 
 21. In the absence of fraud, a person who signs a contract is bound 
 to know what he signs. Mattocks v. Young, 66 — 459. 
 
 22. A Verbal Ageeement to vary a written contract, made contem- 
 poraneously with it, is valid if subsequently adopted and recognized 
 by the parties. Gourtenay v. Puller, 65 — 156. 
 
 23. An Assignment of a mere expectation of earning money, if 
 there is no contract of any kind on which to found the expectation, is 
 of no effect. There must be some subject for the contract of assign- 
 ment to attach to. Emerson v. JEuropean & N^. A. M. H. Go., 67 — 
 387. 
 
 See CONSIDEEATION. 
 
 Real Action, 36. 
 Telegeaph, 4. 
 
 (b) Illegal contracts. 
 
 24. If the parties to an illegal contract are not in pari delicto, the 
 party who has been taken advantage of by the party receiving the 
 money may recover it back in the action for money had and received. 
 Concord v. Delaney, 58 — 309. 
 
 25. Where the owners of a vessel authorized their agent to charter 
 her to the TJ. S. for a specified sum, and through one J. B. a charter 
 for a larger sum was secured, it being agreed that the surplus should 
 be paid to J. B., it was held, that although the contract with J. B. 
 was illegal and against public policy, yet the portion of the surplus 
 actually paid to and claimed by him could not be recovered back, hut 
 that the portion not paid over might be retained by the owners. 
 Sovey V. Storer, 63 — 486. 
 
 26. A commercial broker can not recover payment for his services 
 as such without proof that he was licensed by the U. S. Harding v. 
 Hagar, 60—340. 
 
 27. Where persons are prohibited by statute from carrying on 
 certain trades, business or professions, without a license, under a pen- 
 alty of fine and imprisonment, compensation for services rendered in 
 one of the capacities mentioned, can not be recovered by one who has 
 no license. Harding v. Hagar, 63 — 515. 
 
CONTEACT. 115 
 
 28. CoNTEACT NOT Affected. The statute prohibiting banks from 
 discounting paper without at least two names does not prevent a bank 
 from becoming the owner of and entitled to collect or transfer a note 
 discounted with only one name, as, in such case, as to the maker of 
 the note, the violation of the statute is entirely collateral and does not 
 enter into or affect his contract. Roberts v. Lane, 64 — 108. 
 
 29. The plaintiff having agreed upon a sale to the defendant of sev- 
 eral bales of unbranded pressed hay, an illegal contract by statute, de- 
 livered a number of the bales when a dispute arose as to the quulity, and 
 the plaintiff declared that if the defendant would not take the whole 
 lot he should not have any, and thereupon sold the entire lot to one 
 G., but did not receive from G. ))ay for the hay already delivered to 
 the defendant, nor was it ever delivei-ed to G., but was taken away 
 by the defendant and sold. Held, that if the contract of sale was 
 rescinded and the hay thus taken and sold by the defendant went into 
 his possession with the consent of the plaintiff, and with that consent 
 was taken away by the defendant who after his return promised the 
 plaintiiS to pay him the proceeds of the sale, deducting the freight 
 and expenses, then the plaintiff might recover such proceeds in an 
 action for money had and received; that by the sale to G. no title 
 passed to him as regarded the hay then in the possession of the 
 defendant, and that the defendant might be regarded as the bailee 
 of the plaintiff. Foye v. Southard, 64 — 389. 
 
 30. Public Policy. A plaintiff having a valid claim against one 
 of two persons, being uncertain which one was liable, brought suit 
 against each. The defendant in one of the suits then agreed with the 
 plaintiff that he would assume the prosecution of the other suit, and 
 pay all costs which might be recovered against the plaintiff in case 
 the prosecution should not be successful. Held, that the contract 
 was not against public policy. Bidustry v. StarJcs, 65 — 167. 
 
 31. Coal. Under R. S., 1871, c. 41, § 13, providing for the weigh- 
 ing of coal by a sworn weigher, unless the parties otherwise agree, 
 the agreement of the parties cannot be inferred from the mere fact 
 that the purchaser has accepted the coal without objection, proposed 
 to give his note for it, and has paid for former lots weighed by the 
 same person, without proof that he knew that such person was not a 
 sworn weigher. James v. Josselyn, 65 — 138. 
 
 32. A promise given to aid in suppressing a criminal prosecution is 
 void. Morrill v. Goodenow, 65 — 178. 
 
 33. Pbksonal Sbkvices in Illegal Employment. A person can 
 not recover for his personal services, portions of which are rendered 
 in an unlawful employment, the contract being an entirety. Goodwin, 
 V. Clarke, 65—280. 
 
 34. But if his contract is to render services only in a legal employ- 
 ment, and he seeks to recover for no other, he is not to be debarred 
 therefrom merely because, during the season of his employment, he 
 gratuitously assisted his employer in an unlawful business, such as the 
 sale of liquors. Jb, 
 
 35. A plaintiff who sues an account containing items legal and 
 items illegal, each class of which would support a separate action of 
 itself (but for the illegality), and having no other connection than 
 that they are embraced in the same account annexed, is not debarred 
 
116 CONTEACT. 
 
 from a recovery ■ upon the legal items because of his claim for the 
 illegal. lb. 
 
 36. Travelling Salesman. An unlicensed travelling salesman of 
 the plaintiffs, a New York firm, obtained in this State an order drawn 
 by the defendant upon the plaintiffs for certain goods, which were 
 accordingly forwarded by them to the defendant. Held, that the 
 plaintiffs were not within the prohibition of R. S., 1871, c. 44, § 1, 
 imposing a penalty upon any person who should travel and offer for 
 sale goods, whole or by sample, without a license, and also providing 
 for the forfeiture of the property unlawfully carried ; and that the 
 price of the goods forwarded could be recovered. JBurbank v. 
 McDuffee, 65—135. 
 
 37. TJ. S. Mail. The U. S. statute, forbidding the assignment of 
 a contract to carry the mail, does not debar the contractor from hiring 
 others to transport the mail according to the terms of the contract. 
 Frye v. Burdick, 67—408. 
 
 38. Made is anothbe State. A contract illegal and void by the 
 laws of the State where it is made will not be enforced in another 
 jurisdiction. Kennedy v. Cochran., 65 — 594. 
 
 39. Contkact foe Future Delivbbt. The defendant, a citizen 
 of this State, while in Chicago, authorized the plaii^tiff, a commission 
 merchant, to sell for him wheat, at a specified price, to be delivered 
 at any time the defendant pleased during the following month. 
 The plaintiff thereupon contracted with certain persons in Chicago 
 to deliver them wheat, as authorized by the plaintiff. By custom 
 and law in Chicago, so long as the defendant should furnish the 
 plaintiff with "margin" sufiicient to guard him against loss, the plain- 
 tiff must carry the contract until the expiration of the month, but if 
 wheat should rise in price, and the defendant did not furnish sufiicient 
 margin, the plaintiff had the right to purchase wheat to fill the con- 
 tract, at the market price, or settle with the purchaser upon the best 
 terms possible. In this case wheat rose in price after the contract 
 was made, the defendant, upon demand, failed to furnish margins, and 
 the plaintiff settled with the purchaser, thereby suffering a loss. At 
 the time of the contract the defendant had no wheat, and the plaintiff 
 knew it. In an action to recover for the loss a requested instruction 
 that the contract was a wagering contract and invalid as a foundation 
 for the action was refused. Held, correct. Held., also, that whatever 
 may have been the intention, of the defendant, the case failed to 
 show on the part of the plaintiff any complicity with a wagering or 
 illegal contract. Rumsey v. JBerry, 65 — 570. 
 
 40. Gaming. The mere knowledge of the lender that the borrower 
 of money intends to gamble with it, if, by the terms of the agree- 
 ment, the latter is left free to use it as he pleases, may not constitute 
 a bar to a recovery of it. Franklin Company v. Lewiston Savings 
 Bank, 68—43. 
 
 41. But it is well settled that if the money is lent for the express 
 purpose of enabling the borrower to gamble with it, a recovery can 
 not be had. lb. 
 
 42. The rule is well established that contracts for the sale of chat- 
 tels entered into in contravention of the terms and policy of a stat- 
 ute, cannot be enforced ; and it is immaterial whether the sale is 
 expressly prohibited, or a penalty imposed therefor, because the impo- 
 
CONTRACT. 117 
 
 sition of a penalty in such case implies a prohibition. Durgin v. 
 Dyer, 68—143. 
 
 43. Not Absolute Nullity. One Deering had a contract with 
 the city of Saco for the rebuilding of a bridge. Plaintiff was in his 
 employ and engaged under his orders in removing the old structui-e. 
 Defendant was city marshal, and, acting under the orders of the 
 mayor and the committee on streets, who had a controversy with 
 Deering as to the fitness of the materials which he had procured to 
 answer his contract, notified the contractor not to remove the old 
 bridge, ordered the plaintiff to desist from his work, and on his refu- 
 sal arrested him without a warrant, put him in jail until a warrant 
 could be procured, and took him before the municipal court on a 
 charge of obstructing the highway by removing the planking of the 
 bridge. Deering was an alderman of the city when the contract was 
 made, and the contract was void by the provisions of R. S., 1871, c. 
 3, § 29. Held, that so long as the city authorities recognized the con- 
 tract as valid and subsisting, and were disputing with the contractor 
 only as to the manner in which he proposed to perform it, it could not 
 be regarded as an absolute nullity, nor the workmen employed in ex- 
 ecuting it, as engaged in a breach of the peace, or in the violation of 
 any law of the State, or by-law of the city, so as to subject them to 
 an arrest and imprisonment without a warrant. Moore v. Durgin, 
 68—148. 
 
 See Paetnbeship, 9. 
 
 III. EECISSION'. 
 
 44. How. One contract is rescinded by another between the same 
 parties, when the latter is inconsistent with and renders impossible 
 the performance of the former. Paul v. Meservey, 58 — 419. 
 
 45. Thus, where pursuant to the sale by the plaintiff to the defend- 
 ant, of a mare with foal, the defendant paid the plaintiff twenty-five 
 dollars, and agreed to let him have the colt when four months old, 
 unless he should conclude to keep the colt and pay the plaintiff fifty 
 dollars therefor ; but in accordance with a subsequent contract, the 
 plaintiff took back the mare before foaling time, sold her to a third 
 person, and let the defendant have a two years old colt upon the de- 
 fendant's paying him thirty-seven and one-half dollars boot-money ; 
 held, that when the plaintiff took back the mare and sold her, the 
 consideration for the promise of the fifty dollars failed. Ih. 
 
 46. Bt Whom. A contract between a minor and his master, 
 whereby the former paid his bounty money to the latter in considera- 
 tion of his consent to the minor's enlistment, may, after the minor's 
 decease, intestate, be rescinded by the administrator of his estate, 
 and the money recovered back. Dinsmore v. Webber, 59 — 103. 
 
 47. Rbstoeation of what was Received. If one is induced 
 by the fraudulent representations of the seller to purchase property, 
 and takes a bond for its conveyance, and afterwards restores the 
 property and rescinds the contract, it is not necessary that he surren- 
 der the bond. Farris v. Ware, 60 — 482. 
 
 48. Where money, which was the consideration of a contract, has 
 come into the possession of the party paying it, the other party be- 
 comes released from the necessity of making a formal return of it in 
 
118 ' CONTRACT. 
 
 order to be enabled to rescind such contract as obtained by fraud. 
 Walher v. Thompson^ 61 — 347. 
 
 49. One desiring to rescind a contract for fraud in its inception, 
 must restore the other party to his former condition by a return of 
 the consideration. Houghton v. Nash, 64 — 477. 
 
 50. The defendant collected a certain demand in favor of the plain- 
 tiff city, while he yet had the funds in his possession, he presented to 
 some members of the city government, a bill against the city for his 
 own services and received therefor an order upon the treasurer which 
 was issued by the mayor, without the previous approval of the bill 
 by the committee on accounts as required by the ordinances. This 
 order and his check for the balance the defendant passed to the city 
 treasurer in full, for the amount collected by him. Held, that the 
 city might maintain an action for its money in the hands of the 
 defendant, without returning to him the order and his check. Calais 
 V. Whidden, 64—249. 
 
 51. The plaintiff, a town, by the terms of an agreement between it 
 and the defendant, were to issue certain bonds to a railroad company 
 and the company to issue certain stock to the town, and in case the 
 company should fail to build the road to a certain place within a spec- 
 ified time, the defendant agreed to refund the bonds to the town, in 
 which case the town was to deliver the stock to the defendant. The 
 road was not built according to the contract; the defendant did not 
 refund the bonds, and the town brought suit on the contract. ITeld, 
 that it might do so without first offering to deliver the stock. Oaji- 
 ton V. Smith, 65—203. 
 
 52. After the settlement of a demand for a' sum less than the full 
 amount due, before an action can be maintained on the original cause 
 of action, on the ground of fraud on the part of the debtor, the cred- 
 itor must rescind the contract of settlement, and tender to the debtor 
 whatever sum he had paid. Potter v. Monmouth Insurance Co., 68 — 
 440. 
 
 5.3. Whejt. If a party would rescind a contract on the ground 
 of fraud, he must do so within a reasonable time. Houghton v. Nash, 
 64—477. 
 
 54. What Constitutes. If a creditor takes an order from his 
 debtor, and agrees to credit it on the debt under certain conditions, 
 but afterwards hands it back to the debtor, and refuses to carry out 
 the agreement, the fact that the debtor, not assenting to recission of 
 the agreement, takes back the order and carries it to an attorney for 
 collection, or for advice, does not constitute a recission. Wdite v. 
 Vose, 62—184. 
 
 See Assumpsit. 
 
 Lane v. Smith, 68 — 178. 
 
 IV. CONSTRUCTION. 
 
 (a) When sep abate papers abe to be constbued togethee. 
 
 (b) Mutual, conditional, and independent stipulation. 
 
 (c) Paeticulab ageeements. 
 
 (a) When separate papers are to be construed together. 
 54. G. acquired title to a specific part of a schooner incumbered by 
 
CONTKACT. 119 
 
 an antecedent mortgage, and conveyed it, together with another ves- 
 sel, to the defendant, as security for his indebtedness to the defend- 
 ant, and to a firm of which the defendant was a member. Subse- 
 quently, and at G.'s request, the defendant conveyed the schooners 
 thus held by him to the plaintiffs (to whom, also, G. was indebted), 
 and at the same time, the plaintiffs agreed in writing with the defend- 
 ant, that when they disposed of the schooners, they would satisfy the 
 demands held against the same by the defendant and his firm, and 
 place the balance to the credit of G. Subsequently, the plaintiffs 
 paid the outstanding mortgage, and then sold the vessel for more than 
 the amount paid on the mortgage. Held, (1) that the bill of sale 
 of the vessels and the written contract must be regarded as one trans- 
 action, and be construed together; and (2) that an action cannot 
 be maintained on the covenant of warranty in the bill of sale. Rich- 
 ards Y .. Stephenson, bl — 51. 
 
 55. Wherever we find the name of a party to a contract, though 
 he may choose to put it there by himself, as attorney, we need look 
 no further than the instrument itself for his authority, and the extent 
 of his liability. Mattocks v. Young, 66 — 459. 
 
 56. A large number of the creditors of the same debtor authorized 
 certain of their number by a written power of attorney, to sell, as- 
 sign, or otherwise adjust their claims, and attached to their signatures 
 the amount of their respective claims. By virtue of this authority, 
 the agents therein named executed a deed covenanting to transfer 
 and assign their claims to a person named upon payment of a certain 
 per centage. In the power of attorney, the amount of the debt of 
 one of the creditors was under stated. Held, that so far as the cred- 
 itors were concerned, who executed the deed, their rights were to be 
 determined by the deed itself, and could not be interpreted by refer- 
 ence to the power of attorney. lb. 
 
 57. The two papers are not to be considered as parts of the same 
 transaction in such sense as to require them to be construed as one 
 instrument. One is a step toward the end, the other is the end itself. 
 lb. 
 
 See Knight v. Byer, 57 — 174. 
 MitcJiell V. Smith, 67—338. 
 
 (b) Mutual, conditional, and independent stipulations. 
 
 58. A contract between the plaintiff and C., stipulated that the 
 latter would, on or before a specified date, adjust and settle all mutual 
 accounts between them, and that in default thereof the plaintiff 
 might cause an adjustment of the accounts to be made by a person 
 named. Performance of this contract was guaranteed by "the defend- 
 ant. Held, that the agreement to adjust and settle was an independ- 
 ent stipulation, the breach of which rendered the defendant liable to 
 pay what was due from C, and that it was optional with the plaintiff 
 whether or not he would have the amount ascertained by the arbitra- 
 tor. Adams v. Macfarlane, 65 — 143. 
 
 59. If one gives a note payable when he shall sell the place he lives 
 on, the debt is absolute, and it is the duty of the maker to sell the 
 place within a reasonable time that he may pay the debt. He can 
 not by suffering judgment and execution against him, and a levy 
 upon the place, claim to be relieved from his debt on the ground that 
 
120 CONTEACT. 
 
 it is out of his power to perform his contract. Grooker v. Holmes, 65 
 —195. 
 
 60. When a subscription to the capital stock of a railroad company- 
 is upon condition that the "road be located through the town of B., 
 satisfactory to the selectmen of said town," a location through the 
 town satisfactory to the selectmen is a condition precedent to the 
 right of the company to enforce the subscription. Buchsport dt 
 Jiangor H. R. Co. v. Brewer, 67 — 295. 
 
 See Condition. 
 Sale, 66. 
 Trustee Peocess, 13. 
 
 (c) Particular agreements. 
 
 61. The plaintiffs contracted in writing to out and haul from the 
 "Dartmouth College Grant," and drive and deliver into the defend- 
 ant's boom, "in the spring of 1867, from three to five million feet of 
 spruce logs," of a specified description, "and all the pine timber they 
 can obtain from said grant." In the same instrument, the defendants 
 agree to pay the plaintiffs seven dollars per M. for the spruce, and 
 eleven dollars per M. for the pine, "when scaled and delivered in said 
 boom ; " "to advance from time to time such sums, not exceeding 
 one-half the amount to be paid for the logs, as the plaintiffs may need 
 in the prosecution of the work ; " and "in case any logs cut on said 
 grant are not delivered in their boom as aforesaid," the defendants 
 "are to retain in their hands, at the rate of one dollar per M. on 
 account of said logs." In an action to recover the price stipulated, 
 held, (1) that the plaintiffs were entitled to recover the full prices for 
 all lumber cut and delivered by them into the defendant's boom in the 
 driving season of 1867 ; and (2) the same prices, less one dollar per 
 M. for all timber cut, hauled, and properly landed by them, but which 
 remained uudrivcn, without any want of reasonable diligence on their 
 jjart. Sanderson v. Brown, 57 — 308. 
 
 62. A writing acknowledging that the subscriber had received the 
 promissory note of another "for five shares of stock in the M. T. Co., 
 and certificates of stock are to issue to" the maker of the note for the 
 same, when ready for issue, — is not a contract for the future sale of 
 the shares, but a recognition that the shares themselves were the con- 
 sideration of the note. Hope Iron Works v. Holden, 58—146. 
 
 63. A railroad sub-contractor, by his written agreement with the 
 contractor, agreed "to construct and complete all the grading, earth, 
 rock, and masonry for the road-bed of the Somerset railroad, from 
 the third station north of Otis Hill road-crossing, to the Kennebec 
 river ; " "that if any work shall be done by said sub-contractor which 
 is not included in this contract, the price and value of said work shall 
 be determined by the chief engineer ; " "that the said work, during its 
 progress, shall be subject to the supervision and inspection of said 
 engineer, and shall be made to conform, in every respect, to his satis- 
 faction ; " "that with a view of preventing all disputes and misunder- 
 standings, and for the speedy adjustment of such as may occur, the 
 chief engineer shall determine the amount or quantity of the several 
 kinds of work herein contracted to be done, and shall decide every 
 question which can or may arise relating to the execution of work 
 under this contract, on the part of the sub-contractor, and his decision 
 
CONTEACT. 121 
 
 shall be final." The sub-contractor did work on the foundation of the 
 bridge across the Kennebec liver, which was accepted, and its value 
 estimated by the chief engineer. Held, that the work on the bridge 
 foundation was done under the contract. Rogers v. JSogan, 58 — 305. 
 
 64. And an assignment of such a contract by the sub-contractor, 
 and "all the rights and privileges therein mentioned," except the ten 
 per cent due "on all earth, excavations of earth, and masonry and 
 stone delivered on the road to the first of March," carries the value of 
 the work on the foundation of the bridge as estimated by the chief 
 engineer. lb. 
 
 65. A naked verbal promise to return, in good order and at a spec- 
 ified time, a thing hired, does not, as matter of law, import a contract 
 on the part of the hirer to insure it against loss occurring without his 
 fault. Jenkins v. Village Hank, 58 — 275. 
 
 66. On Nov. 13, 1869, A. contracted with the plaintiff bridge com- 
 pany to furnish materials and build two granite piers of Hallowell 
 granite, according to certain specifications, for fourteen dollars per 
 cubic yard, five hundred dollars to be paid down, and five hundred 
 dollars monthly, until the piers shall be completed and accepted, when 
 the balance is to be paid, and all to be completed before the following 
 spring freshets. Thereupon A. procured the blocks of granite, hauled 
 them upon land leased by him near the contemplated location of the 
 bridge, and commenced dressing and fashioning them. The plaintiffs 
 duly paid the first four installments, and before the next one became 
 due, and before any of the granite was placed in the piers, it was 
 attached by A.'s creditor. In replevin by the bridge company, 
 held, that the plaintiffs acquired no title by virtue of the contract and 
 the payments made, or any rights or interest in the granite as against 
 the attaching creditor. Fairfield B. Co. v. Nye, 60 — 372. 
 
 67. By written agreement the defendants were to repair and use 
 the plaintiff's canal, to collect and account for the tolls of all mer- 
 chandise, including their own, and after deducting all costs for repair- 
 ing and running the canal, were to pay the net jsrofits to the owner. 
 A subsequent clause provided that the defendants should pay over 
 the whole of the net i-eceipts after deducting expenditures in making 
 repairs. Held, that, considering the subject matter, its extent and 
 liability to need repairs, and the object in view, a reasonable con- 
 struction would allow the defendants a suitable compensation for 
 their supervision of the canal. Dyer v. Fitch, 63 — 170. 
 
 68. The plaintiff, by written contract, agreed to furnish the defend- 
 ant with a specified quantity of logs, and by another written contract 
 made on the same day, agreed to drive all the logs put into the river 
 by the defendant, at a specified rate. Subsequently, the furnishing 
 contract was modified, and the number of logs to be furnished by the 
 plaintiff increased, but no new contract was made as to the price of 
 driving. Held, that the rate for driving, as specified in the written 
 contract, applied not only to the logs included in the furnishing con- 
 tract of the same day, but to the logs subsequently contracted for. 
 Meserve v. Lewiston Steam Mills Co., 64 — 438. 
 
 69. The plaintiff agreed to move pianos for the defendant, and the 
 defendant agreed to pay the plaintiff a specified price for each piano 
 moved, and "to find help" to aid in the removal. The plaintiff made 
 and used an apparatus to facilitate the work of removal. Held, that 
 
122 CONTBACT. 
 
 although the use of the apparatus may have saved considerable labor 
 and relieved the defendant from the necessity of furnishing a part of 
 the help he had agreed to furnish, still he vas not liable to pay the 
 plaintiff for the use of the apparatus. Ladd v. Patten, 66 — 97. 
 
 70. Stumpage. The defendant agreed in writing to convey certain 
 land to the plaintiff, when he (the defendant) should have "received 
 from the stumpage out on said land, money enough to pay all the 
 consideration paid for said land," and interest and expenses. Held, 
 that as the word stumpage gignifies the price paid for the license to 
 enter land and cut down and remove timber, the plaintiff was entitled 
 to a conveyance, whenever lumber enough had been taken from the 
 land, the stumpage upon which was sufficient to pay the consider- 
 ation and expenses provided for, that this should include stumpa,ge on 
 operations carried on by the defendant himself, that stumpage, in the 
 sense of the agreement, accrued whether the defendant sold the per- 
 mits to others or used it himself, but that the defendant should not 
 account for stumpage which he failed to collect of other persons 
 through no want of care on his part. Blood v. Drummond, 67 — 476. 
 
 71. Neal cut and hauled logs for the defendants, for which they 
 agreed to pay him $5 per M. The plaintiffs afterwards agreed to 
 cut, haul and drive logs for the defendants, at $7 per M. (for some 
 and $6.50 for others), a million feet with what Neal hauled, and to 
 carry out the trade with Neal, one-half the logs to be hauled by the 
 M. for the defendants, the other half, the defendants to pay stumpage 
 on and own. Held, that the logs cut by Neal are to be included in 
 the logs cut by the plaintiffs, both as to the amount to be paid for 
 cutting, hauling and driving, and the proportion to be owned by each 
 party. Bishop v. White, 68 — 104. 
 
 V- IMPLIED CONTRACTS. 
 
 . 72. The law does not imply a promise to pay rent for the occupa- 
 tion of real estate under a contract of purchase ultimately consum- 
 mated ; and if there be no express promise on the part of the 
 purchaser, an action for use and occupation cannot be maintained 
 against him. Dennett v. Pen. Fair Gh'ound Co., 57 — 425. 
 
 73. Where the fraudulent representations of the seller of property, 
 whereby the purchaser was induced to buy, were such as give the latter 
 the right to rescind, and he does rescind the sale and surrender pos- 
 session to the vender, the law implies a promise, on the part of the 
 seller, to pay the purchaser for labor and materials in making reason- 
 able repairs upon the property. Farris v. Ware, 60—482. 
 
 74. Thus the defendant fraudulently represented the water-power 
 connected with his tannery, to be sufficient to work it continuously 
 throughout the year, and plaintiff, having no knowledge of the prem- 
 ises, and relying upon the representations, was thereby induced to 
 purchase the tannery, and thereupon, after taking a bond thereof and 
 giving his notes for the price, the plaintiff entered into possession, 
 and, under the advice of the defendant, expended large sums in 
 repairs ; but the water failing, the plaintiff abandoned the property, 
 and notified the defendant that he considered the contract of purchase 
 rescinded, whereupon the defendant took possession of the premises, 
 and had the benefit of the repairs. In assumpsit to recover for the 
 labor and materials in making the repairs, held, that the action was 
 maintainable. lb. 
 
CONTRACT. 123 
 
 74. If land is conveyed in consideration of a promise of the grantee 
 which is within the statute of frauds and can not be enforced, and 
 which he afterwards refuses to perform, the law implies a promise to 
 pay what the land was reasonably worth. Long v. 'Woodman, 65 — 
 56. 
 
 See Physician, 3. 
 
 TlMK, 2. 
 
 VI. IN GENERAL. 
 
 75. When services, valuable to another, are rendered with his con- 
 sent, he is liable to pay a reasonable compensation therefor ; and if 
 he would avoid payment on the ground that they were a gratuity, or 
 that the person performing them did so only with the expectation 
 that he should receive a portion of the other's property by will, the 
 burden of proof is upon him who affirms such facts. JRtimrill v. 
 Adams, 57 — 565. 
 
 76. A person contracting to drive logs for the owner, cannot defend 
 an action for carelessness in driving such as he undertook to drive, 
 upon the ground that the owner did not turn out to be driven all the 
 logs he contracted to turn out. Boody v. Goddard, 57 — 602. 
 
 77. On May 12th, the defendant purchased by sample of the plain- 
 tiffs sixty-six barrels of sound beans. On the 24th June, the defend- 
 ant ordered, and on the 26th received from the plaintiffs fifteen barrels 
 of medium beans, and thereupon, for the first tiriie, notified the plain- 
 tiffs that fifteen barrels of the former lot were mouldy, and he had 
 ordered the latter lot to replace the mouldy ones, which he then 
 returned. In an action to recover for the latter lot, held, that the 
 latter lot could not he substituted for the movildy beans without the 
 assent of the plaintiffs, and that the plaintifl: could recover their value 
 on account annexed. Woodward v. Libhy, 58 — 42. 
 
 78. Place. When a contract, made and to be performed in Eng- 
 land requires the payment of a certain amount in hard Spanish dollars, 
 the amount to be recovered here is its equivalent in coin. Stringer v. 
 Goomhs, 62— IGO. 
 
 79. The nature, validity and construction of contracts are to be 
 determined by the law of the place where they are made, and all 
 remedies for enforcing them are regulated by the law of the place 
 where the remedy is sought. lAndsay v. Hill, 66 — 212. 
 
 80. Apportionment. A railroad company undertook to carry over 
 its road a "crate" for an express company for an agreed compensation 
 per year, the compensation for each month being payable on the first 
 day of the month following, and did carry it, until prevented by its loss 
 of the road, which passed into the hands of a mortgagee on a day 
 between the monthly pay days. The mortgagee continued to operate 
 the road and to carry the express crate. Held, that payment by the 
 express company for the month when the mortgagee took possession 
 might be apportioned between the mortgagee and the railroad com- 
 pany; that, having acted in good faith, the railroad company was 
 entitled to compensation for the time it carried the crate, less the 
 damages caused by its failure to carry for the entire time. Emerson 
 V. European & JST. A. B. B. Co., 67—387. 
 
 81. Abandonment. Where two railroad companies entered into a 
 contract to construct at their joint expense a sear wall and street upon 
 
124 COPYRIGHT — COEPOEATIONS. 
 
 ■whioli a track is to he laid to connect their roads, and to purchase land 
 and build a depot at some point on the connecting track, the contract 
 also providing regulations for the joint use of the connecting track 
 until the depot should be built, and the contract was carried out with 
 the exception that the proposed depot was not built, it was held, that 
 after the expiration of twenty years, the stipulation with regard to the 
 depot must be treated as abandoned by mutual consent, neither party 
 having made any effort towards its erection, and one of the parties 
 having built a permanent depot at another place, without any objection 
 from the other. Portland, Saco & Portsmouth M. R. Co., v. Grand 
 Trunk Railway, 63- — 90. 
 
 82. Genbeal Lajstguage. Language, however general in its form, 
 when used in connection with a particular subject matter, will be pre- 
 sumed to be used in subordination to that matter. Emerson v. 
 European S JST. A. R. R. Co., 67—387. 
 See Railroad, 28, 70. 
 Waiver, 8. 
 
 CONVICTIOlSr. 
 
 See Abatement, 43, p. 6. Indictment, 80. Verdict, 5. 
 Witness, 32. 
 
 COPYRIGHT. 
 
 1. In the absence of any special contract, the different owners of a 
 copyright are simply owners in common, not partners, and each owner 
 has a distinct but undivided j)art, which, or any part of which alone, 
 he can sell. Carter v. Bailey, 64 — 458. 
 
 2. A copyright is assignable in whole or in part. Ih. 
 
 3. Each owner in common can exercise his right to print, pubUsh 
 and sell without aid from or hindrance by the other owners, the only 
 restriction being as to time. Ih. 
 
 4. An owner in common of a copyright, who has, at his own 
 expense, printed published and sold the book copyrighted, is not 
 liable, in the absence of any agreement inter sese, to account to his 
 co-owner. Ih. 
 
 CORPORATIOKS. 
 
 I. ORGANIZATION. 
 II. EIGHTS AND LIABILITIES OF MEMBEES. 
 
 (a) GbnkbaI/I/T. 
 
 (b) Subscriptions fob stock and assessments thereon. 
 
 (C) iNDrVIDUAL LIABILITY OP STOCKHOLDERS FOB THE DEBTS OJ 
 THE CORPORATION. 
 
COBPORATIONS. 125 
 
 III. TRA]SrSFER OF SHAEES. 
 
 IV. DIVIDENDS. 
 V. OFFICERS. 
 
 VI. CORPORATE POWERS, RIGHTS, AND LIABILITIES. 
 
 VII. DISSOLUTION. 
 
 VIII. PLEADING. 
 
 I. ORGANIZATION. 
 
 1. Unless the certificate of the attorney general be obtained, as 
 required by R. S., 1871, c. 48, § 19, the persons associating themselves 
 together under the provi.sions of that chapter do not become a cor- 
 poration. JRichmond Factory Association \ . Clarice, &\ — 351. 
 
 2. Corporations formed by the action of the mortgagees of insol- 
 vent corporations, and those formed by the consolidation of pre- 
 existing corporations, are new corporations, both by the rules of 
 the common law and by the express terms of the statute, and as such 
 new corporations are subject to the general law of 1831, making the 
 charters of corporations liable to be amended by 'the legislature. 
 State V. Maine Central B. E. Co., 66 — 488. 
 
 II. EIGHTS AND LIABILITIES OF MEMBERS. 
 
 (a) Generally. 
 
 (b) STJBSCEIPTIONS foe stock AHD assessments THBKBOH-. 
 
 (c) Individual liability oe stockholdehs toe the debts of 
 
 THE COBPOEATION. 
 
 (a) Generally. 
 
 3. A member of a corporation, who is not its financial oiEcer, can 
 not, without authority, make himself its creditor by the voluntary 
 payment of its debts. Ulanchard v. First Asso. of S. of Portland, 
 59—202. 
 
 4. The plaintiff, a member thereof, sued a religious society for a 
 balance of account wherein was charged various sums paid for furni- 
 ture for their hall of worship, and credited various contributions from 
 members and others for the use of the hall. The by-laws provided 
 for the election of a treasurer, who had charge of the funds, and was 
 required to pay all bills ordered by the government. The plaintiff 
 and others, having been appointed a committee on the hall, without 
 specific duties or authority, purchased and paid for the furniture. 
 The account as sued was presented by the committee in their report 
 to the society. Held, (1) that the plaintiff could not thus make him- 
 self a creditor of the society, and (2) the acceptance of the report 
 was not such ratification by the society as would authorize the 
 suit. lb. 
 
 5. In 1863, a voluntary association was established by the name of 
 the "Lewiston Equitable Co-operative Society," for the buying and 
 selling to shareholders and others, groceries, etc., and its constitution 
 provided that members might "withdraw their funds by giving" cer- 
 tain notices, and its by-laws that when a notice to withdraw is given, 
 his "membership ceases." In January, 1867, a corporation by the 
 same name and for the same purpose, was organized under an act of 
 the legislature. In September following, the agent and salesman of 
 
126 COEPOEATIONS. 
 
 the corporation handed to the plaintiff a printed copy of the "consti- 
 tution and by-laws of the Lewiston Equitable Co-operative Society, 
 established December, 1863," informing him that it was the constitu- 
 tion and by-laws of the defendant corporation, and thereupon the 
 plaintiff purchased fifty shares of the stock, became a member, 
 attended its meetings, had opportunity at all times to examine its 
 constitution, by-laws and records, and purchased goods of its agents, 
 and received one dividend. By the by-laws of the corporation, mem- 
 bers might, by giving notice, surrender their certificates of stock, and 
 receive therefor its fair and equitable value, to be determined by the 
 m.anagers, — "provided that the assets shall be in excess of its lia- 
 bilities, and not otherwise." The corporation became insolvent in 
 December, 1868, and has continued so. In January, 1869, the plain- 
 tiff gave notice, as by the constitution and by-laws of the voluntary 
 association, of his withdrawal of funds and membership, and brought 
 this action to recover back his money. Held, (1) that the defendants 
 were not bound by the rules of the association by estoppel; and (2), 
 that this corporation is subject to R. S., c. 46, § 33. Driscoll v. Lew- 
 iston E. C. So., 59—474. 
 
 6. If one signs a paper promising to take and secure a certain 
 number of shares in a corporation, before the charter has been 
 accepted by the corporators and the company organized, this does 
 not impose upon him any liability, or make him a stock holder in the 
 corporation when organized, but is simply a proposal, which the com- 
 pany may or may not accept. Starrett v. Rockland F. & M. Ins. 
 Co., 65—374. 
 
 7. If the name of such signer is entered by the secretary of the 
 company upon the list of the stock holders who have taken and 
 secured their stock, and upon the stock ledger, and is also returned to 
 the secretary of State as a stock holder, the company is bound by this 
 action, and thereby accepts the proposal, unless it can be shown that 
 this was done by mistake. It may be shown that the name of the 
 signer was inserted in these lists by a mistake of fact, and that there- 
 fore he never became a stock holder. lb. 
 
 (b) Subscriptions for stock and assessments thereon. 
 
 8. Capitai Stock to be Fixed. If the charter of a corporation 
 does not definitely fix the number of shares which shall compose its 
 capital stock, this must be done by the directors, or stock holders, 
 before there can be any valid assessment laid upon the shares of sub- 
 scribers to its stock. Somerset JR. H. Co. v. Clarke, 61 — 379. Pike 
 V. Shore Line, 68 — 445. 
 
 9. Where it is evident either that there has been no prescribed 
 number of shares established as aforesaid, or else that the number is 
 six thousand shares, and it is admitted or proved that so many shares 
 have never been subscribed for or taken, any assessment upon the 
 shares that have been subscribed for will be void. Somerset B. Jt. 
 Co. V. Clarke, 61—379. 
 
 10. No valid assessment can be laid upon the shares of subscribers 
 to stock in a corporation until the total amount of the capital stock 
 shall have been subscribed for. lb. 
 
 11. It seems well settled that it is not necessary to fix the capital 
 
COEPOEATIONS. 127 
 
 stock to enable a corporation to maintain an action on the subscrip- 
 tion agi-eement. Bucksport & Bangor B. B. Co^ v. Buck, 65 — 536. 
 
 12. Conditional Subscription. The charter of a railroad 
 company, provided that the capital stock should consist of not less 
 than one thousand, nor more than twelve thousand shares, of one 
 hundred dollars each. The defendant signed a subscription, binding 
 himself to pay the sum written against his name, "as called for by 
 the treasurer, hereafter to be elected, same being part of the capital 
 stock, for the purpose of constructing a railroad from Bucksport to 
 Bangor." "The subscription not to be binding until the sum of one 
 hundred thousand dollars shall have been subscribed by good respon- 
 sible parties, and the subscriber not to be bound for any further sum 
 than that written by himself at the time of the subscription. The 
 capital stock to be three hundred thousand dollars, but as soon as one 
 hundred thousand should be subscribed, the stockholders to choose a 
 board of directors." At a meeting of the board of directors, the 
 defendant's subscription was accepted upon the conditions therein 
 stated. After more than one thousand shares had been subscribed, 
 the directors voted to close the subscription book for shares at the 
 number then subscribed for. Held, (1) that the vote closing the 
 subscription books might be regarded as fixing the number of shares 
 for the time being ; (2) that by implication, the defendant's sub- 
 scription became binding when one thousand shares were subscribed 
 for ; (2) that the provision that the capital stock should be three hun- 
 dred thousand dollars, was not a condition precedent ; (4) that the 
 liability of the defendant did not depend upon the number of 
 shares or upon any specific and fixed capital, but upon the terms of 
 his agreement. lb. 
 
 13. The defendant, with others, signed a subscription as follows : 
 We, the undersigned, agree and bind ourselves to take the amount of 
 shares set against our respective names, in the stock of the Belfast 
 and Moosehead Lake Railroad Company, agreeable to the foregoing 
 conditions : ELeld, 1st, that the simple agreement to take imposed no 
 personal obligation to pay for the shares ; 2nd, that the conditions 
 which contained no words of promise, did not create any ; 3d, nor a 
 provision in the charter purporting to render the subscriber liable for 
 the balance due, after a sale of his shares; 4th, nor does c. 206, 
 Special Laws of 1869, affect the contract made before its passage. 
 Belfast & Moosehead Lake B. B. Co. v. Moore, 60 — 561. 
 
 14. Books for subscription to stock in a corporation contained the 
 terms upon which the subscribers might become owners of shares. 
 Those in possession of the books were authorized to sell shares only 
 upon the terms therein recorded. A town, by its selectmen, sub- 
 scribed for shares, but in so doing, annexed conditions other than 
 those recorded therein, one of which was that the road should be lo- 
 cated through the town. Held, that before there could be a com- 
 pleted contract for the shares, the company must, in some legal man- 
 ner assent to the additional propositions of the town, and that the 
 subsequ'cnt location of the road upon a route, not through the town, 
 was a virtual refusal of such assent. Belfast & M. L. B. B. Co. v. 
 Unity, 62—148. 
 
 15. A person subscribed for stock, upon condition that a certain 
 amount be taken by responsible parties, by a specified day. At that 
 date, the required amount had been taken, but also upon a condition 
 
128 COEPOEATIONS. 
 
 which was not performed, but which was afterwards waived by the 
 subscribers. Held, that, as the condition upon which the first sub- 
 scriber agreed to take the stock was not fulfilled within the time spec- 
 ified, he was released from his obligation, and that his liabilities could 
 not be affected by a subsequent waiver, by the other subscribers, of 
 the condition upon which they agreed to take the stock. Ticonic 
 Co. V. Lang, 63—480. 
 
 16. An agreement to take a certain number of shares imports no 
 promise to pay for them directly. Belfast cfc M. L. JR. Co. v. Cot- 
 trell, 66—185. 
 
 17. And when such agreement is to the stock of a railroad company, 
 on condition that "no assessment be made upon the shares untU the 
 full amount be secured for its completion to Newport," the subscriber 
 only becomes liable upon his contract taken in connection with the 
 charter, and if assessments are made before a sum is secured by valid 
 subscriptions to an amount, at least equal to the cost of the road as 
 estimated by the company's engineer, they can not be enforced. 
 lb. 
 
 18. Decisiost of Dieectoes as to Sufficiency of Subsceip- 
 TiONS. Where the by-laws of a railroad company provided that no 
 assessments should be made on the stock until the full amount of the 
 estimated cost of the road should be subscribed by responsible parties, 
 and the requisite amount was subscribed, and the directors, in good 
 faith, determined that it was subscribed by responsible parties ; it was 
 held, that their decision was final, and that the assessment made in 
 pursuance of their decision could not be invalidated by showing that 
 in fact, some of the subscribers were not responsible. Belfast <& 
 Moosehead Lake R. It Co. v. Brooks, 60 — 568. 
 
 19. When a subscription for railroad stock is upon condition that 
 no assessment shall be made upon the stock "until the full amount be 
 secured for its completion to Newport ; " the directors are not the 
 conclusive judges whether or not asufiicient sum has been subscribed. 
 Especially if their decision that the sum is suflicient means that the 
 estimate of the cost of their engineer was too high or that invalid 
 subscriptions were to be regarded as valid. Belfast <& M. L. B. B. 
 Co., V. Cottrell, 66—185. 
 
 20. A valid subscription to the capital stock of an incorporated 
 company is not rendered invalid by a change of its corporate name in 
 accordance with a legislative act. Bucksport d; Bangor B. B. Co. 
 V. Buck, 68—81. 
 
 21. Assessments. When the charter of a corporation provides 
 that " the capital stock of said company shall consist of not less than 
 one thousand shares of one hundred dollars each, par value ; but the 
 number of such shares may be from time to time increased at the 
 discretion of the stock hplders, to an amount not exceeding twenty 
 thousand shares," the corporation has no power to assess the sub 
 sci-ibers to its stock till it has fixed its capital stock, and it has been 
 fully taken. Bike v. /Shore Bine, 68 — 445. 
 
 22. When the charter authorizes the directors to make equal assess- 
 ments from time to time on all the shares in the corporation, an 
 assessment, not made on all the shares of the stock, but on the stock 
 held by the towns and cities only, and omitting the shares held by 
 persons, is invalid. Jb. 
 
COEPOEATIONS. 129 
 
 23. Where a number of persons had signed an agreement to asso- 
 ciate themselves together, agreeably to the provisions of R. S., c. 48, 
 for the purpose of erecting a shoe-factory building, and had voted an 
 assessment upon themselves before applying to the attorney-general 
 for his certificate under § 19 of that chapter, and another after such 
 certificate had been refused them ; and two more assessments were 
 laid by the ofiicers chosen by them, in accordance with the by-laws 
 they had adopted ; and subsequently a portion of those so subscribing 
 had, without the concurrence of the defendant, procured from the 
 legislature an act of incorporation to effectuate the purpose originally 
 contemplated ; it was held, that the corporation created by this act 
 (Private Laws of 1872, c. 15) could not enforce payment of any of 
 the assessments previously laid against the defendant in the manner 
 aforesaid. Michmond Factory Association y. Clar/ce, 61 — 351. 
 
 See Condition, 1, p. 95. 
 
 (c) Individual liability for the debts of the corporation. 
 
 24. By R. S., 1857, c. 48, § 9, m/Vnufactueing corporations are 
 prohibited from contracting debts exceeding, at any one time, the 
 amount of their capital invested within the State, in real estate and 
 fixtures thereon, including machinery ; and from becoming indebted 
 to an amount exceeding one-half their capital paid in and undivided, 
 and of their other property and assets. When either of these limita- 
 tions is violated the stock holders become individually liable for the 
 debts of the corporation to the amount of their stock. This liability 
 is to be made available to the creditors of the corporation in the man- 
 ner prescribed in c. 46, § 24. Lovegrove v. Sunt, 58 — 9. 
 
 25. The demand by the judgment creditor of a corporation upon, a 
 stock holder, mentioned in R. S., c. 46, 1871, § 25, must be made with- 
 in six months after the date of the rendition of the judgment against 
 the corporation and at any time after the officer holding the execution 
 has made upon it a return that it is unsatisfied in whole or part for 
 want of attachable property of the corporation. JLovegrove v. JSrown, 
 60—592. 
 
 26. The suit against the stock holder must be commenced after such 
 demand and within six months from date of judgment. lb. 
 
 27. The phrase, "return of an execution," in R. S., 1871, c. 46, § 
 25, which prescribes certain preliminary steps to be taken by the 
 judgment creditor of a corporation prior to the commencement of a 
 suit against a stock holder, means a return upon the execution. It 
 may be made any time during the life of the execution and does not 
 require the return of the execution to court on the day of such return. 
 lb. 
 
 28. Restriction. The act of 1871, restricting the liability of stock 
 holders in all corporations, except in banks, to the amount not paid in 
 upon their stock, or withdrawn, applies to corporations organized under 
 the general law as well as those created by special act. Poor v. Wil- 
 loughby, 64—379. 
 
 29. Bank. Holders of stock in a bank when its charter expires, are 
 liable, under R. S. of 1857, c. 47, § 46, to contribute for the redemption 
 and payment of all bills issued by the bank, and remaining unpaid, in 
 the proportion that the number of shares held by them respectively 
 
 9 
 
130 COEPOEATIONS. 
 
 bears to the aggregate number of shares held by all the stockholders. 
 Dane y. Young, 61 — 160. 
 
 III. TRANSFER OF vSHARES. 
 
 30. A writing, aciknowledging the receipt of the promissory note of 
 another, "for five shares of stock in the M. T. Co. and certificates are 
 to issue" to the maker of the note, when ready for issue, is not a con- 
 tract for the future sale of shares. By a fair construction the shares 
 themselves were the consideration of the note. Hope Iron Works, 
 V. Holden, 58—146. 
 
 31. A provision in the by-laws of a bank that its shares shall he 
 transferable by indorsement in writing by the holder in the presence 
 of the cashier, or two other witnesses, requires that the cashier or 
 the witnesses shall in writing attest the signature of the holder in order 
 to render the transfer valid. Dane v. Young, 61 — 160. 
 
 32. It is not competent for a corporation to ratify and make valid 
 a transfer of stock made in violation of its by-laws. lb. 
 
 See Eaton v. Telegraph Co., 68 — 63. 
 
 IV. DIVIDENDS. 
 
 33. The funds of a corporation, whenever they accrued, are to be 
 distributed among such as are its stockholders when the dividend is 
 declared. Goodwin v. Hardy, 57 — 143. Sagar v. Union Nat. 
 Bank, 63—509. 
 
 34. When shares in a corjjoration are attached, all dividends 
 declared on such shares during the continuance of the attachment are 
 subject to the lien. Hagar v. Union Nat. Dank, 63 — 509. 
 
 35. A bank has the right to hold a cash dividend as pledged for the 
 indebtment of the share holder to the bank. lb. 
 
 36. A stock holder in a bank can not maintain an action against 
 the corporation for a dividend declared, without previous demand at 
 the place where it was payable. lb. 
 
 37. And if a demand is made while the stock is under attachment, 
 a new demand is necessary after the attachment is dissolved. lb. 
 
 V. OFFICERS. 
 
 38. A DiEECTOE of a railroad holds an ofiice of trust and can not 
 derive any personal benefits from the contracts of the company. 
 European <& N. A. JR. B. Co. v. Poor, ^—'111. 
 
 39. The Teeasueee of a corporation can not be charged as its 
 trustee for funds held by him officially ; nor for funds pledged to him 
 to secure an indebtedness of the company to him. Bowker v. HiU, 
 60—172. 
 
 40. I^TDOESEMENT OF NoTES. The authority of an agent of a cor- 
 poration to transfer the property in a note is more readUy inferred 
 than that to bind the corporation by the contract of indorsement. 
 Chase v. HatJiorne, 61—505. 
 
 41. When, by the by-laws of an insurance company, the president 
 has "power to settle and adjust all losses . . . and other claims of 
 the company," and the "indorsements or assignments of the notes or 
 securities of the company are to be made by" him, the indorsement 
 
COEPORATIONS. 131 
 
 and transfer of a note by the president, without the assent of the 
 directors, for the purpose of paying an indebtedness of the company 
 to the indorsee, and to which the company does not appear to object, is 
 valid, and passes the title to the note to the indorsee, notwithstand- 
 ing a clause in the same article which authorizes the president to 
 indorse notes when authorized by the directors. Union Ins. Go. v. 
 Greenleaf, 64—123. 
 
 42. And although the by-laws do not in terms authorize the presi- 
 dent to indorse notes, and do provide that no note shall be given 
 without the previous vote of the committee on finance, still, the 
 president may sell a note in payment of a debt of the company, and 
 the indorsee will obtain a good title. lb. 
 
 43. Estoppel. That a corporation be estopped by the acts of its 
 officers, it must appear that the party asserting the estoppel has 
 thereby been induced to change his position. iStarett v. Rocldand 
 Fire db Marine Ins. Co., 65 — 374. 
 
 44. When by the charter, the corporate powers of a corporation 
 shall be exercised by a board of trustees, the board of trustees can 
 only exercise its corporate powers. It can not surrender them, wind 
 up the affairs of the corporation, and divide its assets. That can be 
 done by a vote of the members of the corporation only. JBuck v. 
 Merchants' Ins. Go., 68—532. 
 
 yi. CORPORATE POWERS, RIGHTS AND LIABILITIES. 
 
 45. Bt-Laws. Any rule or by-law of a corporation, for the purpose 
 of buying and selling groceries, etc., by which any corporator could 
 withdraw his funds on demand or notice would be in contravention 
 of R. S., 1871, c. 46, § 33, and illegal. Driscoll v. Lewiston Equit- 
 able Society, 59 — 474. 
 
 46. Where the charter authorized the taking of land "not to exceed 
 six rods in width," and the time for the completion was extended by 
 the legislature, and "all rights, privileges, and grants were continued, 
 the charter was renewed in its entirety, the company retained the 
 right to take land six rods in width, although the general statute 
 allowed but four. Eaton v. European & N. A. R. R. Go., 59 — 520. 
 
 47. The GEAifD Teunk Railway holds the property leased of 
 the Atlantic & St. Lawrence R. R. Co., subject, not only to the laws 
 in force at the time of the lease, but also such as the legislature might 
 thereafter enact. Dryden v. Grand Trunk Railway, 60 — 512. 
 
 48. Lien upoisr Shares. The rule has long prevailed in many 
 jurisdictions that a corporation has no implied lien on the shares of its 
 stock holder for a debt due from him. Hagar v. Union National 
 Rank, 63—509. 
 
 49. Dividends. But it has upon cash dividends which have been 
 declared. lb. 
 
 50. Liability eoe Penalty. The action of debt, provided by R. 
 S., 1871, c. 42, § 3, for the owner of logs to recover double their value 
 from the person guilty of the offence of taking the logs without the 
 consent of the owner, and with intent to claim the same, can not be 
 maintained against a corporation. Androscoggin W. P. Go. v. 
 Bethel S. M. Go., 64—441. 
 
132 COEPOKATIONS. 
 
 51. Union of Corporations. When a new corporation is formed 
 out of two or more previously existing corporations, aud by the act 
 creating it is to have the powers, privileges and immunities possessed 
 by each of the corporations, whose union constitutes such new corpor- 
 ation, the new corporation will have only the privileges, powers and 
 immunities common to them all, and not those special privileges and 
 immunities which some had and some did not have. State v. Maine 
 
 Central R. B. Co., 66— 188. 
 
 52. Immunities. "When two or more corporations, with a special 
 immunity from general taxation, the amount of such taxation being 
 dependent upon certain precedent acts to be done by such corporation 
 thus to be exempted, are incorporated into a new corporation, which 
 is not required and is unable to perform the acts which must precede 
 such special taxation, the new corporation thus created, can not claim 
 the special immunity belonging to the corporations of which it is 
 composed. lb. 
 
 53. Incidental Powers. To allow a corporation to exercise 
 powers prohibited by its charter, even to facilitate the use of its 
 granted powers would be to render the limitations a nullity ; it can 
 not be permitted to do indirectly what its charter expressly prohibits 
 it from doing. Plummer v. Penobscot L. A., 67 — 363. 
 
 54. When the charter of a boom corporation provides that it shall 
 so construct its booms as to admit the safe passage of rafts and boats 
 and preserve the navigation of the river, it has no right to swing a 
 boom across the river and obstruct its navigation, though done ever 
 so carefully. Ih. 
 
 55. A corporation has only such powers as are specifically granted, 
 or such as are necessary for carrying the former into effect ; and these 
 powers can only be exercised for the purposes contemplated by its 
 charter. Franklin Company v. Lewiston Savings JBank, 68 — 43. 
 
 56. An incidental power is one that is directly and immediately 
 appropriate to the execution of the specific power granted, and not 
 one that has a slight or remote relation to it. lb. 
 
 57. It would seem, therefore, upon principle as well as authority, 
 that it is not within the authority of the trustees of a savings bank to 
 invest its funds in the stock of manufacturing corporations, unless 
 expressly authorized so to do by its charter, or the public laws of the 
 State. lb. • 
 
 58. Change of Name. It does not require the assent of the sub- 
 scribers to the capital stock of the company to authorize the legislature 
 to change its name ; the statute confers that right upon the legislature 
 without such assent. JBucksport c& Bangor B. B. Go. v. Buck, 
 68—81. 
 
 See Railroad, 82. 
 
 VII. DISSOLUTION. 
 
 59. By the termination of the existence of the Piscataquis Ins. Co., 
 all attachments against the company were dissolved. Bowker v. 
 mil, 60—172. 
 
 60. The charter of a bank expires by operation of law when aa 
 injunction restraining it from doing business is made perpetual. Bana 
 V. Young, 61—160. 
 
CORPORATIONS. 133 
 
 61. A coi-poration is not dissolved by merely neglecting to exercise 
 its corporate powers. Prop, of Baptist Meeting House v. 'Wehh, 
 66—398. 
 
 62. Laws of 1869, c. 17, amending defendant's charter, provides 
 that consolidated scrip may be issued in exchange for the scrip 
 authorized and issued under the original charter; and made subject to 
 the provisions and lien of the original charter ; and it further isrovides 
 that "when the business of said corporation shall be closed up an<l all 
 its other liabilities discharged, as the final act of its existence, its 
 remaining assets shall be divided among the holders of said consol- 
 idated scrip in proportion to the amount held by each." This con- 
 solidated scrip was irredeemable during the life of the corporation, 
 but entitled the holder to semi-annual interest and to annual dividends, 
 the same as are declared to policy-holders ; and the holders of it 
 were members of the corporation. The charter of the company pro- 
 vides that all the corporate powers shall be exercised by the trustees. 
 The members of the company voted "to recommend to the tru.stees 
 that 1117,400 be divided among the holders of consolidated scrip," 
 and that the "president is instructed to pay the proportion upon the 
 presentation of the certificates." The president paid as so instruct- 
 ed on all the certificates (including his own and those of seventy-six 
 others), except only on one scrip of $200 held by the plaintiff, which 
 he refused to pay. Held., that the evidence was sufficient to authorize 
 the inference that the corporation was winding up its affairs and 
 dividing its assets, as provided in the act of 1869 ; that the dividend 
 was pi'operly made, and that the plaintiff was entitled to maintain an 
 action for his share thereof. Buck v. Merchants'' Ins. Co., 68 — 532. 
 
 See Quo "Wakeanto. 
 
 VIII. PLEADING. 
 
 63. When the rights of pew-holders in a meeting-house are invaded, 
 by pel-mission of the corporation to which they belong, their remedy 
 must be sought in equity. Craig v. Franklin County^ 58 — 479. 
 
 64. In assumpsit by a toll bridge corporation against a stock holder 
 to recover assessments on his stock, it must be alleged that the assess- 
 ment sought to be recovered were due and payable when the action 
 was commenced. Bethel & Hanover Toll Bridge Co. v. Bean, 58 — 
 89. 
 
 65. A provision in a charter that where damages are sustained by 
 the exercise of the powers granted to the corporation, they shall be 
 ascertained in a manner prescribed in the charter, is not applicable 
 when the corporation becomes liable for damages caused by the 
 usurpation of powers prohibited by the charter. Plummer v. Penob- 
 scot L. A., 67—368. 
 
 66. The trustees appointed under Special Laws of 1867, c. 384, 
 accepting the surrender of the charter of the Piscataquis Fire and 
 Marine Insurance Company, cannot maintain a bill in equity in their 
 name and that of the corporation in behalf of the creditors or stock- 
 holders of the corporation as such. Pis. F. & M. Ins. Co. v. HilL 
 60—178. 
 
 67. In case of the misconduct of a corporation or its officers, cred- 
 itors or stockholders must pursue the remedy in their own names. 
 Ih. 
 
134 COSTS. 
 
 68. In a suit by a corporation, a plea of the general issue admits 
 the corporate existence of the plaintiff, and its power to sue. Ticonic 
 Bank v. Bagley, 68—249. 
 
 See Waivbe, 11, 16. 
 
 COSTS. 
 
 I. GENERALLY. 
 II. EIGHTS AND LIABILITIES OF PARTIES. 
 
 (a) Who is a pabty bntitled to costs. 
 
 (b) Who is liable fob costs. 
 
 (c) Peevailino party. 
 
 III. AMOUNT OF COSTS. 
 
 (a) What they may include. 
 
 (b) Amount as determined by the judgment. 
 
 IV. COSTS IN PARTICULAR CASES. 
 V. COMPLAINT FOR COSTS. 
 
 I. GENERALLY. 
 
 1. When judgment is rendered for a debt, payable in coin, the 
 judgment for costs will be general to be satisfied by payment in law- 
 ful money. Stringer v. Coombs, 62 — 160. 
 
 2. Payment or Costs of Foeiieb Suit. Where, in another 
 State, the defendant has on nonsuit recovered costs against the plain- 
 tiff, a subsequent suit brought by the plaintiff against the defendant 
 for the same cause of action, will not be stayed until the costs in the 
 former suit have been paid. Folan v. Lary, 60 — 545. 
 
 3. Section 111, c. 82, R. S., 1871, providing that when costs have 
 been allowed against a plaintiff on nonsuit or discontinuance, a sec- 
 ond suit may be dismissed unless such costs are paid, does not apply 
 when the first suit is in tort, and disposed of on demurrer, and the 
 second is assumpsit. Long v. Woodman, 65 — 56. 
 
 II. RIGHTS AND LIABILITIES OP PARTIES. 
 
 (a) Who is a party entitled to costs. 
 
 (b) Who is liable fob costs. 
 
 (c) Prevailing pabty. 
 
 (a) Who is a party entitled to costs. 
 
 4. Where, in trustee process, no personal service is made on the 
 principal defendant, and the trustee is discharged, a special appearance 
 of the defendant, by attorney, for the purpose of moving a dismissal 
 of the action, will not entitle him to costs when the action is dismissed. 
 Stewards. TTaZAer, 58— 299. 
 
 (b) Who is liable for costs. 
 
 5. Assignee. The liability of an assignee for costs of an action 
 prosecuted for his benefit, in the name of the assignor, is not confined 
 
COSTS. 135 
 
 to cases in which the assignment is made before the action isbrought. 
 Staples V. Wellington, 62 — 9. 
 
 6. An assignee of a demand, prosecuted for his benefit, by suit in 
 the name of the assignor, is none the less liable for costs, because the 
 assignment was ineffectual on account of a prior release given by the 
 assignor to the debtor. Ih. 
 
 7. After a verdict in his favor, and before judgment, the plaintiff 
 released his claim, the suit to be discontinued without costs to the 
 defendant, but when the defendant produced the release and moved 
 for a discontinuance of the suit, the plaintiff contested its validity. 
 Held, that the defendant was entitled to costs after his motion for a 
 discontinuance was filed. lb. 
 
 8. MiNOE. In a suit brought by S. W., of C, next friend to H. 
 J., a minor, S. W., is the plaintiff, against whom the defendant should 
 have judgment for costs, if the suit is not maintained. Soule v. 
 
 Winslow, 64—518. 
 
 9. GuAEDiAN. It is provided by R. S., c. 67, § 15, that the guar- 
 dian of an insane person, "may, if necessary, represent said estate 
 insolvent, with like proceedings, rights and liabilities as in the case of 
 estates" of deceased persons. SanfordY. Phillips, 68 — 431. 
 
 10. If, after the commencement of a suit, the defendant is adjudged 
 insane, and a guardian appointed, by whom his estate is rendered 
 insolvent, and the suit defended, the guardian is not liable for costs. 
 lb. 
 
 (c) Prevailing party. ' 
 
 11. One of two defendants was defaulted, and at a subsequent 
 term, the plaintiff discontinued as to the defaulted defendant and 
 recovered judgment against the other. Held, that the former was 
 entitled to costs to the time of the discontinuance. Fuller v. Miller, 
 58—40. 
 
 12. On application by a railroad corporation, the county commis- 
 sioners estimated the damages for defendant's land taken for location 
 of the road at $650. On appeal by the corporation, the jury estimated 
 them at $435. Held, that the corporation was the losing party- and 
 liable for costs. Bangor & Piscataquis B. P. Co v. Chamberlain 
 60—285. Goodwin v. P. & M. P. Co., 63—363. 
 
 13. The Lewiston municipal court had jurisdiction over cases when 
 the damages demanded did not exceed one hundred dollars, and eith- 
 er party resided in Androscoggin county. The plaintiff, a resident of 
 that county, brought suit against a resident of Sagadahoc county, the 
 ad damnum in the writ being thirty dollars, and the sum claimed in 
 the declaration seventeen. The defendant prevailing, but on appeal to 
 the supreme court, the plaintiff recovered sixteen, dollars. Held, that 
 he was entitled to full costs. Estes v. White, 61 — 28. 
 
 14. An heir at law who appeals from the allowance of a claim 
 by commissioners of insolvency, is liable to have costs awarded 
 against him, if the creditor recover, though the amount may be less 
 than that awarded by the commissioner. In such case the claimant 
 is the prevailing party. Henry v. Miller, 61 — 105. 
 
136 COSTS. 
 
 III. AMOUNT OF COSTS. 
 
 (a) What they mat include. 
 
 (b) Amount as DETEBMiifED bt the judgment. 
 
 (a) What they may include. 
 
 15. The prevailing party in trespass, quari clausum, is entitled to 
 have the reasonable costs of a survey, made by order of court, in- 
 cluded in the taxation of his costs. Leighton v. Saynes, 58 — 408. 
 
 16. When there is more than one trial before different juries, the 
 verdicts, except the last being set aside for irregularities, the party 
 who ultimately prevails is entitled to the costs of all the juries. 
 Goodwin V. B. & M. R. R. Co., 63— ^63. 
 
 17. In an action to secure a lien on logs, no more than one day's 
 attendance can be taxed for the plaintiff, at any one tenn of court, 
 until notice of the suit, such as the court orders, is given. Sheridan 
 V. Ireland^ 66 — 138. 
 
 18. Until this is done, the action is not in a condition to be tried, 
 or otherwise disposed of, adversely to the defendants, and there is no 
 occasion for the plaintiff oi- his counsel to remain in attendance upon 
 the court, and they should not be allowed to do so at the expense of 
 parties not responsible for the delay. lb. 
 
 See Post, 29. 
 
 (b) Affected by amount of Judgment. 
 
 19. In an action on the case for nuisance to real estate, full costs 
 are to be taxed, though the damages recovered are less than twenty 
 dollars. Wendall v. Greaton, 63 — 267. 
 
 20. If, after a debtor is summoned as trustee of his creditor, the 
 latter sues the debtor and recovers less than twenty dollars, on 
 account of the reduction of the debt by the payment, by the defend- 
 ant, of the judgment in the trustee suit, quarter costs only can he 
 recovered. Ladd v. Jacobs, 64 — 347. 
 
 IV. COSTS nsr particular cases. 
 
 21. Trustee Process. If an alleged trustee does not disclose in 
 the original action he is liable to costs on scire facias, although the 
 attachment is dissolved before judgment is rendered in the original 
 suit. Bowher v. Sill, 60—172. 
 
 22. A respondent in scire facias against a trustee, will not he 
 relieved from the payment of costs under R. S., c. 86, § 78, on the 
 ground that the officer who served the original writ upon him, told 
 him in the street that he had such a writ, but did not read it to him, 
 or give him a copy, and that he did not know that it was necessary 
 for him to appear and disclose, especially when the officer made re- 
 turn of legal service. Brainard v. Shannon, 60 — 342. 
 
 23. Divorce. A libellee cannot recover costs when the libel is dis- 
 missed, unless the court ordering its dismissal also order that costs 
 be allowed. Buckingham v. Buckingham, 61 — 232. 
 
 24. On Motion. Costs are allowable on the decision of a motion 
 when the motion is of such character that by the decision the whole 
 litigation is brought to an end. Staples v. Wellington, 62 — 9. 
 
COSTS — couNTy. 137 
 
 25. Amendmekt. Costs must be allowed when an amendment is 
 allowed to a declaration which is adjudged defective upon demurrer. 
 Colton V. Stanwood, 67 — '25. 
 
 See Amendment, p. 21. 
 
 26. Bill to Redeem. If the plaintiff prevails in a bill in equity 
 to redeem land under mortgage, he recovers costs as a legal right. 
 Dinsmore v. Savage, 68 — 191. 
 
 27. Equity. A bill was brought to obtain a release and convey- 
 ance of land from the administrator of an insolvent estate, on the 
 ground of a resulting trust in the intestate. In his answer the 
 administrator admitted, upon information and belief, the truth of the 
 allegations respecting the trust, but said nothing to indicate any 
 knowledge of the state of the accounts between the complainant and 
 intestate. Upon a report of a master showing that the complainant 
 had fully accounted for and paid all he ought to account for and pay, 
 he obtained a decree without costs to either party. Putnam v. liur- 
 rill, 62—44. 
 
 28. Where one claiming that an ancestor held land subject to a 
 resulting trust in his favor, left the heirs in doubt as to the genuine- 
 ness of his claim, and delayed for four years before bringing a bill 
 against them to enforce the trust, a decree in his favor was made 
 without costs. JRines v. Batcheldor, 62 — 95. 
 
 29. The costs of a bill in equity to ascertain the construction of a 
 will may be paid from the general assets of the estate, and may 
 include counsel fees on both sides. Straw v. Methodist Societies, 
 67—493. 
 
 30. If not amicably adjusted the counsel fees may be determined 
 by a judge at nisi prius, or by a master. lb. 
 
 V. COMPLAINT FOE COSTS. 
 
 31. Previous to the return day of the writ, the plaintiff's attorney 
 notified the trustee, in writing, that the suit had been withdrawn, and 
 discharged the trustee from aU liability, but on the return day the 
 trustee filed his disclosure, and properly notified plaintiff's attorney 
 of his readiness to submit to examination under oath. On complaint 
 for costs, held, that the plaintiff was liable to the trustee for costs. 
 Continental Mills v. Dow, 59 — 426. 
 
 82. One whose property has been taken by an officer under a writ 
 of replevin, but who has never been summoned to appear at court, 
 can not, by filing a complaint, recover his costs of the person suing 
 out the writ. Adams v. Mc Gflinchy, 62 — 533. 
 See Pleading, 131. 
 Review, 14. 
 Wat, 28. 
 
 COUNTY. 
 
 All parts of the State are included within the body of one or 
 another of the several counties into which the State is divided. 
 State V. Wagner, 61—178. 
 
138 COUPON — COURTS. 
 
 COUNTY ATTORISTEY. 
 
 See Mandamus, 5. 
 
 COUPON. 
 
 It is not necessary to produce the bonds from which they are 
 detached to entitle the holder to maintain an action upon the cou- 
 pons. Deming v. Soulton, 64 — 254. 
 
 COURTS. 
 
 I. IK GENERAL. 
 II. JUDICIAL NOTICE. 
 
 I. IN GENERAL. 
 
 1. The court of county commissioners is not a court of record. 
 Moores v. Ken. & F. It. R. Co., 58—279. 
 
 2. Act of 1872, § 3, providing that the town of Skowhegan should 
 furnish suitable room and other accommodations for the court and its 
 oiRcers, did not require the town to furnish a jail. Walton v. Green- 
 wood, 60 — 356. 
 
 3. The terms of the superior court are to be holden on the first 
 Tuesdays of each month in the year, except June, July, and August ; 
 the criminal business to be transacted at the January, May, and Sep- 
 tember terms. A criminal term may, however, be adjourned to a 
 time later than the beginning of the next civil term, and continued 
 after the close, or during an adjournment of the civil term. State v. 
 JBoardman, 64 — 528. 
 
 II. JUDICIAL NOTICE. 
 
 4. The court will not take judicial ncjtice of a resolve of the legis- 
 ture. Chapman v. Pmgree, 67—198. 
 
 5. Upon the question of jurisdiction, the presiding judge, in addi- 
 tion to matters of which he will take judicial notice, such as legislar 
 tive enactments, ancient charters, and geographical position, may re- 
 fresh his recollection and guide his judgment by reference to the 
 records of the courts in the county, in which the case is tried. The 
 official records of the census returns, showing a recognition of the 
 locality by officers acting under the authority of the United States, 
 and general histories by deceased authors of established reputation. 
 State V. Wagner, 61—178. 
 
 6. When the political authorities of a State have claimed and actu- 
 ally exercised jurisdiction over a particular locality, the courts of the 
 State will respect the claim and act accordingly, without questioning 
 its validity. lb. 
 
 See Jurisdiction^. 
 
 SUPEEIOE COUET. 
 
COUNTY COMMISSIONERS. 139 
 
 COUNTY COMMISSIONERS. 
 
 I. GENERALLY. 
 II. THEIR JUDGMENT AND ITS EFFECT. 
 
 I. GENERALLY. 
 
 1. The court of county commissioners is not a court of record 
 within the meaning of R. S., 1871, c. 81, § 79. Moores v. Kennebec <& 
 Portland B. It. Co., 58—279. 
 
 2. Adjournment. • A session of the county commissioners held by 
 adjournment from a regular session, is a regular session. Waterville 
 V. Co. Com. of ITennebec County, 59 — 81. -Bethel r. Co. Com., 60 — 
 535. 
 
 3. A petition presented at a session of the county commissioners, 
 held by adjournment from a regular session, is a presentation "at a 
 regular session" within the meaning of R. S., c. 18, §§ 23 and 24, al- 
 though the cause of action set forth in the petition did not occur 
 until after the time fixed by the statute for the commencement of the 
 regular session. JBethel v. Oxford Co. Com., 60 — 535. 
 
 4. A petition to the county commissioners setting forth all the es- 
 sential jurisdictional facts, but addressed to a court of county com- 
 missioners "next to be holden on the day of November, 1866, by 
 
 adjournment from," etc., was entered at a session held on a certain 
 day in the succeeding March, by adjournment from the regular ses- 
 sion of the previous September, and was acted upon. Meld, that 
 jurisdiction attached. Jb. 
 
 5. Jtjeisdiction. Where the time of filing a location for a railroad 
 was fixed by statute to be on February 8, a depositing of it at their 
 office with their clerk on February 6, is seasonable, although a term of 
 the connnissioners' court did not occur until the following April. So 
 also of an amended location. Eaton \. E. & N. A. JR. R. Co., 59 — 
 520. 
 
 6. Where the return of county commissioners, on a petition to lay 
 out, alter, or discontinue a highway, was made at the January term 
 and placed on file, and the petition was continued over their next reg- 
 ular June term to the succeeding July term, when all proceedings 
 therein were closed and recorded. Held, such a proceeding was in 
 direct violation of R. S., c. 18, § 5. Monticello v. Co. Com., Aroos- 
 took Co., 59—391. 
 
 7. The authority to locate roads through public lands selected for 
 settlement is by R. S., c. 18, § 32, vested- in the county commission- 
 ers. Burns v. Annas, 60 — 288. 
 
 8. Town ways. To confer on the county commissioners jurisdic- 
 tion of the laying out of a town way, leading from land under improve- 
 ment to a town or highway, founded upon the unreasonable refusal of 
 the municipal officers, the petition to the commissioners must distinct- 
 ly set out all the jurisdictional facts, and among them that the refusal 
 on the part of the municipal officers was "unreasonable." Goodwin 
 T. Co. Com. of Sagadahoc, 60 — 328. 
 
 9. And the want of jurisdiction of the commissioners resulting 
 
140 COUNTY COMMISSIONERS. 
 
 from the omission of such an allegation, may be taken advantage of, 
 in the supreme judicial court, when the report of the committee of 
 appeal from the decision of the county commissioners comes up for 
 acceptance, and the proceedings may be quashed. 
 
 10. It is not necessary to give a specific statement of all the facts 
 which go to make up an unreasonable refusal, nor to allege that the 
 selectmen reported their location with its boundaries and admeasure- 
 ments to the town, nor that their report was filed with the town clerk, 
 nor that the meeting at which the town refused to accept was a legal 
 one, nor that there was in the warrant an article for its acceptance. 
 lb. 
 
 11. And if a general description is given of the way, sufficient to 
 identify it, and enable parties interested by reference to the report of 
 the selectmen to ascertain the particulars, and an allegation that the 
 town "unreasonably refused" to accept it, it is sufficient for jurisdic- 
 tional requirements. True v. Freeman, 64 — 57*. 
 
 12. The reversal on appeal of a judgment of county commissioners 
 in laying out on appeal a town way, does not bar them from enter- 
 taining, within two years, a petition for the laying out of a highway 
 over the identical place. Waterford v. (Jo. Com. of Oxford Co., 
 59_450. 
 
 13. The town in which a town way has been located and accepted 
 is entitled to notice of the pendency of a petition to the county com- 
 missioners for an increase of damages. Williams, ^petitioner, 59 — 
 517. 
 
 14. A petition to the county commissioners to revise the doings of 
 a town, upon an alleged unreasonable refusal to discontinue a town 
 way, should be presented by one having an interest in the subject 
 matter, and in some way connected with the doings before the town, 
 either in procuring the action of the town or being present and vot- 
 ing with the minority. Brown v. Sagadahoc County Commission- 
 ers, 68—537. 
 
 15. Highways. When the legislature confers special power upon 
 county commissioners to lay out a highway, a provision that "the ex- 
 isting laws in relation to the laying out of highways shall govern them 
 in their proceedings," does not preclude them from acting under the 
 special power conferred, in relation to the manner of proceeding. 
 Waterville v. Barton, 64 — 321. 
 
 16. If a highway in two counties is located by the commissioners 
 of both counties, acting jointly, the commissioners of one of the 
 counties acting alone have no j urisdiction to discontinue that portion 
 which may lie within their county. State v. Oxford County, 65 — 
 210. 
 
 17. County commissioners, when authorized by statute to make new 
 indexes to the records of deeds, have the right to the use of the office 
 of the registry for that purpose, when such use does not interfere 
 with the proper discharge of his duties by the register. Hawes 
 V. White, 66—305. 
 
 18. Amendments. County commissioners may amend their record 
 at any regular session. Dresden v. Co. Com., 62 — 365. Lapan v. 
 Co. Com., 65—160. Levant v. Co. Com., 67—429. 
 
 19. But they have no right to amend their record by inserting as 
 
COUNTY COMMISSIONBES. 141 
 
 parties to whom land damages have been awarded names of persons 
 not parties to the proceedings. Littlefield v. Boston d> Maine It. JR. 
 Co., 65—248. 
 
 20. Appeal. Section 22, c. 18, of R. S., as amended by Public 
 Laws of 1862, c. 123, takes the place of the original section, and the 
 reference in § 23 to the "preceding section," since the date of such 
 amendment applies to § 22 as amended. Inhabitants of Byron, 
 appellants, hi — 340. 
 
 21. Hence, an appeal lies from the decision of the county commis- 
 sioners, rendered on a petition setting out an unreasonable refusal of 
 a town to accept a town way duly laid out from land under improve- 
 ment therein to a town-way, by its selectmen, on the petition, of an 
 owner of such land. Ih. 
 
 II. THEIR JUDGMENT AND ITS EFFECT. 
 
 22. The fact, that the record of the county commissioners shows 
 that the return of their doings was not recorded when it should have 
 been, is fatal to their proceedings when presented by certiorari ; but 
 it cannot be taken advantage of by the town in defense of an indict- 
 ment for not keeping the way in repair. State v. Madison, 59 — 538. 
 
 23. If the record shows that the county commissioners, in locating 
 a highway, had no jurisdiction, their doings may be impeached collat- 
 erally. Goodwin V. Co. Com., 60 — 328. 
 
 24. But when it appears from their record that they had jurisdiction, 
 errors in their proceedings can be taken advantage of only on certior- 
 ari. State V. Madison, 63 — 546. 
 
 25. The doings of county commissioners in locating highways, how- 
 ever defective they may be, are valid until reversed or quashed, pro- 
 vided they had jurisdiction to commence them. Cyr v. Dufour, 62 
 
 —20., 
 
 26. A general jurisdiction merely by law over the subject matter is 
 not enough ; they can only have it in the particular case in which they 
 are called upon to act, by the existence of those preliminary facts, 
 which confer it upon them. 'Watermlle v. Barton, 64 — 321. 
 
 27. Where a town has opened a town road, laid out by the county 
 commissioners, upon the unreasonable refusal of the town, it can not 
 defend a suit, brought by one whose land has been taken, to recover 
 the damages awarded by the commissioners, on the ground that there 
 were irregularities in their proceedings sufficient to make them liable 
 to be quashed on certiorari. The judgment must stand until quashed. 
 True V. Freeman, 64 — 573. 
 
 28. Where several conditions in an act of the Legislature are 
 required to be performed to the acceptance of a majority of the board 
 of county commissioners, their decision can not be revised for anything 
 short of corruption and fraudulent connivance. Walton v. Green- 
 wood, 60—356. 
 
 29. When a petition for decrease of land damages is not prosecuted 
 at the next regular session after the petition is filed, whether there was 
 good cause for the delay is a matter for the commissioners to pass 
 judgment on. Their decision is final. Portland tfc Ogdenshurq H 
 B. Co., V. Co. Com., 64—505. 
 
142 COVENANT. 
 
 30. R. S., 1871, c. 18, § 2, provides when a petition for the location 
 or discontinuance of a highway is presented to the county commis- 
 sioners, that, before giving the prescribed notice of the time and place 
 of their meeting, they must be "satisfied that the petitioners are 
 responsible, and that an inquiry into the merits is expedient." On 
 these preliminary questions, their judgment is conclusive, and no 
 appeal lies to their decision. Moore's Appeal, 68 — 405. 
 
 31. In an action by a town against another town, by whose negli- 
 gence an injury was caused to the highway (bridge) within the plain- 
 tiff town, the defendant can not question the validity of the location 
 of the way if it appears that the county commissioners had jurisdiction 
 and made an actual location which has never been quashed. Topsham 
 V. Lisbon, 65 — 449. 
 
 32. It is not essential, in order to give the county commissioners 
 jurisdiction upon a petition for the laying out or altering of a high- 
 way, that the record should set forth in express terms that the peti- 
 tioners were responsible persons. Cyr v. Dufour, 68 — 492. 
 
 33. The requirement of responsible petitioners in the statute is 
 directory to the commissioners and for the protection of the county 
 against costs in case the prayer is denied, and is of no importance to 
 the land owner in cases where it is granted, upon the adjudication of 
 the commissioners that public convenience and necessity require it. 
 Ih. 
 
 34. That the commissioners are satisfied that the petitioners are 
 responsible and that an inquiry into the merits is expedient, sufficiently 
 appears from their proceeding to order notice on the petition. Ih. 
 
 35. When a petition to the county commissioners for increase of 
 damages for land taken for a town way alleges the legal location of 
 the way, and the record of the town showed a legal location, it will 
 be presumed after judgment, that it was satisfactorily proved to the 
 commissioners that the way had been legally located, although the 
 proof may not be set forth upon the record. Nbhlehoro v. Lincoln 
 Commissioners, 68 — 548. 
 
 COVENANT. 
 
 I. CONSTRUCTION AND BREACH. 
 II. GENERALLY. 
 
 I. CONSTRUCTION AND BREACH. 
 
 1. The defendant, holding as security the title to a part of a vessel, 
 subject to a mortgage to a third party, given by the owner, at the 
 request of the owner conveyed the part so held to the plaintiff, at the 
 same time the plaintiff agreed in writing with defendant to dispose of 
 the property, and after satisfying the claims of defendant, place the 
 balance if any to the credit of the owner, who was also his debtor. 
 Subsequently the plaintiff paid the outstanding mortgage, and sold 
 the vessel for more than the amount so paid. JSeld, (1) that the bill 
 of sale and written contract must be regarded as one transaction and 
 
COVENANT. 143 
 
 construed together, and (2) that an action could not be maintained 
 on the covenant of warranty in the bill of sale. MichardsY. Stephen- 
 son, 57 — 51. 
 
 2. The covenants in a deed of warranty are limited in effect by the 
 description of the grant. Bates v. Fester, 59 — 157. 
 
 3. Against Incumbeancbs. Dowee. An inchoate right of dower 
 is an existing incumbrance, within the meaning of the covenant 
 against incumbrances. Runnels v. Webber, 59 — 488. 
 
 4. The right of a divorced wife to have dower assigned in the real 
 estate of him from whom she has been divorced, is an incumbrance, 
 but before assignment nominal damages only are recoverable therefor 
 in an action of covenant broken. Tb. 
 
 5. Seizin. In 1865, the defendant conveyed to the plaintiff, by 
 deed of warranty, certain lands, a portion of which lay on the shore 
 of a certain stream. In 1849, the defendant's predecessor in title had 
 conveyed to a third person, who thereupon took and kept possession 
 of a portion of the same premises, together with certain easements in 
 the other portion, such as a right of way, to maintain a dam, and to 
 use the shores for certain specified jjurposes. In an action of cove- 
 nant broken, held, that the covenant of seizin in the latter deed, so far 
 as the previously conveyed premises were concerned, was broken at 
 the date of the deed ; and that the outstanding easements constituted 
 a breach of the covenants of warranty. Lamb v. Danforth, 59 — 322. 
 
 6. Incumbrance, what is. A naked possession without right is 
 not an incumbrance within the meaning of the law. To create an in- 
 cumbrance, the estate must be burdened with some right, or title, or 
 interest, which the law will recognize and protect. JDinsmore v. 
 Savage, 68 — 191. 
 
 7. Where one covenants to undertake the manufacture of a patented 
 invention, and use reasonable diligence to introduce it into the mar- 
 ket, evidence that he did not use due diligence in the matter shows a 
 breach of the covenant for which the covenantee may recover nominal 
 damages. Winslow v. Lane, 63 — 161. 
 
 11. GENEEALLT. 
 
 8. If before and at the time of making a deed of real estate the 
 grantee verbally agrees as a part of the consideration therefor to pa y 
 the outstanding taxes, the grantor will not be liable on the covenants 
 in his deed to the grantee who subsequently pays such taxes. Lear- 
 born V. Morse, 59 — 210. 
 
 9. The covenants in a deed can not enlarge the grant, but only 
 apply to the thing granted. Bates v. Foster, 59 — 157. Stinchfield 
 V. Gerry, 64—200. 
 
 10. Tenants in common, holding under the same deed as grantees, 
 have several freeholds, and are not obliged to join in an action against 
 their grantor for a breach of the covenants of warranty in his deed. 
 Lamb v. Danforth, 59—322. 
 
144 CEIMINAL LAW — CUSTOM. 
 
 CRIMINAL LAW. 
 
 See Indictment. 
 
 CUSTOM. 
 
 1. The usage or the construction given to particular words in Bos- 
 ton, Mass., will not affect a policy of insurance upon a vessel made at 
 Rockland, Maine, unless a similar usage or construction is shown to 
 exist at the latter place. Gohh v. Lime Mock F. S M. Ins. Go. 
 58—326. 
 
 2. Where no question of usage arose in a case an instruction that if 
 certain acts were done "according to the usage and custom of that 
 locality at that time" they would be binding, was held merely to refer 
 to the general course of business there, and not to any imaginary 
 usage. Bailey v. Slanchard, 62 — 168. 
 
 3. When a shipper and a carrier of goods have entered into a valid 
 contract, the one to furnish a cargo at a specified port, and to pay 
 freight at a specified rate, and the other to carry such cargo to the 
 place of contract for that price, a usage at the place of contract to 
 treat such contract as binding upon the parties only as might suit the 
 convenience of either of them, can not be upheld, because repugnant 
 to the contract and to the principles of law. Randall v. Smith, 
 68—105. 
 
 4. Examples of legal custom in relation to presentment of bank 
 checks may be found in Marrett v. JBrackett, 60 — 524. 
 
 5. Where it is a custom among commission flour merchants that a 
 vendee may rescind the sale and return the flour within ten days, if it 
 proves unsound or damaged, the commission merchant, to whom the 
 damaged flour is returned in accordance with the custom, and who 
 afterwards sells it as unsound at its full real value, without laches on 
 his part, may recover from his consignor the amount of the actual loss 
 by such sale. Randall v. Kehlor, 60 — 37. 
 
 6. In case of a sale of butter with warranty of its quality, proof 
 of a local custom among butter merchants, at the place where the 
 sale is made, that the seller is not liable to take back the butter, or 
 make any deduction from the agreed price, unless the purchaser 
 examines the butter, and in case of a defect in quality, returns it to 
 the seller, or gives him notice of the defect within a reasonable time, 
 can not affect the liability of the seller under the warranty, unless it 
 is shown that the purchaser had knowledge of such custom when the 
 contract was made. Marshall v. Perry, 67 — 78. 
 
 See Agency, 8, p. 13. 
 Assumpsit, 57, p. 48. 
 
DAMAGES. 145 
 
 DAMAGES. 
 
 I. Iljr ACTIONS ON TORTS. 
 
 (a) Eeplevin. 
 
 (b) Tbovee. 
 
 (o) Other injukies. 
 
 (d) Exemplary damages. 
 
 (e) Excessive damages. 
 
 (f) Mitigation of damages. 
 II. IN ACTIONS ON CONTRACTS. 
 
 (a) Assumpsit. 
 
 (b) Covenants and bonds. 
 
 ' (c) Sale or delivery op pkopekty. 
 
 (d) Other contracts. 
 
 (e) Prospective damages. 
 
 (f) When the sum named in a contract is a penalty ob 
 
 liquidated damages. 
 
 (g) Mitigation and kbcoupment. 
 
 III. ACTIONS AGAINST CARRIERS AND TELEGRAPH COMPANIES. 
 
 IV. DAMAGES GIVEN BY STATUTE. 
 V. ASSESSMENT. 
 
 I. IN ACTIONS ON TORTS. 
 
 (a) Replevin. 
 
 1. A large quantity of wood was replevied from an attaching officer 
 in actions which proceeded to judgment, and the full value of the 
 wood was insufficient to satisfy the executions. The market value of 
 the wood increased after it was replevied. In an action on the reple- 
 vin bond, held, that the defendants were liable, (1) for the value of 
 the wood at the date of the judgment for a return, (2) the costs in 
 the replevin suit, (3) interest at six per cent on these sums from the 
 date of that judgment to the date of the judgment on the bond, (4) a 
 sum equal to twelve per cent on the value of the wood when replevied 
 from the date of the judgment in the suit on which it was attached 
 to the date of the judgment for a return. Tuck v. Moses, 58 — 461. 
 
 2. When goods not held under legal process are replevied and the . 
 plaintiff becomes nonsuit, and a return is ordered, but the goods are 
 not forthcoming on demand, the defendant is entitled as damages, in 
 a suit on the bond, to the value of the goods when taken and interest. 
 Washington Ice Co. v. Webster, 62 — 341. 
 
 3. Increased Value. If at the time of the demand on the writ of 
 return the goods are of increased market value, and are not returned, 
 the defendant is entitled to such increase. lb. 
 
 4. DiMiNUTioisr OF Value. But if the goods are of less market 
 value at the time of the demand the loss must fall on the plaintiff. lb. 
 
 5. The expenses of procuring teams and appurtenances actually 
 incurred for the purpose of removing the property, which were ren- 
 dered useless by the wrongful suing out of the writ of replevin may 
 become a portion of the damages. lb. 
 
 10 
 
146 DAMAGES. 
 
 6. Remote. The damages arising from a possible loss of customers 
 are too remote to be considered. Ih. 
 
 7. Use. The damages for the detention may exceed the interest 
 upon the value of the property replevied ; as in case of the replevin of 
 a horse or oxen the defendant is entitled to the value of their use, or 
 for what their services in use would be worth. Washington Ice Co. 
 V. Webster, 62—341. Crabtree v. Clapham, 67—326. 
 
 8. A wrong doer cannot pay taxes upon property tortiously taken 
 by him, because the collector threatens to seize it, and then recover of 
 the owner the amount paid, or have the amount considered in reduction 
 of damages recovered against him by the owner for such wrongful 
 taking. Washington Ice Co. v. Webster, 68 — 449. 
 
 9. A request "that the measure of damages to be assessed in this 
 case, is the same sum of money which under ordinary circumstances 
 attending a sale and purchase might reasonably be agreed upon as a 
 fair price for the property, between a vendor desirous of selling and 
 a purchaser desirous of purchasing the property as a whole," may be 
 refused. lb. 
 
 10. SiiABT Money. In the assessment of damages for the defend- 
 ant in replevin, after the plaintiff has become nonsuit, it seems that 
 there may be cases when the jury may be authorized to give smart 
 money, when the proceedings on the part of the plaintiff are vexatious 
 and oppressive. lb. 
 
 (b) Trover. 
 
 11. It seems to be settled that in trover against a mortgagee or 
 pledgee, for the tortious sale, or conversion, of the goods pledged or 
 mortgaged, the amount of the debt which the goods are held to 
 secure may be deducted in the assessment of the damages. Hoey v. 
 Gandage, 61 — 257. 
 
 See Everett v. Hall, 67 — 497. 
 
 12. In trover by the payee against the maker, for a promissory note, 
 the pecuniary ability of the defendant is not a subject of considera^ 
 tion in the estimation of damages. Stephenson v. Thayer, 63 — 143. 
 
 13. If a selectman fraudulently puts a paid note of his town into 
 circulation, and retains its value in his own hands, and the town pays 
 the note a second time to a bona fide holder, the rule of damages in 
 trover by the town against the selectman is the amount of the note 
 and interest. Otisfield v. Mayberry, 63 — 197. 
 
 (c) Other injuries. 
 
 14. Deceit. In an action for deceit in the sale of a farm, the 
 measure of damages is the difference between the value of the farm 
 as represented and its actual value when conveyed. To such a sum 
 interest may be added from the date of the conveyance. Wright v. 
 Hoach, 57 — 600. 
 
 15. Loss OF Use. In an action against a town for an injury to a 
 carriage, caused by a defect in a highway, the loss of the use of the 
 carriage for a reasonable time, while it is being repaired, is not an 
 element of damage. McLaughlin v. Bangor, 58 — 398. 
 
 16. Uncebtainty. Drift stuff thrown into a stream by the defend- 
 
DAMAGES. 
 
 147 
 
 ant, to float away without care or oversight, became mingled with 
 similar drift thrown into the stream by others, and was floated upon 
 the plaintiff's land by a freshet, causing damage. Held, that while it 
 might be difficult to accurately assess and proportion the damages 
 done by the defendant, that difficulty would not reduce the damages 
 to a nominal sum, or relieve the defendant from the damages arising 
 from his own wrongful or negligent acts. Waahhurn v. Qilman, 
 64—163. 
 
 17. Special Damage. In an action for an injury to a mill from 
 the flowing back of water upon it by defendant's dam, the loss of 
 rent is such special damage as must be alleged to be recovered. 
 Plimpton V. Gardiner, 64 — 360. 
 
 18. Nor is the allegation of a loss of profits equivalent to that of 
 loss of rent. lb. 
 
 19. Nuisance. The measure of damages for a continuing nuisance, 
 or continuing trespass upon another's land, is not the diminution in 
 the value of the property, but the injury sustained by the plaintiff up 
 to the date of the writ, for which a recovery has not already been had. 
 Cum. & Oxford Canal Co. v. Hitchings, 65 — 140. 
 
 20. This rule is applicable when the injury to real estate consists in 
 placing something upon the land which can and ought to be removed, 
 e. g., filling up a canal. Ih. 
 
 21. But does not apply when the injury is in the nature of waste, 
 e. g., destroying a building. Ih. 
 
 22. Gesteeallt. In an action by a town to recover for a bridge, 
 carried away through the negligence of the defendant, the rule of 
 damages is not necessarily the amount the plaintiff expends to replace 
 the bridge, but so much thereof as it should expend to make the way 
 safe and convenient for travellers, not necessarily limited to the cost 
 of the original structure. Topsham v. Lisbon, 65 — 450. 
 
 23. When property has been wrongfully taken from its owner, he 
 is entitled as damages to the actual value of the property to him at 
 the time when and the place where it was taken, for any lawful use to 
 which it could be put. Washington Ice Co. v. Webster, 68 — 449. 
 
 24. The state of the market and the large or small supply in refer- 
 ence to the demand is a proper subject for the consideration of the 
 jury. lb. 
 
 25. The measure of damages is the actual value of the property to 
 the plaintiffs as an article of merchandise or sale, whether the market 
 for it is in this State or elsewhere. lb. 
 
 26. Defective Wat. Evidence. In an action for injury to plain- 
 tiff's horse by reason of defect in a way the defendants are bound to 
 keep in repair, testimony as to the value of the horse before and after 
 the accident is admissible. Whitely v. China, 61 — 199. 
 
 27. If the injury is alleged to have caused lameness, the condition 
 of the horse and of his legs within a week after the occurrence is 
 material, and testimony relative thereto should be admitted. lb. 
 
 (d) Exemplary damages. 
 
 28. Assault. In cases of a malicious assault upon, or aggravated 
 injury to, the person, the jury may award punitive damages although 
 
148 DAMAGES. 
 
 they cannot be claimed as a legal right. Goddard v. G. T. H., 
 57—202. Johnson v. Smith, 64—553. 
 
 29. CoEPOEATioN. If a brakeman, employed on a railway passen- 
 ger train, assault and grossly insult a passenger thereon, the company 
 will be liable in exemplary damages. Goddard v. G. T. H., 57 — 202. 
 Sanson v. European & N. A. R. JR. Co., 62 — 84. 
 
 30. Intoxication. Under the statute of 1872, giving actual and 
 exemplary damages to a wife for injuries by an intoxicated husband, 
 against persons contributing to the intoxication, actual damages to 
 person or property or means of support must be alleged and proved 
 before the plaintiff can recover for exemplary damages, and without 
 such actual damages the action can not be maintained. Gilmore v. 
 Matthews, 67 — 517. 
 
 31. Slander. Exemplary damages are allowable in an action for 
 slander. Harmon v. Harmon, 61 — 233. 
 
 32. Punitive damages are not recoverable in a libel suit where the 
 actual damages are merely nominal. Stacy v. Portland Pub. Go., 
 68—279. 
 
 (e) Excessive damages. 
 
 33. Where a brakeman, without provocation, in the presence of 
 the other passengers, and in language, coarse, profane, loud and 
 grossly insulting, called the plaintiff (a highly respectable citizen) a 
 liar, charged him with attempting to evade the payment of his fare, 
 and with having done so before ; and leaning over the plaintiff, then 
 in feeble health, and bringing his fist close to his face violently shook 
 it there, and threatening to split the plaintiff's head open and spUl his 
 brains right there on the spot ; and the defendant, well knowing the 
 brakeman's misconduct, did not discharge him but retained him in his 
 place up to the time of the trial, and the jury were instructed that 
 the case was a proper one for exemplary damages ; the court declined 
 to set aside a verdict for $4,850. Goddard v. G. T. R. R. Co., 
 57—202. 
 
 34. The verdict of a sheriff's jury will not be set aside on the 
 ground of excessive damages awarded for land taken in the location 
 of a railroad, where the chief evidence relating thereto was derived 
 by the jury from a view of the premises. Rang or & Piscataquis R. 
 R. Co. V. McComb, 60—290. 
 
 35. A verdict for 19500, damages for personal injuries, was not set 
 aside. Campbell v. Portland Sugar Co., 62 — 552. 
 
 36. In an action against a railroad company for personal injuries, a 
 verdict for four thousand dollars was not set aside as excessive. 
 Hanson v. European <fc N. A. R. R. Co., 62 — 84. 
 
 37. For false imprisonment of the plaintiff, procured by the affida<- 
 vit of the defendant of his belief that the plaintiff was about to leave 
 the State, a verdict for six hundred dollars was not set aside. Gee v. 
 Patterson, 63 — 49. 
 
 38. Verdict for fifty-five hundred dollars in an action for publica- 
 tion of libellous articles in a newspaper, not excessive. Powers v. 
 Carij, 64^9. 
 
 39. Five thousand dollars for injuries resulting in death, not exces- 
 sive. Hobbs V. Eastern R. R. Co., 66—573. 
 
DAMAGES. 149 
 
 40. Plaintiff who had a verdict for $1391 — damages for assault, 
 mostly punitive, was required to remit all above $400, — or take a 
 new trial. Macintosh v. Bartlette, 67 — 130. 
 
 41. Five hundred dollars- damages held excessive in an action of 
 trespass for false imprisonment. Moore v. Durgin, 68 — 148. 
 
 (f) Mitigation of damages. 
 
 42. AssAtTLT. In an action of trespass for an assault upon the per- 
 son, in which punitive damages are claimed, the defendant may show 
 either his general reputation as to property, or his actual condition in 
 that respect, although the plaintiff does not claim that the damages 
 should be increased by the wealth of the defendant. Johnson v. 
 Smith, 64—558. 
 
 43. There was an affray between the plaintiff and one of the 
 defendants in the afternoon. In the evening of the same day the 
 defendants assaulted the plaintiff at his house. Held, that the defend- 
 ants could show the fact of the affray in the afternoon, but not its 
 details, in mitigation of damages for the last assault. Currier v. 
 Swan, 63—323. 
 
 44. Easbment. In an action for obstructing a way with a build- 
 ing, in which punitive damages are claimed, evidence that the site 
 occupied was a suitable place for the building is not admissible in mit- 
 igation. JBlanchard v. Moulton, 63 — 434. 
 
 45. Mob. In an action against a town to recover for buildings 
 destroyed by a mob, the rule of damages is three-fourths of the actual 
 value of the property ; the fact that a steam engine was in the build- 
 ing, forming a part of the realty, and that the plaintiffs, having no 
 license, were liable to indictment for a nuisance for running it there, 
 will not avail in reduction of damages. Srightman v. JSristol, 
 65—426. 
 
 46. Watee "Course. On the trial of an action for obstructing the 
 passage of the plaintiff's logs down a floatable stream, by a dam 
 erected thereon by the defendant, evidence that at the time it would 
 not have been possible to have driven the logs below the dam, using 
 only the natural waters of the stream, was held inadmissible, as tend- 
 ing to mitigate the damages, it not appearing that there was any want 
 of water to get the logs through the dam. Holden v. Hobinson Co., 
 65—215. 
 
 47. In such case the plaintiff is entitled to recover at least the dif- 
 ference in expense between taking them through the dam and around 
 by land. lb. '^ 
 
 48. Duty to Guard Against. The rule that requires one to 
 guard against a danger to his property resulting from the wrongful 
 act of another, imposes no duty upon him in case of the mere threat 
 of such wrongful act. Plummer v. Penobscot I/am. Asso., 67 — 368. 
 Washington Ice Co. v. Webster, 68 — 449. 
 
 II. IN" ACTIONS ON CONTKACTS. 
 
 (a) Assumpsit. 
 
 (b) Covenants and bonds. 
 
 (c) Sale ob dblivbby of pkopebtt. 
 
 (d) Other contbacts. 
 
150 DAMAGES. 
 
 (e) Prospective damages. 
 
 (f) When the sum stated in a contract is a penalty ob 
 
 LIQUIDATED DAMAGES. 
 
 (g) Mitigation and ebcoupment. 
 
 (a) Assumpsit. 
 
 49. In an action for money had and received, the plaintiff is entitled 
 to recover the sum actually received for his use by the defendant, and 
 not what his property, converted by the defendant into money, was 
 reasonably worth. JRandY. Nesmith, 61 — 111. 
 
 50. If one, holding in trust a certain share in common of real estate, 
 becomes the owner in his individual capacity of the remaining shares, 
 and sells the entire estate for a sum less than its value, the cestui que 
 trust, in an action for money had and received, can recover of the 
 trustee only that proportion of the money received by him which the 
 part held in trust bears to the whole estate. In such an action the 
 value of the estate is not a subject for consideration. lb. 
 
 (b) Covenants and Bonds. 
 
 51. DiLiGEisrcE. Where one covenants to undertake the manufac- 
 ture of an article, and to use reasonable diligence to introduce it into 
 the market, and further covenants to pay the covenantee a certain 
 sum from the net profits of the manufacture and sale, and fails to use 
 due diligence in the matter, the basis of damages is the profits re- 
 ceived or which might have been received from the manufacture 
 and sale by the use of diligence, not to exceed the sum stated in the 
 agreement, with interest. Winslow v. Lane, 63—161. 
 
 52. DowEE. When the incumbrance is a right of dower, by a 
 divorced wife, who has made demand therefor, but who has taken no 
 other steps to enforce her right, nominal damages only can be recov- 
 ered. Runnels v. Webber, 59 — 488. 
 
 53. Wakeanty. a grantee in a warranty deed in common form, 
 who becomes seized in fact of the estate granted, and is afterwards 
 evicted by a superior title, is not limited as to damages for breach of 
 the covenant of warranty, to the expenses of a single suit, but may 
 recover of his warrantor the costs and expenses of all the suits brought 
 against him affecting the title to the estate, which are reasonably 
 defended, and also those brought by him which are necessary and 
 proper. Ryerson v. Cha/pman, 66 — 557. 
 
 54. Nor is it necessary to establish the liability of the warrantor 
 for the costs and counsel fees in such actions that he be notified of 
 their pendency. Ih. 
 
 55. The want of such notice merely increases the burden, which 
 falls upon the warrantee of showing that the actions brought against 
 him were reasonably defended, that those brought by him were neces- 
 sary, and that the counsel fees in both classes of actions were reason- 
 able and proper claims. lb. 
 
 56. Bond. In an action on a bond "to fully indemnify plaintiff 
 from all loss, damage and harm by reason of a suit for the infringe- 
 ment of any patent in selling paper collars, wjiich the plaintiff has or 
 may hereafter have of the defendants," and to pay all reasonable and 
 
DAMAGES. 151 
 
 fair charges in defending said suit. Held, that the plaintiff was 
 entitled to recover damages, (1) for the reasonable debt contracted, 
 though not paid, for the services of counsel in defending the suit ; (2) 
 for the depreciation of his stock of goods while necessarily withheld 
 from sale by an attachment made on the writ in the suit for infringe- 
 ment ; (3) for the reasonable expenses of himself and counsel incurred 
 in relieving his stock from such attachment. Sut not (1) for loss of 
 probable profits during the time the stock was under the control of the 
 attaching officer, and while the store remained closed in consequence 
 of plaintiff's illness contracted while trying to remove the attachment, 
 (2) for diminution of profits consequent upon a reduction of the 
 stock, (3) prospective damages arising from loss of credit caused by 
 the attachment, (4) expenses of plaintiff and counsel in procuring 
 defendants to enter into bond in suit. Ripley v. Moseley, 57 — 76. 
 
 57. In an action upon the breach of a bond for the conveyance of 
 real estate, the damages to be assessed are the value of the land, at 
 the time it should have been conveyed. Doherty v. Dolan, 65 — 87. 
 
 (c) Sale or delivery of goods. 
 
 58. The measure of damages for the neglect or refusal to deliver 
 goods, purchased or agreed for, is determined by law to be the differ- 
 ence between the price paid or agreed to be paid, and the market 
 price of the like goods at the time and place of delivery. McKejiney 
 V. Haines^ 68 — 74. 
 
 59. Where goods have no market value at the place of delivery, the 
 value at such place may be determined by the value at the nearest 
 place where they have a market value, deducting the expense of 
 delivering them there. Blood v. Drummond, 67 — 476. 
 
 60. In estimating the value of stumpage, this rule may apply with 
 more or less force, according to circumstances. The proximate mar- 
 ket rates, the value of logs at their place of destination, and the cost 
 and risk of getting them there may be considered. lb. 
 
 61. For breach of a contract to return borrowed bank stock on 
 demand, the measure of damages is the market value of the stock on 
 the day of demand, with interest. McKenney v. Haines^ 63 — 74. 
 
 62. Bonds. The value of bonds legally issued by a town \& prima 
 facie the amount due on them. Canton v. Smith, 65 — 203. 
 
 (d) Other contracts. 
 
 63. The damage and expense caused and incurred by removing with 
 that reasonable degree of care suited to the occasion, insured goods 
 from an apparent imminent destruction by fire, are covered by a pol- 
 icy insuring against "loss or damage by fire," although the building in 
 which they were insured and from which they were thus removed, 
 was not in fact burned. White v. HepuUic Fire Insurance Co., 57 
 —91. 
 
 64. Costs and Counsel Fees. If a suit against a master for 
 damages caused by the misconduct of his servant is defended at the 
 request of the servant, the servant is liable to the master for costs 
 and counsel fees incurred in the defense of the suit. Grand Trunk 
 Co. V. Latham, 63 — 177. 
 
 65. Where, upon the dissolution of a co-partnership between the 
 
152 DAMAGES. 
 
 plaintifE and the defendant, the latter agreed to assume the debts of 
 the firm, and hold the plaintiff harmless, on account of the same, and 
 for the purpose of paying a firm debt, the plaintiff mortgaged his 
 house, and mortgage was foreclosed, the rule of damages in an action 
 upon the contract to hold the plaintifE harmless, was held to be the 
 value of the house, not to exceed the amount of the firm debt and 
 interest. Duran v. Ayer, 67 — 145. 
 
 66. DiscHAEGE OF Laborer. Where one had contracted to labor 
 in the service of another, during a given time, at a specified rate of 
 wages, he is entitled to recover all the damage he has sustained, by 
 having been discharged by his employer before the expiration of the 
 time, without justifiable cause. Sutherland v. Wyer, 67 — 64. 
 
 67. Currency. Damages for the breach of a contract, made in a 
 foreign country, and calling for the payment of a specified specie cur- 
 rency, are recoverable here in coin. Stringer v. Uoombs, 62 — 160. 
 
 68. Total Failure or Performance. The plaintiff, a town, 
 agreed to issue certain bonds in aid of a railroad, the bonds to be is- 
 sued from time to time as the road should be built, and the defend- 
 ant agreed, in case the road should not be completed to a specified 
 place within a specified time, to return each and every bond issued by 
 the town. The road was partially built, bonds issued, and on failure 
 to complete it, the town brought suit upon the agreement to return 
 the bonds. Held, that the measure of damages was the full value of 
 the bonds, as there was a total failure of performance. Canton v. 
 Smith, 65—203. 
 
 69. The plaintiff agreed to run a stage line from D. to G., accord- 
 ing to a certain time table, which specified when the stage should 
 leave D. and arrive at G., and also when it should leave G. and arrive 
 at K., and the defendant agreed to give the plaintiff the exclusive 
 right of ticketing between D. and G. for a specified time, and at a 
 specified rate. Held, (1) that for a breach of the contract by the defend- 
 ant, the measure of damages was not the difference between what the 
 plaintiff was to receive as the contract price for carrying the through 
 passengers, and what it would actually cost to carry such passengers, 
 without reference to any other contract or business, but was the loss 
 of profits which would have been made by the plaintiff in carrying 
 passengers under the contract — that if the plaintiff, from his prepa- 
 ration for the business, from his profits from an express business and 
 from way passengers, could carry the through passengers more cheap- 
 ly than others, it was his good fortune of which he should reap the 
 benefit. (2) That the loss of ticketing between G. and K. was not 
 an element of damage, within the terms of the contract, and was not 
 such as might reasonably be supposed to have been in the contempla- 
 tion of both parties, as a probable result of a breach of the contract, 
 but was too remote to be considered a part of the damages occasioned 
 by a breach of the contract. Frye v. Maine Ventral JR. H. Co., 67 
 —414. 
 
 70. Prevention of Performance. When a plaintiff has been 
 wrongfully prevented by the defendant from completing his contract, 
 the measure of damages is the difference between the price agreed 
 upon to be paid for its performance and what it would cost the plain- 
 tiff to complete it. Morgan v. Hefler, 68 — 131. 
 
 71. For Conveyance of Land. In an action for damages for 
 
DAMAGES. 153 
 
 breach of an agreement' to convey land, the rule of damages is the 
 value of the land at the time the conveyance should have been made, 
 less so much of the consideration agreed to be given for it as remain- 
 ed unpaid. Dolierty v. Dolan, 65 — 87. 
 
 " 72. This rule does not depend upon the cause of the failure to con- 
 vey, and applies to cases where the vender, through unanticipated 
 causes, is unable to convey, as well as to oases where he has the power 
 to do so. Ih. 
 
 73. But in an action for money had and received, the consideration 
 paid may be recovered back with interest. lb. 
 
 (e) Prospective damages. 
 
 74. When there is a breach in the condition of a mortgage given 
 for the support of the mortgagee during life, and the mortgagee sues 
 for possession of the mortgaged premises, the conditional judgment 
 should be for a sum which is a present equivalent for a full perform- 
 ance, including prospective damages. Fales v. Semenway, 64 — 
 373. 
 
 75. The plaintiff agreed to play for the defendant for a specified 
 time, at a specified rate per week. Before the expiration of the time 
 he was discharged by the defendant without cause. An action for 
 breach of the contract was commenced before the expiration of the 
 time the plaintiff had agreed to play. Held, that the rule of dam- 
 ages was the amount of wages for the remainder of the term of service, 
 after the discharge, less what the plaintiff earned or might have earned 
 by the use of ordinary diligence in securing employment elsewhere. 
 Sutherland Y . Wyer, 67 — 64. 
 
 (f) When a sum named is a penalty or liquidated damages. 
 
 76. In a bond in the ordinary form, where the obligor binds him- 
 self in a fixed sum, and condition that he will abstained from certain 
 acts, the sum inserted will not be regarded as liquidated damages. 
 Caswell V. Johnson, 58 — 164. 
 
 77. Where a party binds himself in a sum named, not to carry on 
 any particular business, within certain limits, or within a specified pe- 
 riod of time, and the sum named is not out of all proportion to any 
 possible damage which the other party might suffer, it will be regard- 
 ed as liquidated damages, and not a penalty. HolhrooJc v. Tobey 66 
 —410. 
 
 (g) Mitigation or recoupmient. 
 
 78. When a firm manufactures articles for the defendant which are 
 paid for, although defective, and one of the partners who succeeds to 
 the business of the firm repairs them, the defendant cannot have de- 
 ducted from the bill for repairs, any claim for over payment to the 
 original manufacturers. Fessenden v. Forest Paper Company, 63 
 —175. 
 
 79. In a suit upon a fiduciary debt which has been proved in bank- 
 ruptcy, the creditor must account for dividends received, and for those 
 he might have received but for his own neglect. Richmond v. Brown. 
 66—373. 
 
 80. A defense by way of recoupment can be made available, only 
 
154 DAMAGES. 
 
 when it appears that there is some stipulation in the contract which 
 the plaintiffs have violated. This can only be when the liability of 
 both parties arises out of the same transaction, or from mutual and 
 dependent covenants or agreements. Winthrop Savings Bank v. 
 Jackson, 67 — 570. 
 
 81. In recoupment, as well as in set off, the defendant can only be 
 allowed for what he could maintain an action for. lb. 
 
 See Ante, 75. Post, 84. 
 Infant, 5. 
 
 III. ACTION'S AGAINST CAEEIERS AND TELEGRAPH COM- 
 PANIES. 
 
 82. In an action against a carrier for the non-delivery of goods, the 
 measure of damages is the value of the goods at the place of delivery, 
 less the freight if unpaid. Little v. Boston S Maine B. B. Co., 66 
 —239. 
 
 83. Where an express forwarder delivered a box to a railroad com- 
 pany for transportation, and the box was never delivered to the 
 consignee, in an action by the forwarder against the company, judg- 
 ment was rendered for the amount of the damages assessed in a suit 
 by the consignee against the forwarder, and interest. JLittle v. Bos- 
 ton S Maine B. B. Co., 66—239. 
 
 84. In an action against a carrier for the non-delivery of money 
 sent by the plaintiff's intestate for the purpose of paying a premium 
 upon a life insurance policy, which would, by its terms, lapse if the 
 premium was not paid shortly afterwards, of which the defendants' 
 agent had notice, and had reasonable time to have carried the money 
 and delivered it in season to prevent the forfeiture, primarily, the 
 carrier was held liable for the net value of the policy on the day it 
 lapsed, but, as it was the duty of the assured to ha-, d used all reason- 
 able means to re-instate himself with the insurance company, or to 
 re-insure, for damage caused by his failure so to do the carrier was 
 held not liable. Grindle v. Eastern Express Co., 67 — 317. 
 
 85. Where parties in Baltimore offered to sell plaintiff corn at a 
 certain price, and plaintiff telegraphed his acceptance of the offer, but 
 the telegram was never delivered, and corn rose in price, the rule of 
 damages was held to be the difference between the price nnmed and 
 that which plaintiff would have been obliged to pay in Baltimore, in 
 order, by due diligence after notice of non-delivery of message, to 
 replace the corn ; with same rule as to freight. True v. Internation- 
 al Tel. Co., 60—1. 
 
 86. In an action against a telegraph company for an error in the 
 transmission of a message directing the purchase of ten thousand 
 bushels of corn, which, when received, directed the purchase of one 
 thousand bushels, where the plaintiff, as soon as notified of the error, 
 directed the purchase at the same place of the remaining nine thou- 
 sand, the rule of damages was held to be the difference between the 
 price of the nine thousand bushels at the time when it would have 
 been bought had the message been correctly sent, and the time when 
 it was actually bought. Bartlett v. Western Union Tel. Co., 62 — 
 209. 
 
BAMAGES. 155 
 
 IV. DAMAGES GIVEN BY STATUTE. 
 
 87. PooK Debtor's Bond. If a debtor, having failed to disclose 
 in accordance with the conditions of a bond given under R. S., c. 113, 
 § 16, would reduce the amount of damages to be recovered thereon to 
 a nominal sum, he must satisfy the court upon the hearing in chan- 
 cery, that during the thirty days next after judgment in the original 
 suit, he was utterly worthless in property, so that the plaintiff suffered 
 no damages by the debtor's failure to disclose. Webster v. Hailey, 
 57—364. 
 
 88. Proof that he was insolvent, during that time, is insufficient. 
 lb. 
 
 89. Railkoad. Fieb. Where, in an action under R. S., o. 51, § 
 31, to recover damages for property injured by fire, communicated by 
 a locomotive engine, the plaintiff has an absolute title to the whole 
 property destroyed, he may recover for the whole injury although he 
 held the title as security for a debt, and had agreed, that, upon pay- 
 ment of the debt, he would re-convey. £ean v. At. & St. L. H. jR. 
 Co., 58—82. I 
 
 90. And where the plaintiff had a policy of insurance upon a build- 
 ing thus destroyed, and, upon payment of the amount of the debt for 
 which he held the property as security by the insurers, he assigned to 
 them the statute claim with a stipulation on their part, that any excess 
 recovered by the insurers, beyond the amount paid to him by them, 
 should belong to him, — the insurers may recover in the name of the 
 plaintiff, for the whole injury. Jb. 
 
 91. Land Damages. In estimating the damages of a land-owner, 
 for the taking of a strip of his land across his lot for the location of a 
 railroad, the award must be restricted to the direct injuries to the lot 
 in question. £. (& P. R. JR. Co. v. Mc Comb, 60—290. 
 
 92. Thus, a sheriff's jury may consider the value of the land taken ; 
 and if the remainder of the lot is rendered less valuable by reason of 
 being severed, or disfigured on account of the strip taken and the use 
 made of it, they may allow such sum as they find the injury to be ; 
 arid in determining the consequent depreciation of the lot, they may 
 consider the use to which the strip taken is appropriated ; the char- 
 acter, situation, f)resent and probable use of the remainder of the lot, 
 the distance of the owner's buildings from the location of the railroad, 
 and any facts which the jury, from a view and the testimony, shall 
 find injure the value of the premises by a proper and legal use of the 
 road. lb. 
 
 93. So, also, they may consider all inconveniences from the sound- 
 ing of whistles, ringing of bells, rattling of trains, jarring of the 
 ground, and from smoke, so far as they severally arose from the use 
 of the strip taken and upon it, excluding all common and indirect 
 damages. ' lb. 
 
 94. So, also, if they find that the real value of the remainder of the 
 lot and of the erections thereon was actually diminished, by exposure 
 to fire from the company's locomotives, they may assesss such sum as 
 will be a just compensation for such diminution, taking into consider- 
 ation, at the same time, that by the statute, if property is injured by 
 fire communicated by a locomotive engine, the company using it is 
 absolutely responsible for such injury. lb. See also Morrison v. 
 Bucksport & Bangor B. B. Co., 67 — 357. 
 
156 DAMAGES — ^DAT'S "WORK. 
 
 95. The conversion of a way dedicated to the purchasers of adjoin- 
 ing lots into a public way does not authorize the award of more than 
 nominal damages. Stetson v. JBangor, 60 — 313. 
 
 96. When the owner of land makes a plan of it, delineating thereon 
 lots and streets, and then sells one or more of the lots, he thereby 
 secures to the purchaser a right of way in the street, and if the street 
 is taken for a public highway, the owner is entitled to no more than 
 nominal damages. Bartlette v. Bangor^ 67 — 460. 
 
 97. A jury appointed to estimate damages for land taken by a rail- 
 road company may include in their verdict damages caused by blast- 
 ing, but not damages caused by the neglect of the company to remove 
 the stones thrown upon the adjacent land of the petitioner. WMte- 
 house V. Androscoggin JR. M. Co., 52 — 208. 
 
 98. Deaist. Damages awarded for the location of a drain are to be 
 only those resulting from its proper construction. Jackson v. 
 Portland, 63—55. 
 
 V. ASSESSMENT. 
 
 99. After a default of an action of debt on a collector's bond, the 
 defendants cannot have the damages assessed by a jury, especially 
 after an auditor, appointed for that purpose, has heard the parties and 
 presented his report for acceptance. Gforham v. Hall, 57 — 58. 
 
 100. The duties of the person appointed to assess the damages in 
 such a case are different from those contemplated by R. S. of 1857, c. 
 82, §§ 59, 60, and 61. lb. 
 
 101. In trespass against several, for an assault upon the plaintiff, 
 the damages must be joint, not several. The question is, what dam- 
 ages has the plaintiff suffered. For those, all the participants in the 
 assault are liable. Currier v. Swan, 63—323. 
 
 102. In an action of trespass, under R. S., 1871, c. 95, § 11, after 
 a verdict for the actual damage has been rendered, it is proper for the 
 presiding judge to order judgment for thrice that amount, although 
 treble damages are not specifically claimed in the declaration. Black 
 V. Mace, 66—49. 
 
 DAY'S WORK. 
 
 1. The rule that ten hours labor shall constitute a day's work, ap- 
 plies when the contract is for work in a grist mill, for no specified 
 time, at an agreed price per day, to be paid weekly. Bachelder v. 
 Bickford, 62—526. 
 
 2. If a laborer works nights, after his legal day's work is done, at 
 the request and for the benefit of his employer, the law implies a 
 promise on the part of the latter to pay for such labor. lb. 
 
 3. If a laborer works nights, after his legal day's work is done, and 
 on settlement, the employer refuses to pay for the night labor, the 
 acceptance by the laborer of payment for the day labor will not pre- 
 clude Mm from recovering for the night labor. lb. 
 
DEALER — DEBT. 
 
 DEALER. 
 
 157 
 
 A single sale of a lot of goods, without evidence of preparation, 
 or readiness to make other sales, will not ordinarily constitute the ven- 
 der a dealer. Goodwin v. Clark, 65 — 280. 
 
 DEBT. 
 
 1. When it Lies. An action of debt will not lie on a sealed 
 instrument wherein is contained no promise to pay any gum of money, 
 under any terms or conditions, but a bill of sale of certain tools used 
 in and about the boot and shoe business, together with the vender's 
 good-will, and an agreement "not to carry on the boot and shoe busi- 
 ness in the city of Portland for one year from the date hereof." 
 Mitchell V. McITabb, 58—506. 
 
 2. Debt may be maintained upon a promissory note. Nat. Exchange 
 Bank V. Ahell, 63—346. 
 
 3. Also on a quantum meruit and quantum valebat. Ih. 
 
 4. An action of debt may be maintained on a simple contract as well 
 as on a specialty. Portland v. Atlantic dt /St. Lawrence JR. JR. Co., 
 66—485. 
 
 5. Bail Bond. An action of debt will not lie on a statute bail 
 bond given in a civil case. 8cire facias is the only remedy. JSewins 
 V. Currier, 62 — 236. 
 
 6. Judgment. After an execution, extended on land, is returned 
 and recorded, if the levy proves invalid the only remedy of the creditor 
 to revive the judgment is scire facias. Debt wiU not lie. Prescott 
 V. Prescott, 65 — 478. 
 
 7. But, before the execution is returned and recorded, if the levy is 
 ascertained to be invalid, the creditor may wave the levy and resort 
 to any other remedy for the satisfaction of the judgment. lb. 
 
 8. And when the levy is void on account of a fatal variance between 
 the judgment and the execution, the remedy is by debt on the judg- 
 ment, lb. 
 
 9. Debt will lie on a decree in favor of the wife against the husband 
 for alimony. lb. 
 
 10. The ASSIGNEE of a judgment for debt and costs may maintain an 
 action of debt thereon in his own name, under the act of 1874. Wood 
 V. Pecoster, 66 — 542. 
 
 11. Nor is the right confined to the immediate assignee of the 
 judgment creditor, but is available to any subsequent assignee. lb. 
 
 12. Pleading. In a declaration containing four counts, the first two 
 debt on a judgment, and the third upon a promissory note alleging a 
 promise, and the fourth the general omnibus count, the defendant 
 being called upon in the first count to answer in a plea of debt, but 
 no plea being stated in the other three, the last two counts are to be 
 considered as defective counts in debt. Nat. JEJxchange Bank v. 
 Abdl, 63—846. 
 
 13. Paexibs. When the obligors in a bond are bound unto A. in 
 
158 DEED. 
 
 a certain sum to be paid to B., her heirs or assigns, an action on the 
 bond in the name of B. can not be sustained. Packard v. Brewster^ 
 59—404. 
 
 See Pleading, 67, 99, 100. 
 
 DEED. 
 
 I. PARTIES. 
 
 II. ESECUTIOlSr. 
 
 III. DELIVERY A2SrD REGISTRATION. 
 
 IV. VALIDITY AND EFFICACY. 
 V. WHAT ESTATE PASSES. 
 
 VI. EXCEPTION AND RESERVATION. 
 VII. BOUNDARIES. 
 
 (a) Conflicting DBSCBiPTioNS. 
 
 (b) General dbschiptions. 
 
 (o) BOUNDAEIBS UPON ADJOININO PEOPEIETOR. 
 
 (d) Streams and roads. 
 
 (e) Location by parties and surveys. 
 
 (f) Not affected by covenants. 
 
 (g) Other matters. 
 VIII. GENERALLY. 
 
 I. PARTIES. 
 
 1. Husband and Wife. Real estate paid for by the husband but 
 conveyed to the wife can not be conveyed by her without the joinder 
 of the husband. Call v. Perkins, 65 — 439. ^ 
 
 2. The joinder of the husband may be in the same deed with the 
 wife, or by a separate deed. Ih. 
 
 3. Agents. Under the provision of R. S., 1871, c. 73, § 15, that 
 "deeds and contracts, executed by an authorized agent of an individ- 
 ual or corporation in the name of his principal, or in his own name 
 for his principal, are to be regarded as the deeds and contracts of such 
 principal." The intention of the parties to bind the principal or 
 constituent, — that the deed or contract should be his deed or contract 
 — ^must appear by the deed or contract itself, and no evidence aliunde, 
 except evidence of the authority of the agent or attorney, can be 
 received to show such intent. Nohlehoro v. Clark, 68 — 87. 
 
 4. A deed in which the inhabitants of N. "remise, release, bargain, 
 sell and convey." In witness whereof, they, , "by the hand of H. of 
 said N., hereunto duly authorized, . . . have hereunto set their seal, 
 and the said H. has hereunder subscribed his name, and which H., as 
 agent of said town, acknowledged to be the free act and deed of the 
 inhabitants of the town, is the deed of the town. lb. 
 
 5. Tax. The deed of A. B., treasurer of the town of C, of land 
 sold for the non-payment of taxes, under R. S., c. 6, § 160, so describ- 
 ing himself in the deed, and signing it A. B., treasurer, is only the 
 personal deed of A. B. Treat v. Bmith, 68 — 394. 
 
DEED. 159 
 
 II. EXECUTION. 
 
 6. Acknowledgment. A deed may be "duly executed" without 
 an acknowledgment. Poor v. Zarrabee, 58 — 543. 
 
 7. Evidence. The testimony of the subscribing witness to a deed 
 that he witnessed it, and also on a subsequent day, took the acknowl- 
 edgment of the grantor, "at which time it was delivered," is suffi- 
 cient formal proof of its execution. Emery v. Legro, 63 — 357. 
 
 8. When the subscribing witnesses to a deed are out of the juris- 
 diction of the court, their testimony is not necessary to prove its exe- 
 cution and delivery. Jones v. Roberts, 65 — 273. 
 
 9. SiGNATtTEE. A grantor unable to write, may verbally direct 
 another to write the signature for him, and if he afterwards acknowl- 
 edges and delivers the deed it is valid. Bird v. Decker, 64 — 550. 
 
 10. The signature to a deed, made, at the request and in the presence 
 of, and acknowledged by, the grantor, is to be deemed his signature. 
 Lovejoy v. Richardson, 68 — 386. 
 
 11. Seal. Land in this State cannot be conveyed by a written in- 
 strument not under seal. McLaughlin v. Randall, 66 — 226. 
 
 12. A scroll is not a seal nor does it have the effect of one. lb. 
 
 III. DELIVEKT AND KEGISTEATION. 
 
 13. A sheriff''s deed of an equity of redemption, executed at the 
 time of the sale on execution, conveys to the purchaser all the judg- 
 ment debtor's right, title, and interest in the premises, as against the 
 debtor having legal notice of the sale, although the deed was not ac- 
 knowledged, delivered or recorded until three months and fourteen 
 days after the sale. Sohbs v. Walker, 60 — 184. 
 
 14. An administrator's deed dated and delivered after the expira- 
 tion of the license, conveys no title, although the land was sold at 
 public auction within the year, and the facts are recited in the deed. 
 Poor V. Ziarrabee, 58 — 543. 
 
 15. But where the deed is dated within the year, and the acknowl- 
 ment is subsequent thereto, it takes effect from its date, in the absence 
 of proof of the actual time of delivery. Poor v. Ziarrabee, 58 — 543. 
 Fowle V. Coe, 63—245. 
 
 16. Delivery of Reooi{ded Deed. When a grantee named in a 
 deed already registered, takes a delivery, he accepts the deed and its 
 registration with the same effect thenceforward, as if recorded by 
 him at the date of its delivery. Jones v. Roberts, 65 — 274. 
 
 17. Deliveet, Requisites oe. It is indispensable to the delivery 
 of a deed that it shall pass beyond the control and dominion of the 
 grantor. Brown v. Brown, 66 — 316. 
 
 18. Where a grantor committed a deed to a third person for safe 
 keeping and delivery, reserving the right at any time to withdraw it, 
 but with directions in case it should not be withdrawn during the 
 life time of the grantor, then immediately after his decease to be 
 delivered to the grantee, and the deed was accordingly kept by such 
 third person until after the death of the grantor and delivered to the 
 grantee, it was held not a legal delivery, and that no title passed to 
 the grantee. lb. 
 
 19. When Pkbsumed. A deed may be presumed to have been 
 
160 DEED. 
 
 delivered on the day of its date, though it is not acknowledged until 
 afterward, when such presumption is necessary to give it effect. Poor 
 V. Larrabee, 58 — 543. Fowle v. Coe, 63 — 245. 
 
 20. Evidence of. The possession and production of a deed by a 
 grantee is prima facie evidence of delivery. Patterson v. Snell, 
 67—560. 
 
 21. And, in the absence of all contradictory testimony, when the 
 deed is found in the possession of, and is produced by, the grantor, 
 the presumption arises that it has not been delivered. lb. 
 
 22. The appearance of a deed upon the record does not operate as 
 a delivery, nor does it supersede the necessity of proof of delivery. 
 lb. 
 
 23. A deed can take effect only when delivered, and if not delivered 
 before the death of the grantor, can never be. lb. 
 
 24. Rbcoeb. The rule upon the subject of notice, to purchasers, 
 of prior conveyances, is, that they are affected with constructive 
 notice of all that is apparent on the face of the title deeds under 
 which they claim, and of such other facts as those already known 
 necessarily put them upon inquiry for, and as such inquiry, pursued 
 with ordinary diligence and prudence, would bring to their knowl- 
 edge. Jones V. McNarrin, 68 — 334. 
 
 25. The record of a deed of, or levy upon, lot 29 is not notice of any 
 conveyance of lot 32. lb. 
 
 26. Though a deed of land with an unrecorded bond of defeasance 
 constitutes a mortgage as between the parties, yet as to the public 
 without notice, the grantor is as of record, the owner of the fee. 
 Knight Y. JDyer, 57—174. 
 
 27. When such owner conveys an easment in the premises, even 
 without consideration, and his grantee conveys it to a third person for 
 a valuable consideration, the grantees having no knowledge of the 
 bond of defeasance, the last gi-antor acquires such title as the record 
 gives him. lb. 
 
 IV. VALIDITY ASJi EFFICACY. 
 
 28. Two deeds, executed and delivered at the same time by the 
 same grantor to different grantees, one conveying a parcel of land 
 with an easement in the other parcel, and the other deed conveying 
 the latter parcel but reserving the easement, are to be construed 
 together. Knight v. Dyer, 57 — 174. 
 
 29. A deed by the owner, in which he "confirms, acknowledges and 
 grants" an easement in his land to the grantee to be used without 
 denial, obstruction or hindrance, is not merely the confirmation of an 
 easement previously granted, but a grant of an easement as therein 
 described. lb. 
 
 30. M. L. conveyed land by deed of warranty, to his father S. L., 
 conditioned that, if the grantor "maintained and supported" S. L. 
 and wife, and paid his sister S. three hundred dollars, the deed should 
 be void. Subsequently, M. L. having died without issue, the land 
 descended to S. L., who thereupon conveyed it to his other son, M., 
 by deed of quitclaim, "in consideration of the conditions to be per- 
 formed for me and mine by" M., "agreeably to the deed of the late M. 
 L. to me ;" the acceptance of the latter deed rendered M. personally 
 
DEED. 161 
 
 liable to perform the conditions mentioned, but created no lien upon 
 the land. JVorris v. Zaberee, 58 — 260. 
 See Condition, p. 94. 
 
 32. If, under a license duly issued by the probate court, an admin- 
 istrator, after taking the oath and giving the bond prescribed by the 
 statute, regularly sell the land described in his license, at public auc- 
 tion, and execute and deliver a deed thereof to the purchaser, within 
 a year from the date of his license, then the title passes, although the 
 deed was not acknowledged until after the expiration of' the year. 
 Poor V. Larrabee, 58—543. Fowle v. Coe, 63—245. 
 
 33. A tenancy in tail is barred by a deed of release, made for a 
 valuable consideration, and duly executed and the purchaser takes a 
 fee simple. Willey v. Haley, 60 — 176. 
 
 34. A tenant in tail under her grandfather's will, by her deed of 
 June 3, 1796, duly executed before two witnesses, and for a valuable 
 consideration therein expressed, and duly acknowledged and recorded, 
 did "bargain, sell and confirm unto" the defendant's predecessor in 
 title, "all my [her] right and title to the estate of my [her] grandfa- 
 ther," situate in Kitter)^, "that is to say, all which by his last will and 
 testament, he bequeathed to me [her] as may appear from his will, it 
 being the half of his real estate, which property I warrant to defend 
 against the claims of any person or persons to said estate." In a writ 
 of entry, by an heir-at-law of the tenant in tail, held, that the estate 
 tail was barred under the provisions of Mass. Statute of March 8th, 
 1792, § 1. lb. 
 
 35. A deed signed in blank may be avoided when the blanks are 
 filled by one not duly authorized, as against a grantee with notice of 
 the infirmity. ■ Cooper v. Page, 62 — ^192. 
 
 36. A deed purporting to convey "all the real estate I now own, or 
 may own at the time of my decease .... a list of the several pieces 
 or lots will be found among my papers. This deed to have full effect 
 immediately before my decease," conveys only such of the lots 
 referred to as the grantor continues to own when the deed takes 
 effect, and not any real estate acquired by him after its execution. 
 Zibby V. Thornton, 64 — 479. 
 
 V. WHAT ESTATE PASSES. 
 
 37. DowEK. In a quitclaim deed, if the grantor describes herself 
 as the widow of a certain person deceased, and the land as all the 
 real estate which that person owned at the time of his death, the deed 
 conveys only a right of dower. Davis v. Stevens, 57 — 593. 
 
 38. Equity op Redemption. In a deed of warranty, immediately 
 succeeding a description of the premises by metes and bounds, was 
 the clause, "meaning to convey to the said" grantee, "the same prem- 
 ises and title as conveyed to me by D. W., and no more." The title 
 conveyed by D. W. was an equity of redeeming the land described 
 from a mortgage. Held, that the deed conveyed an equity of redemp- 
 tion only. Bates v. Foster, 59 — 157. 
 
 39. LiEE Estate. A father, by deed of warranty, conveyed cer- 
 tain land to his daughter by name, "for her use and benefit during 
 her life time, and after her decease, to her legal heirs, to them and 
 
 11 
 
162 DEED. 
 
 their heirs and assigns forever." Seld, that the daughter named took 
 (by R. S., c. 73, § 6), a life estate in the premises, the remainder in 
 which was contingent until her death, when it vested in those who 
 were then her heirs at law. Reed v. Fogg, 60 — 481. 
 
 40. Where the contingent remainder man, prior to the decease of 
 the tenant for life, conveyed the estate by deed of general warranty. 
 Seld, that the title which vested when the contingency ceased, en- 
 ured to the benefit of such grantee, and the grantor was estopped by 
 his deed. lb. 
 
 41. Where the contingent remainder man, prior to the decease of 
 the tenant for life, conveys his right, title and interest to the estate 
 by deed of quitclaim, with the only covenant that he will "warrant 
 and defend the premises to the grantee, his heirs and assigns, against 
 the lawful claims of all persons claiming by, through, or under" the 
 grantor, the remainder vesting at the decease of the tenant for life, 
 will not enure to the benefit of the grantor, nor will the grantor be 
 estopped from maintaining a real action therefor. Reed v. Whitte- 
 more, 60 — 481. 
 
 42. A conveyance to one, "during her natural life," of "any and all 
 rents, profits, and income," arising from real estate, gives the grantee 
 a tenancy for life in the premises. Richardson v. Richardson, 64 — 
 62. 
 
 43. In a deed, certain premises were "given, granted, and con- 
 veyed" unto D., "during her natural life, and to hold in trust for" 
 certain children and for the su.pport of the father. At the close of 
 the description were the words, "meaning and intending to convey to 
 the said D., for her own and the support of M. (the father first men- 
 tioned), during their natural lives, .... and to descend in equal 
 shares to all the children, said D. and said M. shall have at the decease 
 of the said M., and in such case said D. is to have her thirds only." 
 The habendum was to D. "for herself and in trust as aforesaid, and 
 to her heirs and assigns to their use and behalf forever." Held, that 
 the trust ceased at the death of M., and that when the trust ceased 
 the grant ceased also. Parher v. Murch, 64 — 54. 
 
 44. REMAiisrDEE. Certain land was conveyed in 1845, by John 
 Randall to Margaret Read, "for her use and benefit during her life- 
 time, and after her decease, to her legal heirs, to them and their heirs 
 and assigns forever." Margaret Read had two children, Alvah J. 
 Read and Margaret J., who became the wife of Oliver Randall, in 
 1856. In 1861, a warranty deed of the land to John Carville was ex- 
 ecuted by Margaret Read and her husband, her daughter Margaret J. 
 Randall and her husband, and by Alvah J. Read and his wife. Alvah 
 J. Read died in 1861, and Margaret Read in 1866. Held, that the 
 deed to Carville conveyed not merely the life estate of Margaret 
 Read, but that (R. S., 1871, c. 73, § 3), Alvah J. Read's deed would 
 pass his interest in the land, subject to the contingency of his surviv- 
 
 " ing his mother, which he did not do, and hence his heirs took his half 
 directly under John Randall's deed. Read v. Hilton, 68 — 139. 
 
 45. Held also, that the estate of Margaret J. Randall was perfected 
 by the happening of the contingency, and that those claiming under 
 the Carville deed were entitled to it by virtue of her deed. lb. 
 
 46. Held also, that the title of Margaret J. Randall was not acquired 
 by the death of her mother, but by the deed of John Randall, and 
 
DEED. 
 
 163 
 
 therefore was not a title acquired subsequently to the Carville deed. 
 lb. 
 
 47. Fee. A husband devised his property, including real estate, 
 to his wife for life, giving her full power to expend the same, if nec- 
 essary for her comfort. After his death his widow conveyed the real 
 estate by a quitclaim deed, containing words of inheritance, and de- 
 scribing the land as the same devised to her by her late husband. The 
 conveyance was for full value. Held, that as the widow took a life 
 estate with power of disposal, the deed conveyed not merely a life 
 estate, but a fee, and that it was not necessary that the deed contain 
 an express declaration that it was made in pursuance of the power of 
 disposal conferred in the will. Hally. Preble, 68 — 100. 
 
 VI. EXCEPTION AND RESERVATION. 
 
 48. What will pass by words in a grant will be excepted by the 
 same words in an exception. Blake v. Madigan, 65 — 522. 
 
 49. The clause in a deed of half of a farm, "excepting the reserve 
 of the four rows of apple trees, etc., and the land on which they 
 stand," constitutes an exception, not a reservation. Randall v. Ran- 
 dall, 59—338. 
 
 50. In a conveyance of a farm from A. to B., the clause "excepting 
 by this conveyance a saw mill and shingle machine, and land enough 
 around said mill to carry on the lumbering business, and a right of 
 way from the mill to the road, .... conveyed to C, as long as C. 
 occupies the privilege with mills," is an exception, not a reservation. 
 Moulton V. Trafton, 64—218. 
 
 51. Road. In a deed, a clause, "excepting and reserving to the 
 public, the road crossing the premises," is a reservation of the rights of 
 the public in the road and not the road itself. Cottle v. Y'oung, 59 
 —105. 
 
 52. By a eesolve approved March 22, 1864, the legislature direct- 
 ed the land agent, after advertising for proposals in the manner there- 
 in prescribed, "to sell the timber and lumber" in controversy, and pay 
 the proceeds thereof, not exceeding $10,000, to the trustees of the 
 Maine Wesleyan Seminary and Female College, the purchaser to have 
 ten years to take it off. The land agent sold without strictly observ- 
 ing the law in relation thereto. In May, 1868, the State conveyed 
 the land, containing the timber, to the plaintiffs, "subject to all the 
 reservations in a certain act approved March 24, 1864," one of which 
 reservations included "all timber, and lumber, and lands, granted and 
 voted by the present or any preceding legislature." In an action 
 against the defendant to recover the stumpage of the timber in ques- 
 tion, which was cut by him. Held, that the timber was "voted" by 
 the resolve of March 22, within the meaning of that term, as used in 
 the act of March 24, and was therefore excepted from the operation 
 of the deed to the plaintiifs. E. & N. A. R. R. Co. v. Dunn, 60— 
 453. 
 
 53. Also held, that the reservation in the deed to the plaintiffs 
 was absolute, and not dependent upon a valid sale by the land agent. 
 lb. 
 
 54. The State conveyed to a railway company all the timber and 
 lauds belonging to the State, situate on certain rivers, reserving "all 
 
164 DEED. 
 
 lands set apart and designated for settlement." Held^ that the tim- 
 ber trees standing upon the lands reserved were also reserved. Dunn 
 V. Burleigh, 62 — 24. 
 
 55. Mill. The exception of a saw mill from a conveyance of land 
 includes the land under the mill, unless a different intention appears. 
 Moulton V. Trafton, 64 — 218. 
 
 56. In a conveyance of land from A. to B. was the clause "except- 
 ing by this conveyance a saw mill and shingle machine, and land 
 enough around said mill to carry on the lumbering business at said 
 mills, and a right of way to a road, . . . conveyed to C, as long as C. 
 occupies said privilege with mills." Held, that the exception was not 
 personal merely, but assignable, and that as long as the privilege was 
 occupied with mills by C, or his heirs or assigns, the exception con- 
 tinued, lb. 
 
 57. In a deed of a mill privilege was an exception of "what may 
 be necessary and sufficient for carrying the two run of mill stones on 
 the west side of said creek, and also, when not required for the use of 
 the saw mills of said grantee, or those purchasing or acting under 
 him, what may be necessary for such other machinery (saw mills 
 excepted) as may be erected on the west side of said creek. At the 
 time the deed was given the grantee had no saw mills, but was 
 engaged in constructing two. Held, that the second exception was 
 not void for inconsistency with the grant, nor for uncertainty and 
 indefiniteness. Blake v. Madigan, 65 — 522. 
 
 58. Also, that the reference to the saw mills of the grantee intended 
 the mills which he was constructing at the date of the deed, that he 
 could not go on and build saw mills enough to exhaust all the water, 
 except what was necessary for the two run of stones. Ih. 
 
 59. The plaintiff owning the Richardson farm, a part of which was 
 overflowed by the Ricker dam, conveyed the same to Benjamin 
 Duren by deed, "reserving the right of flowage as now flowed by 
 Ricker's dam, and reserving the yearly payments as I have heretofore 
 received them, and excepting the right and title of Henry S. Jewett 
 in said premises, which has this day been purchased by said Duren." 
 It appeared that the title of H. S. Jewett was by mortgage, and that 
 the same was discharged when the conveyance was made from the 
 plaintiff to Duren. Held, that the reservation was valid, and that 
 the title of Duren was from the plaintiff, subject to the terms of her 
 deed. Jewett v. Bicker, 68 — ^377. 
 
 60. Easement. The owner of two adjoining lots of land conveyed 
 one of them "with the restriction and reservation that no building 
 hereafter erected on the lot conveyed shall be erected within ten feet 
 of the easterly line" of the grantor's house lot. Held, that the lan-- 
 guage of the deed created a negative easement for the lot of the 
 grantor not conveyed, and that, as the reservation was for the benefit 
 of the grantor's house lot as a dominant estate, words of inheritance 
 were not necessary to enable the grantee of that estate, with its appur- 
 tenances, to maintain that right as against those into whose hands the 
 servient estate might fall. Herrick v. MarshMl, 66 — 435. 
 
 61. Description. In a deed of a tract of land was a reservation 
 of "the meadow land on the westerly end of said tract, extending to 
 the high land on said tract, said excepted parcel containing from two 
 to three hundred acres, more or less." There were two meadows on 
 
DEED. 165 
 
 the west end of the tract separated by a strip of high land. Held^ 
 that the exception did not include all the meadow on the westerly- 
 end of the tract, whether in one or more parcels, but that the meadow 
 land must be virtually and really one piece of territory, and that the 
 boundary of the excepted parcel was where the first piece of meadow 
 land on the westerly end of the tract joined the high land. Haynes 
 V. Jackson, 66 — 93. 
 
 62. In a description of the land as enough off the west end of a lot 
 to make, with another tract sufficiently described, fifty acres exclusive 
 of water, that part of the west end of the lot covered with water is 
 not to be excluded from the conveyance, but only from the computa- 
 tion. Bartlett v. Corliss, 63—287. 
 
 63. In a deed, from a tribe of Indians, of land lying on each side of 
 a river, "excepting and reserving to said tribe all the islands in said 
 river above Oldtown, including said Oldtown island," five small 
 islands in the river, alongside of Oldtown island, were held not 
 included in the reservation. Penobscot Tribe v. Veazie, 58 — 402. 
 
 64. A PAROL reservation of growing crops, made either before or 
 at the time of making and delivery of a deed, cannot control the legal 
 effect of the deed ; and parol evidence, tending to show such a reser- 
 vation, is inadmissible to affect the force of the conveyance. Oilman 
 V. Wills, 66—274. 
 
 65. A judgment creditor extended his execution upon a specific 
 part of his debtor's lot. The plaintiff claimed title under a. deed con- 
 veying the entire lot, "excepting the set-off ; and in case the set-off 
 should, be fully satisfied or lawfully obtained by the" plaintiff, "or any 
 one claiming under him, then this deed is to be effectual on all said 
 lot." Held, that the parcel of land covered by the levy did not pass 
 by the deed to the plaintiff, or, if it did, was charged with the levy. 
 Pingree v. Chapman, 68 — 17. 
 
 VII. BOUNDARIES. 
 
 (a) Conflicting Descbiptions. 
 
 (b) Gbnbbal descbiptions. 
 
 (c) BOUNDAKY UPON ADJOINING PEOPBIHTOB. 
 
 (d) Stbeams and eo ads. 
 
 (e) Location bt pabties and stjbveys. 
 
 (f) Not affected by covenants. 
 
 (g) Othek mattbbs. 
 
 (a) Conflicting descriptions. 
 
 66. The old rule that, in case of conflicting descriptions in a deed, 
 which can not be reconciled, the first is to govern, has, in modern 
 times, given way to the more sensible rule, which is to give effect to 
 the intention of the parties. This intention is to be ascertained by 
 taking into consideration all the provisions of the deed, as well as the 
 situation of the parties. Ershine v. Moulton, 66 — 276. 
 
 67. Plan. Where, in one clause of a deed, a boundary was given 
 as beginning at a post on the bank of a stream, and thence by the 
 stream to a road, and a subsequent clause made reference to a plan 
 for a more full description, and the plan (which was made from a 
 survey, made in the presence of the parties, prior to the conveyance, 
 and after the agreement to convey had been made), gave the bound- 
 
166 DEED. 
 
 ary as beginning at the same stake, and thence proceeding by seven 
 specific courses and distances through as many monuments to the 
 road, this line running on the borders of high water. Held, that the 
 line indicated on the plan was the one evidently intended by the 
 parties. Ih. 
 
 68. Rejection op the False. A description, false in one partic- 
 ular, but containing enough besides to render certain the premises 
 intended, is valid. Thus, where, in a deed of a homestead farm, one 
 of the parcels of which it was composed was described as "twelve 
 and one-half acres, out of lot numbered eight in the first range." Held, 
 that the whole parcel passed, although it, in fact, contained twenty- 
 five acres. Andrews v. Pearson, 68 — 19. 
 
 69. The rule that one call in a deed may be rejected never applies 
 where the description includes several particulars, all of which are 
 necessary to ascertain the estate to be conveyed. Jones v. McNar- 
 rin, 68—334. 
 
 (b) General descriptions. 
 
 70. A deed of land given by the treasurer of State for the non-pay- 
 ment of a State tax, describing the premises as "one-fourth, No. 5, 
 R. 8, W. E. L. S.," is void on account of the vagueness of the descrip- 
 tion of the premises. JLarrabee v. Hodgkins, 58 — 412. 
 
 71. A description in a deed, "the farm on which I now live," . . . 
 "being lot No. 9," according to a certain survey, conveys only so 
 much of the farm as is within lot 9. Stewart v. Davis, 63 — 539. 
 
 72. In a conveyance of "all the real estate, wherever situated, I 
 now own, ... a list of the several lots to be found among my papers," 
 the reference to the list aids the general description. Libhy v. 
 Thornton, 64—479. 
 
 73. In a quit claim deed of all the right, title and interest of the 
 grantor in and to all the real estate situated in the town of V., of 
 which the father of the grantor was seized at the time of his decease, 
 being one undivided half of his property, the description is sufficient 
 to pass whatever interest the grantor had in lands in V. as heir of his 
 father. Patterson v. Snell, 67 — 560. 
 
 (c) Boundary upon adjoining proprietor. 
 
 74. When the line of adjoining proprietors is made a boundary, 
 the true line is the one intended, and not the line to which the pro- 
 prietors had occupied, supposed by them to be the true line. White 
 V. Jones, 67 — 20. 
 
 75. Where the point of beginning of a call in a deed was the "Cilley 
 line," and the caU then proceeded "thence northeasterly on the south- 
 erly line of said Cilley lot about twelve feet to a stake and stones," 
 and the stake and stones were not on the true "Cilley line," and if the 
 stake and stones were adopted, the effect would be to include in the 
 conveyance land the grantor did not own, contrary to his intention, 
 it was held, that the "Cilley line" should govern as the boundary. 
 
 n. 
 
 (d) Streams and roads. 
 
 76. A grant of land bounded by a pond artificially raised, is pre- 
 sumed to go to the centre of the stream. Mansur v. Blake, 62 — 38. 
 
DEED. 167 
 
 77. When land is bounded by a stream or pond, it is immaterial 
 whether the language is by the pond, or by the side of the pond, the 
 meaning is the same. Ih. 
 
 78. When land is described in a deed as joining a stream or pond, 
 the grant is to the centre of the stream, unless this conclusion is 
 rebutted by the language of the deed. Ih. 
 
 79. A boundary "easterly and northerly on a river" carries the 
 grant to the middle of the stream. Granger v. Avery, 64 — 292. 
 
 80. The owner of the land on both sides of a river is the owner of 
 the islands in the river to the extent of the length of his land upon 
 it. Ih. 
 
 81. Flats. When land is described as bounded by a monument 
 on or near the bank of a stream where the tide ebbs and flows, and 
 thence by the stream, the effect is to convey the grantor's title to 
 land and flats to low water mark, the monument being referred to as 
 giving the line to the stream, and not as restricting the boundary on 
 the stream. Ersldne v. Moulton, 66 — 276. 
 
 82. Roads. Where the first call in a deed bounds the land "on the 
 east by" a certain road, and the fourth and last call makes the "south 
 line to be a straight line from" a point named, "to the southerly post 
 in a pair of bars, on the road named," the center of the road is the 
 east line of the land. Cottle v. Young, 59 — 105. 
 
 83. A road crossed the south-east corner of a parcel of land 
 described as, "beginning on the west side of the road, at the south- 
 east corner of" the northerly adjoining lot; thence westerly and 
 southerly, certain distances, to the south-west corner ; thence easterly 
 across the road a certain distance ; thence northerly "to the road 
 named, and crossing the road and running on the westerly line there- 
 of to the first-mentioned bound, — excepting and reserving to the pub- 
 lic the road crossing the premises." Ileld, that so much of the road 
 as lay on the westerly line thereof" was excluded from the grant ; that 
 so much as lay within the lines mentioned, was included ; and that 
 the exception referred to the rights of the public in the road, and not 
 to the road itself. Ih. 
 
 84. A deed bounding land "to" or "by" a highway conveys the fee 
 to the center of the highway, when the title of the grantor extends 
 so far. Webher Y. Overlook, ^& — 177. 
 
 85. When a line is given running "to the road and thence by the 
 road," the grant is to the center of the road. Oxton v. Groves, 
 68—371. 
 
 86. This is held to be the true rule, even though the measurement 
 of distances would extend only to the side of the road. Ih. 
 
 87. If one of the lines is described as ending at a point on one side 
 of a street "opposite" a given point on the other side, a straight line 
 between the two points must cross the street at right angles. Parol 
 evidence is inadmissible to show that a different point was intended. 
 Bradley v. Wilson, 58 — 357. 
 
 (e) Iiocation by parties and surveys. 
 
 88. When a line described in a deed as running from a given point, 
 is soon afterwards located and marked upon the face of the earth by 
 
168 DEED. 
 
 the parties, and thereafterwards the line thus established is recognized 
 and treated by them as the true line, it is conclusive upon the parties 
 and their assigns, although it be subsequently ascertained that it varies 
 from the one given in the deed. Snowies v. Toothaker, 58 — 172. 
 
 89. Thus, Henry Smith conveyed to the defendant so much of his 
 land as lay north of a line extending from a given point easterly, and 
 "parallel with the north line of lot No. 9, to the county road," and 
 thereupon, after causing the line to be surveyed, and marked on the 
 face of the earth by stakes and stones and spotted trees, they built 
 thereon a fence, intending it as the division fence, and respectively 
 occupied thereto for six years, when Smith conveyed his remaining 
 land to the plaintiff's grantor, running "to land supposed to be owned 
 by" the defendant, "thence easterly on said" defendant's "south line 
 to the county road ;" held, that the clause, "thence easterly on the 
 said defendant's south line," limited the plaintiff's land to the fence, 
 although the real line, as given in the deed, lay some rods north of the 
 fence. lb. Ante, 67, 71. 
 
 90. The owner of a tract of land, consisting of highland and 
 meadow, conveyed the whole tract, "excepting from said tract the 
 meadow land on the westerly end of said tract, extending to the 
 highland on said tract, containing from two to three hundred acres, 
 more or less; said boundary by 'highland' to be located and monu- 
 ments fixed by" the grantee and another person named, both of 
 whom, within six days thereafterwards, placed a hub on the north 
 line of the tract and commenced following the line of the highland 
 which was phiinly distinguishable ; but finding it would contain 
 numerous angles, they sighted a straight line between the hub and a 
 lone pine standing near the south line of the tract, and established 
 the line from the hub to the south line in the direction of the pine 
 and placed stakes thereon, ten or twelve rods apart. Subsequently 
 the original grantor conveyed to the defendant "the meadow land on 
 the west end of the tract, extending to the highlands, — said meadow 
 containing two to three hundred acres, — the easterly part of said tract 
 having been previously deeded ; and the intention of this deed is to 
 release all my title and interest in the remaining portion of said tract, 
 the boundary line between the former and present grantees to be 
 established if not already done, as provided for, in" the former deed. 
 When the defendants purchased, they were informed of and shown 
 the line established between the hub and pine. Held, that the former 
 deed conveyed all the highland and the latter all the meadow ; and 
 that the distinguishing line between the highland and meadow and 
 not the straight line between the hub and pine was the true line. 
 Haynes v. Jackson, 59 — 386. See Hunter v. Heath, 67 — 507. 
 
 91. If the land conveyed is described as the lot set off and run off 
 by a designated person for a particular purpose, the grantee is con- 
 fined to the bounds established by such survey, although the lot thus 
 restricted is found to contain a much fewer number of acres than that 
 mentioned in the conveyance. Clark v. Scammon, 62 — 47. 
 
 92. Where the line described in a deed or charter, and that indica- 
 ted by monuments established in the original survey and location of 
 the tract or township, do not correspond, the latter must govern. 
 Bethel v. Albany, 65—200. 
 
DEED. 
 
 169 
 
 (f) N'ot affected hy the covenants. 
 
 93. The covenants in a deed can not enlarge the grant. Bates v. 
 Foster, 59—157. Stinchfield v. Gerry, 64 — 200. 
 
 94. At the time of the conveyance of "the most northerly fifty 
 acres'' of a certain lot there was a highway laid out and constructed 
 upon the east side of the lot, ono-half of its width being upon the lot. 
 Held, that, as by the terms of the deed the grantee was bounded by 
 the east line of the lot, and not by the west line of the highway, there 
 was no ambiguity in the description, and that the covenants in the 
 deed could not be considered to show that it was the intention of the 
 parties that the grantee should take fifty acres free from incum- 
 brances. Stinchfield v. Gerry, 64 — 200. 
 
 (g) Other matters. 
 
 95. Rbfbeence to Foembe Deed. One H. conveyed to G. and B. 
 each, one undivided half of a mill privilege, on which a saw mill then 
 stood. G. and B. erected a grist mill on the same dam, whereupon 
 G. conveyed to plaintiff one undivided half of the saw mill, grist 
 mill, and privilege, containing what was conveyed to him by H.'s 
 deed. Thereafter, plaintiff conveyed to H. B. "one undivided half of 
 a saw mill and saw mill privilege, etc., containing what was deeded to 
 me by G. . . . For a more full description see H.'s deed to G., to 
 which reference is hereby made." Held, that an undivided half of the 
 grist mill passed by plaintiff's deed to H. B. Hines v. JRoMnson, 
 57—324. Ante, 38. 
 
 96. A, mortgaged a lot of land to B. and then conveyed an undi- 
 vided half of same lot to C. B. quitclaimed to C. his interest as 
 mortgagee in the premises described in the deed from A. to C. Held, 
 that the quitclaim covered B.'s interest in all the lot and was not 
 restricted to an undivided half. Johnson v. Leonards, 68 — 237. 
 
 97. Watee Powee. A construction of a grant of a water-power 
 which will restrict the grantee to the specific use to which the water 
 was applied when the grant was made will not be adopted unless the 
 language of the "grant unmistakably indicates that such was the 
 intention of the parties. Hines v. Robinson, bl — 324. 
 
 98. The grant by deed of the "full and perfect right to flow all land 
 belonging to the grantor," adjoining a certain brook, "meaning, never- 
 theless, to grant no right of flowage which would injure or effect the 
 privilege of the Philpot mill," — conveyed the right to flow only such 
 of the grantor's land there as would be flowed by a dam so con- 
 structed as not to interfere with the Philpot mill privilege as it existed 
 at the date of the grant. Webster v. Holland, 58 — 168. 
 
 99. Paetition. Deeds between tenants in common, executed and 
 delivered at the same time, for the purpose of effecting a division of 
 the estate, should be construed together. Mitchell v. Smith, 67 — 338. 
 
 100. When two deeds are made for the purpose of dividing equally 
 land and buildings, each grantor being the owner of an undivided 
 moiety, the fact that the descriptive clause in one purports to convey 
 an undivided half-part of the land and buildings, and in the other of 
 the land alone, does not exclude the buildings upon the land described' 
 in the latter deed from its operation. lb. 
 
170 DEED. 
 
 101. By the terms of partition deeds between two owners in com- 
 mon, it appears d that one was to have all north of a line drawn from 
 the street to the rear line of the lot in a straight direction through the 
 thread or middle of the partition between said tenements, and the 
 other all south of that line. There was no partition running through 
 the entire building in a straight direction, nor did the partition in 
 either story correspond with that in any other story. The partition 
 between the tenements, on the first floor of the main house, substan- 
 tially coincided with a line dividing the lot into two equal portions. 
 When this partition reached the ell there was a jog of three feet. 
 Held, that the partition on the first floor was the one intended, but 
 that the division line should not follow the jog to the partition in the 
 ell, but should extend in a straight line, at right angles with the 
 street, to the rear of the lot. Ih. 
 
 102. Appuetenancb. A grant of a house occupied by a certain 
 person, with its appurtenances, will carry, what is commonly teiTaed, 
 the house-lot, and the out-buildings thereon standing, used by the 
 occupant of the house for its convenience, whether connected with 
 the house proper, or separated from it by an open space or passage- 
 way. State V. Burlce, 66 — 127. 
 
 103. Manure. In general, manure, made in course of husbandry 
 upon a farm, is so attached to and connected with the realty, that, in 
 the absence of any express stipulation or understanding to the con- 
 trary, it passes as appurtenant to it. Ohase v. Wingate, 68 — 204. 
 
 VIII. GENERALLY. 
 
 104. A TITLE derived from the government is superior to that of the 
 aborigines. Penobscot Tribe v. Veazie, 58 — 402. Granger v. Avery, 
 64—292. 
 
 105. Right to flow. The conveyance of a mill privilege carries 
 with it the right to flow, without the payment of damages, land of 
 the grantor, as it could be flowed by the dam at the time of the con- 
 veyance, jiutler V. Muse, 63 — 447. 
 
 106. A subsequent conveyance of the land flowed can not affect the 
 previously acquired right to flow. lb. 
 
 107. Estoppel. Consideration Clause. The only effect of the 
 usual clause in a deed acknowledging the payment of the considera- 
 tion, is to estop the grantor from alleging that the deed was executed 
 without consideration. For every other purpose it may be explained,' 
 varied, or contradicted, by parol proof. If the consideration actually 
 agreed upon has not been paid, of which the acknowledgment is only 
 prima facie evidence, the grantor may recover it. If it has been 
 overpaid by any mistake of the parties, or through any fraud of the 
 grantor, the grantee may recover back the excess. Farrar v. Smith, 
 64 — 74. Barter v. Greenleaf, 65 — 405. 
 
 108. Sbveeance. If the owner of a farm sells stones lying upon 
 the land, receiving payment therefor, and the vendee removes them 
 to another portion of the farm, this constitutes a severance, and they 
 do not pass under a subsequent deed from the owner of the farm. 
 Fulton V. Norton, 64 — 410. 
 
DBMANn. 171 
 
 109. Acceptance. A grantee in an operative deed poll, under 
 which he derives and enjoys a title, by its acceptance becomes bound 
 by the restrictions, limitations, reservations and exceptions, contained 
 in it, and it does not lie in his mouth to impeach it or reject the 
 burden it imposes. White <& Jiradley, 66 — 254. 
 
 110. The sale of the land does not carry with it prior accruing 
 damages, to the realty. Sargent v. Machias, 65 — 591. Turner v. 
 Whitehouse, 68—221. 
 
 See Easement, 2. 
 
 Equity, 50, et. seq. 
 Evidence, 29, 156. 
 moetgage, 31. 
 
 DEMAND. 
 
 1. Where money has been deposited merely for safe keeping, no 
 action lies for it, till after a special demand. Lee v. Lanahan, 59 — 
 480. 
 
 2. Where money is loaned to be repaid on demand, if more than 
 six years elapse between the deposit and the demand, it may be ques- 
 tionable whether the demand is made within a reasonable time. Ih. 
 
 3. DuEHSs. No demand is necessary before commencing a suit to 
 recover money paid under duress and protest. Lord v. Kennebunh- 
 port, 61—462. 
 
 4. Upon Party who has made a Compliance Impossible. A 
 demand, otherwise necessary, need not be made when the party on 
 whom it is to be made has disabled himself from complying with it 
 by his own act. Woods v. Cooke, 61 — 215. 
 
 5. The EECEiPTOES for property attached, agreed by the terms of 
 their receipt to redeliver it on demand to the officer, at a place named ; 
 and that if no demand should be made, they would, within thirty 
 days after judgment in the action, redeliver the property as aforesaid 
 that it might be taken on execution. Held, that they were liable on 
 their receipt, though no demand was made, if they failed to redeliver 
 the property at the place named, within thirty days after judgment. 
 Low V. Dunham, 61 — 566. 
 
 6. Replevin. The owner of personal property may maintain re- 
 plevin, without previous demand, against a bona fide purchaser from 
 a bailee of the owner. JPrime v. Cobb, 63 — 200. 
 
 See Replevin, 11, 40. 
 
 7. Dividend. A stock holder in a bank cannot maintain a suit 
 against the corporation for a dividend declared without previous de- 
 mand, at the place where it was payable. And if the demand is made 
 while the stock is under attachment, a new demand is necessary after 
 the attachment is dissolved. Haqar v. Union Ifational Bank, 63 — 
 509. 
 
 8. Peior to Suit. Generally. When one has in his hands 
 money of another, which he is under a legal and moral obligation to 
 
172 DEPOSITION. 
 
 pay over no demand is necessary prior to a suit. Calais v. Whidden, 
 64—249. 
 
 See Agency, 12, p, 13. 
 
 Attachment, p. 47. 
 
 Bankruptcy, 4, p. 56. 
 
 DowEE, 24. 
 
 MoETGAGB, 70, et seq. 
 
 Sale, 20. 
 
 Teotee, 15, 23. 
 
 Teust, 35, 36. 
 
 "Waivee, 7. 
 
 DEPOSITION. 
 
 1. A notice to take the deposition of one of several defendants, is 
 sufficient for all of them if served only upon the dependent as an ad- 
 verse party. Chase v. JSathorn, 61 — 505. 
 
 2. When the plaintiff takes the deposition of one of several defend- 
 ants, without notice to any of the defendants except the deponent, if 
 other defendants suspect a sinister purpose in the manner of the no- 
 tice, or are dissatisfied with the contents of the deposition, their rem- 
 edy is by taking the deposition anew, but an objection to its admissi- 
 bility can not be sustained. II). 
 
 3. Out of the State. Depositions taken out of the State and 
 not under a commission, may be admitted, if the adverse party had 
 such reasonable notice as would enable him, or his attorney, to attend 
 at the time and place of caption ; the sufficiency of the notice to be 
 determined by the circumstances of each case, in the discretion of the 
 presiding judge. Harris v. Brown, 63 — 51. 
 
 4. Taken by Opponent. When a party uses a deposition taken 
 by his opponent, but not offered in evidence by him, he makes it his 
 own, and his opponent has the same right of objection to the inter- 
 rogatories and answers, which he would have had if the deposition 
 had been taken by the party offering it, and he is not precluded by 
 the fact that the interrogatories objected to were propounded by him- 
 self when the deposition was taken. Hatch v. Brown, 63 — 410. 
 
 5. Admissions in. A deposition may be used as a paper contain- 
 ing the written admissions of the deponent (when pertinent for such 
 purpose), although the cause for taking it is shown not to exist at the 
 trial. lb. 
 
 6. Second Suit. The rule that when a plaintiff discontinues his 
 suit and commences another for the same cause, all depositions taken 
 for the first may be used in the second suit, if they were duly filed in 
 the court where the first suit was pending, and remained on file till 
 the second suit was commenced (R. S., 1871, c. 107, § 19), is appli- 
 cable where the first suit was commenced in another State, and the 
 deposition taken to be used there. Folan v. JLary, 65 — 11. 
 
 7. If the party taking a deposition has, by his own negligence in 
 not putting it on file, lost the right to use it while the deponent is 
 still alive, the right to use it will not be revived by the death of the 
 deponent. lb. 
 
DESCENT AND DISTRIBUTION. 173 
 
 8. Duty of Justice. The duties of a justice of the peace in tak- 
 ing a deposition, under the statutes of this State, are judicial in their 
 character. Call v. Pike, 66 — 350. 
 
 9. A justice of the peace who is a cousin of one of the parties to a 
 cause is disqualified from taking a deposition therein, and is liable in 
 trespass for committing a witness for refusing to give his deposition 
 before him. Ih. 
 
 10. A justice of the peace may fine a wit-ness who is guilty of con- 
 tempt in refusing to give his deposition not exceeding twenty dollars, 
 and commit him to the county jail until such fine and costs of com- 
 mitment are paid. Call v. Pike, 68 — 217. 
 
 11. Caption. When a deposition is taken under chancery Rule 
 XIV, which provides that the only caption required of the commis- 
 sioner shall state that he "had this rule before him, when he executed 
 the commission, and that he in all respects complied with its provis- 
 ions," it must appear that the witness was sworn according to law, 
 or the deposition will not be admissible in evidence. Call v. Perkins, 
 68—158. 
 
 DESCENT AND DISTRIBUTION. 
 
 1. Where an intestate dies, leaving no issue, father or mother, but 
 leaving a sister, a child of a deceased sister, and children of a deceased 
 child of a deceased sister, such children will be entitled to a distribu- 
 tive share of the estate by right of representation. Reynolds, Appt., 
 57—350. 
 
 2. Advancement. In 1838, a father, by deed of warranty, con- 
 veyed to his son certain land of the full value of five hundred dollars, 
 receiving back a writing therein acknowledging the receipt from his 
 father of five hundred dollars as the full share of all his father's estate, 
 and relinquishing all his right, title and interest in and under his 
 father's estate at the latter's decease, which he should otherwise have 
 had. The father in April, and the son in the following November, 
 died intestate. In a real action, brought by the children and sole 
 heirs of the son, to recover their distributive share of their grand- 
 father's estate, held, that the conveyance was an advancement in full 
 to the son, and that the grandchildren were barred. Smith v. Smith, 
 59—214. 
 
 3. Minor. By virtue of R. S. of 1857, c. 75, § 1, cl. 6, when a 
 minor dies without having been married, the property which he 
 inherited from his father descends in equal shares to his father's other 
 surviving children, and to the issue of deceased children by right of 
 representation. Benson v. Swan, 60 — 160. 
 
 4. Thus, a father died leaving a widow and one child by a former 
 wife. Thirteen days after his death, a posthumous child was born and 
 died twenty-four days after its birth. Seld, that the real estate which 
 the deceased infant inherited from his father, descended to the sur- 
 viving child to the exclusion of the mother. lb. 
 
 5. R. S., 1857, 0. 75, § 1, cl. 6, is not restricted to those cases only 
 where the parent "leaves a child or children and the issue of one or 
 more deceased children." lb. 
 
174 DESERTION — DEVISE AND LEGACY. 
 
 6. When a minor dies leaving no issue, father, mother, brother, or 
 sister, the estate of the minor, not inherited from her father, descends 
 to her maternal grandmother as next of kin, rather than to an uncle 
 on the father's side. Gables v. Prescott, 67 — 582. 
 
 7. Rents. The rents of real estate accruing prior to a testator's 
 death go to his executor as part of the estate, but the rent afterwards 
 accruing, although the estate is insolvent, belongs to the heirs or 
 devisees. Kiniball v. Sumner, 62 — 305. 
 
 8. Insurance on Life. When a father effects an insurance upon 
 his life, payable to a trustee in trust for his child, the proceeds, upon 
 the death of the father, pass to the trustee by contract, and are not 
 inherited by the child from the father. Cables v. Prescott, 67 — 582. 
 
 9. So if one procures a policy "for the benefit of his wife and chil- 
 dren," payable "to the said assured, their executors, administrators or 
 assigns, or guardian of children under age," the proceeds become the 
 property of the widow and children by contract, not by descent. 
 Craigin v. Craigin, 66 — 517. 
 
 10. The MODE OP COMPUTING the degrees of consanguinity is to 
 begin with the intestate and ascend from him to a common ancestor, 
 and descend from that ancestor to the next heir, reckoning a degree 
 to each person as well in the ascending as in the descending lines. 
 Cables v. Prescott, 67—582. 
 
 See Assumpsit, 6, p. 37. 
 
 Conflict op Law, 10, p. 99. 
 Remaindee or Head v. Hilton, 68 — 139. 
 
 DESERTIOlSr. 
 
 1. The record of the conviction of a deserter from the military ser- 
 vice of the United States is the only legal evidence of the fact of the 
 desertion before any tribunal where this is brought in question. 
 State V. Symonds, 57 — 148. 
 
 2. The plaintiff, when a minor, enlisted into the military service 
 of the United States with the consent of his father, to whom he gave 
 his bounty-money, and, subsequently deserted from the service. 
 When he became of age, he demanded the money of his father, who 
 refused to refund it. In assumpsit for money had and received, held, 
 that a person must be lawfully convicted of desertion before "he shall 
 be deemed and taken to have voluntarily relinquished and forfeited 
 his rights of citizenship." Holt v. Holt, 59 — 464. 
 
 DEVISE AKD LEGACY. 
 
 I. POSTHUMOUS CHILDREN. LEGATEES. 
 
 II. "WHAT PASSES UNDER A DEVISE. 
 
 III. WHEN A LEGACY IS VOID. 
 
 IV. "WHEN A DEVISE IS IN FEE SIMPLE OR OTHERWISE. 
 V. WHEN VESTED OR CONTINGENT. 
 
DEVISE AND LEGACY. 175 
 
 VI. EEMAINDERS. 
 VII. ANNUITIES. 
 
 VIII. LEGACIES CHARGED UPON ESTATES. 
 IX. CHARITABLE BEQUESTS. 
 X. GENERALLY. 
 
 L POSTHUMOUS CHILDREN. LEGATEES. 
 
 1. A child born after the death of the testator cannot be disinheri- 
 ted unless it appears that the omission to refer to him in the will was 
 intentional. Wciterman v. Jiaw/cins, 63 — 156. 
 
 2. A child of a testator, born after his death, can not be deemed, 
 "provided for in his will," by a general devise of a reversion to the 
 heirs of the testator. lb. 
 
 3. The LiHEAL DESCENDAisTTS of a relative of a testator, having a 
 bequest in the will are entitled to the share given to their ancestor, 
 although the original legatee was in fact dead, at the date of the will. 
 R. S., 1871, c. 74, § 10. JVutter v. Vickery, 64—490. 
 
 4. In a bequest "to the lawful heirs" of several persons named, 
 some of whom were living at the date of the will, it was held, that 
 the word heirs should be read children, and then the statute rule fol- 
 lowed, giving to the children of deceased children the shares which 
 their parents would have taken had they survived. lb. 
 
 5. Teustee. When a bequest is made "to aid in the erection of a 
 house of worship," to be under the control of a church named, the 
 society, if legally incorporated, can not maintain an action against 
 the executor to recover the money, since the bequest is not direct to 
 the church or society, but looks to the intervention of a trustee. Na- 
 son V. Mrst Church, 66 — 100. 
 
 II. WHAT PASSES UNDER A DEVISE. 
 
 6. Income. When the income of one-third of all the real estate 
 which the testator may own at the time of his decease is devised to 
 the widow, she is entitled to that arising from land purchased subse- 
 quently to the date of the will, although other land is devised for her 
 use, in lieu of dower. Stevens v. Burgess, 61 — 89. 
 
 7. Deduction. A bequest of "one-third of the personal property" 
 carries one-third of the gross amount of which the testator died pos- 
 sessed, without deduction for the payment of debts, or charges of 
 administration. lb. 
 
 8. Crops. Unharvested crops go to the devisee of the land and 
 not to the executor. Dennett v. Hopkinson, 63 — 350. 
 
 9. As against the heirs at law unharvested crops go to the execu- 
 tor, lb. 
 
 10. Hay in a barn passes under a bequest of "all the household and 
 other articles of personal property in and about the buildings." lb. 
 
 III. WHEN A LEGACY IS VOID. 
 
 11. Incomplete. When the amount of a legacy is left blank in a 
 will, the bequest is void. Everett v. €arr, 59 — 325. 
 
176 DEVISE AND LEGACY. 
 
 12. A bequest of a sum of money to the executor, "the income to 
 be applied to keep the iron fence around my," is incomplete and void. 
 /Stevens v. JBurgess, 61 — 89. 
 
 13. Same Estate as Legatee would take by Descent. A 
 devise to an heir of the same estate in nature and quality, as that to 
 which he would be entitled by descent, is void ; in such case the heir 
 takes by descent. Lord v. Bourne, 63 — 368. 
 
 14. This rule is not applicable to personal property. Ih. 
 
 15. Nor does it apply when the heirs take an estate different in 
 quantity or quality from that which they would have taken if no will 
 had been made. Ih. 
 
 16. Peepetuitt. a testator devised his property as follows: I 
 give and devise my estate, real and personal, as follows : To each 
 and all my children an equal part or proportion of all and singular my 
 property; to (naming two sons and five married daughters) one- 
 seventh part to each of them and their heirs, with the proviso, that 
 the parts and proportions hereby devised and bequeathed to (naming 
 four of the daughters) and their heirs, is to go into the hands of J. S, 
 and G. M. P., whom I hereby appoint trustees, to hold, manage and 
 dispose of said parts, and the property received therefor, for the use 
 and benefit of said (naming the four daughters) and their heirs, 
 according to the discretion of said trustees. Held, that the trust 
 for the use and benefit of the heirs of his daughters indefinitely, as 
 well as for the use and benefit of his daughters, was void for perpet- 
 uity. Blade v. Patten., 68 — 380. 
 
 IV. WHEN A DEVISE IS IN FEE SIMPLE OR OTHERWISE. 
 
 1 7. A testator devised unto his grandson, land, "to have and to hold 
 the same to him, the said" devisee, "for, and during the term of his 
 natural life, without impeachment of waste ; and after his decease to 
 the heirs male, of his body lawfully begotten, and in default of heirs 
 male, to the heirs female." He also devised other real estate in 
 fee simple, and in fee tail. Held, that by a comparison of the differ- 
 ent provisions of the will, it was the intention of the testator, that 
 the grandson should take an estate for life, and his heirs male an es- 
 tate in fee tail. Hamilton y. Wentworth, b8 — 101. 
 
 18. The words "heirs male," in such case are to be construed as 
 words of purchase and not of limitation, lb. 
 
 19. The only item in the testator's will was as follows : "First and 
 final, I give and bequeath to my beloved wife," all my real estate. 
 Held, that the wife took an estate in fee simple, by virtue of R. S., 
 1871, c, 74, § 16. Baldwin v. Bean, 59—481. 
 
 20. A will ran as follows : First, "I give the use and income of all 
 my property, real and personal," to my husband, "during his natural 
 life. Second, at the decease of my said husband, I give the use and 
 income of all my real estate to my daughter A., during her life, except 
 the farm in G." "Fourth, I give the use and income of my said farm 
 in G. to my children, and the survivors of them, during their natural 
 lives, .... I desire it to be regarded as a place of refuge for my 
 children, and their children, if they have any, .... and, if possi- 
 ble, that it should never be disposed of." Held, that the husband 
 took a life estate in the farm in G., and that under the fourth item the 
 
DEVISE AJ>rD LEGACY. 177 
 
 children took only a life estate in the same farm. Baxter v. Baxter^ 
 62—540. 
 
 21. After making a bequest to a man and his wife specifically 
 named, the will continued — "This, together with the sale of the 
 dwelling-house, will yield support, nothing more; but I give and 
 bequeath to him and her a further sum of $2,500 for them to use for 
 charitable purposes, not debarring them from its use, or such part as 
 they choose to use, should they actually need it for their own com- 
 fort, — to be left by will for charitable purposes, at their decease, if not 
 used for charitable purposes while living," held, that the bequest of 
 the 12,500 was valid, and that the disposition of it was entirely sub- 
 ject to their control. Everett v. Carr, h% — 325. 
 
 22. An absolute power of disposal in the first taker renders a sub- 
 sequent limitation repugnant and void. Jones v. Bacon, 68 — 34. 
 
 23. Where the testator, after making sundry bequests, proceeds as 
 follows : "And as to the residue of my estate after payment of my just 
 debts, I give and bequeath the same to my beloved wife, . . and 
 lastly, I further direct if there be any of my said estate left after the 
 decease of my said wife, then the said property left be equally divided 
 between" several persons named, it was held, that the residue of his 
 estate, after the payment of his just debts and legacies, vested abso- 
 lutely in his wife. Ih. 
 
 24. The general rule is well settled that a devise to one without 
 words of inheritance, but containing the power to dispose of the 
 property, is treated as equivalent to a devise with words of inherit- 
 ance. Hall V. Preble, 68—100. 
 
 25. But where a life estate only is given to the first taker, with an 
 express power, on a certain event, or for a certain purpose, to dispose 
 of the property the life estate is not by such a powef enlarged to a 
 fee, or absolute right ; and the devise over will be good. Ih. 
 
 26. A testator made his widow residuary devisee with power to 
 hold and use all the property during her life, and to expend all of it 
 if necessary for her care, comfort or support. Held, (1) that she 
 took a life estate, with full power to convey the real estate in fee, at 
 pleasure, without restraint as to her use of the proceeds for her care, 
 comfort or support ; (2) that she was made the sole judge as to 
 whether it was necessary to convey for the purpose named ; (3) that 
 her quitclaim deed of land in the usual form was a sufiicient execu- 
 tion of her power under the will, and conveyed the fee. Ih. 
 
 27. A testator gave his wife one-half of his property, real, personal 
 or mixed, for and during her life, "granting her full power and author- 
 ity to sell, transfer, and assign and convey every part and parcel of 
 said half part, whether real or personal, by sufficient deeds and guar- 
 anties, according to her own judgment, will and pleasure," with the 
 right to select such half-jjart from his estate at the appraisal, "and 
 make such re-investment of the proceeds of any such sales and trans- 
 fers as she may deem expedient," with a remainder over. Held, that 
 the wife took only a life estate in the moiety, and that the power of 
 disposal for re-investment was given to relieve her from liability for 
 loss from an unwise investment. Fox v. Rumery, 68 — 121. 
 
 _ 28. The testator by will gave to his wife for and during her life, all 
 his estate, real and personal, to have and to hold to her and her 
 12 
 
178 DEVISE AND LEGACY. 
 
 assigns for the term aforesaid for her proper use, benefit, support 
 and maintenance, and after her decease said estate or the residue and 
 remainder thereof to his children. Seld, (1) not to be an absolute 
 gift to the wife of the real or personal estate but that she took a life 
 estate with an implied power to sell the real estate upon the happen- 
 ing of the contingency and to carry into effect the purpose mentioned 
 in the will ; (2) that the personal estate she might, at her discretion, 
 convert into money or other property, reduce the effects and credits 
 to cash or exchange them for other property, invest or change the 
 investment of the money, and in all respects manage the property as 
 a prudent owner would to facilitate proper use and benefit therefrom ; 
 (3) that where she applied money and an unpaid note to the part 
 payment of a vessel built by the maker of the note, that the executor 
 could not recover of the maker either for the note or the money. 
 Warren v. Webb, 68—133. 
 
 29. When a testator in the first instance devises land to a person 
 and his heirs, and then proceeds to devise over the property in terms 
 which show that he used the word heirs in the prior devise in the 
 restricted sense of heirs to the body ; such devise confers only an 
 estate tail, the effect being the same as if the latter expression had 
 been originally employed. Slade v. Patten, 68 — 380. 
 
 30. But the words which will create an estate tail when applied to 
 real estate, will give an absolute interest when applied to personalty. 
 lb. 
 
 V. WHEN VESTED, OR CONTINGENT. 
 
 81. A bequest of a sum of money to G. P., "placing it in the hands 
 of the executor for his use and benefit as he may need it, and not 
 receiving any more at a time than what is necessary for his benefit at 
 the time is a vested legacy." Prescott v. Morse, 62 — 447. 
 
 32. A will read as follows ; "I place in the hands of M. bank shares 
 to hold in trust until my son arrives at the age of thirty-five years, 
 when my son comes in full possession of said bank stock." Held, 
 that the shares vested in the son on the death of the testatrix to be 
 held in trust for his benefit till he should arrive at the age named. 
 
 Verrill v. Weymouth, 68 — 318. 
 
 VI. REMAINDERS. 
 
 33. Whenever there is a limitation over, which cannot take effect 
 by reason of its being too remote, the will is to be construed as if no 
 such provision or clause were contained in it ; and the person or per- 
 sons otherwise entitled to the estate or property will take it wholly 
 discharged of the devise, bequest and limitation over. Slade v. Pat- 
 ten, 68—380. 
 
 34. A will, after devising the testator's property to his wife Jane, 
 "during her natural life," continued : "After the death of my wife 
 Jane, it is my will that my son Reuel have all the property, both real 
 and personal, which may then remain, by paying out" "in six months 
 after her death" to each of the testator's two sons by a former wife, a 
 certain legacy, and in one year after their mother's death, a certain 
 bequest to each of two children by his wife Jane, a brother and sister 
 of Reuel. Jane survived her son Reuel, who, without paying any of 
 the bequests, died intestate and unmarried, and she remained a widow 
 
DEVISE AND LEGACY. 179 
 
 until she died intestate. On the trial of a petition for partition 
 brought by the testator's children by the former wife against the sur- 
 viving children by the latter, held, (1) that the will gave to the wife, 
 Jane, a life estate ; (2) to his son Reuel a vested remainder in fee- 
 simple, liable to be devested only by non-payment of the bequests to 
 the other children as a condition subsequent, and an actual entry on 
 the part of those entitled to claim a forfeiture by reason of a breach 
 of the condition ; (3) on the death of Reuel, the property descended 
 in equal shares to his mother, brothers, and sister ; and that, (4) on 
 the death of his mother, her fifth descended to her children. Leigli- 
 ton V. Leighton, 58 — 63. 
 
 35. When, in a will, a life estate in land is devised, and upon the 
 expiration of that estate a life estate in the same land is devised to 
 the children of the testator, the remainder being undevised, the chil- 
 dren take the remainder as heirs, and the fee becomes vested in them 
 after the expiration of the first life estate. Baxter v. Baxter, 62 — 540. 
 
 36. After the devise of a life estate in land to the children of the 
 testator, the remainder not being devised, a clause in the will author- 
 izing the children, when of age, to transfer the land to a person 
 named, for a specific purpose, confers no legal or equitable interest in 
 the land to such j^erson. lb. 
 
 37. Peesonai, Peopertt. A gift of a chattel for life is a gift of 
 the use only, and a remainder over is good as an executory devise. 
 Fox V. Bumery, 68 — 121. 
 
 38. A remainder which takes effect after a life estate is accelerated 
 by any cause which removes the prior life estate out of the way. Ih. 
 
 39. The testator by will gave his wife, in lieu of dower, one-half of 
 his property, -real and personal, for her life, with power to sell and 
 make such re-investments as she deemed expedient, with a devise over 
 to his adopted son. Held, a gift to the wife of only a life estatewith 
 power of alienation for re-investment only, and a valid devise over. 
 Ih. 
 
 40. In the same case, the wife waived the provisions in the will and 
 accepted dower and allowance instead. Held, that the devise over 
 was not thereby abrogated ; that the effect as to the surplus was the 
 extinction of the widow's life estate therein and the acceleration of 
 the rights of the second taker. lb. 
 
 41. A will read as follows : "I give my house to A. during her life ; 
 after her decease to B. during his life ; and after his decease to his 
 children, if any he have ; otherwise, to my legal representatives." B. 
 died leaving a wife and an infant son, who died before any settlement 
 of the estate. Held, that the infant son took a vested remainder in 
 fee-simple, in the house, and on his death it descended to his mother. 
 
 Verrill v. Weymouth, 68 — 318. 
 
 42. By the terms of the will M. was given two dollars a week for 
 life, and B. made residuary legatee, with a provision that "should B. 
 die without issue, all my property is to be equally divided between 
 my mother, brothers and sister." B. died, leaving a wife and only 
 son, who also died before any distribution of the estate. Held, that 
 the personal property in the hands of the administrator vested in B. 
 on the death of the testatrix charged with the annuity to M. lb. 
 
180 DEVISE ASID LEGACY. 
 
 VII. AlWUITIES. 
 
 43. If land, of which the income is devised, be unproductive, the 
 executor will not be authorized to expend any of the funds devised 
 to residuary legatees in an attempt to make it productive. Stevens 
 V. Burgess, 61 — 89. 
 44. When a testator gives an annuity to one and the residue of his 
 estate to others, and also directs his executor to retain in his hands 
 and properly invest a sum sufficient to pay the annuity, it is the duty 
 of the executor to invest a sum apparently sufficient, and in the exer- 
 cise of ordinary care, likely to remain sufficient to produce the full 
 annuity, and, upon order of distribution, pay over the balance of the 
 assets in his hands to the residuary legatees. The annuitant must 
 thereafter abide the fate of the investment. Nutter v. Viclcery, 64 — 
 490. 
 
 45. But when the testator gives no specific directions for the setting 
 apart of a sum sufficient to meet the call for the annuity, and only a 
 naked remainder is given to the residuary legatees, the right of the 
 annuitant is paramount, and a present distribution among the residu- 
 ary legatees can be ordered only with the consent of the annuitant, 
 or upon condition that each residuary legatee shall give security sat- 
 isfactory to the judge of jsrobate, to refund so much of the share he 
 receives, as may thereafter be found necessary to make good the an- 
 nual payments required from the estate. lb. 
 
 46. An annuity to be paid to a husband during the natural lives of 
 himself and his wife, does not cease upon the death of one of them. 
 Merrill V. jBicIcford, 65—118. 
 
 47. But in the absence of any thing to indicate an intention on the 
 part of the testator that it should, in any event, or at any time, be 
 payable to the widow, she is not entitled to it upon the death of her 
 husband. In that event it becomes assets in the hands of his admin- 
 istrator, to be given her by decree of the judge of probate. Jb. 
 
 VIII. LEGACIES CHARGED UPON ESTATES. 
 
 48. A testator devised to his wife ten dollars, to be paid her by his 
 executor, in addition to the provision made for her support and main- 
 tenance during her natural life, by his devisees, "agreeably to the con- 
 dition of their bond for that purpose, which was to be in lieu of dow- 
 er," and charged all his property devised "to the faithful performance 
 of said bond, and in the event of the non-performance thereof, enough 
 of his estate thus devised" to be sold by his executor as will provide 
 such support. He then devised three specified parcels of real estate, 
 in fee simple to his sons, B. and P., subject to the foregoing charge of 
 his wife's maintenance, in the "proportion of two-fifths of the amount 
 required" therefor, "and also to the payment of his debts in the 
 same proportion," and the remainder of his estate to two daughters, 
 and a third son (the executor), in equal proportions subject to the 
 same charge "in the proportion of three-fifths of the amount 
 required therefor." JHeld, that notwithstanding the bond with the 
 performance of the conditions of which the property devised was 
 charged, was intended to be executed on the same day with the will, 
 but in fact was not until two months afterwards, and after the death 
 of the testator, the provisions in the will relate to the bond, and its 
 provisions are binding and constitute a valid charge upon the estate 
 devised. Pettingill v. Pettingill, 60 — 411. 
 
DEVISE AND LEGACY. 181 
 
 49. Also held^ that it was the clnfy of the executor to see that what- 
 ever was needful for the maintenance of the testator's widow, in ac- 
 cordance with the provisions of the will, if not furnished by the de- 
 visees, should bo supplied, and the proper contribution due from any 
 delinquent devisee enforced. Ih. 
 
 60. Also held, that the proper method of determining how far the 
 power of sale conferred upon the executor by the provisions of the 
 will should be exercised, is the settlement of an account in probate, 
 wherein he should charge himself with his own fifth of all expendi- 
 tures less the value of the widow's labor in his family, and with what- 
 ever has been contributed by either of the other legatees, or collected 
 from them and be allowed the cost of maintenance. Ih. 
 
 51. A writing signed by the widow, stipulating that "no person 
 shall ever call on" a certain one of the devisees of the property thus 
 charged "or his property for any part of" her "support as long as there 
 is any of the other property left," is not a waiver of support from 
 the estate, and is void. Ih. 
 
 52. Also lidd., that interest be allowed on the six annual install- 
 ments of expenses, next preceding the filing of the account from the 
 time they respectively became due to the date of the decree allowing 
 the account. Ih. 
 
 53. Also held., that the statute of limitations is not applicable to 
 the costs of maintenance sustained by the executor, in behalf of the 
 widow of the testator. Ih. 
 
 54. When a legacy is directed to be paid from the proceeds of the 
 sale of land, the devisee of the land by accepting the devise becomes 
 liable to pay the legacy, whether the land is sold or not. Doolittle v. 
 Hilton, 63—537. 
 
 55. When the same sentence or clause, by which land is devised, 
 imposes on the devisee the duty of paying an annuity, or other sum 
 of money, and no other fund is provided out of which the payment 
 is to be made, such annuity or legacy is a charge on the land. Mer- 
 rill V. Bickford, 65—118. 
 
 56. S. C. was owing the testator a note, a portion of which was 
 forgiven by the will. After certain legacies and specific devises, one- 
 fifth of the residue of the estate was also devised to trustees for his 
 benefit, to be conveyed to him, in the discretion of the trustees after 
 five years. Held, that four-fifths of the balance due on the note was 
 a charge on the legacy to S. C, for the benefit of the other legatees. 
 Chase v. Davis, 65 — 102. 
 
 57. The simple gift of a sum of money is a general legacy. Ih. 
 
 58. A general legacy can not be a charge upon a specific one. Ih. 
 
 59. 
 
 IX. CHARITABLE BEQUESTS. 
 
 . A bequest to the "First Calvinist Baptist Society that may be 
 organized in" a certain school district and town named, "for the pur- 
 pose of buying a lot of land, and erecting thereupon a meeting-house 
 for the use of said society," is valid as a charitable bequest. iSwasey 
 V. Am. Bible Society, 57 — 523. 
 
 60. Also, a bequest of a certain sum, to be funded as directed until 
 by accumulation it shall amount to a certain sum, for the support of 
 the ministry of the society mentioned in the previous item, provided 
 
182 DEVISE AND LEGACY. 
 
 that the amount at the testator's decease shall be put in trust of a 
 committee or trustees, appointed by said Baptist association together 
 with the legal trustees of the school fund of the town, and provided 
 that if the society shall cease to have such ministry the income from 
 the fund shall revert to the testator's most needy heirs, and if said 
 society shall ever cease to have such ministry for the term of seven 
 years, it sha;l forfeit the bequest. Ih. 
 
 61. Also a bequest of the income of a certain sum, funded as di- 
 rected, for "the education of a pious relative, above the age of four- 
 teen years, and a resident of" a town named, "who shall be of the Cal- 
 vinistic faith, and shall be a student for the ministry." Ih. 
 
 62. Also a bequest of a specific sum "for the benefit of needy sin- 
 gle women and widows," whenever an equal sum shall be contributed 
 by some other person and a suitable building provided for their re- 
 ception; also, to keep in repair the family burying ground; also "for 
 the benefit of the poor and needy of the testator's relatives." Ih. 
 
 6-3. A bequest to a person named of a specified sum, "in trust, to be 
 used purely and solely for charitable purposes, for the greatest relief 
 of human suffering, human wants, and the good of the greatest num- 
 ber," is a valid bequest for charitable uses. Everett v. Carr, 59 — 
 325. 
 
 64. A bequest to a masonic lodge "for charitable purposes," is valid 
 when the lodge is incorporated with power to take and hold for char- 
 itable uses to an amount exceeding that of the legacy. Ih. 
 
 65. A bequest — "I also give and order paid to" a legatee named, 
 "the sum of $1,000 per annum so long as she may live, for her use for 
 charitable objects and purposes," is valid; and when once paid by 
 the executors, their responsibility in relation thereto has ceased. Ih. 
 
 66. After making various bequests, some of which were for charita- 
 ble purposes, the testator makes other bequests for charitable pur- 
 poses, and adds, "but no part of these sums, donated for charitable 
 purposes, to be given till provision be made for such as I had pre- 
 viously made." Held, that "these sums donated for charitable 
 purposes," refer to those bequests immediately preceding. Ih. 
 
 67. A testator devised property "to aid in the erection of a house 
 of worship in the city of Bangor, to be under the control and used by 
 the first Christian church (or first church of the Christian denomina- 
 tion) in Bangor," upon condition that said church be legally organ- 
 ized, and own a lot on which to erect said house, the lot to be in a 
 specified locality, and the church to own it free from incumbrances, 
 ten years from, the death of the testator to be allowed said church 
 for its organization. Held, that the intention of the testator was 
 to aid the first church of the specified denomination, which, within 
 the prescribed time, should take the steps required to secure the 
 permanent ownership of the house, and that of two churches, one 
 organized first in point of time, known as the First Christian church 
 in Bangor, but having purchased no lot of land, or made any claim to 
 the bequest, and not recognized by the Maine Eastern Conference of 
 Christian churches as a church of that denomination, the other later 
 organized in time, recognized by the Conference, and having complied 
 with the requirements of the will as to the purchase of land, the latter 
 was entitled to the bequest. Nason v. First Church, 66 — 100. 
 
 68. Held, also, that it was not necessary to inquire whether the 
 
DEVISE AND LEGACY. 183 
 
 organization of the latter church as a religious society was accord- 
 ing to the statute, it appearing that the church was organized in 
 conformity with the established usages of the denomination, and that 
 such organization was sufficient to receive the conveyance of a lot and 
 to protect the property. lb. 
 
 69. Also, that as the bequest was not direct to the church, but 
 looked to the intervention of a trustee, the society, if legally incorpor- 
 ated, could hot maintain an action against the executor to recover the 
 money. 1 b. 
 
 70. A bequest was made to the Methodist Epis. Miss. Society of 
 Maine. There was no society answering literally to the description 
 in the will, but there were four which, by possibility, might compete 
 for the bequest. The first two were merely associations for collecting 
 and forwarding to the parent society in New York such sums as might 
 be gathered for the use of foreign missions. The third society was 
 incorjDorated for the purpose of holding funds to be disbursed for 
 domestic missions within the State of Maine, east of the Kennebec 
 river, and including also a part of New Hampshire. It was called the 
 "Trustees of the Maine Annual Conference of the Methodist Episco- 
 pal Church." The last society was incorporated for the same purjaoses, 
 and its jurisdiction extended over that portion of Maine east of the 
 Kennebec river. Its name was "Trustees of the East Maine Confer- 
 ence of the Methodist Church." The testatrix resided within the 
 territorial limits of this last society. Held, that it was the one entitled 
 to the legacy. Straw v. Missionary Societies, 67 — 493. 
 
 X. GENERALLY. 
 
 71. Deficiency op Assets. In case of a deficiency of assets, the 
 legacies abate proportionally, unless the testator's intention to the 
 contrary is clearly expressed. Swasey v. American Bible Society, 
 57—523. 
 
 72. A Strict Legal Consteuction, or the technical sense of 
 words, is never to prevail against the suj)erior force of intention 
 apparent in a will. Hamilton v. Wentworth, 58 — 101. 
 
 73. Peioeity. a bequest commencing "first of all I give," etc., 
 followed by others, commencing successively with the word "next," 
 does not take iDrecedence of the succeeding ones. Everett v. Garr, 
 59—825. 
 
 74. Deduction. A testator bequeathed to Emmeline Thomas, 
 "during her natural life, the sum of $5,000 to purchase a homestead, 
 hou^e, or place, where she with her sisters, father and mother, if she 
 so elects to live, may reside during her natural life ; " and concluded 
 the item as follows : "Having assigned to Emmeline, Mary, and Anna 
 Thomas, or one of them, a policy of insurance on my life, the money 
 collected therefrom will constitute a fund for the purchase of home- 
 stead, etc., and must be so considered as so much in payment of 
 bequest to Emmeline, Mary, and Anna." After the testator's 
 decease, Emmeline and her sisters received $7,500 on the policy. 
 Held, that the sum received must be deducted from the legacies to 
 them. lb. 
 
 75. Ordinarily, the PEESOisrAL estate of a decedent is first to be 
 applied to the payment of debts, but real estate may be sold for this 
 purpose without having recourse to the personal, when this course is 
 
184 DEVISE AND LEGACY. 
 
 necessary to carry out the evident intent of the testator, as gathered 
 from the whole of the will, though such sale is not expressly directed 
 by any of its particular provisions. Qaiiiby v. Frost, 61 — 77. 
 
 76. AuTHOEiTT OF ExEcuTOE. The executor has no authority 
 to pay from the general funds of the estate the expenses of taxes, 
 repairs, etc., upon real estate devised in trust and in the occupancy of 
 the widow as cestui que trust ; nor is anj' part of such expenditures 
 to be borne by the trust to which the proceeds of such real estate are 
 eventually to be devoted. The occupant must pay them. Stevens v. 
 Burgess, 61 — 89. Ante, 49. 
 
 77. The executor, having no special authority by the will to sell the 
 real estate, cannot make sale of it without the consent of the residuary 
 legatees, or license from this court, which will not be granted where 
 the personal assets are amply sufficient to pay the debts and meet all 
 the calls of the will. lb, 
 
 78. If land of which the income is devised be unproducti\e, the 
 executor will not be authorized to expend any of the funds devised to 
 the residuary legatees in an attempt to make it produce an income. 
 lb. 
 
 79. A bequest is payable presently unless some time is specially 
 fixed for payment. lb. 
 
 80. By the terms of a will the executor was given the right to sell 
 the property devised to him in trust, "the proceeds" to go to her hus- 
 band for the benefit of himself and her children. Power was also 
 given the executor to exchange property. Held, that by the term 
 "proceeds" was intended money obtained for the property sold, and 
 not other property obtained by exchange. Emerson v. Jlewins, 64 
 —297. 
 
 81. In the fourth item of his will the testator devised specific prop- 
 erty in trust, providing for its sale if the executors (also trustees) 
 should deem it best, after a certain time, the proceeds to be held and 
 invested by the trustees, and the income to be paid to the beneficiar- 
 ies. In the fifth item he devised the residue of his estate to the same 
 trustees, "the income and j)roceeds thereof to be appropriated as 
 provided in the fourth item," and further provided that in certain 
 contingencies the trustees, in their discretion, might convey to the 
 beneficiaries their interest "in said trust estate." Hdd, that the words 
 "said trust estate" included the property left in trust by the fourth 
 item as well as that included in the fifth. Chase v. Davis, 65 — 102. 
 
 82. Held, also, that the discretion which was vested in the trustees 
 named in the will could be exercised by their successors, appointed 
 after their death, by the judge of probate. lb. 
 
 83. A clause "to my present attendant physician to aid in the 
 education of his children," can apply only to the physician who was 
 attendant at the date of the will. Everett v. Carr, 59 — 325. 
 
 84. A testator who directs that a portion of his estate shall descend 
 and be distributed according to the laws of the State, in the same 
 way and manner as though the will had not been made, intends the 
 laws in force at the time of his death, and not those in force at the 
 time of the execution of the will. Meserve v. Meserve, 63 — 518. 
 
 85. Intention. The general rule is that the intention of the testa- 
 tor is to govern, but it is the intention expressed by the will, and not 
 otherwise. Cotton v. Smithwick, 66 — 860. 
 
DEVISE AND LEGACY — DIVOECE. 185 
 
 86. To ascertain the intention of the testator, every clause and 
 word is to be taken into consideration, and every implication, as 
 well as every direct provision, is to be regarded. Ih. 
 
 87. Declarations of a testator, made after making the will, in regard 
 to his intention, are admissible only in case of latent ambiguity, and 
 then from necessity for the purpose of preventing the devise from 
 being declared void for uncertainty. Ih. 
 
 88. An BXECUTOET DEVISE, either of real or personal estate is 
 good if limited to vest within a life or lives in being and twenty-one 
 years, adding however, in case of an enfant en ventre sa mere, suffi- 
 cient to cover the ordinary period of gestation ; but such limitation, 
 to be valid, must be so made that the estate devised not only may, 
 but must necessarily, vest within the prescribed period. Slade v. 
 Patten, 68—380. 
 
 89. The provision of a will was as follows : "I give and devise my 
 estate, real and personal, as follows : To each and all my children an 
 equal part and proportion of all and singular of my property ; to 
 (naming two sons and five married daughters) one-seventh part to 
 each of them and their heirs, with the proviso, that the parts and 
 proportions hereby devised and bequeathed to (naming four of the 
 daughters) and their heirs, instead of paying into their hands, is to go 
 into the hands of J. S. and G. M. P., whom I hereby appoint trus- 
 tees, to hold, manage and dispose of said parts, and the property 
 received therefor for the use and benefit of said (naming the four 
 daughters) and their heirs, according to the discretion of said trus- 
 tees." Held, (1) that the trust for the use and benefit of the heirs of 
 his daughters indefinitely, as well as for the use and benefit of his 
 daughters, was void for perpetuity ; (2) that the trust being void, the 
 absolute gift remained in full force and unimpaired. lb. 
 
 90. In a subsequent clause was a provision as follows : "In case 
 that S. E. (one of the daughters named) should die before her hus- 
 band and leave no children, I will that her part, after the expiration 
 of six years, be transferred by the trustees over to the parties of the 
 six other heirs, and be equally divided between them." Held, that 
 this special clause is so connected with and dependent upon the trust 
 clause, if that fails, this will fail with it ; that any other construction 
 would defeat the prevailing purpose and manifest intent of the will, 
 which was to give to each and all of his children "an equal part and 
 proportion of all and singular his property." lb. 
 
 DIVORCE. 
 
 ,1. THE DIVOECE. 
 II. ALIMONY. 
 III. CUSTODY OF CHILDREN. 
 
 I. DIVORCE. 
 
 1. A decree pro confesso can not, ordinarily, be made in a matter 
 of divorce. Lord v. Lord, 66— -265. 
 
186 DIVOKCE. 
 
 2. Effect of a Divoecb. The fact that the husband has already 
 obtained a divorce a vinculo, upon his libel, is no bar to the granting 
 a like divorce to the wife, when, in the exercise of a sound discretion, 
 it is deemed reasonable and proper. Stilphen v. Stilphen, 58 — 508. 
 Stilphen v. Houdlette, 60 — 447. 
 
 3. Upon a libel therefor, in behalf of the wife alleging constant 
 faithfulness on her part, but extreme cruelty on a day certain, and on 
 divers other days and times since that day, on the part of her hus- 
 band, to which the respondent pleaded, traversing all the allegations 
 therein, the unreversed judgment of a court having jurisdiction of 
 process and parties, adjudicating that "the allegations of said libel 
 being satisfactorily proved," a divorce, a mensa, is decreed, is conclu- 
 sive between the parties, as to their conduct towards each other dur- 
 ing the continuance of their matrimonial relation to the date of the 
 judgment. Blade v. Slade, 58 — 157. 
 
 4. A woman, after a divorce a vinculo, may maintain an action 
 against her former husband, on a promissory note given by him to 
 her in 1861, during coverture, for money borrowed of and belonging 
 to her. Webster v. Webster, 58 — 139. See also Webster v. Blake, 
 64—177. 
 
 5. But she can not maintain an action against him to recover dam- 
 ages for an assault committed upon her during coverture. Nor 
 against those who assisted him in committing such assaults. Abbott 
 V. Abbott, 67—304. 
 
 6. Demueree to Libel. When the allegations in a libel for 
 divorce are sufficient to give the court jurisdiction of the case, and to 
 grant a divorce under its discretionary power, the libellee can not 
 defeat the libel by demurrer for circumstantial errors. Huston v. 
 Huston, 63—184. 
 
 7. In such case if the libellee desires greater particularity of state- 
 ment he should move for an order that the libellant furnish it. lb. 
 
 8. Annuling Deceee foe Feaud. A husband, in order to obtain a 
 divorce from his wife, falsely alleged in his libel that his residence was 
 in this State, and that his wife's residence was unknown to him. He 
 thus obtained an order of notice in a newspaper with the design of 
 concealing from her any actual notice of the proceedings, and obtained 
 a divorce without any knowledge on her part. Held, that for such a 
 fraud upon the court the decree could be set aside, upon petition of 
 the wife, although the husband had contracted a new marriage. 
 Holmes v. Hohnes, 63 — 420. 
 
 9. A petition, alleging that the wife of the petitioner had obtained 
 a divorce from him by fraud, and praying for "a review of the same, 
 and that said decree of divorce may be annulled," is not bad for 
 duplicity. Lord v. Lord, 66 — 265. 
 
 10. Clear evidence is required to show fraud upon the court in 
 obtaining jurisdiction before a decree of divorce can be annulled. lb. 
 
 11. Costs. A libellee is not entitled to cost when the libel is dis- 
 missed, unless they are decreed by the court. JBuchingham, v. Buck- 
 ingham, 61 — 232. 
 
 12. Exceptions do not lie to an order of the presiding judge for 
 the husband to make a payment for the immediate support of the 
 wife while the libel is pending. Gall v. Call, 65 — 407. See Post, 28. 
 
DIVOECE. 187 
 
 13. The parties to a libel for divorce, a vinculo, tried by the pre- 
 siding justice, at nisi prius, are entitled to the right of alleging 
 exceptions to rulings admitting testimony. Slade y. Slade, 58 — ^157. 
 
 II. ALIMONY. 
 
 14. After a decree of divorce, a vinculo, on the libel of the wife, 
 and at any term of court during the pendency of the libel, though 
 subsequent to that in which the divorce was decreed, the court may, 
 on motion or petition, decree her a specific sum instead of alimony, 
 although such claim is not specifically set forth in the libel. Prescott 
 V. 'Prescott, 59—146. 
 
 15. The statute gives no authority to the court to decree alimony 
 to the wife upon a libel in favor of the husband. Henderson v. JSen- 
 
 . derson, 64 — 419. 
 
 16. If a husband obtains a divorce upon his libel, but no decree is 
 made concerning alimony or allowance, the wife can not afterwards 
 maintain a petition to review the decree of divorce so far as to obtain 
 alimony, and dower in her husband's estate. Ih. 
 
 17. A husband who, before a libel for divorce has been filed by his 
 wife, conveys his real estate for a full and valuable consideration, for 
 the express purpose of preventing her from recovering alimony, as the 
 court might decree, in case a petition should be filed by her, and, after a 
 decree of court allowing the wife the use of the real estate as alimony, 
 obtains a re-conveyance, will be estopped from holding the premises 
 in any other way than for her benefit, so far as her claim is concerned. 
 Bailey v. Bailey, 61 — 361. 
 
 18. Adjustment. When a libel for divorce is pending, which the 
 libellee desires to defend only so far as the claim for alimony is con- 
 cerned, that claim may be adjusted by the parties upon terms to be 
 carried into effect in case the divorce is decreed. In such case notes 
 given for the amount agreed upon may be enforced if there is no 
 collusion to procure the divorce. Burnett v. Paine, 62 — 122. 
 
 19. An EXECUTION may issue in favor of the wife against the hus- 
 band for alimony decreed the wife, without previous rule on the hus- 
 band to show cause, when he is in court by his counsel. Prescott v. 
 Prescott, 62—428. 
 
 20. Where monthly installments, decreed to be paid, remain un- 
 paid, it can not affect the libellee injuriously that one execution issues 
 for the installments and alimony instead of several. lb. 
 
 21. The power given to the court by statute when a divorce is 
 decreed to the wife for the fault of the husband, to decree to her a 
 reasonable alimony, or, instead of alimony, a specific sum to be paid 
 by the husband, is addressed to the sound discretion of the presiding 
 judge. Call V. Call, 65—407. 
 
 III. CUSTODY AND SUPPORT OF CHILDREN. 
 
 22. Fnder R. S., 1871, c. 60, § 19, authorizing the court to make 
 such decree concerning the support of minor children of divorced 
 parties, and alter the same as circumstances may require, it may require 
 security for the performance of its decree. Miller v. Miller.. 64 — 
 484. 
 
 23. A decree in a divorce suit, that the mother shall have the care 
 
188 DIVOECB — ^DOmCILE. 
 
 and custody of the minor children, and that the father shall pay a 
 certain- sum quarterly toward their support, which, by its terms, is to 
 continue in force until the further order of court, is not discharged by 
 the father's death, and a bond given to secure the performance of the 
 decree is binding on the surety, notwithstanding the death of the 
 principal. Ih. 
 
 24. A decree granting a divorce, and giving the custody of the mi- 
 nor children to the mother, may, on petition, be altered at a subse- 
 quent term, and the father ordered to contribute to their support. 
 Harvey v. Lane, 66 — 536. 
 
 25. This may be done, although the original decree required the 
 respondent to pay the petitioner a certain sum, which had been fully 
 paid. lb. 
 
 26. It seems that the authority of the court to pass a decree con- 
 cerning the custody and support of minor children, is not limited to 
 the judge who grants the divorce, nor to the term when it is granted, 
 but may be exercised by the same court at any time during the mi- 
 nority of the children, when circumstances may require it. lb. 
 
 27. It is not essential to the validity of a decree for a specific sum 
 to be paid by the husband to the wife for the support of a child, that 
 the payment be by installments as the support is furnished. Call v. 
 
 Call, 65—407. 
 
 28. The amount, as in other cases of allowance in divorce suits, 
 must be determined by the presiding judge, and to his decision ex- 
 ceptions do not lie. lb. 
 
 See Judgment, 11. 
 
 DOMICILE. 
 
 1. A domicile can not be lost without gaining another. No. Yar- 
 mouth V. West Gardiner, 58 — 207. 
 
 2. To constitute a change of domicile, there must be a concurrence 
 of the intention to make, and the fact of making, such change. Par- 
 sons V. Bangor, 61 — 457. 
 
 3. On the 30th of March, a person who had previously disposed of 
 the greater portion of his furniture and his other personal property, 
 paid his bill at the public house in Bangor, at which he had been 
 boarding with his wife for several years, left that city, and upon the 
 first day of April arrived at New York, engaged a boarding place, 
 and went into business there in pursuance of an agreement entered 
 into some time before ; it being arranged that his wife should follow 
 him as soon as a boarding place was obtained. Held, that such per- 
 son was not liable to taxation in Bangor on the first day of April. Ih. 
 
 4. The domicile of a person in a particular locality is acquired by 
 the union of intent and of presence. Stockton v. Staples, 66 — 197. 
 
 5. One may acquire a domicile by the residence of a day, if to the 
 fact of residence be superadded the requisite intention. lb. 
 
 6. The acts and intentions of the wife do not affect the domicile of 
 the husband. Porterfield v. Augusta, 67 — 556. 
 
 See Conflict of Law, 10, p. 99. 
 
DOWEK. 
 
 DONATIO CAUSA MORTIS ET INTER VIVOS. 
 See Gift. 
 
 189 
 
 DOWER. 
 
 I. OP WHAT A WIDOW IS DOWABLE. 
 II. BAR OF DOWER. 
 III. GENEEALLT. 
 
 I. OF WHAT A WIDOW IS DOWABLE. 
 
 1. MoETGAGED Peopeety. Where a mortgagor of real estate, in 
 his lifetime, assigned his property for the benefit of his creditors, and 
 his assignee sold the equity of redemption to the tenant, making the 
 conveyance subject to the mortgage, "to be provided for by the pur- 
 chaser," an assignment of the mortgage to the tenant in consideration 
 of the payment of the amount due thereon was held to operate to 
 extinguish it, and the mortgagee's -widow entitled to dower, notwith- 
 standing her release in the mortgage. Hatch v. Pahner, 58 — 271. 
 
 2. Tetjst. Evidence of the object and purpose for which a con- 
 veyance was made, is not admissible to convert the deed purporting to 
 be an absolute conveyance into one of any trust not expressed therein, 
 and the wife of such grantee has a right of dower in the premises. 
 Gerry v. Stimson, 60 — 186. Post, 20. 
 
 3. Title of the Husband by Descent. When an estate de- 
 scends from a father to his sons, and one of the latter dies, after 
 having acquired the interest of his brothers, leaving a widow, and his 
 father's widow also survives him, the widow of the father is entitled 
 to dower in the whole estate, and the junior widow in the remaining 
 two-thirds. McLeery v. McLeery, 65 — 172. 
 
 4. Nor will the junior widow be dowable in the one-third which 
 may be assigned to the senior widow, upon the death of the latter. lb. 
 
 5. Although it seems that if the son receives the title to the estate 
 by deed and not by descent, the rule is otherwise. lb. 
 
 6. In Case of Divoece. When a divorce is decreed to the wife 
 for the fault of her husband for any other cause than impotence, she 
 is entitled to dower in all real estate owned by him at any time during 
 coverture, unless she has barred her right thereto. Lewis v. Meserve, 
 61—374. 
 
 7. The Estoppel. One who has received a warranty deed of land 
 from a husband during coverture, can not deny the seizin of his 
 grantor, in an action of dower by the wife. lb. 
 
 8. In an action of dower, a tenant who claims under a deed from 
 the husband is not estopped to show that the seizin of the husband 
 was not of that character which would entitle his widow to dower. 
 McLeery v. McLeery, 65 — 172. 
 
 II. BAR OF. DOWEK. 
 
 9. A DIVOECE, a vinculo, obtained by the husband on his libel, 
 
190 DOWER. 
 
 defeats the wife's right of dower, although she subsequently obtain 
 a like divorce for the fault of the husband. Stilphen v. Soudlette, 
 60—447. 
 
 10. Where, pending a libel for divorce, alimony was agreed upon 
 by the parties, who, by written articles of agreement, fixed upon a 
 specific division of the personal property upon a farm they had occu- 
 pied, it was held, that this was not such a pecuniary provision as to 
 bar dower. Davis v. Davis, 61 — 395. 
 
 11. Parol evidence is not admissible to show that a written con- 
 tract, by a husband, for the payment of money to the wife for a pur- 
 pose stated therein, not in lieu of dower, was intended as a pecuniary 
 provision in lieu of dower. lb. 
 
 12. A EELEASE of dower in a deed, or mortgage, enures only to the 
 benefit of those claiming under it. French v. Crosby, 61 — 502. 
 
 13. When a wife joins in a deed with her husband for the purpose 
 of releasing her dower, she will not be barred thereby in a suit for 
 dower against a third person who holds the lands by an attachment 
 made against the husband prior to said deed and a levy made after- 
 wards, the tenant having no claim under such deed. lb. 
 
 14. Fbaudulent Conveyance. Where a debtor, for-the purpose 
 of defrauding his creditors, conveyed his lands to his wife, by whom 
 they were conveyed to her brother to hold for her, in pursuance of 
 the same purpose, and a creditor whose debt accrued prior to the first 
 conveyance levied upon the lands, after the death of the husband, as 
 against such creditor the widow was held entitled to dower in the 
 lands. Wyman v. Fox, 59 — 100. Richardson v. Wyman, 62 — 280. 
 
 15. The dower of a surviving wife is not barred by a conveyance 
 from the husband to the wife, and a subsequent conveyance by them 
 to a third person, when both conveyances are set aside as fraudulent 
 against the creditors of the husband. Richardson v. Wyman, 62 — 
 280. 
 
 16. It seems that if a wife joins with her husband in a deed, and 
 relinquishes her dower in the land, and the deed is avoided at the 
 instance of a creditor of her husband, on the ground that it was fraud- 
 ulent against creditors, she may recover dower of such creditor, or of 
 his assigns. lb. 
 
 17. Mince. Prior to Acts of 1863, c. 215, a minor feme covert 
 could not bar her right to dower by joining in the execution of her 
 husband's deed for that purpose ; such deed was voidable by her on 
 attaining her majority. Dela v. Stanwood, 61 — 51. 
 
 18. And it is immaterial whether she avoid the deed before or after 
 the passage of the act. lb. 
 
 19. Suspension of the Right. A paper, signed by the heirs to 
 whom an estate has descended, and given to the widow, promising, 
 that in consideration of their having the use and income of the whole 
 estate, she shall have the occupancy of a portion of the premises, and 
 a certain yearly payment to be made by them, neither assigns nor 
 extinguishes her dower, but merely suspends her claim for a time. 
 McLeery v. McLeery, 65 — 172. 
 
 20. When the heirs of a deceased person agreed that one of them 
 should be constituted a trustee for the purpose of dividing the estate, 
 and the other heirs conveyed to him for that purpose, it was held. 
 
DOWER. 191 
 
 that the -widow of the trustee was entitled to dower in the undivided 
 portion which descended to her husband from his father, but not in 
 that portion which was conveyed to him by his co-heirs, he never hav- 
 ing held it otherwise than in trust. McGlellan v. McGlellan, 65 — 500. 
 
 21. Equitable Release. If the widow of the intestate becomes 
 a party to such an arrangement, and accepts her share under it, it is 
 an equitable release of her dower. lb. 
 
 III. GENERALLY. 
 
 22. An ASSIGNMENT of dowcr, duly made and accepted by the 
 court of probate, is conclusive upon all parties thereto and their 
 privies, unless appealed from. In a real action for the land the tenant 
 can not set up irregularities in the assignment in order to obtain the 
 benefit of the statute of limitations. Poor v. Ziarrabee, 58^ — 543. 
 
 23. Conveyance. In a quitclaim deed if the grantor describes 
 herself as the widow of a certain person deceased, and the land as 
 all the real estate which that person owned at the time of his death, 
 the deed conveys only a right of dower. Davis v. Stevens., 57 — 598. 
 
 24. Demand. A claimant for dower, when she is in possession of 
 the land, and when the owners of the land reside and are actually out 
 of the State, but have within the State a general agent to care for the 
 land and protect their interests in it, may make a demand upon such 
 agent, sufficient to enable her to maintain her action for dower and 
 for damages. Hunt v. JTotch/dss, 64 — 241. 
 
 25. Rents and Pkoeits. Where a husband conveyed land with 
 the intention of defrauding his creditors, and the deed was subse- 
 quently avoided by one of his creditors, who extended his execution 
 upon the land, and after the death of the debtor brought a writ of 
 entry against the wife who remained in possession, it was held, that 
 she was not entitled to receive one net third of the rents and profits, 
 nor could she claim to occupy any part of the land until her dower 
 had been assigned. Wi/man v. Richardson, 62 — 293. 
 
 26. When the widow of a mortgagor institutes proceedings in 
 equity to redeem a mortgage in order that she may be let in to her 
 dower, the mortgagee is liable to account to her for rents and profits 
 from the date of his entry into possession of the premises under the 
 mortgage, and not merely from the time an account is first demanded 
 of him by the dowress. Dela v. Stanwood, 62 — 574. 
 
 27. Merger. A father died leaving a widow and sons, to whom 
 his estate descended. One of the latter acquired the title of his 
 brothers to the estate, conveyed it to his mother by warranty deed, 
 and died, leaving a widow. Held, in an action of dower by the junior 
 widow against the senior, that the right of dower of the latter was 
 not merged in the fee by the acceptance of the deed from her son. 
 McLeery v. McLeery, 65 — 172. 
 
 28. Pleading. A father died leaving a widow and sons to whom 
 his estate descended. One of the latter acquired the title of his 
 brothers, conveyed the estate to his mother, and died, leaving a widow. 
 In an action of dower by his widow against his mother, held, that the 
 latter might set up in defense her right of dower in the premises, 
 although it had not been actually assigned to her. Ih. 
 
 29. In an action of dower, non-tenure must be pleaded in abate- 
 ment. Lewis V. Meserve, 61 — 374. 
 
192 DRAINS AND SEWERS. 
 
 DRAINS AND SEWERS. 
 
 1. Damages awarded for the location of a street or drain, are to be 
 only those resulting from its proper construction. If an injury arises 
 from improper construction they are to be sought in some other form. 
 Jackson v. Portland, 63—55. 
 
 2. Under R. S., 1871, c. 16, § 9, providing that after a public drain 
 is constructed, and any person has paid for connecting with it, it shall 
 be constantly maintained and kept in repair by the town, so as to af- 
 ford suitable and sufficient flow for all drainage entitled to pass through 
 it, "and further providing that if the town does not maintain and • 
 keep it in repair ; any person entitled to drainage may have an action 
 against the town for the damage thereby sustained, if, after a person 
 has paid for the privilege of connecting with a city sewer, and has so 
 connected, the city cause other sewers to be connected with it, 
 by which the flow of water during severe showers is so increased 
 that the drain can not carry it off, the city is liable to the person so 
 connecting, for the damage caused by the overflow of the sewer, and 
 it is no defense that the showers causing the overflow are extraordi- 
 narily severe. JBloody. JSangor, 66 — 154. 
 
 3. When, however, the plaintiff's drain is a private one, which is 
 connected with the sewer without any written application or permit, 
 and under such circumstances as to impose no liability upon the city, 
 the plaintiff can maintain no action for the overflow. Darling v. 
 Bangor, 68—108. 
 
 4. Ntjisance. While the city of Portland has the right, by stat- 
 ute, to construct sewers opening into the public docks of the city, and 
 to use them in a reasonable manner for conducting and depositing 
 therein refuse matter and impurities, it is the duty of the city to cause 
 such docks to be cleared of such deposits whenever they become an 
 obstruction to navigation, or injurious to the public health. Frank- 
 lin Wharf Y. Portland, 67 — 46. 
 
 5. If the city neglects to do this, within a reasonable time, it is lia- 
 ble to an indictment for creating a nuisance. lb. 
 
 6. And if such obstruction cause damage to the owners of wharves, 
 by diminishing the depth of water about them, and thereby impairs 
 their use for the purposes for which they were constructed, and have 
 been used, causing inconvenience and injury not common to the pub- 
 lic, it becomes a nuisance, and the city is liable therefor to the wharf 
 owners. lb. 
 
 7. But if the injury to the wharf owners is merely an injury to the 
 right of navigation in common with the public, the city will not be 
 liable in a civil suit. lb. 
 
 8. Appuetenant to Estate. Where the owner of two adjoin- 
 ing lots of land, constructs a drain through one of them for the drain- 
 age of the other, and then sells the one drained. A right of drain- 
 age through the grantor's adjoining land will not pass by implication, 
 (the deed being silent upon the subject), unless such right is clearly 
 necessary to the beneficial enjoyment of the estate conveyed, though 
 a drain has already been constructed through the adjoining land, and 
 is in use at the time of the conveyance. Dolliff v. -o. tfc M. R. JR. 
 Co., 68—173. 
 
DTJEESS — BASEMENT. 193 
 
 DURESS. 
 
 1. Mere threats of criminal prosecution do not constitute duress 
 without threats of immediate imprisonment. Harmon v. Harmon, 
 61—227. 
 
 2. The threats of personal injury which the law considers duress, 
 are such as constitute an impending danger to life, or of serious bod- 
 ily harm sufficient to overcome the will of a man of ordinary firmness. 
 II. 
 
 3. No demand is necessary before commencing suit to recover mon- 
 ey paid under duress. Lord v. Kennebunkport, 61 — 462. 
 
 See Judgment, 17. 
 
 EASEMENT. 
 
 1. A party claiming an easement in land, without right, acquires 
 the right by a deed of confirmation from the owner, in which he 
 "confirms, acknowledges, and grants" the easement to be used by the 
 grantee, his heirs and assigns, without denial, obstruction or hin- 
 drance, knight v. Dyer, 57 — 174. 
 
 2. Two deeds, executed and delivered at the same time, by the 
 same grantor to different grantees, one conveying a parcel of land, 
 with an easement in another parcel, and the other conveying the lat- 
 ter parcel reserving the easement, are to be construed together. lb. 
 
 3. A voluntary release of an easement by an administrator, does 
 not bind the estate, nor the heirs of the intestate. Mowe v. Stevens, 
 61—592. 
 
 4. The owners of pews in a meeting-house owned by a corporation, 
 have only an easement in, and not a title to, the freehold. First Bap- 
 tist Society v. Grant, 597-245. Union House v. Howell, 66 — 400. 
 
 5. Peesceiption. When the question at issue is the existence of 
 a right of way by prescription claimed by the plaintiff, over the de- 
 fendant's land, evidence that a witness having occasion several years 
 before the dispute arose, to use the way, did so by permission of a 
 person who did not appear to have been the owner of the land, was 
 held inadmissible, neither the plaintiff nor his grantors being shown 
 to have any knowledge of the transaction. Mclntire v. Talbot, 62 
 —312. 
 
 6. Evidence of the efforts of such persons to interrupt the use of 
 the way, is not admissible, unless he was the owner of the servient 
 estate at the time of making them, by some title which has since come 
 to the defendant. lb. 
 
 7. An easement by prescription is gained only by an user that is 
 adverse during all the requisite time, and is so notorious that the 
 owner may be presumed to know that it is adverse. Morse v. Wil- 
 liams, 62 — 445. 
 
 8. Obsteuctiost. If one having a right of way over land places an 
 obstruction across it, to prevent its use as a way by another, who has 
 permission so to use it from the owner of the land, it is a nuisance, 
 
 13 
 
194 EASEMENT — ELECTIONS. 
 
 and may be removed by the person having such permission. Morgan 
 V. Boyes, 65—124. 
 
 See Trespass, 13. 
 
 9. A right of way does not carry with it the right to the exclusive 
 possession of the land. The owner may still use it for any purpose 
 which does not materially impair, or unreasonably interfere with its 
 use as a way. He may use it as a way himself, or permit others so to 
 use it. Ih. 
 
 10. Wat of Nboessitt. Mere convenience of access to all parts 
 of a lot purchased, will not create a right of way by necessity in the 
 adjoining land of the grantor. White v. Bradley^ 66 — 255. 
 
 11. Light and Aie. It seems that if one sells a house, the light 
 necessary for the reasonable enjoyment whereof, is derived from and 
 across adjoining land of the same grantor, the easement of light 
 and air over such adjoining lot passes as incident to the house. It. 
 
 12. But such an easement is implied only when necessary, and 
 never as a mere convenience. Ih. 
 
 13. Cebation. The owner of two adjoining lots, one of which was 
 his house lot, conveyed the other "with the restriction and reserva- 
 tion that no building shall be hereafter erected on the above lot," 
 within ten feet of the house lot. Held, that the clause in the deed 
 created an easement or servitude in the lot granted for the benefit of 
 the house lot, and that the right and burden thus created, passed to, 
 and was binding upon all subsequent grantees of the lots. Herrick 
 V. Marshall, 66—436. 
 
 14. Implied grants are not to be favored. If it is intended that 
 an easement shall pass as one of the appurtenances of an estate, it is 
 very easy to have this intention expressed in the deed. If the deed 
 is silent upon the subject, it is no more than fair to the grantor to pre- 
 sume that he did not so intend; and to overcome this presumption, to, 
 require of the party claiming the easement clear proof that it is nec- 
 essary to the beneficial enjoyment of the estate conveyed to him. 
 Bolliffr. B.SM.B. B. Co., 68—173. 
 
 15. The non-user of an easement for twenty years, is evidence of 
 intention to abandon ; but it is open to explanation, and may be con- 
 trolled by proof, that the owner had no such intention while omitting 
 to use it. Pratt v. Sweetser, 68 — 344. 
 
 See Damages, p. 156. 
 
 ELECTIONS. 
 
 1. No citizen of this State can be deprived of the right of suffrage 
 under act of Congress of March 2, 1865, c. 79, § 21, until after con- 
 viction and sentence by a court martial of the United States. State 
 v. Symonds, 57 — 148. 
 
 2. Under R. S., 1871, c. 78, § 5, the governor and council can act 
 only upon the returns signed and returned by the proper officers, ex- 
 cept in reference to the number of votes and persons voted for. 
 Opinion, 64 — 588. 
 
ELECTIONS — EMBEZZLEMENT. 195 
 
 3. In canvassing the votes returned to the Secretary of State, the 
 governor and council can not include in the number of votes for Wil- 
 liam H. Smith, votes for W. H. Smith, or W. Smith. Opinion, 64 — 
 596. 
 
 4. Kor can they receive and consider any certificate of municipal 
 oflBcers, that votes with different names, were intended for the same 
 person. lb. 
 
 5. They have no power to correct errors in returns of votes for 
 senators or representatives. lb. 
 
 6. A person elected to fill a vacancy in the office of register of 
 deeds, holds the office only for the remainder of the term. lb. 
 
 7. The governor and council, in the performance of their duty to 
 ascertain what county officers are elected at the general election in 
 September, can not lawfully count the votes of a town, the return of 
 which bears the proper signature of one of the selectmen, and the 
 names of the two other selectmen written by other hands than their 
 own. Opinion, 68—587. 
 
 8. Nor in such case can they lawfully count the votes of a town, 
 the return of which is not attested by the town clerk. lb. 
 
 9. The treaty concluded at "Washington, August 9, 1842, confers 
 the elective franchise on the subjects of the queen of Great Britain, 
 residing on the disputed territory in the north-eastern portion of the 
 State, at the time of the treaty and not otherwise naturalized. Opin- 
 ion, 68—589. 
 
 10. Persons born on the disputed teritory within the present limits 
 of this State, have the same elective franchise as persons born on ter- 
 ritory within the State, over which the British government made no 
 claim. lb. 
 
 EMBEZZLEMENT. 
 
 1. It is not necessary in an indictment against a public officer, for 
 the embezzlement or fraudulent conversion to his own use of money 
 in his possession, and under his control, to allege to whom the money 
 belonged, or that it was the property of another. State v. Walton, 
 62—106. 
 
 2. Nor is it necessary under the provisions of the statute, R. S., 
 1871, c. 120, § 7, declaring such embezzlement larceny, to allege or 
 prove the various facts necessary to constitute the crime of larceny as 
 elsewhere defined. lb. 
 
 3. A collector of taxes is a public officer within the meaning of the 
 act. lb. 
 
196 EQIHTT. 
 
 EQUITY. 
 
 I. 
 
 JUEISDICTION. 
 
 II. 
 
 6BNEKAL PEINCIPLES. 
 
 
 (a) Tbtjst. 
 
 
 (b) Fbaud. 
 
 
 (c) Mistake. 
 
 
 (d) Specific pebfobmance. 
 
 
 (e) Pakt owners and pabtnebs. 
 
 
 (f) Bills to eedeem. 
 
 
 (g) Fob the consteuction op wills, 
 
 III. 
 
 INJUNCTION. 
 
 IV. 
 
 PLEADING. 
 
 
 (a) Pakties. 
 
 
 (b) FOBM OP BILL AND AN8WEB. 
 
 
 (c) DEMtTBBBBS. 
 
 V. 
 
 PRACTICE. 
 
 VI. 
 
 EVIDENCE. 
 
 I. JURISDICTION. 
 
 1. Remedy at Law. When a party has a plain, adequate, and 
 complete remedy at law, equity will not lie. Spofford v. Bangor & 
 B. R. B. Co., 66—51. 
 
 2. In a case of disseizin, the defendant having actual possession, 
 and claiming to hold it by legal right, the complainant can not substi- 
 tute a bill in equity for a writ of entry, and injunction to stay waste, 
 pendente lite. 1 h. 
 
 3. A bill in equity cannot be maintained when its only object is to 
 recover a sum of money alleged to be in the hands of the defend- 
 ants, the plaintiff having an adequate remedy at law. Crooher v. 
 Sogers, 58—339. 
 
 4. When by mistake, accident or fraud, an assignment of a nego- 
 tiable note is made without an indorsement, a court of equity will 
 compel the assignor to do whatever may be necessary to render the 
 assignment available to the assignee. Gruptil v. Some, 63 — 405. 
 
 5. A GUAEDiAN may maintain a biU against the administrator of a 
 deceased guardian of the ward, to compel the conveyance of a vessel, 
 the legal title to which was in the respondent's intestate, and which 
 was a part of the estate of the ward. Fogler v. Buck, 66 — ^205. 
 
 6. In such case the ward is properly a party to the bill, and the 
 conveyance should be made to him. lb. 
 
 7. Voluntary Conveyance. A court of equity will not set aside 
 a voluntary conveyance, as between the parties, unless on the ground 
 of fraud. Stover v. Poole, 67—217. 
 
 8. Statute of Limitations. While the court in equity will ordi- 
 narily give full effect to the statutes of limitations, in doing so it acts 
 rather upon the principles upon which, as positive rules, they are 
 founded, than upon the rules themselves ; so that, if, by the laches of 
 the complainant, the respondents have lost their evidence, or are 
 placed in a disadvantageous position, the court will deal with the 
 
EQUITY. 197 
 
 remedy as barred in equity, though the full term of the statute of 
 limitations may not have elapsed ; and, on the other hand, where there 
 has been no change in the condition of the parties, and peculiar cir- 
 cumstances justify the delay, appropriate relief will not be refused, 
 although a strict application of limitation rules might seem to require 
 it. Lawrence v. Rokes, 61 — 38. 
 
 9. Bailment. The plaintiff conveyed land by warranty deed, but, 
 there being some doubt about the plaintiff's title, the consideration 
 money was deposited with the defendant, to "remain with him as col- 
 lateral to said warranty for a reasonable time." Seven months after, 
 the grantee having died, and the estate passed to his devisee, the 
 plaintiff demanded the money of the defendant, and on his refusal to 
 give it up brought assumpsit. Held, that it could not be maintained, 
 but that the proper remedy was in equity. JRamsdell v. Butler^ 
 60—216. 
 
 10. Where there is a general pledge of personal property, neither 
 the time of redemption, nor the manner and time of sale being speci- 
 fied in the contract, the appropriate remedy of the pledgee, when his 
 rights or powers are in any manner questioned or denied, is in equity. 
 Boynton v. Bayrow, 67 — 587. 
 
 11. In such case the court may order a sale of the property, or 
 make other proper order respecting its disposition. lb. 
 
 12. Laches destroys the claim to relief in equity. Grooker v. 
 Houghton, 61—337. 
 
 13. Bill oe Review. In equity a bill for review will be sustained 
 only upon the ground of newly discovered evidence, or for error 
 apparent upon the face of the record. lb. 
 
 14. A bill in equity was brought by the complainant for the pur- 
 pose of obtaining a settlement of partnership affairs. In 1861 a 
 receiver was appointed, and in 1864 the affairs of the firm were 
 referred to a master for adjustment. In 1872 the master made his 
 report, finding, that in view of the condition of the accounts of the 
 firm, covering a period of twenty-nine years, an interest account was 
 uncalled for, and was not stated ; that a certain portion of the moneys 
 now in the hands of the receiver was and still is the individual prop- 
 erty of the complainant, and should be deducted before a division of 
 the assets. Held, that as it did not appear that the sum awarded the 
 complainant did not include interest, and the report did not show how 
 it came into the receiver's hands, there was no error apparent upon 
 the face of the proceedings, and the complainant could not maintain 
 a bill for a review. lb. 
 
 15. CoEPOEATiON. Where the rights of pew holders in a meeting 
 house, owned by a corporation, are invaded by permission of the cor- 
 poration to which they belong, their remedy must be sought in equity. 
 Craig v. Franklin County, 58 — 479. 
 
 II. GENERAL PRINCIPLES. 
 
 (a) Tbitst. 
 
 (b) Fbatjb. 
 (o) Mistake. 
 
 (d) Specific pbbfokmance. 
 
 (e) Bills to Eedeem. 
 
 (f) CONSTBUCTION OP WILLS. 
 
198 EQIHTY. 
 
 (a) Trust. 
 
 16. A court of equity will not permit a trust to fail for want of a 
 trustee. Swasey v. American jBible Society, 57 — 523. Slade v. 
 Patten, 68—380. 
 
 17. The TEEASUEBE of a corporation is not a trustee in any such 
 sense as to give the court equity jurisdiction in controversies between 
 the corporation and the officer. Piscataqua M. <& F. Ins. (Jo. v. 
 mil, 60—178. 
 
 18. In an abjustment between a trustee and the beneficiary under 
 the trust, if there is an "inadequacy of price and inequality of advan- 
 tages in the bargain," equity will set aside a release given by the ben- 
 eficiary to the trustee. Crocher v. Pierce, 61 — 58. 
 
 19. Where a trustee in a marriage settlement, by a transfer of the 
 investment without the consent in writing of the cestui que trust and 
 her husband, had become liable for a loss arising from the transfer; 
 the beneficiary after the death of her husband, upon a settlement with 
 the trustee, in consideration of certain stock of only nominal value, 
 released all claim upon the trustee, it was held, that it was a case of 
 "inadequacy of price and inequality of advantages in the bargain," 
 and that equity would set aside the release and afford relief, fb. 
 
 20. The HEiES of a party who received a conveyance of real estate 
 at the request of a party who paid the consideration therefor, are lia- 
 ble, in equity, to be compelled to convey it to such party, though, since 
 the commencement of process to compel such process, they may have 
 conveyed the property to a third party. Rines v. Patchelder, 62 — 95. 
 
 21. CoNVETANOE Pendente Lite. If a person erects buildings 
 upon land after having made a contract for its purchase from the 
 holder of the legal title, but does not receive his deed until after the 
 commencement of a bill in equity by complainants, asking for a con- 
 veyance of the land on the ground that the holder of the legal title 
 held it subject to a resulting trust in their favor, he runs the risk of 
 a conveyance pendente lite. lb. 
 
 22. Accounts. When a bill for a conveyance is brought by the 
 cestui que trust against the heirs of the trustee, the respondents are 
 to be reimbursed for repairs made by them, necessary to prevent 
 waste. lb. 
 
 23. Also for the increased value of the premises by reason of 
 improvements made during an interval of time while the complainant 
 neglected to afford them satisfactory evidence of the existence of the 
 trust, of which they were ignorant, and they are to account for rents 
 and profits. lb. 
 
 24. When a voluntary conveyance is made for an illegal purpose, 
 as to defraud or delay creditors, no trust arises which can be enforced 
 in equity, by the grantor or his heirs. Burleigh v. White, 64 — 23. 
 
 25. Insolvent Tettstee. A bill in equity may be maintained 
 against an administrator of an insolvent estate for property held in 
 trust by his intestate, which has come into his hands, if the trust 
 property can be identified. Goodell v. Buck, 67 — 514. 
 
 26. It may be maintained for money so held, as well as for other 
 property, if it can be identified. lb. 
 
 27. The burden is upon the complainant to identify the money as 
 the trust fund so held. lb. 
 
EQITETY. 
 
 199 
 
 28. If the money was confounded in the general mass of his prop- 
 erty by the trustee the bill can not be maintained. lb. 
 
 29. Tendeb. In a bill for the enforcement of an alleged trust in 
 relation to real estate, by deed absolute on its face, but designed as 
 security for loans, no allegation of a tender of the amount due is 
 necessary as in bill to redeem statutory mortgage. Chamberlain v. 
 Lancy, 60—230. 
 
 (b) Fraud. 
 
 30. A bill alleged substantially, that the respondent, with intent to 
 defraud the complainant, wilfully and knowingly made to him a series 
 of false and fraudulent representations, specifically set out, as to mat- 
 ters of fact relating to a sewing machine company ; that by means of 
 such representations he induced the complainant to purchase a large 
 number of worthless shares in a mock company ; that the complainant, 
 in exchange therefor, conveyed to him several lots of land, situate in 
 this State ; and concluded with an offer to return the stock, and a 
 prayer that the conveyance be decreed void and for a re-conveyance. 
 On demurrer, held, that the bill be sustained. Clark v. Robinson, 
 58—133. 
 
 31. Where compensation in damages is the only relief that can be 
 given in a case of fraud, the court has no jurisdiction in equity. JPis- 
 cataqua F. <h M. Ins. Co. v. JBRll, 60 — 178. Crooher v. Rogers, 
 58—339. 
 
 32. Feaudtjlbnt Conveyances. When the debtor never had the 
 legal title, there must be a judgment against the debtor, and the exe- 
 cution placed in the hands of an officer, and a return by him that he 
 could not obtain satisfaction, before the creditor can seek relief in 
 equity. Griffin v. Nitcher, 57—270. 
 
 33. When a husband pays for land and causes the conveyance to be 
 made to his wife, the fact that the husband has other property which 
 may be reached does not oblige the creditor to take such other prop- , 
 erty for the purpose of satisfying his debt, in preference to the land. 
 Gray v. Chase, 57 — 558. 
 
 34. If the creditor of a husband would hold real estate conveyed 
 to the wife by a bona fide grantee of the husband, and paid for out of 
 his property, he must do so in equity, and not by a levy. Webster v. 
 Folsom, 58—230. 
 
 35. It makes no difference that the husband's conveyance was made 
 with the design of defrauding creditors, and that the wife participated 
 in the design, and joined in the deed for the purpose of releasing her 
 dower. lb. 
 
 36. If a person having the legal title to land incurs a debt and sub- 
 sequently conveys the land, in fraud of his creditor, to his wife, who 
 makes a similar conveyance thereof to her brother, in trust for her- 
 self, the creditor may extend his execution for the debt, upon the 
 land, and perfect his title by a bill in equitv. Wyman v. Fox, 
 59—100. 1 . ^ 
 
 37. When a creditor levies his execution upon land conveyed by 
 the debtor for the purpose of defrauding his creditors, a bill in equity 
 instituted by him to set aside the fraudulent conveyance is not to 
 obtain a title, but to remove any possible cloud on, his title. Wyman 
 V. Richardson, 62 — 293. 
 
200 EQTTITY. 
 
 38. When a creditor levies his execution upon land fraudulently- 
 conveyed by the debtor, and afterward by proceedings in equity 
 obtains a release from the fraudulent grantee, his title is acquired from 
 the levy and not from the release. lb. 
 
 39. When a creditor seeks, by a bill in equity, to obtain payment of 
 his debt from real estate paid for by the debtor, but conveyed to his 
 wife, a levy is unnecessary, if the debtor has never had title to the 
 land, and fraudulently conveyed it. Hamlin v. Mc Gillicuddy, 62 — 268. 
 
 40. Intent. In a bill by a judgment creditor to obtain payment 
 of his debt from property purchased and paid for by the debtor, but 
 conveyed to the debtor's wife (R. S., 1871, c. 61, § 1), no allegation 
 of a' fraudulent intent on the part of the wife is necessary. lb. 
 
 41. The allegations in the bill that the husband purchased the land 
 described, paid the consideration himself, and had the conveyance 
 made to his wife to keep the land from his creditors, sufficiently state 
 that the purchase was made with the property of the husband. lb. 
 
 42. A EBTUEN OF A SHBEiPF on an execution that he "could find no 
 money, nor any goods or chattels" of the debtor to satisfy the same, 
 and that he "returned the said execution unsatisfied," is sufficient to 
 authorize the creditor to institute a bill to obtain payment of his debt 
 from property paid for by the debtor, but conveyed to his wife. Ih. 
 
 43. When the legal title to land paid for by the husband has never 
 been in him, the creditor need not make a levy, but a return of nulla 
 bona will be a sufficient preliminary proceeding. But when he has 
 levied he may then invoke equity to perfect his statute right. Call 
 V. Perkins, 65—439. 
 
 44. In such case it is sufficient if the bill contains allegations to 
 meet the substantive requirements of the statute, setting forth the 
 conveyance, payment therefor in whole or in part by the husband, and 
 that the debt for the payment of which the land is sought to be taken 
 accrued before the conveyance. Ih. 
 
 45. Before a judgment creditor can resort to equity to aid in the 
 collection of his debt he must show that all legal remedies have been 
 exhausted. Howe v. Whitney, 66 — 17. 
 
 46. Judgment was recovered in 1871 and execution taken out, 
 which did not appear to have been placed in the hands of an officer. 
 In 1873 the defendant died, and shortly after an alias execution was 
 taken out, on which an officer returned that he could find no property 
 of the debtor. Held, that the plaintiffs had not exhausted their legal 
 remedies, and could not maintain a bill to enforce the collection of 
 the judgment from real estate alleged to have been conveyed by the 
 debtor, in his lifetime in fraud of creditors. lb. 
 
 47. In a bill by a creditor who has levied upon land fraudulently 
 conveyed by the debtor an allegation that the conveyance was made 
 without valuable consideration ; that the grantor, at the time of the 
 conveyance, was in debt and insolvent ; that he has been in debt ever 
 since ; that he has exercised acts of ownership over the property since 
 the conveyance ; that his object in making the conveyance was to 
 delay, hinder and defraud his creditors ; that the complainant became 
 a creditor after the conveyance, and that the conveyance is void as to 
 the claim of the complainant, is sufficient. Laughton v. Harden, 
 68—208. 
 
 See Sampson v. Alexander, 66 — 182. 
 
EQUITY. 201 
 
 (c) Mistake. 
 
 48. Where more than twenty years has elapsed since the delivery 
 of a deed, and the estate has been sold by order of the judge of pro- 
 bate to pay the debts of its owner, it is too late to ask the aid of a 
 court of equity, to correct a mistake of the grantor, in neglecting to 
 attach a legal condition to the deed. JVbrris v. JLaberee, 58 — 261. 
 
 49. A deed which is made as the parties intended, without any 
 fraudulent insertion or negligent omission of words, but which La 
 legal effect is different from the expectation of the parties, will not 
 be corrected in equity. lb. 
 
 50. Where the plaintiff bargained one parcel of land, arid, by mis- 
 take of both parties, conveyed another parcel to the respondent, the 
 equitable jurisdiction of the court will authorize it to reform such 
 deed according to the intention of the parties, and by decree, to pro- 
 tect the interests of such parties as may legally claim to hold the correct 
 premises through and under the respondent. £urr v. Hutchinson, 
 61—514. 
 
 51. Almost any form of injunction can be employed in reforming a 
 deed which may be adapted to the special circumstances of the case. 
 lb. 
 
 52. It seems that a mistake in the description of the land in a levy, 
 will not be corrected in equity. Young v. McGowan, 62 — 56. 
 
 See Post, 61. 
 
 53. The mistakes which equity will correct are not those which are 
 the results of negligence, and might have been avoided by ordinary 
 care. lb. 
 
 54. The officer holding an execution, seized certain land belonging 
 to the debtor, and intended to levy the execution upon it, but by mis- 
 take, the description in the return actually included land of another 
 person, and did not include any land of the debtor. The creditor 
 entered into possession of the land, intended to have been levied upon. 
 The debtor conveyed the same premises to the defendant in consider- 
 ation of future support. After the death of the debtor, a bill to re- 
 form the levy was commenced but was not sustained. lb. 
 
 55. In order to sustain a bill to correct a mistake in a written in- 
 strument, the error must be on both sides. lb. 
 
 56. When an insurance company undertakes to insure the charter 
 of a vessel, after being informed that no copy of the charter has been 
 received, and it is not known how many ports she will be obliged to 
 use, and through mistake the policy is so written as to limit the vessel 
 
 .to one port, when her charter requires her to use two, a court of 
 equity will order the policy to be reformed, so as to describe the voy- 
 age correctly. National Traders Bank v. Ocean Insurance Compa- 
 ny, 62—519. 
 
 57. To justify the reformation of a bond which has been assigned 
 to a bona fide holder, for a valuable consideration, not only must the 
 alleged error be proved, but that the assignee had notice of it at the 
 time of the assignment. Foster v. Kingsley, 67 — 152. 
 
 58. Where the bond is for the conveyance of an unincumbered 
 title to real estate, notice to the assignee of the existence of an out- 
 standing mortgage is not notice of a mistake in the bond, in that it 
 was intended to be for the conveyance of the equity only. lb. 
 
202 EQUITY. 
 
 59. A deed of gift ■will not be set aside merely on the ground that 
 the grantor did not understand the legal effect of the instrument. At 
 any rate, not when the grantor executed the instrument with "a knowl- 
 edge of its contents and purport." Stover v. Poole, 67 — 217. 
 
 60. To set aside a conveyance on the ground of mistake of law, it 
 must appear that the mistake was of so fundamental a character that 
 the instrument fails utterly to carry out the intention of the grantor, 
 or that an unconscionable advantage has been gained by the error. 
 lb. 
 
 61. Levy. A court of equity will not compel a debtor, or his gran- 
 tee, to convey to an execution creditor land levied upon by the latter 
 when the levy is void, because not made in conformity with the re- 
 quirements of the statute. Esten v. Jackson, 68 — 292. 
 
 (d) Specific performance. 
 
 62. Where, by the terms of the decree, the complainant is entitled 
 to a clear conveyance of land from the respondent, a deed of the 
 premises executed by the latter, reciting that "having conveyed said 
 land" to a third person, "I now make this conveyance by order of 
 court, in order to purge myself of contempt in not conveying said 
 land according to said order of said court," is not suiEcient to purge 
 the contenipt, the complainant being entitled to a deed without the 
 recital. Snowman v. Harford, 57 — 397. 
 
 63. Whoever takes a title to real estate in litigation, pendente lite, 
 will be bound by the judgment or decree in the suit. Crooker v. 
 Crooker, 57 — 395. Snowmian v. Harford, 57 — 897. 
 
 64. This rule is available in a suit at law after the decree has been 
 made. Snowman v. Harford, 62 — 434. 
 
 65. Specific performance of a contract not signed by all the persons 
 named as parties thereto, and of which the claimant obtained posses- 
 sion without the consent of him who did sign it, will not be decreed ; 
 especially where the complainant has not fully performed his part of 
 the conditions precedent of the instrument. Mclntire v. Bowden, 
 61—153. 
 
 66. One who takes a conveyance of land pending a bill to compel 
 performance of an agreement for its conveyance, and places a build- 
 ing thereon, should have a reasonable time to remove it as personal 
 property. JRines v. Hachelder, 62 — 95. 
 
 67. For the repairs and improvements made by the respondents in 
 such a bill necessary to prevent waste, they are to be re-imbursed. Ih. 
 
 68. They are also. to be re-imbursed for the increased value of the 
 premises by reason of improvements made during an interval of time 
 while the complainant neglected to afford them satisfactory evidence 
 of his rights, and to enforce them, and are to account for rents and 
 profits. lb. 
 
 69. Upon a bill to enforce a written contract for the conveyance of 
 land, the defendant proved, without objection, that by a contempor- 
 aneous verbal agreement a certain incumbrance was to be excepted 
 from the covenants, and that he had refused to convey without guard- 
 ing against the incumbrance. Held, that an objection to the testimony 
 made at the argument came too late, and a decree was entered that 
 
EQUITY. 203 
 
 the conveyance be made with the exception claimed. Chamberlain 
 V. Black, 64—40. 
 
 70. When the parties to a written contract have omitted by mutual 
 consent to perform some stipulation for such a length of time, that 
 neither would have the right to call upon the other to perform it, and 
 such omission does not appear to have affected the essential interests 
 of the parties in other respects, it will not defeat the right of a party 
 to a decree for specific perfonnance. Portland, Saco <& P. It. M. 
 Co. V. Grand Trunk Railway, 63 — 90. 
 
 71. A bill for the specific performance of a contract is addressed to 
 the sound discretion of the court, ^nell v. Mitchell, 65 — 48. 
 
 72. If a contract for the conveyance of real estate is unconscion- 
 able, or ambiguous, or through fraud or mistake, or want of skill on 
 the part of the draughtsman, does not truly embody the agreement 
 of the parties, or if for any other reason the contract is one, which, in 
 equity and good conscience ought not to be specifically enforced, the 
 court will decline to interfere. Ih. 
 
 73. Lack of mutuality in a contract for the conveyance of land is 
 often sufficient to induce the court to withhold a decree for the spec- 
 ific performance. Ih. 
 
 74. So is a long delay (fourteen years) on the part of the com- 
 plainant in electing, whether he would <take the land or not. Ih. 
 
 75. The defendant agreed in writing to convey to the complainant 
 certain land which was then subject to a mortgage. Upon a bill to 
 enforce specific performance it was held, that as the complainant was 
 entitled to an unincumbered title, if any, and as he did mot offer to 
 take such a title as the defendant could give, the court would not 
 make the decree prayed for, since it was out of the power of the 
 defendant to comply with it. Ih. 
 
 (e) Part owners and partners. 
 
 76. Pabt ownbes. Upon a bill in equity filed by one part owner 
 of a vessel against the others, for an adjustment of the earnings, the 
 decree should settle the accounts between the several part owners as 
 if each was a plaintiff in a bill against the others, and an execution 
 may issue in favor of each part owner to whom a balance is found 
 due against such as are equitably liable to pay the same. Little v. 
 Merrill, 62—328. 
 
 77. Account. In matters of account between owners in common 
 of pelrsonal property, if the accounts are complicated, the court will 
 take equity jurisdiction. Carter v. Bailey, 64 — 458. 
 
 78. But when the account is simple and all upon one side, and can 
 be fully settled by a judgment in an action of assumpsit, and no dis- 
 covery is sought, equity jurisdiction will be declined. Ih. 
 
 79. Fbaud. The owners of a vessel authorized their agent to 
 charter her to the United States for a certain sum, and through the 
 intervention of J. B., a charter at a greater sum was secured. The 
 whole amount paid by the United States came into the hands of A. 
 S., one of the owners, who, by consent of the other owners, paid J. B. 
 a portion of the difference between the sum paid by the United States 
 and the sum the owners agreed to take, and retained the balance in 
 his own hands. Held, that although the contract made through J. B. 
 
204 EQUITY. 
 
 ■was against public policy, and although A. S. may have fraudulently 
 induced the other owners to assent to a charter at the lower rate, yet 
 the full knowledge by the owners of the real rate before any attempt 
 to collect the ship's dues, and their unqualified agreement to claim only 
 the lower rate, followed by a settlement understandingly made upon 
 that basis, deprived them of all claim for the interference of a court 
 of equity to collect that part of the difference between the lesser and 
 greater rates, which had been paid to J. B. Sovey v. Storer, 63 — 486. 
 
 80. Paetneeship. Equity and not assumpsit is the appropriate 
 remedy for one whose membership and consequent right to the profits 
 in a partnership are denied, and to whom no portion of the profits 
 have been set apart. Pray v. Mitchell, 60 — 430. 
 
 81. A demand for a settlement does not affect a bill for an account 
 between partners, except as to costs. Lawrence v. Mokes, 61 — 38. 
 
 82. When the interest of one partner in the partnership goods is 
 attached by his private creditor, the creditor or purchaser at the 
 sale on execution has a right to have an account of the partnership 
 affairs settled by a court of equity. Hacker v. Johnson, 66 — 21. 
 
 83. It seems that the creditor is entitled to have this account taken 
 after the sale, unless the debtor elects to have it taken before the sale, 
 by application on his part to a court of equity therefor, which he would 
 probably have the right to do. lb. 
 
 (f) Sills to redeem. 
 
 82. Wheee Beought. A bill to redeem land may be brought in the 
 county where the defendant resides, although the land lies in two 
 other counties. Smithy. Larrabee, 58 — 361. 
 
 83. Accounts. In a bill to redeem a mortgage conditioned for the 
 support of the mortgagee, brought by an assignee of the mortgager 
 against an assignee of the mortgagee, the complainant can not object 
 that the respondent is not charged with the rents and profits after the 
 buildings on the premises were burned, and the complainant has col- 
 lected the insurance and placed a tenant of his own on the premises. 
 Mitchell V. Burnham, 57 — 314. 
 
 84. Nor can the complainant object to an allowance for the support 
 of the beneficiaries actually incurred by the respondent after she had 
 assigned for a time the legal title for their benefit. Ih. 
 
 85. Nor for an allowance for future support, or off the premises, on 
 failure of the assignee of the mortgager to furnish it. Ih. 
 
 86. A mortgagee must account, in equity, to a doweress seeking to 
 redeem, for the rents and profits received from the date of his entry 
 into possession, and not merely from the time the account is demanded. 
 Dela V. Stanwood, 62 — 574. 
 
 87. Dbsceiption. In the description of the premises sought to be 
 redeemed, mistakes Ln the names of the owners of adjoining estates 
 and the omission of one boundary line are immaterial, if enough 
 remains to identify the land. Milliken v. JBailey, 61 — 316. 
 
 88. Two Mortgages. When the same person holds as assignee 
 of two mortgages the purchaser of the equity of redemption may main- 
 tain a bill to redeem from only one of them. Ih. 
 
 89. Nor will the expiration of the statute term of foreclosure pro- 
 
EQUITY. 205 
 
 oeedings upon the other mortgage prevent a decree in his favor as to 
 the mortgage he seeks to redeem. lb. 
 
 90. Demand. When a bill to redeem is brought by five complain- 
 ants, claiming to redeem two mortgages, a demand by one of the 
 complainants made long before the title of the others accrued will not 
 enure to their benefit. Wallace v. Stevens, 64 — 225. 
 
 91. When a mortgager sells parts of the mortgaged premises, at 
 different times, that which he retains, will, in equity, be held primarily 
 responsible for the whole debt. Ih. 
 
 92. Tendee. When a mortgagee, has upon demand, rendered a 
 true account of the amount due upon the mortgage, a bill in equity to 
 redeem cannot be maintained, unless the plaintiff first tenders to the 
 mortgagee the amount due, or is prevented from so doing through the 
 fault of the mortgagee. J)insmore v. Savage, 68 — 191. 
 
 93. When a bill to redeem is brought by a second mortgagee against 
 a first mortgagee, the latter can not interpose the objection that the 
 second mortgage \S fraudulent against the creditors of the mortgager. 
 It makes no difference to him who redeems his mortgage. Crooker 
 V. Holmes, 65 — 195. 
 
 (g) Construction of wills. 
 
 93. R. S., 1871, c. 77, § 5, secures to the parties in interest the right 
 to have the opinion of the court as to the legal effect of a will whether 
 any actual controversy in relation thereto has arisen or not. Baldwin 
 v. Bean, 59—481. 
 
 See Post, 122. 
 
 III. INJUNCTIOlsr. 
 
 94. A bill praying for an injunction against the use and occupation 
 of complainant's land, taken for the location of a railroad, must allege 
 a specific demand on a day certain, more than thirty days before the 
 filing of the bill. A general allegation, though often requested, etc., 
 is not sufficient. Mboers v. JSinnebec <& Portland B. B. Co., 58 — 279, 
 
 95. An administrator may be enjoined from casting a cloud, by 
 means of a fictitious sale, upon the title of property once held by his 
 intestate. Gerry v. Stimpson, 60 — 186. 
 
 96. In cases of petition for injunction to prevent the payment of 
 money by a town treasurer, the common practice of continuing the 
 temporary injunction from term to term, until the case is ready for 
 final hearing, unless it is sooner dissolved on motion, is not in contra- 
 vention of R. S., 1857, c. 77, § 10. Marble v. McKenney, 60—332. 
 
 97. When an entry on the docket, "temporary injunction continued 
 to the end of next term, and time of testimony extended to same 
 time" is followed the next term by the entry "continued as before," 
 the latter entry has the same effect as the former, lb. 
 
 98. An injunction will not be granted to stay or prevent a nuisance 
 under R. S., c. 17, unless an indictment, complaint or action for the 
 nuisance be pending in court. Nor, under the general equity powers 
 of the court, unless the complainant's rights have been settled in a 
 suit at law, or long enjoyed without interruption, or there is imminent 
 danger that the threatened injury will result in irreparable damage 
 Varney v. Pope, 60 — 192. ' 
 
206 EQUITY. 
 
 99. When the complainant is out of possession, and the respondent 
 is in possession of real estate under a claim of right, the court will 
 refuse to interfere by granting an injunction to restrain acts of tres- 
 pass, unless there be fraud or collusion, or unless the acts perpetrated 
 or threatened are so injurious as to lead to the destruction of the 
 estate. SpoffordY. Bangor tfc -B. JR. H. Co., 66 — 51. 
 
 100. It appears that he must also show that there is an action at 
 law pending between him and the defendant in possession, to try the 
 right between them. lb. 
 
 101. "When the defendant is in possession under a claim of title, as 
 against the plaintiff, and in no way connected with him in estate, a 
 court of equity will not enjoin him from making a conveyance. lb. 
 
 IV. PLEADING. 
 
 (a) Parties. 
 
 (b) EOKM OF BILL AITD ANSWER. 
 
 (c) Demitbbebs. « 
 
 V 
 
 (a) Parties. 
 
 102. Complainants. A bill in equity can not be maintained in the 
 name of one who has assigned his interest in the subject matter of 
 the suit. The objection may be taken by demurrer, or at the hearing. 
 Crooker v. Rogers, 58 — 339. 
 
 103. Trustees appointed to take charge of the effects of a corporar 
 tion, under c. 46, § 19, R. S., 1857, can not maintain a bill in equity 
 in their own name, and that of the corporation in behalf of the credi- 
 tors or stock holders, as such, against the treasurer of the company for 
 injuries to the property of the company caused by his misconduct. 
 Piscataqua F. & M. Ins. Co. v. Sill, 60—178. 
 
 104. Where the wife of a grantor, in a deed which has been deliv- 
 ered, receives it for the purpose of releasing her dower in the prem- 
 ises, and refuses to surrender the deed, or the consideration for her 
 release, the grantee is the proper party to seek redress, though he has 
 conveyed the premises to another. Gerry v. Stimpson, 60 — 186. 
 
 105. The description of the land, in a levy, by mistake, did not 
 includ'e any of the land of the judgment debtor. The judgment 
 creditor quitclaimed the premises to A., who conveyed them with 
 warranty to B., the deeds in both cases using the language of the 
 levy. Held, that A. and B. were not properly joined as complainants 
 in a bill to correct the mistake in the levy, even if the original cred- 
 itor could have maintained the bUl against the debtor. Young v. 
 McG-own, 62—56. 
 
 106. Respondents. In a bill for the enforcement of an alleged 
 trust in relation to real estate by the administrator of the deceased 
 cestui que trust, who is also an heir, all the heirs should be made par- 
 ties, although they live out of the State. Chamberlain v. Lancy, 
 60—230. 
 
 107. In a bUl to redeem from a mortgage, the mortgagee is prop- 
 erly made a party, although he has assigned his interest in the mort- 
 gage, if he has received rents and profits while in possession, or rents 
 and profits accrued during that time which he ought to have collected 
 and accounted for, or if any payments have been made to him. Mil- 
 liken V. Bailey, 61 — 316. 
 
EQtriTY. 207 
 
 108. A general demurrer to a bill in equity will not be sustained for 
 want of parties, when it appears that the bill relates to several dis- 
 tinct contracts, and that as to some of them there is no apparent want 
 of parties, although as to others, parties who should have been joined 
 are omitted. If the respondent would avail himself of the objection 
 he should answer to so much as makes a case with proper parties and 
 demur to the residue. Weston v. Blake, 61 — 452. 
 
 109. In a bill to reform a deed, in which, by mutual mistake of the 
 parties, the premises described are not the premises intended to have 
 been conveyed, third persons interested in the premises should be 
 made parties. Burr v. Hutchinson, 61 — 514. 
 
 110. But if no objection is taken to their omission, and it is not 
 proposed to make any decree prejudicial to them, their absence may 
 be regarded as immaterial. Ih. 
 
 111. PuEOHASEK Pendente Lite. It is not necessary that one 
 who buys real estate, pending a bill to compel specific performance of 
 a contract for its conveyance be made a party to the bill. Bines v. 
 BacJielder, 62 — 95. 
 
 112. Stockholdee. a bill in equity brought by the receivers of 
 a bank to compel the stockholders to "contribute to the payment of its 
 debts, not bad on demurrer for non-joinder of some of the stock holders, 
 as defendants, when the assessment for the deficit is upon all of the 
 shares and the liability of those named as defendants is not increased 
 by the non-joinder of the others. Baker v. Atkins, 62 — 205. 
 
 113. When one who derives an unquestioned title from a cestui que 
 trust, brings a bill for a conveyance, to which he is entitled, from par- 
 ties deriving an uncontroverted title from the trustee, it is not neces- 
 sary that those from whom either the parties, plaintiff or defendant, 
 derive their title be made parties to the bill. Frost v. Frost, 63 — 
 899. 
 
 114. Heirs. When the heirs of the trustee have been divested of 
 all their interest in the land, by a sale by the administrator, they need 
 not be made parties to a bill to enforce the trust. Bates v. Surd, 65 
 —180. 
 
 115. When the legal title to land, subject to a trust, is in a wife 
 who is chargeable with notice of the trust, and her husband occupied 
 the premises under her, and a joint reception by them of the rents 
 and profits is admitted, a bill to declare the trust may be maintained 
 against both. lb. 
 
 116. Moetgagbe. If the complainant in a bill to enforce a trust 
 does not claim any rights as against the mortgagee of the land, such 
 mortgagee does not seem to be a necessary party to the bill. Bates v. 
 Burd, 65—180. 
 
 117. Minor. When a bill in eVjuity is brought to enforce a trust, 
 the trustee, though a minor, must be made a party. It cannot be 
 maintained against the guardian of such minor alone. Wakefleld v. 
 Marr, 65—341. 
 
 _ 118. Infants must be made parties to bills in equity affecting their 
 title to real estate. Tucker v. Bean, 65 — 352. 
 
 119. It is a general rule that an infant is to have six months after 
 coming of age to show against a decree. Berry v. Perry, 65 — 400. 
 
 120, Though a suit may proceed against an infant defending by his 
 
208 EQUITT. 
 
 guardian, no decree for a conveyance wil] be made against him till he 
 comes of age. lb. 
 
 121. Widow. A widow having an apparent right of dower in real 
 estate, which is held in trust, is properly made a party to a bill to 
 enforce the trust, and for a new trustee. Mc Olellan v. Mc Olellan, 
 65—500. 
 
 122. CoisrsTETrcTioN of Will. When a bill in equity is brought 
 to ascertain the construction of a will, all persons named therein, 
 whose rights and interests are involved, should be made parties. 
 Hawes v. Bragdon, 66 — 534. 
 
 123. Feaudulbnt GrEANTOR. Where a creditor levies upon the 
 real estate which his debtor has conveyed to another in fraud of cred- 
 itors, and then seeks by a bill in equity to obtain from the grantee a 
 release of his title to the premises levied upon, the debtor need not be 
 made a party to the bill. Laughton v. Harden, 68 — 208. 
 
 124. If the debtor is joined as a party in such case the bill will 
 not be dismissed on that account. lb. 
 
 125. Bill to Redeem. All the owners of a right in equity to 
 redeem real estate under mortgage must be made parties to a bill to 
 redeem. If any one of them refuses to become a party plaintiff, he 
 must be made a party defendant. Southard v. Sutton, 68 — 575. 
 
 126. NoN EESiDENT. The fact that one of the parties having an 
 interest in an equity of redemption resides out of the State, is no ex- 
 cuse for omitting to make him a party to a bill to redeem. lb. 
 
 (b) Form of bill and answer. 
 
 127. Veeification. A bill in equity inserted in a writ of attach- 
 ment need not be signed nor verified by oath unless a discovery or an 
 injunction is sought. HaJcer v. Athins, 62 — 205. Frost v. Frost, 
 63—399. 
 
 128. Inteeeogatoet. When a bill for relief is inserted in a writ 
 of attachment, the summons to answer may be regarded, on demurrer, 
 as a sufficient general interrogatory ujider our rules, the bill itself 
 showing good ground of action. Hamlen v. Mc Gillicuddy, 62 — 268. 
 
 129. A bill is MULTiEAEiotrs only when it joins causes of relief so 
 separate and distinct in their nature that they ought not to be joined. 
 Weston V. Blake, 61 — 452. 
 
 130. Impeetinence. Matter in an answer in equity which can not 
 be put in issue or given in evidence may be excepted to as imperti- 
 nent. Spaulding v, Farwell, 62 — 319. 
 
 131. In an answer which virtually admits the allegations of the biU 
 and sets up the statute of limitations, it is impertinent to go further, 
 and as an excuse for such a defence, assert that the complainant is 
 indebted to the respondent in certain other matters not connected 
 with the transactions set forth in the bill. lb. 
 
 132. A bill against an administratrix, and an infant son of the intes- 
 tate, alleging that the intestate held certain land in trust for the 
 complainant, was held defective in that, (1) it did not allege except 
 inf erentially that the intestate was dead ; (2) or that he died seized of 
 the alleged trust ; (3) or that the respondents had or claimed to have 
 any claim or title to the premises ; (4) or that a payment alleged to be 
 
EQUITY. 209 
 
 in notes of the intestate were furnished by the complainant or for his 
 benefit ; (5) nor did the bill specify the relief desired, or the manner 
 in which it was to be afforded. Perry v. Perry, 65—400. 
 
 133. In equity, although the respondent may set up new facts not 
 stated in the bill, a decision of the issues thus raised in favor of the 
 complainant will not entitle the plaintiff to relief, unless founded upon 
 some allegation in the bill. Stover v. Poole, 67 — 218. 
 
 134. Where in a bill in equity, there was an allegation, that certain 
 mortgagees consented to an assignment of the equity of redemption, 
 such allegation was held sufficient, whether or not the law requires 
 such consent to be in writing. Bryant v. Jackson, 59 — 165. 
 
 (c) Demurrers. 
 
 135. In equity to sustain a general demurrer to the whole bill, it 
 must appear that there is no part which should be answered. If the 
 bill is good in part and bad in part, the defendant should answer to 
 that which is good and demur to that which is bad. 'Weston v. Blake, 
 61—452. 
 
 136. When the total sum to be raised by an assessment upon the 
 stock holders of an insolvent bank has been determined by an adjudi- 
 cation of court, no error in the computation of the sum can be raised 
 by demurrer to a bill to enforce payment of the assessment. Baker 
 V. Atkins, 62—205. 
 
 137. Limitations. When a bill in equity states a case within the 
 statute of limitations at law, the objection may be taken, as a defense, 
 by demurrer. Mooers v. Kennebec <& Portland B. B. (Jo., 58 — 279. 
 
 138. To a bill in equity "praying for an injunction against the use 
 and occupation of the complainant's land, taken for a railroad, the 
 objection that the damages were fixed by the county commissioners 
 more than six years before the filing of the bill, may be taken by demur- 
 rer. Ih. 
 
 139. If the respondent does not claim the benefit of the statute in 
 his answer, or by plea or demurrer, he will be considered as waiving 
 it, though the facts alleged are such as to make it appear that it might 
 be successfully interposed. Lawrence v. Bokes, 61 — 38. 
 
 140. To WHOLE Bill. It is a well nigh universal rule in equity, 
 that if any part of a bill is good and entitles the complainant to re- 
 lief, a demurrer to the whole bill cannot be sustained. Laughton v. 
 Harden, 68—208. 
 
 141. Parties. A demurrer for want of parties should be special and 
 should supply the names of the persons omitted. Ih. 
 
 142. When there are sufficient parties to the proper part of the 
 bill, which can be acted upon independently of another part, which 
 is faulty for want of parties, a general demurrer will not be sustained. 
 
 143. But where the parties left out are so inseparably connected 
 with the subject of the suit, that a decree could not be made without 
 directly affecting their interests, the objection to the bill may be tak- 
 en upon general as well as special demurrer, or at the hearing of the 
 arguments, or even when the decree is to be made; and the objection 
 may be started by the court itself, in its caution, whenever the neces- 
 sities of the case seem to require an objection to be interposed. Ih. 
 
210 EQinTY. 
 
 144. JuDGMBSTT. The rule of court, 59 — 605, by which judgment 
 on demurrer to a bill is made final, was intended mainly to prevent 
 the filing of demurrers intended for delay. When good cause is shown, 
 the court at nisi prius has the power to allow a repleader upon reas- 
 onable terms. P. S. & P B. B. Co. y. B. <t M. B. B. Co., 65 
 —122. 
 
 IV. PRACTICE. 
 
 145. Hbaeing. a complainant in equity cannot compel a hearing 
 unless his case has been marked "law," on the docket of the county 
 where pending, nor unless he has given the notice required by rule IX. 
 Shepley v. Atlantic c6 St. L. B. B. Co., 57—22. 
 
 146. Exceptions. The decision of a single judge upon an inter- 
 locutory motion in equity, as to strike out impertinent matter, cannot 
 be revised before final hearing, unless the decision is made in open 
 court upon the records thereof, in term time, and summary exceptions 
 are allowed. Spaulding v. FarweU, 62 — 319. Post, 162. 
 
 147. Whether the judge will make his order in open court for this 
 purpose, is discretionary with him, depending upon the circumstances 
 of the particular case. lb. 
 
 148. It seems, however, that if any questions are uicorrectly de- 
 cided, and no opportunity is given for a revision of such decision be- 
 fore final hearing, the court will then examine the question, and see 
 that no injury is thereby sustained. lb. 
 
 149. In arguing exceptions to a master's report, finding that to en- 
 title the assignee of a mortgager, in a bill to redeem, against the 
 assignee of a mortgagee in a mortgage for the maintenance of the 
 mortgagee, he shall pay a certain sum incurred for support since the 
 recovery of a conditional judgment by the mortgagee, agakist the 
 mortgager, the complainant cannot urge that the respondent is estop- 
 ped by the judgment, unless the objection is specially raised by the 
 exceptions. Mitchell v. Burnham, 57 — 314. 
 
 150. In arguing exceptions to a master's report, before the law 
 court, the argument must be confined to such exceptions to the report 
 as were filed in the court below, all others being considered as waived. 
 lb. 
 
 151. Reference to Master. (1) Upon a biU by a partner for 
 an adjustment of accounts, where all the respondents but one allow 
 the bill to be taken pro confesso, if the existence of a common inter- 
 est in property, and the transaction of a joint business is admitted, 
 the court will not accept a general denial of indebtedness, on the part 
 of the respondent, however positive, and dismiss the biU without ref- 
 erence to a master for an investigation of the accounts, notwithstand- 
 ing the denial may be accompanied with a statement of circum- 
 stances rendering it probable that as to such respondent, the denial is 
 well founded. Especially will they not do this where the respondent 
 does not assert a full knowledge of the details of the accounts. (2) 
 Nor will the master be precluded from receiving proof that the trans- 
 actions extended over a longer time than that specified in the answer. 
 Lawrence v. Bokes, 61 — 38. 
 
 1 52. When one brings a bill for the release and conveyance of land 
 from the administrator of an insolvent estate, on the ground of a 
 resulting trust in the intestate, in favor of the complainant, and the 
 
EQrriTY. 211 
 
 administrator admits the truth of the allegations respecting the trust, 
 but says nothing to indicate any knowledge of the condition of the 
 accounts between the complainant and intestate, concerning the trust 
 property, the case will go to a master for an examination of the ac- 
 counts. Putnam v. Burrill, 62 — 44. 
 
 153. The rule that the findings of a master as to matters of fact,- are 
 conclusive, does not apply when objections are taken before the mas- 
 ter, and overruled by him, and exceptions taken afterwards based on 
 such particular objections. Cary v. Herrin, 62 — 16. 
 
 154. In such case, the master's conclusions, if depending upon a 
 conflict of testimony, are entitled to as much weight as the verdict of 
 a jury, and not to be modified or set aside without clear proof of error 
 on his part. Ih. 
 
 155. When particular objections are taken before a master and 
 overruled, the master, if requested, should annex to his report so much 
 of the evidence as bears upon the overruled objections, so that excep- 
 tions may be raised thereon. lb. 
 
 156. The court can modify the report of a master and correct his 
 statement of the amount due on a mortgage without referring it back 
 to him. lb. 
 
 157. The report of a referee or master, may be recommitted at any 
 time before the final decree is formally drawn out, adopted and placed 
 on file. See Rule 21. Pitman v. Thornton, 65^95. 
 
 158. The ACCEPTANCE of the report of a referee, which merely 
 states his conclusions and "that the proper decree be entered accord- 
 ingly," is not a final disposition of the case. lb. 
 
 159. A bill should never be taken ^o confesso against an infant. 
 Tucker v. Bean, 65 — 352. 
 
 160. JtTET Teial. Since the statute of 1873, it has been impera- 
 tive upon the law court to frame issues for a jury trial in equity suits, 
 on motion of either party. Call v. Perkins, 65 — 439. 
 
 161. Dbcebe. a final decree, formally drawn out, adopted, and 
 placed on file, is the termination of the case. Pitman v. Thornton, 65 
 —95. 
 
 162. An ATTACHMENT against a respondent to a bill in equity for 
 not obeying a decree of the court, is not an appeal purely to the dis- 
 cretion of the judge before whom it is heard, but when the facts are 
 not in dispute it is proper for the presiding judge to allow exceptions 
 in order to present the rulings to the full court for revision. Snowman 
 v. Harford, 57—397. 
 
 163. It is no excuse for a refusal to obey a decree in equity requir- 
 ing a conveyance of land, that pending the suit, the respondent con- 
 veyed the land to a third person in pursuance of a contract made 
 after the expiration of the time limited for the conveyance to the 
 plaintiff, and before the commencement of the bill to compel specific 
 performance of the first contract. lb. 
 
 164. Additional Rule in Chancery, vol. 69—605. 
 
 V. EVIDENCE. 
 
 165. Answer. To a bill to redeem from a mortgage, not alleging 
 that any payments were ever made, but simply calling upon the 
 
212 EQTJITT'^EEEOE. 
 
 respondent for an account, an answer, alleging that a certain payment 
 was made, not upon the mortgage, but upon another contract outside 
 of it, is not responsive to the bill, and is not evidence for the respon- 
 dent upon the question whether or not the payment should be allowed 
 as a credit upon the mortgage debt. Gary v. Herrin, 62 — 16. 
 
 166. In general, the rules of evidence and those determining the 
 competency of witnessess are the same in law and equity. Trowbridge 
 T. Holden, 58—117. 
 
 167. Witness. The same causes of exclusion of a party as a wit- 
 ness apply in equity as law. Burleigh v. White, 64 — 23. 
 
 168. Upon a bill in equity brought by the heirs of a deceased mort- 
 gager to redeem the mortgage, the defendant is not a competent 
 witness to testify to facts which happened prior to the death of the 
 plaintiff's ancestor, and which were peculiarly within his knowledge. 
 
 Gary v. Herrin, 59 — 361. 
 
 169. Peoof. Waivbe. When it is understood by counsel on both 
 sides, that the formalities required by the rules in chancery practice, 
 respecting the manner of putting in documentary evidence shall be 
 waived, it is too late to insist upon them at the argument. Millihen 
 V. Bailey, 61 — 316. 
 
 170. A bill in equity to enforce a contract for the conveyance of 
 land was based upon a written contract, to convey upon the payment 
 of a certain note. The evidence, however, showed a verbal agree- 
 ment that a certain incumbrance was to be excepted from the covenant 
 of warranty. This evidence was admitted without objection, but in 
 his argument the plaintiff contended that the verbal agreement could 
 not vary the written. Held, that the objection came too late. Cham- 
 berlain v. Black, 64 — 40. 
 
 171. In equity, in order to let in parol evidence of the contents of 
 a lost writing, it is immaterial at what stage of the proceedings the 
 loss of the paper is shown. Huff v. Curtis, 65 — 287. 
 
 172. If the parol evidence is given before the loss of the paper is 
 proved, and the proof of the loss comes afterwards from a witness of 
 the adverse party, the evidence is admissible. lb. 
 
 ERROR. 
 
 1. A judgment obtained on default, at the return term of a writ, 
 declaring on a judgment against two defendants, on only one of whom 
 was service made, may be reversed on error. Winslow v. Lambard, 
 57—356. 
 
 2. It seems that by reason of R. S., 1857, c. 82, § 10, the fact that 
 the plaintiff recovered judgment for a sum greater than the ad damr 
 num in the writ, can not be available for the purpose of reversing the 
 judgment, where the court had jurisdiction of the parties, and the 
 subject matter, and the defendant was duly served with process. 
 Morse v. Sleeper, 58 — 829. 
 
 3. Generally, error will not lie when the questions of law raised by 
 the assignments might have been presented to the law court, in some 
 form, in the original suit. Prescott v. Prescott, 59 — 146. 
 
EEEOE — ^ESTOPPEL, 213 
 
 4. Error will not lie because of an allowance of costs to the wife in 
 a libel for divorce ; nor, because no deduction was made from the 
 libellant's costs as taxed, for sums paid by the libellee und er order of 
 court to enable her to prosecute her libel ; nor, because the specific 
 sum decreed instead of alimony was united in the execution in one 
 sum with such amount of the unpaid monthly installments ordered to 
 be paid by libellee, as accrued after commitment for contempt in not 
 paying those before ordered. lb. 
 
 5. A writ of error will not lie to reverse a judgment, founded upon 
 the award of referees, upon the ground that they consulted and called 
 into said reference a third person, whose advice and opinion they 
 adopted and followed, the error not appearing on the record. Denni- 
 son V. Portland Company, 60 — 519. 
 
 6. It seems that nothing of which the party could have taken advan- 
 tage in the court below can be assigned for error in fact. Ih. 
 
 7. Nor where he might have appealed. Ih. 
 
 8. Nor where exceptions might have been taken. Ih. 
 
 9. Nor where the party can have his writ of review. Ih. 
 
 10. "Where the error is one of law, it must appear of record. Ih. 
 See Ceetioeaei, 20, p. 87. 
 
 ESTOPPEL. 
 
 I. GENERALLY. 
 II. BY DEED. 
 
 III. BY A SIMPLE CONTEACT. 
 
 IV. BY EECORDS AND JUDGMENT. 
 V. BY ACTS AND DECLARATIONS. 
 
 I. GENERALLY. 
 
 1. An odd fellows' lodge having conveyed its property and received 
 the consideration, neither the lodge itself, nor its trustees acting for 
 it, will be allowed to retain the consideration and repudiate the con- 
 veyance upon the sole ground that in making it the lodge acted in 
 violation of its constitution and by-laws. Sawyer v. Skowhegan, 57 
 —500. 
 
 2. Wat. The principles of R. S. of 1857, c. 18, § 62, providing that 
 the repair of a way within six years before the cause of action accrued, 
 estops the town to deny the location, apply to a sidewalk. Mc Gann 
 V, Bangor, 58 — 348. 
 
 3. TarsTEE. The party in interest can not assert through the 
 intervention of a trustee a claim which she would be estopped from 
 asserting if the suit were brought in her own name. Bigelow v. Foss, 
 59—162. 
 
 4. CoEPOEATioN. To cstop a corporation from showing that the 
 acts of its officers, by which it would otherwise be bound, were the 
 result of a mistake, it must appear that the party seeking to assert the 
 estoppel was induced by such acts to change his position. Starrett 
 V. Bochkmd F. <& M. Ins. Co., 65—374. 
 
214 ESTOPPEL. 
 
 5. A vote of a city council authorizing the payment, by the mayor, 
 of an assessment upon stock in a corporation, to which the city had 
 subscribed, does not estop the city from afterwards denying the valid- 
 ity of the assessme^, if no action was taken by the corporation by 
 reason of the vote. Pike v. Shore Xiine, 68 — 445. 
 
 6. In 1863, a voluntary association was established by the name of 
 the "Lewiston Equitable Co-operative Society" for the buying and 
 selling to shareholders and others, groceries, etc., and its constitution 
 provided that members might "withdraw their funds by giving" cer- 
 tain notices, and its by-laws that when a notice to withdraw is given, 
 his "membership ceases." In January, 1867, a corporation by the 
 same name and for the same purpose, was organized under an act of the 
 legislature. In September following, the agent and salesman of the 
 corporation handed to the plaintiff a printed copy of the "constitution 
 and by-laws of the Lewiston Equitable Co-operative Society, estab- 
 lished December, 1863," informing him it was the constitution and 
 by-laws of the defendant corporation, and thereupon the plaintiff 
 purchased fifty shares of the stock, became a member, attended its 
 meetings, had opportunity at all times to examine its constitution, by- 
 laws, and records, and purchased goods of its agents, and received one 
 dividend. By the by-laws of the corporation, members might, by 
 giving notice, surrender their certificate of stock, and receive therefor 
 its fair and equitable value, to be determined by the managers, — 
 "provided the assets shall be in excess of its liabilities, and not other- 
 wise." The corporation became insolvent in December, 1868, and 
 has continued so. In January, 1869, the plaintiff gave notice, as by 
 the constitution and by-laws of the voluntary association, of his with- 
 drawal of funds and membership, and brought this action to recover 
 back his money. Held, that tbe defendants were not bound by 
 the rules of the association by estoppel. DriscoU v. Lewiston E. G, 
 So., 59—474. 
 
 II. BY DEED. 
 
 7. CoNsiDEEATioN Clause. The only effect of the consideration 
 clause in a deed is to estop the grantor from alleging that it was 
 executed without consideration. For every other purpose it may be 
 explained by parol. Dearborn v. Morse, 59 — 210. Fwrrar v. Smith,, 
 64—74. Barter v. Greenleaf, 65 — 405. Union Ins. Co. v. Orant^ 
 68—229. 
 
 8. In February, 1845, the plaintiff's father with others, having 
 undertaken to organize themselves into a Corporation, under the name 
 of the "Proprietors of the South Chapel in Fryeburg," for the purpose 
 of procuring a site and erecting thereon a meeting-hoase, and owning, 
 managing, and disposing of the pews therein, signed, with his associ- 
 ates, a subscription paper, wherein it was stipulated that the meeting- 
 hpuse should "be for the use of the Methodist Episcopal church and 
 society, so long as they shall furnish preachers acceptable to a 
 majority of the proprietors," and wherein he agreed to be responsible 
 for three of the twenty-five shares, "and a meetLag-house lot." In 
 June following, he, "in consideration of having a meeting-house 
 erected and continued" on a certain lot, "by the proprietors of the 
 South Chapel in Fryeburg," conveyed it to them, with the stipulation 
 that the "lot being given for a meeting-house lot, is to revert to me, 
 unless it should be improved for that purpose," habendum "to the said 
 
ESTOPPEL. 215 
 
 proprietors and tlieir successors forever, provided it be improved for 
 the above purpose." The same year, the proprietors erected and 
 suitably furnished a meeting-house on the lot, in which there was regular 
 preaching by Methodists from the time 6f its completion until 1859, 
 when the preaching ceased, the house was suffered to get out of repair, 
 and the stoves and furniture were removed for safety to neighboring 
 dwellings. In 1863, the plaintiff's father died, intestate. In 1866, the 
 defendants, under the direction of persons acting as the superintend- 
 ing committee of the proprietors, entered, re-shingled, and otherwise 
 repaired the house, since which time there has been regular preaching 
 therein by the Methodists. In trespass for entering to repair the 
 house, held, (1) that the plaintiffs are estopped by their father's deed 
 ,to deny the existence of the "Proprietors of the South Chapel in 
 Fryeburg ;" (2) that the defendants can assert the estoppel. Osgood 
 V. Abbott, 58—73. 
 
 9. Where the incorporated proprietors of a meeting-house convey 
 their interest in the house and land, and warrant the premises against 
 all persons claiming by, through or under them, and the deed is 
 executed by their treasurer, a subsequent treasurer is estopped from 
 asserting a title for the benefit of the proprietors. Craig v. Frank- 
 lin County, 58 — 479. 
 
 10. Aftbk acquired Title. Where the contingent remainder 
 man conveys the estate by deed of general warranty, during the 
 existence of the contingency, the title which becomes vested by the 
 death of the tenant for life enures to the benefit of such grantee, and 
 the grantor is estopped by his deed. 
 
 £ut, if such conveyance is by quitclaim deed, with only the coven- 
 ant of warranty against the lawful claims of all persons claiming by, 
 through, or under the grantor, the grantor will not be estopped from 
 claiming the estate when it becomes vested. JRead v. Fogg, 60 — 479. 
 
 11. Whether the after acquired title of a married woman enures to 
 her grantee by way of estoppel, quaere. Read v. Hilton, 68 — 139. 
 
 12. Where one mortgages his right in land by possession and 
 improvement, a subsequently acquired title to the land does not enure 
 to the benefit of the mortgagee. Mitchell v. Black, 64 — 48. 
 
 18. Acceptance op Deed. The grantee in an operative deed poll 
 under which he derives and enjoys a title, by its acceptance, becomes 
 bound by the restrictions, limitations, reservations and exceptions con- 
 tained in it. White v. Bradley, 66 — 254. 
 
 14. DowBB. When the demandant in an action of dower derives 
 all his title from the husband of the demandant, and merely sets up 
 that some one else may have a title paramount to his, he is estopped 
 to deny the siezin of the husband. Lewis v. Meserve, 61 — 374. 
 
 15. Though one claiming land under a conveyance from the husband 
 of a demandant in dower, be estopped to deny the seizin of the husband, 
 he may show, that the seizin was not such as to confer a right of 
 dower. McLeery v. McLeery, 65 — 172. 
 
 16. A father died leaving a widow, and sons to whom his estate 
 descended. One of the latter acquired the title of his brothers to the 
 estate, conveyed it to his mother by warranty deed and died leaving 
 a widow. Held, in an action of dower by the junior widow against 
 the senior, that the latter, by the acceptance of the deed from her son, 
 
216 ESTOPPEL. 
 
 was not estopped to deny that she was siezed in fee of all the premises, 
 and that she might set up her right of dower. li. 
 
 III. BY SIMPLE CONTRACT. 
 
 17. If a person negligently delivers an incomplete note, in which 
 are blanks to be filled, with his signature attached, to another, and the 
 latter fraudulently fills the blanks, the signer having furnished the 
 means of fraud, will be estopped to deny his liability to a bona fide 
 holder. AVbott v. Bose, 62—194. Kellogg v. Curtis, 65—59. 
 
 18. Landlord and Tenant. A tenant who has not surrendered the 
 demised premises, nor been evicted therefrom by a paramount title, 
 is estopped to deny his landlord's title. Longfellow v. Longfellow, 
 61—590. 
 
 19. The principle of estoppel, which prevents a tenant from deny- 
 ing his landlord's title, applies to the relation between the hirer and 
 letter of a house standing upon the land of a third person as personal 
 property. Ryder v. Mdnsel, 66 — 167. 
 
 20. A tenant is not estopped to show that his landlord's title, under 
 which his own tenancy begun, has ended, and that, since the com- 
 mencement of the tenancy, the estate has become vested in the tenant 
 himself. Lb. 
 
 21. The plaintiff leased certain rooms in his building to the defend- 
 ant for five years, by written contract, and therein agreed that the 
 defendant might have them "as much longer as he desires," upon pay- 
 ment of a specified rent. The defendant occupied the premises during 
 the five years, and after their expiration the plaintiff brought process 
 of forcible entry and detainer. LTeld, that whatever might be the 
 effect of the contract as a lease, the plaintiff was estopped by it from 
 maintaining the process to obtain possession of the premises, as long 
 as the defendant continued to pay the agreed rent. Sweetser v. 
 McKenney, 65 — 225. 
 
 IV. BY EECORDS AISTD JUDGMENTS. 
 
 22. The parties owned adjacent lots. The defendant, in building, 
 constructed an entire wall next the plaintiff's lot, which the plaintiff, 
 in building, subsequently made use of. The defendant's claim "for 
 pay for building a part of the brick partition wall, the center of which 
 is the dividing line between said blocks," was submitted to referees, 
 who made an award which plaintiff paid. In a real action to recover 
 possession of the land between the center and that portion of the 
 wall next plaintiff's land, held, that the recital in the submission did 
 not estop the defendant from showing where the true line between the 
 lots was. Bradbury v. Cony, 59 — 494. 
 
 23. Recovery and satisfaction in assumpsit estop the plaintiff from 
 afterwards setting up a tort waived by bringing that action. Ware 
 V. Bercival, 61 — 391. 
 
 24. A plea of performance estops a poor debtor from denying the 
 validity of the bond given to obtain his release from arrest. Sackett 
 V. Lane, 61 — 31. 
 
 25. It seems that if an administrator allows a judgment to be 
 recovered against him as such, and does not suggest the insolvency of 
 the estate in the suit, he is estopped to deny, in a suit upon his bond, 
 
ESTOPBBL. 21T 
 
 that he has assets, or to assert that the estate which he represents, is, 
 so far as the plaintiff is concerned, an insolvent one. Thurlough v. 
 Kendall, 62—166. 
 
 26. But if, in a suit upon the bond, the case is presented upon an 
 agreed statement of facts, in which it is admitted that there are no 
 assets, t&e estoppel is waived. Ih. 
 
 27. And in a suit upon the bond, the sureties are not estopped to 
 show tliat the judgment recovered by the plaintiff in interest against 
 the administratrix was not recovered until after she had, by her mar- 
 riage, ceased to be administratrix. Hourne v. Todd, 63 — 427. 
 
 See Judgment, 16. Equity, 149, p. 210. 
 
 V. BY ACTS AND DECLARATIONS. 
 
 28. Where the defendants being possessed of an elevator order for 
 grain, or of the grain to which it related, by previous delivery, per- 
 mitted the order to pass into the hands of the original owners of the 
 grain, and to be by them transferred to the plaintiff for value, they 
 are estopped to claim title adversely to the plaintiffs. Warren v. 
 Milliken, 57 — 97. 
 
 29. If the only surviving beneficiary named in a mortgage of real 
 estate actively aid and assist the mortgager in selling and conveying 
 by deed of warranty the mortgaged premises to a third person with- 
 out mentioning her own claim, and such third person, relying upon 
 the joint representations of the mortgager and such beneficiary, and 
 without suspecting that there was any incumbrance upon the prem- 
 ises, thereupon purchased the same for their full value, she is thereby 
 estopped to set up any claim under the mortgage. JBigelow v. Foss, 
 69—162. 
 
 30. When parties, obtaining title by devise to adjoining tracts of 
 land, acting upon an erroneous construction of the will, adopt a 
 monument not intended by the testator, without possession according 
 to it of such character, and for such length of time as to give title by 
 disseizin, they are not thereby estopped from showing the true line. 
 Cotton V. Smithwick, 66 — 360. 
 
 31. Where the owner of two adjoining lots of land, conveys one in 
 such manner that the easement that no building be erected upon it 
 within ten feet of the lot retained becomes appurtenant to the latter, 
 and then both lots are conveyed to parties who have no actual knowl- 
 edge of the easement, but only constructive knowledge from the reg- 
 istry of deeds, the fact that the owner of the dominant estate sees 
 the owner of the servient estate partially erect a building within 
 the ten feet without objection does not estop him from asserting his 
 right as soon as he obtains actual knowledge. Herrick v. Marshall, 
 66—435. 
 
 33. The mere declaeations of a party adverse to his own interest 
 do not constitute an estoppel. Hunter v. Heath, 67 — 507. 
 
 33. If one stands by and knowingly suffers a conveyance to be 
 made, under the belief on the part of the parties thereto that the 
 legal title passed thereby, without making known his own title, he can 
 not afterwards set up his own title against those claiming under such 
 conveyance. Chapman v. Pingree, 67 — 198. 
 
 34. If one having a right to redeem real estate under mortgage 
 
218 ESTOPPEL — EVIDENCB. 
 
 assures a proposed purchaser of the fee that he -will not redeem, and 
 this assurance is given for the purpose of inducing such purchaser to 
 buy, and he is thereby induced to buy, the owner of the right will be 
 estopped afterward to enforce it against the purchaser or his assignees ; 
 and if one afterward purchases the right of redemption, with notice 
 of the facts, he wUl also be estopped to enforce such right. Southard 
 V. Sutton, 68—575. 
 
 35. To create an estoppel in pais, the declarations or acts relied upon 
 must have induced the party seeking to enforce an estoppel to do 
 what resulted to his detriment, and what he would not otherwise have 
 done. If his action was not changed by what was said he has no 
 cause of complaint. Allen v. Perry, 68 — 232. 
 
 36. It must also appear that the one making the inquiry had an 
 interest in the subject matter of his inquiry, and that such fact was 
 known to the party against whom the estoppel is sought to be 
 enforced. lb. 
 
 37. An assignee of certificates of shares of stock, who leaves the 
 certificates, with the assignments unrecorded, in the possession of the 
 assignor, is not guilty of negligence so as to be estopped to set up his 
 title against a person who claims title to the certificates through an 
 alteration of the assignments by the fraud and forgery of the assignor. 
 Eaton V. Telegraph Co., 68 — 63. 
 
 See Agbnct, 11, p. 13. 
 DivoBCB, 17, p. 187. 
 
 EVIDENCE. 
 
 I. BEST EVIDEIS'CE. 
 
 (a) Generally. 
 
 (b) When there is ebcokd evidence. 
 
 II. PAROL EVIDENCE; ADMISSIBILITY TO AFFECT WRITINGS. 
 
 (a) Generally. 
 
 (b) In case of ambiguity. 
 
 (c) To EXPLAIN DEEDS. 
 
 (d) Bills and notes. 
 
 (e) Records. 
 m. MATERIALITY. 
 IV. RES GEST^. 
 
 V. PRIMA FACIE EVIDENCE AND PRESUMPTIONS. 
 VI. WEIGHT AND SUFFICIENCY; PREPONDERANCE OF EVI- 
 DENCE AND REASONABLE DOUBT. 
 VII. BURDEN OF PROOF. 
 VIII. DECLARATIONS AND ADMISSIONS. 
 
 (a) Generally. 
 
 (b) Op parties to the record aitd dt interest. 
 
 (c) Op third persons. 
 
 (d) Op the geantoe in a deed. 
 IX. REPUTATION. 
 
 X. OPINIONS AOT) EXPERT TESTIMONY. 
 
BVIDENCB. 219 
 
 XI. JUDGMENTS AND EECOEDS. 
 
 (a) Gbnebally. 
 
 (b) Ancient BECOKDa. 
 
 (c) Copies. 
 
 XII. OTHER PRINCIPLES. 
 
 I. BEST EVIDENCE. 
 
 (a) Generally. 
 
 1. The SCALE BILL, made by the person agreed upon by the parties 
 to a contract for cutting and hauling logs, delivered at the time 
 of the operation to the party to be charged thereby and made 
 known at the time to both parties is competent evidence, without 
 producing the testimony of the scaler himself under oath. JBailey v. 
 Blanchard, 62 — 168. 
 
 2. Lost Bill of Lading. "When a party offers parol evidence of 
 the contents of a bill of lading upon which he relies, originally exe- 
 cuted in duplicate, he must show that neither of the parts can be pro- 
 duced. Dyer v. Fredericks, 63 — 173, and 592. 
 
 3. When the parol evidence offered by the plaintiff of the contents 
 of a bill of lading, executed in duplicate, is received, the presumption 
 that he has satisfied the court that neither of the parts can be pro- 
 duced, is not overcome by the testimony of the defendant that he 
 once had one of the parts in his possession, and delivered it to one of 
 the owners of the vessel ten years before the trial, there being no sus- 
 picion that it is in the possession of the defendant. lb. 
 
 4. In such case, if the plaintiff does not ask leave to summon the 
 owner to produce the bill, he can not complain that the defendant is 
 allowed the use of parol testimony to rebut the same kind of evidence 
 adduced by himself. lb. 
 
 5. Witness. The rule requiring the production of the best evi- 
 dence intends that evidence which is merely subsiduary shall not be 
 received so long as the original evidence can be had, but does not 
 exclude a witness on the ground that another is more reliable. State 
 V. McDonald, 65—466. 
 
 6. Stbnogeaphbe. Therefore, in impeaching a witness by showing 
 that he testified differently upon a former trial, his former testimony 
 may be proved by any one who heard and recollects it. The steno- 
 graphic reporter is not the only witness in such case. lb. 
 
 7. SuBSCEiBiNG Witness. Where the testimony of the subscrib- 
 ing witnesses to a deed can not be obtained, proof of the handwriting 
 of the grantor is admissible, without proof of the handwriting of the 
 witnesses. Jones v. Roberts, 65 — 273. 
 
 8. Out of State. When the subscribing witnesses to a deed are 
 out of the jurisdiction of the court, their testimony is not necessary 
 to prove its execution and delivery. lb. 
 
 9. When it appears that a party has delivered a written instrument 
 to a person without the jurisdiction of the court, the adverse party 
 may show its contents by parol. State v. Watson, 63 — 128. 
 
220 EVIDENCE. 
 
 (b) When there is record evidence. 
 
 11. The only proper evidence of the insolvbnct of the estate of a 
 deceased person is the documentary evidence from the probate office, 
 JBates V. Avery, 59 — 354. McLean v. Weeks, 65 — 411. 
 
 12. Parol evidence of a person's enlistment into the military service 
 of the United States is not admissible. Atwood v. Winterport, 60 — 
 250. 
 
 13. After the desteuction of the records of the probate court 
 where a partition of real estate should be recorded, is admitted, parol 
 evidence of the nature of its occupation is admissible to show that a 
 partition was made. JVason v. Jordan, 62 — 480. 
 
 14. CoLLATEEAL Fact. Where the material fact to be proved 
 was that a person was present at a hearing before referees and testi- 
 fied under circumstances which made it apparent that he must have 
 known of the existence of a certain deed, it was held, that one of the 
 referees might testify as to the names of the parties between whom he 
 acted as arbitrator, that being a collateral fact of trifling importance, 
 which might be proved by parol, though there was written evidence 
 of it. Match v. Brown, 63—410. 
 
 15. In a criminal case, a government witness testified on cross-ex- 
 amination, that he had been confined in jail, and then, in answer to a 
 question from the prosecuting officer, that he was so confined for "get- 
 ting tight." The question was objected to, on the ground that the 
 record of the court which sentenced him was the only proper evidence 
 to prove the offence for which he was confined. As it did not ap- 
 pear that he was confined by the sentence of any court, the objection 
 was not sustained. State v. Pike, 65 — 111. 
 
 16. In the absence op eecoed evidence, parol proof is competent 
 to show that a collector of taxes was duly sworn. Farnsworih Co. 
 Y.Band, 65—19. 
 
 17. Judgment. When the record of a case fails to show the ground 
 upon which a judgment was rendered, it may be shown by oral testi- 
 mony. Lander v. Arno, 65 — 26. 
 
 n. PABOL EVIDENCE; ADMISSIBILITY TO AFFECT WRITINGS. 
 
 (a) Gbneeallt. 
 
 (b) In cask of ambigxtitt. 
 
 (o) To BXPLAlir DEEDS. 
 
 (d) Bills and notes. 
 
 (e) Recoeds. 
 
 (a) Generally. 
 
 18. Testimony cannot be received upon the part of the defendant, 
 to change, alter, or vary a written contract signed by the plaintiff, 
 though it is not the contract upon which the action is founded. 
 Boody V. Goddard, 57—602. 
 
 19. In a suit between persons not party to a written contract, it 
 can not be varied by parol testimony, of a different parol agreement 
 previously made ; for such agreement is merged in the writing. BeU 
 V. Woodman, 60 — 465. 
 
 20. Parol evidence is inadmissible to show that a written contract 
 
EVIDBNCB. 221 
 
 duly executed, and upon its face intelligible, unambiguous, reasonable 
 and precise, is incomplete, and was only designed as a basis of a con- 
 tract, to be subsequently filled up with other independent stipulations. 
 Millett V. Marston, 62 — 477. 
 
 21. Subsequent Verbal Conteact. Parol evidence of inde- 
 pendent and collateral agreements, made after the written contract is 
 completed, whether on the same occasion, or at a subsequent time, is 
 admissible. Wiggin v. Goodwin, 63 — 389. 
 
 22. A verbal agreement to change a written contract, made contem- 
 poraneously with it, is valid if subsequently adopted and recognized 
 by the parties. Courtenay v. Fuller, 65 — 156. 
 
 23. When a life insueance polict is issued and accepted upon the 
 express condition that it should become void if the premiums should 
 not be paid on or before the several days therein mentioned for the 
 payment thereof, evidence of a verbal agreement, made at the time the 
 insurance was negotiated, between the person procuring the same and 
 the agent of the insurance company, that the agent would wait a cer- 
 tain time for a part of the premium, is inadmissible to vary the ex- 
 press terms of the policy. Coombs v. Charter Oak Company, 65 — 
 382. 
 
 24. Feattd. Parol evidence is admissible to show that a written 
 contract was fraudulently obtained. Holley v. Young, 66 — 520. 
 
 25. Date. Parol evidence is admissible to show that the apparent 
 date of a contract is not the real date, and the reason why it was mis- 
 dated. Bird V. Munroe, 66—337. 
 
 (b) In case of ambiguity. 
 
 26. Where a vessel was sailing under two charters, either of which 
 answers the call in the policy, parol evidence is admissible to prove 
 which was insured. Melcher v. Ocean Insurance Company, 59 — 
 217. 
 
 27. Where the property insured in a policy of marine insurance 
 was described as "sixty-five hundred and fifty dollars on charter, 
 twenty-six hundred and fifty dollars on primage, and also fifteen hun- 
 dred dollars on property on board ship 'Charles S. Pennell,' at, and 
 from New York to San Francisco." Held, that the phrase "at and 
 from New York to San Francisco," is not descriptive of any portion 
 of the property insured, but simply of the voyage during which the 
 risk was to continue ; and that where it appeared that the vessel was 
 sailing under two charters, either of which answered the call in the 
 policy, parol evidence is admissible to prove which of the charter was 
 insured. lb. 
 
 28. A description of land as enough off the west end of a certain 
 lot, "including a certain piece which the said A. conveyed to said B., 
 by deed, to make fifty acres exclusive of water," is not unintelligible 
 or ambiguous. Bartlett v. Corliss, 63 — 287. 
 
 29. There is no latent ambiguity in a devise of a lot of land "known 
 as the back field west of the top of the hill, it being the west end of 
 my farm in N., adjoining Deer Meadow Brook; the eastern line of 
 said lot to be a line run from the north line of my said farm, at right 
 angles with said north line, striking over the top of the hill so called," 
 it appearing that there are two hills, one of which follows out and 
 
222 EVIDENCE. 
 
 * 
 
 fills all the -words of the will, while to hold the other hill to be the 
 one intended, the words "known as the back field" must be rejected. 
 Cotton V. Smithwick, 66 — ^360. 
 
 30. In construing a will parol evidence is admissible only in case of 
 latent ambiguity. If the terms of the devise can be applied to the 
 person or subject matter intended, with legal certainty, without the 
 aid of such evidence, it is not admissible. lb. 
 
 31. The partition deed between the two owners in common of a 
 double tenement house made the "partition between said tenements" 
 the division line. There was no partition extending through the 
 entire house nor did the partitions in the different stories correspond. 
 The partition on the first floor nearly divided the lot in equal parts, 
 was more substantial than the one in the cellar, and was generally 
 conformed to by the one in the second story. Held, that this was the 
 partition intended and that there was no ambiguity calling for extra- 
 neous evidence. Mitchell v. Smith, 67 — 338. 
 
 (c) To explain deeds. 
 
 32. The only effect of the consideration clause in a deed is to 
 estop the grantor from alleging that it was executed without consider- 
 ation. For every other purpose it is open to explanation by parol 
 testimony. Farrar v. Smith, 64 — 74. 
 
 33. In the trial of an action of covenant broken by the grantee 
 against the grantor of real estate, to recover the amount of an out- 
 standing tax which the former was compelled to pay to prevent a sale 
 of the premises, it is competent for the grantor to prove that prior to 
 and at the time of the conveyance, the grantee verbally agreed to pay 
 the tax. Dearborn v. Morse, 59 — 210. 
 
 34. The mortgager of a farm having subsequently married and died 
 intestate, his widow caused her dower in the equity to be set out by 
 metes and bounds, and thereaf terwards conveyed her life-estate to the 
 plaintiff. The administrator of the estate of the intestate, by virtue 
 of a license from the probate court, sold and conveyed to the plaintiff 
 all the interest which the intestate had in the premises at the time of 
 his decease, subject to the widow's life estate in that portion set out 
 as dower, and subsequently took back a mortgage to secure the pur- 
 chase money. The administrator returned his license, setting forth 
 therein the sale to the plaintiff, together with the sum received, 
 "deducting therefrom the balance due on" the original mortgage. In 
 1851, at a sheriff's sale on the execution, issued on the judgment 
 recovered on the plaintiff's note given for the intestate's interest, the 
 administrator purchased the plaintiff's right to redeem the original 
 mortgage, and, in 1861, the sale not being redeemed, sold and con- 
 veyed the whole property to the defendant by deed of warranty. In 
 a real action claiming a fee in the plaintiff, held, that the defendant 
 being a bona fide purchaser for value, it is not competent for the 
 plaintiff to prove by parol that the administrator, at the time of sale 
 to the plaintiff, agreed to redeem the original mortgage out of what 
 the plaintiff paid him. Forsyth v. HoweU, 59 — 131. 
 
 35. If a deed of real estate describes one of the lines as ending at a 
 point on one side of a street "opposite" a point on the other side, a 
 straight line between the two points must cross the street at a right 
 
EVIDENCE. 
 
 223 
 
 angle ; and parol evidence is not admissible to show that a line ending 
 at a different point was intended. Bradley v. Wilson, 58 — 357. 
 
 36. Parol evidence to establish the identity of personal chattels 
 embraced in a mortgage, but not particularly described therein, is 
 admissible. Elders. Miller, 60 — 118. 
 
 87. Evidence of the object and purpose for which a conveyance was 
 made, is not admissible to convert the deed purporting to be an 
 absolute conveyance into one of any trust not expressed therein. 
 Gerry v. Stimson, 60 — 186. 
 
 38. When the rights of the parties depend upon deeds, parol evi- 
 dence of the manner in which those rights have been exercised is 
 inadmissible. Butler v. Huse, 63 — 447. 
 
 (d) Bills and notes. 
 
 39. It is competent for one who has indorsed a negotiable promis- 
 sory note ia blank in a suit brought against him by his immediate 
 iudorsee to show in defense, that he indorsed the note merely to pass 
 the title, and that the understanding between the parties was, that 
 the defendant's indorsement was made solely for the purpose of 
 transferring the note, and that he assumed no liability, conditional or 
 otherwise, thereby. Patten y. Pearson, 57 — 428. 
 
 40. The liability of the maker of a promissory note must be deter- 
 mined by the instrument alone. Sturdivant v. Hull, 59 — 172. 
 
 41. When the word "cashier" is added to the name of the payee of 
 an order, if parol evidence is introduced to show that at the time the 
 order was given the payee was cashier of a bank, evidence of the same 
 kind, to rebut the inference that the bank may have had some interest 
 in the order, is admissible. Howard v. Kimhall, 65 — 308. 
 
 See Bills anb Notes, 7, p. 60. 
 
 (e) To explain records. 
 
 42. In pursuance of the express terms in a written agreement 
 between the counsel therein, judgment in a real action by him, and 
 also in a suit upon an injunction bond against him, was rendered for 
 the plaintiff, and execution for costs stayed until the next term. In 
 the trial of a subsequent action for mesne profits from the time of the 
 commencement to that of judgment in the real action, held, that parol 
 evidence is admissible on the part of the defense to show that, in 
 order to obtain a judgment in those suits without a trial, the plaintiff's 
 counsel authorized the defendant's counsel to say to the defendant, as 
 an inducement to enter into the agreement, that it would be a full and 
 final settlement of all matters up to that time ; and that at the same 
 time the counsel further agreed that the plaintiff should lease the 
 land to the defendant in interest for a certain time thereafterwards, 
 at a specified rent. Bonney v. Morrill, 57 — 368. 
 
 43. Where fence viewers, in the assignment of the portions of a 
 partition fence to be built by each adjacent owner, recited that one of 
 the owners should build the portion assigned to him "within twelve 
 days from the date of receiving notice of this assignment," parol testi- 
 mony is not competent to fix the time. James v. Tibbetts, 60 — 557. 
 
 44. Parol evidence is admissible to show that the justices in a poor 
 
224 EVDDENCB. 
 
 debtor's disclosure had no jurisdiction. Spaulding v. Record, 65 — 
 220. 
 
 See Ante, 17. 
 
 III. MATEEIALITY. 
 
 45. In the trial of an action for labor and services rendered to the 
 defendant's testator, the value of an unconditional devise to the 
 plaintiff by the testator, is immaterial, in the absence of anjc-evidence 
 that it was made or received in payment of the services claimed. 
 Rwrnrill v. Adams, 57 — 565. 
 
 46. Where, in the trial of a person charged with maliciously barn- 
 ing a meeting-house, it was in evidence that the accomplice fired the 
 building by means of a can of kerosene oil furnished for the purpose 
 by the defendant, testimony that the shirt of the accompBce, when he 
 fired the building, had kerosene stains upon it, is admissible. State 
 v. Kingsbury, 58 — 238. 
 
 47. In the trial of an action on an administrator's bond for an 
 alleged breach in knowingly omitting to include in his inventory an 
 amount of money deposited in a savings bank, it is not competent for 
 the administrator to show by a witness that about the time the admin- 
 istrator was appointed and before he returned his inventory, the wit- 
 ness consulted counsel in behalf of the administrator as to whether or 
 not the deposit should be inventoried, and that the witness commu- 
 nicated to the administrator the advice given. Bourne v. Stevenson, 
 58—499. 
 
 48. Nor, in such case, is it competent for the administrator to tes- 
 tify that in omitting to inventory the deposit-he acted upon the belief, 
 after being so advised by counsel, that it was not a part of the intes- 
 tate's estate, and that he had no right to include it in his inventory. 
 
 49. In an action for injury to plaintiff's horse, by reason of a defect 
 in the highway, testimony as to the value of the horse before and after 
 the accident is admissible upon the question of damages. So also as 
 to the condition of the horse in regard to lameness, within a week 
 after the accident. Whitely v. China, 61 — 199. 
 
 50. Where it is alleged that a horse injured by breaking through a 
 bridge is thereby rendered timid or unkind, evidence of his conduct 
 immediately before and after the accident, in crossing bridges, is 
 admissible. Ih. 
 
 51. The defendants in this action justified the removal of the growth 
 from the real estate mortgaged, by virtue of an alleged parol license 
 from the deceased mortgagee, and called a witness who testified to 
 two conversations in the course of which such license was given. Up- 
 on cross-examination, this witness added that she made a memoran- 
 dum of these conversations at the time each occurred and produced 
 them, and they were put into the case by the plaintiffs. Seld, that 
 they were properly received as tests of the accuracy of the witness's 
 recollection of the conversations, and of the degree of credibLLty to he 
 attached to her testimony. Brooks v. Goss, 61 — 305. 
 
 52. The defendant in an action of trespass quare clausum relied 
 upon a power of attorney, given him by plaintiff. The plaintiS 
 claimed that a previous power to his brother had been revoked and 
 
EYIDBNCE. 225 
 
 this one given to his father (the defendant), by reason of false repre- 
 sentations contained in letters from several persons, to the effect that 
 his brother was trying to swindle his father out of all his property ; 
 that his father was destitute, and that plaintiff had better put the real 
 estate into his father's hands. Held, that testimony relative to the 
 pecuniary circumstances of the father at the time these letters were 
 written was properly rejected. Harmon v. Harmon, 61 — 222. 
 
 53. On the trial of an indictment for setting fire to the building of 
 A., it appeared that some time before the fire a deed of the building 
 from the respondent to A. was placed in the hands of a third person, 
 that the grantor with the consent of the grantee's counsel, wrote to 
 the depositary, saying that for the purpose of preserving the evidence 
 of the parties in respect to the time of its delivery, he directed the 
 depositary to 'deliver the deed to the grantee on a specified day. The 
 burning took place before the day specified, and a witness for the 
 government testified that the deed was delivered before the time of 
 the fire. Held, that the respondent might introduce the writing, 
 although there was no evidence that it ever reached the depositary. 
 State V. Watson, 63—128. 
 
 54. Assault. In an action for damages for an assault and battery, 
 the defendant may show, in mitigation of damages, that there was an 
 affray between the plaintiff and one of the defendants, a few hours 
 previous, on the same day, but not its details. Currier v. Swan, 63 
 ^323. 
 
 55. When it is competent for the plaintiff to prove the wealth of 
 the defendant to increase the damages, it is equally competent for the 
 defendant to show the want of it in mitigation, although the plaintiff 
 makes no claim on that ground. Johnson v. Smith, 64 — 553. 
 
 56. In a civil action for an assault and battery, the defendant can 
 not show that the plaintiff was an irritating and provoking old man, 
 and had trouble with others in reference to transactions similar to the 
 one which was the occasion of the assault. Macintosh v. JBartlette, 
 67—130. 
 
 57. Mtjkdeb. On the trial of one for murder it is not competent 
 for the State to show that the prisoner had at other times made savage 
 assaults upon other persons — the prisoner not having introduced 
 evidence of good character. State v. Godson, 66 — 116. 
 
 58. Every falsehood uttered by way of exculpation by a prisoner 
 in his testimony is a circumstance indicative of guilt, and the jury may 
 be so instructed. State v. Benner, 64 — 267. 
 
 59. Intent. On the trial of a complaint for having liquors with 
 intent to sell in violation of law, the record of a plea of nolo contendere 
 made by the defendant to a similar complaint about three months before 
 is admissible on the question of intent. State v. Plunhett, 64 — 534. 
 
 60. On the trial of a complaint for the illegal sale of intoxicating 
 liquors, after a sale by a clerk of the respondent has been proved, 
 evidence of other sales by the respondent himself is admissible to show 
 that the clerk was authorized to make the sale. State v. Wentworth, 
 65—234. ' 
 
 61. When two children testify that they received from their mother 
 a bottle and money to purchase liquor, and that they did purchase it, 
 the government has the right to strengthen their testimony by that of 
 
 15 
 
226 EVIDENCB. 
 
 the mother that she sent them with the bottle and money and that they 
 returned with the liquor, althoughshe did not know of whom they 
 purchased it. State v. Synes, 66—114.1 
 
 62. A common seller of intoxicating liquors has no claim to exemp- 
 tion from the general principles of law relating to circumstantial 
 evidence. 2 b. 
 
 63. General Manner op Business. The defendant contended 
 that the plaintiff had obtained his guaranty for the payment of certain 
 notes, by fraudulent misrepresentations as to the maker's solvency. 
 Held, that testimony of the maker in relation to business transactions 
 between himself and the plaintiff, tending to show his insolvency and 
 the plaintiff's probable knowledge thereof, was admissible. Walker 
 V. Thompson, 61 — 347. 
 
 64. In an action for goods sold and delivered against parties indi- 
 vidually and in their capacity of surviving partners, in order to 
 explain their possession of the goods, and rebut the inference of a 
 sale drawn from such possession, it is competent for the defendants to 
 introduce evidence to prove that when their copartnership was 
 formed, it was agreed by the members of the firm that the partner to 
 whom the plaintiffs testify that they sold the goods, supposing that 
 he was acting for the firm, should put in the goods in controversy as 
 his share of the capital stock, that he did so, and that they knew 
 nothing of any purchase of the goods from the plaintiff. Fuller v. 
 
 Wilder, 61—525. 
 
 65. In an action against a bank to recover the value of bonds 
 deposited with it, the testimony of the cashier as to other bonds hav- 
 ing been lost or misplaced, and afterwards found is admissible to 
 show the manner in which the business of the bank was conducted as 
 bearing upon the question of care. Dearborn v. Union Nat. Bank, 
 61—369. 
 
 66. The best authorities clearly sustain the doctrine that "the fact 
 of a person having once or many times in his life done a particular 
 act in a particular way does not prove that he has done the same thing 
 in the same way upon another and different occasion." Eaton v. 
 Telegraph Co., 68—63. 
 
 67. It is sometimes permissible to show, however, what men gener- 
 ally have done under certain circumstances and conditions, as showing 
 how a particular man might act under the same surroundings ; and 
 how particular sights and sounds have affected animals generally and 
 ordinarily, as indicating what was likely to have occurred to the same 
 kind of animal in a particular case under the same or similar condi- 
 tions, lb. 
 
 68. Upon the question, whether A. was the owner of certain cer- 
 tificates of stock in his possession or whether he was the custodian of 
 them for B., the certificates having been issued to A., and bearing 
 upon their backs assignments by A. to B., it is competent for B..to 
 show that A. at the same time held in his possession as custodian for 
 B. other certificates of shares in the same company, issued directly 
 to B. and belonging to him. lb. 
 
 69. An action was founded upon a promise contained in a letter 
 from the defendant, to his brother, Charles Mussey, dated Nov. 24, 
 1 856. In that letter the defendant assured his brother that he might 
 rely upon him for such pecuniary aid as would be necessary for his 
 
EVIDENCE. 227 
 
 comfort and convenience ; and he therein engaged to appropriate 
 seven hundred dollars annually, to be paid to him semi-annually, for 
 that purpose. The only question at the trial' was whether this prom- 
 ise was gratuitous or founded upon a valuable consideration. Held, 
 that two papers signed by the defendant, dated December 1, 1838, — 
 nearly eighteen years prior to the date of the defendant's letter — by 
 one of which the defendant agreed to account with Charles Mussey 
 for whatever should be realized on a certain note therein described, 
 and by the other to convey to him certain real estate upon his paying 
 certain sums of money and performing certain other conditions 
 therein mentioned, were not relevant, as neither of them were 
 referred to in the letter of the defendant containing the promise upon 
 which the suit was brought, and did not appear to have any connec- 
 tion with it. Mussey v. Mussey, 68 — 346. 
 
 IV. EES GEST^. 
 
 70. Domicile. Paupbe. Where, in a pauper case, upon the issue, 
 whether the pauper had had his home five consecutive years, between 
 March, 1860, and December, 1867, in the plaintiff town, the question 
 turned mainly on the facts connected with an undisputed absence of 
 three weeks, in March, 1863, in another town, where he went and 
 resided with one K., and of another of a few days in September, 1863, 
 it is competent for the plaintiffs to show, that tlae pauper came to the 
 witness's house in the plaintiff town and wanted to stay a spell, but 
 that the witness declined to "allow him to stay but a short time, stating 
 to the pauper the condition of the witness's family as the reason for 
 thus declining ; and also to show that when the pauper came, he 
 brought nothing except the clothes he had on. Ripley v. Hebron, 
 60—379. 
 
 71. Held, that such conversation tended to show the character of 
 the residence and was not mere declarations. Ih. 
 
 11. Held, also, that it was competent for such witness to testify 
 that while the pauper was thus stopping at his house in March, 1863, 
 he heard K. propose to the pauper to go and live with him in D., — 
 that he would give him a home there as long as he wanted one ; that 
 the pauper replied he would think of it ; that two days afterwards 
 K. came and renewed his proposition, when the pauper said he would 
 go, and did go the next morning. Ih. 
 
 73. Also, held, that it was competent for such witnesses to testify 
 whether or not, at the time the pauper thus left the witness's house, 
 there was any understanding between the witness and the pauper, or 
 any authority given by the witness to the pauper, that the latter 
 might return to the witness's house. Ih. 
 
 74. But held, also, that it was not competent to prove the declara- 
 tions of K. (who was not a witness) as to his understanding of the 
 nature of the pauper's residence with him. Ih. 
 
 75. MuEDER. Identity. The outcries of a person deceased made 
 during the perpetration of the assault which resulted in death, or 
 upon the approach of the assailant, are competent evidence upon the 
 trial of the person charged with the murder of such person, and may 
 be considered by the jury with other circumstances upon the question 
 of the identity of the accused. State v. Wagner, 61-^-178. 
 
228 EVIDENCE. 
 
 76. Tiie outcries of another person -who was murdered by the same 
 party a few minutes previously during the perpetration of the same 
 burglary, but on another part of the premises, are admissible under 
 like circumstances for the same purpose. Ih. 
 
 77. Such exclamations are competent as part of the res gestae. lb, 
 
 78. Manslaughteb. Od the trial of an indictment for man- 
 slaughter, the government was allowed to prove other acts of violence 
 by the defendant upon the deceased than those which it was claimed 
 caused her death, the evidence being limited to acts of violence on 
 the same evening, and only a short time before her death. State 
 V. Pike, 65—111. 
 
 79. Assault. The plaintiff was assaulted and injured by the 
 defendant, while interfering to protect her father in an affray be- 
 tween them. Held, that, while the fact of the aifray and an injury 
 to her father may have been admissible in evidence, the detailed 
 account of its subsequent consequences would not be. Flint v. Bruce, 
 68—183. 
 
 80. CoKVBRSATioisr. If a witness called by one party relates a por- 
 tion of a conversation the other party may prove the whole of the 
 same conversation relating to the same subject matter by other wit- 
 nesses, whether that part of the conversation related by these other 
 witnesses took place in the presence of the first witness or not. Bar- 
 bour V. Martin, 62 — 536. 
 
 81. In a suit on a note defended on the ground that it had been 
 altered by the insertion of a clause after its execution, a letter written 
 by the payee to the cashier of a bank containing other notes against 
 the defendant for collection, and also containing a statement that the 
 other notes contained the clause in question, is not a part of the res 
 gestae, although the defendant testified that he signed no notes with 
 the controverted clause in them. Pulsifer v. Crowell, 68 — 22. 
 
 82. The question at issue was whether one of a series of notes had 
 been altered by the addition of a clause. The plaintiff testified that 
 all the notes contained the clause, while the defendant testified that 
 none of them contained it. In response to a proposition from the 
 defendant, relating to one of the notes, the plaintiff sent two of them 
 to an agent, directing him, by letter to surrender one and take a new 
 note, and to insert in the new note the clause in question, saying also 
 that the same clause was in the others. The defendant never saw the 
 letter, but the new note was given, paid ^at maturity, and both that and 
 the original alleged by the defendant to have been destroyed. Seld, 
 that the letter was not admissible. Capen v. Crowell, 68 — 455. 
 
 83. Res intbe alios. The defendant received from the plaintiff 
 a sum of money to be repaid to him, in case it should not be received 
 by certain third parties, and a receipt given therefor. The third 
 parties refused to take the money and give the receipt, whereupon the 
 plaintiff brought suit for the money, the defendant refusing to return 
 it. After the suit was commenced, the plaintiff entered into an 
 agreement with one of the third parties relative to the matter, the 
 agreement, by its terms, not to affect his suit against the defendant. 
 Held, that such agreement was res inter alios, and could not be admit- 
 ted in the suit. Harmon v. Wright, 65 — 516. 
 
 See Post, 178. 
 
EVIDENCB. 229 
 
 V. PRIMA FACIE EVIDENCE AND PEESUMPTIOKS. 
 
 84. If a MABBIED WOMAN Sell intoxicating liquor contrary to law in 
 the presence of her husband, the law presumes that she acts under 
 the coercion of her husband ; but this presumption may be rebutted. 
 State V. Cleaves, 59—298. 
 
 85. Patjpee. When a pauper leaves a town where he has resided, 
 having no family, leaving no house or place therein to which he has 
 any right to return, and having no effects save the clothes he wears, 
 the law does not presume that he intends a temporary absence, and 
 has a continuing purpose to retain a home in such town, and return 
 to it at some future period. Ripley v. Hebron, 60 — 379. 
 
 86. Nor does the law presume that he has no such intention. lb. 
 
 87. But it leaves it to the jury to determine upon all the evidential 
 circumstances and probabilities in the case, what his intention in fact 
 was. lb. 
 
 88. It is not necessary that there should be any distinct declaration of 
 intention proved ; but it may be latent in the mind of the pauper. lb. 
 
 89. Payment bt Note. In Maine, a promissory note, or an ac- 
 cepted bill of exchange is prima facie evidence of payment of the 
 debt for which it is given ; aliter, as to an unaccepted bill. Strang 
 V. Hirst, 61—9. 
 
 90. Indorsement oe Note. The presumption that the per- 
 sons whose names appear upon the back of a promissory note 
 are successive indorsers in the order in which the names appear may 
 be controlled by proof of any other contract, express or implied, 
 entered into or understood by them when they became parties. Cool- 
 idge v. Wiggin, 62 — 570. 
 
 See Bills and Notes, 7, p. 61. 
 
 91. Tax. Where, in the trial of a writ of entry, the plaintiff's title 
 depends upon a tax sale, his production, in pursuance with R. S., c. 6, § 
 145, of the "treasurer's deed, duly executed and recorded, the assess- 
 ments signed by the assessors, their warrants to the collector," and 
 proof "that the taxes were advertised according to law," make only a 
 prima facie case. Orono v. Veazie, 57 — 517. 
 
 92. While the plaintiff is making out a prima facie case, by i3roofs 
 on his part, the defendant may contest the sufficiency of the plaintiff's 
 evidence to establish the requirements of the statute, without being 
 required to pay or tender the amount of "taxes, charges, and interest." 
 lb. 
 
 93. If the defendant would go further, and introduce proof, he 
 must pay or tender the "amount of all taxes, charges and interest," 
 as required by the latter clause of § 145, whereupon he may take 
 advantage of all illegalities in the raising, assessing, and collecting of 
 the tax. lb. 
 
 94. Where the evidence tends equally to sustain either of three 
 propositions, that property was lost, stolen, or mis-delivered, no one 
 of them can be regarded as established. JDearborn v. Union Nat. 
 Bank, 58—273. 
 
 See Adttlteet, p. 11. 
 Pbbstjmption. 
 
230 EVrOENCB. 
 
 VI. WEIGHT AND SUFFICIENCY; PREPONDERANCE OF EVI- 
 
 DENCE AND REASONABLE DOUBT. 
 
 97. Reasonable Doubt. In the trial of civil causes the court will 
 not first determine whether the facts stated in the plaintiff's declarar 
 tion constitute a criminal offense, and then require of the plaintifi 
 more or less evidence, according to the conclusion reached. £howles 
 V. Scrihier, 57 — 495. 
 
 98. In an action of slander for charging one with adultery, a pre- 
 ponderance of testimony will support a plea of justification. Ellis v. 
 Buzzell, 60—209. 
 
 99. An explanation of a reasonable doubt as "a doubt which a 
 reasonable man of sound judgment, without bias, prejudice, or inter- 
 est, after calmly, conscientiously and deliberately weighing the testi- 
 mony, would entertain as to the guilt of the prisoner," is not erroneous, 
 because it omits the element of moral certainty of guilt ; at any rate, 
 when no request for an additional instruction is made. State v. JReed, 
 62—129. 
 
 100. To create a pebpondeeance of evidence, it must be sufficient 
 to overcome the opposing presumptions as well as the opposing 
 evidence. Decker v. Somerset Ins. Co., 66 — 406. 
 
 101. An instruction, calling the attention of the jury to the charac- 
 ter of the issue, and to remind them that more evidence should be 
 required to establish grave charges than to establish trifling or indif- 
 ferent ones, does not violate the rule requiring merely a preponder- 
 ance of evidence in civil cases. lb. 
 
 VII. BURDEN OF PROOF. 
 
 102. iNSANiTy. To establish a defense on th^ ground of insanity, 
 the burden is on the defendant to prove, by a preponderance of evi- 
 dence, that at the time of committing the act, he was laboring under 
 such a defect of reason, from disease of the mind, as not to know the 
 nature and quality of the act he was doing ; or, if he did, that he did 
 not know he was doing what was wrong ; partial insanity, if not to 
 the extent above indicated, will not excuse a criminal act. State v. 
 Lawrence, 57 — 574. See also Barnes v. Barnes., 66 — 286. 
 
 103. When seevices, valuable to another, are rendered with his 
 consent, he is liable to pay a reasonable compensation therefor ; and 
 if he would avoid payment on the ground that they were a gratuity, 
 or that the person performing them did so only with the expectation 
 that he should receive a portion of the other's property by will, the bur- 
 den of proof is upon him who afiirms such facts. Bumrill v. Adams, 
 57—565. 
 
 104. Negative. If a party relies upon the personal disqualifica- 
 tion of a magistrate to invalidate his ofiicial acts, the burden is upon 
 him to establish it by proof, and not upon the magistrate to prove a 
 negative. Call v. Pike, 68 — 217. 
 
 105. On the trial of an action of trespass, an instruction that if the 
 jury are satisfied of certain facts, "that the burden is upon the 
 defendants to show that they had a justification to enter in that man- 
 ner, and do the acts complained of," means that the plaintiff, having 
 made out a prima, facie case by possession, that evidence, if not 
 rebutted by the defendants, would be sufficient to maintain the plain- 
 
BVIDBNCB. 231 
 
 tiff's case ; and not that the burden of pi-oof changed. Woodcock v. 
 Calais, 68—244. 
 
 106. The question of burden of proof becomes important only when 
 the testimony is so nearly balanced upon a point that the jury are 
 unable to say that their minds incline either way with relation to it. 
 Which ever way the proof inclines their minds they should accept 
 that view of it. Bowdoinham v. Phippsburg, 63—497. 
 
 107. Negligence. In an action on the case, for damages, occa- 
 sioned by the carelessness of the defendant, in setting a fire upon his 
 own land, and negligence in keeping the same, the burden of proof is 
 upon the plaintiff, to show, that the injury was occasioned by the neg- 
 ligence or misconduct of the defendant. Sturgis v. Rohbins, 62 — 
 289. 
 
 108. In a suit against a physician for negligence in abandoning his 
 patient while in need of medical care, if the defendant justifies on the 
 ground that he gave notice that he should not attend further unless 
 sent for, the burden of proof is upon him to show the fact of such 
 notice. Ballou v. Prescott, 64 — 305. 
 
 109. Caeeibe. When a common carrier takes goods to be delivered 
 to a connecting stage, and does deliver them to the driver of the con- 
 necting stage, who converts them to his own use, the burden of proof 
 is not upon the carrier to show that the driver of the stage was trust- 
 worthy but upon the owner of the goods to show negligence on the 
 part of the carrier in delivering them to the driver. Plantation JSFo. 
 4 V. Hall, 61—517. 
 
 110. In a suit against a railroad company, by a passenger injured 
 by the cars leaving the track, while the general burden is upon the 
 plaintiff to show that the injury was caused by the negligence of the 
 company, yet, if the passenger appears to have been in the exercise of 
 proper care, and the cause of the accident does not appear from the 
 attending circumstances, the burden of explanation falls upon the 
 company. Stevens v. European & N. A. R. B. Co., 66 — 74. 
 
 111. Telegraph. In an action against a telegraph company for an 
 error iu the transmission of a message, the plaintiff makes out a case 
 by showing that the message was not correctly transmitted and that 
 from the error damage has resulted. After this if the company would 
 excuse itself the burden is upon it to show that the failure was caused 
 by some agency for which it was not responsible. Bartlett v. Western 
 Union Tel. Co., 62—209. 
 
 112. Bills and Notes. In an action, by the indorsee of a promis- 
 sory note, where it is proved that the note was fraudulently put into 
 circulation, the burden of proof is upon the plaintiff to show that he 
 came by it in the due course of business, for value, and unattended 
 with circumstances justly calculated to awaken suspicion. Hapgood 
 V. Needham, 59 — 442. Swett v. Hooper, 62 — 54. 
 
 See Faeeell v. Lotbtt, 68 — 326. 
 
 113. This appearing, the presumption arises that the note was 
 obtained without knowledge of the fraud or illegality, until the con- 
 trary is shown. Swett v. Hooper, 62 — 54. 
 
 114. In an action on a promissory note between the original parties 
 thereto, where a want of consideration is relied on as a defense, and 
 evidence is given on the one side in the affirmative, and on the other 
 
232 EVIDENCE. 
 
 in the negative, of the fact of consideration, the burden of proof is 
 upon the plaintiff to satisfy the jury upon the whole evidence of that 
 fact. Small v. Clewley, 62 — 155. 
 
 115. Rbplevhst. Where in replevin the brief statement alleges the 
 property to be in the defendant and not in the plaintiff, the title of 
 the latter is put in issue, with the burden upon him. Pope v. Jack- 
 son, 65 — 162. Lewis v. Smart, 67 — 206. 
 
 116. When the identity of the property and the genuineness of the 
 writing under which the plaintiff claims it are questioned, the burden 
 is upon him. Webber v. Mead, 65 — 564. 
 
 117. Agebed Statement of Facts. In an action by a R. R. Co. 
 against a town to recover back taxes on the ground that its place of 
 business was not in defendant town the onus is on plaintiff to show 
 where it was, and the suit will fail unless the statement shows it not to 
 have been in defendant town. P. S. <& P. JR. JR. Go. v. Saco, 60 — 
 196. 
 
 118. On the trial of an appeal from the decree of a probate court 
 allowing an administration account, where it is alleged that the admin- 
 istrator charged excessive commissions, the burden of proof is upon 
 him to establish the correctness of his claim. JifcLoon v. Spaulding, 
 62—315. 
 
 119. Will. The burden of proving the due execution of an instru- 
 ment offered for probate as a will, and the competency of the alleged 
 testator to make it, is upon the proponent throughout. JRobinson v. 
 Adams, 62 — 369. Harnes v. Barnes, 66 — 286. 
 
 120. Abatement. On a plea in abatement alleging the interest of 
 the magistrate before whom an action is returnable, and a traverse by 
 the plaintiff, the burden is upon the defendant, to show the existence 
 of the alleged interest. Bellows v. Murray, 66 — 199. 
 
 See Bailment, 13, p. 53. 
 
 VIII. DECLARATIONS AND ADMISSIONS. 
 
 (a) GrENEBALLY. 
 
 (b) Of P ARTIES TO THE EBCOBD AND IN INTEREST. 
 
 (c) Of third persons. 
 
 (d) Of grantors in deeds. 
 
 (a) Generally. 
 
 122. Statements made by a person out of court, which are incon- 
 sistent with his material testimony in the trial of a cause, are compe- 
 tent by way of contradiction. State v. Kingsbury, 58 — 238. 
 
 123. Thus where, in the trial of a person for procuring another to 
 maliciously burn a certain meeting-house, the wife of the defendant 
 had testified that no inducements, as testified to by the accomplice, 
 were held forth, on a certain occasion, nor means furnished him by 
 her husband for firing the meeting-house, — it is competent for the 
 purpose of contradicting her, to prove that when her husband was 
 first arrested, and she was informed that the accomplice had turned 
 State's evidence, and charged her husband with inciting him to fire 
 the building, she replied, "Well, he never would have done it, if it 
 had not been for others, — others were more to blame than he was." 
 Ih. 
 
EVIDENCE. 233 
 
 124. Every falsehood, uttered by way of exculpation, in relation 
 to a crime, of which one knows himself to be suspected, is evidence 
 tending to show guilt, the effect of which is for the jury. State v. 
 Beed, 62—129. 
 
 125. Failueb to Contradict Testimont. The cases which hold 
 that a failure to contradict testimony given, or assertions made, in 
 the progress of judicial proceedings, imports no admission of their 
 truth, are inapplicable since the passage of the statutes allowing par- 
 ties to be witnesses. Elanchard v. Hodgkins, 62 — 119. 
 
 126. It is competent to show that, on a former trial between the 
 same litigants, involving the same subject matter, in the presence of 
 a party, testimony was given to establish certain facts, and that at 
 that time, the party did not contradict such testimony, though he tes- 
 tified as a witness in his own behalf. lb. 
 
 127. A plea of nolo contendere is an admission of guilt. State v. 
 Plunkett, 64—534. 
 
 See Post, 181. 
 
 (b) Of parties to the record and in interest. 
 
 128. In an action by an executoe, his declarations made before 
 the appointment are inadmissible. Brooks v. Goss, 61 — 307. 
 
 129. CoEEOBOKATivE. It is a general rule that the declarations 
 of parties or witnesses in their own behalf, made out of court, are 
 inadmissible. Sidelinger v. Bucklin, 64 — 371. 
 
 130. The declarations of the complainant in bastardy process, that 
 the respondent was the father of her child, are inadmissible. lb. 
 
 131. A witness cannot corroborate his testimony by his own state- 
 ments made elsewhere. JPulsifer v. Crowell, 63 — 22. Bowers v. 
 Cary, 64—9. 
 
 132. Upon a trial for laecbnt the declarations of the prisoner, 
 after the goods were in his possession, that he found them are not 
 admissible in his favor. State v. Pettis, 63 — 124. 
 
 133. Real Paett. The declarations and admissions of the real 
 party in interest, though his name does not appear as the party of 
 record, are competent evidence against him. Bigelow v. Foss, 59 — 
 162. Match v. Brown, 63—410. 
 
 134. The payee of the negotiable promissory note in suit, indorsed 
 and delivered it nearly three years after its maturity to her son, who 
 sold and delivered it to the plaintiff. The money for which the 
 defendant gave the note was sent by the son to his mother. The 
 plaintiff offered evidence tending to prove that the money was the 
 son's, and loaned as his to the defendant, the mother taking the note 
 in her name, simply as his trustee, which the defendant denied, and 
 offered evidence tending to prove that the son sent the money to his 
 mother in part-payment for a place owned by her, which she was to 
 convey to him when paid for ; that the money was delivered to the 
 defendant by her, to be allowed in redemption of the place on which 
 she and her husband lived, but the title to which was in the defend- 
 ant ; that the note was to be given up when the defendant delivered 
 the deed to her, which was subsequently done ; that the note was duly 
 reckoned and surrendered in the settlement, but accidentally or other- 
 wise carried away among other papers. The son was not called as a 
 
234 EVIDENCB. 
 
 witness ; but the defendant offered to prove his declarations made 
 prior to his delivery of the note to the plaintiff that the note had been 
 paid. Held, that the evidence was admissible. Eaton v. Corson, 
 59—510. 
 
 135. In the trial of a real action, brought for the sole purpose 
 of enforcing a claim for the life-maintenance of the surviving 
 widow of the mortgagee, in the name of the administrator of the 
 mortgagee, on a mortgage conditioned for the maintenance of the 
 mortgagee and his wife, her acts and declarations tending to show, 
 that, at the time of the mortgager's conveyance of the mortgaged 
 premises by deed of warranty to the defendant's grantor since the 
 death of her husband, she knew the sale was contemplated, and 
 actively aided and assisted in bringing about the sale of the premises 
 at their full value, and urged the mortgager's grantee to purchase 
 without mentioning her claim, and relying upon the joint representa- 
 tions of the mortgager and the widow, he did purchase without sus- 
 pecting there was any incumbrance upon the premises. Held, that 
 the facts constitute a def ense,-and that they are admissible in evidence. 
 Bigelow v. Foss, 59 — 162. 
 
 136. The law in regard to this source of evidence, looks chiefly to 
 the real parties in interest, and gives to their admissions the same 
 weight as though they were parties to the record. Ih. 
 
 137. The written admissions of a party to a suit, are receivable 
 against him to prove a fact directly in issue, though such facts are 
 proved by a writing, not produced or accounted for. JSlackington v. 
 JRocMand, 66—332. 
 
 138. Weit. The allegations in a writ of replevin as to quantity, are 
 not conclusive on the plaintiff. They may be considered as declarations 
 of his, but they are not binding on him, if mistaken ones. Washing- 
 ton Ice Co. V. Webster, 68 — 449. 
 
 139. An BNTiEE DiscLOSUEB made by a party to a suit, as trustee 
 in another suit, may be read in evidence against him, to show that he 
 omitted to claim therein to be the owner of property, if the omission 
 was inconsistent with such claim, although the disclosure contains 
 matters foreign to the point at issue. Eaton v. Telegraph Co., 68 — 
 63. 
 
 140. Effect. The admissions or statements of a defendant, who 
 is a competent witness, but does not testify, must be regarded as true 
 when neither contradicted nor in any way modified by other testi- 
 mony. JRohinson v. Stuart, 68 — 61. 
 
 141. The declarations of a party adverse to his own interest, are 
 entitled to grave consideration, but are not conclusive. Hunter v. 
 Heath, 67—507. 
 
 142. An admission made at the first trial, if reduced to writing, or 
 incorporated into a record of the case, will be binding at another trial 
 of the case, unless the presiding justice in the exercise of his discre- 
 tion, thinks proper to relieve the party from it. Holley v. Young, 
 68—215. Woodcock v. Calais, 68—244. 
 
 143. After proof of the destruction of the records of the probate 
 court, where an alleged partition of land, made more than forty years 
 since, should be recorded, evidence of the declarations of an occu- 
 pant of the land about that time, who had since died, was admitted 
 
EVIDENCE. 235 
 
 to show .the nature of his occupation, and the fact of the partition, 
 JSTason v. Jordan, 62 — 480. 
 
 (o) Of third persons. 
 
 144. Agent. The declaration of an agent in regard to a past tran- 
 saction are not admissible against the principal. Partridge v. White, 
 59—564. Heath r. Jaquith, 68—433. 
 
 145. There must be proof of an agency before the declarations of an 
 agent are admissible, and then only such are received as are strictly a 
 part of the res gestae. Sleeper v. Union Insurance Co., 61 — 267. 
 
 146. A shipmaster and owner procured a marine insurance policy 
 upon his one-quarter of his vessel, "on account of whom it may con- 
 cern ;" loss payable to himself. The vessel was lost during the voy- 
 age covered by the policy, with the master and all on board. The 
 plaintiff, a creditor of the deceased master, brought this action upon 
 the policy, claiming that it was obtained for his benefit. He intro- 
 duced testimony of the declarations of the deceased, that if the plain- 
 tiff would make him a loan, he would secure him by a policy on this 
 vessel ; and subsequent declarations that the loan had been made to 
 him by the plaintiff, and that he had secured the plaintiff by procur- 
 ing a policy for his benefit. It was /leld, that this testimony was inad- 
 missible without proof that the deceased was acting as plaintiff's 
 agent, in effecting the insurance, and that the declarations themselves 
 were not competent for this purpose. /Sleeper v. Union Ins. Co., 61 
 —267. 
 
 147. Where a sale of certain property is alleged to have been fraud- 
 ulent, the declarations of a third person, who, with the alleged fraud- 
 ulent vendee, directed its unloading from the cars, and said he had 
 bought it at a bargain, but who was not a party to the suit or a wit- 
 ness, made at another time, to one in no way connected with the suit, 
 are not admissible. Rice v. Perry, 61 — 145. 
 
 148. The defendant, in an action on a promissory note to show fraud 
 in its inception, introduced as a witness, the agent of the Granite 
 Agricultural works, whose promise was the consideration of the note. 
 Held, that the defendant could not introduce the declarations of the 
 witness, not accompanying any act within the scope of his agency, 
 that he had not sold the note but left it for collection. Heath v. Jor- 
 quith, 68—433. 
 
 149. In an action against A., B., and C, upon a note purporting to 
 be signed by them all, of whom A. denies the genuineness of his 
 signature, evidence of the declarations of B., made to a person to 
 whom he showed the note bearing the signature of A., that A. had 
 signed it, are inadmissible against A. Gains v. Hasty, 68 — 361. 
 
 150. Testator. A will was alleged to have been torn in pieces by 
 the testator, and then pasted together again. Evidence was offered : 
 (1)_ Of the declarations of the testator made during his last sickness, 
 while having the will in his possession, and while pasting the torn 
 parts together, or reading it after it had been so pasted, that the will 
 had been torn by his mother, but that he had fixed it together again ; 
 (2) declarations of good will for his wife, the principal legatee, and 
 that he had given her all his property, but unaccompanied by any act 
 of the testator ; (3) declaratioris of good will for his wife, without 
 any mention of his property. On the question of the admissibility of 
 
236 EVIDBNCB. 
 
 these declarations the court was evenly divided. Collagan v. Burns, 
 57_449. 
 
 151. The rule allowing the introduction of the declarations of a tes- 
 tator to show the condition of his mind is very general, and admits 
 much that would be excluded if offered to prove facts. JRohinson v. 
 Adams, 62—370. 
 
 152. Health. "When the health of a person is a material fact to 
 be proved, the declarations of such person descriptive of the state of 
 his health at the time they are made, and "such complaints, exclama^ 
 tions, and expressions as usually and naturally accompany and fur- 
 nish evidence of a present existing malady," are admissible in evidence. 
 Asbury Ins. Co. v. Warren, 66 — 523. 
 
 153. But the declarations of past transactions, feelings or facts, for 
 the purpose of proving the past state of health of the person making 
 them, "being in the nature of narrative," are not admissible. lb. 
 
 154. The declarations of a person (not a witness), relating to the 
 past state of his health, are not admissible to contradict a statement 
 made in writing by him, respecting his health, and the rule is the same 
 if the writing purporting to be signed by him was forged. Such 
 declarations are mere hearsay. lb. 
 
 155. In a replevin suit in which the plaintiff seeks to recover from 
 an attaching olficer, goods claimed to have been obtained from the 
 plaintiff by the debtor, by fraudulent representations, evidence of the 
 admissions of the debtor, tending to show the fraud, made after the 
 attachment, are not admissible. Tarr v. &mith, 68 — 97. 
 
 (d) Of grantors in deeds. 
 
 156. The declarations of a grantor, subsequent to his deed, are 
 inadmissible to defeat it. Worthing v. Worthing, 64 — 335. 
 
 157. A subsequent deed from a grantor to another grantee of the 
 same premises, conveyed in the prior deed, is not admissible to de- 
 feat the prior deed, for it is merely the subsequent declaration of the 
 grantor. lb. 
 
 158. In the trial of a writ of entry to recover a part of lot seven- 
 ty-one, the declarations of an owner (since deceased), of a lot adjoin- 
 ing seventy-one, on the west, while surveying it for the purpose of 
 conveying it, that a certain monument at which he was then standing 
 was the declarant's northeast corner, are not admissible. Sullivan 
 Granite Co. v. Gordon, bl — 520. 
 
 159. Thus, the defendant in such action, seeking to show that a 
 certain monument was the true northeast corner of an adjoining lot, 
 and on the west line of seventy-one, testified against objection, that he 
 bought of one Miller (since deceased), twenty-five acres of the Miller 
 lot, adjoining seventy-one on the west; that when it was run out to 
 him, he and Miller were present with the surveyor ; that they run to 
 the spot now claimed by the defendant as the true Miller corner, and 
 that Miller then and there showed him the place, and told him it was 
 Miller's northeast corner. Seld, that the declarations of Miller were 
 inadmissible. lb. 
 
 IX. EEPUTATIOIS'. 
 
 160. In an action of slander, evidence of the reputation of the 
 
EVIDENCE. 237 
 
 defendant for wealth is admissible. Stanwood v. Whitmore, 63 — 
 209. 
 
 161. On the trial of an indictment for keeping a house of ill fame, 
 evidence of the reputation of the house is not admissible. State v. 
 Boardman, 64 — 523. 
 
 162. BiA evidence of the reputation of the women frequenting the 
 house, and of their conversation and acts in and about it are admissi- 
 ble, lb. 
 
 163. In an action of assault and battery, evidence of the peaceful 
 character of the defendant is not admissible. Soule v. Bruce, 67 
 —584. 
 
 164. In an action for malicious prosecution, it is competent for the 
 defendant to prove, as having some bearing upon the questions of 
 want of probable cause, and malice in fact, that prior to the prosecu- 
 cution complained of, it was the common report in the neighborhood 
 of the parties, that the plaintiff had committed the crime for which 
 he was prosecuted. Pullen v. Glidden, 68 — 559. 
 
 X. OPINIONS. EXPERT TESTIMONY. 
 
 165. The question, whether an unoccupied building is a more 
 hazardous risk than one occupied, does not relate to matters of skill 
 or science, and the opinion of a witness is not admissible. Cannell v. 
 Phenix Ins. Go., 59—582. 
 
 166. Witnesses to a "Will, though not experts, may testify as to 
 the opinion which they formed of the testator's soundness of mind at 
 the time of executing the will, without first stating the premises from 
 which their conclusion is drawn, though all the facts seen or known 
 by the witness at the time are proper subjects of inquiry. Robinson 
 V. Adams, 62—369. 
 
 167. At the time of the burning of a farm house and bam the wind 
 was blowing fresh from the southwest ; it had been snowing ; no water 
 or snow had been used on the fire ; the buildings were of wood ; the 
 fire broke out in the barn which was northeast of the house, and 
 twenty-six feet from it, and had made some progress when discov- 
 ered ; the house was found to be on fire on the inside a very short 
 time after fire was seen in the barn. The question arising whether 
 the house took fire from the barn, held, that the opinion of firemen 
 whether or not it could have so taken was not admissible as expert 
 testimony, nor was their testimony whether or not it is a common 
 occurrence for fire to be communicated from leeward to windward, 
 across a space greater than twenty-six feet, or whether large fires 
 make their own currents, frequently eddying against the prevailing 
 wind. State v. Watson, 65 — 74. 
 
 168. Held, also that, if the case had been one where expert testi- 
 mony should have been received, the experience of firemen accus- 
 tomed to fires among the crowded buildings of cities, would not be 
 relevant or useful in the case of a farm house in the open country. 
 
 169. A question to a medical expert, "for the purpose of arriving 
 at a correct conclusion in the case of the death of a person, where 
 you do not know, to your own satisfaction, what caused the death, 
 how long a time should two men give to a post mortem examination," 
 
238 EVIDENCE. 
 
 and the further question, whether four hours -would be sufficient, were 
 held inadmissible on a trial for manslaughter, the witness not appear- 
 ing to have any knowledge of the case, or of the post mortem exam- 
 ination of the deceased. State v. Pike, 65 — 111. 
 
 170. On the trial of an indictment for manslaughter, by throwing 
 the deceased violently upon a sofa, the prosecution was allowed to ask 
 a medical expert who made a, post mortem examination whither such 
 a wound as they found might have been produced by contact with a 
 body of hard material without points or angles, and whether it might 
 have been produced by a hard substance, padded like a sofa. lb. 
 
 171. On the trial of an action for obstructing the passage of the 
 plaintiff's logs down a stream claimed to be floatable, by a dam 
 erected thereon by the defendant, the opinion of a witness accus- 
 tomed to driving logs, as to the possibility of driving logs at that time 
 of the year down the stream without the assistance of the water held 
 back by the dam, and also as to the comparative cost of driving the 
 logs without the assistance of the water held back by the dam, and 
 driving them to the dam, and then hauling them by land, is not 
 admissible. Molden v. Hobinson Co., 65 — 215. 
 
 172. When the amount of damage for land taken for a way (rail- 
 road) is in controversy, persons acquainted with the land and its value 
 may state their opinion as to the amount of damage sustained, the 
 value of the part of the land taken, and of the part left. /Snow v. 
 Boston <b Maine B. B. Co., 65—230. 
 
 173. It seems that the opinion of a witness is admissible when it is 
 founded upon knowledge equally open to all, and relates to the ordin- 
 ary affairs of life, such as the value of property, or the identity of a 
 person, or whether a person was under the control of any particular 
 feeling or passion. Ih. 
 
 174. A witness testifying to threats made by a person in his pres- 
 ence, may be allowed to state whether the words were spoken angrily 
 or not. Stacy v. Portland Pub. Co., 68 — 279. 
 
 175. But not what he (the witness) understood the speaker to mean 
 by the words spoken. lb. 
 
 176. A witness may testify that a person was intoxicated at a time 
 when such person came under his personal observation. Such testi- 
 mony is not the statement of an opinion in the objectionable sense. 
 
 177. Valttb. It is not necessary, in order to qualify one to give 
 an opinion as to values, that his information should be of such a direct 
 character as would make it competent in itself as primary evidence. 
 
 Washington Ice Co. v. Webster, 68 — 449. 
 
 178. Prices current obtained from the agent of a manufacturer or 
 from dealers in the manufactured article generally, and which have 
 been prepared and used by parties furnishing them in the ordinary 
 course of their business, are so far evidence of the value of the article 
 mentioned in them, as that they may be submitted to the jury. lb. 
 
 179. The weight to be attached to this kind of evidence depends on 
 the means of knowledge of the witness as ascertained upon his direct 
 and cross-examination. lb. 
 
EVIDENCE. 239 
 
 XI. JUDGMENTS AND RECORDS. 
 
 (a) Gbnerai.lt. 
 
 (b) Ancient Rbcobds. 
 
 (c) Copies. 
 
 (a) Generally. 
 
 180. The judgment of the probate court upon a citation to the 
 administrator to inventory certain property belonging to the estate of 
 his intestate, is not admissible in an action upon the administrator's 
 bond, especially when an appeal from such judgment is pending. 
 JBourne v. Stevenson, 58 — 499. 
 
 181. The record of the committing magistrate showing that the res- 
 pondent in an indictment pleaded guilty to the complaint is admissi- 
 ble upon the final trial. Oral testimony is also admissible. State v. 
 Bowe, 61—171. 
 
 182. Upon the trial of one charged with having in his possession 
 intoxicating liquors with intent to sell the same in violation of law, 
 the record of a previous conviction for a similar offense is admissible 
 upon the question of intent. State v. JPlunkett, 64 — 534. State v. 
 Magle, 65—468. 
 
 183. Ecclesiastical. The records kept by a permanently organ- 
 ized ecclesiastical body, having regular public sessions, are competent 
 evidence of their acts and doings, whenever such acts and transactions 
 are relevant to the issue. JVason v. First Church, 66 — 100. 
 
 184. CoEPOEATiON. In an action against a railroad company for 
 injuries sustained by the plaintiff through the alleged negligence of 
 the railroad employees, a book containing the rules of the company is 
 admissible in evidence. Hohhs v. Eastern JR. JR. Co., 66 — 572. 
 
 185. On the trial of an indictment for keeping a drinking-house 
 and tippling shop, and for being a common seller of liquors, the record 
 of two convictions for single sales, and one on search and seizure pro- 
 cess, during the time covered by the indictment, is admissible. State 
 V. Gorham, 67 — 247. 
 
 186. When a fact is to be shown by an official record it seems that 
 either the original record, or a certified copy, may be received in 
 evidence. Sawyer v. Garcelon, 63 — 25. State v. Gorham, 65 — 270. 
 
 187. And the original is admissible whether it is or not improperly 
 taken from the office where law requires that it shall be constantly 
 kept. Ih. 
 
 188. The docket entries may be read to the jury when a more 
 extended record has not been made. State v. Neagle, 65 — 468. 
 
 189. A book containing a record of the names of persons paying 
 special taxes, kept at the office of the collector of internal revenue by 
 requirement of a law of the United States, is admissible as prima 
 facie evidence of the facts therein stated. State v. Gorham, 65 — 270. 
 
 190. Where one taking property from the real owner causes the 
 property, after it is in his possession, to be weighed by one not shown 
 to have been appointed and sworn as a weigher according to R. S., c. 
 33, §§ 5 and 6, and on scales not shown to be sealed, as required by § 
 8, and the weight is entered in a book containing only the weight of 
 the articles replevied, and the weigher dies, — the weighing being ex 
 parte, not in the ordinary course of business as between buyer and 
 
240 EVIDBNCB. 
 
 seller, and being post litem motam, — for the purpose of creating evi- 
 dence to affect the result, the book is a record made at the instance of 
 a wrong doer and for his protection and is not admissible. Washing- 
 ton Ice Co. V. Webster, 68 — 449. 
 See Ante, 42. 
 
 (b) Ancient records. 
 
 191. Where ancient books, purporting to be the records of propri- 
 etors of lands, contain obvious internal evidence of their own verity, 
 and there is no evidence of the present existence of the proprietary, 
 or any person representing it, or any clerk or other person authorized 
 to keep the records, they are admissible in evidence without extrane- 
 ous evidence of their authenticity, or of the legal organization or 
 subsequent meetings of the proprietors. Goodwin v. Jack, 62 — 414. 
 
 192. Copies of letters and other fugitive papers relating to the 
 affairs of the proprietary, found extended upon these records are 
 admissible without evidence of the existence, loss or destruction of 
 the originals, no suspicion resting upon their authenticity. lb. 
 
 (c) Copies. 
 
 193. A certificate of a fact appearing of record is not admissible 
 unless it is a copy of the record certified by the proper officer. 
 Atwood V. Winterport, 60 — 250. 
 
 194. By the ancient records of proprietors of land it appeared that 
 J. M. was employed by them to draw a plan of a township from 
 actual survey in 1768 ; by parol evidence it was shown that a plan, 
 purporting to be his, was, several years ago, in the possession of a 
 gentleman since deceased, but could not now be found. Held, that a 
 plan produced, purporting to be certified by J. M., as a copy of the 
 original plan drawn by him at the request of the proprietors was 
 admissible as a copy, there being testimony that it was the same as the 
 original. Goodwin v. Jack, 62 — 414. 
 
 195. An ofiice copy of a deed, recorded in a registry district other 
 than that in which the land is situated, is inadmissible. Jewett v. 
 persons unknown, 61 — 408. 
 
 196. Record copies of deeds of the land agents of Maine and 
 Massachusetts, to grantees under whom all the parties derived their 
 title, are admissible under R. S., c. 82, § 99. lb. 
 
 197. When the record of former judicial proceedings in the same 
 court are introduced in evidence, either the original record or a certi- 
 fied copy may be put in. Swwyer v. Garcelon, 63 — 25. 
 
 XII. OTHER PRINCIPLES. 
 
 198. A cash item of six dollars and sixty-seven cents is the largest 
 amount that can be proved by a party's book and suppletory oath. 
 Kelton V. Sill, 58—114. 
 
 199. Telegraphic communications are not privileged. A tele- 
 graphic operator is bound, as a witness, to disclose them. State v. 
 Litchfield, 58—267. 
 
 200. A written contract between the parties, relating to the sub- 
 ject matter of the suit, is not inadmissible in evidence because one of 
 the parties offers evidence tending to prove that it has been rescinded, 
 
EVIDBliirCE — EXCEPTIONS. 241 
 
 if the other party claims the contrary. Bailey v. Blanchard, 62 — 
 168. 
 
 201. When an intent to injure the plaintiff is charged in the declar- 
 ation, evidence tending to negative such intent does not become inad- 
 missible because the plaintiff offers to strike out the allegation as to 
 intent but does not do so. Sturgia v. Bobbins, 62 — 289. 
 
 202. The contents of -what was in the outset a mere notice to the 
 adverse party, may be proved without previous notice to him to pro- 
 duce it. Brooks V. Blaney, 62 — 456. 
 
 203. When a party is seasonably notified under the twenty-seventh 
 rule of court, to produce, at the trial, a specified book, and it is pro- 
 duced, and the party calling for it examines it, but does not introduce 
 it in evidence, the party producing it may introduce so much as is 
 pertinent. Merrill v. Merrill, 67 — 70. 
 
 See Fraud, 83, et. seq. 
 PooB Debtob, 8, 14. 
 Wat, 146. 
 
 EXCEPTIONS. 
 
 I. THEIR ALLOWANCE. 
 II.' WAIVER OF. 
 
 III. WHAT WILL BE CONSIDERED UNDER EXCEPTIONS. 
 
 IV. IN WHAT CASES EXCEPTIONS DO OR DO NOT LIE. 
 
 V. MUST SHOW THE EXCEPTING PARTY TO BE AGGRIEVED. 
 
 VI. IMMATERIAL RULINGS. 
 
 VIL ABSTRACT INSTRUCTIONS. 
 
 Vin. RULINGS FAVORABLE TO THE EXCEPTING PARTY. 
 
 IX. SPECIFIC OBJECTIONS AND REQUESTS. 
 
 X. GENERALLY. 
 
 X. THEIR ALLOWANCE. 
 
 1. Exceptions not appearing on their face to have been allowed 
 will not be considered Manheim v. Carr, 62 — 473. 
 
 2. Exceptions must be taken at the term at which the ruling is 
 made. Carleton v. Lewis, 67- — 77. 
 
 8. The exceptions should be signed by the excepting party, or his 
 counsel, as well as by the presiding judge. Butler v. Bangor, 67 — 
 oo5. 
 
 4. One not in court and not a party, is not entitled to file excep- 
 tions. Beed v. Cumb. <& Oxford Canal Co., 65 — 53. 
 
 5. If the proper notice has not been given a defendant, in quo war- 
 ranto proceedings, and the defect has not been waived by an appear- 
 ance, he is not in a situation to file exceptions to an order requiring 
 hmi to answer on or before a specified day, because, if he is properly 
 in court the order is discretionary and exceptions do not lie, and if he 
 is not in court he is not a party, is not entitled to file exceptions, and 
 there is no need of any as the order is simply void. lb. 
 
242 EXCEPTIONS. 
 
 II. WAIVER OF. 
 
 6. Under the 19tli rule of court a motion in arrest of judgment, 
 made while exceptions taken at the trial are pending, is not a waiver 
 of the exceptions. State v. Lang, 63 — 215. 
 
 7. When a plea in abatement in a criminal case is adjudged bad on 
 demurrer, the defendant does not by pleading over waive his right of 
 exceptions to the ruling upon his plea in abatement. State v. Pike, 
 65—111. 
 
 III. WHAT WILL BE CONSIDERED UNDER EXCEPTIONS. 
 
 8. An exception to a whole charge, or the most of it, in gross, 
 will not be sustained, unless all the legal propositions contained in the 
 charge, or the portion excepted to, are erroneous. Macintosh v. 
 BartUtte, 67 — 130. Harriman v. Sanger, 67 — 442. JBatchelder v. 
 Pinhham, 68—253. 
 
 9. On exceptions, the court will not consider the findings of the 
 jury as to whether the verdict is or is not against the weight of 
 evidence. Harmon v. Harmon, 61 — 222. 
 
 10. When the stbnogeaphee's ebport of the evidence is made 
 a part of bill of exceptions, it must control the allegations of the 
 exceptions as to matters of fact, if there is a conflict between them. 
 Harmon v. Harmon, 63 — 437. 
 
 11. An objection not stated in the exceptions is not available 
 before the law court. Sargent v. Machias, 65 — 591. 
 
 12. When the exceptions to a ruling, overruling a general demurrer 
 to a declaration, state that "the ground of the demurrer is that the 
 action does not survive," the law court is confined to that ground 
 alone, whatever may be the formal defects of the declaration. Withee 
 V. Brooks, 65 — 14. 
 
 13. It is proper for the court in settling exceptions to require the 
 excepting party to insert such parts of the testimony as may have a 
 bearing upon the question of the pertinency of the instructions. 
 Lewis V. Smart, 67 — 206. 
 
 14. Upon exceptions to the admission of a paper without first 
 proving its execution, when for aught that appears the paper may 
 have been declared on, or mentioned in some specification, by the 
 plaintiff, and it does not appear that the affidavit required by the tenth 
 rule of court was made, no error is made affirmatively to appear. 
 Becker v. Somerset Ins. Co., 66 — 406. 
 
 15. When a party excepts to the admission of oral testimony, and 
 it does not appear for what purpose it was offered, or the ground of 
 the objection, and there are purposes for which it might be admissi- 
 ble, the exceptions will not be sustained. lb. 
 
 16. Exceptions to the exclusion of a part of a deposition will not 
 be sustained when no part of the deposition appears in the excep- 
 tions. Merrill v. Merrill, 67 — 70. 
 
 17. Nor will they be sustained because of a refusal to give a 
 requested instruction based on the fact that the declaration "as the 
 plaintiff claimed" set forth a felony, when neither the writ or plead- 
 ings is made a part of the exceptions. Carleton v. Lewis, 67 — 77. 
 
 18. Exceptions will not be sustained because the presiding judge in 
 
EXCEPTIONS. 243 
 
 his remarks about the testimony used the expression "as has been 
 stated by. counsel," when it does not appear to which of the counsel 
 he referred. Merrill v. Merrill, 67 — 70. 
 
 19. To entitle a party to a new trial upon the ground of an bxpees- 
 siON OF OPINION by the presiding judge upon a question of fact, the 
 exceptions must show in some manner what the issue was upon which 
 the alleged opinion was expressed. lb. 
 
 20. The defendant town voted to pay each drafted citizen who paid 
 the commutation fee, three hundred dollars ; and the vote was ratified 
 by an act of the legislature. In an action to recover the sum voted, 
 the presiding judge instructed the jury — "that the only question they 
 were to. determine was whether the moderator and clerk were quali- 
 fied, and if they should find that those officers were duly sworn, their 
 verdict should be for the plaintiff ;" and the verdict being for the 
 plaintiff, the defendant alleged exceptions. JETeld, that the exceptions 
 raised the validity of the ratifying act. Thompson v. Fittston, 
 59—545. 
 
 21. In exceptions the points of law should be distinctly presented 
 and the facts stated as fully as is necessary to enable the court to 
 appreciate the applicability of the instructions and determine their 
 correctness, but a full report of the evidence and of the charge should 
 be avoided. Bradstreet v. Bradstreet, 64 — 204. 
 
 22. A bill of exceptions can not be added to or supplemented by 
 statements of counsel made at the argument in the law court. Allen 
 V. Lawrence, 64 — 175. 
 
 23. The question of the admissibility in evidence, of certain 
 answers in a deposition, can not be presented to the full court unless 
 the bill of exceptions contains a copy of such answers. Webster v. 
 Folsom, 58—230. 
 
 24. A provision, in the bill of exceptions, that the depositions "may 
 be referred to, but not copied," is not sufficient. lb. 
 
 25. Evidence reported upon a motion for a new trial, can not 
 be considered in a hearing upon exceptions, when such evidence is 
 not referred to in, or made part of, the exceptions. Maxwell v. 
 Mitchell, 61—106. Molbrooh v. Knight, 67—244. 
 
 26. Where in scire facias against a trustee, the exceptions state 
 that the trustee was discharged on said disclosure, it can not be con- 
 tended that he was discharged because of the failure on the part of 
 the plaintiff to exhibit the record alleged in the writ, unless such fail- 
 ure appear in the disclosure. Brainard v. Shannon, 60 — 342. 
 
 27. If in an action against a railroad company for the value of the 
 plaintiff's ox killed by their train, the defendants would have their 
 exceptions sustained upon the ground that the ruling complained of 
 is in conflict with the well established principle that a railroad com- 
 pany is not bound to fence against cattle wrongfully upon the adjoin- 
 ing close, it must appear from the exceptions that there was testimony 
 tending to show that the plaintiff's ox was wrongfully there. Oilman 
 V. K & JV. A. B. R. Co., 60—235. 
 
 28. Exceptions to the exclusion of a record will not be sustained 
 when they do not show what the record contained. Woodcock v. 
 Calais, 68—244. 
 
244 EXCEPTIONS. 
 
 29. Where the requests are couched in general terms, in order to 
 show that the excepting party has been aggrieved, all the • facts or 
 evidence embraced in the request must be stated ; and in any case 
 enough should be laid before the full court to enable them to say 
 what the rulings ought to have been in view of all the matters that 
 were of importance in the decision of the question. I'ullen v. Glid- 
 den, 68—559. 
 
 IV. m WHAT CASES EXCEPTIONS DO OR DO NOT LIE. 
 
 30. In an attachment against a party respondent in a bill in equity 
 for not obeying a decree of the court, where the facts upon which the 
 rulings were predicated are not in dispute, and are stated as the 
 ground of the rulings, it is proper for the presiding judge to allow 
 exceptions in order to present the case to the full court for revision ; 
 and if the rulings are found incorrect, they may be set aside. Snow- 
 man V. Harford, 57 — 397. 
 
 31. Rbpoet of Refbbbes. The acceptance or rejection of a 
 report of referees is a matter of discretion, and the decision of the 
 presiding judge is not subject to revision upon exceptions. JFurbish 
 V. Ponsardin, 66 — 430. 
 
 32. When the presiding judge allows a motion to re-commit the 
 report of a referee "as a matter of law" and exceptions are taken, the 
 question presented thereby is whether the judge had the legal right 
 to exercise the discretion to re-commit. Pitman v. Thornton, 65 — 95. 
 
 33. Complaints of the rulings, opinions or directions of a presiding 
 judge, as to matters of law, must be presented in the form of excep- 
 tions, unless the case is reported by him for the consideration of the 
 full court. Stephenson v. Thayer, 63 — 143. 
 
 34. Not Allowablb in Matters of Discbbtion. Exceptions can 
 only be founded upon some opinion or judgment of the court in mat- 
 ters of law, and not in matters of fact or discretion. Purr v. Pucks- 
 port t& Pangor P. P. Co., 64—130. 
 
 35. Exceptions do not lie to the refusal of a presiding judge, after 
 the testimony in a case is closed, to order a nonsuit, or to instruct the 
 jury to return a verdict for the defendant, the exercise of such power 
 being discretionary. Poody v. Goddard, 57 — 602. Carleton v. 
 Lewis, 67 — 76. 
 
 36. Exceptions do not lie to the permission by a presiding judge of 
 leading questions to a witness during the progress of the examination 
 in chief. Planchard v. Hodgkins, 62 — 118. 
 
 37. Exceptions do not lie to revise the decision of the presiding 
 judge upon the question whether the facts alleged in the information 
 for a writ of prohibition are substantially true as alleged. Walton v. 
 Greenwood, 60 — 356. 
 
 38. Exceptions do not lie to the refusal of the presiding judge to grant 
 a motion asking leave to plead, and claiming trial by jury, after the 
 time has elapsed within which the pleadings should regularly have 
 been filed, as such motion is addressed to the discretion of the presid- 
 ing judge. Peed v. Cumberland <& Oxford Canal Co., 65 — 132. 
 
 39. Nor to the refusal to. allow the defendant to plead anew, when 
 a general demurrer to the plaintiff's declaration filed after the first 
 
EXCEPTIONS. 245 
 
 term has been overruled. Winthrop Savings Bank v. Blalce, 66 — 
 285. 
 
 40. Where a judge at nisi prius decides as a matter of fact that the 
 subscribing witnesses to a deed are out of the State, and secondary 
 evidence of its execution to be admissible, exceptions do not ordinar- 
 ily lie to this decision. Jones v. Roberts, 65 — 273. 
 
 41. The FINDINGS or fact by the presiding justice to whom a cause 
 has been referred are final and conclusive, unless a new trial should 
 be granted for newly discovered evidence or other good cause. Knee- 
 land V. Webh, 68—540. 
 
 42. If the justice decides a question of law as one of fact, his decis- 
 ion is not conclusive. Kellogg v. Curtis, 65 — 59. 
 
 43. Exceptions will be sustained if the presiding judge permit 
 counsel, in addressing the jury, against seasonable objection, to pro- 
 ceed in his argument upon facts asserted by him, but of which no 
 evidence was introduced in the case, although the judge instructed 
 the jury that the facts were to be settled by the testimony in the case 
 given under oath. Rolfe v. Humford, 66 — 564. 
 
 44. DivoECE. The parties to a libel for divorce, a vinculo, tried 
 by the presiding justice, at nisi prius, are entitled to the right of 
 alleging exceptions to rulings admitting testimony. Slade v. Slade, 
 58—157. 
 
 45. And a party is not deprived of such right by waiving a previous 
 request for a jury trial. Jb. 
 
 46. In divorce cases, the amount (1) to be allowed the wife for 
 support while the libel is pending, (2) the amount of alimony, or of 
 the specific sum to be paid by the husband in lieu thereof, and (3) 
 the amount to be paid by him for the support of children, whose cus- 
 tody is decreed to the wife, is to be determined by the presiding 
 judge, and to his decision exceptions do not lie. Call v. Gall, 65 — 
 407. 
 
 V. MUST SHOW THAT THE EXCEPTING PARTY WAS 
 AGGRIEVED. 
 
 47. Exceptions will not be sustained unless the case shows affirm- 
 atively that the excepting party has been aggrieved by the ruling 
 complained of. Bryant v. Knox <& lAn. B. B. Co., 61 — 300. Booth- 
 hy V. Woodman, 66 — 387. Holbrooh v. Knight, 67 — 244. Becker 
 V. Somerset Bis. Co., 66 — 406. Bean v. Bolliff, 67 — 228. Soule v. 
 Winslow, 66 — 447. KirkpatricJc v. Hall, 67—543. 
 
 48. A new trial will not be granted on the ground that erroneous 
 instructions were given, unless it appears that they might have been 
 prejudicial to the excepting party. Bussell v. Turner, 59 — 256. 
 
 49. An instruction, that gross negligence is the utter disregard of 
 those precautionary measures which men of ordinary prudence would 
 adopt in such a case, is not a good reason for sustaining exceptions 
 where it is apparent that the case turned upon the finding as to the 
 actual condition and situation of a stove in which a fire was lighted, 
 and not upon any nice definition of what would constitute gross neg- 
 ligence. Campbell v. Monmouth Mutual Fire Ins. Co., 59 — 430. 
 
 50. A refusal to instruct the jury that a prisoner on trial for rape 
 
246 EXCEPTIONS. 
 
 may be found guilty of assault and battery is not prejudicial to the 
 prisoner. State v. Black, 63 — 210. 
 
 51. A remark in a charge that "if the prisoner is guilty you must 
 come to the conclusion that," a person named who testified for the 
 prisoner "was a confederate," affords the prisoner no ground of com- 
 plaint. State V. Benner, 64 — 267. 
 
 52. Exceptions will not be sustained for the refusal to give certain 
 requested instructions, as matters of law, when in effect they would 
 decide questions properly belonging to the jury. Mipley v. Hebron, 
 60—379. 
 
 53. In an action for injury to the person caused by a defective high- 
 way, an instruction, upon the question of damages, based upon the 
 assumption of the permanence of the injuries should be refused, since 
 the probable duration of their effect is solely for the jury. Colby v. 
 
 Wiscasset, 61 — 304. 
 
 54. Prior to the act of 1874, c. 212, comments upon the testimony 
 by a presiding judge, and even opinions as to its weight, decidedly 
 expressed, though erroneous, found no ground of exceptions, if the 
 force, effect, and weight of the testimony was not withdrawn from the 
 jury by an instruction as a matter of law, but left to their determin- 
 ation. State V. Reed, 62 — 139. Stephenson v. Thayer, 63 — 143. 
 
 55. In trespass qu. cl. to sustain exceptions upon the ground that 
 the plaintiff was allowed to recover for a trespass not committed up- 
 on land described in his deed or writ, enough of the case must be 
 presented to show that the locus was not well described in the writ. 
 
 Woodward v. JRobinson, 67 — 565. 
 
 VI. IMMATERIAL RULINGS 
 
 56. The admission of evidence wholly immaterial is not the subject 
 of exceptions. Baker v. Cooper, 57 — 388. Millett v. Marston, 62 
 
 —477. 
 
 57. The admission of irrelevant testimony will not be deemed suf- 
 ficient ground for a new trial, when the jury were instructed to disre- 
 gard it. State V. Kingsbury, 58 — 238. 
 
 58. When no question is made that the damages are excessive, if 
 any damages are recoverable, an exception taken to the exclusion of 
 evidence which could have a bearing only upon the amount of injury 
 sustained becomes immaterial. Moody v. Camden, 61 — 264. 
 
 59. A verdict will not be set aside because of the admission of 
 improper evidence which could not have had the slightest influence 
 upon a special finding of the jury on a point which is decisive of the 
 case. School District in Dresden v. ^tna Ins. Co., 62 — 330. 
 
 60. Upon exceptions by the defendant after a verdict against him, 
 if upon facts which are undisputed, the defense fails, the law court 
 will overrule the exceptions without determining whether all the-rul- 
 ings under which the verdict was rendered were strictly correct or 
 not. Matthews v. Fisk, 64 — 101. 
 
 61. When, by a special finding of the jury, a ruling becomes imma- 
 terial, its accuracy will not be examined upon exceptions. Webber v. 
 Bead, 65—564. 
 
 62. When an action proceeds upon two grounds for establishing 
 
EXCKPTIONS. 247 
 
 the liability of the defendant, if it is conceded that the plaintiff must 
 recover upon one ground the exclusion of evidence to relieve the 
 defendant upon the other, becomes immaterial. Farnsworth Co. v. 
 Band, 65 — 19. 
 
 63. A party is not injured by the exclusion of an admissible state- 
 ment of a witness, when the same statement in other portions of the 
 deposition is received. Staples v. Wellington, 58 — 453. 
 
 64. Exceptions will not lie to the admission of a written memo- 
 randum of a conversation which the witness has detailed upon direct 
 examination, when such memorandum is elicited and introduced upon 
 cross-examination. JBrooks v. Goss, 61 — 307. 
 
 65. Though the cross-examination of a witness is erroneously re- 
 stricted, exceptions for that cause will not be sustained, if the witness 
 afterward testified in full for the excepting party, who has no occa- 
 sion to avail himself of the privileges accorded to a party in regard to 
 an opponent's witness. Falmouth v. Windham, 63 — 44. 
 
 66. When a party has introduced parol evidence of the contents of 
 a receipt, it seems that he can not be prejudiced by the exclusion of 
 the receipt itself. Harmon v. Wright, 65 — 516. 
 
 67. Irrelevant Testimony. Exceptions will not be sustained, 
 because of the admission of irrelevant testimony, unless the excepting 
 party can show that he was aggrieved thereby. IIarrim,an v. Sang- 
 er, 67—442. 
 
 68. If the court can see that the irrelevant evidence was perfectly 
 harmless, — that it could not by any possibility have had any improper 
 influence upon the jury — a new trial may properly be refused. But 
 when, in addition to being irrelevant, it is of such a character as to 
 be liable to mislead, confuse, or improperly influence the jury, a new 
 trial should be granted. Mussey v. Mussey, 68 — 346. 
 
 69. Exceptions to the refusal of a presiding judge, to entertain a 
 motion to set aside a verdict as against evidence, when the evidence 
 is made a part of the exceptions, and shows that the verdict should 
 not be disturbed, will not be sustained. Lennox v. Knox & Lincoln 
 JR. B. Co., 62—322. 
 
 70. Where the presiding judge declined to allow exceptions to his 
 ruling, adjudging a plea in abatement bad upon demurrer, upon the 
 erroneous ground that by pleading over, the defendant had waived 
 his right to except, exceptions to the ruling declining to allow the ex- 
 ceptions were overruled, because the plea was bad. The exceptions 
 if allowed, must have been overruled, and the defendant therefore 
 was not aggrieved by the refusal to allow them. State v. Pike, 65 — 
 
 VII. ABSTRACT INSTRUCTION'S. 
 
 71. Although a requested instruction may be sound as an abstract 
 proposition, if there is no testimony from which the jury can legiti- 
 mately infer facts sufficient to base the instruction upon, a refusal to 
 give it is not good ground for exceptions. Bumrill v. Adams, 57 — 
 565. Lord v. Kennehunkport, 61—462. 
 
 72. It is not erroneous for a court to refuse to give requested in- 
 structions, although as abstract propositions of law they may be cor- 
 rect, if the law arising upon the evidence is given with such fullness 
 
248 EXCEPTIONS. 
 
 as to guide the jury to a correct result. Rumrill v. Adams, 57 — 565. 
 State Y. Heed, 62—129. State v. Watson, 63—128. Boherts v. 
 Plaisted, 63—335. State v. PiJce, 65 — 111. State t. MacBonald, 
 65—465. 
 
 73. Exceptions will not be sustained for a refusal to give an instruc- 
 tion too abstract, and not sufficiently applicable to the circumstances, 
 brought out by the evidence to be of any service. White v. Vose, 62 
 —184. 
 
 74. The court is not bound to give instructions upon facts not 
 proved in the case as existing. Soule v. Winslow, 66 — 447. 
 
 VIII. EULINGS FAVOEABLE TO EXCEPTING PARTY. 
 
 75. Where the answers to questions are favorable, or not injurious 
 to the party objecting, his exceptions to their admission will be over- 
 ruled. Montine v. Deahe, 57 — 37. 
 
 76. A party to whom instructions are favorable rather than other- 
 wise has no valid ground of exceptions. Cunningham v. Sorton, 
 57—420. 
 
 77. A party cannot sustain exceptions to an instruction which is 
 more favorable to him than the one which he requested to be given. 
 Staples V. Wellington, 58 — 453. 
 
 78. Thus, where a requested instruction contained the two propo- 
 sitions, (1) that the assignee of a debt need not notify the debtor of 
 the assignment, and (2) that if notice were given by the assignor, or 
 any third person, it would be sufficient to put the debtor upon inquiry 
 to ascertain the fact; and the instruction given negatived the ne- 
 cessity of notice by the assignee, and affirmed the sufficiency of notice 
 from any reliable source, as withdrawing the right of the debtor to 
 pay the assignor. Held, that as a notice, coming from an unreliable 
 source, would not be sufficient to induce inquiry, the instruction given 
 was more favorable to the debtor than the one requested by him, and 
 that he cannot sustain exceptions thereto. lb. 
 
 79. Although on the trial of an indictment for libel, the jury have 
 the right to determine whether the publication was libellous, yet if 
 the defendant expressly admits that it was libellous, and that he wrote 
 it claiming the right to go to trial upon the question of malice alone, 
 he cannot object to a ruling in accordance with this admission. State 
 V. Goold, 62—509. 
 
 IX. SPECIFIC OBJECTIONS AJSTD REQUESTS. 
 
 80. Objections to the admission of evidence must be specific in or- 
 der to sustain exceptions. Baker v. Cooper, 57 — 388. Bonney v. 
 Merrill, 57—368. 
 
 81. Where an illegal answer to a legal question in a deposition is 
 read, and the presiding judge immediately, in the hearing of the jury, 
 announces that the answer is inadmissible, but that as it has been read 
 he cannot exclude it, but shall instruct the jury to disregard it. A 
 new trial will not be granted on account of a failure to give a more 
 peremptory instruction, unless the judge was specially requested so to 
 do. Colldgan v. Burns, 57 — 449. 
 
EXCEPTIONS. 249 
 
 82. To he available, the grounds of objection to the admissibility 
 of testimony must be stated when offered. Staples v. Wellington, 
 58—453. . 
 
 83. In an action of money had and received, based upon certain 
 verbal, false and fraudulent representations of the defendant, as to 
 the credit of another, evidence of that fact was so interwoven with 
 other testimony which was admissible that any attempt at separation 
 in the story of the witnesses would have been impracticable, and the 
 evidence was not objected to, but the objection that the case was with- 
 in the statute of frauds was taken by exceptions to the charge of the 
 judge. Held, not too late. Hunter v. Randall, 62 — 423. 
 
 84. When on trial of an indictment for larceny, former con\3ctions 
 are alleged, and it does not appear in the exceptions that on the in- 
 troduction of the record of such convictions any objection was made 
 that there was no proof of the identity of the defendant, neither 
 does it appear whether there was or was not such proof, the point is 
 not open to the defendant at the argument before the law court. 
 State V. Regan, 63 — 127. 
 
 85. Specific Request. If a presiding judge misstates material 
 facts, or instructs the jury upon facts not proved, admitted, or fairly 
 inferable from the evidence, and his attention is seasonably called to 
 the error, it will be good ground of exception. Stephenson v. Thayer, 
 63—143. 
 
 86. If instructions are not sufficiently fiill, further instructions 
 should be requested. Hunter v. Heath, 67 — 507. 
 
 87. When a party seeking to avoid a sale as fraudulent, relies upon 
 a series of occurrences, happening before and after the sale to prove 
 the fraud, and the presiding judge in his charge calls the attention of 
 the jury to what occurred on one day as disconnected with subse- 
 quent events, it furnishes no grounds for exceptions unless specific 
 instructions are requested. Rice v. Perry, 61 — 145. 
 
 88. When testimony objected to is admissible for a special purpose 
 only, but is admitted without restriction or limitation it is erroneous. 
 Worthing v. Worthing, 64 — 335. 
 
 89. Where, in a trial, the statement of a third person was improp- 
 erly admitted in evidence against objection, and be was subsequently 
 called as a witness by the excepting party and testified to the truth of 
 the statement, which was not afterwards controverted, it was held 
 that the excepting party was not aggrieved. Tarr v. Smith, 68 — 97. 
 
 90. Exception does not lie to an instruction in the charge of a judge, 
 which was pertinent and proper upon the question he was presenting to 
 the jury, but which would have needed some qualification as applicable 
 to another point involved in the facts of the case, unless the attention of 
 the judge is called to such point by counsel at some stage of the trial. 
 Eaton V. Telegraph Co., 68—63. 
 
 91. A general exception to the entire charge will not be sustained 
 if any single proposition of the charge is correct. Macintosh v. -Bart- 
 lett, 67 — 130. Harriman v. Sanger, 67 — 442. 
 
 92. To be available upon exceptions, an objection to testimony must 
 • be specific — directed to a particular question or answer. Harriman 
 
 V. Sanger, 67 — 442. 
 
250 EXCEPTIONS — EXECUTIONS. 
 
 93. It is no cause of exceptions tliat a requested instruction is not 
 given in the precise language of the request. Foye v. Southard, 64— 
 389. 
 
 94. In the trial of an action on an administrator's bond for an 
 alleged breach in knowingly omitting to inventory a certain sum of 
 money deposited in a savings bank and belonging to the estate, the 
 {)residing judge declined to instruct the jury, at the defendant's 
 request, that if they believed the testimony of a certain witness as to 
 what the intestate said and did when the bank-bbok was put into the 
 witness's hand, that transaction amounted to a gift of the money to two 
 certain persons ; but he did accurately state to the jury the law con- 
 cerning gifts ; held, that the defendant had no cause for exception. 
 JBourne v. Stevenson, 58 — 499. 
 
 X. Q-ENEEALLT. 
 
 95. If the judge leaves to the jury questions which it is his own 
 province to decide, and the jury come to a proper result, the verdict 
 will not be disturbed. Webb v. Port. <& Ken. It. JR. Co., 57—117. 
 
 96. Practice. Section 21, c. 77, R. S., 1871, providing that 
 exceptions deemed frivolous and intended for delay may be transmit- 
 ted to the chief justice, and argued in writing, does not apply to pro- 
 ceedings in the superior court for Cumberland county. Thorn v. 
 Mosher, 60—463. 
 
 97. Although the decision of the justice of the superior court, in 
 cases tried without the intervention of a jury, is conclusive as to mat- 
 ters of fact, yet when exceptions as to his ruling of the law are sus- 
 tained the effect is to re-open the whole case and give a new trial 
 both as to law and fact. Mosher v. Jewett, 63 — 84. 
 
 98. When exceptions to the rulings of a presiding judge trying a 
 case without the aid of a jury are sustained, a trial de novo follows, 
 unless it is otherwise expressly decided, and stated in the rescript. 
 Merrill v. Merrill, 65 — 79. 
 
 99. After exceptions have been allowed, the party in whose favor 
 the ruling was made may waive the ruling, and, with the consent of 
 the court, have the exceptions sustained at nisi prius. Bean v. 
 Ayers, 67—482. 
 
 See Teutstee Process, 41. 
 Wat, 67. 
 
 EXECUTIOlSrS. 
 
 I. OF ISSUING EXECUTIONS AND THEIR VALIDITY AND DIS- 
 CHARGE. 
 
 II. EXTENT UPON LAND. 
 
 (a) Genekaxly. 
 
 (b) Appeaisal. 
 
 (o) Desceiption of the land. 
 
 (d) Dblivbet of seizin. 
 
 (e) Recoed and ebtuen. 
 
 III. SALE OP EQUITIES OF REDEMPTION. 
 IT. LEVY ON PERSONAL PROPERTY. 
 
EXECUTIONS. 251 
 
 I. OF ISSUING EXECUTIONS AND THEIE VALIDITY AND 
 DISCHARGE. 
 
 1. An execution, issued on a judgment rendered on default of an 
 absent defendant in a personal action, as provided in R. S., c. 82, § 3, 
 within one year after the rendition of such judgment, and without the 
 plaintiff's first giving bond to the defendant, as provided in § 4, is 
 void ; and so also is any levy upon real estate made under it, against 
 whomsoever it is adversely set up. Davis v. Stevens, 57 — 593. 
 
 See Public JjA-ws, 1877, c. 149. 
 
 2. The provision of statute requiring a bond before an execution 
 can be issued against an absent defendant does not apply when the 
 defendant is a non-resident, and has actual notice of the suit through 
 a personal service by an officer within the State, during its pendency. 
 Emery v. Legro, 63 — 357. 
 
 3. Under the authority of the supreme court to make alterations in 
 the forms of writs, it may, when a judgment is recovered payable in 
 coin, direct an execution to issue for the payment of the debt in coin, 
 and of the costs in legal tender currency. Stringer v. Ooombs, 62 — 160. 
 
 4. Variance. When a judgment, (decree for alimony) is for a 
 sum payable at a future day without interest, an execution for the 
 same sum with interest from the date of the judgment is not valid, 
 and will not sustain a levy. JPrescott v. Prescott, 62 — 428. 
 
 5. Against the Body. An execution issued upon a judgment 
 recovered on a prior judgment on a contract should not run against 
 the body when the debt recovered in the first judgment was less than 
 ten dollars. Kelley v. Morris, 63 — 57. 
 
 6. Against Town. The statute requires an execution against 
 a town to run against the real estate situated therein, and against 
 the personal property of its inhabitants. If issued only against real 
 and personal property owned by the inhabitants of the town, the 
 land of a non-resident proprietor cannot be legally sold thereon. 
 Hayford v. Everett, 68—505. 
 
 7. Trial Justice. The R. S. of 1871, c. 83, § 25, provide for the 
 issue, by a justice to whom the records of a deceased justice have 
 been delivered, of an execution upon any judgment rendered by such 
 deceased justice ; but that "no such first execution" shall issue after 
 one year from the time the judgment was rendered, unless on scire 
 facias. Held, that the words "such first execution" referred to the 
 first execution issued by the magistrate with whom the records of the 
 deceased justice were deposited, and not to the first execution issued 
 on the judgment; and that the justice to whom the records of the 
 deceased justice have been delivered, has no right to issue his first 
 execution (unless on scire facias) after one year from the time 
 the judgment was rendered. Brown v. Joy, 61 — 564. 
 
 8. Discharge. When the officer's return of a levy upon land 
 shows that the creditor refused to receive seizin and possession, and 
 the creditor himself certifies his refusal on the execution, the execu- 
 tion is not discharged by the levy. Bingham v. Smith, 64 — 450. 
 
 See Debt, 6, p. 157. 
 
 III. EXTENT UPON LAND. 
 
 (a) Geneballt. 
 
 (b) Appraisal. 
 
252 EXECUTIONS. 
 
 (o) Description of the land. 
 
 (d) Delivebt op seizin. 
 
 (e) Eecoed and betuen. 
 
 (a) Generally. 
 
 9. A seasonable levy of the execution on real estate attached on 
 the writ, operates as a statute conveyance made at the date of the 
 attachment. First National Bank v. Redman, 57 — 405. 
 
 10. A levy upon real estate, made by virtue of an execution, issued 
 upon a judgment, wherein the debt or damage recovered exceeds the 
 amount of the ad damnum in the writ, is valid, but takes effect only 
 from the date of the levy. Morse v. Sleeper, 58 — 329. 
 
 11. The levy on land of an execution which is issued for a sum 
 greater than the judgment or decree upon which it is based, is void. 
 Frescott V. Prescott, 62—428. 
 
 12. Upon Land Feaudulentlt Conveyed. If the administrator 
 of an estate, decreed insolvent, assumes the defense of an action 
 pending against his intestate, and neglects to suggest the insolvency 
 upon the record, the execution, regularly issued upon the judgment 
 recovered against the administrator, may be levied on the real estate 
 of the intestate fraudulently conveyed by him. Wyman v. Fox, 59 
 —100. 
 
 13. If a person, having the legal title to real estate, incur a debt, 
 and subsequently convey his estate, in fraud of his creditor, to his 
 wife, who makes a similar conveyance thereof to her brother in trust 
 for herself, the creditor thus defrauded may extend his execution 
 issued upon the judgment recovered upon his debt upon the land thus 
 fraudulently conveyed, and perfect his title by a bill in equity against 
 the wife and her grantee. Jh. 
 
 14. If a creditor of a husband would hold real estate conveyed to a 
 wife by a bona fide grantee of the husband and paid for out of his 
 property he must do so in equity and not by a levy. Webster v. Fol- 
 som, 58—230. 
 
 See Equity, 30, p. 199. 
 
 15. Land held in Common. Under R. S., 1857, c. 76, § 7, a levy 
 upon the undivided portion of the debtor's real estate held in common 
 is valid, provided the return states the debtor's ownership of the part 
 taken, although the debtor actually owned a larger share. Morse v. 
 Sleeper, 58—329. 
 
 16. It is essential to the validity of a levy, made upon an undivided 
 PORTION of land, of which the debtor is seized in fee and in severalty, 
 that it appear by the return that the premises levied upon could not 
 be divided by metes and bounds without injury to the whole. Jb. 
 
 17. Simultaneous Levies. Three several creditors simultaneously 
 levied their three separate executions upon the land of the same 
 debtor, each taking an undivided fraction thereof, unitedly taking the 
 whole. It also appeared that the three levies did not take the whole 
 parcel of land, but only a divided portion of the whole, each levy 
 taking a fractional part of that portion — also that on the day of the 
 date of the officer's return, the debtor conveyed the portion left to 
 him in severalty, to a third person. Jleld, that the irregularity was 
 cured by the conveyance of the debtor and the levies were sustained. 
 Ziittlewoodv. Wardwell, 67 — 212. 
 
EXECUTIONS. 253 
 
 (b) Appraisal. 
 
 18. A levy upon the land of one of the several execution debtors 
 will be invalid unless the return show with certainty that the debtor, 
 whose estate has been taken, chose one of the appraisers, or neglected 
 to do so upon being duly notiiied. Morse v. Sleeper, 58 — 329. 
 
 19. When the officer's return shows that the debtor did not reside 
 in the county where the land was situate, and had no attorney there, 
 it need not show that the debtor neglected to choose an appraiser, 
 because the officer is not required to give him notice to choose one. 
 Bingham v. Smith, 64 — 450. 
 
 20. If the debtor refuses to choose an appraiser, the officer is not 
 obliged to wait until the expiration of the time stated in the notice, 
 but may immediately select one for him, and complete the levy. 
 Thomas v. Johnson, 64 — 539. 
 
 21. If the appraisers are induced, by the fraudulent misrepresenta- 
 tions of the creditor or his attorney, to exclude the buildings from the 
 valuation, or to appraise the land at less than its true value, on the 
 ground that there is doubt whether the debtor has any interest in the 
 property, it will avoid the levy in the hands of the creditor or any 
 party cognizant of the fraud when he took his title. Poor v. Larra- 
 bee, 58—543. 
 
 (c) Description of the land. 
 
 22. Where a levy describes land as "commencing at the southwest 
 corner of Peter McGown's lot," such point is to be found at the south- 
 west corner of land owned by Peter McGown, and not at the south- 
 west corner of land occupied by him, under a contract of purchase, 
 although the latter lot is generally known as and called the Peter 
 McGown lot. Young v. Mc Gown, 59 — 349. 
 
 (d) Delivery of seizin. 
 
 23. The creditor may refuse to receive seizin and possession with- 
 out assigning any reason. Bingham v. Smith, 64 — 450. 
 
 24. If seizin is not delivered to the creditor, or if he declines to 
 accept it, the levy is void, and another extent may be made upon the 
 same execution, without application to court, at any time before the 
 return day. lb. 
 
 (e) Record and return. 
 
 25. If, through the mistake of the register of deeds, the initial of the 
 appraiser's middle name is erroneously recorded, the record is suffi- 
 cient notice to put subsequent purchasers on their guard. Emery v. 
 ie^TO, 63-357. ^ ^ 6 y 
 
 See Attachment, 19, p. 46. 
 
 26. The creditor may relieve the officer of the duty of causing the 
 execution and return of the levy to be recorded by the register of 
 deeds, within three months after the levy. Thompson v. Goding, 63 
 — 425. 
 
 27. And if the judgment has been assigned, but the assignee author- 
 izes the judgment creditor to procure the levy to be made, choose an 
 appraiser, pay the expenses and receive delivery of seizin, and no 
 disclosure is made to the officer of the extent of the authority of the 
 
254 EXECTTTIONS. 
 
 judgment creditor, and the officer, with the approval of the judgment 
 creditor, delivers the execution to the attorney, to be by him left for 
 registry, the officer is not liable for neglect to cause the execution to 
 be recorded. Ih, 
 
 28. A EECOED in the registry of deeds of a levy, designed to take a 
 part of lot 32, but describing a part of lot 29 upon the same plan and 
 survey, the description by metes and bounds perfectly fitting the one 
 parcel as ■well as the other, is not notice to a subsequent purchaser 
 from the execution debtor, that a part of 32 instead of a part of 29 
 was in fact taken by the levy. Jones v. McNarrin, 68 — 834. 
 
 See Equity, 61, p. 202. 
 
 ni. SALE OF EQUITIES OP KEDEMPTION. 
 
 29. It is not necessary that an officer's return of a sale of an equity 
 of redeeming land from a mortgage should specify the day or hour or 
 particular place of the sale. Townsend v. Meader, 58 — 288. 
 
 80. It is sufficient in this respect if it appear by the return that the 
 time required by the statute intervened between the time of giving 
 the notice and that of making the sale. lb. 
 
 31. Thus, a return of a sale of an equity of redeeming land situated 
 in Gardiner, is sufficient as to notice which recites that "on the first 
 day of September, 1858, I give notice in writing of the time and place 
 of sale to the within named" debtor, "in person, and I gave public 
 notice of the time and place by posting up notifications thereof in two 
 public places in . . . two adjoining towns, and also in a public 
 place in" Gardiner, "thirty days before the time of sale ; and I also 
 caused an advertisement of the time and place of sale to be published 
 three weeks successively before the day of sale in the Northern Home 
 Journal, a public newspaper printed in" Gardiner, "in said county ; 
 and afterwards, on the sixth day of October, at a public auction held 
 at the Gardiner hotel, in the city of Gardiner, I sold," etc. lb. 
 
 32. Thft holder of a junior mortgage of real estate may waive his 
 mortgage lien and sell on the execution issued upon a judgment 
 recovered on his mortgage debt, the debtor's right to redeem a senior 
 mortgage of the same property. Forsyth v. Rowell, 59 — 131. 
 
 33. A sheriff's deed of an equity of redemption is good against the 
 debtor or a subsequent purchaser with notice, though not recorded 
 within three months after the sale. JSbbbs v. Walker, 60 — 184. 
 
 34. There is no legal necessity of returning the execution to the 
 clerk's office within any definite time in order to make the sale of the 
 equity valid against a subsequent purchaser. The registry of deeds 
 discloses the state of the title. True v. Emery, 67 — 28. 
 
 85. Two several creditors made simultaneous attachments of an 
 equity of redemption. By virtue of the attachments, upon executions 
 afterwards obtained, the equity was sold in moieties at the same time 
 to the same bidder, by the officer holding both executions, one undi- 
 vided half thereof upon one execution, and the other half upon the 
 other. Held, that the sales could be upheld. lb. 
 
 36. It seems that in such case the notice of the sale, the whole 
 equity should be advertised for sale on each execution. lb. 
 
 37. If the debtor redeems from one sale only he becomes a tenant 
 in common with the purchaser. lb. 
 
EXECUTOES AND ADMINISTEATOES. 255 
 
 38. If the debtor then pays up the entire mortgage he has an equit- 
 able lien upon the half not his own for the sum be may advance upon 
 it. lb. 
 
 39. When an oflBcer in his return of the sale of an equity of 
 redemption states that he published in a certain newspaper the notice 
 which the statute requires to be given, it is not competent for the 
 debtor, or any one claiming under him, to contradict the return by 
 the production of the newspaper showing it to be untrue. lb. 
 
 IV. LEVY ON PEKSONAL PEOPERTY. 
 
 40. A sale by an officer under a legal precept of the personal prop 
 erty of a stranger to the process conveys no title to the vendee' 
 Coombs V. Gordon, 59 — 111. 
 
 41. At an adjourned sale the officer must post up public notice of 
 the time and place forty-eight hours prior thereto, in two or more 
 public places in the place of sale, or the sale will be void. Hayes v. 
 Buzzill, 60—205. 
 
 42. At a sale on execution of certain rails and sleepers, forming a 
 side track connected with the main track of a railroad company, the 
 officer standing on the track gave a formal delivery to the purchaser, 
 who accepted them, but they were not removed, nor did the officer 
 move them from their position after or at the time of the seizure. 
 Seld, that the proceedings were sufficient to pass the title to the pur- 
 chaser. Fifield V. Maine Central JR. H. Co., 62 — 77. 
 
 43. Monet. An officer, who has collected money on an execution, 
 cannot apply it in satisfaction of another execution, although the 
 latter is against the party for whom the money was collected, and 
 both executions are in the officer's hands for collection at the same time. 
 JBardy v. Tilton, 68—195. 
 
 See Bankeitptct, 4, p. 56. 
 CoEPOKATioisr, p. 129. 
 
 EXECUTORS AND ADMINISTRATOES. 
 
 I. POWEES, DUTIES AND LIABILITIES. 
 
 (a) What pbopeety passes to the administbatob. 
 
 (b) POWEBS. 
 
 (c) Duties. 
 
 (d) Liabilities. 
 
 II. PEOCEEDINGS WHEN AN ESTATE IS SOLVENT. 
 
 (a) Exorbitant claims. 
 
 (b) Sale op lajtd. 
 (o) Accounts. 
 
 III. INSOLVENT ESTATES. 
 
 IV. BOND. 
 
 V. ACTIONS. 
 
 (a) By administbatobs. 
 
 (b) Against administeatobs. 
 
 (c) Or THE APPBABANCE OP THE ADMINISTEATOE APTEE THE 
 
 DEATH OF A PARTY TO A SUIT. 
 
 VL GENERALLY. 
 
256 BXECTJTOES AMD ADMHSriSTEATOES. 
 
 I. POWERS, DUTIES AND LIABILITIES. 
 
 (a) What property passes to the administrator. 
 
 1. The administrator of an intestate estate is the only party who is 
 entitled to collect money due on a policy of insurance upon the life 
 of the intestate. Xee v. Chase, 58—432. See Cragin v. Cragin, 66 
 —518. 
 
 2. Lais'd Damages. If land, which was of an intestate, be taken 
 for public uses, prior to his decease, his administrator is entitled to 
 damages ; but the heirs cannot petition for increase, for they have no 
 interest. Neal v. Knox d> Lincoln H. R. Co., 61 — 298. 
 
 3. If taken after his decease, it is the heirs' land, and the adminis- 
 trator has nothing to do with the damages. lb. 
 
 4. The BENTS AND PEOPiTS of the real estate of an insolvent debtor, 
 until it is sold for the payment of debts, belong to the heirs and not 
 to the administrator. Kimball v. Sfwmner, 62—305. 
 
 5. In such case the administrator can not deduct from the rents 
 collected by him, sums paid for insurance, or to discharge mechanics' 
 liens, or for annuities charged upon the real estate, there being no 
 judgments to enforce, or any possession taken or claimed on account 
 of them. Ih. 
 
 6. Unhaevbsted ceops go to the devisee of the land and not to the 
 executor. Dennett v. Hophinson, 63 — 350. 
 
 7. As against the heirs at law they go to the executor. lb. 
 
 8. One of the heirs of an intestate, having a savings bank book of 
 the intestate in his hands, and also an order from all the heirs to draw 
 the money from the bank, must draw the money promptly under the 
 order. As against an administrator subsequently appointed, he can 
 not sustain any claim to the book or to the money. Soynton v. 
 Payrow, 67—587. 
 
 9. Nor can he sustain any claim upon the funds to secure him for 
 advances made to the heirs upon the strength of the order. lb. 
 
 (b) Powers. 
 
 10. The executor has no authority to pay from the general fund of 
 the estate, the expenses of repairs, taxes, and insurance, upon real 
 estate devised to the executor in trust for the use of the widow, and 
 in her occupancy. Stevens v. Burgess, 61 — 89. 
 
 11. A voluntary release of an easement by an administrator does 
 not bind the estate nor the heirs of the intestate. Mowe v. Stevens, 
 61—592. 
 
 12. A contract between a minor and his master whereby the former 
 paid his bounty money to the latter in consideration of his consent to 
 the minor's enlistment, may, after the minor's decease, intestate, be 
 rescinded by the administrator of his estate, and the money recovered 
 back. Dinsmore v. Webber, 59 — 103. 
 
 (c) Duties. 
 
 13. Where a testator devises his property, subject to the charge of 
 furnishing maintenance to his widow, it becomes the duty of the 
 executor to see that the needful support in accordance with the provi- 
 
EXECUTOES A2JD ADMINISTEATOBS. 257 
 
 sions of the will, if not furnished by the devisees, be supplied and 
 proper contribution from any delinquent devisee enforced. Pettingill 
 V. Pettingill, 60—411. 
 
 14. The duties and liabilities of an executor, upon his decease, 
 devolve upon the administrator with the will annexed, and not upon 
 the executor of the executor. Prescott v. Morse, 6 1 1 22. 
 
 15. Whenever any interest in the nature of a trust, or any duty 
 implying a trust, is created by a will, and there is no special designa- 
 tion of any person as trustee, it is incumbent upon the executor as 
 such to administer the estate according to the provisions of the will. 
 Fettingill v. Pettingill, 60 — 411. Nutter v. Vickery, 64 — 490. 
 
 (d) Ziiabilities. 
 
 16. An executor, as such, is not liable for a trespass. Plimpton v. 
 Richards, 59 — 115. 
 
 17. An action will not lie against executors, as such, for damages 
 caused by their raising a dam on a stream, whereby plaintiff's mill was 
 flowed, when the dam and the land on which it was situated had, 
 under the will of the testator, become vested in the defendants as 
 trustees. Ih. 
 
 18. Services rendered to an executor, m his ofiicial capacity, in the 
 settlement of the estate, do not constitute the person rendering them 
 a creditor of the estate. His claim is against the executor person- 
 ally. Baker v. Moor, 63—443. 
 
 See Post, 40, 78. Estoppbl, 25, p. 216. 
 II. PROCEEDINGS WHEN AN ESTATE IS SOLVENT. 
 
 (a) ExOBBITAifT CLAIMS. 
 
 (b) Sale op land. 
 (o) Accounts. 
 
 (a) Exorbitant claims. 
 
 19. Where the administrator appeals from the decision of commis- 
 sioners appointed to decide upon a claim against an estate, but fails 
 to complete the appeal by giving notice to the creditor within thirty 
 days after the acceptance of the report, in accordance with R. S., 
 1871, c. 66, § 11, the decision of the commissioners become final. 
 Palmer v. Palmer, 61 — 236. 
 
 20. In case of a solvent estate the creditor is then entitled to an 
 execution upon filing a certified copy of the report with the clerk of 
 courts. Ih. 
 
 21. It is a sufficient compliance with the provisions of R. S., 1871, 
 c. 82, § 131, requiring a certified copy of the report of commissioners 
 allowing a claim against a solvent estate to be filed in the office of the 
 clerk of courts, upon making application for an execution, if the order 
 of acceptance by the probate court, referring to and making the report 
 a part of the order, and duly filed, is certified. Ih. 
 
 22. The report of commissioners upon exorbitant claims, not ap- 
 pealed from, is conclusive and final. Rogers v. Rogers, 67 — 456. 
 
 28. Nor can such claims, when rejected by the commissioners, be 
 filed in set-off in a suit by the administrator. Ih. 
 17 
 
258 EXECTTTOES AND ADMINISTEATOKS. 
 
 24. The adjudication of commissioners appointed to decide upon 
 an alleged exorbitant claim, not appealed from, is conclusive as to 
 the right of the claimant to the amount allowed as long as the admin- 
 istration of the estate remains incomplete. Hall v. Merrill, 67 — 112.. 
 
 25. When an administrator alleges a claim to be exorbitant, and 
 petitions for the appointment of commissioners, it is competent for 
 the claimant to acknowledge notice of the petition. Ih. 
 
 26. An administrator may acknowledge notice of the time and place 
 of the meeting of commissioners appointed to decide upon claims 
 alleged to be exorbitant. Ih. 
 
 27. The fact that both administrator and claimant acknowledge 
 notice is not evidence of fraud. H. 
 
 (b) Sale of land. 
 
 28. An executor, having no special authority by the will to sell the 
 real estate, can not make sale of it without the consent of the resid- 
 uary legatees, or leave of court, which will not be granted where the 
 personal assets are amply sufficient to pay the debts, and meet all the 
 calls in the will. Stevens v. Burgess, 61 — 89. 
 
 29. A deed of land of an intestate estate, sold by an administrator 
 under a license from the probate court, is invalid unless executed and 
 delivered within a year from the date of the license. Poor v. La/r- 
 rabee, 58 — 543. 
 
 30. Though not acknowledged until after, it may be presumed, in 
 the absence of opposing testimony, to have been delivered before the 
 expiration of the year. Poor v. Larrabee, 58 — 543. Fowle v. Coe, 
 63—245. 
 
 31. An affidavit of an administrator, seasonably filed in the probate 
 office, stating, that not having any offer at the time and place appointed 
 for a sale of real estate, he adjourned the sale (time specified, place 
 the same), "and gave a reasonable notice of the adjourniiient as the 
 law directs," is sufficiently specific. Fowle v. Coe, 63 — 245. 
 
 (d) Accounts. 
 
 32. The proper method of determining how far a power of sale 
 conferred upon an executor, by the provisions of a will, should be 
 exercised, is the settlement of an account in probate. Pettingill v. 
 Pettingill, 60—411. 
 
 33. The fact that an executor never returned an inventory, and did 
 not settle his account within a year, does not afford any reason why 
 an account presented by him after the expiration of the year should 
 not be considered, and if found correct, allowed. lb. 
 
 34. When an executor's account is rendered in the probate court 
 for settlement, unless it is amended by order of court, a greater sum 
 than is charged can not be allowed the executor either in that court 
 or upon appeal. Pettingill v. Pettingill, 64 — 350. 
 
 See Pbobate Couet. 
 
 III. INSOLVENT ESTATES. 
 
 35. A paper, signed by an administrator, addressed to the judge of 
 probate, representing that there is due to a certain person a sum 
 named, that there is no personal property, and that the real estate is 
 
EXECTTTOES AND ADMINISTEATOES. 259 
 
 inBuiEoient to pay it, but not presented to or acted upon by tbe judge 
 of probate, does not render the estate "represented insolvent." Gil- 
 hert V. Duncan, 65 — 469. 
 
 86. Chapter 116, Public Laws of 1873, was designed to regulate the 
 proceedings of commissioners of insolvency, and of the probate court 
 in all cases where such commissioners should be appointed after the 
 act took effect. Hall v. Merrill, 67—112. 
 
 37. The fact that an administrator in 1867 represented that certain 
 claims were exorbitant, and petitioned for commissioners to deter- 
 mine the amount, who were appointed, allowed the claims, and made 
 their return the same year, and that in 1874 the estate was repre- 
 sented insolvent, and commissioners appointed, who allowed no 
 claims and reported that as to those allowed in 1867 they took no 
 action upon them, does not preclude the judge of probate from order- 
 ing these claims to be added to the list of claims entitled to a dividend. 
 lb. 
 
 38. After the decree of insolvency and the acceptance of the report 
 of commissioners of insolvency, the estate iB to be settled as an insol- 
 vent estate, although it pays dollar for dollar, and leaves a residuum 
 for the heirs or legatees. Ih. 
 
 89. Pebfeeeed Claim. It is not necessary that a preferred claim 
 be laid before the commissioners of insolvency. Jiulfinch v. JBenner, 
 64—404. 
 
 40. If an administrator of an estate represented insolvent assume the 
 defense of a suit against his intestate, and neglect to suggest the 
 insolvency on the record, and pray a stay of execution, so that an 
 execution is issued, an extent in due form on the estate of his intes- 
 tate is valid, and the administrator personally liable for waste. 
 Wyman v. Fox, 59 — 100. 
 
 41. In an action on an administrator's bond to recover the amount 
 of a judgment obtained by default against the estate of the intestate 
 
 . in the hands of the administrator, if the insolvency of the estate is 
 agreed upon in a case stated, it is a waiver of the estoppel created by 
 the default which would have precluded the administrator from show- 
 ing that fact. Thurloicgh v. Kendall, 62 — 166. 
 
 42. When an estate is utterly worthless it is not necessary for the 
 administrator to return any inventory, or render any account to the 
 probate court, or make any representation of insolvency. Ih. 
 
 43. The fact that commissioners of insolvency upon the estate of 
 an individual describe certain of the claims allowed as claims against 
 a firm of which the deceased was a member will not warrant the con- 
 struction of their report that the claims were not allowed against the 
 individual estate but were allowed against the firm upon which they 
 were not commissioners. Egery v. Howard, 64 — 68. 
 
 44. When an estate is represented insolvent the claims of all cred- 
 itors are made to depend upon their pursuing the statute mode of 
 presentation and proof. McLean v. Weeks, 65 — 411. 
 
 45. They can maintain no action against the administrator except 
 in conformity with the statute provisions, though the estate should 
 ultimately prove solvent. lb. 
 
 46. Commissioners of insolvency have no jurisdiction over pre- 
 ferred claims. State v. Hichborn, 67—504. 
 
260 EXECTJTOES ANB ADMINTSTKATOES. 
 
 47. Nor does their adjudication allowing a claim and placing it in 
 the list of non-preferred claims, deprive the claimant of the right to 
 maintain a suit for the claim if it is a preferred one. lb. 
 
 48. Peaoticb. By virtue of R. S., c. 66, §§ 17, 13, 9, and 10, ac- 
 tions pending on non-preferred claims, when a representation of insol- 
 vency is made, may (1) be discontinued without costs ; or (2) con- 
 tinued, tried, and judgment rendered, which judgment is to be returned 
 to the probate court as a contingent claim ; and a sum sufficient to 
 pay the percentage paid to others, to be left in the hands of the ad- 
 ministrator, to be by him paid, if the claim becomes absolute within 
 four years from the grant of administration, if it can be done without 
 disturbing prior dividends, and not otherwise. Neally v. Segar, 57 
 —563. 
 
 49. Where the commissioners of insolvency gave notice of their 
 meetings for the presentation of claims, and the plaintiff left his writ 
 with them, but did not prove his claim and it was not allowed by the 
 commissioners. Meld, that the claim was presented and the claim- 
 ant's remedy thereafter was by appeal. lb. 
 
 50. Where the commission of commissioners to decide upon claims 
 against an estate, directs them to do what the statute requires them 
 to do, and their report declares that they acted "pursuant to the an- 
 nexed commission," this is equivalent to a detailed statement of their 
 official action. Palmer v. Palmer, 61 — 236. 
 
 51. The title of ofae who purchases real estate of a testamentary 
 trustee is defeated by the insolvency of the testator's estate, and a 
 sale by the administrator for the payment of debts, ^ill v. Treat, 
 67—501. 
 
 52. The administrator of an insolvent estate, in an action for money 
 had and received, against one to whom his intestate while insolvent 
 gave a sum of money, may recover so much thereof as is necessary, 
 with the other property of the intestate, to pay debts and expenses 
 of administration. Mctiean v. Weeks, 61 — 277. Same v. Same, 65 
 —411. 
 
 See Witness, 17. 
 
 IV. BOND. 
 
 56. Citation to Account. There can be no breach of the condi- 
 tion of an administrator's bond, requiring him to account until he has 
 been cited to account by the judge of probate. Gilbert v. Duncan, 
 65—469. 
 
 57. Omission to Inventory. If an administrator knowingly 
 omit to include in his inventory within the time prescribed by the 
 
 , statute, property belonging to the estate, it is a breach of his official 
 bond. Such omission is not justified by the fact, that the property 
 was in the possession of, and claimed by third persons, and that the 
 administrator was advised by counsel that he had no right to admin- 
 ister upon it. Bourne v. Stevenson, 58 — 499. 
 
 58. Where the person nominated as executor in a will was ap- 
 pointed and filed a bond approved by the judge of probate, at the 
 time the will was proved, neither the fact that the bond was not such 
 in all respects as is required by the statute, nor that the executor neg- 
 lected to return an inventory or settle an account in accordance with 
 his bond, vitiates what he has rightfully done in the discharge of his 
 
EXECTJTOES AND ADMTNISTEATOES. 261 
 
 trust, nnless the opposite party has been prejudiced thereby. Pet- 
 tingill v. Pettingill, 60 — 411. 
 
 59. Where the bond thus filed and approved was conditioned for 
 the seasonable return of a true and perfect inventory, for faithful ad- 
 ministration according to the .will, and for the rendering of a just and 
 true account of his administration within one year, — the statute pro- 
 visions respecting the conditions required, must be so far considered 
 as only directory, that the executor may have the benefit of such of 
 his official acts in the premises, as are found conformable to the law 
 and the will, and that the account which he has bound himself to ren- 
 der should be considered, and so far as it is found correct and well 
 vouched allowed. lb. 
 
 60. Whether, as against the sureties upon an administration bond, 
 the administrator can waive the operation of the statute of limita- 
 tions in his favor, quaere. Bourne v. Todd, 63 — 427. 
 
 61. The fact that an executor has delivered property, specially be- 
 queathed, to the legatee, is no defense to a suit upon his bond brought 
 to obtain the share of a posthumous child, not provided for in the will, 
 after the share of such child has been assigned by a decree of the pro- 
 bate court not appealed from. W^aterman v. Hawkins, 63 — -156. 
 
 62. Real Estate. An administration bond furnishes no remedy 
 for the improper conduct of the administrator with reference to real 
 estate. Gilbert v. Duncan, 65 — 469. 
 
 63. If the administrator fraudulently and collusively suffers a judg- 
 ment to be rendered against himself, as administrator upon a ground- 
 less claim, and the execution to be levied upon the real estate of the 
 intestate, his administration bond furnishes no remedy. Ih. 
 
 64. When not a good Statute Bond. A bond containing con- 
 ditions not required by statute of an executor, who is also a residuary 
 legatee, and omitting an imj)ortant condition required in such case, 
 is not, when given by an executor who is also a residuary legatee, 
 valid as a statute bond. Cleaves v. Dochray, 67 — 118. 
 
 65. But it may be valid at common law. lb. 
 
 66. If valid at common law only, a suit thereon can not be main- 
 tained in the name of the successor of the probate judge to whom it 
 was given. lb. 
 
 V. ACTIONS. 
 
 (a) By administbatobs. 
 
 (b) Against administbatobs. 
 
 (c) Of the appbabance of the administeatob aftee the 
 
 DEATH OF A PAETT. 
 
 (a) Sy administrators. 
 
 67. Review. An administrator cannot commence or prosecute a 
 writ of review in a real action not brought to foreclose a mortgage. 
 Berry v. WhitaJeer, 58—422. 
 
 68. An action of trespass db bonis, to recover for timber and 
 trees cut from land mortgaged, is properly brought by the executor 
 of the deceased mortgagee, for the benefit of the person beneficially 
 interested under the will, if the taking was before the death of the 
 mortgagee. Brooks v. Goss, 61—307. 
 
262 EXECTJTOES AND ADMINISTKATOBS. 
 
 69. Where a legacy is a charge upon land, and is of a continuing 
 character, nothing short of fulfillment, payment, or release will bar 
 the claim on account of it, and the executor who has fulfilled the require- 
 ments of the will in relation to it, is entitled to the same remedy for 
 his disbursements which the will furnishes to insure payment to the 
 legatee. Pettingill v. Pettingill, 60 — 411. 
 
 70. A testator devised certain property to O. A., in trust, who was 
 also the executor of the wUl. O. A. exchanged some of the land for 
 personal property, taking a bill of sale of the latter running to him as 
 executor. Seld, that although in the regular course of probate busi- 
 ness, O. A. ought to have settled his accounts as executor, and given 
 bond as trustee, yet, one who undertook to justify an interference 
 with the goods on the ground that they were not the property of 0. 
 A., could not object that O. A., in his writ suing for them, described 
 himself as executor. Einerson v. Hewins, 64 — 297. 
 
 71. Assumpsit. The administrator of an insolvent estate, in an 
 action for money had and received, may recover for money given by 
 his intestate, without a valuable consideration, after he became insol- 
 vent. McLean v. Weeks, 65 — 411. 
 
 72. An administrator, as the representative of the creditors of the 
 intestate, may have remedies both at law and in equity, which would 
 not have been available to the deceased. Ih. 
 
 73. If the party with whom a contract was made could bring an 
 action upon it, his administrator or executor can do the same. Sleeper 
 V. Union Ins. Co., 65 — 385. 
 
 (b) Against administrators. 
 
 74. A ciTATiojs to the administrator to inventory property belong- 
 ing to the estate is not a necessary prerequisite to the maintenance of 
 an action on the administrator's bond, for knowingly omitting to 
 inventory such property. Bourne v. StepJienson, 58— -499. Gilbert 
 V. Duncan, 65 — 469. 
 
 75. An action can not be maintained upon an administration bond 
 for failure to account until the administrator has been cited before the 
 probate court to render an account. Gilbert v. Duncan, 65 — 469. 
 
 76. Demand. The provision of statute requiring a demand before 
 instituting a suit against an administrator or executor may be waived. 
 Mitchell V. Dockray, 63 — 82. 
 
 77. In an action against one as executor de son tort the defendant 
 should be declared against as executor. Lee v. Chase, 58 — 432. 
 
 78. An administrator who has collected the rents and profits of real 
 estate of the intestate, accruing after the death of the intestate, may 
 be liable to the heirs, either jointly or severally, but is not liable in an 
 action neither joint nor several. Kimball v. Sum,ner, 62 — 305. 
 
 79. An administrator, who, without any agreement or understand- 
 ing with the heirs, has collected the rents and profits of the real estate 
 of his intestate, the estate being insolvent, before a sale for the pay- 
 ment of debts, is liable to them in an action at law. lb. 
 
 80. A testator bequeathed a sum of money, to be placed in the 
 hands of the executor and paid to the legatee as he might need it. 
 The executor gave bonds as testamentary trustee, and received the 
 money, but did not make any investment of the fund as trustee. Both 
 
EXECTJTOES AND ADMINISTEATOES. 263 
 
 the legatee and the executor died before any part of the legacy had 
 been paid. Held, that the administrator of the estate of the legatee 
 need not resort to equity, but might maintain assumpsit against the 
 executor of the estate of the executor to recover the amount of the 
 legacy. Prescott v. Morse, 62 — 447. 
 
 81. Legacy. An action to recover a legacy which remained in the 
 hands of an executor at the time of his decease, can not be maintained 
 against the executor of the executor. It should be brought against 
 the administrator de bonis non of the testator. Prescott v. Morse, 
 64^422. 
 
 82. When a bequest is made "to aid in the erection of a house 
 of worship to be under the control of" a church named, the society, 
 if legally incorporated, can not maintain an action against the execu- 
 tor to recover the money, since the bequest is not direct to the church 
 or society, but looks to the intervention of a trustee. JVason v. JF^irst 
 Church, 66—100. 
 
 83. Survival. A cause of action by a woman against a man for 
 deceit by which she is led into a void marriage with him, he having 
 another wife living, survives against his administrator. Withee v. 
 Brooks, 65 — 14. 
 
 84. Remedy in Puobate Couet. In cases of mal-administration 
 the most convenient and complete remedy is by a resort in the first 
 place to the probate court, where a specific decree may be made 
 which will do justice to all parties, and for non-compliance with 
 which a suit on the bond may be maintained. Gilbert v. Duncan, 
 65—469. 
 
 85. The plaintiff made a contract with the defendant's intestate to 
 support him during his life, and give him a proper burial after death, 
 and in consideration thereof the plaintiff was to have all of his estate 
 after his decease. Held, (1) that a suit against the administrator 
 could not be maintained until the estate had been settled so it could 
 be ascertained how much the plaintiff would be entitled to, and (2), 
 that the proper remedy for the plaintiff was by application to the 
 probate court for a decree requiring the administrator to pay over 
 what might be left after the payment of debts and expenses. John- 
 son V. Kingsbury, 67 — 528. 
 
 86. A BILL IN EQUITY may be maintained against an administrator 
 of an insolvent estate for property held in trust by his testator which 
 has come into his hands, if it can be identified. Gfoodell v. Buck, 
 67—514. Fogler v. Buck, 66—205. 
 
 (c) Of the appearance of the administrator after the death of a 
 
 party. 
 
 87. It seems that when the defendant dies during the pendency of 
 an action, and his estate is represented insolvent, the plaintiff can not 
 wait until after a final account has been settled and distribution made, 
 before citing in the administrator. Neally v. &egan; 67 — 563. 
 
 88. By Public Laws of 1870, c. 128, when either of several plaintiffs 
 or defendants in an action that survives, dies, the action may be further 
 prosecuted or defended by the survivors and the executor or admin- 
 istrator of such deceased party jointly. Treat v. Dwinel, 59 — 841. 
 
264 EXECTTTOKS AND ADMINTSTIIATOES. 
 
 89. By Public Laws of 1870, c. 109, actions pending at the time of 
 the passage or repeal of an act, shall not be affected thereby. lb. 
 
 90. Hence, an action of trespass against several defendants brought 
 to recover treble damages for the destruction of personal property, 
 pending when c. 128 took effect, can not be prosecuted against the 
 representative of one of the deceased defendants jointly with the 
 survivors. lb. 
 
 91. But in such case, the plaintiff may, under R. S., c. 82, § 11, dis- 
 continue against the survivors, and proceed against the representative 
 of the deceased defendant, or proceed against any or all of the sur- 
 vivors upon discontinuing against the representative party, and such 
 of the survivors as the plaintiff may elect not to proceed against, sub- 
 ject to the provision relating to cost. lb. 
 
 92. When one of several plaintiffs dies the administrator has until 
 the second term after such death, or after his appointment, in which 
 to make his election whether he will appear or not, and the survivors 
 can not be compelled earlier to elect whether to prosecute as survi- 
 vors, or summon the administrator to join with them. Snow v. 
 Bartlett, 64—384. 
 
 93. When both parties die during the pendency of a suit, the 
 administrator of the plaintiff has a right to appear and summon in 
 the administrator of the defendant. Fulton v. Nason, 66 — 446. 
 
 See Husband and Wipe, 23. 
 
 VI. GENEEALLT. 
 
 94. Administration commenced upon the assumption that the 
 deceased was a citizen of Maine, must be closed upon the same 
 assumption, and it will not be competent for parties adversely inter- 
 ested to show that the deceased was a citizen of another State to 
 affect the distribution of the estate. Record v. Howard, 58 — 225. 
 
 95. Thus, where administration was granted upon a representation 
 that the deceased at the time of her death was a citizen of Maine, 
 and the record states that this fact was made fully to appear, and 
 there was no suggestion of fraud, and no appeal from the decree of 
 the probate court granting the administration, and the settlement of 
 the estate was proceeded with till the administrator had settled his 
 fourth, and iinal account, and had applied for an order of final distri- 
 bution ; held, that the domicile of the deceased, at the time of her 
 death, must be regarded as conclusively settled, not only for the pur- 
 pose of giving jurisdiction to the probate court, but also for the pur- 
 pose of distributing the estate ; and that it was not competent to show 
 that the domicile of the deceased, at the time of her death, was in 
 Ohio, and not in Maine, either to show want of jurisdiction in the 
 probate court, or to affect the distribution of the estate. lb. 
 
 96. In c. 132, Public Laws of 1870 (R. S., c. 82, § 87, clause iv.), 
 providing, that in an action, by or against an executor, administrator, 
 or other legal representative of a deceased person, in which his 
 account books or other memoranda are used as evidence on either 
 side, the other party may testify in relation thereto, — the phrase, 
 "other memoranda," means memoranda made by the deceased only ; 
 and it does not include receipts given by the adverse party to the 
 deceased in his life time. Gary v. Merrin, 59 — 361. 
 
PEES — FENCE. 265 
 
 97. The amount of compensation received by a special administra- 
 tor upon an estate can not affect the amount to which the administra- 
 tor upon the same estate subsequently appointed is entitled. McLoon 
 V. Spaulding, 62 — 315. 
 
 98. The administrations of the estates of the same decedents in 
 different States, where there are creditors and property belonging to 
 the same estate, are wholly independent of each other. Fowle v. 
 Coe, 63—245. 
 
 See Equity, 95, p. 205. 
 Judgment, 28, 32. 
 / Limitations, III. 
 Peobatb Couet. 
 Intbeest , 9. 
 
 FEES. 
 
 1. It is immaterial whether an officer states his fees at four cents a 
 mile each way or eight cents one way. Carville v. Additon, 62 — 459. 
 
 2. Neithet a county or its treasurer is chargeable on trustee pro- 
 cess for the fees of a juror ordered by court to be paid from the county 
 treasury. Clark v. Clark, 62 — 255. 
 
 3. The compensation of commissioners appointed under R. S., 1871, 
 c. 3, § 43, to determine the line between adjoining towns is to be 
 apportioned equally upon the petitioners and respondents as parties, 
 irrespective of the number of towns in either party. Sethel v. Albany, 
 65—200. 
 
 See PooE Debtoe, 10, 20. 
 
 FENCE. 
 
 1. Removal eeom Highway. An action of trespass can not be 
 maintained against a surveyor of highways for removing fences stand- 
 ing within the limits of the location of a highway in his district, when 
 their continuance has been less than foj'ty years next after the location 
 of the highway. Whittier v. Mclntyre, 59 — 143. 
 
 2. It is not essential that the unlawful existence of such fences 
 should be established by indictment and conviction, prior to such 
 removal. Ih. 
 
 3. A gate in a fence which the defendants are bound to keep in 
 repair is to be regarded a part of the fence. JEstes v. Atlantic <& St. 
 L. a. R. Co., 63—308. 
 
 4. It is for the jury to say whether a fence is kept in repair. lb. 
 
 5. Paeol evidence is admissible to show a division of a line fence 
 made more than forty years before. Harlow v. Stinson, 60 — 347. 
 
 6. Peesceiption. The respective owners of adjacent lands may 
 become bound by prescription to maintain specific portions of their 
 partition fence. lb. 
 
266 PENCE — FICTION OP LAW. 
 
 7. An instruction that if the ovners of the adjacent lands, or the 
 persons from whom they respectively derived title, severally mainr 
 tained and supported well defined and specific portions of the line 
 fence for twenty consecutive years, each repairing his own part, recog- 
 nizing his obligation to do so, it would be a division of such fence by 
 prescription and thereafter it would be obligatory upon the owners to 
 keep in repair such portions as they had so severally maintained, is 
 correct. lb. 
 
 8. Division bt Fence Viewbes. An assignment of a partition 
 fence by fence viewers, one of whom is a brother-in-law of one of the 
 owners of the adjacent land is void. Gonant v. JSTorris, 58 — 451. 
 
 9. To give any person a statute right to a partition fence the land 
 of the adjacent owner must be inclosed or improved, and the fact that 
 a part of the land of the adjacent owner is improved does not require 
 him to maintain any part of a partition fence along that part which is 
 not improved. James v. Tibbetts, 60 — 557. 
 
 10. Fence viewers have no authority to determine the right of 
 adjacent owners to a partition fence. lb. 
 
 11. The time limited by fence viewers within which each adjacent 
 owner shall build his part of the fence, must be definitely fixed, and a 
 recital in the assignment that a certain owner therein named shall 
 build the portion assigned to him "within twelve days from the date 
 of receiving notice of this assignment" is not sufficiently definite. Ih. 
 
 12. Parol evidence is not competent to fix the time. lb. 
 
 13. Two or more several owners and occupants of lands adjoining 
 the land of another can not join in an application to fence viewers for 
 a division of the fence. JBriggs v. Haynes, 68 — 535. 
 
 14. To make valid the division, and impose upon a party the bur- 
 den of building the part assigned to him within the time fixed by the 
 fence viewers, it must appear that they delivered to such party their 
 assignment in writing at the time it was made, so that he may know 
 the part he is required to build, and have the whole time limited by 
 them in which to build it. lb. 
 
 15. A legal demand can not be made on a party for the value of the 
 part of the partition fence assigned to him by fence viewers, which he 
 failed to build in the time fixed by them, and which was built by l!he 
 adjoining owner and occupant, until the fence viewers adjudge, that 
 the fence, built by the plaintiff, is sufiicient, and give notice thereof, 
 and of the value of the fence, as ascertained by them, to the occupant, 
 so neglecting to repair or rebuild. lb. 
 
 16. A copy of such adjudication, certified by the attorney of the 
 party in whose favor it is made, and delivered to the adverse party is 
 not sufiicient. lb. 
 
 See Raileoad, 25, et seq. 
 Wat, 116. 
 
 FICTION OF LAW. 
 
 Fictions of law are always designed to answer the purpose of 
 justice, but are not permitted to prejudice rights or work injury to 
 any one. Westbrook Manf. Co. v. Grant, 60 — 88. 
 
FISH — FIXTUEES. 267 
 
 FIELD DRIVER. 
 
 Since 1834 there has been no such town officer as field driver 
 known to the statutes of the State. Varney v. Bowher, 63 — 154. 
 
 FISH. 
 
 1. The oyster is included in the term fish. Caswell v. Johnson, 58 
 —164. 
 
 2. Taking fish by means of numerous single baited hooks and lines, 
 set in as many holes cut through the ice, and tended by one person, 
 is a violation of c. 310, Private Laws 1870, prohibiting fishing'in Webb's 
 Pond otherwise than by "ordinary process of angling with single bait 
 hook and line, or artificial fly." State v. SJcolfield, 63 — 266. 
 
 FIXTURES. 
 
 1. At the expiration of a tenancy, fixtures erected by the tenant, 
 go to the landlord unless the tenant, before surrendering possession, 
 has removed them. Dingley v. Buffum, 57 — 381. 
 
 2. If one builds with his own materials, on the land of another, 
 without and against the consent of the latter, the building belongs to 
 the owner of the soil. JBonney v. Foss, 62 — 248. Garbury v. Sulli- 
 van, 67 — 531. Sampson v. Alexander, 67 — 523. 
 
 3. And if the erection consists of a segment of a building, placed 
 partly upon the land of the builder, the same result follows. JBonney 
 V. Foss, 62—248. ' 
 
 4. Contractors who had built a railroad were the owners of certain 
 rails and sleepers, forming a side track, fastened to the main track by 
 frogs, and used by them in the construction of the road, being moved 
 from place to place as occasion required. When the road was com- 
 pleted and delivered to the company, the contractors consented that 
 the side track should remain for the temporary use of the company. 
 Held, that the rails and sleepers forming the side track did not par- 
 take of the character of fixtures, but were merely personal chattels 
 of the contractors. Fifield v. Maine Central R. II. Co., 62 — 77. 
 
 5. A sale of stones by the owner of a farm, accompanied by a pay- 
 ment therefor, and a removal by the vendee to another part of the 
 premises, constitutes a severance, and vests the title in the pur- 
 chaser. Fulton V. Norton, 64 — 410. 
 
 6. AcTxiAL ANNEXATION to the freehold is not essential to constitute 
 an article, a part of the realty. It is not the mere fastening that is 
 to be regarded so much as the nature of the thing, and its adaptation 
 to the uses and purposes for which and to which the building is 
 erected and appropriated. Pope v. Jackson, 65 — 162. 
 
 7. A TBMPOEAET attachment of a machine, for purposes different 
 from the general and ordinary use of the building, with which it is 
 connected, does not make it a part of the realty. II. 
 
268 PrXTTJRES — POECIBLE ENTEY AND DETAINEE. 
 
 8. When a tenant at will, under a mortgager, ceases to occupy the 
 premises and they are afterwards surrendered to the mortgagee, 
 whether articles placed thereon by the tenant, and left there by him, 
 become a part of the realty, is, between him and the mortgagee, to 
 be determined, not according to the rule between landlord and tenant, 
 but that which prevails between mortgager and mortgagee. lb. 
 
 9. The common law rule that whatever is fixed to the freehold 
 becomes a part of the realty and passes with it, has been relaxed in 
 favor of tenants and others who have made erections and improve- 
 ments at their own expense and for their own use, upon land in which 
 they had only a temporary interest, because of the hardship they 
 would be subject to if they could not remove such fixtures at or 
 before the expiration of their term. Chase v. Wingate, 68 — 204. 
 
 10. But the rule of the common law applicable to actual fixtures has 
 been held to apply to erections and improvements made by the mort- 
 gager in possession without relaxation, and also to articles of a doubt- 
 ful nature, whether actual fixtures or not, on the ground of the pre- 
 sumed intention of the parties in respect to them. lb. 
 
 11. Manure accumulated in the course of husbandry from the occu- 
 pation of a farm belonging to a wife, as between her and her husband, 
 is a part of the land belonging to her, and passes to her grantee, 
 although his stock and his hay, brought upon the place while occupied 
 by them, in part produced the accumulation. Norton v. (Jraig, 68 
 —275. 
 
 See Laitolokd and Tenant, 14. 
 Teust, 25. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 1. When real estate is legally levied upon, the creditor may forth- 
 with maintain forcible entry and detainer against the debtor if he 
 continue in possession without the creditor's consent. Baker v. 
 Cooper, 57—388. 
 
 2. The process may be commenced and maintained before the 
 expiration of the time for the redemption of the levy. Ih. 
 
 3. To maintain forcible entry it is not necessary that the defendant 
 should have been tenant to the plaintiff. Such process may be com- 
 menced against a disseizor, who has not acquired any claim by posses- 
 sion and improvement, lb. 
 
 4. Forcible entry and detainer lies against an agent, if guilty of 
 a forcible entry or detainer, as well as against the principal. Bailey 
 v. Bailey., 61 — 361. 
 
 5. If the defendant in forcible entry and detainer justifies his pos- 
 session under i. third person, the burden is on him to prove such third 
 person's title. lb. 
 
 6. The premises occupied by the defendant consisted of a small 
 building owned by him, attached by stringers to the side of a bridge 
 over the Saco river, by means of which the plaintiff's railroad crossed 
 the river, and intersected a street in the city, crossing both by means 
 of one bridge. The bridge was erected by the co-operation of the 
 
FOEGBEY — PEAIJCHISB. 269 
 
 railroad and the city. The defendant erected the building, overhang- 
 ing the river, and outside the limits of the street, by license of the 
 city. The bridge to which the building was attached was repaired 
 by the city, botihi before and after the building was erected. Held, 
 that the railroad company could not maintain forcible entry for the 
 building. Boston & Maine JR. JR. Co. v. Durgin, 67 — 263. 
 
 7. Recognizance. The defendant claimed that he was entitled to 
 possession of the premises by virtue of a lease, or agreement, from the 
 plaintiff, and this claim was sustained by the justice, whereupon the 
 plaintiff appealed to the supreme court, and there moved for a default 
 because the defendant did not recognize to pay rent, etc., R. S., 1871, 
 c. 94, § 6. Held, that the motion could not be sustained. Sweetsir 
 V. JKcKenney, 65 — 225. 
 
 8. When the original process is transferred by the magistrate to 
 this court without trial because the defendant, by his pleadings, claims 
 that the title to the premises was in his lessors, the recognizance 
 should be conditioned simply as prescribed in R. S., c. 94, § 6, for the 
 payment of "all intervening damages and costs and a reasonable rent 
 for the premises." Ingalls v. Chase, 68 — 113. 
 
 See Estoppel, 21, p. 216. 
 Landloed and Tenant. 
 
 FORGERY. 
 
 1. If a person signs an incomplete instrument, with blanks to be 
 filled, and delivers it to another with authority, express or implied, to 
 fill the blanks, and the blanks are fraudulently filled, and the instru- 
 ment made different from what the signer intended, it seems that it 
 is not forgery but breach of trust. Abhott v. JRose, 62 — 194. 
 
 2. If, however, it is delivered as a completed instrument without 
 any authority, express or implied, to fill any blanks or make any 
 changes, the subsequent additions are a forgery. lb. 
 
 See Estoppel, 87, p. 218. 
 
 FOREIGN LAWS. 
 
 See Conflict of Law, p. 98. 
 
 FRAlSrCHISE. 
 
 None can interpose a franchise except those who have rights under 
 it. State V. JMJadison, 59—538. 
 
270 FEAIJD AND PKAITDULENT CONVEYANCES. 
 
 FRAUD AND FRAUDULENT CONVEYANCES. 
 
 I. FRAUD IN GENEEAL. 
 II. ACTIONS FOE DECEIT. FALSE EEPEESENTATIONS. 
 
 III. FRAUDULENT CONVEYANCES. 
 
 (a) Of the CONVETAlfCES. 
 
 (b) Remedies. 
 
 (c) Actions against peesons assisting debtors in 
 
 FRAUDULENT CONCEAXMENT OF FBOPERTT. 
 
 IV. EVIDENCE OF FRAUD. 
 
 L FRAUD m GENERAL. 
 
 1. A town voted to raise a certain sum of money to be paid to each 
 man who should enlist upon their quota, and that the selectmen hire 
 the money and pay the volunteers after they are mustered into the 
 U. S. service. Thereupon the selectmen hired and paid to the defend- 
 ants a large sum of money upon their fraudulent assurance that, pur- 
 suant to their contract with the selectmen, they had caused to be 
 enlisted and placed to the quota of the town nine men for three years 
 each, when, in fact, eight of the men were enlisted for one year only. 
 In an action for money had and received by the town, /leld, that the 
 plaintiff could maintain the action without first placing the defendants 
 in statu quo, and that the rights of the parties might be equitably 
 adjusted upon its trial. Concord v. Delany, 58 — 309. 
 
 2. After the settlement or discharge of a demand by the payment 
 of a sum less than the amount due thereon, before the creditor can 
 maintain a suit on the original cause of action on the ground that the 
 discharge was procured by fraud on the part of the debtor, the cred- 
 itor must rescind the contract of settlement, and return or tender to 
 the debtor whatever sum he paid in effecting it. Potter v. Monmouth 
 Ins. Go., 63^40. 
 
 3. If one signs a paper without reading it is his foUy, and is not 
 fraud. Maine Mutual Ins. Co. v. Hodgkins, 66 — 109. 
 
 4. Nor is it fraud if one misapprehends, and, misapprehending, mis- 
 states the legal effect of an instrument. Ih. 
 
 5. Where a note was given by a mother in settlement of a claim 
 for damages for an alleged assault by her son upon the payee, an 
 instruction, in an action upon the note, between the original parties 
 thereto, that if the note was obtained by false and fraudulent repre- 
 sentations of injuries sustained, and through a conspiracy to extort 
 money from the defendant, she would not be liable, was held correct. 
 Thompson v. Hinds, 67 — 177. 
 
 See Bills and Notes, 97, p. 70. 
 
 6. The nominal plaintiff sold to the defendant certain bonds, the 
 defendant giving his note for the sum agreed to be paid therefor. 
 When the note was given it was verbally agreed that if the defendant 
 did not seU the bonds, or receive any compensation therefor, his note 
 should be cancelled and given up to him. Some time after, the defend- 
 ant falsely and fraudulently represented to the plaintiff that he had 
 turned the bonds over to certain parties without compensation, and 
 thereby procured the surrender of his note without payment. Held^ 
 
• PEATTD AJSTD FEAUDTJLBNT CONVEYANCES. 271 
 
 that the plaintiff might maintain an action of the case for the fraud, 
 or trover for the note, or that fraudulent procurement of the note by 
 the defendant might be treated as equivalent to the receipt by him of 
 the money upon it, and that the plaintiff might waive the tort and 
 maintain assumpsit for money had and received. Penobscot B. R. 
 Co. V. Mayo, 67—470. 
 
 II. ACTIONS FOK DECEIT. FALSE REPRESENTATIONS. 
 
 7. An assertion in a bond for the conveyance of land that the obligor 
 is "possessed and seized in fee" of the premises, vi^hen in fact, he has 
 only a bond for a deed thereof from the real owner, is between the 
 original parties, a good defense to an action of a promissory note, 
 given in consideration of the bond. Coburn v. Haley, 57 — 346. 
 
 8. An action on the case for deceit, will not lie for inducing the 
 plaintiff to convey to the defendant real estate in consideration of a 
 loan of money, and a verbal promise on the part of defendant to give 
 a bond to plaintiff, for a reconveyance of the property on payment of 
 the loan, the defendant refusing to execute the bond after the convey- 
 ance. Long V. Woodman, 58 — 49. 
 
 9. The remedy of the plaintiff in such case, is upon the implied 
 promise of the defendant to pay the plaintiff what the land is worth. 
 Long V. Woodman, 65 — 56. 
 
 10. A fraudulent affirmation, made by the defendant to the plain- 
 tiff, respecting the quantity of hay cut the previous year on a farm, 
 which the former was about to sell to the latter, will support an ac- 
 tion for deceit. Martin v. Jordan, 60 — 531. 
 
 11. Thus, where the parties were on the farm in the winter, while 
 covered with snow, examining it with a view to the sale, and a short 
 time before the conveyance was made, and the defendant, in answer 
 to a question by the plaintiff, said the farm cut twenty-five tons of 
 hay the preceding year ; and the defendant knew the statement was 
 false when he made it ; and the plaintiff, relying upon it, was thereby 
 induced to purchase and was thereby deceived and injured. Held, 
 that the defendant was guilty of an actionable fraud. Jh. 
 
 12. Of Pi?iCe Paid. An action for deceit in the sale of real 
 estate, does not lie for the false representations of the vender as to 
 the price he paid therefor. Holhrooh v. Connor, 60 — 578. 
 
 13. Affirmations by the vender of lands, that said lands had largo 
 deposits of oil in them, and were of great value for the purpose of 
 boring for oil, accompanied with the statement that the lands had not 
 been tested, are matters of opinion, and though false, will not support 
 an action for deceit. Lh. 
 
 14. Representations by the vender, as to the value of the property 
 sold, the price that was given for it, or which had been offered for it, 
 OT at which it had been sold, or the future profits which could be 
 made out of it, are not actionable. Bishop v. iSmall, 63 — 12. 
 
 15. One agreed to sell a stock of goods at the Boston prices of sim- 
 ilar goods at that date, but fraudulently made out a bill with the 
 prices above the Boston prices, at the time, and the purchaser in con- 
 sequence was induced to pay for the goods the sum stated in the bill. 
 Held, that the purchaser, without rescinding the contract, might main- 
 tam an action for money had and received, and recover the difference 
 
272 PEAUD AND PEATJDTILBNT CONVEYANCES. . 
 
 between the price of the goods as stated in the bill, and the Boston 
 price at the time of the conti-aot. Lord v. French, 61 — 420. 
 
 16. When, at the time a sale is made, the seller proposes to sell the 
 goods at cost, and at the same time names a price as the cost, which 
 is acceded to by the purchaser as such. If, in fact, the price named 
 by the seller is above the actual cost to him, he cannot shelter him- 
 self behind the legal proposition, that such a false representation is not 
 actionable, and if the jury find that the sale was at the actual cost, 
 the purchaser may recover of him in assumpsit, the difference between 
 the actual cost and the sum paid, on account of his false statement of 
 the cost. Willard v. Randall, 65 — 81. 
 
 17. Where the fraudulent representations of the seller of property, 
 whereby the purchaser was induced to buy, were such as to give the 
 latter the right to rescind, and he does rescind the sale and surrender 
 possession to the vender, the law implies a promise on the part of the 
 seller, to pay the purchaser for labor and materials in making reason- 
 able repairs upon the property. Farris v. Warej 60 — 482. 
 
 18. Thus, the defendant fraudulently represented the water-power, 
 connected with his tannery to be sufficient to work it continuously 
 throughout the year, and the plaintiff, having no knowledge of the 
 premises, and relying upon the representations, was thereby induced 
 to purchase the tannery, and thereupon, after taking a bond thereof, 
 and giving his notes for the price, the plaintiff entered into posses- 
 sion, and under the advice of the defendant, expended large sums in 
 repairs ; but the water failing, the plaintiff abandoned the property 
 and notified the defendant that he considered the contract of purchase 
 rescinded, whereupon the defendant took possession of the premises, 
 and had the benefit of the repairs. In assumpsit to recover for the 
 labor and materials in making the repairs. Held, that the action was 
 maintainable. lb. 
 
 19. Also held, that a surrender of the bond was not essential to a 
 recision of the contract. lb. 
 
 20. An action by a woman, upon the ground that through the false 
 and fraudulent representations of the defendant, that he was a single 
 man, she was induced to enter into a void marriage with him, he be- 
 ing at the time a married man, by which she lost her time and labor, 
 and suffered other injuries, is not against public policy. Withee v. 
 JBroohs, 65 — 14. 
 
 21. Where one by quitclaim deed sells land set off to him on an 
 execution, and represents that his title is good, the concealment of the 
 fact known to him and unknown to the buyer, that a petition to 
 reverse the judgment was then pending, is fraudulent, and renders 
 him liable in damages. Atwood v. Chapman, 68 — 38. 
 
 22. Silence. If a person makes representations as to quality or 
 title he is to speak the truth, or if he is placed or places himself in a 
 position where his silence will convey a false impression, his suppres- 
 sion of the truth will be as much a fraud as a false statement. Hence, 
 whether the withholding of a fact is fraudulent must depend upon the 
 accompanying circumstances. lb. 
 
 23. If he produces a judgment from a court of competent jurisdic- 
 tion with no apparent defect in it, as the foundation of his title, the 
 other party certainly has a right to understand him as asserting that 
 at least as far as he knew, there was no infirmity connected with that 
 
I'EATJD AND rEAUDTnLBNT CONVEYANCES. 273 
 
 judgment, no existing fact growing out of it, -whioli might destroy it 
 as a muniment of title. Ih. 
 
 24. Oral bvidbnoe of fraud, in order to vacate a deed, should not 
 only amount to a preponderance of proof, but such preponderance 
 should be based upon testimony that is clear and strong, satisfactory 
 and convincing. Parlin v. Sraall^ 68 — 289. 
 
 25. This rule should be especially enforced in a case where the 
 oral evidence comes mainly from parties to the suit, and where the 
 dissatisfied party seeks to recover damages for the fraud imposed 
 upon him, instead of rescinding the contract and repudiating the deed. 
 Ih. 
 
 26^ If one would recover damages for fraudulent representations by 
 which he was induced to enter, into a contract, he must be reasonably 
 free from fault or negligence himself. Ih. 
 
 27. A note was given for cloths and shawls sold to the defendant. 
 The goods were spread out by the seller for examination, and exam- 
 ined by the purchaser. The alleged fraudulent representations were 
 that the goods "were English goods, manufactured from the best mate- 
 rial ; that there was a great failure in England, and that these goods 
 were brought from England and purchased in New York by the plain- 
 tiff, and that the seller was agent for him," and that the shawls were 
 Paisley shawls. Held, that none of these statements, even if untrue, 
 would form the basis of an action for deceit, or a defense resting on 
 that ground, unless possibly it be the statement that the goods were 
 manufactured from the best materials. Whether there had been a 
 great failure in England, or the plaintiff had purchased the goods at 
 a great advantage, were not such representations as, if false, would 
 make the seller liable. Farrell v. Lovett, 68^326. 
 
 28. Held, also that as to the quality of the goods, whether of the 
 best material or not, the purchaser had ample opportunity to and did 
 examine the goods purchased, and though the defendant was deceived 
 by the statements as to the character and value of the goods 
 sold, yet the defendant could not maintain an action of deceit, if the 
 goods were open to his observation, and he could by the use of ordinary 
 diligence and prudence ascertain their quality. He should use reason- 
 able diligence to ascertain their quality. Ih. 
 
 29. The same principle applies where the purchaser seeks to avail 
 himself of deceit in the defense of a suit for the price of the goods or 
 in reduction of damages. Ih. 
 
 See Fbaud, Statute of, 18. 
 Equity, 79, p. 203. 
 
 III. FEAUDULENT CONVEYANCES. 
 
 (a) Of thb ooifVETAjfCB. 
 
 (b) Remedies. 
 
 (c) Actions AaAiNST pbbsoks assisting dbbtobs in the fbaud- 
 
 ULBNT CONCEALMENT OF PBOPBBTT. 
 
 (a) Of the conveyances. 
 
 30. To constitute an indirect conveyance of real estate to a married 
 woman by her husband, within the meaning of R. S., c. 61, § 1, the 
 deed from him must be made as one step in the conveyance to her, for 
 
274 rKAUD AND PEATJDTJLENT CONVEYANCES. 
 
 her benefit, and for the purpose of getting the estate into her hands. 
 Bean v. Boothby, 57 — 295. 
 
 81. Unless the ptjechaseb as well as the grantor of land, alleged to 
 be conveyed in fraud of creditors, is a partaker in the fraud, the sale 
 can not be avoided for that cause. Webster v. Folsom, 58 — 230. 
 
 32. To avoid a sale as fraudulent against creditors, there must have 
 been an accomplished purpose to defraud or delay the creditoi's. The 
 fraudulent intent alone is not sufiicient. Itice v. Perry, 61 — 145. 
 
 33. A conveyance of real estate by a husband, made before a libel 
 for divorce has been filed by his wife, and for a full and valuable con- 
 sideration, is void as between the husband and wife if made expressly 
 to prevent her from recovering such alimony as the court might 
 decree her in case a petition for divorce should be filed. Bailey v. 
 Bailey, 61 — 361. 
 
 34. If, after a divorce granted, a husband obtains a re-conveyance 
 to himself of the real estate thus previously conveyed, a decree of 
 court made before such re-conveyance, allowing the use of it to the 
 wife for alimony, will enable her to hold it as against any subsequent 
 conveyance made by him, without consideration. lb. 
 
 35. A voluntary conveyance by a father to his son, accepted by the 
 latter as a gift, but executed by the father for the purpose of depriv- 
 ing his future wife, to whom he was then engaged, of dower in the 
 premises, is not a fraudulent conveyance as against his subsequent 
 creditors. Jones v. Roberts, 65 — 273. 
 
 36. A conveyance by a debtor to his wife is not to be presumed 
 fraudulent, and will be sustained when there is no evidence to 
 impeach it. Grant v. Ward, 64 — 239. 
 
 37. A husband may lawfully pay a bona-fide debt due from him to 
 his wife, for money of her own lent to him after marriage, by procur- 
 ing with her assent, a conveyance to her by a third person of land 
 paid for by him. French v. Motley, 63 — 326. Ferguson v. Spear, 
 65—277. 
 
 38. In the absence of proof sufficient to establish a common fraud- 
 ulent intent on the part of the husband and wife, his other creditors 
 can not complain of his preference to discharge a debt due to her 
 rather than to them. Jb. 
 
 39. A GIFT of property by a husband to his wife, or by a father to 
 his son, is not per se fraudulent against the creditors of the giver. 
 French v. Holmes, 67 — 186. 
 
 40. If the gift is of comparatively trifling value it may not he 
 fraudulent. lb. 
 
 41. Mere indebtedness is not sufficient to render a voluntary con- 
 veyance void. lb. 
 
 42. Whether or not it was made with intent to defraud creditors is 
 to be determined by the jury. lb. 
 
 43. As to whether a gift from a husband to his wife is fraudulent 
 against creditors, the same rules apply as when the gift is to any 
 other person. lb. 
 
 44. A voluntary conveyance from father to son, made by the grantor 
 with an intent to defraud subsequent creditors, is void as to such 
 creditors, although there is no proof that the grantee participated in 
 
PEATO AND FEAUDITLENT CONVBTANCES. 275 
 
 that intent when he received or accepted the deed. LaugMon v. 
 Harden, 68—208. 
 
 45. It follows, from the definition of a voluntary conveyance, that 
 the question in regard to its validity or invalidity depends on the 
 intept of the party making it, and not on the motive with which it is 
 received. Ih. 
 
 46. A voluntary conveyance is not per se evidence of fraud against 
 even a prior creditor, hut prima facie only. As to subsequent cred- 
 itors it is a fact only, which with other facts and circumstances may 
 prove the fraud as to them. In the one case, the voluntary convey- 
 ance is not good, unless the debtor has ample means left after the gilt 
 wherewith to pay his existing indebtedness without risk or hazard to 
 his creditors. In the other case, it may not be good, if the debtor is 
 at the time insolvent or deeply indebted and pays off his old debts by 
 contracting new ones. In the one case, the burden is upon the grantee 
 to show that the deed was not fraudulent. In the other case, the 
 burden is upon the subsequent creditors to show that it was. Jb. 
 
 47. Chapman was the assignee of a mortgage of two pieces of land 
 to one of which the original mortgager gave a warranty deed to 
 Emery, and to the other of which the mortgager's interest came to 
 Campbell by intermediate assignments through Bunker, each assignee 
 agreeing with his assignor to pay the whole note secured by the 
 mortgage of the two pieces. Chapman transferred his interest in the 
 note and mortgage to Campbell's daughter. An indictment stating 
 these facts and that the transfer by Chapman was made to defraud 
 Emery and Bunker, was held, to charge no offense known to the law. 
 State V. Chapman, 68 — 477. 
 
 See Assignment fok Benefit of Cbeditoes, p. 36. 
 Tettst, 13, 15. 
 Gift, 6, p. 282. 
 
 (b) Hemedies. 
 
 48. Where the husband pays for land and procures the conveyance 
 to be made to his wife, the fact that the husband has other property 
 which may be reached by another process, does not oblige a prior 
 creditor to take such other property, for the purpose of satisfying his 
 debt^, in preference to the land. Gray v. Ohase, 57 — 558. 
 
 49. A creditor can seek relief in equity, on the ground that real 
 estate paid for by the debtor has been fraudulently conveyed by him, 
 only after the recovery of a judgment against the debtor, and a return 
 of nulla bona on the execution. Griffin v. Nitcher, 57 — 270. 
 
 50. A creditor of the husband can not hold land conveyed to the 
 wife by a bona fide grantee of the husband, and paid for out of the 
 property of the husband, by a levy made on an attachment subsequent 
 to the conveyance by the husband. His remedy is in equity. Webster 
 Y.Folsom, 58—230. 
 
 51. The plaintiff having made a levy upon lands to which the debtor 
 had the legal title when the debt was contracted, but which was sub- 
 sequently conveyed by the debtor for the purpose of defrauding his 
 creditors, may perfect his title by bill in equity. Wyman v. Fox, 59 
 
 52. An officer who, by a sale of attached property upon mesne 
 process, without giving the notice required by law, becomes a tres- 
 
276 PEAIJD AST) FEAUDtrLENT CONVEYAKCBS. 
 
 passer ab initio, will not be permitted to show, in defense of a suit 
 against him, that the conveyance of the property by the debtor named 
 in such process, to the party suing the officer, was fraudulent as to 
 creditors. Sawyer v. Wilson, 61 — 529. 
 
 53. If a creditor, having demands accruing partly before and partly 
 after, a conveyance he would impeach on the ground of fraud, blends 
 them all in one suit, and, having recovered judgment, extends his 
 execution on the land, he can come in only in the character of a subse- 
 quent creditor. Holmes v. Farris, 63 — 318. 
 
 54. The same rule applies when, the conveyance being from a third 
 person to the wife of the debtor, the remedy is sought in equity with- 
 out a levy. lb. 
 
 55. Also, when the conveyance is of personal property. French v. 
 Holmes, 67—186. 
 
 56. When a note given prior to the conveyance is taken up after 
 the conveyance, and a new note, for the principal and interest due, is 
 given by the debtor to the creditor, whether the latter can impeach 
 the conveyance as a prior creditor, quare. lb. 
 
 See Assumpsit, p. 42. 
 Equity, p. 199. 
 
 (c) Actions against persons assisting debtors in the fraudulent 
 concealment of property. 
 
 58. If a "person summoned as a trustee, upon his examination wil- 
 fully and knowingly answers falsely," the perjuiy thereby committed 
 constitutes, not only a cause of action within R. S., c. 86, § 77, but 
 also a fraudulent concealment of the cause of such action within c. 81, 
 § 107. Gerry v. Dunham, 57—334. 
 
 59. If a debtor, being the owner of money and choses in action, 
 invest the same in a dwelling house, and for the purpose of securing 
 the same from attachment or seizure on execution by his creditors, 
 cause the conveyance of the same to be made to a third person, by 
 whom it is held for the purpose of aiding the debtor in his fraudulent 
 design, such third person is liable to a creditor under R. S., 1857, c. 
 113, § 47, for aiding the debtor in the fraudulent concealment of prop- 
 erty. Spaulding v. Fisher, 57 — 411. 
 
 60. In an action for knowingly aiding a debtor in the fraudulent 
 transfer of his property, when the kind of property is stated, and it is 
 alleged to be the property of the debtor, this is sufficient and will be 
 sustained by proof that it was liable to be taken for his debts by the 
 proper legal process. Flatt v. Jones, 59 — 282. 
 
 61. In an action on the case for knowingly aiding a debtor in the 
 fraudulent transfer of his property an allegation, that on the date of 
 the transfer the relationship of debtor and creditor existed, with the 
 amount of the debt, is sufficient. Tb. 
 
 62. In an action by a creditor against one alleged to have assisted 
 the debtor in the fraudulent transfer of his property, where the declar- 
 ation specifies the property, and it appears that more of it than double 
 the amount of the creditor's demand is not exempt from attachment, 
 it is not necessary to allege totidem verbis, that the property is liable 
 to attachment or seizure on execution. Wentworth v. Hinkley, 67— 
 368. 
 
 See Paetnbeship, 32. 
 
PRATJD AND FRAUDULENT CONATBYANCES. 277 
 
 IV. EVIDENCE OF FRAUD. 
 
 63. One of plaintiff's witnesses testified that the plaintiff and one 
 Marshal O. Warren, unloaded, on its arrival at the depot, the super- 
 phosphate, for the value of which plaintiff brings this suit as sole 
 owner, and that all arrangements in regard to unloading it had been 
 made with plaintiff and Warren, and witnesses for the defense testi- 
 fied that Warren had requested them to unload it or to procure some 
 one to do so, and in answer to an inquiry made in the presence of the 
 plaintiff as to "how he (W.) came to buy that phosphate at that 
 season of the year," Warren had answered that he had "bought it at 
 a bargain ; " held, that this testimony did not sufficiently connect 
 Warren with the plaintiff in the ownership of the phosphate to render 
 testimony as to Warren's declarations in regard to its purchase admis- 
 sible. Rice V. Perry, 61 — 145. 
 
 64. After the demandant in, a real action has introduced testimony 
 to prove that the defense was fraudulently manufactured by a third 
 person, and that such person is the defendant in interest, evidence of 
 the acts of such third person tending to show fraud on his jjart is 
 admissible. Hatch v. Brown, 63 — 410. 
 
 65. When the plaintiff claimed that he was induced to revoke a power 
 of attorney given to his brother, and give one to his father, by reason 
 of false representations of several persons that his brother was trying 
 to swindle his father out of all his property, that his father was desti- 
 tute, and that the plaintiff had better put his real estate into his 
 father's hands, it was held, that testimony showing the pecuniary 
 condition of the father at the time these letters were written was 
 properly rejected. Harmon v. Harmon, 61 — 222. 
 
 66. The defendant contended that the plaintiff procured his guar- 
 anty of certain notes by fraudulent misrepresentations as to the 
 maker's solvency. Held, that testimony of the maker as to certain 
 business transactions between himself and the plaintiff, consisting of 
 notes and renewals, and substitutions, and the payment of a high rate 
 of interest, was admissible as tending to show the plaintiff's knowl- 
 edge of the maker's insolvency. Walker v. Thompson, 61 — 347. 
 
 67. The fact that lands sold at public auction, under an order of 
 probate court, are sold for a very small sum compared with their 
 intrinsic value, is not conclusive evidence of fraud. Fowle v. €oe, 
 63—245. 
 
 68. Insolvency. Where a party claims real estate by purchase, 
 and the adverse party introduces testimony to show that the claim is 
 fraudulent and for the purpose of securing the title for a third person, 
 evidence of the insolvency of the party at the time of the alleged 
 purchase is admissible. Hatch v. Brown, 63 — 410. 
 
 69. The fact that the debt to the wife is barred by the statute of 
 LIMITATIONS is not Conclusive evidence of a want of good faith in a 
 conveyance of property to the wife by the husband, for the purpose of 
 discharging such debt. French v. Motley, 63 — 326. 
 
 70. The legal title to certain lands was conveyed to A., but in fact 
 the purchase was made for the joint benefit of A. and B., it being 
 agreed between them that A. should make the first payment, and take 
 the deed in his name alone as security. B. stated also, as another 
 reason why the purchase was made in the name of A., that he (B.) 
 was considerably involved in debt. Held^ that the statement could 
 
278 FRAUDS, STATUTE OF. 
 
 not be considered as an admission of a fraudulent purpose in making 
 the conveyance to A. alone, sufficient to defar B. from enforcing the 
 resulting trust against A. Burleigh v. White, 64 — 23. 
 
 71. Evidence that a married woman entrusted her property to the 
 management of her husband during her lifetime, and devised it so 
 that the title should remain in a trustee while her husband should 
 continue to manage it after her death, has no tendency to prove that 
 her title accrued m fraud of his creditors ; not enough to go to the 
 jury. Emerson v. Sewins, 64 — 297. 
 
 72. Where one, largely indebted to his father's estate, made an 
 absolute conveyance of all his property to the administratrix the day 
 before his death, the property being less in value than the indebted- 
 ness, it was held not fraudulent. Gardiner Sank v. Sagar, 65 — 359. 
 
 73. It appeared that the plaintiff was induced to settle an action 
 during its pendency, on account of the representations of two persons 
 who were really agents of the defendant, but who pretended to be 
 laboring for the interests of the plaintiff, one of them being the plain- 
 tiff's brother-in-law, who represented that the defendant was hiring 
 witnesses, and would corrupt the jury, that they had seen the 
 defendant and a large number of his witnesses in an unseemly place, 
 who dissuaded the plaintiff from consulting with his counsel, pre- 
 tended to be acquainted with the law and its uncertainties, and by 
 these means induced the plaintiff to settle for much less than he other- 
 wise would have done. Held, that the evidence was sufficient to 
 authorize the jury to find that the settlement was procured by fraiid. 
 Ziarrabee v. Sewall, 66 — 376. 
 
 See ExBCUTOES and Administeatoes, 27, p. 258. 
 
 FRAUDS, STATUTE OF. 
 
 I. TO ANSWER FOR THE DEBT OF AKOTHER. 
 
 II. SALE OF LANDS. 
 
 III. SALE OF GOODS. 
 
 IV. OTHER MATTERS. 
 
 I. TO ANSWER FOR THE DEBT OF ANOTHER. 
 
 1. A verbal promise to pay the debt of another in consideration of 
 forbearance of the creditor to sue the debtor, cannot be enforced. 
 Stewart v. Campbell, 58 — 439. 
 
 2. Thus, the plaintiff's debtor, having a debt against one D., and a 
 lien therefor upon a vessel which D. was building for the defendants, 
 told the plaintiff that inasmuch as D. had refused to pay the plain- 
 tiff's demand, according to a previous promise, the plaintiff should 
 have the benefit of his lien-claim. Whereupon, the defendants told 
 the plaintiff that they did not want the vessel detained for so small a 
 bill, and promised him that if D., upon his return, did not pay him the 
 sum owed by his debtor, they would see it paid. The plaintiff did 
 not discharge his debtor, nor did his debtor release D. or his lien on 
 the vessel, though he did not enforce it as he would have done, had 
 he not believed the debt would be paid by D. or the defendants. In 
 
FEAUDS, STATUTE OF. 279 
 
 an action to recover of the defendants, the plaintiff's debt against his 
 debtor; held, that the promise is within the statute of frauds. lb. 
 
 3. A verbal promise to pay the debt of another, in consideration of 
 funds placed in the hands of the party promising, is not within the 
 statute of frauds. Jb. 
 
 4. When one makes a contract with a husband to erect a building 
 upon land belonging to the wife, and the wife afterwards promises to 
 see him paid, such promise, not in writing, is within the statute of 
 frauds. Mollins v. GrocJcer, 62 — 244. 
 
 5. The test whether an action based upon false representations, as to 
 the credit of another, is within the statute of frauds, is, not whether it is 
 necessary for the plaintiff to declare upon the representations, but 
 whether their proof is necessary to its maintenance. Hunter v. JRan- 
 dall, 62—423. 
 
 6. It is immaterial that the defendant may have intended, and did 
 obtain an advantage to himself from the transaction, provided the 
 primary object of the representations was to induce the plaintiff to 
 loan money to the third person, and the loan was obtained thereby. 
 Nor does it affect the case that the money passes through the hands 
 of the defendant. Jb. 
 
 II. SALE OF LANDS. 
 
 7. When premises are hired at a monthly rent, and the landlord, as 
 a part of the contract, agrees to make certain repairs, such agreement 
 is within the statute of frauds, and must be proved by a memoran- 
 dum in writing, although the tenant occupies the premises and pays 
 the rent. G'Leary v. Delaney, 63 — 584. 
 
 See Post, 21. 
 
 Assumpsit, 25, p. 39. 
 
 III. SALE OF GOODS. 
 
 8. The sale of an interest, or of shares, in a joint stock company, is 
 within the statute of frauds. Pray v. Mitchell., 60 — 430. 
 
 9. Delivbet. On April 2d, the owner of a large quantity of bark 
 situated on his wharf, billed it to his creditor as security for indebt- 
 edness and delivered it to the defendant as his creditor's agent. On 
 April 19th, the bark remaining on the owner's wharf, he bargained 
 it to the defendant, but made no written memorandum of the 
 bargain, received nothing in payment, and made no delivery of any 
 portion of it, although the defendant subsequently went and meas- 
 ured it, of his own motion. On April 28th, the original owner sold, 
 and gave a bill of the bark to the plaintiff who paid for it ; and while 
 the bark was being measured, the defendant interfered and claimed 
 it by an alleged sale on April 19th, whereupon the plaintiff replieved 
 it. Held, that the bargain to the defendant was within the statute of 
 frauds, there having been no delivery or acceptance of the bark ; and 
 that the plaintiff's knowledge of the facts would not affect the sale. 
 
 Young v. Blaisdell, 60—272. 
 
 10. Where by verbal contract, for the sale of hay at a stipulated 
 price, the vendee was to press it at the vender's barn, and then the 
 latter was to haul it to a specified place, an instruction, that if the 
 
280 PEAUDS, STATUTE OF. 
 
 defendant (the vendee), took the hay from the plaintiff's mew and 
 pressed it and marked it with his name, and the plaintiff intended 
 that these acts should divest him of all ownership in the hay, and 
 the defendant intended to become the owner of the hay, and to have 
 the title unconditionally vested in him, then no further delivery was 
 necessary to take the case out of the statute of frauds, and that wheth- 
 er such was the intention of the parties was a question of fact for the 
 jury, in view of all tlie acts and words of the parties, is unexception- 
 able. Dyer v. Libhy, 61 — 45. 
 
 11. A seizure of goods by force, or under color of legal process, is 
 not a receipt or acceptance of them within the statute of frauds. 
 
 Washington Ice Co. v. Webster, 62 — 341. 
 
 12. The WEITTEN ACCEPTANCE of a verbal offer, not containing its 
 terms, but leaving the whole contract to be established by parol evi- 
 dence, is not binding on the party so accepting, within the statute of 
 frauds. lb. 
 
 13. To a verbal offer by plaintiff, for defendant's ice, the latter re- 
 plied in writing : "You shall have my ice for your offer ; write me." 
 Plaintiff replied, "your telegram accepting our offer is received. I 
 will send a memorandum of the offer to-morrow." The memorandum 
 signed by the plaintiff, but containing blanks for the defendant to fill 
 with a description of the place where the ice was situated, was sent to 
 the defendant with a request for him to sign it, "if found correct." 
 The memorandum was variant from^ the verbal conversation. The 
 defendant refused to sign it. Held, no written evidence of sale signed 
 by the defendant. lb. 
 
 14. On March 2d, the parties made a verbal contract for the sale of 
 goods, on the 10th the contract was broken by the defendant, and on 
 the 24th, the parties put their previous verbal contract into writing, 
 ante-dating it as an original contract, made on March 2d. Seld, that 
 the contract made on March 24th, with the explanations as to its ori- 
 gin, was to be considered precisely as if the parties had on that day 
 signed a paper certifying and admitting that they had on March 2d, 
 made a verbal contract, and stating in written terms just what that 
 contract was ; and that an action might be maintained for the breach 
 of the contract on March 10th. Sird\. Munroe, 66 — 337. 
 
 15. It seems that the written memorandum of a prior verbal con- 
 tract must be made before the action is brought. lb. 
 
 16. A verbal contract for the mastupactuee and delivery of staves 
 from a particular lot of timber is not within the statute of frauds. 
 Crockett v. Scribner, 64 — 447. 
 
 IV. OTHER MATTERS. 
 
 17. The statute of frauds need not be specially pleaded by the 
 defendant, where the declaration contains only the general count of 
 money had and received. Hunter v. Randall, 62 — 423. 
 
 18. An action to recover damages sustained by the verbal, false, 
 and fraudulent representations of the defendant, concerning the char- 
 acter or credit of a third person cannot be sustained. Hearn v. 
 
 Waterhouse, 39—96. 
 
 19. .The writing is not to be considered as constituting the contract 
 itself, but is merely the necessary legal evidence of it, by means of 
 
GAMING — GIFT. 281 
 
 which a prior unwritten oonteact may be proved. Sirdv.Munroe, 
 67—337. 
 
 20. When a verbal contract for service for one year, is silent as to 
 the time when that service is to commence, and it appears from the 
 subsequent acts of the parties that it was their intention that the 
 year should not commence on the day the contract was made, but on 
 a later day, such contract is within the statute and not legally bind- 
 ing. Searne v. Chadhoume, 65 — 302. 
 
 21. When a party to a verbal contract for the conveyance of land 
 has complied with its conditions, and made all the payments required 
 by its terms, he is entitled to recover back such payments, in case the 
 other party refuses to perform on his part. Jettison v. Jordan, 68 — 
 373. 
 
 22. Nor will it defeat his right of recovery that he is in possession 
 of the premises agreed to be conveyed. Ih. 
 
 GAMING. 
 
 The stake-holder is liable for money deposited in his hands on a 
 wager, if demanded of him while he has the money. It is no defense 
 that, after such demand, he has paid it to the winner. McDonough 
 V. Webster, 68—530. 
 
 See CoNTKACT, 40, p. 116. 
 Penalty, 3. 
 
 GIF'T. 
 
 1. The actual transfer of possession to the donee, if supplemented by 
 plenary evidence of an intentional release to the donee, on the part 
 of the donor, by language importing a present, absolute, unconditional 
 gift, will make a complete gift inter vivos, and it matters not whether 
 the transfer takes place before, after, or at the time of the utterance 
 of the words. Wing v. Merchant, 57 — 383. 
 
 2. A valid gift of a negotiable promissory note may be made, either 
 inter vivos or causa mortis, without indorsement or other writing. Ih. 
 
 3. To establish a gift of property, from the husband to the wife, the 
 evidence ought to be of a thoroughly convincing character ; evidence 
 which shall satisfy the court not only that the deceased said and did 
 what is necessary to constitute a valid gift, but that it was, in very 
 deed, his intention, at the time, to part with his property and bestow 
 it upon the donee for her independent use. Trowbridqe v. Holden, 
 58—117. 
 
 4. A delivery to a donee, or to some other person for the donee, of 
 a savings bank book, with an intent to give the donee the deposits 
 represented thereby, vests the equitable title to the deposits in the 
 donee without an assignment. Hill v. Stephenson, 63—364. 
 
 5. An ADMiNiSTEATOK of an insolvent estate in an action for money 
 
282 GTTAEANTY — 6T7ABDIAN AST) WAED. 
 
 had and received may recover for money given by his intestate after 
 he became insolvent, and without a valuable consideration. McLean 
 V. Weeks, 61—277 ; 65—411. 
 
 6. As such gift is valid as against the heirs of the giver and only 
 fraudulent, or evidence of fraud, against the creditors of the giver, 
 the donee is entitled to all over the amount required for the payment 
 of debts and expenses of administration. Ih. 
 
 7. A gift of property by a husband to his wife, or by a father to 
 his son, is not necessaeilt fraudulent against the creditors of the 
 giver. French v. Holmes, 67 — 186. 
 
 GUARANTY. 
 
 1. Upon the defendant's written guaranty of the following tenor, — 
 "Oct. 14, 1860. Let the bearer buy merchandise to the amount of 
 two or three hundred dollars, on six months, and I will see you 
 paid," — the plaintiffs sent to the bearer merchandise to the amount 
 of two hundred and thirty dollars and thirty cents, and in November 
 and December following, one hundred and ten dollars' worth more. 
 Held, that the defendant's liability was limited to the first bill of 
 goods. Reed v. Fish, 59 — 359. 
 
 2. A guarantor, upon failure of performance by the person whose 
 contract he guarantees, is liable to a suit without any previous suit 
 or judgment against the defaulting contractor. Prentiss v. Garland, 
 64—155. 
 
 See Contract, 58, p. 119. 
 
 GUARDIAN AND WARD. 
 
 1. A mechanic can not maintain an action of assumpsit against the 
 guardian of a minor for work performed on the ward's building. 
 Robinson v. Sersey, 60 — 225. 
 
 2. No KOTicB is required upon the petition for the appointment of 
 a guardian for a minor less than fourteen years of age, resident in the 
 county where the petition is filed. Peacock v. Peacock, 61 — 211. 
 
 3. Upon the petition of a guardian for the care of his ward's per- 
 son to be committed to him, under R. S., 1871, c. 67, § 3, notice to the 
 living parent of the child must be given. lb. 
 
 4. In the statute, R. S., 1871, c. 71, § 1, authorizing the sale by the 
 guardians of minors of the real estate of their wards in certain cases, 
 the term real estate includes any and all rights thereto, and interests 
 therein. Baxter v. Baxter, 62 — 540. 
 
 5. If a guardian receives a conveyance in his own name of his 
 ward's property (a vessel), includes it in his inventory, and in his 
 accounts with the estate of his ward, charges the same with the 
 expenses of its management, and credits it with its earnings, the title 
 is in the guardian in trust for the ward. Fogler v. Buck, 66 — 205. 
 
HABEAS COEPTJS — HEALTH. 283 
 
 6. In such case after the decease of the guardian a second guardian 
 may, by bill in equity, compel a conveyance from the administrator of 
 the first guardian. lb. 
 
 7. The conveyance should be to the ward. lb. 
 
 8. Of Insaiste Peeson. By R. S., c. 82, § 32, "when a party to 
 a suit becomes insane, it may be prosecuted or defended by his guar- 
 dian, who, on application of his friend or of the other party, may be 
 appointed for that purpose by a justice of the court in term time or 
 in vacation. He shall be entitled to a reasonable compensation, and 
 not be liable for costs." Sanfordy. Phillips, 68 — 431. 
 
 HABEAS CORPUS. 
 
 1. An application for the writ is addressed to t|ie sound discretion 
 of the court, and will not be granted unless the real and substantial 
 justice of the case demands it. O'Malia v. Wentworth, 65 — 130. 
 
 2. Persons imprisoned on criminal process are not to be released on 
 habeas corpus, for defects in form only. lb. 
 
 3. On habeas corpus to obtain the release of a boy sentenced to the 
 reform school, hdd, that the court could not look beyond the precept 
 by which he was detained, and if that was regular, the complaint and 
 warrant could not be examined to see whether they were sufficient or 
 not. lb. 
 
 HEALTH. 
 
 See CoN-TAGious Sickness, p. 109. 
 
 HEIRS. 
 
 1. The rents and profits of the real estate of a deceased insolvent 
 debtor, until it is sold for the payment of debts, belong to his heirs at 
 law. Kimball v. Sumner, 62 — 305. 
 
 2. The term "legal heirs," when used in a technical sense, does not 
 include the widow. Lord v. Bourne, 63 — 368. 
 
 3. The general principle is that the word "heir" in a will, when 
 unexplained by the context, must be interpreted according to its 
 strict legal import. lb. 
 
 4. But this is only the prima facie construction which may be 
 repelled by evidence of the contrary intention of the testator. lb. 
 
 5. To maintain an action against an heir to recover a debt of the 
 ancestor upon which an action does not accrue until after the expira- 
 tion of the period within which an action might be maintained against 
 the administrator, it is not necessary that steps be taken to secure 
 
284 HEIRS — HirSBAKD AND WIPE. 
 
 the debt from the estate before it is divided, and passes into the pos- 
 session of the heirs. Sampson v. Sampson, 63 — 328. 
 
 6. The defendant's father gave to the plaintiff's testator a note 
 payable in instalments after the payee's death, — with the right 
 reserved to anticipate payments, — and died intestate before the payee, 
 having paid upon the note two sums, indorsed generally, the aggregate 
 of which was sufficient to fully pay the interest and first instalment. 
 Administration was duly taken upon his estate. The second instal- 
 ment did not become payable until after the expiration of the period 
 limited for the commencement of actions against executors and admin- 
 istrators. The note was not filed in the probate office. The defend- 
 ant received, as heir of her father, more than enough to cover this 
 instalment. Held, that the plaintiff could maintain an action against 
 the defendant, as heir, under Public Laws of 1872, c. 85, to recover 
 her proportional part of this second instalment. lb. 
 
 7. In an action against an heir, upon a debt of the ancestor not 
 payable in season to avoid the limitation bar in favor of the adminis- 
 trator, it is unnecessary to aver and prove that additional assets did 
 not come into the hands of the administrator after the expiration of 
 that period, or that the administration had been closed, that being a 
 matter of defense. Jb. 
 
 See ExECUTOKS and Admimsteatoes, p. 256. 
 Remainder. 
 
 HOUSE OF ILL FAME. 
 
 1. On the trial of an indictment for keeping a house of ill fame, 
 (nuisance, R. S. 1871, c. 17, § 1,) evidence of the general reputation 
 of the house is not admissible. State v. JBoardman, 64 — 528. 
 
 2. But evidence of the reputation of the women frequenting the 
 house, and of their conversation and acts in and about it, is compe- 
 tent, lb. 
 
 HUSBAND AND WIFE. 
 
 I. GENERALLY. 
 
 II. EIGHTS AND LIABILITIES OF THE HUSBAND. 
 III. RIGHTS AND LIABILITIES OF THE WIFE. 
 IV. ACTIONS, BY, AGAINST AND BETWEEN HUSBAND AND 
 WIFE. 
 
 I. GENERALLY. 
 
 1. To constitute an indirect conveyance of real estate to a married 
 woman by her husband, within the meaning of R. S., 1857, c. 61, § 1, 
 the deed from him must be made for her benefit, as one step in the 
 conveyance, for the purpose of getting the estate in her hands. £ean 
 V. £oothby, 57—295. 
 
HUSBAND Airo WIPE. 285 
 
 2. A husband, ■who is justly indebted to his wife, may appropriate 
 his property to the payment of her claim, to the exclusion of his other 
 creditors. French v. Motley, 63 — 326. Ferguson v. Spear, 65 — 277. 
 
 3. Nor is the fact that her claim is barred by the statute of limita- 
 tions conclusive evidence of a want of good faith. French v. Mot- 
 ley, 63—326. 
 
 4. If one makes a contract with a husband to furnish labor and 
 materials for erecting a building upon the land of the wife, and the 
 labor is performed with the knowledge and approval of the wife, the 
 husband and wife may be held jointly liable to pay for it. Verrill v. 
 Farker, 65—578. 
 
 5. As to whether a gift from a husband to his wife is fraudulent 
 against creditors, the same rules apply as when the gift is to any other 
 person. French v. Holmes, 67 — 186. 
 
 6. Where husband and wife live upon a farm belonging to her, with- 
 out any contract between them, he carrying on the place for their 
 common support, it seems that she is really in possession as owner. 
 There is a joint occupation which constitutes but one possession, she 
 having the control. His possession is her possession. Norton v. 
 
 Craig, 68—275. 
 
 See Equity, p. 199. 
 
 Fraud 20, p. 272 ; 33, p. 274. 
 Witness, 10. 
 
 II. EIGHTS AND LIABILITIES OF THE HUSBAND. 
 
 7. Necessaeies. In case of separation by mutual consent, the 
 husband's liability for necessaries for the wife still continues, unless 
 he exonerates himself from it by fitting proof. Burkett v. Trowbridge, 
 61—251. 
 
 8. One who in consequence of a disagreement arising between him- 
 self and his wife carried her to her father's house, and left her there, 
 where she remained until she obtained a divorce, was held liable to 
 her father for her board, without any express contract, notwithstand- 
 ing the husband paid his wife an agreed sum in lieu of alimony, which 
 was received by her father for her. Ih. 
 
 9. If the husband abandons the wife, or by ill treatment compels her 
 to leave his house, he is liable for her necessaries and gives her a gen- 
 eral credit to that extent. Thorpe v. Shapleigh, 67 — 235. 
 
 10. For anything beyond necessaries he is not chargeable. If the 
 articles furnished are not necessaries, in kind, quality or quantity, the 
 husband is not liable for them, nor is he liable for a fraction of their 
 value, or the price of articles reasonably suitable which might have 
 been furnished her in the place of those actually furnished. lb. 
 
 11. Real estate was conveyed to a married woman. She paid a 
 portion of the consideration from the proceeds of her separate prop- 
 erty and the balance was paid with money acquired by the husband 
 and wife from such sources as "keeping boarders," "rent of hall," 
 "sales of stock" and sales of produce raised upon the land. Held, 
 that the earnings of the husband and wife from these sources were 
 the property of the husband. Sampson v. Alexander, 66 — 182. 
 
 12. When a suit is brought against husband and wife for a tort 
 committed by the wife, the liability of the husband necessarily follows 
 
286 HxrsBAifrD ast> ■wipe. 
 
 from the existence of the marital relation and under a .joint plea of 
 not guilty, a verdict that the wife is guilty is sufficient to entitle the 
 plaintiff to judgment against the husband as well as the wife. Fer- 
 guson y. JBrooks, 67 — 251. 
 
 III. RIGHTS AND LIABILITIES OF THE WIFE. 
 
 13. If a married woman sells intoxicating liquor contrary to law, in 
 the presence of her husband, the law presumes that she acts under his 
 coercion, but this presumption may be rebutted by very slight circum- 
 stances. State V. Cleaves, 59 — 298. 
 
 14. If a married woman commits a tort in the presence of her hus- 
 band, the presumption that it was done under the coercion of her 
 husband may be rebutted. Warner v. Moran, 60 — 227. Ferguson 
 T. Brooks, 67—251. 
 
 15. In regard to the ancient rule that a married woman can not be 
 a trespasser by prior or subsequent assent, it seems that a wife ought 
 not to be held liable on account of such assent in a case where she is 
 not in any contingency to reap any profit, or her separate estate a 
 benefit. Ferguson v. JBroohs, 67 — 251. 
 
 16. But when she is subject to no coercion from her husband but 
 makes him her agent in enforcing some supposed right, she may 
 authorise or ratify any act done in her name and behalf, or for 
 shielding her from responsibility. lb. 
 
 17. Real estate conveyed to a married woman but paid for by her 
 husband, can not be conveyed by her without the joinder of her hus- 
 band. Gall V. Perkins, 65 — 439. 
 
 18. A SBPAEATE DEED by cach executed at different times may be 
 sufficient. Ih. 
 
 19. If a husband purchases, on credit, materials for a building 
 which he erects upon the land of his wife, with her knowledge and 
 consent, there is no implied promise on the part of the wife to pay for 
 them. Ferguson v. Spear, 65 — 277. See Yerrill v. Parker, 65 — 578. 
 
 20. The wife can not change the domicile of her husband against 
 his will. Porterfleld v. Augusta, 67 — 556. 
 
 See Maeeied Woman. 
 
 IV. ACTIONS, BY, AGAINST AND BETWEEN HUSBAND AND 
 
 WIFE. 
 
 21. By. a husband can not, even with his wife's consent, main- 
 tain an action in his own name alone, for an injury to his wife's horse 
 occasioned by a defect in a highway, while he, havLag exclusive pos- 
 session and control of the horse with the wife's consent, was driving 
 along the road alone. Green v. I\Fo. Yarmouth, 58 — 54. 
 
 22. A promise to keep certain premises in repair, made by one to a 
 husband does not authorize the husband and wife to maintain assump- 
 sit jointly for a breach of the promise on account of which the wife 
 received an injury. 0''Leary v. Delaney, 63 — 584. 
 
 23. An action on the case by a husband and Avife, for a personal 
 injury to the wife, can not proceed, after the death of the wife, in 
 the name of the husband. He should withdraw as a party that the 
 administrator of the wife may come in. West v. Jordan, 62 — 484. 
 
HTTSBAKD AKD WIFE — IMPOUNDING. 287 
 
 24. A wife can maintain suits against third parties wrongfully 
 claiming to hold or appropriate her property under color of authority 
 from her husband. Meserve v. Meserve, 63 — 518. 
 
 25. When a wife has been divorced from her husband for his fault, 
 and has left her property upon his premises, he can not maintain tres- 
 pass quare clausum against her servants for peaceably entering, after 
 her divorce, at her request, and removing her property. JKalloch v. 
 Perry, 61—273. 
 
 26. When the legal title to a farm is in the wife she alone can 
 maintain an action against one who carries away the soil. Bradford 
 V. Sanscom, 68 — 103. 
 
 27. Trespass quare clausum may be maintained by the husband for 
 an injury to the real estate of the wife, he being in possession of the 
 same, iiTCspective of any right acquired by virtue of the marriage 
 relation. Wass r. Plummer, 68 — 267. 
 
 28. Against. In an action against husband and wife where the 
 writ alleges the cause of action as a tort of the wife, and describes 
 the defendants as husband and wife, a joint plea of not guilty is an 
 admission of such relation between them. Ferguson v. Brooks, 
 67—251. 
 
 29. In an action against husband and wife, where the cause of 
 action is alleged to be the tort of the wife, the proper general issue is 
 that the wife is not guilty. lb. 
 
 30. But in such case the husband must join in making the plea. Ih. 
 
 31. A verdict against the wife is sufficient to entitle the plaintiff to 
 judgment against both. lb. 
 
 32. Between Husband and Wife. By virtue of R. S., 1857, c. 
 61, a married woman, in a suit in her own name, to recover the wages 
 of her labor, not performed for her own family, may summon her 
 husband as trustee of her debtor. Tunks v. Grover, 57 — 586. 
 
 33. After a divorce either party may maintain an action against the 
 other upon a contract entered into during the existence of the marital 
 relation. Blake v. Blake, 64 — 177. 
 
 34. Probably a valid contract between a husband and wife may be 
 enforced in equity during coverture. Ih. 
 
 35. A wife after obtaining a divorce from her hiisband can not 
 maintain an action against him for an assault committed upon her 
 daring coverture, or against those who assisted him in committing 
 such an assault. Abbott v. Abbott, 67 — 304. 
 
 See Intoxicating Liquoks, 9. 
 Sale, 12. 
 Trespass, 17. 
 
 IMPOUNDING. 
 
 1. A person injured in his lands by neat-cattle, may distrain and 
 impound the animals doing the mischief, or he may have an action of 
 trespass. Mosher v. Jewett, 59 — 453. 
 
288 IMPOUNDING — INDICTMENT. 
 
 2. A person taking up an estray forfeits all claim for keeping the 
 same unless lie commits it to the pound-keeper within ten days. Ih. 
 
 3. In a town in which there is neither pound nor pound keeper, one 
 who takes up a beast upon his premises, damage feasant has a lien 
 upon it for expenses necessarily incurred in taking care of it, and may 
 retain the custody of it until they are paid. Mosher v. Jewett, 63 — 84. 
 
 4. A certificate, stating two causes of impounding, for one of which 
 no authority is given to impound, is faulty. Varney v. Jiowher, 63 
 — 154. 
 
 5. A person who takes up cattle as "estrays" in the highway, and 
 commits them to the pound, can not claim the forfeiture provided in 
 case of cattle found at large without a keeper in the highways. Ih. 
 
 See Febld Deivee, p. 267. 
 
 INDICTMENT. 
 
 I. INDICTABLE OFFENCES. 
 II. THE INDICTMENT. 
 
 (a) Finding of the indictment. 
 
 (b) Venue. 
 
 (c) Duplicity. 
 
 (d) SUKPLUSAGB. 
 
 (e) Undeb statutes. 
 
 (f ) Fob penalties. 
 
 (g) Cebtaintt. 
 
 (h) Kepbrbncb pbom one count to anothbe. 
 
 III. PLEADING. 
 
 IV. PRACTICE. 
 V. EVIDENCE. 
 
 L INDICTABLE OFFENCES. 
 
 1. Where a register of deeds, without intent to defraud, made and 
 delivered to another, a certificate that he had examined the title of 
 an individual therein named to a certain lot of land, and found no 
 incumbrance thereon, when in fact, the register knew there was on 
 the registry a record of an attachment on the land ; he was JieM to be 
 guilty of misconduct in oiBce under R. S., 1857, c. 7, § 15, although in 
 the record the middle letter of the creditor's name differed from that 
 in the writ. State v. Leach, 60 — 58. 
 
 2. The respondent sent to the complainant a letter reading thus : 
 "Freeport, Sept 81 you may if you pleas you can enclose ten dollars 
 in an letter cend it to Joseph Boothby Yarmouth me or els you will 
 
 be enbited next tuesday or complained of me no fool demacratt 
 
 head quarters." Held, that the letter was to be regarded as per se 
 a threatening communication. State v. Patterson, 68 — 473. 
 
 S^or indictments for particular crimes see their respective titles. 
 
INDICTMENT. 289 
 
 II. THE INDICTMENT. 
 
 (a) Finding of the indictment. 
 
 (b) Venue. 
 
 (c) DlJPIilOITT. 
 
 (d) SrBPLTJSAGE. 
 
 (e) Under statutes. 
 
 (f) Fob penalties. 
 
 (g) Cebtainty. 
 
 (h) Keferbncb feom one count to another. 
 
 (a) Finding of the indictment. 
 
 3. An indictment, purporting to have been found by the grand jury 
 "upon their oaths," instead of upon their "oath," is valid. State v. 
 Lang, 63—215. 
 
 4. An indictment found by grand jurors drawn by virtue of venires 
 not having the seal of the court upon them, is abatable. State v. 
 Flemming, 66 — 142. 
 
 See Laws of 1877, c. 156. 
 
 JUET, 3. 
 
 5. The defect is not amendable. lb. 
 
 6. R. S., 1871, c. 106, § 8, requiring venires for grand jurors for the 
 supreme court to be issued forty days at least before the second 
 Monday of September annually,- is directory merely, and an indict- 
 ment found by a grand jury drawn by virtue of a venire issued after 
 that time, but in season for service in accordance with the provisions 
 of the statute is valid. State v. Smith, 67 — 328. 
 
 7. The signature of the prosecuting ofiBcer is not essential to the 
 validity of an indictment. State v. Reed, 67 — 127. 
 
 (b) Venus. 
 
 8. When a crime has been committed in an ^unincorporated place, 
 publicly and commonly known by name, within any of the counties of 
 the State, the venue is weU laid, and the place sufficiently described, if 
 the crime is alleged in the indictment to have been committed at a 
 place named within the county named, in the absence of anything 
 tending to show that the prisoner would be embarrassed in the prep- 
 aration of his defense for want of a more particular description. 
 State V. Wagner, 61 — 178. 
 
 9. Example. An allegation that a murder was committed "at an 
 island called 'Smutty Nose,' a place within the county of York," was 
 held sufficient. lb. 
 
 (c) Duplicity. 
 
 10. A count in an indictment containing a joinder of distinct 
 offences is bad for duplicity. State v. Smith, 61 — 386. 
 
 11. R. S., 1871, c. 27, § 20, prohibiting persons from carrying for 
 sale, or offering for sale, or offering to obtain, or obtaining orders for 
 the sale or delivery of intoxicating liquors, creates distinct and inde- 
 pendent offences, a joinder of which, in the same count in an indict- 
 ment, renders it bad for duplicity. lb. 
 
 12. The spoils of a single larcenous act may aU be included in one 
 
 19 
 
290 INDICTMENT. 
 
 count, and the indictment not thereby vitiated on the ground of 
 duplicity. State v. Stevens, 62 — 284. 
 
 13. An indictment for nuisance is not bad for duplicity, because 
 several causes are set out as descriptive of the nuisance. State v. 
 Lang, 63 — 215. 
 
 14. An indictment, alleging that the defendant unlawfully and 
 maliciously "did compose and publish, and cause and procure to be 
 composed and published" a malicious libel, is not bad for duplicity. 
 State V. Bobbins, 66—324. 
 
 (d) Surplusage. 
 
 15. In an indictment against a town for a defective highway, which 
 is alleged to have been legally laid out, a clause describing it as laid 
 out by the town may be disregarded as surplusage. State v. Madi- 
 son, 63—546. 
 
 16. The unnecessary use of the word "unlawfully" in an indictment 
 does not vitiate it. State v. Bobbins, 66 — 327. 
 
 (e) Under statutes. 
 
 17. An indictment should charge an offence in the words of the 
 statute or in language equivalent thereto. State v. Sussey, 60 — 410. 
 
 18. In an indictment against a collector of taxes for the embezzle- 
 ment, or fraudulent conversion to his own use, of money in his pos- 
 session, and under his control, by virtue of his oiEce, it is not neces- 
 sary to allege that the money was the property of another, or whose 
 money it was, or that the offender was not an apprentice, nor less 
 than sixteen years old, or that he appropriated the money without 
 the consent of the town whose officer he was. State v. Walton, 62 
 —106. 
 
 19. "When an indictment does not follow the words of the statute, 
 it is sufficient if the words used are equivalent in meaning, or are of 
 more general signification, but clearly embracing the language of the 
 statute. State v. Bobbins, 66 — 324. 
 
 20. An indictment under a statute for a misdemeanor as well as for 
 a felony is good, if in a single count it first sets out the offence of 
 the principal in the first degree, then proceeds to state the presence, 
 aiding and abetting of the principal of the second degree, and con- 
 cludes against the form of the statute ; though there is no such separ- 
 ate conclusion as to the offence of the principal of the first degree. 
 State V. Buby, 68—548. 
 
 (f) For penalties. 
 
 21. R. S., c. 51, § 36, provides that any railroad corporation, by 
 whose negligence or carelessness, or by that of its servants or agents, 
 which are employed in its business, the life of any person, in the exer- 
 cise of due care and diligence, is lost, forfeits not less than five hun- 
 dred nor more than five thousand dollars, to be recovered by indict- 
 ment found within one year, wholly to tbe use of his widow, if no 
 children, and to the children, if no widow ; if both, to her and them 
 equally. State v. G. T. B. B. of Canada, 60—145. 
 
 22. An indictment on this section, must aver that the person whose 
 life was lost, left a widow, or heirs, or both, as the case may be, and 
 
INDICTMENT. 291 
 
 an averment that he "then and there having a lavrful wife and child 
 alive" is not sufficient. lb. 
 
 23. Nor is the averment "that there is now living a widow and one 
 child." lb. 
 
 24. And the indictment must; set out the names of the persons who 
 are to receive the forfeiture ; an averment that "their names are to 
 the jurors unknown," not being sufficient. lb. 
 
 25. When the statute fixes the penalty for an offence "to be col- 
 lected by complaint or indictment," "one-half of said fine to go to 
 the complainant, and the other half to the county," judgment will 
 not be arrested, because the indictment does not contain the name of 
 any complainant. State v. Smith, 64 — 423. 
 
 26. When a statute declares that a penalty to be recovered by in- 
 dictment, shall go to the town in which the offence is committed, and 
 the appropriation is made by a public statute of which the court can 
 take judicial notice, and the indictment gives the name of the town 
 in which the offence was committed, no other averment as to whom 
 the penalty is to go is necessary. State v. Johnson, 65 — 362. 
 
 (g) Certainty. 
 
 27. It is the "nature and cause of the accusation" which is to be 
 set out in an indictment, and not the means employed. State v. Ames, 
 64—386. 
 
 28. An indictment alleging that the respondent did "entice, solicit, 
 and endeavor to persuade" a witness to absent himself from a court 
 to which he had been recognized to appear in a criminal case, is suffi- 
 ciently explicit. lb. 
 
 29. Name. When a person assaulted is known by two names, the 
 use of either in the indictment for the assault is sufficient. State v. 
 Bundy, 64—507. 
 
 30. An indictment for illegal voting at an election of State offcers 
 based upon a disqualification by reason of desertion from the military 
 service of the United States should specifically set forth the crime of 
 desertion. State v. Symonds, 57 — 148. 
 
 31. Where the charter of a railroad corporation authorizes the erec- 
 tion of a bridge across navigable rivers, "provided said bridge shall be 
 so constructed as not to prevent the navigating said waters," an indict- 
 ment against the corporation for erecting a bridge across a navigable 
 river named, which does not directly allege that the bridge prevents 
 the navigating the waters of the river, is not good. State v. Portland 
 & Kennebec B. B. Co., 57—402. 
 
 32. An indictment drawn under R. S., c. 17, § 1, alleging that the 
 corporation did "unlawfully and injuriously obstruct and impede, with- 
 out legal authority, the passage of said navigable river ... by erect- 
 ing a bridge across said river, which bridge is so constructed as to 
 prevent the navigating said river ... by means whereof the passage 
 of said river and common highway hath been obstructed and impeded, 
 and still is obstructed and impeded," &c., is not sufficient. lb. 
 
 33. An allegation in an indictment, "unlawfully and maliciously" is 
 not equivalent to "wilfully and maliciously." State v. Bussey, 60— 
 
292 INDICTMENT. 
 
 34. The word "maliciously" includes "wilfully." State v. JRohlins, 
 66—324. 
 
 35. In an indictment for the larceny of bank bills it is not necessary 
 to set forth the names of the banks by which they were issued, nor to 
 assert their genuineness more particularly than by an allegation of 
 their value. State v. Stevens, 62 — 284. 
 
 36. An allegation in an indictment for nuisance that the respondent 
 unlawfully kept a shop used for the illegal sale of intoxicating liquors 
 is sufficient to negative his authority to sell. State v. Lang, 63 — 215. 
 
 37. An indictment against a town for a defective way need not 
 allege its width. State v. Madison, 63 — 546. 
 
 38. In an indictment for a violation of the liquor law, where a 
 second conviction is visited with an increased penalty, the allegation 
 of a former conviction may be made in general terms. State v. Went- 
 worth, 65—234. State v. Gorham, 65—270. 
 
 39. An indictment alleged that R. did keep and maintain a com- 
 mon nuisance, to wit, a certain room, . . by him used for the illegal 
 sale and illegal keeping for sale of intoxicating liquors. . . And also 
 that P. did knowingly and unlawfully permit the room aforesaid, 
 in the building aforesaid, which said room and said building were then 
 and there under the control of said P., to be then and there used by 
 said R. for the illegal keeping for sale of intoxicating liquors aforesaid, 
 whereby and by force of the statute in such case made and provided, 
 said P. is deemed guilty of aiding in the maintenance of a nuisance, 
 etc. Held, a good indictment against each of the two, and that it 
 sufficiently alleges that R. did use the room therein described for the 
 illegal sale of intoxicating liquors. State v. Ruby, 68 — 543. 
 
 See Pbejuet. 
 
 (h) Reference from one count to another. 
 
 40. Each count in an indictment must stand or fall by itself. State 
 V. Smith, 61—386. 
 
 41. The year in which an offence was committed may, in a second 
 count, be Stated by referring to "the year aforesaid" in the first count. 
 State V. Lang, 63—215. 
 
 42. The name of the accused need not be repeated in full whenever 
 referred to in an indictment. State v. Lang, 63 — 215. State v. 
 Pihe, 65—111. 
 
 43. In an indictment for manslaughter the name of the deceased was 
 stated in each count, when first mentioned, as Margaret E. Pike, and 
 afterwards she was referred to as "the said Margaret." Held, suffi- 
 cient, there being no other person mentioned to whom the words "the 
 said Margaret" could apply. State v. Pike, 6b — 111. 
 
 III. PLEADING. 
 
 44. If judgment is rendered against a respondent upon a plea of 
 misnomer in a municipal court he can not on appeal waive the plea in 
 the appellate court and go to trial upon a plea of not guilty. State v. 
 Corkrey, 64 — 521. • 
 
 45. If a defendant in a criminal case appears generally and pleads 
 not guilty to a complaint he thereby waives all objections to matters 
 of foi-m in the warrant. State v. Regan, 67 — 380. 
 
INDICTMENT. 293 
 
 46. Two persons may be jointly indicted, one for maintaining a 
 liquor nuisance under R. S., c. 17, § 2, and the other for aiding in its 
 maintenance, under § 4 of the same chapter. State v. Ruhy, 68 — 543. 
 
 See Post, 55. 
 
 rv. PKACTICE. 
 
 47. Insteuctions. In a criminal case it furnishes no ground for 
 exceptions that the presiding judge gives greater prominence to the 
 government testimony than to that introduced in behalf of the prisoner. 
 State V. Beed, 62—129. 
 
 48. Nor that the judge recites particular portions of the testimony 
 and suggests inferences which may be drawn from them, even though 
 the inferences are stated in emphatic terms, if the jury are instructed 
 that they are judges of the facts proved, and responsible for the infer- 
 ences drawn from them. lb. 
 
 49. Remarks of the presiding judge to the jury, in a criminal case, 
 that considerations growing out of the enormity of the offence, and 
 the duty of protecting society were pertinent to urge them to render 
 a verdict according to their judgment, no matter what the penalty 
 might be, if their minds should be inclined to the opinion that the 
 crime charged was proved beyond a reasonable doubt, are not errone- 
 ous, there being no intimation that such considerations should supply 
 the place of satisfactory proof, or that inclination of mind should 
 supersede conviction. State v. Watson, 63 — 128. 
 
 50. A prisoner on trial for a capital offence can not complain 
 because the presiding judge called the attention of the jury to the 
 pardoning power of the governor, and alluded to the frequent omis- 
 sions to inflict the penalty of the law in times past. State v. Benner, 
 64—267. 
 
 51. ExPKBSSioisr ov Opinion. When the defence of a prisoner is 
 an alibi, a remark that the question depended principally on that of 
 time is not an expression of the guilt or innocence of the prisoner, 
 and is unobjectionable. lb. 
 
 52. If the counsel for the government, in his argument to the jury, 
 transcends his legitimate province, the counsel for the respondent 
 should object at the time or it will be too late. State v. Watson, 63 
 —128. 
 
 53. NoL Pegs. The attorney general may enter a nolle prosequi 
 to the whole or any part of an indictment for murder, against the 
 objection of the respondent, either before a jury is impaneled or after 
 verdict. State v. Smith, 67—328. 
 
 54. It may be entered at any time pending a plea in abatement, 
 demurrer, or motion in arrest of judgment. lb. 
 
 55. It is within the discretion of the presiding judge to permit the 
 attorney for the State to withdraw a joinder to a demurrer to an 
 indictment. lb. 
 
 56. Teial. a person accused, by complaint, of a misdemeanor, 
 tried and convicted before a magistrate, has not, on appeal, the legal 
 right to appear by attorney and demand a trial in his absence. State 
 V. Garland, 67 — 423. 
 
 57. Veemct. The Statutes of this State require that the "jury, 
 
294 INDICTMENT. 
 
 finding a person guilty of murder, shall find whether he is guilty of 
 murdei- in the first or second degree." State v. Cleveland, 58 — 564. 
 
 58. Upon an indictment which charges the defendant with the 
 crime of murder generally, without specifying the degi-ee of the crime, 
 a general verdict that the defendant is "guilty of the murder whereof 
 he stands indicted," is not a finding that he is guilty of murder of the 
 first degree, according to the provisions of the statutes in such cases 
 made and provided. lb. 
 
 59. When there are several counts, and the jury find the defendant 
 guilty on one count, and are silent as to the rest, the legal effect of 
 the verdict is an acquittal as to the other counts. State v. Watson, 
 63—128. 
 
 60. And when the indictment contains two counts which are iden- 
 tical, if the jury convict upon one and are silent upon the other, the 
 one upon which the jury are silent is to be disregarded, or a nol pros 
 entered upon that count, and the case proceed to judgment upon the 
 other. Ih. 
 
 See Verdict, 5. 
 
 61. The presiding judge is not bound to require a jury to bring in 
 a special verdict upon each count in an indictment when the counts 
 are in proper form, and all relate to the same offence. State v, Lang, 
 63—215. 
 
 62. On the trial of an indictment for rape the prisoner is not preju- 
 diced by a refusal of the presiding judge to instruct the jury that they 
 are at liberty to find a verdict of guilty of assault and battery. State 
 V. Black, 63—210. 
 
 63. Sentence. After a convict has been duly committed to jail 
 on a warrant of commitment, in pursuance of a legal sentence, the 
 judge who passed the sentence upon him can not revoke it. Jirown 
 V. Rice, 57 — 55. 
 
 V. EVIDENCE. 
 
 64. In the trial of a railroad corporation on an indictment under K. 
 S. of 1857, c. 51, § 42, the same rules of evidence and the same prin- 
 ciples of law should be applied as in analogous civil actions for dam- 
 ages. State V. Grand Trunh Railway of Canada, 58 — 176. 
 
 65. When the defendant, in a criminal case, does not testify as a 
 witness in his own behalf, it is not improper for the presiding judge, 
 in his charge to the jury, to call their attention to the fact, and to 
 instruct them, that it is a circumstance proper for their consideration. 
 State V. Lawrence, 57 — 574. State v. Cleaves, 59 — 298. 
 
 66. In the trial of an indictment charging the "misconduct in his 
 office" of a register of deeds, by knowingly issuing a false certificate 
 of a certain person's title to a particular lot of land, evidence com- 
 prising substantially the history of the certificate, and of the uses 
 made of it in obtaining a loan by the person to whom it was issued, is 
 admissible on the part of the prosecution under a count charging the 
 offence done with an intent to defraud. State v. Leach, 60 — 58. 
 
 67. So is the writ on which the alleged attachment was made, 
 together with a certified copy of the judgment thereon, the execution, 
 levy, and of the record of the levy. Ih. 
 
 68. So is the record of the attachment, although the middle initial 
 
INDICTMENT. 295 
 
 letter of the attaching creditor therein is "W." instead of "M." as in 
 the writ. Ih. 
 
 69. Declarations and Admissions. When a statement is made 
 either to a man or within his hearing, that he was concerned in the 
 commission of a certain crime, to which he returns no reply, the nat- 
 ural inference is that the imputation is well founded or he would have 
 repelled it — silence is tantamount to confession. State v. Cleaves, 59 
 —298. State v. Reed, 62—129. 
 
 70. The record of the committing magistrate, showing that the 
 respondent in a criminal process pleaded guilty to the complaint, is 
 admissible in evidence upon the final trial. Oral testimony in regard 
 to such plea is also admissible. State v. Bovie, 61 — 171. 
 
 71. A complaint for adultery alleged only the marriage of the man, 
 and the indictment afterwards - found alleged the marriage of both 
 parties, but at the trial the only evidence of the marriage of either 
 party was of the woman, except the record of a plea of guilty to the 
 complaint, by the man. Held, that an instruction that the jury might 
 consider the fact of the plea of guilty to the complaint, to supplement 
 the proof of the marriage of the woman, was erroneous. Ih. 
 
 72. Upon a trial for larceny, the declarations of the prisoner, after 
 the goods came into his possession, that he found them are not admis- 
 sible in his favor. State v. Pettis, 63 — 124. 
 
 73. A plea of nolo contendere is an admission of guilt. State v. 
 PlunJcett, 64—534. 
 
 74. Reputation. On the trial of an indictment for keeping a 
 house of ill fame, evidence of the re|)utation of the house is not ad- 
 missible, but evidence of the reputation of the women frequenting the 
 house is admissible. State v. Boardtnan, 64 — 523. 
 
 75. Intent. Upon the trial of an indictment for setting fire to a 
 dwelling-house, the fact that the respondent held a policy of insur- 
 ance upon the house at the time of the fire, may be material upon the 
 question of tnotive. State v. Watson, 63 — ^128. 
 
 76. Also, when it appeared that the respondent had deposited a deed 
 of the house with a third person, and with the consent of the grantee, 
 had given directions, in the form of a letter, to such person to deliver 
 the deed to the grantee on a specified day unless otherwise directed, 
 and the indictment alleged the burning of the buildings of the grantee 
 named in the deed before the time fixed in the letter for its delivery, 
 and the govei-ment had introduced evidence to show a delivery before 
 that time, such letter is admissible as showing the intention of the 
 parties, although there is no evidence to show that it ever reached 
 the person to whom it was directed. Ih. 
 
 See Adultery. 
 
 77. Former Conviction. Variance. An indictment for larceny 
 alleged that the defendant had been previously convicted of the same 
 offence before "the municipal court begun and held at Portland." It 
 appeared by the record that the convictions were had before "the 
 municipal court for the city of Portland." Held, no variance. State 
 V. Regan, 63—127. 
 
 _ 78. Under R. S., 1871, c. 82, § 94, the record of a previous convic- 
 tion which may be introduced to affect the credibility of a witness is 
 
296 INDICTMENT — ^ESTANT. 
 
 a conviction for any criminal offence, though it may not be an 
 infamous crime. State v. Watson, 63 — 128. 
 
 79. A sentence is no part of a conviction. State v. Sines, 68 — 202. 
 
 80. Docket entries, where the record has not been extended, show- 
 ing that, in a former trial of the defendant for a violation of the same 
 provision of the statute, a verdict of guilty has been rendered, excep- 
 tions filed and subsequently overruled and certified by the law court 
 to the clerk of the county, and no other proceedings pending for the 
 reversal of the verdict, are sufficient proof of a prior conviction, 
 though no sentence has been passed. lb. 
 
 81. Res Gest^. The outcries of a person deceased made during 
 the perpetration of the assault which results in death, or upon the 
 approach of the assailant, are competent evidence upon the trial of a 
 party charged with the murder of such person, and may be considered 
 by the jury with other circumstances and testimony upon the ques- 
 tion of the identity of the accused. State v. Wagner, 61 — 178. 
 
 82. The outcries of another person who was murdered by the same 
 party a few minutes previously during the perpetration of one and 
 the same burglary, but on another part of the premises, are admissible 
 under like circumstances for the same purposes upon such trial. lb. 
 
 83. Such exclamations are competent as part of the res gestae. 
 
 84. Moreover their admission may be distinctly justified for the 
 same reasons which are held to justify the admission of dying declar 
 rations. lb. 
 
 85. The contents of the prisoner's pockets found when he is arrested 
 may be put in evidence when there is testimony tending to show that 
 they or a portion of them came from the recent possession of the 
 deceased or from the locality of the crime. lb. 
 
 86. Articles which a witness identifies as the property of the pris- 
 oner, and in his possession shortly before the crime was committed, 
 when found shortly after its perpetration, at the house where the 
 crime was committed, may be offered in evidence. lb. 
 
 INFANT. 
 
 1. Liability foe Tobts. Minors are answerable for their own 
 torts, although in the commission thereof they act by express author- 
 ity of their parents. Kilpatrick v. Hall, 67 — 548. 
 
 2. An infant is liable in assumpsit for money stolen, and for the 
 proceeds of property stolen and converted into money. Shaw v. Cof- 
 fin, 58—254. 
 
 3. Avoidance of Conteacts. A contract between a minor and 
 his master, by which the former paid his bounty money to the latter, 
 in consideration of his consent to the minor's enlistment, may, after 
 the minor's decease, be rescinded by the administrator of his estate, 
 and the money recovered back. Dinsmore v. Webber, 59 — 108. 
 
 4. When an infant has legally avoided his contract for labor, the 
 rights of the parties are precisely the same as though it had never 
 been made. Derocher v. Continental Mills, 58 — 217. 
 
INPANT. 297 
 
 5. A minor who agrees to work for a person for a specified time, 
 and give no less than two weeks' notice before leaving, but does leave 
 before the expiration of the time, and without giving the notice, is not 
 liable to have the damage occasioned thereby deducted from the amount 
 he would otherwise be entitled to recover for his labor. lb. 
 
 6. An infant may repudiate his contract, and recover from his em- 
 ployer what his services were reasonably worth, under all the circum- 
 stances of the case. Vehue v. Pinkham, 60 — 142. 
 
 7. Thus, in assumpsit for the recovery of such services, where it 
 appeared that the plaintiff, contrary to orders, harnessed the defend- 
 ant's colt to the defendant's wagon, whereupon the bit broke, the colt 
 became unmanageable, and the wagon was injured, the jury may con- 
 sider those circumstances in estimating the value of the plaintiff's 
 services. lb. 
 
 8. A child went to live with the plaintiff, under a verbal agree- 
 ment with its mother, the father not being alive, that it should stay 
 until of age for its board, clothing and schooling, and, after the lapse 
 of some time left, with the consent of the mother. Held, that the plain- 
 tiff could treat the contract as a nullity, and recover of the mother 
 for the board of the child, less the value of its services. Chapman v. 
 Bich, 63—588. 
 
 9. Suits. A minor may maintain an action by his mother and next 
 friend, with her consent, on a contract for his services made on his 
 own account, after the death of his father. Boynton v. Clay., 58 — 
 236. 
 
 10. In a writ requiring the defendant to answer to S. W., next friend 
 to H. J., a minor, S. W. is the plaintiff while the minor is not. Soule 
 V. Winslow, 64 — 518. 
 
 11. Equity. Infants must be made parties to bills in equity, affect 
 ing their title to real estate. While the infant can only answer by 
 guardian, the suit must be directly against the infant. ~Wakefield v. 
 Marr, 65—341. Tucker v. Bean, 65—352. 
 
 12. A bill in equity should never be taken pro confesso against an 
 infant defendant. Tucker v. Bean, 65 — 352. 
 
 13. It is the general rule that an infant is to have six months after 
 coming of age, to show against a decree requiring him to convey real 
 estate. Perry v. Perry, 65 — 399. McClellan v. McClellan, 65 — 
 500. 
 
 14. When an infant is entitled to a conveyance of property to which 
 a third person has the legal title in trust for him, the conveyance 
 should be to the infant and not to his guardian. Fooler v. Buck},<o?> 
 —205. 
 
 15. An EMAHciPATioN of a child by a parent, by contract, need 
 not be in writing. Lowell v. Newport, 66 — 78. 
 
 16. Negligence. A child of nine years, who in the day-time, 
 jumps from a sidewalk, lawfully constructed by a railroad company, 
 on the side of its railway bridge, upon the properly constructed draw 
 while the same is being lawfully closed, is so wanting in ordinary care 
 and prudence, as not to be entitled to maintain an action for the 
 injury resulting therefrom. Brown v. European & N.A.B.B. Co., 
 58—384. 
 
298 INSANE HOSPITAI/, COMMITMBN'I' TO. 
 
 17. In an action by a child, non sui juris, for an injury caused by 
 being run oyer upon a public street, it is immaterial tbat its parents 
 neglectingly permitted it to be upon the street, provided the child at 
 the time exercised for its safety that amount of care which the law 
 would require of persons of years of discretion. O'Brien v. 
 McGlinchy, 68—552. 
 
 See Leslie v. Lbwiston', 62 — 468. 
 
 INSANE HOSPITAL, COMMITMENT TO. 
 
 1. A NOTICE of the expense of the support of an insane pauper in 
 the hospital, given by the town committing such pauper to the town 
 of his settlement, is premature if given after the expense has been 
 incurred and before it has been paid. West Gardiner v. Hartland. 
 62—246. 
 
 2. Two JUSTICES of the peace are not authorized to send to the hos- 
 pital, an insane person who is at the time legally confined in jail upon 
 criminal process. Gray v. Houlton, 63 — 566. 
 
 3. Where a person sent to the insane hospital by order of two jus- 
 tices of the peace, was, at the time confined in jail upon criminal pro- 
 cess, it was held that the action of the justices was so far irregular 
 that the town was not obliged to pay to the person who conveyed him 
 to the hospital the expense of such service. Ih. 
 
 4. A COMPLAINT as follows : "To the selectmen of B. The under- 
 signed complains and says that he came into this town with his wife 
 to visit her sister, and that she is insane, and ought to be sent to the 
 insane hospital. J. B. S.," is a sufficient compliance with R. S., 1871, 
 c. 143, § 12. Bowdoinham v. Bhippshurg, 63 — 497. 
 
 5. The written complaint required by R. S., 1871, c. 148, § 12, to 
 be made to the municipal officers of a town, to examine into the con- 
 dition of a person alleged to be insane, is sufficient if served upon 
 one of the selectmen. Gray v. Houlton, 65 — 521. 
 
 INSANITY. 
 
 1. There is no pebstjmption of law as to the continuance of a tem- 
 porary hallucination of mind, and a party claiming to avoid a contract 
 by reason thereof, must show its existence at the time of making the 
 contract, and that it was of a character affecting his capacity to make 
 a contract. Staples v. Wellington, 58 — 458. 
 
 2. Every man is presumed to be sane, and to possess a sufficient 
 degree of reason to be responsible for his crimes, until the contrary it 
 proved. State v. Lawrence, 57 — 574. 
 
 3. To establish a defense on the ground of insanity, the burden is 
 on the defendant to prove, by a preponderance of evidence, that at 
 the time of committing the act, he was laboring under such a defect of 
 reason, from disease of the mind, as not to know the nature and 
 
INSANITY — INSTJE'ANCB. 299 
 
 quality of the act he was doing; or, if he did, that he did not know 
 he was doing what was wrong ; partial insanity, if not to the extent 
 above indicated, will not excuse a criminal act. lb. 
 
 4. The sanity of a testatrix was contested on the ground that she 
 was a believer in spiritualism, believing that the spirit of her deceased 
 husband dictated the will, that she believed that the husband of her 
 only daughter was exposed to the control of evil spirits ; that he had 
 supernatural power over his wife, and through the aid of an evil spirit 
 alienated his wife's affections from her mother. The jury were in- 
 structed that if the testatrix was laboring under a delusion amount- 
 ing to insanity, or monomania, and any of these insane delusions in- 
 fluenced her in making the will, she was not of the sound mind 
 required by law. 
 
 Also, insanity in a legal point of view, is where a person believes 
 something to exist, which not only does not exist, but of which he 
 has no evidence sufficient to satisfy a healthy *iind, and he acts upon 
 it and holds it as a reality, "where it is so palpable that he believes it 
 without reason, any reason sufficient to satisfy a healthy mind, and 
 acts upon it when it cannot possibly be true." 
 
 In another part of his charge, the judge said : "Before anything 
 (in law), is a delusion, the non-existence of it must first be estab- 
 lished." 
 
 The judge did not rule that the belief in spiritual communications 
 was of itself an insane delusion, or that it was not, but left it to the 
 jury to consider, under the rule before given, how far that belief 
 showed delusion; saying that if these beliefs with other influences 
 created in the mind of the testatrix, insane delusions, and she acted 
 on them in the making of any item of the will, it would justify them 
 in determining that she was not of sound mind. Held, that the con- 
 testant had no cause of complaint. Robinson v. Adams, 62 — 369. 
 
 5. The rule allowing the introduction of the declarations of a testa- 
 tor to show the condition of his mind is very general and admits much 
 that would be excluded if offered to prove facts. lb. 
 
 6. Where the sanity of a testator is in issue witnesses, not experts, ' 
 may state negatively in the course of their testimony that they did 
 not observe any mental peculiarity in the testator at a time other than 
 that when the will was executed. lb. See also Barnes v. Barnes, 
 66—286. 
 
 
 
 INSUKANCE. 
 
 I. 
 
 GENERALLY. 
 
 
 II. 
 
 LIFE INSURANCE. 
 
 
 III. 
 
 FIRE INSURANCE. 
 
 
 
 (a) 
 
 POLICT. 
 
 
 
 (b) 
 
 Remedial provisions of c. 
 
 49, R. S 
 
 
 (c) 
 
 Losses. 
 
 
 
 (d) 
 
 Pboofs of Loss. 
 
 
 ly. 
 
 MAEESTE INSURANCE. 
 
 
 
 (a) 
 
 Policy. 
 
 
 
 (h) 
 
 Losses. 
 
 
 , 1871. 
 
300 farSTJRANCE. 
 
 y. MUTUAL COMPAOTES. 
 
 (a) Notes given for open policies and foe secubitt of 
 
 DEALERS WITH THE COMPANT. 
 
 (b) PEEMIUM and DEPOSIT NOTES. 
 
 (c) Assessments. 
 
 VI. INSUEANCE AGENTS AND BROKERS. 
 VII. PLEADING, PRACTICE AND EVIDENCE. 
 
 I. GENERALLY. 
 
 1. A MEMORANDA upon the margin of a policy is a part of the 
 contract of insurance. McLaughlin v. Atlantic Mutual Ins. Co., 
 57—170. 
 
 2. Where, in an action under R. S., c. 51, § 31, to recover damages 
 for property injured by fire, communicated by a locomotive engine, 
 the plaintiff has an absolute title to the whole property destroyed, he 
 may recover for the whole injury although he held the title as 
 security for a debt, and had agreed, that, upon payment of the debt, 
 he would re-convey. Bean v. At. & St. L. R. Co., 58 — 82. 
 
 3. And wjiere the plaintiff had a policy of insurance upon a build- 
 ing thus destroyed, and upon payment of the amount of the debt for 
 which he held the property as security by the insurers, he assigned to 
 them the statute claim with a stipulation on their part, that any excess 
 recovered by the insurers, beyond the amount paid to him by them, 
 should belong to him, — the insurers may recover in the name of the 
 plaintiff, for the whole injury. lb. 
 
 4. Insubable Interest. It is not essential to the existence of an 
 insurable interest that the assured should have a legal title to the 
 property upon which the insurance is effected. Cumberland Bone 
 Co. V. Andes Ins. Co., 64—466. 
 
 5. A purchaser of goods who has advanced the price thereof to the 
 seller, when the seller has agreed to store them free of expense, 
 deliver them as wanted, and procure insurance on them to protect the 
 advances of the purchaser, and does so, procuring a policy in the 
 name of the purchaser, and informing the agent of the facts, has an 
 insurable interest in the goods, although they had not been separated 
 from other stock of the seller when burned. lb. 
 
 II. LIFE INSURANCE. 
 
 6. A sum of money received for insurance on the life of the intes- 
 tate, is to be collected by the administrator and distributed in accord- 
 ance with R. S., 1857, c. 75, § 10. Lee v. Chase, 58—432. 
 
 See Post, 19. 
 
 7. Devise. One who dies insolvent can make no testamentary dis- 
 position of the fund accruing from an insurance policy upon his life 
 if he leave neither widow nor child ; in such event, the insurance 
 money becomes assets for the payment of debts. Hathaway v. Sher- 
 man, 61 — 466. 
 
 8. A person having insurance upon his life, dying insolvent, leaving 
 a widow and children, may bequeath the insurance money among 
 
mSURANCB. 301 
 
 them as he pleases ; but he can not bestow it by will upon any other 
 persons. Ih. 
 
 9. The power to dispose of such fund by will, conferred by R. S., 
 0. 75, § 10, is limited, in case of insolvency, to a disposition among 
 the widow and children of the deceased. Ih. 
 
 10. An intention on the part of the testator, by his will to dispose 
 of the fund arising from an insurance policy upon his life, will not be 
 inferred from the fact that his bequests were ultimately found to 
 exceed the whole amount of his estate exclusive of this fund ; nor 
 from the fact that he designated a person as the legatee of the residue 
 of his property of every description whatsoever. lb. 
 
 11. "The testator's intention to change the direction which the law 
 gives to this very peculiar species of property is not to be inferred 
 from general provisions in his will, the fulfillment of which might 
 require the use of such money, but must be explicitly declared." lb. 
 
 12. Parol Ageeembnt. In an action upon a life insurance policy, 
 issued and accepted upon the express condition that if the premiums 
 should not be paid on or before the several days mentioned for the 
 payment thereof the policy should cease, and the company not be 
 liable for the payment of the sum insured, it was held that evidence 
 of a verbal agreement made at the time the insurance ^&s negotia^ 
 ted, between the person procuring the insurance and the agent of the 
 company, that the former might pay down what money he had, and 
 take the policy, and that the agent would wait for the balance any 
 time within the year, was inadmissible, to vary the express terms of 
 the policy. Coombs v. Charter Oak Co., 65 — 382. 
 
 13. An agreement that the premium might be regarded as already 
 paid to the agent, so that the agent would have become personally 
 responsible to the company, and the insured become the debtor of 
 the agent, if known to and acquiesced in by the company, would have 
 saved a forfeiture of the policy. lb. 
 
 14. A life insurance policy, labeled "non-forfeiting," contained, 
 among others, a condition that if the premiums should not be paid 
 when due, then the "company shall not be liable for the payment of 
 the whole sum assured, but only for a part thereof proportionate with 
 the annual payments made as above specified, and this policy shall 
 cease and determine," and also a condition that when the policy 
 should become void or cease for any cause other than non-payment of 
 premiums, all payments should be forfeited to the company. Else- 
 where not among the "conditions" upon which the "policy is issued 
 and accepted" was a stipulation that "if after the receipt of" not less 
 than two or more annual premiums this policy shall cease in conse- 
 quence of non-payment of premiums ; then upon a surrender of the 
 same, provided such surrender is made to the company within one 
 year from the time of such ceasing, a new policy will be issued for 
 the value acquired under the old one." Held, that the last stipula- 
 tion was not so connected with the conditions upon which the policy 
 was issued and accepted as to work a forfeiture when the insured 
 neglected to surrender the policy and apply for a new paid up policy 
 within one year after the failure to pay the fourth annual premium. 
 Chase v. Phoenix Life Ins. Co., 67 — 85. 
 
 15. Held, also that a statement in the application that a neglect 
 to pay the premiums should cause a forfeiture of the policy could not 
 
302 rNStJEANCE. 
 
 be received for that purpose, as the rights of the parties must he 
 determined by the policy alone. Ih. 
 
 16. Nor could the cancellation of the policy upon the books of the 
 company without the knowledge of the person for whose benefit the 
 insurance was effected, or of any one authorized to act for her, be of 
 any avail. lb. 
 
 17. And when the policy was not labled non-forfeiting, but in it 
 was a stipulation that if after the payment of two or more annual 
 premiums the assured should cease to make the payment of additional 
 premiums, at the stipulated time, the company should "only be liable 
 for the payment of a part of the sum insured, proportionate with the 
 annual payments made, for which a new policy shall be issued, if ap- 
 plied for within twelve months," and the assured made two annual pay- 
 ments, and died within twelve months from the time when the third 
 annual payment should have been made without demanding a new 
 policy, it was held, that the demand for a new policy by the admin- 
 istrator, would have been an idle ceremony, and that the company was 
 liable for a sum proportionate with the annual payments made. Dorr 
 V. Phoenix Life Ins. Co., 67—438. 
 
 18. A policy should be liberally construed in favor of the insured, 
 so as not to defeat, without a plain necessity, his claim to indemnity. 
 
 19. Descent. If one procures a policy of insurance upon his life, 
 "for the benefit of his wife and children," payable to said assured, 
 their executors, administrators, or assigns, or guardian of children 
 under age," the fund, after his decease, belongs to the widow and 
 children, not by descent but by virtue of the contract. Cragin v. 
 Cragin, 66—517. 
 
 20. In such case the widow is not entitled to one-third of the 
 amount, but, in the absence of any provision in the policy for an une- 
 qual division, all the beneficiaries share equally. lb. 
 
 21. The proceeds of such a policy cannot be collected by the admin- 
 istrator, .nor do they become assets of the estate. lb. 
 
 22. When an insurance upon his life is effected by a father, payable 
 by its terms to a trustee in trust for his child, policy and its proceeds 
 pass to the trustee by contract, and not to the child by descent. 
 Cables v. Prescott, 67 — 582. 
 
 III. FIEE INSURANCE. 
 
 (a) Policy. 
 
 (b) Rbmbdial pbovisions or o. 49, b. s., 1871. 
 
 (c) Losses. 
 
 (d) PEOors OF loss. 
 
 (a) Policy. 
 
 23. Where one of the conditions, in a policy of insurance against 
 fire, is that the policy shall become void "if any other insurance shall 
 thereafter be made upon the property, and not consented to by the 
 company, in writing thereon," and, in case of an action thereon, it 
 appears that at the time of the loss there was an insurance beyond the 
 amount allowed, the insured will not be entitled to recover in the 
 absence of proof of a waiver of the condition. Shurtleff v. Phmnix 
 Ins. Co., 57—137. See Post, 35. 
 
rNSTTEAIfCB. 303 
 
 24. Whether or not an agent of the company can ■waive such a con- 
 dition, quare. lb. 
 
 25. StrBSEQiTENT Insurance. When a policy contains a stipulation 
 that it shall be void if the assured shall obtain a subsequent insurance 
 upon the same property and shall not, with reasonable diligence, 
 notify the company and have the same indorsed upon the policy or 
 otherwise acknowledged, if a second insurance obtained by the 
 assured is invalid, it will not defeat the first, though the subsequent 
 insurers, after a loss, pay to the assured, a sum by way of comprom- 
 ise of his claim upon them. Lindley v. Union Ins. Co., 65 — 368. 
 
 See Post, 35. 
 
 26. Alienation. A sale of property, void because made by an 
 agent who did not conform to the terms of his authority in making it, 
 and not ratified by the principal, is not such an alienation as will 
 avoid the policy. School District in Dresden v. ^tna Ins. (Jo., 62 
 —330. 
 
 See Post, 30. 
 
 27. Deduction or Pbemium. The clause generally found in 
 American policies — that in case of loss, such loss shall be paid in sixty 
 days after proof of adjustment thereof, "the amount of the premium 
 note without discount, if unpaid, and all sums due to the company 
 from the insured, when such loss becomes due, being first deducted," 
 compels the assured to submit to the deduction of the premium note 
 at all events, if unpaid, by whomsoever it may have been given. 
 Union Ins. Co. v. Grant, 68 — 229. 
 
 28. But this provision of the policy is applicable only in eases of 
 loss. 1 b. 
 
 29. The Acknowlegment Clause, whereby, the insurers "confess 
 themselves paid the consideration due unto them, for the insurance, 
 by the insured," is not conclusive evidence of the payment of the 
 premium ; but it has simply the same force and effect as the analo- 
 gous clause in deeds of conveyance ; which is prima facie evidence 
 only of payment, and estops the grantor from alleging that the deed 
 was executed without consideration ; while, for every other purpose, 
 it may be explained, varied or contradicted by parol evidence. lb. 
 
 80. MoETGAGB. M. was insured on her dwelling-house which was 
 mortgaged to the plaintiffs, the condition broken and proceedings 
 commenced for foreclosure, of which the insurance company had no 
 notice. By a clause in the policy the insurance was "payable in case 
 of loss to the plaintiffs to the amount of the mortgage held by them." 
 The policy also stipulated, that "if the property be sold or transferred, 
 or any change take place in title or possession, whether by legal pro- 
 cess or judicial decree, or voluntary transfer or conveyance . . 
 then . . this policy shall be void." Held, (1) That the insurance 
 was upon the property of M., and not upon the interest of the plain- 
 tiffs as mortgagees. (2) That the clause making the insurance pay- 
 able to the plaintiffs was merely a contingent order ; that any viola- 
 tion of the conditions of the policy which would defeat the right of 
 the assured to recover upon it, would defeat the right of the plaintiffs. 
 (3) That the foreclosure of the mortgage effected a change of title 
 of the assured by legal process, and the policy thereby became void. 
 Brunswick Sav. Institution v. Commercial Ins. Co., 68 — 313. 
 
304 INSURANCE. 
 
 (b) Remedial provisions of c. 49, R. S., 1871. 
 
 31. A change from occupawct to disuse of a building insured is a 
 change in its "use or occupation" within the meaning of Public Laws, 
 1861, c. 34, § 4. (R. S., 1871, c. 49, § 19.) (Jannell v. Phoenix Ins. 
 Co., 59—582. 
 
 32. In a fire policy running for a specified time, a stipulation that 
 if the premises insured "become vacant and unoccupied for a period 
 of more than thirty days, the policy shall be void," is not a limitation 
 of the time of the insurance but is a condition of the contract within 
 the scope of Public Laws, of 1861, c. 34. (R. S., 1871, c. 49, § 19.) 
 lb. 
 
 33. The breach of such condition does not affect the insurance 
 unless the risk is thereby materially increased, lb. 
 
 34. A MisEEPEESENTATiON OF TITLE to property insured does not 
 necessarily avoid the policy not in a mutual company. Relatty v. 
 Thomaston M. F. Ins. Co., 61—414. 
 
 35. Second Insurance. Under the provision of statute (R. S., 
 1871, c. 49, § 19,) that no breach of the conditions of an insurance 
 policy shall affect the contract unless the risk is materially increased, 
 applies to a condition that a second insurance without notice to the 
 first insurer, shall render the policy void, and, in such case, if it does 
 not appear that the risk was increased by the obtaining a second pol- 
 icy, the first policy remains unaffected by it. Lindley v. Union Ins. 
 Co., 65—368. Ante, 23. 
 
 36. Under R. S., 1871, c. 49, § 62, providing that no stipulations in 
 charter, by-laws, or policies shall deprive the courts of this State of 
 jurisdiction of actions against insurance companies, nor limit the time 
 of commencing them to a period of less than two years from the time 
 the cause of action accrues, a stipulation in a policy limiting the time 
 for the commencement of an action to twelve months from the time 
 of the loss is not binding oh the assured. Dolbier v. Agricultural 
 Ins. Co., 67—180. 
 
 37. Nor does the fact that the assured in his declaration in an action 
 upon the policy, commenced after the expiration of the twelve months, 
 recites the condition in the policy, and omits to refer to the statute, 
 indicate any intention to waive the statute provision. lb. 
 
 (c) Ziosses. 
 
 39. The damage and expense caused and incurred by removing, 
 with that reasonable degree of care suited to the occasion, insured 
 goods from apparent imminent destruction by fire, are covered by a 
 policy insuring against loss or damage by fire, although the building in 
 which they were insured, and from which they were removed, was 
 not burned. White v. Republic Ins. Co., 57 — 91. 
 
 40. One who has a subsisting right to redeem or re-purchase land 
 conveyed by him as security for a debt cannot require the grantee or 
 his assignee to account to him for insurance money received for loss 
 of the buildings upon it, if the insurance was procured by the grantee 
 or his assignee, for his own benefit, and there is no contract between 
 the parties requiring him to account for the ihoney. Mclntire v. 
 Plaisted, 68—363. 
 
utsueancb;. 306 
 
 (d) Proofs of loss. 
 
 41. When defective proofs of loss are received by aa insurance com- 
 pany, it must immediately inform the insured of the supposed defects, 
 and insist upon more formal proofs, or the defects vill be regarded as 
 waived. Patterson v. Triumph Ins. Co., 64 — 500. 
 
 42. The defendant, by its policy No. 72,272, promised to pay the 
 amount insured within three months next after a loss, and "notice 
 thereof given by the plaintiff in writing to the secretary, within thirty 
 days from the time such loss may have happened." In less than a 
 week after the loss, the local agent of defendant gave the secretary a 
 written notice running thus : James R. Works, of B., requests me to 
 notify you that his dwelling-house, insured in policy No. 72,272, was 
 totally destroyed by fire on the 29th ult., to which the secretary re- 
 plied that, "in all probability, some one will be there to prepare the 
 necessary papers" before the next meeting of the directors. The 
 plaintiff's name was Joshua R. Works. In an action on the policy, 
 held, that all exceptions to the notice were waived. Works v. Far- 
 mer^s Mutual Fire Ins. Co., 57 — 281. 
 
 43. Where the only stipulation in the policy of a domestic mutual 
 fire insurance company was that the member should, "within sixty 
 days next after the loss give notice thereof in writing to the directors, 
 or some one of them, or the secretary of the company ; " and within 
 three days after the loss, the policy holder notified the secretary, by a 
 writing of that date, signed by him, of the following tenor : "I hereby 
 notify you that my house, in Bath, was consumed by fire March 3d, 
 at 9 o'clock, p. M. Daniel Spinney's family occupied it last ; they 
 moved out February 4." Held, that in the absence of evidence, that 
 he had any other house in Bath, insured by defendants, the notice 
 was suflScient. Campbell v. Monmouth Mutual Fire Ins. Co., 59 — 
 430. 
 
 44. If the plaintiff has seasonably given the notice called for by the 
 contract of insurance, he is under no obligation to give the statutory 
 notice also. lb. 
 
 45. Feaud. Whether an over-valuation and proof of loss were 
 fraudulent or not, is a question of fact for the jury ; and where there 
 is "much conflict of testimony," and that adduced by the plaintiff is 
 sufiicient, if believed, to justify a verdict in her favor, such a verdict 
 will not be set aside, if the discrepancy between the value of the 
 property as found by the jury and the amount insured thereon be not 
 so great as to make it incredible that the over-valuation in the appli- 
 cation, and over-estimate in the proof of loss, could have occurred 
 without positive dishonesty or fraudulent intent on the part of the 
 plaintiff. Williams v. Phoenix Ins. Co., 61 — 67. 
 
 46. A MORTGAGEE of real estate has no lien upon a policy of insur- 
 ance procured thereon by the mortgager, if the amount of the loss is 
 paid to the mortgager, by the company in good faith, before the expi- 
 ration of sixty days after the fire, and before any notice of the lien 
 claimed is filed by the mortgagee with the secretary of the company, 
 although the notice is filed by the mortgagee within the sixty days, 
 and the policy contains the usual clause making the loss payable in 
 sixty days after proof of loss. Burns v. Collins, 64r— 215. 
 
 20 
 
306 INSTIRANCB. 
 
 IV. MARINE mSUKANCE. 
 
 (a) Policy. 
 
 (b) Losses. 
 
 (a) Policy. 
 
 47. In a time policy of marine insurance it is immaterial where 
 the vessel may be at the inception or termination of the risk. Vig- 
 oreaux v. Lime Rock Ins. Co., 59 — 457. 
 
 48. A statement in an application for insurance on a vessel "for a 
 year from March 14" at noon, that she was at Gibraltar on that date 
 is not material. Ih. 
 
 49. Paeol Evidence. When it appears that a vessel was sailing 
 under two charters, either of which would answer the call in the 
 policy, parol evidence is admissible to show which of the charters was 
 insured. Melcher v. Ocean Ins. Co., 59 — 217. 
 
 50. Where the property insured in a policy of marine insurance was 
 described as "sixty-five hundred and fifty dollars on charter, twenty- 
 six hundred and fifty dollars on primage, and also fifteen hundred 
 dollars on property on board ship 'Charles S. Pennell,' at and from 
 New York to San Francisco," held, that the phrase "at and from New 
 York to San Francisco," was not descriptive of any portion of the 
 property insured, but simply of the voyage during which the risk was 
 to continue. lb. 
 
 51. The plaintiff chartered his vessel to sail from New York to San 
 Francisco, thence with convenient dispatch to Callao, thence to the 
 Chincha Islands, and there to take on a cargo of guano for Hamburgh 
 or Rotterdam. The defendants, thereupon, caused the plaintiff to be 
 "insured, lost or not lost," several sums respectively, on charter, pri- 
 mage, and property on board, "at and from New York to San Fran- 
 cisco." The vessel sailed in accordance with the charter, and was 
 wrecked between New York and San Francisco, and condemned and 
 sold. In an action upon the policy, held, that the plaintiff's interest 
 in the guano charter commenced when his vessel left New York for 
 San Francisco, and that the defendants were liable ; and the fact that 
 the plaintiff had, also, with the knowledge of the defendants, char- 
 tered his vessel to others from New York to San Francisco, and 
 effected an insurance thereon with another company, constituted no 
 defense, in the absence of any evidence that the defendants were 
 injuriously affected thereby. Melcher v. Ocean Ins. Co., 60 — 77. 
 
 52. When an open policy of insurance is issued "on property on 
 board vessel or vessels, at or from port or ports in the United States 
 or foreign countries, with such other risks as may be agreed on as per 
 indorsement hereon, accepted by the company," and the risk is 
 agreed upon by the person named in the policy, and indorsed upon it 
 by him, the premium paid by the party obtaining insurance under it, 
 and certificate issued, the insurance is effected. The expression "as 
 per indorsement hereon, accepted by the company," indicates that the 
 risk agreed upon was to be regarded as accepted by the company 
 when the indorsement is made by the agent. Wass v. Maine Mutual 
 Marine Ins. Co., 61 — 537. 
 
 53. In a policy of insurance on a vessel, the words, "prohibited 
 from the River and Gulf of St. Lawrence between September first 
 and May first," constitute a warranty that the vessel shall not enter 
 
INSURANCE. 307 
 
 those waters within the time mentioned. Cobb v. Lime Rock F. & 
 M. Ins. Co., 58—326. 
 
 54. The words are to be construed in their ordinary and popular 
 sense, unless by some known usage of trade they have a different 
 meaning. lb. 
 
 55. The usage or the construction given to particular words in 
 Boston, Mass., will not affecj; a policy of insurance upon a vessel made 
 at Rockland, Maine, containing the same words, unless a similar 
 usage or the same construction is shown to exist in the latter place. 
 lb. 
 
 56. The body of a policy provided that the company were "not liable 
 for leakage on molasses unless occasioned by stranding or collision." 
 On the margin was the following memorandxim : "on molasses, if by 
 shifting of cargo owing to stress of weather, any casks become stove 
 or broken, and the staves started by each other, so as to lose their 
 entire contents, and the same amount to fifteen per cent on the quan- 
 tity laden (being five per cent over ordinary leakage) the said excess 
 of five per cent or over on the quantity shipped, to be paid for by the 
 company; but this company not to be liable for leakage from causes 
 Other than those above mentioned." Held, that the company were 
 not liable for any loss by leakage unless occasioned by stranding or 
 collision, nor for loss by shifting of cargo unless it amounted to fif- 
 teen per cent of the whole quantity laden. McLaughlin v. Atlantic 
 Mutual Ins. Co., 57 — 170. 
 
 57. Partial Loss. Where a policy stipulates that the underwriter 
 shall not be liable for a partial loss unless it amounts to five per cent, 
 two or more distinct losses can not be added together to make up the 
 amount. Hagar v. New England Mutual Marine Ins. Co., 59—460. 
 
 (b) losses. 
 
 58. The liability of ships moored in tide waters to take ground in a 
 mal-position, or strike their bottoms against some hard substance and 
 be thereby injured, is one of the perils of the sea for which under- 
 writers are responsible. lb. 
 
 59. Where, by the perils insured against, a vessel receives a strain 
 which alters her shape, so that she cannot be perfectly repaired without 
 rebuilding her, and her value is thereby diminished, the underwriters 
 are liable to the extent of such diminished value, in addition to the 
 expense of repairs after deducting new for old, although the vessel is 
 made seaworthy by the repairs and is afterward insured at the same 
 premium and valuation as before the injury. lb. 
 
 60. If the plaintiff was not guilty of carelessness the negligence of 
 the master will not deprive them of benefit of his insurance. lb. 
 
 61. Abandonment. Where the sale of a vessel is justifiable from 
 necessity the assured may recover for a constructive total loss without 
 formal abandonment. jDunning v. Merchants Mutual Marine Ins. 
 Co., 57—108. 
 
 62. Neither a sale of a vessel from necessity, nor an abandonment 
 can be justified unless it will cost more than half, the value to repair 
 her, after deducting one-third new for old. lb. 
 
 63. There is no rule of law by which the assured is precluded from 
 
SOS rprsuBA2>rcE. 
 
 recovering as for a total loss under a policy, wten the master sells the 
 vessel from necessity, after the owners have abandoned her. lb. 
 
 64. While, as a general rule, the assured can not convert a partial into 
 a constructive total loss by witholding the funds necessary to repair the 
 vessel, this principle is not applicable to cases where the damage is suffi- 
 cient to justify an abandonment. lb. 
 
 65. In Casb of a Consteuctivb Total Loss, the assured on 
 freight may abandon both ship and freight and recover for a total loss 
 against the respective underwriters of each. lb. 
 
 66. Whether or not the sale of a vessel is justifiable from necessity 
 is a question of law if the facts are admitted ; if the facts are contro- 
 verted it is a question of fact under the rules of law applicable thereto. 
 lb. 
 
 V. MUTUAL COMPANIES. 
 
 (a) Notes givhn fob open policies and fob security of 
 
 DEALERS WITH THE COMPANY. 
 
 (b) Pbbmittm and deposit notes. 
 (o) Assessments. 
 
 (a) Notes given for open policies and for security of dealers with 
 
 the company. 
 
 67. The charter and by-laws of a mutual marine insurance company 
 provided that, for the better security of those concerned, the company 
 might receive notes for premiums in advance of persons intending to 
 receive policies, and might negotiate such notes for the purpose of 
 paying claims or otherwise in the course of its business. Held, that 
 although the notes were not negotiated, their payment Could be en- 
 forced by the company for the benefit of unpaid policy holders where 
 losses had occurred ; and after the insolvency of the company by its 
 receivers. Howard v. Palmer, 64 — 86. 
 
 68. When a premium note is given to a mutual insurance company, 
 and an open policy received, by one who intends to effect insurance, 
 and such note is also given in accordance with the charter of the 
 company for the better security of dealers with it, and insurance is 
 afterwards effected under the policy and the premiums therefor paid 
 in cash, such premiums can not be deducted from the note. Howa/rd 
 V. Hinkley Co., 64—93. 
 
 69. But where insurance is effected, the maker of the note is liable 
 only for its amount, and not foi" the premiums in addition to the note. 
 Maine Mut. Marine Ins. Go. v. Blunt, 64 — 95. 
 
 70. When a premium note in advance for an open policy is given 
 to a mutual insurance company, at its out-set in business in accord- 
 ance with its charter for the security of dealers with it, and is renewed 
 at maturity, the makers of the second note are equally liable as 
 though the occasion for its use had arisen during the existence of the 
 original note. Howard v. Hinkley Co., 64 — 93. 
 
 71. And where the original note is given by a firm, and the renewal 
 note is given by a new firm which succeeds to the business of the old, 
 the new firm are liable upon the note. Maine Mut. Mar. Ins. Co. v. 
 Blunt, 64—95. 
 
 72. The fact that the insurance company became insolvent, and 
 
INSTJEAifCB. 309 
 
 unable to perform its alleged agreement to furnish insurance for the 
 makers of the notes, does not change the legal status of the note. 
 Siiikley Iron Co. v. Maine Mut. Ins. Co., 66-^118. 
 
 73. Nor does the insolvency of the company give the makers of the 
 notes, given "for the better security of those concerned," any claim 
 against the company for re-imbursement for money paid to discharge 
 the judgments recovered against them upon the notes by the com- 
 pany, lb. 
 
 74. Nor is it competent for the trustees of the company, which has, 
 by virtue of a provision in its charter, received the promissory notes 
 of individuals for the security of those concerned in lieu of capital 
 stock, to surrender such notes to the makers upon no other considera- 
 tion than their agreement to claim nothing of the company for their 
 use, if the surrender will operate to the injury of the creditors of the 
 company. Maine Mut. Ins. Co. v. Pickering, 66 — 130. 
 
 75. When premium notes are given for open policies subsequent to 
 the organization of the company it is a matter of fact, to be deter- 
 mined by the character of the note and the evidence, whether the 
 notes are given for the better security of dealers with the company, 
 or for premiums in advance in the ordinary course of business. Maine 
 Mut. Ins. Co. V. Fai-rar, 66—133. 
 
 (b) Premium and deposit notes. 
 
 76. In an open policy it is generally understood that the insured is 
 liable upon his premium note only to the extent of the insurance 
 obtained, but when such notes are given for the better security of the 
 dealers with the company, are held out to the world as a portion of 
 its assets, and the signers are paid for signing them, the case is differ- 
 ent, and the notes are valid to their full amount. Howard v. Palmer, 
 64—86. 
 
 77. The maker of a premium note given to a mutual insurance 
 company for the nominal premium upon an open policy, executed to 
 cover such risks as may be afterwards indorsed therein, is liable to 
 the company on such note only to the amount of the actual pre- 
 miums assumed by the company and indorsed thereon. Maine Ins. 
 Co. V. Stock-well, 67—382. 
 
 78. A negotiable promissory note in common form, payable in a 
 definite time, containing the words "No. 2207," and printed across its 
 face the words, "This note must be paid at maturity without regard 
 to the termination of the risk," and given to an insurance company 
 for the premium on a policy, is not a deposit note, within the mean- 
 ing of § 26, c. 49, R. S., 1871. Union Ins. Co. v. Greenleaf, 64—123. 
 
 79. When an insurance broker procures policies for whom it may 
 concern, loss payable to himself, and gives his own negotiable note for 
 the premiums, such note is a payment of the premium. Union Ins. 
 Co. V. Grant, 68—229. 
 
 (c) Assessments. 
 
 SO. Where the charter of a mutual insurance company provides 
 that the deposit note shall be payable in part, or in whole, when the 
 directors deem the same requisite for the "payment of losses or other 
 expenses," and the remainder, after deducting such payment, to be 
 
310 INSUKANCB. 
 
 relinquished to the signer ; that every member "shall pay his propor- 
 tion of all losses and expenses accruing in and to the class in which 
 his property is embraced ;" and that the policy shall create a lien 
 upon the property insured, for the security of the deposit note, "and 
 the cost which may accrue in collecting the same ;" an assessment of 
 ninety-flve per cent additional to the actual losses in a certain class, 
 upon the premium notes in such class to "meet estimated bad debts, 
 interest, expenses and costs of collection," is illegal. York Oo. M. 
 F. Ins. Oo. V. Bowden, 57 — 286. 
 
 81. The charter of a mutual fire insurance company provided that 
 the directors shall, after receiving notice of any loss by fire, settle and 
 determine the same to be paid by the several members thereof as their 
 respective portions. A majority of the directors voted to assess a 
 sum not exceeding eighteen thousand dollars, and appointed a minor- 
 ity thereof a committee to make the assessment, who thereupon made 
 it for a less sum. Held, that the assessment not having been deter- 
 mined by a majority of the directors was illegal. Monmouth Mut. 
 Fire Ins. Co. v. Lowell, 59 — 504. 
 
 VI. iisrsuEAisrcE agents and brokers. 
 
 82. Section 18, c. 49, R. S., 1871, makes the valuation of the agent, 
 only, whose name is borne on the policy, conclusive upon the com- 
 pany. Gamphell v. Monmouth Mutual Fire Insurance Company, 
 59—430. 
 
 83. If an agent of an insurance company in procuring insurance,with- 
 out authority from the applicant, makes a representation to the company, 
 which is not strictly true, the insured will not suffer thereby. Vigar- 
 eaux V. Lime Rock Ins. Co., 59 — 457. 
 
 84. The rules of an insurance company, provided that agents should 
 receive a commission of "five per cent on each renewal collected and 
 transmitted by them." Held, that the plaintiff, whose agency of such 
 company had terminated, was not afterwards entitled to this commis- 
 sion on policies procured by him while he was agent, the collection 
 and remittance of the renewals not having been made by him, and no 
 custom to pay such commission after the termination of the agency 
 being shown. Spaulding v. JV. Y. Life Ins. Co., 61 — 329. 
 
 85. When an insurance company issues to a person an open policy, 
 for whom it may concern, with blanks therein for the indorsement of 
 risks agreed upon by him, and blank certificates for the description of 
 the risks agreed by him to be insured, to be delivered to the party 
 paying the premium, whose name is to be inserted therein, he is to 
 be deemed the agent of the company. Wass v. Maine Mut. Marine 
 Ins. Co., 61—537. 
 
 See Agency, 7, p. 13. 
 
 86. The general rule of law in England would seem to be that an 
 insurance broker is the debtor of the underwriter for premiums, and 
 the underwriter the debtor of the assured as to losses. Union Ins. 
 Co. V. Grant, 68—229. 
 
 87. It does not seem that the same result has ripened into an estab- 
 lished rule here. Though some of the authorities hold that the prac- 
 tice has become so nearly universal, for the person who effects an 
 insurance to give a promissory note for the premium, or, if a note jg, 
 not given, to hold himself and to be considered as the debtor to the 
 
ESrSTJEANCB. 311 
 
 underwriter for the amount, that, by the common understanding and 
 usage, the remedy of the underwriter is confined to the party liable 
 on the note, or to whom the credit is given. lb. 
 
 VII. PLEADING, PRACTICE AND EVIDENCE. 
 
 88. When a part owner of a vessel obtains an insurance "on account 
 of whom it may concern, loss payable to him," an action may be main- 
 tained upon the policy, in case of loss, either in the name of the party 
 who negotiated the insurance, or of the party for whose benefit the 
 insurance was procured. Sleeper v. Union Ins. Co., 65 — 385. 
 
 89. In such case if the insurance is obtained for the benefit of the 
 person procuring it, and of a mortgagee of the interest of such part 
 owner, the administrator of such part owner may maintain an action 
 on the policy, the loss of the vessel and the death of the part owner 
 occurring at the same time. lb. 
 
 90. But one action is maintainable upon the policy, and a judgment 
 by such administrator and its satisfaction by the company, is a bar to 
 an action by any person claiming under the clause "whom it may con- 
 cern." lb. 
 
 91. Upon a policy expressing that the company "doth insure A. 
 and B. against loss by fire," &c, "A's interest payable in case of loss 
 to C. to the amount of his claim," (mortgage), a suit against the com- 
 pany may be maintained in the names of A. and B., with the consent 
 of C. Patterson v. Triumph Ins. Go., 64 — 500. 
 
 92. Where, after judgment on a marine policy recovered in the 
 name of the owner of one-eighth interest, alone, the owner of the re- 
 maining seven-eighths settled with the attorney recovering judgment, 
 by agreeing with him as to the amount of fees he should receive, and 
 receiving from him the balance of a partial collection on the execution, 
 after the deduction of the amount of his fees, together with the exe- 
 cution, the balance of which the defendant subsequently collected, 
 and thereupon agreed to pay to the assignee of the one-eighth inter- 
 est, his share thereof ; it was held, that the acts of the defendant con- 
 stituted a ratification of the original suit, and that assumpsit would 
 lie upon the special promise to the assignee. Vose v. Treat, 58 — 379. 
 
 98. A declaration in an action upon a policy which neither avers 
 notice of the loss according to the terms of the policy, or in accord- 
 ance with the provisions of the statute, is fatally defective upon 
 demurrer. Dolhier v. Agricultural Ins. Co., 67 — 180. 
 
 94. Peactice. Whether or not a misrepresentation as to title of 
 property insured is fraudulent, or false swearing in the proofs of loss 
 are material and intentional, is to be submitted to the jury. Sellatty 
 V. Thomaston M. F. Ins. Co., 61—414. 
 
 95. Evidence. Where it appeared that a vessel was sailing under 
 two charters, either of which answered the call in the policy, parol 
 evidence was held admissible to prove which of the charters was 
 insured. Melcher v. Ocean Ins. Co., 59 — 217. 
 
 See Equity, 56, p. 201. 
 EviDEsrcB, 146, p. 285. 
 Negligence, 5. 
 
312 INTEREST. 
 
 INTEREST. 
 
 1. Peepatments. In the absence of any special agreement to that 
 effect, interest can not be claimed on partial prepayments of a prom- 
 issory note, payable on time, without interest. Parker v. Moody, 58 
 
 —to". 
 
 2. Where the payee of a promissory note, payable on time, with- 
 out interest, upon being asked by the maker if he would accept partial 
 prepayments, and allow interest on them, replied, "I think it will be 
 all right, there will be no trouble about it," the maker might thereby 
 understand the payee as assenting to the allowance of interest. Ih, 
 
 3. Compound Inteeest is recoverable in this State, in an action on 
 a promissory note given in New Hampshire, to a payee, resident there, 
 and made payable with interest annually. Stickney v. Jordan, 58 — 
 106. 
 
 4. In actions for injueies to personal property interest from the 
 time of the injury to the date of the verdict is an element of damage. 
 McLaughlin v. Bangor, 58 — 398. 
 
 5. The plaintiff when a minor enlisted and gave his father his 
 bounty money. After he became of age he demanded the money of 
 his father who refused to refund it. In an action to recover it, held, 
 that interest was recoverable from the time it was received by the 
 father. Holt v. Holt, 59—464. 
 
 6. In an action on a promissory note given in 1869, payable on time 
 with interest at seven and one-half per cent, the plaintiff may recover 
 the amount of the note at legal interest. Tuxbury v. Abbott, 59 — 466. 
 
 7. Judgment. Demand. Interest is allowed on amount of 
 damages and costs in the judgment of a justice of the peace, without 
 demand on the judgment debtor. Edwards v. Moody, 60 — 255. 
 
 8. Also on the amount of damages awarded for land taken for the 
 location of a railroad from the time of taking to time of assessment. 
 Bangor <Sb Piscataquis P. P. Co. v. McComb, 60 — 290. 
 
 9. Executor. As a general rule an executor ov administrator is 
 not entitled to interest on what is advanced by him beyond the funds 
 of the estate in his hands. Pettingill v. Pettingill, 60 — 411. 
 
 10. But this rule is not of universal application and if the advances 
 have been beneficial and the administrator not guilty of unreasonable 
 delay interest is sometimes allowed. lb. 
 
 11. Demand. Whenever a debtor knows what he is to pay, and 
 when he is to pay it, he shall be charged with interest if he neglects 
 to pay it. Swett v. Hooper, 62 — 54. 
 
 12. Note. A demand is not necessary to enable the holder of a 
 note, payable at a time certain, to recover interest after its maturity, 
 although no interest is mentioned in the note. lb. 
 
 13. Tendee. If a party makes a legal tender of payment of a sum 
 due he is not liable for interest after that time, unless he fails to keep 
 the tender good. Chamberlain v. Black, 6 1 1 0. 
 
 14. Interest on damages in the nature of demurrage is recoverable 
 from the date of a demaiod. Hunt v. Barker, 64 — 844. 
 
 15. Town. Money made payable from the treasury of a town does 
 not draw interest until after it has been demanded. Trv^ v. Freeman, 
 64—573. 
 
INTEREST — nSTTOXICATING LIQtTOKS. 313 
 
 16. Interest above six per cent. Under the statute R. S., 1871, 
 c. 45, making six per cent the legal rate of interest, in the absence of 
 any agreement in writing, a debtor who pays more than six per cent 
 can not recover back the excess. Lindsay v. mil, 66 — 212. 
 
 17. When it is expressly stated in a note that if it is not paid at 
 maturity, it shall thereafter bear interest at a rate named, the rate 
 named is recoverable, although it is much larger than the Statutory 
 rate. Gapen v. Crowell, 66 — 282. 
 
 18. When a note is made payable at a future day with interest at a 
 specified rate per annum, and nothing is said therein about the rate of 
 interest after maturity, it will draw the specified rate until maturity 
 and after that the usual or statutoiy rate. Eaton v. Boissonnault, 
 67—540. 
 
 19. In such case the holder of the note is entitled to interest after 
 maturity by operation of law and not under the contract. Duran v. 
 Ayer, 67 — 145. Eaton v. Boissonnault, 67 — 540. 
 
 20. On a note payable on demand with the rate of interest specified 
 therein, interest is to be computed at such rate until the rendition of 
 a verdict, or until a default. Paine v. Caswell, 68 — 80. Colby v. 
 Bunker, 68—524. 
 
 21. When Recoverable after Payment op Peincipal. If, by 
 the terms of a contract or a bequest, a party is entitled to interest, an 
 action may be maintained to recover it, even after the principal has 
 been paid. American Bible Society v. WeUs, 68 — 572. 
 
 22. But when the contract or the bequest is silent as to interest, so 
 that, if it can be recovered at all, it can only^be recovered as damages, 
 an action to recover it cannot be maintained, after payment of the 
 principal. lb. 
 
 See Damages, 14, p. 146; 61, p. 151. 
 Review, 14. 
 Wat, 29. 
 
 INTOXICATING LIQUORS. 
 
 I. CIVIL ACTIONS. 
 
 (a) Geneballt. 
 
 (b) Against SBLLEB poE ikjubies by an intoxicated person. 
 II. SEIZURE AND FORFEITURE. 
 
 (a) What liquoks aek liable to fokpeituee. 
 
 (b) Of the complaint and wakeant. 
 
 (c) The search and seizueb. 
 
 (d) Pleadino, practice and evidence. 
 
 III. INDICTMENT FOR ILLEGAL SALES AND KEEPING DRINKING 
 
 HOUSE. 
 
 IV. NUISANCE. 
 
 V. OTHER MATTERS. 
 
314 INTOXICATING LIQUORS. 
 
 I. CIVIL ACTIONS. 
 
 (a) Generally. 
 
 1. A promissory note is not subject to the defense that it was given 
 for intoxicating liquors, when in the hands of an indorsee for value 
 and without notice of its illegal inception, and it seems to be immate- 
 rial whether it was transferred before or after maturity. Field v. 
 Tibbetts, 57—358. 
 
 2. It is no defense to an g-ction on a negotiable promissory note, 
 that it was given in whole or part for intoxicating liquors sold in violar 
 tion of law, when the action is brought by an indorsee, who is the 
 holder of the note for a valuable consideration, and without notice of 
 the illegality of the contract. Hapgood v. JSTeedham, 59 — 442. 
 
 3. If in the trial of an action on a negotiable promissory note, 
 brought by an indorsee against the maker, the defendant avers that 
 the note was given in whole or in part for intoxicating liquors sold 
 in violation of law, the burden of proof is upon him. lb. 
 
 4. If the plaintiff replies that he is a holder for, a valuable considera- 
 tion, the burden is upon him. lb. 
 
 5. If the defendant would avail himself of the fact that the 
 plaintiff had notice of the illegality of the consideration when he took 
 it the defendant must prove it. lb. 
 
 See Evidence, 112, p. 231. 
 
 6. Neither by the common law, nor by any statute in this State, can 
 a person who has purchased intoxicating liquors of one not licensed 
 to sell them, and who has paid for and received them, recover back 
 the money paid therefor, when no element of oppression or deceit 
 enters into the case. Mudgett v. Morton, 60 — 260. 
 
 7. A person who makes a contract to render services in a legal 
 employment only is not to be debarred from recovering compensation 
 therefor merely because during the season of his employment he 
 occasionally assisted in the sale of liquors as a gratuity to his employer, 
 and not as a part of his contract services for which he seeks com- 
 pensation. Goodwin v. Clarice, 65 — 280. 
 
 (b) Against seller for injuries by an intoxicated person. 
 
 8. Under acts of 1872, c. 63, § 4, providing that any person injured 
 in person, property, means of support, or otherwise by any intoxi- 
 cated person, shall have a right of action against any persons who 
 shall have caused or contributed to the intoxication of such person, 
 one sustaining such injury must bring such action against the person 
 by whom the sale was made, which caused the intoxication of the 
 person by whom the injury was done. Bush v. Murray, 66 — 472. 
 
 9. If A. sells the liquor to B., and B. sells it to C, who becomes 
 intoxicated by it and injures D., an action by D. against A. can not 
 be maintained. lb. 
 
 10. And the death of the husband alone as a result of the intoxicar 
 tion is not a cause of action by the wife under the act. There must 
 be connected with it an injury to person, or property, or means of 
 support. Gilmore v. Matthews, 67 — 517. 
 
 11. Under the clause of the act giving exemplary damages, actual 
 damages must be shown before exemplary damages can be recovered. 
 lb. 
 
INTOXICATING LIQUORS. 315 
 
 12. The declaration in such an action must show directly and dis- 
 tinctly that an injury has occurred to the plaintiff, in person, prop- 
 erty, or means of support. lb. 
 
 See Payment, III. 
 
 IX. SEIZURE AND FORFEITURE. 
 
 (a) What liqtjobs abb liable to fokfbitube. 
 
 (b) Of the complaint and wabbant. 
 
 (c) The seaboh and skizuee. 
 
 (d) Pleading, practice and evidence. 
 
 (a) What liquors are liable to forfeiture. 
 
 13. By c. 63, § 2, acts of 1872, cider was declared to be intoxicating 
 within the meaning of the law, against the sale of intoxicating liquors, 
 and by § 3 of the same chapter, the sale of cider by the manufacturer 
 was taken out of its provisions. JTeld, that as the exception was not 
 in the declaratory clause, a warrant for the seizure of intoxicating 
 liquors authorized the officer holding it to seize cider, and if it was 
 not liable to forfeiture, the owner must make it so appear in the sub- 
 sequent investigation. Guptil v. Hichardson, 62 — 257. 
 
 14. Bailee. An intention on the part of a mere bailee of intoxi- 
 cating liquors, without authority to make sales, to sell in violation of 
 law, will not work a forfeiture. /State v. Intoxicating Liquors, 63 
 —121. 
 
 15. It is the intent of one having the title, or authority to sell, which 
 is to be regarded and not that of a mere wrong doer. lb. 
 
 16. One having authority to sell intoxicating liquors, will incur the 
 penalty in search and seizure process, if he keeps the liquors with in- 
 tent to sell in violation of law. State v. Connelly ., 63 — 212. 
 
 17. Imported foreign liquors are liable to seizure and forfeiture, 
 while the importer retains possession thereof in the original package, 
 but with the intent to break it, and sell within the State, in quantities 
 less than a package. State v. Blackwell, 65 — 556. 
 
 18. The MUNICIPAL OFFICERS of a city, town, or plantation are au- 
 thorized to purchase intoxicating liquors, only of the State commis- 
 sioner, or of such municipal officers as have purchased intoxicating 
 liquors of him, or of a manufacturer in the State who has complied 
 with the requirements of R. S., c. 27, § 23. State v. Belfast, 68 — 
 187. 
 
 19. Intoxicating liquors purchased by municipal officers, without 
 authority and in contravention of the statute, are liable to seizure and 
 forfeiture. lb. 
 
 20. Intoxicating liquors purchased by the municipal officers of a 
 city, town, or plantation, and kept by the town agent for sale, are, 
 liable to seizure and forfeiture, if the casks and vessels in which the 
 same are contained are not at the time of seizure plainly and conspic- 
 uously marked with the name of such city, town, or plantation, and 
 of its agent. lb. 
 
 21. A complaint alleging a finding by the complainant, a deputy 
 sheriff, of liquors intended for sale in this State, in violation of law 
 upon the person of the defendant, a seizure of the same and the sub- 
 
316 INTOXICATING LIQTTOBS. 
 
 sequent making of a complaint and issuing of a warrant against the 
 defendant, upon which he wais arrested, cannot be sustained. State 
 V. Grames, 68—418. 
 
 (b) Complaint and warrant. 
 
 22. CoMPLAmT. Where an officer on April 30, seized intoxicating 
 liquors without a warrant, and kept them until May 2, and then made 
 a complaint therein alleging that on April 30, the liquors were un- 
 lawfully deposited, &c. Meld, that the offence was rightly described, 
 and that the complaint need not allege that, at the date of the 
 complaint, the liquors were still kept, &o. State v. Mb Cann, 59 — 383. 
 
 23. In a complaint made after the liquors have been seized, an alle- 
 gation that the person making the seizure at said Wiscasset, on the 
 day the seizure was made, was sheriff, duly qualified to seize intoxicat- 
 ing liquors, following an allegation that Wiscasset was in the county 
 of Lincoln, and that the liquors were kept and deposited in Wiscasset 
 sufficiently shows the authority of the officers to make the seizure. 
 State V. jErsMne, 66 — 358. 
 
 24. In search and seizure process an allegation in the complaint 
 that the liquors are kept and deposited" in a place described by the 
 defendant, and that the same are "intended for sale in this State in 
 violation of law" is a sufficient allegation that the keeping was 
 unlawful. State v. Connelly, 63 — 212. State v. Ershine, 66 — 358. 
 
 25. It is not necessary to allege in the complaint that the defendant 
 had no authority to sell. State v. Connelly, 63 — 212. 
 
 26. An allegation that he had no authority to sell in a particular 
 town may be rejected as surplusage. Ih. 
 
 27. A complaint for search and seizure process need not state that 
 the complainant has probable cause to believe that the liquors are 
 kept for illegal sale, if it follows the statute form, and states that he 
 does, in fact, believe so. State v. Nowlan, 64 — 531. 
 
 28. In search and seizure process, where the liquors are originally 
 taken without a warrant, an objection, that in such case the precept, 
 when obtained, should run against the thing seized, and not against 
 any person, is not open to the respondent, when the case shows that 
 the officer served the warrant, and made a return thereon, of the 
 seizure and arrested the defendant. State v. McCafferty, 63 — 223. 
 
 29. The warrant designated the place to be searched as a certain 
 dwelling house and appurtenances, occupied by the defendant. 
 The evidence showed that liquors were seized upon the warrant in an 
 out building, distinct and separate from the dwelling house but upon 
 the same lot, and used by the defendant mainly as a wood-shed for 
 the dwelling house. Held, that the out building properly came into 
 the designation of the respondent's dwelling house and appurtenances, 
 though not annexed to the house proper, but separated from it by an 
 open space or passage way. State v. Burke, 66 — 127. State v. 
 
 Woods, 68—409. 
 
 30. When the waeeant commands the officer to arrest the respond- 
 ent, if he shall find the liquors, it is no cause of complaint that it 
 does not also command the officer to arrest the respondent if he has 
 reason to believe he has them concealed about his person. lb. 
 
ffti. 
 
 iKTOxicATnsra liqtjobs. 317 
 
 31. It is legally competent for the magistrate to refer to and adopt 
 the complaint as a part of the warrant. /State v. ErsMnt, 66 — 358. 
 
 32. And where this is done, a command in the warrant, to the officer, 
 to enter said premises and search for said liquors, means the premiseis 
 and liquors described in the complaint. lb. 
 
 33. A WAEEANT commanded the search for intoxicating liquors in 
 certain premises and their appurtenances in B. occupied by N. and 
 bounded — here followed a description by metes and bounds. The de- 
 scription embraced a block of two dwelling houses, each separated 
 from the other, with no inside means of communication, one occupied 
 by N. and the other by F. Held, that the warrant did not justify an 
 officer in searching the house of P. Flaherty v. Longley, 62 — 420. 
 
 34. A warrant commanding the officer to "apprehend the said A. 
 and B., and bring into court," differing from the statute form only in 
 the omission of the word "them," after the names of the respondents, 
 is valid. Adams v. Mc Glinchy, 66 — 474. 
 
 35. The word "bring" necessarily applies to the persons named just 
 as much as the word "apprehend," and it is as clearly the duty of the 
 officer to bring them before the court as it is to arrest them. lb. 
 
 36. After an officer had seized a lot of liquors under a warrant they 
 were taken from him by another officer, by virtue of a replevin writ 
 which was never returned. The excuse for not returning the writ, 
 was that the bond was insufficient. In an action of trespass by the 
 first officer against the second, Jield, that whether or not the warrant 
 was sufficient to authorize the officer making the seizure to hold the 
 liquors for the purpose of trial against all persons, whether owners or 
 otherwise, the acts of the officer who served the replevin writ, and of 
 the owner of the liquors who assisted him, could not be justified. lb. 
 
 (c) The search and seizure. 
 
 37. On the trial of a complaint for search and seizure process, the 
 guilt of the respondent depends upon whether he was the keeper of 
 the liquors found, and intended to sell them in violation of law, and 
 it is no defense that the officer in making the search exceeded his 
 authority. State v. McGann, 61 — 116. 
 
 38. Or, that the complainant was mistaken in some of the facts 
 stated in the complaint, as that the liquors were kept in a dwelling- 
 house, part of which was used for purpose of traffic, when, in fact, no 
 part of it was used for that purpose. State v. Flunkett, 64 — 534. 
 
 39. An officer attempted to make a seizure of intoxicating liquors 
 without any warrant, but was prevented from consummating it by a 
 scuffle with the respondent, during which the liquor was destroyed. 
 The officer then obtained a warrant for search and seizure, and 
 arrested the respondent. Held, that the complaint could not be sus- 
 tained. State V. Howley, 65 — 100. 
 
 40. The search and seizure process under the statute relating to 
 intoxicating liquors applies only against liquors in a place and not on 
 a person. State v. Qrames, 68 — 418. 
 
 See Officbe, 46. 
 
318 rSTTOXICATING LIQUORS. 
 
 (d) Pleading, practice and evidence. 
 
 41. On the trial of a search and seizure complaint, the officer's 
 return is a part of the allegations to be proved, but no part of the 
 proof itself. The truth of the facts alleged must be established by- 
 proof ah extra. State v. Lang, 63 — 215. State v. Sowley, 65 — 100. 
 State V. Kenniston, 67 — 558. 
 
 42. When intoxicating liquors are libeled as intended for illegal 
 sale, a claimant can not assert any other right to them than that set 
 forth in his written claim filed with the magistrate. State v. Intox- 
 icating Liquors, 61-^520. 
 
 43. Veedict. Upon a complaint in the fonn prescribed by statute 
 alleging that intoxicating liquors were kept by the defendant for un- 
 lawful sale in a shop which is particularly described, a general verdict 
 of guilty is sufficient. State v. McCann, 61 — 116. State v. Nowlan, 
 64—531 
 
 44. That the officer proceeded illegally in making search for and 
 seizure of the liquors so kept is no defense to the prosecution of the 
 person keeping them. State v. McCann, Qi — 116. 
 
 45. Only those liquors are brought within the jurisdiction of the 
 court for condemnation which are originally seized on a lawful war- 
 rant. Guptil V. Richardson, 62 — 257. 
 
 46. When a warrant for the seizure of liquors is issued by the clerk 
 of a municipal court in the judge's absence, it is sufficient for the 
 officer to libel them in the court to which the warrant is returnable. 
 Ih. 
 
 47. It is the duty of the magistrate before whom a libel is filed to 
 cause notices thereof to be posted. The officer has performed his 
 duty when he has seasonably filed the libel. Ih. 
 
 48. Evidence. It is not improper to allow the jury to take to 
 their room a bottle of liquor, manufactured and sold by the same per- 
 son under the same name as the liquor seized, with an instruction not 
 to consider the qualities of such liquor unless they find from the 
 evidence that it is the same kind as the liquor seized. State v. Mc- 
 Cafferty, 63—223. 
 
 49. At a trial of the respondent on a complaint made subsequent to 
 the seizure, it is competent to ask the officer who made it on what day 
 he made the seizure, notwithstanding the constable had returned on 
 the warrant that he made it on a later day. State v. Mc Gann, 59 — 
 383. 
 
 50. When the officer to whom the warrant is directed makes a 
 return that he has searched the premises named therein, and seized 
 certain liquors, evidence that the search and seizure was made by 
 others in his absence, and not under his direction, is not admissible to 
 sustain the complaint. State v. Kenniston, 67 — 558. 
 
 51. On the trial of a complaint for search and seizure process, the 
 record of a conviction for a similar offence, upon a plea of nolo con- 
 tejidere is admissible upon the question of intent. State v. Plunkett, 
 64—534. State v. Magle, 65—468. 
 
 III. INDICTMENT FOK ILLEGAL SALES AND KEEPING- DRINK- 
 ING HOUSE. 
 
 52. E. S., c. 27, § 20, prohibiting pedlars and dealers from "carrying 
 
INTOXICATING LIQTJOES. 319 
 
 for sale, or oifering for sale, or offering to obtain, or obtaining orders 
 for the sale or delivery of any spirituous, intoxicating, or fermented 
 liquors," creates distinct and independent offences, a joinder of which 
 in the same count of an indictment is good ground for demurrer. 
 State V. Smith, 61—386. 
 
 53. Technical accueacy is not required in setting forth a former 
 conviction for a similar offeno^. State v. Wentworth, 65 — 234. State 
 V. Oorham, 65 — 270. 
 
 54. A sale of intoxicating liquor by a servant in the shop of his 
 master is prima facie a sale by the master. State v. Wentworth, 65 
 —234. 
 
 55. Proof of sales by the master is admissible as tending to show 
 that the sale by the servant was by the authority of the master. lb. 
 
 56. It is for the jury to determine whether instructions not to sell 
 given by the master to the servant were merely colorable, or were 
 given in good faith. lb. 
 
 57. On the trial of an indictment against a person as a common 
 seller of intoxicating liquors, an instruction to the jury "that there 
 must be proof of a plurality of actual sales, and sufficient of them to 
 satisfy the jury of the offence alleged; but that the government were 
 not required to prove a plurality of sales by witnesses who purchased 
 liquor of the respondent, or by persons who have seen liquor sold by 
 the respondent, or by his clerks and agents ; that the jury may infer 
 the fact of sales from circumstances, and the situation of the respond- 
 ent if they are satisfied to do so," is correct. Statey. Hynes, 66 — 114. 
 
 58. Upon the trial of an indictment for keeping a drinking house 
 and tippling shop, after the records of three judgments against the 
 respondent, two for single sales and one upon a search and seizure 
 complaint, had been introduced in evidence, the presiding judge 
 declined to instruct thejury, upon request of the defendant, that a sin- 
 gle sale of intoxicating liquor, and allowing the same to be drank upon 
 the premises where sold, do not constitute the offence of keeping a 
 drinking house and tippling shop, but did instruct them in the words 
 of the statute. Held, that the refusal was correct (1) because the 
 requested instruction was hypothetical, and (2) the statute rule given 
 was all that was required by the jury. State v. Gorham, 67 — 247. 
 
 59. Whether other testimony than the records was introduced is an 
 immaterial question, when the case is presented upon exceptions to 
 rulings of the presiding judge admitting the records in evidence and 
 refusing to give such requested instruction. lb. 
 
 IV. NUISANCE. 
 
 60. Trial justices have no jurisdiction over parties guilty of keep- 
 mg a liquor nuisance, except to bind over ; they cannot pass sentence 
 upon them. State v. Pierre, 65 — 293. 
 
 61. In an indictment for keeping a liquor nuisance, an allegation 
 that the respondent unlawfully kept a shop used for the illegal sale of 
 intoxicating liquors, sufficiently negatives any authority to sell. State 
 V. Lang, 63—215. 
 
 62. In such an indictment it is not necessary to allege that the 
 shop was "a house of ill fame," or that the names of the, persons to 
 whom liquor was sold be stated, or if not known, that it be so alleged. 
 lb. 
 
320 JDESTT STOCK ASSOOTATION. 
 
 63. Nor is it necessary to describe the place more particularly than 
 to allege it to be in a specified tflrwn. lb. 
 
 64^ But upon an indictment alleging the nuisance to be a shop 
 upon "the plains, so called, in Waterville," evidence that the defend- 
 ant kept a nuisance upon silver street, Waterville, a third of a ?iile 
 from the plains, is not admissible. State v. Lashus, 67 — 564. 
 
 65. Under the act of 1873, a. 152, one may be indicted for a nui- 
 sance for selling cider, and wine made from fruit grown in the State, 
 for tippling purposes, if the jury find they are intoxicating liquors. 
 State V. Page, 66—418. 
 
 66. Under the provisions of R. S., 1871, c. 17, § 4, that if any per- 
 son knowingly permits any building owned by him to be used for the 
 sale of intoxicating liquors, he shall be deemed guilty of aiding in the 
 maintenance of a nuisance, it is not enough to constitute the offence 
 that the owner had knowledge of the sales. There must be permis- 
 sion as well as knowledge. State v. Stafford, 67 — 125. 
 
 67. Two persons may be jointly indicted, one for maintaining a 
 liquor nuisance, and the other for aiding in its maintenance. State 
 V. Buby, 68—548. 
 
 V. OTHER MATTEES. 
 
 68. Under R. S., 1871, c. 22, § 27, providing that malt liquors shall 
 be considered intoxicating, it is for the jury and not the court to 
 determine what are the "malt liquors" intended by the statute, and 
 prohibited from sale by it. State v. Mc (Jafferty, 63 — 223. State v. 
 Starr, 67—242. 
 
 69. The allegation of a previous conviction for a similar offence 
 may be in general terms. State v. Wentworth, 65 — 234. State v. 
 Gorham, 65—270. 
 
 70. The AGENT of a town or city for the sale of liquors is not an 
 officer. His situation is not an office but an employment. State v. 
 
 Weeks, 67—60. 
 
 71. In cities such agent may be appointed by a majority of the 
 municipal board. lb. 
 
 72. The provision of R. S., 1871, c. 80, § 52, that no officer shall 
 "draw any writ, plaint, declaration, process or plea for any other per- 
 son," does not prohibit sheriffs and their deputies from drawing com- 
 plaints for violations of the liquor law, though such complaints are 
 signed and sworn to by other persons, not officers. State v. McCann, 
 67—372. 
 
 73. Section 4 of c. 215, laws of 1877, imposing a heavier penalty for 
 a second conviction, authorizes the imposition of the increased penalty 
 upon subsequent convictions after the first offence, where the first 
 conviction took place before the passage of the act of 1877. 
 Woods, 68—409. 
 
 JOINT STOCK ASSOCIATION. 
 
 1. Every member of an unincorporated joint-stock company is per- 
 sonally liable for all of its debts. JFrost v. Walker, 60 — 468. 
 
JOINT TENANTS AISTD TENANTS IN COMMON. 321 
 
 2. It is sufficient to authorize a finding that persons are members of 
 such company, if it be proved that their names are signed to the sub- 
 scription papers for its capital stock, and that they paid, without 
 objection, assessments for the number of shares set against their res- 
 pective names, even though it be not shown by whom their names were 
 so subscribed. lb. 
 
 3. By thus contributing to the working capital, the subscribers 
 became entitled to share in the profits of the company, and liable, as 
 co-partners, for its debts. lb. 
 
 4. It seems that there is no distinction, in respect to their liability, 
 between a subscriber for stock and a stock holder ; however this may 
 be, an actual payment of assessments, upon shares subscribed for, will 
 create such liability. lb. 
 
 See Feauds, statute of, 8, p. 279. 
 
 JOINT TENANTS AND TENANTS IN COMMON. 
 
 I. OP REAL PROPERTY. 
 II. OP PERSONAL PROPERTY. 
 
 I. OP REAL PROPERTY. 
 
 1. One tenant in common is liable to an action by his co-tenant for 
 an injury to the common property. Sines v. Robinson, 57^324. 
 
 2. Where the common property consists of a grist-mill, the erec- 
 tion of an excelsior mill in such proximity thereto as to darken the 
 grist-mill, and prevent access to its under works, and the use of the 
 yard in front of it as a place for the piling of lumber, to the exclu- 
 sion of customers, constitute such an injury. lb. 
 
 8. So one tenant m common may maintain an action against his 
 co-tenant and a stranger for using water for another mill which right- 
 fully belongs to the common mill. lb. 
 
 4. Tenants in common, holding under the same deed as grantees, 
 have several freeholds, and are not obliged to join in an action against 
 their grantor for a breach of the covenants of warranty in his deed. 
 Lamb v. Danforth, 59—322. 
 
 5. In case of a tenancy in common, each tenant may bring his sev- 
 eral action, but two can not join against a third for they have no joint 
 interest. Farrar v. Pearson, 59 — 561. 
 
 6. Whether or not, heirs who are tenants in common of real estate, 
 inherited from an insolvent ancestor, have an election of suing either 
 jointly or severally an administrator who has collected the rents of 
 such estate without their consent, an action neither joint nor several 
 can not be maintained. Kimball v. Sumner, 62 — 305. 
 
 7. The statute provision (R. S., 1871, c. 95, § 5), that "any tenant in 
 common of undivided lands," shall forfeit three times the amount of 
 the damages arising from certain enumerated injuries, none of which 
 necessarily affect a life estate, to be recovered by a co-tenant, does 
 
 21 
 
322 JUDGMENT. 
 
 not authorize a recovery by a co-tenant, whose estate is for life. Rich- 
 ardson V. Richardson, 64—62. 
 
 See Execution, 37, p. 254. 
 
 II. OF PERSO]SrAL PROPERTY. 
 
 8. One tenant in common cannot maintain replevin for the common 
 property against his co-tenant. Witham v. Witham, 57 — 447. 
 
 9. Where the plaintiff fails to sustain an action of replevin on the 
 ground that the parties thereto are co-tenants of the property replevied, 
 the defendant is entitled to a judgment for return. lb. 
 
 10. When personal property owned in common is not susceptible 
 of a joint and equal possession the remedy for an owner who has not 
 the possession and wishes to obtain it is to take it "when he can see his 
 time." JEstey v. JBoardman, 61 — 595. Carter v. Bailey, 64 — 458. 
 
 11. The sale of personal property by one tenant in common does 
 not, as against his co-owner, vest the entire property in the vendee ; 
 but the co-owner may assert his title to his share. Carter v. Bailey, 
 64-458. ^ 
 
 12. He may waive the tort and recover in assumpsit for his share 
 of the money received by the vendee. lb. 
 
 13. Or he may have trover for its value against him who converted 
 it by assuming to own and sell the whole. lb. 
 
 14. But not against the vendee so long as he continues in possession 
 and uses it in a manner consistent with the co-owner's rights, lb. 
 
 15. One tenant in common can not maintain an action of trover 
 against a co-tenant for an attempted sale of a larger share of a vessel 
 than belonged to him, where no sale was fully effected, and no title 
 to or possession of the common property passed thereby. Usty v. 
 Boardman, 61 — 595. 
 
 16. A bill of sale of one-half of a horse, providing that the vendee 
 is to take the horse, keep and handle him, and that the vender shall 
 pay one-half of the keeping and expenses of said horse and receive 
 one-half of the profits which the horse may earn, the vender's part of 
 the horse's keeping to be two dollars and fift^ cents per week, does 
 not constitute a partnership, but makes the parties to the sale part 
 owners. Chapman v. Eames, 67 — 452. 
 
 17. Such a contract is one which part owners of personal property 
 may make with each other, and it may be enforced by action at law. lb. 
 
 See Equity, 76, p. 203. 
 
 JUDGMENT. 
 
 I. ENTRY OF JUDGMENT. 
 II. EFFECT OF. 
 
 (a) As TO PABTIES. 
 
 (b) Geneballt. 
 
 III. IN CRIMINAL CASES. 
 
 IV. EVIDENCE AND PRACTICE. 
 
JUDGMENT. 323 
 
 I. ENTRY OF JUDGMENT. 
 
 1. Where an action of replevin, in whicli the pleadings put the 
 plaintiff's title in issue, is submitted to the law court on report of the 
 evidence, the clerk of this court in the county where the action is 
 pending, may, upon receipt of the certificate, "plaintiff nonsuit," 
 rightfully enter up judgment for a return of the property replevied. 
 Hoeffner v. Stratton, 57 — 360. 
 
 2. By vii-tue of the 35th Rule of Court, unless the prevailing party, 
 within three months after judgment is ordered, files all papers and 
 documents necessary to enable the clerk to make and enter the judg- 
 ment and complete the record, judgment can not be afterwards re- 
 corded, unless upon petition and notice to the adverse party, the court, 
 at a subsequent term, order it. Townsend v. Meader, 58 — 288. 
 
 3. Hence, if the defendant be defaulted in an action upon a mort- 
 gage, and the plaintiff refuse to file the papers necessary to enable 
 the judgment to be made up, an entry upon the docket of "judgment 
 as on a mortgage," made at the instigation of the defendant, after 
 default and adjournment of the court, is not binding upon the plain- 
 tiff, lb. 
 
 4. In an action by a husband and wife, for injuries sustained by 
 the wife, through the negligence of the defendant, after a verdict for 
 plaintiffs and exceptions filed, the wife died. Afterwards the excep- 
 tions were overruled, and judgment for the plaintiffs recorded by the 
 clerk, no suggestion of the death of the wife having been made. At 
 a subsequent term, upon motion, the case was brought forward, and 
 an entry made, stating the death of the wife, the withdrawal of the 
 husband as a party, his appearance to prosecute the suit as adminis- 
 trator, and the rendition of judgment on the verdict, in his favor as 
 administrator. The proceedings were held correct. West v. Jordan, 
 62—484. 
 
 5. It is only when a notice to the general owner of the property 
 attached is required by law to be given that a judgment directly 
 against the property can be obtained. Byard v. Parker, 65 — 576. 
 
 See ExECTjTioif, 10, p. 282. 
 
 n. EFFECT OF. 
 
 (a) As TO PABTIES. 
 
 (b) Genbbally. 
 
 (a) As to parties. 
 
 6. Where a debtor has paid certain items of his creditor's account, 
 and the creditor subsequently takes judgment for the full amount of 
 the original account, the debtor cannot recover back the amount thus 
 paid and wrongfully included in the judgment, his remedy being re- 
 view. Hagar v. iSpringer, 60 — 436. 
 
 7. Set-off. If, in the trial of an action, the defendant offered 
 evidence of an account filed in set-off, and the question of allowance 
 or disallowance was submitted to the jury, and they acted upon it, 
 he is precluded from again offering proof in support of the same ac- 
 count in another suit, although the jury may have decided not to 
 allow it. Baker v. Stinchfield, 57—363. 
 
 8. Trustee. Where the plaintiff claimed to hold an alleged trus- 
 
324 jtroaMEKT. 
 
 lee, under R. S., 1857, c. 86, § 63, for holding personal property of 
 the principal defendant, under a conveyance fraudulent as to the lat- 
 ter's creditors, and that issue was tried in the disclosure of the alleged 
 trustee, and upon it he was discharged, the judgment is a bar to a 
 subsequent action brought by the plaintiff against the trustee, under 
 R. S., 1857, c. 113, § 47, involving the same transactions. Bunker 
 V. Tufts, 57—417. 
 
 S. Feaud. The parties to an action can not impeach the judgment 
 rendered therein in any collateral proceeding, on the ground that it 
 was obtained through their fraud or collusion. Davis v. Davis, 61 — 
 395. 
 
 10. DivoEOB. In an action of dower, by a wife who has obtained 
 a divorce from her husband for his fault, against him, the husband can 
 not set up in defense that the divorce was obtained through their 
 fraud and collusion. li. 
 
 11. Upon a libel for divorce, a mensa, by the wife alleging constant 
 faithfulness on her part, but on a certain day, and on divers other 
 times since that day, extreme cruelty on the part of the husband, to 
 which the respondent pleaded traversing all the allegations therein, 
 the unreversed judgment of a court having jurisdiction of process 
 and parties, that the allegations of said libel being satisfactorily 
 proved, a divorce is decreed, is conclusive between the parties as to 
 their conduct toward each other, during the continuance of then- 
 matrimonial relation to the date of the judgment. Slade v. Slade, 
 58—157. 
 
 12. MoETGAGE. An absolute judgment by a mortgagee, before 
 foreclosure, in a writ of entry, against the mortgager, or those claim- 
 ing under him, will not in any manner contravene the lawful right of 
 redemption. Stewart v. Davis, 63 — 539. 
 
 13. A suit commenced after the defendant has parted with the title 
 and possession of land, followed by judgment by default, and the in- 
 duction of the plaintiff into possession by an officer upon the hab.fac, 
 issued thereon, will not preclude the defendant's grantee from main- 
 taining trespass against the plaintiff, it not appearing that such gran- 
 tee was dispossessed by the officer. Mitchell v. Slack, 64 — 48. 
 
 14. When a party has waived a tort and recovered in assumpsit, 
 he can not afterwards treat the tort as a subsisting grievance, and, in 
 another form of action, recov.er damages which are to be assessed 
 upon a different principle. Ware v. Percival, 61 — 391. 
 
 15. The plaintiff having agreed upon a sale to the defendant of a 
 quantity of unbranded pressed hay, an illegal contract, delivered a 
 number of bales, when a dispute arose concerning the quality, and no 
 more was delivered. The defendant, however, took away what had 
 already been delivered and sold it. For this the plaintiff brought 
 trover against him, and lost his case. He then brought assumpsit, 
 claiming that the original contract of sale had been rescinded, and 
 that as the defendant had taken away and sold the hay with his con- 
 sent, he was liable for the proceeds. Seld, that whether the taking 
 by the defendant was tortious, so that the judgment in the trover suit 
 would be a bar to the action of assumpsit depended not so much upon 
 what the real wish and intent of the plaintiff was in the transaction 
 as upon what the defendant might infer from his conduct. Foye v. 
 Southard, 64r— 389. 
 
JUDGMENT. 325 
 
 16. Parties. For a judgment to operate as an estoppel in a sec- 
 ond suit, the parties to the two litigations must be the same, or stand 
 in an attitude and relation to each other, having the same effect as if 
 they were identically the same. Lander v. Arno, 65 — 26. 
 
 17. A person gave a deed of land, and, at the same time, his prom- 
 issory note to the grantee, who gave him a bond to reconvey upon pay- 
 ment of the note. The grantor claimed that the transaction was the 
 result of duress, and brought a writ of entry for the land, against the 
 parties to whom his grantee conveyed it, and prevailed upon one of 
 two grounds, either that his deed was obtained from him by duress, or 
 was never delivered. Meld, that this suit was not per se a bar to a 
 suit on the note. Ih. 
 
 18. If TWO FACTS are so inseparable that a decision upon one nec- 
 essarily includes the other as a part of the same transaction, an ad- 
 judication upon one concludes the parties as regards both. lb. 
 
 19. Example. If a note and deed are so connected, that if the lat- 
 ter was obtained by duress the former must have been obtained in the 
 same way, an adjudication that the deed was so obtained is a bar to a 
 suit, upon the note. lb. 
 
 20. To ascertain whether a former judgment is a bar to present lit- 
 igation, the true criterion is found in the answer to the question, was 
 the same vital point put in issue and decided. Howard v. Kimball, 
 65—308. 
 
 21. When a bill in equity, alleging that a conveyance of a vessel 
 to the defendant by one P., absolute in form was intended as colla- 
 teral security, that by it the interest of P. in the vessel was trans- 
 ferred to the complainant in November, 1859, and claiming the right 
 to redeem, is dismissed, because the alleged transfer gave the com- 
 plainant no title, and therefore no right of redemption, such judgment 
 is not a bar to a suit upon certain accounts due from the defendant to 
 said P., and assigned by him to the plaintiff by an order drawn by 
 said P. upon the defendant, and accepted by him in 1856. lb. 
 
 22. Note and Moetgage. Suing the notes secured by a mort- 
 gage, and procuring judgment upon them without satisfaction, in no 
 way affects the validity of the mortgage. Jewett v. Hamlin, 68 — 
 172. 
 
 23. Title. When an action of trespass was reported to the law 
 court, with the agreement that if a certain line established by survey- 
 ors was binding upon the parties then a judgment of nonsuit was to 
 be entered, and the line was not binding because the survej'ors 
 exceeded their authority in fixing the line, a judgment of nonsuit ren- 
 dered was held no bar to a subsequent action for a trespass upon the 
 same land, as it in no way determined the title. Haynes v. Jackson, 
 66-93. ' ^ y , 
 
 (b) Generally. 
 
 24. Teustee. When an action by trustee process is commenced 
 prior to one by the principal defendant against the trustee, a judg- 
 ment in the latter action in favor of the trustee is not conclusive upon 
 the former action upon the question of the trustee's discharge. Web- 
 ster V. Adams, 58 — 317. 
 
 25. The owner of a lot of logs conveyed them to the defendant by 
 
326 JUDGMENT. 
 
 a mortgage bill of sale, and subsequently, by an absolute bill of sale 
 to plaintiff's intestate. Still later, the defendant sold a portion of the 
 logs, and warranted the title to one C, who converted them, where- 
 upon the plaintiff sued him in trover for their value. At the trial the 
 only question was the strength of the defendant's title under the 
 mortgage as against that of plaintiff's intestate under the absolute bill 
 of sale, and the defendant recovered judgment. In this action, 
 involving precisely the same question and supported by the same tes- 
 timony ; held, that the judgment in favor of C. was a bar. Atkinson 
 V. White, 60—396. ' 
 
 26. Master and Seevai^t. If a servant is notified of the pen- 
 dency of a suit against his master on account of the misconduct of 
 the servant, and the suit is defended at the request of the servant 
 who is ' informed that he will be held responsible for the amount 
 recovered, the servant will be bound by the judgment. Grand Trunk 
 Co. V. Latham, 63 — 177. 
 
 27. SuEETT. A verdict and judgment, in a suit upon a joint and 
 several note, in favor of one surety, will not be a bar to another suit 
 against another surety upon such note, unless it is shown that the first 
 verdict was rendered upon a defense which would be an extinguish- 
 ment of the cause of action, or unless the grounds of defense set up 
 in both cases are shown to be identical. Sill v. Morse, 61 — 541. 
 
 28. Administrator. A judgment against an administrator in a 
 suit on his bond, in which he is found guilty of neglect in not inven- 
 torying certain property does not affect the rights of persons, not 
 parties to the suit on the bond, to whom the intestate had given the 
 property while living, although the administrator defended the suit 
 on the bond on the ground of such gift. Hill v. Stevenson, 63 — 364. 
 
 29. In an action upon an administration bond, originated by a cred- 
 itor of the intestate, who produces a judgment in his favor against 
 the administrator, the sureties are not estopped from showing that 
 prior to the commencement of the suit in which such judgment was 
 recovered, the authority of the administrator had become extinguished. 
 Bourne v. Todd, 63--427. 
 
 30. Generally, a judgment against the estate in the hands of the 
 representative of the deceased, regularly recovered and entered up, 
 is conclusive upon the sureties in the bond. Baker v. Moor, 68 — 443. 
 
 31. But where the record shows a suit against certain parties, exec- 
 utors, etc., the declaration on an account annexed for services ren- 
 dered and disbursements made for them in their said capacity as 
 executors in settling the business of the estate of the testator, and a 
 judgment against the defendants, the judgment does not show that 
 the plaintiff is interested in the bond, or that he has had his interest 
 ascertained by a judgment at law. lb. 
 
 32. Insurance. When a part owner of a vessel obtains an insur- 
 ance "on account of whom it may concern," and the loss of the vessel 
 and the death of such part owner occurs at the same time, a judg- 
 ment upon the policy, obtained by the administrator of such part 
 owner, and its satisfaction by the insurance company is a bar to an 
 action upon the policy by any person claiming under the clause "of 
 whom it may concern." Sleeper v. Union Ins. Co., 65 — 385. 
 
 33. Impeachment Collaterally. A judgment obtained by fraud 
 and collusion between the parties thereto may be impeached in a 
 
JUDGMENT. 327 
 
 collateral proceeding by any person not a party or privy thereto, 
 whose interests are liable to be unfavorably affected thereby. Gilbert 
 V. Duncan, 65 — 469. See also Prentiss v. Parks, 65 — 559. 
 
 34. Against Nosr-EBSiDBNTS. Judgment against a non-resident, 
 whose property has been attached upon the writ, and to whom notice 
 has been given by publication in a newspaper, is but a judgment in 
 rem, good only against the particular property attached. Eastman 
 V. Wadleigh, 65 — 251. 
 
 35. Such judgment can not be made the basis of an action of debt, 
 in order to obtain satisfaction out of property other than that attached 
 on the original writ. Ih. 
 
 36. A recital, in the record of a judgment of the supreme court, 
 that notice has been given to defendants out of the State, where there 
 is an attachment of their property on the writ, is so far conclusive 
 that the judgment cannot be set aside as a nullity when collaterally 
 attacked. Blaisdell v. Pray, 68 — 269. 
 
 See County Commissionbes, p. 141. 
 
 ExEcuTOES AND Administeaeoes, 22, p. 257. 
 
 Lien, 23. 
 
 Mill, 28. 
 
 Peobate Couet, 10. 
 
 SciEE Facias, or Gotta v. Ross, 66 — 161. 
 
 III. IN CRIMINAL CASES. 
 
 37. Judgments obtained in criminal cases are conclusive evidence 
 between the State and the respondents of all the facts necessarily 
 adjudicated by them. State v. Lang, 68 — 215. 
 
 38. A judgment upon a plea of nolo contendere, as an admission of 
 the facts shown by the record, is prima facie evidence, as between 
 the respondent and third persons, but as between the respondent and 
 the State is conclusive. Ih. 
 
 39. The keeping an inn without a license subjects the' person so 
 doing to a penalty. A recovery of this penalty for violating the law 
 during one month is not a bar to an indictment for another violation 
 in the month following. State v. Johnson, 65 — 360. 
 
 40. If a nolle prosequi to an indictment is entered after verdict, 
 and the indictment is sufficient, the verdict will be a bar to any new 
 indictment for the same offence. State v. Smith, 67 — 328. 
 
 See Indictment, 80, p. 296. 
 
 IV. EVIDENCE AND PRACTICE. 
 
 41. When the record fails to show the issue actually tried in a 
 former suit it may be shown by parol. Lander v. Arno, 65 — 26. 
 
 42. In a real action, a written memorandum between the counsel 
 recited, "that the defendant in the action shall be defaulted" for a 
 specifically described portion of the land declared for. Also, that in 
 another action between the same parties, judgment should be entered 
 for same party, and that the execution for costs should be stayed 
 until the next term of court. In the trial of a subsequent action for 
 mesne profits, held, that parol evidence was admissible to show that 
 the claim for mesne profits was embraced in the settlement of the 
 
 'suits. Bonney v. Morrill, 57 — 868. 
 
328 JUBISDICTION. 
 
 43. When a domestic record is put in issue, it is to be tried by the 
 court. Sawyer v. Qarcelon, 63 — 25. 
 
 44. When a foreign judgment is put in issue, it is to be tried by 
 the jury. lb. 
 
 45. When a judgment is to be put in evidence in the same court in 
 which it was rendered, it may be done either by the introduction of 
 the record itself, or a certified copy. lb. 
 
 JURISDICTION. 
 
 1. The authority to set aside and annul a discharge in bankruptcy, 
 conferred upon the federal court, is incompatible with the exercise 
 of the same power by a State court ; and the former is paramount. 
 Corey v. Ripley, 57 — 69. See also Symonds v. Barnes, 59 — 191. 
 
 2. In general the essentials of the jurisdiction of a court are 
 power over the parties and the subject matter of the controversy 
 between them. Merrill v. Curtis, 57 — 152. 
 
 3. The jurisdiction assumed by a judge of probate, so far as it 
 depends upon the residence of any person, cannot be contested except 
 on appeal in the original case, unless there is fraud, or want of jurisdic- 
 tion apparent upon the face of the record. JRecord v. Moward, 
 58—225. 
 
 4. A bill TO EEDEEM land from a mortgage may be brought in the 
 county where the defendant resides, although all the land is situate in 
 other counties. Smith v. Larrabee, 58 — 361. 
 
 5. When an action against a town, for damages by reason of a 
 defect in a highway, is brought in a county other than that in which 
 the town is situated, advantage of the fact may be taken under the 
 general issue. Haskell v. Woolwich, 58 — 535. 
 
 6. All parts of the State are included within the body of one or 
 another of the several counties into which the State is divided. 
 State V. Wagner, 61 — 178. 
 
 7. When there is no controversy as to the precise spot on the face 
 of the earth where the crime was committed, and it appears by 
 ancient charters, legislative enactments, and judicial records that the 
 political authorities and courts have heretofore claimed and exercised 
 jurisdiction over the locality in question, the question of jurisdiction 
 is one of law — for the court, and the defendant cannot in any stage 
 or form of pleading rightfully claim to have it submitted to the jury 
 as one of fact, for their determination. lb. 
 
 8. Upon such a question the presiding judge in addition to the 
 matters of which he will take judicial notice, such as legislative 
 enactments, ancient charters, and geographical position, may refresh 
 his recollection and guide his judgment by reference to the records 
 of the courts in the county where he sits, general histories of deceased 
 authors of established reputation, and the records of the census of 
 the inhabitants of the county taken under the laws of the United 
 States by its officers. lb. 
 
 9. When the political authorities of a State have actually claimed 
 
JXJEISDICTION. 329 
 
 and exercised jurisdiction over a particular locality, the courts of the 
 State are thereby concluded, and will respect such decision, and act 
 accordingly without questioning the validity of such claim. lb. 
 
 10. When the act establishing the municipal court of Portland, 
 was passed, a justice of the peace had jurisdiction over the county in 
 which he resided, irrespective of the residence of the parties litigant 
 within the county. Allen v. Somers, 68 — 247. 
 
 11. The MUNICIPAL couBT of Portland, has jurisdiction over all 
 such matters and things as justices of the peace, at the time of its 
 establishment, might exercise. 1 b. 
 
 12. The act establishing a municipal court provided that all com- 
 plaints should be made before the judge, and also that the duties of 
 the judge might be performed by the clerk when the judge should be 
 absent from the court room. Meld, that an allegation in a complaint 
 that the judge was busy in court gave no jurisdiction to the clerk. 
 Quptil V. Richardson, 62 — 257. 
 
 13. When a defendant enters a general appearance, and files an 
 account in set-off, in an action in an inferior court which has jurisdic- 
 tion of the subject matter, the court acquires jurisdiction of the per- 
 son also. Thornton v. Leavitt, 63 — 384. 
 
 14. When the act establishing a court gives it jurisdiction, "when 
 the debt or damages demanded do not exceed" a certain sum, the 
 jurisdiction depends upon the ad damnum. JEstes v. White, 61 — 22. 
 
 15. One of the kindred of a pauper, assessed a certain sum for the 
 support of the pauper, can not maintain a petition for the alteration 
 of the assessment in a county other than that in which the assessment 
 was originally made. Tracey v. Rome, 64 — 201. 
 
 16. Actions between Foeeignees. If it be true that the accept- 
 ance of jurisdiction in personal actions between foreigners depends 
 upon comity and sound judicial discretion, that comity and discretion 
 are always favorably exercised, when the court has actual jurisdiction 
 of the parties, and the subject matter of the suit. Adams v, Macfar- 
 lane, 65 — 143. 
 
 17. Trespass quare clausum may be maintained in the supreme 
 judicial court in the county where the land is situated, though neither 
 the plaintiff or defendant lives in that county. Gordon v. Merry, 65 
 —168. 
 
 18. The proceedings in a complaint for flovtagb are not, as a 
 whole, according to the course of common law, there is therefore no 
 presumption of jurisdiction, although they were had in a court of gen- 
 eral jurisdiction. Prentiss v. Parks, 65 — 559. 
 
 See Abatement, I. 
 
 County Commissionbes, p. 141. 
 PooE Debtoe, 6. 
 Probate Couet, 2. 
 Raileoad, 4. 
 Trespass, 46, 
 
330 JUEY. 
 
 JURY. 
 
 I. GENEKALLT. 
 II. QUALIFICATION AND MISCONDUCT. 
 
 I. GENERALLY. 
 
 1. In iMPANBiLiNG a sheriff's jury, summoned to assess damages 
 for land taken for location of a railroad, the parties are not entitled to 
 have the names of all the jurors placed separately in a box, and the 
 jury drawn in accordance with the provisions of R. S., 1871, o. 82, § 
 66 ; nor have they the right of peremptory challenge. Davis v. Barv- 
 gor & Piscataquis H. B. Co., 60 — 303. 
 
 2. One of the four days during which notices of meetings for draw- 
 ing jurors must be posted may be Sunday. State v. Wheeler, 64 — 532. 
 
 3. Ieeegulaeitt in the dbawing of jurors is not a ground for set- 
 ting aside a verdict unless it appears that the party moving to have 
 the verdict set aside has been injured by the irregularity. /State v. 
 JVeaffle, 65—468. 
 
 4. An indictment found by a grand jury drawn by virtue of venires 
 not having the seal of court upon them may be abated. /State v. 
 Flemming, 66 — 142. 
 
 5. The defect can not be cured by an amendment. lb. 
 
 6. The provision of R. S., 1871, c. 106, § 8, that venires for grand 
 jurors to serve at the supreme judicial court shall be issued forty days 
 at least before the second Monday of September annually, is directory 
 merely and a venire issued on a later day and in season to be legally 
 served is valid. State v. Smith, 67 — 328. 
 
 20. Challenge. Since the passage of the act making the puiiish- 
 ment for murder in the first degree imprisonment for life, one on trial 
 for that crime is entitled to but two peremptory challenges. 1 b. 
 
 8. JuET Teial. Upon an appeal from a decree of a judge of pro- 
 bate neither party can claim, as a matter of right, a trial by jury. 
 JBradstreet v. Bradstreet, 64—204. 
 
 9. After default and the appointment of an auditor to assess the 
 damages and the return of his report the defendant can not claim a 
 jury trial under R. S., 1857, c. 82. Gorham v. Hall, 57 — 58. 
 
 10. Public Laws of 1868, c. 151, § 6, providing that "the party 
 demanding a jury shall pay the jury fee, and tax the same in his 
 costs, if he prevail," is not in contravention of Art. I, § 20, of the con- 
 stitution of this State. Randall v. Kehlor, 60 — 37. 
 
 11. JiTEOEs AS Witnesses. The testimony of a juror will not be 
 received in support of a motion to set aside a verdict on the ground 
 of error, mistake, irregularity or misconduct of the jury or any of 
 them. Greeley v. Mansur, 64 — 211. State v. I^ike, 65 — 111. 
 
 12. When a witness who testified before the grand jury testifies 
 differently in the trial before the petit jury from what he did before 
 the grand jury, the grand jurors may be called to contradict him. 
 State V. Benner, 64—267. 
 
 See Fees, 2, p. 265. 
 
 Indictment, p. 289. 
 
JTJRT. 331 
 
 II. QUALIFICATION AND MISCONDUCT. 
 
 13. To be a sufficient ground for disqualifying a juror, in a criminal 
 case, the opinion formed by him must be fixed and unconditional. 
 State V. Kingsbury, 58 — 238. 
 
 14. When the defendants in a civil suit have been convicted on an 
 indictment for the same offence as that charged in the writ, a juror 
 who has signed a petition for the pardon of one of the defendants on 
 the ground that "he has been sufficiently punished," and who on being 
 interrogated in regard to the matter denies it, does not possess that 
 impartiality which the law requires in a juror, whether his denial is 
 from want of memory or otherwise. Ashury Ins. Co. v. Warren, 
 66—523. 
 
 15. Waivee. Upon the cross examination of the defendant it 
 appeared that he, being in attendance as a juror, conversed with sev- 
 eral of his associates in relation to his case prior to its coming on for 
 trial. The plaintiff went on and closed the trial, when a verdict was 
 found against him. Held, that the objection was waived. JSussey v. 
 Allen, 59—269. 
 
 16. Misconduct. During the term, and before the trial of the case, 
 the foreman of the jury spent the Sabbath at the defendant's house, 
 where the defendant showed him the glass, the subject matter of the 
 suit, and held conversation with him about it. While the case was 
 on trial the foreman gave to his associates the information thus 
 obtained. The verdict, being for defendant, was set aside. Mclntire 
 V. Hussey, 57 — 493. 
 
 17. When there is interference with jurymen during the pendency 
 of a cause, it is immaterial whether it is the result of design or of 
 ignorance. Bradbury v. Cony, 62 — 223. 
 
 18. The general principles applicable to interference by a party 
 with jurymen, while a cause is pending, are equally applicable to sim- 
 ilar interference by the friends or relatives of the party in whose aid 
 the interference is had, without his knowledge. lb. 
 
 19. It seems that if there has been improper interference with jury- 
 men, during the pendency of a cause, with the intention of influencing 
 their verdict, it is not necessary to show that the verdict was actually 
 influenced by such interference, in order to set it aside when in favor 
 of the party for whom the interference was made. lb. 
 
 20. The misconduct of jurors, where the parties to the suit are not 
 in fault, is no ground for a new trial, unless it is probable that the 
 party asking for it has been prejudiced by the irregularity. Clark v. 
 Lebanon, 63—393. 
 
 21. When an action against a town to recover damages for an 
 injury occasioned by a defective highway is on trial, it is gross mis- 
 conduct for a juryman to visit the place where the accident occurred, 
 to hold conversations with the inhabitants as to the condition of the 
 way, and make measurements of the same. Bowler v. Washingtony 
 62—302. 
 
 22. When a cause against a town is on trial, if one of its inhabi- 
 tants holds conversation with jurymen in relation to the merits of the 
 case, and calculated to influence their judgment, the town must be 
 held responsible for such misconduct and cannot retain a verdict. lb, 
 
 23. A paper found in the jury room after the jury have left it, upon 
 
332 JUSTICES OF THE PEACE AOT) TEIAIi JUSTICES. 
 
 ■which twelve different sums, ranging from nothing to several thou- 
 sand dollars, are set down and added together, and the amount divided 
 by twelve, the quotient being the precise sum, for which the verdict 
 was rendered, does not furnish sufEicient cause for setting aside the 
 verdict. Wllley v. Belfast, 61—570. 
 
 24. Jurors must decide cases upon such evidence as is produced 
 before them by the parties to the litigation, and not go in search of 
 evidence privately, or act upon evidence thus obtained. Winslow v. 
 Morrill, 68—362. 
 
 25. The Motion. Upon a motion to set aside a verdict, for the 
 misconduct of a juror, it is not necessary to report the whole evi- 
 dence. Bowler v. Washington, 62 — 302. 
 
 26. A motion to set aside a verdict because jurors held communi- 
 cations with a party, will not be heard when there is no specification 
 as to what jurors are thus charged, nor as to what was said or done 
 in the communications ; especially if the verdict is well sustained by 
 the evidence. Lennox v. Knox &• L. R. B. Co., 62 — 322. 
 
 See Peactice, 85, 93, 96, 100. 
 Vebdict. 
 
 JUSTICES OF THE PEACE AND TRIAL JUSTICES. 
 
 1. Teial Justice. The statute (R. S., 1871, c. 83_, § 25,) provid- 
 ing for the transcribing the records of a deceased trial justice upon 
 the records of another justice, and that no first execution shall issue 
 after one year from the time the judgment was rendered, except on 
 scire facias, means that the first execution issued by the transcribing 
 justice must be issued within one year from the time the judgment 
 was rendered, although the deceased magistrate may have issued a 
 first execution on the judgment. Brown v. J^oy, 61 — 564. 
 
 2. "When a trial justice is not present at the time when, and place 
 where, a writ issued by him is returnable, the continuance by another 
 justice as provided by R. S., 1871, c. 83, § 12, must be within the 
 office at which the writ is returnable. It cannot be outside the locked 
 door. Belcher v. Treat, 61 — 577. 
 
 8. If the justice, before whom the writ is made returnable, does 
 not attend at the time and place of trial, or within a reasonable time 
 after the designated hour, the suit fails, unless continued by some 
 other justice. Ih. 
 
 4. The ofiSces of trial justice and deputy sheriff are incompatible. 
 Stubbs V. Lee, 64^195. 
 
 5. One who accepts the office of deputy sheriff, thereby vacates 
 that of trial justice previously held by him. Ih. 
 
 6. Liability of Magisteate. A magistrate having jurisdiction 
 is not liable to a civil action for any act done in his judicial capacity. 
 
 Waterville v. Barton, 64 — 321. 
 
 6. The time when process to enforce a judgment shall issue is not 
 a matter of judicial discretion, and a magistrate issuing it prematurely 
 is liable in trespass. lb. 
 
LANDLORD AND TENANT. 333 
 
 7. The duties of a justice of the peace in taking a deposition, under 
 the statutes of this State, are judicial in their character. Call v. Pike, 
 66—350. 
 
 8. A justice of the peace who is a cousin of one of the parties is 
 not disinterested, and is disqualified from taking a deposition thereia. 
 Ih. 
 
 9. If he commits the deponent for contempt for refusing to testify, 
 he is liable in trespass. Ih. 
 
 10. Trial justices have no jueisdiction in case of a violation of the 
 law against nuisances, when the punishment may be a fine of one 
 thousand dollars or one year's imiOTSonment, (R. S., 1871, c. 17, §§ 1, 
 2,) except to cause the offender to recognize for appearance at a 
 higher court. They cannot pass sentence. State v. Pierre., 65 — 293. 
 
 11. Where a party relies upon a personal disqualification of the 
 magistrate to invalidate his official acts, the burden is upon such party 
 to establish it by proof, and not upon the magistrate to prove a neg- 
 ative. Gall V. Pike, 68—217. 
 
 12. The mittimus of a justice of the peace, reciting all the acts, 
 facts and circumstances which would amount to a contempt on the 
 part of a witness, refusing to give his deposition before such justice 
 in a pending case, is prima facie a justification for his commitment 
 to jail for such contempt, although it is not therein stated that such 
 justice was not interested, nor then nor previously counsel in the 
 cause. Ih. 
 
 13. Deposition. A justice of the peace may lawfully fine a recu- 
 sant witness, guilty of such contempt, not exceeding twenty dollars, 
 and commit him to the county jail until such fine and costs of com- 
 mitment are paid. Ih. 
 
 See Bastardy, 3, 4, p. 58. 
 
 LAKDLORD AND TEKANT. 
 I. THE RELATION. 
 
 (a) How CONSTITUTED. 
 
 (b) How TEEMINATBD. NOTICE TO (JTTIT. 
 
 (o) Eights and liabilities op the paeties geneballt. 
 IL THE LEASE. 
 III. ACTIONS FOR USE AND OCCUPATION. 
 
 I. THE RELATION. 
 
 (a) Sow constituted. 
 
 1. The bringing a suit for use and occupation tends to negative the 
 theory that the possession of the occupant was tortious and to prove 
 a tenancy. Vunningham v. Sorton, 57 — 420. 
 
 2. The father of the defendants, for several years preceding his 
 death, used a water power under a lease from the plaintiff, and the 
 defendants continued to use the power after their father's death in 
 
3Si4 LANDLOED AND TENANT. 
 
 the same manner that he had used it. Held, in the absence of testi- 
 mony to the contrary, that a jury might infer that the defendants 
 went into possession under the letting to their father, and kept it as 
 his successors or assignees, by permission of the plaintiff. Paqe v 
 McGlinch, 63^72. 
 
 3. N"or is the fact that the plaintiff commenced a suit to collect the 
 rent of the administrator of the father, entirely inconsistent with 
 the idea of an implied promise on the part of the sons to pay rent for 
 the time they were in occupation. lb. 
 
 4. One who goes into possession of a store under an agreement to 
 pay rent while he remains, the occupation to be for an uncertain and 
 indefinite time, becomes a tenant at will. Goodnow v. AUen, 
 68—308. 
 
 (b) Sow terminated. JVbtice to quit. 
 
 5. The thirty days' notice, to terminate a tenancy at will, is valid 
 when given by either party, if it expires upon a pay-day of rent. 
 Wilson V. Prescott, 62 — 115. 
 
 6. A notice by the landlord is valid if when the thirty days expires 
 any rent previously due remains unpaid, although the notice expires 
 between pay-days. lb. 
 
 7. Where a tenant at will of a wharf and store thereon, left upon 
 the wharf, after the expiration of a notice by him to terminate the 
 tenancy, a cargo of ashes, which it was not practicable to remove at 
 that time, it was held not to amount to a continued use of the prem- 
 ises, or waiver of the notice. Jb. 
 
 8. After the legal TEEiirN^ATiON of a tenancy by the landlord and 
 a peaceable entry by him, he may remove the tenant from the prem- 
 ises, using such force as will justify a plea of molliter manus impos- 
 uit, and if the tenant after reasonable opportunity neglects to remove 
 his goods, the landlord may remove them, with due care, to some near 
 and convenient place. Stearns v. Sampson, 59 — 568. 
 
 9. Lease foe Life. A lease of land, made to a person, "to hold 
 for the term of the life" of the lessee, and the life of her husband, 
 and of another person named, is not terminated by the death of the 
 lessee before that of the other persons named therein. Flagg v. 
 Badger, 58—258. 
 
 (c) Mights and liabilities of the parties generally. 
 
 10. Where by the terms of the lease the lessor retained a right of 
 occupation of the barn, for the storage of hay, he may maintain tres- 
 pass quare clausum against a stranger for entering and taking away 
 the hay. Jordan v. Staples, 57 — 353. 
 
 11. A TENANT AT WILL has no estate which is assignable. Bingley 
 T. Buffum, 57—381. 
 
 12. At the expiration of a tenancy, fixtures erected by the tenant 
 go to the landlord, unless the tenant, before surrendering possession, 
 has removed them. lb. 
 
 13. Removal of Fixtures. The right of removal is the right of 
 the tenant who erects the fixtures, not of a subsequent tenant. lb. 
 
 14. If the tenancy is at wiU or for an uncertain period, then ten- 
 
LAifDLOED AND TENANT. 335 
 
 ants not knowing when their rights will terminate, will have a'reason- 
 able time after such termination to remove fixtures erected by them. 
 Sullivan v. Carberry, 67 — 530. 
 
 15. If the tenant in such case does not remove his fixtures within a 
 reasonable time after his rights in the premises have been terminated, 
 he can not hold the landlord as a trespasser for taking possession of 
 them. lb. 
 
 16. If a landlord, without determining a tenancy at will, forcibly 
 enter upon the demised premises ten days after rent-day, and hold 
 them against the tenant, he thereby becomes a trespasser. Cunning- 
 ham, V. Horton, 57 — 420. 
 
 17. When a tenancy has been legally terminated by the landlord, 
 he may peacefully enter the premises, whether he conceal or disclose 
 his intention in entering to be for the purpose of removing the tenant. 
 Stearns v. Sampson, 69 — 568. 
 
 18. An allegation of an assault with force and arms upon the 
 female plaintiff is not sustained by evidence that the defendant, a 
 landlord, a reasonable time after legally terminating the plaintiff's 
 tenancy, peaceably entered the premises, requested the plaintiffs to 
 quit and remove their furniture, and upon their refusal, burst open an 
 inner door wrongfully fastened, took out doors and windows on a 
 cold day, brought a blood hound into the house and made a great 
 noise in the premises for several days. lb. 
 
 19. If a tenant, when he quits the premises, leaves them in an 
 untenantable condition he is liable for the injury in a special action 
 adapted to the facts of the case. Wilson v. Prescott, 62 — 115. 
 
 20. A tenant at will may maintain trespass quare clausum against 
 his landlord for a forcible entry upon him before the tenancy is ter- 
 minated. Marden v. Jordan, 65 — 9. 
 
 21. The objection that trespass quare clausum will not lie by a 
 mortgager against a mortgagee is not maintainable when the mort- 
 gager is in possession under such an agreement as creates the relation 
 of landlord and tenant between them. lb. 
 
 22. Liability oi' Ownek. Under R. S., c. 14, § 16, the "owner" 
 of land is liable for the expenses of removing a nuisance therefrom, 
 although a tenant for a term of years caused the nuisance, and con- 
 tinued to be the "occupant" of the premises under his lease when the 
 nuisance was removed. [Walton, Babeows, and Danfoeth, J. J., 
 dissenting.] Bangor v. Bowe, 57 — 436. 
 
 23. If a tenant hires the lower portion of a building, the landlord 
 retaining the possession and care of the upper portion, and the land- 
 lord does not exercise common care and prudence in the management 
 of that portion of the building which is under his especial supervision 
 he becomes liable to the tenant for damages sustained on that account. 
 Toole V. BecMtt, 67 — 544. See also Simonton v. Boring, 68 — 164. 
 
 24. The plaintiff hired the lower portion of a building of the 
 defendant, the upper portion remaining in the possession and care of 
 the defendant. Through the neglect of the defendant in the care 
 of the roof a quantity of rain came through and injured the goods of 
 the plaintiff. Held, that the defendant was liable for the damage. lb. 
 
 25. There seems to be no case where the owner of real estate has 
 been exonerated from the consequences of his neglect to keep the 
 
336 I,AOT)LOED AND TENAJra. 
 
 access to a place of business reasonably safe, because the property 
 may be in possession of his tenant. Campbell v. Portland Sugar 
 Co., 62—552. 
 
 26. When, by verbal agreement, premises are let by the month, for 
 a specified rent to be paid monthly, and at the same time and as a 
 part of the contract, the landlord agrees to make certain repairs, the 
 agreement to make the repairs is not binding upon the landlord, 
 although the hirer occupies the premises, pays the rent, and an injury 
 results from the neglect of the landlord to make the repairs. G'Leary 
 V. Delaney, 63—584. See Post, 29. 
 
 II. THE LEASE. 
 
 27. The plaintiffs, being tenants at will of a store under the defend- 
 ants, mortgaged to them a building, annexed to and connected with 
 the store, which was owned by the plaintiffs as personal property ; 
 held, that a description of the mortgaged property as "a building and 
 appurtenances," would not have the effect to surrender or transfer to 
 the defendants the right which the plaintiffs had to occupy the store. 
 Goodenow v. Allen, 68 — 308. 
 
 28. The plaintiff leased a farm for the term of one year, the lessee 
 to pay therefor "one-half of all the proceeds raised or grown thereon, 
 and to cut and put into the barn all the hay." The lessor was to fur- 
 nish all the grass seed, "to have the right to cut off the stock in the 
 winter to the amount of hay that the place may furnish for their 
 keeping, to furnish all the hay, if any is wanting to keep out the 
 stock, and if any hay is left, the lessor to have the same." Held, that 
 the hay was not included in the "proceeds," and all belonged to the 
 lessor. Jordan v. Staples, 57 — 352. 
 
 29. The owner of a building leased an upper story for the term of 
 ninety-nine years, covenanting that he, his executors and assigns 
 would keep in good repair the outside of the building, and that the 
 covenants, grants and conditions therein contained should be binding 
 on the respective parties and their legal representatives. Subse- 
 quently, the lessee assigned the lease to the plaintiff, and afterward 
 the lessor conveyed the building, subject to all his liabilities to the 
 lessee for the hall, to the defendant. The plaintiff, after notice to the 
 defendant to make necessary repairs, and neglect on his part, made 
 them, and brought assumpsit for the cost of the same. Held, that the 
 action was maintainable. Rising Sun Lodge v. Buck, 58 — 426. 
 
 30. Where a lessor covenants that, in connection with the demised 
 premises, and without any additional rent, the lessee may occupy and 
 improve an adjacent lot for a specified purpose, excepting only such 
 portions as the lessor may sell or use for building, which sale or use 
 is to terminate the tenant's right to such additional privilege, the 
 tenant's possession of the adjacent lot, if it has been taken for the 
 purpose specified, is sufficient to enable him to maintain trespass 
 quare clausum against the lessor for an entry thereon for a purpose 
 not mentioned in the lease and against the will of the lessee. Bryant 
 V. Sparrow, 62 — 546. 
 
 31. To CoNTiisnTE AT THE Will of the Lessee. The plaintiff 
 leased a building to the defendant "for five years and as much longer 
 as he desired," at a specified rate per year. The defendant regularly 
 paid his rent, and occupied the building during the five years, and for 
 
LANDLOED AND TENANT. 337 
 
 several years thereafter, when the plaintiff gave him a written notice 
 to quit, and upon his refusal, brought process of forcible entry and 
 detainer. Held, that, as between the parties, the plaintiff was 
 estopped by his agreement from maintaining the process, and that if 
 the defendant paid the rent he was entitled to possession of the build- 
 ing as long as he desired. Sweetser v. McKenney, 65 — 225. 
 
 32. A written instrument, under seal, after leasing certain premises 
 therein described, at a specified rent, for one year, contained these 
 words : "we further agree to lease to said Young said premises . . . 
 at the price and conditions named, so long as he wishes to occupy the 
 same, the said Young agreeing to take good care of the premises, and 
 not suffer them to go to waste more than the natural use of the same." 
 Held, (1) not merely an agreement for a lease, but a lease after the 
 expiration of the tenancy ; (2) that the remaining in possession by 
 the tenant after the expiration of the year was an election to continue 
 the tenancy, and (3) that the tenant had the right to remain upon the 
 conditions named in the lease as long as he wished to occupy the 
 premises. Holley v. Young, 66 — 520. 
 
 33. An instrument under seal was given by a married woman to 
 her husband, running as follows : "I hereby sell, transfer, and make 
 over to him all the wood . . . now standing and growing upon all 
 the wild lands I have and hold in the county of Washington, together 
 with the grass, cranberries, blueberries, and all other fruit, if any 
 which may be found or grown thereon for the space of ten years from 
 the date hereof . . . giving him and his assigns full power and author- 
 ity to enter said lands for the purpose of enjoying the property herein 
 sold and conveyed, and to control and manage the same as he may 
 see fit." Held, that in addition to an executory sale of the blueberries 
 which might be grown upon the land, the writing amounted to a lease 
 of the land, giving the husband a sufficient estate for the growing and 
 supporting of the successive annual yields of berries thereon, and the 
 title to them. Freeman v. Underwood, 66 — 229. 
 
 34. Verbal Lbase. A verbal lease of land is not only sufficient to 
 establish the relation of landlord and tenant but as to the amount o f 
 rent, and the times when it shall become payable is binding upon the 
 parties. Cameron v. Little, 62 — 550. 
 
 III. ACTIONS FOE USE AND OCCUPATION. 
 
 35. When a person occupies real estate under a contract for the 
 purchase of it, which is ultimately carried into effect, and there is no 
 express promise on the part of the purchaser to pay rent, an action 
 for use and occupation cannot be maintained. Dennett v. Penobscot 
 Fair Ground Co., 57 — 425. 
 
 36. The defendant conveyed to the plaintiff a farm by deed, condi- 
 tioned, that unless the plaintiff should pay certain notes, the deed 
 should be void. The notes not being paid at maturity, the defendant 
 took possession of the farm and leased it. Subsequently the plaintiff 
 paid the notes and entered into possession of the farm. Held, that 
 the plaintiff could not recover for the rent received by defendant, or 
 for use and occupation. Bartlette v. Jones, 60 — 246. 
 
 37. In an action for use and occupation, in which the defendant is 
 shown to have been in possession of the premises, and the title 
 
 22 
 
338 LAl^TDLOED ANB TBNAJ>fT — LABCBNT. 
 
 is in the plaintiff, the correct doctrine seems to be, that a contract 
 may be implied as long as it is left to mere implication to determine 
 whether the occupation was with or without the assent of the owner. 
 Page v. McGlinch, 63—472. 
 
 38. "When, under a tenancy of any nature, it is agreed that the rent 
 shall be paid at regular stated periods, and the landlord voluntarily 
 terminates the tenancy between such periods, he can recover nothing 
 for the occupation after the last regular rent day. Cameron v. Lit- 
 tle, 62—550. 
 
 39. A tenant who remains in possession after the termination of 
 the lease is liable for rent. Bonney v. Foss, 62 — 248. 
 
 40. Estoppel. A tenant at will who gives his landlord thirty days 
 notice to terminate the tenancy, stating that he shall surrender the 
 premises on the day specified for its termination, but who does not, 
 in fact, surrender the premises and afterwards remains in possession, 
 claiming title thereto, is estopped to deny the title of his landlord. 
 Longfellow v. Longfellow, 61^590. 
 
 41. The doctrine of estoppel, such as exists by the relation of land- 
 lord and tenant, applies to a building situated upon leased land. Ry- 
 der V. Mansel, 66—167. 
 
 42. Although a tenant without a surrender or eviction, or some- 
 thing equivalent thereto, can not show that the title of his landlord 
 was not a valid one when he entered under him, he can show that 
 such valid title has been legally extinguished or determined, so that 
 it no longer exists. Lb. 
 
 43. Where the building hired is situated upon leased land, so that 
 the rightful possessor of the house becomes entitled to use and enjoy 
 the possession of the soil, and the tenant, after going into possession 
 under a verbal lease from the owner of the house, upon which there 
 is an outstanding mortgage, purchases the mortgage upon his own 
 account, and forecloses it as one upon personal property, he may, 
 without surrendering possession, show these facts and will not be liar 
 ble for rent after his title becomes absolute by foreclosure, nor can the 
 landlord after that time, evict him by process of forcible entry and 
 detainer. Lb. 
 
 LARCElfT. 
 
 l.'The allegation in one count of the larceny of several articles at 
 the same time and place does not render the indictment bad for 
 duplicity. iState v. Stevens, 62 — 284. 
 
 2. An indictment for the larceny of bank bills, describing the 
 number, denomination of the bills stolen, and the value of each, need 
 not set forth the names of the banks by which they are issued, or 
 assert their genuineness. Lb. 
 
 8. It is not competent for a person on trial for larceny to introduce 
 evidence of his declarations, made after the property came into his 
 possession, that he obtained it by finding. State v. Pettis, 63—124. 
 
 4. In a complaint for larceny the allegation of ownership is sustain- 
 ed by proof that the person named had the goods in his possession 
 by loan from or contract for purchase with the owner. Lb. 
 
LAW AND EACT. 339 
 
 5. An indictment alleging that the defendant "feloniously did steal, 
 take and carry away, against the peace of the State, and contrary to the 
 form of the statute in such case made and provided" certain described 
 property, "of the goods and chattels" of a person named is sufficient. 
 State V. Leavitt, 66 — 440. 
 
 See Embezzlement, p. 195. 
 
 LAW AND FACT. 
 
 I. WHAT ARE QUESTIONS OF LAW. 
 II. WHAT ARE QUESTIONS OF FACT. 
 
 I. WHAT ARE QUESTIONS OF LAW. 
 
 1. When there is no dispute as to the precise spot on the face of 
 the earth where an alleged crime was committed, and it ajDpears by 
 ancient charters, legislative enactments, and judicial records, that the 
 political authorities and courts have heretofore claimed and exercised 
 jurisdiction over the locality in question, the question of jurisdiction 
 18 one for the court and not for the jury. State v. Wagner, 61 — 178. 
 
 2. When a domestic judgment is put in issue it is to be tried by 
 the court, notwithstanding it is a question of fact. Sawyer v. Garce- 
 lon, 63—25. 
 
 3. Fraud. When there is no evidence tending to show fraud, the 
 court may decline to submit that question to the jury. Jones v. 
 £urnham, 67 — 93. 
 
 4. Negligence. When the facts are clear and unequivocal, and 
 there is no question of motive or intent to be judged of, and no 
 attendant circumstances or exigencies to be weighed, what consti- 
 tutes negligence is a question of law. Kellogg v. Curtis, 65 — 59. 
 Grows V. Maine Central R. B. Co., 67 — 100. 
 
 5. Whether an ordinance or by-law of a town is reasonable or not 
 is a question of law for the court. Jones v. Sanford, 66 — 585. 
 
 6. The court, will however exercise with caution its power to declare 
 such by-law invalid. lb. 
 
 7. What is a eeasonable time is a question of law. Portland v. 
 Water Company, 67 — 135. 
 
 8. Whether there is any evidence in support of an action is a ques- 
 tion of law. Hazen v. Jones, 68 — 343. 
 
 9. On the trial of the respondent for sending to the complainant a 
 threatening letter of the following tenor, "Freeport, Sept 31 you may 
 if you pleas you can enclose ten dollers in an letter and cend it to 
 Joseph Boothby Yarmouth me or els you will be enbited next tuesday 
 or complained of me no fool demacratt head quarters," the presiding 
 judge ruled as a matter of law upon the interpretation to be given the 
 letter. Held, correct. State v. Patterson, 68 — 472. 
 
 10. Whether an alteeation of an instrument is material or not is 
 a question of law for the court. Belfast Bank v. Uarriman, 68 — 522. 
 
 See Negligence. 
 
340 LAW AND PACT. 
 
 II. WHAT AEE QUESTIOKS OF FACT. 
 
 11. The question of the ebasoktable trsE of the water by a mill 
 owner is for the jury. Phillips v. Sherman, 64 — 171. 
 
 12. Where a question as to the ownership of personal property 
 depends upon oral as well as written evidence, the decision of it is 
 properly left to the Jury. Boody v. Goddard, 57 — 602. 
 
 13. Verbal Conteacts. While it is a general rule that the terms 
 of a verbal contract are to be settled by the jury, the law will infer 
 certain elements as growing out of particular contracts, or impose 
 specific duties in connection with them, although the contract is verbal 
 and nothing is said in relation to the elements or duties. SaUou v. 
 Prescott, 64—305. 
 
 14. Sale. When a seller verbally proposes to sell his goods at cost, 
 and at the same time names a price as the cost, and the proposition is 
 acceded to by the purchaser, whether the transaction amounts to a 
 sale at the price stated by the seller as the cost, or is a sale at the real 
 cost to the seller, although a sum different from the price named, is to 
 be determined by the jury, not by the court. Willard v. Mandall, 
 65—81. 
 
 15. Libel. In a prosecution for libel the defendant has the right 
 to have the jury determine whether or not the publication is libelous. 
 But he may waive this privilege. State v. Goold, 62 — 509. 
 
 16. In an action for a libel, if the alleged libelous publication does 
 not name the plaintiff, the jury are to determine whether he was the 
 person intended in it. Powers v. Cary, 64 — 9. 
 
 17. In an action for a libelous publication, while it may be the duty 
 of the judge to say whether the publication is capable of the meaning 
 ascribed to it by the plaintiff when he has done that, whether that 
 meaning is the true one, and if not what the true meaning is, is to be 
 left to the jury. lb. 
 
 18. Delivery. When the question at issue is, whether goods pur- 
 chased by one who, at the time of the purchase, does not disclose to 
 the seller the name of any purchaser except himself, were actually 
 purchased for himself, or for an undisclosed principal, it is erroneous 
 for the presiding judge to instruct the jury that a delivery of the 
 goods by the seller to a carrier directed to the apparent purchaser 
 was a delivery to him, for this decides the question of fact which 
 should be submitted to the jury. State v. Intoxicating Liquors, 63 
 —121. 
 
 19. Judgments. When a foreign judgment is put in issue, it is to 
 be tried by the jury. Sawyer v. Garcelon, 63 — 25. 
 
 20. When the record of a judgment is introduced in evidence, the 
 force, effect, and inferences to be drawn from the facts established by 
 it are for the jury. State v. Gorham, 67 — 247. 
 
 21. Negligence. Whether a person, injured by a locomotive at a 
 railroad crossing, was or not, at the time of the collision, in the exer- 
 cise of ordinary care, is a question for the jury to determine from the 
 evidence, under proper instructions. Webb v. P. db K. JR. H. Co., 
 57—117. 
 
 22. The SFEPiciENCT of the evidence in support of an action is a 
 question of fact. JTazen v. Jones, 68 — 343. 
 
LIBEL AND SLANDER. 341 
 
 LIBEL AND SLANDER. 
 
 I. ACTIONABLE WORDS. SPECIAL ALLEGATIONS. 
 II. EVIDENCE, PRACTICE, ETC. 
 
 I. ACTIONABLE WORDS. SPECIAL ALLEGATIONS. 
 
 1. In an action of slander, where the words "you swore to a lie, and 
 I can prove it," are relied on as imputing to the plaintiff the crime of 
 perjury, there must be an averment in the declaration that the words 
 were spoken with reference to some proceeding before some specified 
 court, tribunal, or officer created by law, or in relation to some spec- 
 ified matter or thing where an oath is authorized by law ; and the 
 allegation must be supported by proof or the action is not maintain- 
 able. Small V. Clewley, 60 — 262. 
 
 2. In such case the general averment, that the defendant intended 
 thereby to charge the plaintiff with the crime of perjury is not suffi- 
 cient, lb. 
 
 3. An allegation "you have committed the crime of perjury," when 
 supported by proof, will sustain an action of slander. lb. 
 
 4. No action can be maintained for words spoken of a person with 
 reference to his occupation, unless the declaration contain a distinct 
 averment that they were spoken of and concerning him, and of and 
 concerning his occupation. Powers v. Gary, 64 — 9. 
 
 5. There is a well settled distinction between written or printed 
 and verbal slander in respect to its actionable character. Much, which 
 if spoken, would not be actionable without averment of extrinsic 
 facts or allegation and proof of special damage, when written or 
 printed is in itself a substantial cause of action. Tillson v. Hobbins, 
 68—295. 
 
 6. In an action for written or printed slander, though no special 
 damage is alleged, and no averment of such extrinsic facts as might 
 be requisite to make the article published import a charge of crime 
 against the plaintiff are made, the action is nevertheless maintainable 
 if the published matter is such as, if believed, would naturally tend 
 to expose the plaintiff to public hatred, contempt or ridicule, or 
 deprive him of the benefits of public confidence and social intercourse. 
 lb. 
 
 7. A publication, "The Hurricane Vote. Again we have to chron- 
 icle most atrocious corruption, intimidation and fraud in the Hurricane 
 island vote, for which Davis Tillson is, without doubt, responsible, as 
 he was last year," is actionable without extrinsic averments to com- 
 municate its precise import, and without any allegation of special 
 damage. lb. 
 
 8. In the absence of special averments it is presumed that the 
 words alleged to be actionable were used in their ordinary and popu- 
 lar sense. Wing v. Wing, 66 — 62. 
 
 9. All the words spoken, so far as is necessary to ascertain the 
 meaning of the person who utters them, must be considered together. 
 The sense of actionable words may be so far qualified by subsequent 
 words spoken in the same connection that the words taken together 
 are not actionable. lb. 
 
342 LIBEL AND SLAISTDEE. 
 
 10. The words "A. W. stole windows from B. J.'s house," do not 
 impute the crime of larceny, but amount to the accusation of a tres- 
 pass upon real estate only. lb. 
 
 11. Words can not be regarded, upon demurrer to the declaration, 
 as actionable unless they can be interpreted as such with at least 
 reasonable certainty. lb. 
 
 12. In case of uncertainty as to the meaning of the expressions of 
 which the plaintiff complains, he must make the meaning certain by 
 means of proper colloquium and averment. lb. 
 
 13. A statement in a libelous article that the writer had been 
 informed that the plaintiff was "arrested for drunkenness," is not an 
 assertion that he was in fact drunk, but only that he was arrested 
 upon a charge of drunkenness. Stacy v. Portland Publishing Co., 68 
 —279. 
 
 14. The additional words of the article : "A ten dollar note quieted 
 the affair," is, at most, a statement that the charge subsided or the 
 arrest was abandoned for the sum named. lb, 
 
 II. EVIDENCE, PRACTICE, ETC. 
 
 15. Damages. In cases of slander it is proper for the presiding 
 judge to instruct the jury that in the assessment of the damages they 
 may take into consideration the wealth of the defendant. Stanwood 
 Y. Whitmore, 63—209. 
 
 16. In such case the wealth of the defendant should be proved by 
 general reputation rather than by particular facts. lb. 
 
 17. In an action for a libelous publication, evidence of the general 
 character of the plaintiff is to be considered upon the question of 
 damages only. Powers v. Gary, 64 — 9. 
 
 18. Where the declaration, in an action for a libel, sets forth a 
 publication libelous in itself, but there is no imputation of professional 
 or oiRcial misconduct, and there is no averment concerning the occu- 
 pation of the plaintiff, an allegation that the libel was published of and 
 concerning the plaintiff in his capacity as counselor at law and col- 
 lector of customs, does not authorize the jury to consider the occupar 
 tion of the plaintiff in the assessment of damages. lb. 
 
 19. A defendant in a libel suit may justify as to a part of the libel 
 without justifying all of it, for the purpose of reducing the damages. 
 Stacy V. Portland Pub. Co., 68—279. 
 
 20. Punitive damages are not recoverable in a libel suit where aU 
 the actual damages sustained are merely nominal. lb. 
 
 21. Evidence. It seems that in an action for a libelous publication 
 evidence of general reports that the plaintiff was guilty of the imputed 
 offence is not admissible, either in justification or mitigation. Powers 
 v. Gary, 64 — 9. 
 
 22. The PRESUMPTION of malice arising from the publication of a 
 charge which if false is libelous is not rebutted by proof that the pub- 
 lisher had reason to believe the truth of the charges made. lb. 
 
 23. Evidence that the publisher had heard reports in relation to the 
 plaintiff similar to the one published is not admissible. lb. 
 
 24. The question of malice upon the part of the writer (who was 
 not the publisher) of a libelous article is immaterial. lb. 
 
LICENSE — LIEK. 343 
 
 25. The plaintiff is not obliged to read the entire article or publi- 
 cation, but only enough to make out his case; The defendant may- 
 read the whole if he wishes. Ih. 
 
 26. In actions for slander, testimony of facts occurring more than 
 two years before the commencement of the action are admissible to 
 prove malice, though the statute of limitations is pleaded. Harmon 
 V. Harmon^ 61 — 233. 
 
 27. In an action of slander for charging one with adultery, a pre- 
 ponderance of testimony will support a plea of justification. Ellis v. 
 Buzzell, 60—209. 
 
 28. Power qts Juey. In a prosecution for libel the respondent has 
 the right to have the jury determine whether the publication is libel- 
 ous, and an instruction that it it is their duty to follow the direction 
 of the court upon that point is erroneous. State v. Goold, 62 — 509. 
 
 29. But if on the trial the defendant expressly admits that the 
 publication was a libel, and claims the right to go to the jury upon the 
 question of malice only, he waives the privilege, and can not be 
 aggrieved by a ruling that it is a libel. lb. 
 
 30. The proper course is for the presiding judge to define to the 
 jury what a libel is, and then leave it to them to determine whether 
 or not the publication comes within that definition. lb. 
 
 LICENSE. 
 
 License to cut wood and timber may be inferred from circum- 
 stances. Harmon v. Harmon., 61 — 222. 
 
 LIEN. 
 
 I. GENERALLY. 
 II. DISCHARGE. 
 III. PROCEEDINGS TO ENFORCE A LIEN. 
 
 (a) Generally. 
 
 (b) To ENPOBCE A LABOBBE'S LIEN ON LOGS. 
 
 (c) On vessels. 
 
 (d) On buildings. 
 
 I. GENERALLY. 
 
 1. At common law, a vendee of goods has a lien thereon, so long 
 as they remain in his possession unpaid for according to the terms of 
 the sale. Milliken v. Warren, 57 — 46. 
 
 2. If the vendee gives his negotiable promissory note, payable on 
 time, for the purchase-money, and then becomes insolvent while the 
 goods yet continue in the possession of the vender, the latter may 
 retain them until the price be paid, provided the note remains unne- 
 gotiated in his possession, so that it may be surrendered on discharge 
 of the lien. lb. 
 
344 LIEN. 
 
 3. A person taking a lien upon lumber to secure advances "until 
 the same is finally marketed and payment received therefor," is not 
 authorized to manufacture the lumber at the risk of the general 
 owner, and to account only for the net proceeds, provided they do 
 not amount to the market value of the lumber at the tinje possession 
 was taken under the contract. Boody v. Goddard, bl — 602. 
 
 4. Logs. The statute lien on logs, R. S., 1871, c. 91, § 34, takes 
 the precedence of a prior mortgage. Oliver v. Woodman, 66 — 54. 
 
 5. Animals. In a town where there is no pound or pound keeper, 
 one who finds cattle upon his premises damage feasant, owner un- 
 known, may put and keep them in his own barn, and when they are 
 thus impounded, he has a lien upon them for the expense of keeping 
 them. Mosher v. Jewett, 68 — 84. 
 
 6. The act (1873, c. 125,) giving a lien to one who "pastures, feeds, 
 or shelters animals by virtue of a contract with, or by consent of the 
 owner," gives a lien to those who keep, after its passage, animals 
 under a contract previously entered into ; the rights of third persons 
 not being affected. Allen v. Ham,, 63—532. 
 
 7. The lien created by R. S., c. 75, § 11, can be enforced only "by 
 suit and attachment of the share within two years after administrar 
 tion granted" on the estate from which the share descends. Fender- 
 son V. Belcher, 68 — 59. 
 
 See CoEPOEATiox, 48, p. 531. 
 Paetneeship, 11. 
 
 II. DISCHARGE. 
 
 10. An attorney's lien is not defeated by payment of the execution 
 to the judgment creditor by the debtor, without the consent of the 
 attorney. McKenzie v. Wardwell, 61 — 136. 
 
 11. Loss OF Possession. If a bailee voluntarily parts with the 
 possession the presumption is that he has waived or abandoned his 
 lien, unless his conduct in so doing is satisfactorily explained. Rob- 
 inson V. Larrahee, 63 — 116. 
 
 12. When the bailee has lost his lien by parting with the posses- 
 sion of the goods, the forfeiture is not waived by a subsequent agree- 
 ment by which he resumes the possession, unless such is the intention 
 of the parties. lb. 
 
 13. The lien created by a pledge can be maintained only by a con- 
 tinued exclusive possession of the property. Collins v. Buck, 63 — 
 459. 
 
 14. Effect. If a plaintiff, having property of a third person in 
 his hands, subject to a lien in his favor, delivers the property to the 
 defendant, taking his note to secure the same claim, the note takes 
 the place of the property for which it is given, and when the lien is 
 discharged, the note becomes the property of the third person, and 
 the plaintiff cannot enforce it for his own benefit. Bean v. Bolliff, 
 67—228. 
 
 15. When the claim for which a creditor has a lien on logs is paid 
 in full by the debtor, the creditor's lien is thereby discharged, and a 
 subsequent transfer of his interests will convey no rights. Kennedy 
 V. Jones, 67—538. 
 
 16. The fact that the debtor had made a contract with a third per- 
 son for the sale of the logs and the repayment to him, of the amount 
 
HEN. 345 
 
 paid to extinguish the lien, and that the third person refuses to repay 
 the amount as agreed, will not enable the creditor to assert a claim 
 discharged by the party whose duty it was to discharge it. Ih. 
 
 17. Conditional Payment. One having a lien upon logs for 
 stumpage, does not discharge it by taking, from the general owner, 
 the negotiable notes of a third person, upon the express condition 
 that the notes should not be regarded as payment of the stumpage, 
 until paid. Prentiss v. Garland, 67 — 345. 
 
 18. Nor does the conditional payment become absolute by a condi- 
 tional compromise with the maker, this last condition not becoming 
 absolute. lb. Post, 31. 
 
 III. PROCEEDINGS TO ENFORCE A LIEN. 
 
 (a) Genbballt. 
 
 (b) To BNFOBCE A LABOBBK'S LIEN ON LOGS. 
 
 (c) On vessels. 
 
 (d) On buildings. 
 
 (a) Generally. 
 
 19. If the judgment to enforce a lien-claim, includes a non-lien item, 
 the lien is thereby lost. First National Bank v. Redman., 57 — 405. 
 
 20. A petition for process to enforce the lien given by statute 
 (1872, c. 27, 1873, c. 125) to any person who may keep animals with 
 the consent of the owner, is not rendered invalid because it claims a 
 lien for items for which no lien is given. Allen v. Ham, 63 — 532. 
 
 21. Under the act giving a lien to any person who pastures, feeds, 
 or shelters animals with the consent of the owner, to be enforced by 
 petition for process, briefly setting forth the nature and amount of 
 the claim, a description of the animal, and the name and residence of 
 the owner, an allegation in the petition that the petitioner "kept" the 
 animals is sufiicient, without the use of the words "pasture, feed or 
 shelter." Ih. 
 
 22. ExBcrTiON. Under R. S., 1871, c. 91, § 19, providing that 
 "the court may issue an order to the attaching officer to sell" property 
 upon which the plaintiff has been adjudged to have a lien, it is not 
 within the discretion of the court whether the order shall issue or not, 
 hut the order is one consequent upon the judgment and a necessary 
 consequence thereof. Low v. Dunham, 61 — 566. 
 
 (b) Proceedings to enforce a lahorerh lien on logs. 
 
 23. Notice. To establish a valid lien judgment in rem, it is indis- 
 pensable that a general notice, such as would be good against the 
 world, be given. Sheridan v. Ireland, 61 — 486. Timony v. Timony, 
 63 — 564. 
 
 24. When a party is seeking to enforce a lien upon logs or lumber, 
 for the debt of one not the owner, the requirement of R. S., 1871, 
 c. 91, § 35, in regard to notice to the owner, can not be dispensed 
 with, although there may be an appearance on the docket of persons 
 claiming to be owners. Sheridan v. Ireland, 61 — 486. Parks v. 
 Crockett, 61 — 489. 
 
 25. In a suit to enforce a lien upon logs or lumber, for a debt of 
 one not the owner, the notice required by R. S., 1871, c. 91, § 35, 
 
346 LIEN. 
 
 must always be a public notice as well as a specific notice to the par- 
 ties supposed to be tbe owners. Sheridan v. Ireland, 61 — 486. 
 
 26. Demuebee. In an action against one not the owner, to enforce 
 a lien upon logs, the general owner may demur to the plaintiff's writ 
 and declaration as insufficient to establish such lien. Parks v 
 Crockett, 61—489. 
 
 27. A DECLAEATiosr containing two counts, one upon an account 
 annexed, the account being "to sixty-eight days labor in the woods," 
 the other upon a note given for labor in the woods, and driving on tbe 
 logs specified, followed by a claim on the part of the plaintiff of a lien 
 on the logs for personal services in driving them at specified places, 
 and an allegation that the action was brought to enforce the lien, was 
 held sufficient. lb. 
 
 28. The writ will be deemed insufficient if one count therein con- 
 tains a claim in personam, and another count a different claim in 
 rem. Ih. 
 
 29. The clause in R. S., c. 91, § 35, taken from Acts of 1862, c. 
 131, which provides that in a lien action the forms and proceedings 
 shall be the same as in ordinary actions of assumpsit, is to be con- 
 strued as permissive and not mandatory ; so that the word "shall," 
 contained therein, will be construed as meaning "may." Ih. 
 
 80. A lien claim can be preserved in no form of proceeding with- 
 out notice to log owners, the necessity of which under the statute of 
 1855 was not abrogated by the Acts of 1862, c. 131. Ih. 
 
 81. Under the act of 1862, (R. S., 1871, c. 91, § 36) if the plaintiff, 
 in a suit to enforce a lien, against one not the owner, fails to obtain a 
 valid judgment in rem, but takes instead a judgment in the common 
 form, the lien is not extinguished and lost, but may still be made 
 effectual by proof of the necessary facts in ulterior proceedings. Ih. 
 
 32. In a writ to enforce a laborer's lien on logs it is not necessary 
 to allege affirmatively that the lien has not been lost by lapse of time. 
 Oetchell v. Gooden, 63 — 568. 
 
 33. The statute lien on logs (R. S., 1871, c. 91, § 34) takes prece- 
 dence of a prior mortgage. Oliver v. Woodman, 66 — 54. 
 
 34. The action to enforce a lien on logs must be brought against the 
 employer who hired the plaintiff, and not against the owner when not 
 employer, and with whom there was no contract. lb. 
 
 35. The fact of several ownership is no obstruction to the lien, 
 which attaches to all the logs which the laborer is employed to, and 
 actually does drive, but not to them all indiscriminately. lb. 
 
 86. Judgment. When the plaintiff's claim is against one person 
 for driving several lots of logs, by contract, the judgment in perso- 
 nam, against such person should be for the amount due for driving 
 them all. lb. 
 
 37. But the judgment in rem is to be apportioned upon the logs of 
 the several owners according to their respective interests. lb. 
 
 38. Destination. In the case of logs driven into the Penobscot 
 boom on Penobscot river, "the place of destination for sale or manu- 
 facture" of such logs, (R. S., 1871, c. 91, § 34,) is the Penobscot 
 boom. Sheridan v. Ireland, 66 — 65. 
 
 39. When the logs do not all arrive at the boom at the same time, 
 
LIEN. 347 
 
 the lien continues until the expiration of sixty days from the time the 
 last logs of the "drive" arrive at the boom. lb. 
 
 40. It seems that if a portion of the logs are driven to their place 
 of destination, and the remainder left behind, and the driving aban- 
 doned until the next season, the driving, so far as the logs then in 
 the boom is concerned, is so far completed that the sixty days will 
 thenceforward begin to run. lb. 
 
 41. Variance. Where a lien is claimed on logs of a specified 
 mark, and it is admitted that the plaintiff performed no labor upon 
 logs marked with all the characters stated in the writ, the variance is 
 fatal to the claim. Stuart v. Morrison, 67 — 549. 
 
 (c) On vessels. 
 
 42. The writ for enforcing a laborer's lien on a vessel need not 
 allege whether the labor was done before or after the vessel was 
 launched. Mc Cabe v. McRea, 58 — 95. 
 
 43. In an action to enforce a laborer's lien upon a vessel, brought 
 against one who contracted with the owner, the default of the 
 defendant is not evidence against the owner of the amount of the 
 lien. The amount is to be determined by a jury, or if a jury is 
 waived, by the court on hearing, or on report of an auditor. lb. 
 
 44. It is no defense to an action to enforce such lien that the 
 officer making the attachment took a receiptor. lb. 
 
 45. If the owner of a vessel would avoid a laborer's lien he must 
 show that the laborer has knowingly waived or surrendered it. lb. 
 
 46. Upon a judgment recovered for the amount decided to be a 
 lien in any suit on which a vessel was attached, the order to the 
 attaching officer to sell it at auction, etc., is one consequent upon the 
 judgment and a necessary sequence thereof. It follows the judgment 
 as a matter of course, as the execution does. Xow v. Dunham, 
 61—566. 
 
 47. An OATH that the plaintiff in his belief had a lien for the 
 amount of his claim, is sufficient where the statute requires an oath 
 of his belief that he has a lien for the whole or a part thereof. Dyer 
 V. Brackett and Schooner Daniel Webster, 61 — 587. 
 
 See Frauds, Statute of, p. 278. 
 
 (d) On buildings. 
 
 44. If a judgment for a lien claim on a house for labor and mate- 
 rial embrace an item for painting fence and varnishing carpet, the 
 lien is defeated. They are non-lien items. First National Dank v. 
 Bedman, 57 — 405. 
 
 45. One who buys real estate subsequently to the erection of a 
 house thereon can not be legally summoned in as a party to a suit 
 brought by the carpenter who built it, to enforce his lien upon the 
 property. Colley v. Doughty, 62 — 501. 
 
 46. When the labor is performed under a contract with one not 
 the owner of the building, and a suit to enforce the lien is brought by 
 the laborer against the person with whom he contracted, and the 
 building is attached on the writ, there can be no judgment in rem 
 against the building. Byard v. Parker, 65^r-576. 
 
348 LIMITATIONS, STATUTE OP. 
 
 47. Whether the attachment can be made available -will depend 
 upon facts to be shown in other proceedings. Ih. 
 See Constitutional Law, 39, p. 106. 
 
 LIMITATIONS, STATUTE OF. 
 
 I. IN GENERAL. 
 
 II. WHEN THE STATUTE BEGINS TO RUN. 
 
 III. EXECUTORS AND ADMINISTRATORS. 
 
 IV. STATUTE ACTIONS. 
 V. EQUITY. 
 
 VI. EXCEPTIONS AND AVOIDANCE. 
 
 (a) Pabties abboad. 
 
 (b) Witnessed notb. 
 
 (c) Accounts. 
 
 (d) New promise. 
 
 (e) Patmektt. 
 
 (f) Fbaudulent concealment of cause of action. 
 
 (g) Disability to sue. 
 (h) Pailubb of service. 
 
 I. IN GENERAL. 
 
 1. It may fairly be doubted whether actions of account at law, and 
 the analogous remedy by bill in equity to compel an account, can now 
 be considered subject to any other than the general twenty years' lim- 
 itation. Lawrence v. Sokes, 61 — 38. 
 
 2. The legislature has the power to shorten the period of limitation 
 of actions upon contracts, provided a reasonable time is allowed for 
 parties to bring suit before their claims shall be deemed barred by the 
 new enactment. /Sampson v. Sampson, 63 — 328. 
 
 3. As between the trustee and cestui que trust, an express trust, 
 constituted by the act of the parties themselves, will not be barred by 
 any length of time. Time does not begin to run until the trust is 
 openly disavowed by the trustee, who insists upon an adverse right 
 which is fully made known to the cestui que trust. Frost v. Frost, 
 63—399. 
 
 4. In an action on the case for slander, where the statute of limi- 
 tations is pleaded, and part of the testimony of the witness called to 
 prove the utterance of the slanderous words alleged, tends to show 
 that they were spoken more than two years before the date of the 
 plaintiff's writ, and part would indicate that they were uttered within 
 that time, it is in the sole power of the jury to determine whether or 
 not the cause of action is barred by the statute of limitations. R. S., 
 c. 81, § 81. Harmon v. Harmon, 61 — 233. 
 
 5. The statute of limitations in force when the remedy is sought, 
 and not when the contract was made, must govern. Sampson v. 
 Sampson, 63 — 328. 
 
 6. In an action of account, the statute of limitations, is pleadable 
 
LIMITATIONS, STATUTE OP. 349 
 
 in bar before tbe interlocutory judgment and not afterwards. Black 
 V. Nichols, 68—227. 
 
 7. When a note is secured by a mortgage, it may be that no recov- 
 ery can be had upon the note, and yet the mortgage be enforced. 
 Crooker v. Holmes, 65 — 195. 
 
 8. The fact that the right to recover against one of two co-promi- 
 sors is barred by the statute, is no defense for the other. Hapgood 
 V. Watson, 65 — 510. 
 
 See Amendment, 30, p. 21. 
 
 II. WHEN THE STATUTE BEGINS TO RUN. 
 
 9. A loan of money, "to be paid when called for," is due on the 
 day the money is lent, and the statute begins to run from that date. 
 Ware v. Heioey, bl — 391. 
 
 10. No action accrues against the bailee of goods until after demand 
 and refusal. Lee v. Lannahan, 59 — 478. 
 
 11. "When money is deposited for safe keeping, and no demand is 
 made for it until after the expiration of six years from the time of 
 the deposit, it may be doubted whether it is made within a reasonable 
 time. Ih. 
 
 12. If the payee of a negotiable promissory note, by his indorse- 
 ment thereof, "without recourse," impliedly warrants that it was given 
 for a valuable consideration, such liability accrues when the indorse- 
 ment is made, and the statute of limitations then begins to run. 
 Blethen v. Lovering, 58 — 487. 
 
 IB. When the first indorser of a negotiable promissoiy note has 
 been compelled to pay it, by a judgment in a suit commenced prior 
 to the intervention of the statute of limitations, he may recover the 
 amount of the note of the maker in an action for money paid. God- 
 frey V. Bice, 59—308. 
 
 14. The cause of action, in such case, accrues when the payment 
 is made. Ih. 
 
 15. Thus, in May, 1859, the defendant gave his negotiable promis- 
 sory note, payable on time, to the plaintiff's intestate, who indorsed it 
 to a third person, who indorsed it and got it discounted. The note 
 went to protest, and the indorsers were seasonably notified. The lat- 
 ter indorser sued the former, and recovered judgment in October, 1870, 
 for the amount of the note. After paying the judgment, the former 
 indorser brought this action for money paid. Held, that the action 
 was maintainable ; and that the cause of action accrued when the 
 payment was made. Ih. 
 
 16. On April 28th, 1855, J. & Co., for their own benefit, gave their 
 negotiable promissory note to P., the plaintiff's intestate and the de- 
 fendant, each of whom indorsed it, and duly received notice of its 
 having been protested for non-payment. On April 30th, 1855, J. & 
 Co. mortgaged an ample stock of goods to the defendant, and another 
 to secure the payment of this and another note, but, in the following 
 October, the defendant discharged the mortgage without receiving 
 payment of the former note. On December 29th, 1858, P. took up 
 the note, and, on December 24th, 1864, demanded one-third of the 
 amount paid therefor, of the plaintifE as administratrix, who paid it 
 and thereupon brought this suit for the amount thus paid. Held, 
 
350 LIMITATIONS, STATUTE OF. 
 
 that whatever cause of action the plaintiff may have had against the 
 defendant by reason of the note was barred by the statute of limita- 
 tions. Luce V. McLoon, 58 — 321. 
 
 17. Special Laws of 1821, c. 74, § 7, providing that if any person 
 shall wilfully, etc., injure plaintiff's canal, he shall, for every such 
 offence, forfeit to the canal corporation, a certain penalty, imposes no 
 penalty for the continuance of the injury. Where the injury com- 
 plained of was the filling up of the canal, the statute of limitations 
 began to run when the work of filling was completed. Cumberland 
 and Oxford Canal Co. v. Jlitchins, 57 — 146. 
 
 See Post, 47. 
 
 III. EXECUTORS AND ADMINISTEATOKS. 
 
 18. It seems that if an administrator suffers judgment to be recov- 
 ered against him in an action barred by the statutes limiting suits 
 against executors and administrators, his sureties are not bound by 
 the judgment, but may have the benefit of the statute in an action 
 against them on the bond. Sourne v. Todd, 63 — 427. 
 
 19. After a claim alleged by an administrator to be exorbitant 
 has been allowed by commissioners, the lapse of time will not defeat 
 the right of the creditor to final payment out of the effects in the 
 hands of the administrator, so long as the administration of the estate 
 remains incomplete. Hall v. Merrill, 67 — 112. 
 
 20. If a creditor permit two continuous years of existing legal ad- 
 ministration to elapse without commencing any suit against the admin- 
 istrator, and when he does sue out his writ, his suit would be barred 
 against the alleged debtor if living, his action is barred by R. S., c. 
 18, § 88, although the defendant cannot avail himself of the special 
 limitations in R. S., c. 87, unless it appear that he gave notice of his 
 appointment as administrator. JLancey v. White, 68 — 28. 
 
 21. There is tio reason why negligent creditors should have their 
 rights of action indefinitely prolonged by reason of the failure of the 
 representative of the deceased to give the notice, which would enable 
 him in many cases greatly to shorten the term within which such 
 actions must be commenced. lb. 
 
 22. The defendant, residing in Maine, gave his promissory note in 
 1868 to the plaintiff 's intestate, residing in Vermont, who died in 
 1869, and his administrator was there appointed in 1870, but no 
 administration was taken out in Maine, till the appointment of the 
 plaintiff in 1877, who commenced this suit in 1878. Held, that the 
 suit was not barred by the provisions of R. S., c. 81, § 88, that "an 
 action may be commenced by an administrator within two years after 
 his appointment, and not afterwards if barred by other provisions. 
 Holmes v. Brooks, 68 — 416. 
 
 See Heirs, 5, p. 283. 
 
 IV. STATUTE ACTIONS. 
 
 23. To a judgment of county commissioners, fixing the damages 
 for real estate taken for the location of a railroad, the statute of limi- 
 tations is a bar after six years. Mooers v. Ken. dk P. B. Ji. Co., 
 58—279. 
 
 24. When an answer, denying liability, is returned by a town in 
 
LIMITATIONS, STATUTE OP. 351 
 
 which a pauper is alleged to have his settlement, to a notice of sup- 
 plies furnished by a town in which he falls into distress, the statute of 
 limitations begins to run at the time the answer is received. West 
 Gardiner v. jBartland, 62 — 246. 
 
 25. An action to recover treble the amount of money won by the 
 defendant in gambling or betting, brought by one not the loser, is 
 penal and must be commenced within one year after the offence is 
 committed. Heals v. Thurlow, 63 — 9. 
 
 V. EQUITY. 
 
 26. If by the laches of the complainant it has become doubtful 
 whether the other parties can be in a condition to produce the evidence 
 necessary to a fair presentation of the case on their part, or have been 
 deprived of any just advantage which they might have had if the 
 claim had been put forward before it became stale and antiquated, or 
 if they be subjected to any hardship which might have been avoided 
 by more prompt proceedings, although the full time may not have 
 elapsed which would be required to bar the remedy at law, the court 
 will deal with the remedy in equity as barred. Lawrence v. Mokes, 
 61—38. 
 
 27. On the other hand when it appears that lapse of time has not, 
 in fact, changed the position and condition of the parties in any 
 important particular, and there are any peculiar circumstances entitled 
 to consideration as excusing the delay, the court will not refuse the 
 appropriate relief, though a strict application of the rules of limita- 
 tion might seem to require it. lb. 
 
 28. In the absence of any intimation in the answer that the respon- 
 dent claims the benefit of the lapse of time, the court will not interfere 
 to set up the bar, but will consider the respondent as waiving it, though 
 the facts alleged are such as to make it appear that it might be success- 
 fully interposed. lb. 
 
 29. Sec. 6, c. Ill, R. S., 1871, providing that when a party who had 
 contracted in writing to convey land dies, the other party may have 
 a bill for specific performance against heirs, executors, &c., if written 
 notice of the existence of the contract is given the executor or admin- 
 istrator within one year from the grant of administration, does not 
 apply to a case of trust evidenced by writing. Frost v. Frost, 
 63—399. 
 
 See Equity, 137, p. 209. 
 
 VI. EXCEPTIONS AND AVOIDANCE. 
 
 (a) Pabtibs abroad. 
 
 (b) Witnessed kote. 
 (o) Accounts. 
 
 (d) New peomise. 
 
 (e) Payment. 
 
 (f) Pbaudtjlent concealment of cause of action. 
 
 (g) DiSABILITT. 
 
 (h) Failure of service. 
 
 (a) Parties abroad. 
 
 31. The statute does not protect a defendant who resided out of 
 the State when the cause of action accrued, and has continued to so 
 
352 LIMITATIONS, STATUTE OF. 
 
 reside, although he may have been within the limits of the State 
 many times to the knowledge of the plaintiff. Hacker v. Everett. 57 
 —548. 
 
 32. Under R. S., c. 81, § 99, the maker of a promissory note given 
 in this State, who has always resided, and who still resides with his 
 family in the Province of New Brunswick, but who has, since the 
 note became due, frequently, but temporarily, and with the knowledge 
 of the payee, been in the payee's place of residence within this State, 
 with attachable property, and paid him money several times, cannot 
 avail himself of the statue of limitations in an action on the note by 
 the payee. Ih. 
 
 33. Where one of two co-promisors resides out of the State for a 
 sufficient length of time the right of recovery against him is not barred 
 although it may be against his co-promisor who has resided within the 
 State. Hapgoodx. Watson, 65 — 510. 
 
 (b) Witnessed note. 
 
 34. A written promise to pay the plaintiff insurance company, at a 
 time specified "the sum of two hundred and twenty-five dollars, and 
 such other sums as may arise as additional premium" on an insurance 
 policy, is not a promissory note within the meaning of R. S., c. 81, § 
 83, which excepts from the six years' limitations "actions on promis- 
 sory notes signed in the presence of an attesting witness." Lime 
 Rock F.& M. Ins. Co. v. Hewett, 60—407. 
 
 35. An action for money had and received, sustained by a valid 
 promissory note, signed in the presence of an attesting witness, is an 
 action upon such note, within the meaning of the section in the stat- 
 ute excepting such actions from the six years' limitation. Merrill v. 
 Merrill, 63—78. 
 
 36. An action against the indorser of a witnessed note is within the 
 general six years' limitation — the indorsement not being witnessed. 
 Seavey v. Coffin, 64 — 224. 
 
 37. The twenty years' limitation is an absolute bar to an action 
 upon a witnessed promissory note. Pulsifer v. Pulsifer, 66 — 442. 
 
 (c) Accounts. 
 
 38. In order that an item of credit in an open and mutual account 
 may take it out of the statute of limitations, it must appear that the 
 payment credited was made by the debtor or some one legally compe- 
 tent to act for him. Sawyer v. Lufkin, 58 — 429. 
 
 39. Where the two items on the debit side of an account were dated 
 Oct., 1860, and Nov., 1867, respectively, and upon the credit side was 
 an item for wood proved by plaintiff to have been delivered by defend- 
 ant in the fall of 1862. Held, that under R. S., 1871, c. 81, § 84, the 
 cause of action accrued at the date of the latest item. Baker v. 
 Mitchell, 59—228. 
 
 40. It is not necessary that the plaintiff state both sides of the 
 account, strike the balance and declare for that specific sum, to render 
 his action one "to recover the balance due." Hagar v. Springer, 68 
 —506. 
 
 41. The last item of the plaintiff's account, which contained no 
 credit items, was dated more than six years prior to the date of the 
 
LIMITATIONS, STATUTE OP. 353 
 
 writ. The plaintiff proved that the defendant had recovered judg- 
 ment against him, upon an account, some of the items of 'which were 
 within six years of the date of the plaintiff's writ and of the items 
 of his account. Held, that the action was not barred. lb. 
 
 42. A sale of a single article, with jaart payment at the time, and 
 subsequent partial payments within six years, constitutes a case of 
 "mutual dealings" and the balance due may be recovered at any time 
 within six years from the last payment. Benjamin v. Webster, 65 — 
 170. 
 
 (d) JSfew promise. 
 
 43. No verbal acknowledgment or promise on the part of a debtor 
 can take the items of an account out of the statute of limitations. 
 Hager v. Springer, 60 — 436. 
 
 (e) Payment. 
 
 44. When a partial payment is made as part of a larger debt, and 
 upon an ascertained or specific sum due, and not upon a mere claim of 
 quantum meruit, it is prima facie evidence of a promise by the debtor 
 to pay the balance due, and conclusive evidence of the same unless 
 there is some proof to the contrary. Benjamin v. 'Webster, 65 — 170. 
 
 (f) Fraudulent concealment of cause of action. 
 
 44. If a "person summoned as a trustee, upon his examination wil- 
 fully and knowingly answers falsely" the perjury thereby committed, 
 constitutes not only a cause of action, but also a fraudulent conceal- 
 ment of the same within R. S., 1857, c. 81, § 107. Gerry v. Dun- 
 ham, 57—334. 
 
 45. The nominal plaintiff sold to the defendant certain of its bonds, 
 the defendant giving his note for the amount agreed to be paid there- 
 for. When the note was given, it was verbally agreed that if the 
 defendant did not sell the bonds or receive any compensation there- 
 for, his note should be cancelled and given up to him. Some time 
 afterward, the defendant falsely and fraudulently represented to the 
 plaintiff, that he had turned over the bonds to certain parties without 
 compensation, and thereby procured the surrender of his note with- 
 out payment. Held, that a suit on the note was not within the pro- 
 vision (R. S., 1871, 0. 81, § 92), that if a person liable to an action 
 fraudulently conceals the cause thereof, an action may be commenced 
 any time within six years after the person entitled thereto discovers 
 that he has just cause of action. Penobscot Bailroad Company v. 
 Mayo, 65—566. 
 
 46. In the same case, held, that the fraudulent procurement of the 
 surrender of the note by the defendant, was equivalent to the receipt 
 of the money due upon it, that the plaintiff might waive the tort and 
 maintain assumpsit for money had and received, and that in such 
 action the same rule of limitation was applicable as in an action for 
 the fraud, six years from the time of the discovery of the fraud. 
 Penobscot Railroad Company v. Mayo, 67 — 470. 
 
 (g) Disability to sue. 
 
 47. The statute of limitations does not begin to run against a rever- 
 
 28 
 
354 LIMITATIONS, STATUTE OP — LORD'S DAY. 
 
 sioner during the continuance of the particular estate. I'oor v. 
 Xarrabee, 58 — 543. 
 
 (h) Failure of service. 
 
 48. The plaintiff commenced a suit upon a claim against the defend- 
 ant on the day before it would have become barred by the statute of 
 limitations, but retained the writ until the day preceding the last day 
 of service, and then sent it by mail to an officer in another town, 
 where, in the ordinary course of mail, it would arrive on the day of its 
 transmission. The writ did not reach the officer in season for service. 
 Held, that the failure of service was not the result of unavoidable 
 accident, but was occasioned by the negligence of the plaintiff in not 
 forwarding the writ at an earlier day, and that a subsequent suit for 
 the same cause of action (R. S., 1871, c. 81, § 87) could not be main- 
 tained. Marble v. Hinds, 67 — 203. 
 
 49. When the first suit is for "balance of account," $75.00, and the 
 second is upon an account annexed, the items of which amount to 
 $223.75 with no credits, the second suit is not upon the same demand 
 as the first, so that upon failure of service in the first, the second 
 might be commenced within six months, to avoid the statute of limit- 
 ations, lb. 
 
 See Seizin. 
 
 LORD'S DAY. 
 
 1. Section 20, c. 124, of R. S., 1871, prohibiting traveling on the 
 Lord's day, makes no distinction between those who travel in town 
 and those who travel from town to town. Cratty v. Bangor, 57 
 —423. 
 
 2. Nor between those who travel on foot and those who travel with 
 horses and carriages. lb. 
 
 3. A person cannot maintain an action to recover damages for an 
 injury sustained in consequence of a defect in the highway, while he 
 was walking a short distance, on Sunday evening, in company with 
 several other persons, all going by invitation to the house of a friend 
 for the purpose of spending the evening for pleasure. lb. 
 
 4. The owner of a horse can not maintain an action, against a 
 person to whom the horse was let for a pleasure drive on Sunday, for 
 damages, arising from the negligent driving of such bailee. Pajrker 
 V. Latner, 60—528. 
 
 5. If some particular acts in a course of proceedings take place on 
 Sunday, but the transaction is not completed on that day, so as to 
 become effective it is not vitiated by the illegal acts. Bailey v. 
 Blanchard, 62 — 168. 
 
 6. Example. The scaling of logs is not complete until the scale 
 bill is delivered to the person to be charged thereby, and if a part of 
 the logs are measured and cast up and a memorandum left with such 
 person on Sunday, but the scale bill is not delivered until a subsequent 
 day, the scale is not invalid. lb. 
 
 7. It is no objection to the legality of a sale by a collector of taxes 
 
lord's day — LOST GOODS — MAIL. 355 
 
 that one of the four days during which he kept the distress (R. S., o. 6, 
 § 104,) was Sunday. Carville v. Additon, 62 — 459. 
 
 8. The four days' notice for a meeting for drafting jurors, R. S., 
 1871, c. 106, § 9, may include Sunday. State v. Wheeler, 64—532. 
 
 9. The defendant sold a horse to the plaintiff on Sunday. On the 
 same day the plaintiff gave a bank check for the price, and the de- 
 fendant deposited a bill of sale of the horse with a third person, to be 
 delivered when the check should be paid. The check was paid, and 
 the horse and bill of sale delivered on a secular day. The plaintiff 
 undertook to rescind the sale on account of a deceit practiced in it 
 by the defendant. Held, that he could not recover back the price paid 
 for the horse. Plaisted v. Palmer, 63—576. 
 
 10. Nor could he overcome the obstacle presented by the illegality 
 of the transaction, by proof of representations made on Saturday, and 
 the production of the papers bearing date on Monday, on the ground 
 that having thus made out & prima facie case,, the defendant could 
 not avoid his liability by proof of his own illegal act. lb. 
 
 11. A young lady, who, on the Lord's day, walks one-fourth of a 
 mile to her aunt's house, calls there, and invites her cousin to walk 
 with her, and they then proceed to walk three-fourths of a mile, sim- 
 ply for exercise in the open air, is not traveling in violation of the 
 statute (R. S., 1871, c. 124, § 20), prohibiting travel on Sunday, and 
 may recover of the town for injuries sustained, during such walk, 
 from a defect in the highway. 0' Gonnell v. Lewiston, 65 — 34. 
 
 12. If money is loaned upon the Lord's day, upon the verbal or 
 written promise of the borrower to repay it, its repayment can not be 
 enforced by law. Meader v. White, 66 — 90. 
 
 LOST GOODS. 
 
 Lost goods, as against all but the loser, belong to the first finder 
 who takes possession. Lawrence v. Buck, 62 — 275. 
 
 MAIL. 
 
 1. An attachment, knowingly, of a team standing in front of a post- 
 office, on a mail route, in charge of the mail-carrier waiting for the 
 mail, is a wilful obstruction and retarding of the passage of the mail, 
 within the meaning of the Act of Congress, of March 3, 1825, § 9, and 
 therefore void. Harmon v. Moore, 59 — 428. 
 
 2. A mail-carrier, who is at the time engaged in carrying the United 
 States mail, is liable to arrest by an officer holding a warrant for his 
 arrest to answer for an offence against a State law, when the charge 
 is neither felony nor a breach of the peace, but a violation of the 
 liquor law. Penney v. Walker, 64 — 430. 
 
 3. One who contracts with the government to transport the mail, 
 may contract with, or hire another to perform the same service. 
 Such contract is not a violation of the IT. S. statute prohibiting the 
 assignment of mail contracts. Frye v. Burdict, 67 — 408. 
 
356 MALICIOUS PROSECUTION. 
 
 4. A promise to pay a mail contractor for performing his contract 
 ■with the post-office department is without consideration. Putnam v. 
 Woodbury, 68—58. 
 
 MALICIOUS PROSECUTION. 
 
 1. Peobablb cause is a question for the court only when the facts 
 are not disputed, and, when they are in dispute, a question for the 
 court whether it is proved by such facts as the jury find from the evi- 
 dence. Speck V. Judson, 63 — 207. 
 
 2. Evidence that the defendant was a city marshal and made the 
 complaint (for larceny) upon information from the owner of the 
 property, and from others, including the ofiicers of another city, is 
 sufiicient to show probable cause. Smith v. Swett, 63 — 344. 
 
 3. A minor made a contract to work six months at eighteen dollars 
 per month, but left at the expiration of two months and demanded 
 for his labor thirty-six dollars. The employer tendered in payment 
 seventeen dollars, which was refused and a suit was commenced. In 
 that suit S. W. permitted his name to be used as prochein ami, but 
 in the writ the emjoloyer was required to answer to S. W., next 
 friend to the minor. At the trial the sufiioiency of the tender was 
 established and judgment rendered for the amount tendered without 
 costs, while the employer recovered costs against the minor. In an 
 action for malicious prosecution by the employer against S. W., held, 
 that if the first action be regarded as brought by the minor, there 
 was no want of probable cause ; that S. W. was the plaintiff, and 
 not the minor, and should have been non-suited, yet as it did not 
 appear that he knew that the suit was so commenced, he could not 
 be held liable for a malicious prosecution. Soule v. Winslow, 64 — 
 518. 
 
 4. Malice. Evidence that the defendant allowed his name to be 
 used under the professional advice of a lawyer, that it was necessary 
 in order that the minor might collect his debt, is admissible as tend- 
 ing to negative malice. Soule v. Winslow, 66 — 447. 
 
 5. If the suit was erroneously commenced it was not the fault of 
 the defendant. lb. 
 
 6. The fact that the defendant recovered no more than the the ten- 
 der does not indicate malice ; nor, does the fact that judgment for the 
 amount of the tender was erroneous, when no exceptions were taken. 
 lb. 
 
 7. The action for malicious prosecution must be supported by want 
 of probable cause, and by malice conjoined. Soule v. Winslow, 64 — 
 518. 
 
 8. Malice in fact is to be found by the jury from the evidence. It 
 may be inferred from want of probable cause. Pullen v. Olidden, 
 66—202. 
 
 9. Whatever is done wilfully and purposely, if it be at the same 
 time unlawful, and that known to the party, is in legal contemplation 
 malicious. lb. 
 
 10. The plaintiff is not required to prove express malice, in the pop- 
 
MANDAMUS AND PROHIBITION. 357 
 
 ular signification of the term, as that the defendant was prompted by 
 malevolence, or acted from motives of ill will, hatred, or resentment 
 toward the plaintiff. Ih. 
 
 11. In an action for malicious prosecution either party has a right, 
 upon request therefor, to a direct and specific ruling as to whether 
 the facts proved or admitted taken together do or do not show a 
 want of probable cause. Pullen v. Qlidden, 68 — 559. 
 
 12. Evidence. It is competent for the defendant to prove, as hav- 
 ing some bearing upon the questions of want of probable cause and 
 malice in fact, that prior to the' prosecution complained of, it was the 
 common report in the n-eighborhood of the parties that the plaintiff 
 had committed the crime for which he was prosecuted. lb. 
 
 13. Such common report is not of itself suificient to show probable 
 cause, but in connection with other facts or information that came to 
 the knowledge of the defendant before he commenced proceedings, it 
 may tend to show it and to negative malice, lb. 
 
 14. The unexplained neglect of the plaintiff, to appear or testify at 
 the trial of his case is a matter competent for the consideration of the 
 jury upon the question of want of probable cause. lb. 
 
 15. Not only the facts which the defendant knew, but the informa- 
 tion he had received, in fine, the circumstances under which he acted, 
 even, his own consultations with counsel learned in the law, if he took 
 the advice of such, are competent evidence upon these questions of 
 probable cause and malice in fact. lb. 
 
 MANDAMUS AND PROHIBITION. 
 
 1. Whether mandamus would be a proper remedy for a railroad 
 company to compel the issuing of the bonds of a town, in case the 
 conditions of a vote had been complied with by the railroad com- 
 pany, qumre. P- d O. JR. B. Co. v. Hartford, 58—23. 
 
 2. The writ of mandamus should expressly state the duty required 
 of the defendant. Hartshorn v. Ellsworth, 60 — 276. 
 
 3. A mandate requiring the defendant to assess a school district tax 
 "according to law," being a requirement to look beyond the writ, is 
 erroneous. 1 b. 
 
 4. Where, on a petition for mandamus, by the terms of the exceptions, 
 "if the petitioners were not entitled to have the writ as prayed for," 
 the petition was to be dismissed, and the prayer was that the defend- 
 ants should "assess said district tax according to law, to wit, on the 
 personal estate within the district of non-residents of the district," 
 and the defendants could not lawfully assess such property unless such 
 "owners should occupy," as is provided in the first clause of R. S., 
 c. 6, § 14, a mandate cannot legally issue as prayed for. lb. 
 
 5. By virtue of Public Laws of 1872, c. 8, § 3, the previous sections 
 thereof (changing the place of holding the supreme judicial court 
 from Norridgewock to Skowhegan, and authorizing the county com- 
 missioners to erect a court-house in the latter place), were to be void, 
 unless the town or citizens of Skowhegan should, on or before March 
 
358 MANDAMUS AND PROHIBITION — MANSLATTGHTEE. 
 
 1, 1872, -without expense to the county, provide suitable room and 
 other accommodations for the court and officers, to the acceptance of 
 a majority of the county commissioners ; and secure to the county 
 the use thereof for the purposes, and during the time therein specified, 
 and the conveyance of a suitable site in Skowhegan, for the county 
 buildings. By § 4, when such room and accommodations had been 
 provided, the county commissioners should cause the records in all 
 the county offices, with the records and files of all the courts, to be 
 removed to the places prepared in Skowhegan, and cause notice of 
 the facts to be published as therein directed. On petition praying 
 that a writ of prohibition may issue against the county commission- 
 ers, prohibiting them from ordering such removal or publishing such 
 notice ; held, (1) that the county attorney had no right to institute 
 this process in his official capacity, or in behalf of the county ; and, 
 (2) that the town of Skowhegan, should have been made a party. 
 'Walton V. Greenwood, 60 — 356. 
 
 5. Also held, that exceptions do not lie to revise the decision of 
 the presiding judge upon the question whether the facts alleged in 
 the information as the foundation for the writ, are substantially true 
 as alleged. Ih. 
 
 7. The writ of mandamus is not a writ of right, but is issuable at 
 the discretion of the court when equity requires it. Selcher v. Treat, 
 61—577. 
 
 8. When an inferior court has discretion in relation to proceedings 
 before it, and proceeds to exercise it, the court will not control that 
 discretion by mandamus. Davis v. Co. Com., 63 — 396. 
 
 9. If, however, the discretion of the court below is exercised with 
 manifest injustice, the court is, probably, not precluded from com- 
 manding its due exercise. lb. 
 
 10. Mandamus is the appropriate remedy to compel a railroad com- 
 pany to perform the public duties imposed upon it by its charter. 
 B. It. Commissioners v. P. & 0. C. R. B. Co., 63—269. 
 
 11. Where county commissioners are authorized by an act of the 
 Legislature to change the form of the indexes in the registry of deeds 
 they have the right to employ a proper person to perfonn the work, and 
 to use a portion of the office of the register of deeds if not inconsis- 
 tent with a proper discharge of the duties of his office by the register, 
 and if this right is denied by the register, and the commissioners refus- 
 ed access to his office, they may enforce their rights by mandamus. 
 Hawes v. White, 66—305. 
 
 MANSLAUGHTER. 
 
 1. No mere provocation is sufficient to justify a homicide. State v. 
 Murphy, 61 — 56. 
 
 2. An instruction that if the respondent "in the heat of blood and 
 upon sufficient provocation," threw the deceased down stairs, the 
 offence was manslaughter, where subsequent instructions showed that 
 by "sufficient" was meant "great and sudden," was hdd, not to afford 
 him cause for exception. Ih. 
 
MANURE — MARKET OVERT — MARRIAGE. 359 
 
 3. The naked negligent omission of a known duty, when it causes 
 or hastens the death of a person, constitutes manslaughter. State v. 
 Smith, 65—257. 
 
 4. Upon a charge of manslaughter by the negligent omission of a 
 known duty, a criminal intent on the part of the defendant need not 
 be alleged or proved. Ih. 
 
 5. An indictment for manslaughter of the prisoner's insane wife, 
 alleging the relation he sustained to the deceased, his duty and ability 
 to provide for her necessities, her incapacity to do so, and that he 
 feloniously and wilfully refused and neglected to provide necessary 
 clothing and protection for her from the cold during a certain number 
 of days during the winter, in consequence of which she sickened and 
 died, and also alleging the manslaughter of the wife, in the manner 
 and by the means aforesaid, is sufBcient under the practice requiring 
 the manner and means by which the crime was accomplished to be 
 set forth in detail, although containing no formal allegation that the 
 condition and necessities of the wife were known to the prisoner. Ih. 
 
 See EviDBNCE, 78, p. 228. 
 
 MANURE. 
 
 See FixTTJKE, or Chase v. Wingate, 68 — 204. Norton v. Craig, 
 
 68—275. 
 
 MARKET OVERT. 
 
 In this country markets overt, as established in England, have 
 never been recognized as legal institutions. Coombs v. Gordon, 
 59—111. 
 
 MARRIAGE. 
 
 1. Testimony of the particeps criminis that she was "married two 
 years ago by C. L., at his house ;" it not appearing that C. L. pro- 
 fessed to be "a justice of the peace or an ordained or licensed minis- 
 ter of the gospel," or that the marriage was "consummated with a 
 full belief on the part of either of the persons married, that they 
 were lawfully married," is not sufficient evidence of a marriage in an 
 indictment for adultery. State v. JBowe, 61 — 171. 
 
 2. In a civU action, where evidence of a marriage became material, 
 and in the record of the intention of marriage, the initial of the mid- 
 dle name of the woman was given as C, while in the declaration in 
 the suit it was stated as J., the question of identity was submitted to 
 the juiy. Bowdoinham v. Phippsburg, 63 — 498. 
 
360 MAERIED ■WOMAN. 
 
 MARRIED WOMAN. 
 
 1. Real Estate conveyed to a married woman, but paid for by 
 her husband, can not be conveyed by her without the joinder of her 
 husband. Call v. Perkins, 65 — 439. 
 
 2. A separate deed by each, executed at different times, may be 
 sufficient. Ih. 
 
 3. If the husband has paid only part of the consideration for land 
 conveyed to his wife, his interest therein may be taken for his debts. 
 Ih. 
 
 4. Where the land has been paid for, partly by the proceeds of the 
 separate property of the wife, and the balance by money acquired by 
 both husband and wife from sales of stock and produce from the land, 
 from, keeping boarders, and other like sources, her interest in the land 
 to the value of her payment from her separate property will be pro- 
 tected, the rest of the land may be taken for the husband's debts. 
 Sampson v. Alexander, 66^-182. 
 
 5. When the wife has paid a part of the consideration, and the 
 husband a part, a decree may be made directing a master to set off to 
 her a portion of the land equal in value to her payment and interest, 
 the creditor to have a conveyance from the balance of enough to pay 
 his debt, unless it is otherwise paid or secured. lb. 
 
 6. A DEED of real estate to a married woman, and her mortgage 
 back to secure the purchase money, given in 1845, are both void. 
 Savage v. Holyohe, 59 — 345. 
 
 7. In September, 1863, the plaintiff deposited one hundred dollars, 
 for safe-keeping, with the defendant, who was at the time and still is 
 a married woman ; and in August, 1870, demanded the same of her, 
 who refused to deliver it. In assumpsit for money had and received, 
 held, (1) that at the time of the deposit no action could be maintained 
 against a married woman on her contracts ; (2) that the act of 1866, 
 c. 52, making her contracts valid, was prospective and not applicable ; 
 and (3) that the action was not maintainable. Lee v. Lannahan, 
 59—478. 
 
 9. The PEOMissoET note of a married woman, given for an ante- 
 cedent debt of her husband, is not void for want of consideration, if 
 made payable at a future day. Thompson v. Gray, 63 — 229. 
 
 10. Under Public Laws of 1866, c. 52, a contract of suketyship 
 is valid and binding on a married woman. Mayo v. Hutchinson, 
 57_546. 
 
 11. Where a married woman assigns by delivery a note payable to 
 her order, and afterwards marries the maker, her indorsement after 
 such marriage transfers the legal title. Guptil v. Home, 63 — 405. 
 
 12. An action lies against a married woman for medical attendance 
 rendered at her request, and for which she expressly promised to pay. 
 
 Yates V. Livrvey, 65 — 221. 
 
 13. The ancient doctrine that a married woman can not be a tres- 
 passer by prior or subsequent assent, is probably still so far in force 
 that she cannot be liable for a tort in which she does not participate 
 as an actor, by reason of any prior or subsequent assent, consent, 
 advice, or authority from her, in a case where she is not in any con- 
 
MAEEIED "WOMAN — MASTER AND SERVANT. 361 
 
 tingency to reap a profit, or her separate estate a benefit. Ferguson 
 V. Brooks, 67—251. 
 
 14. But when she does an act independently of her husband, and 
 is subject to no coercion from him, but makes him her instrument and 
 agent in enforcing some supposed right, she may authorize or ratify 
 any act down in her name and behalf, or for shielding her from 
 responsibility. Ih. 
 
 15. Actions against hee Husband. By virtue of R. S., c. 61, § 5, 
 a married woman may commence by trustee process, and maintain in 
 her own name an action for the recovery of the wages of her per- 
 sonal labor not performed for her own family, and summon her hus- 
 band as trustee of her debtor. Tunks v. Grover, 57 — 586. 
 
 16. A married woman has the right to make contracts in relation 
 to her estate, with the further right to contract for any lawful purpose 
 with whomsoever she may choose, and may make contracts with her 
 husband equally with any one else, and may enforce them by a suit at 
 law after the dissolution of the marriage relation by divorce. iSlake 
 V. £lake, 64^177. 
 
 17. A woman, after a divorce a vinculo, may maintain an action 
 against her former husband on a promissory note given by him to her 
 in 1861, during coverture, for money borrowed of and belonging to 
 her. Webster v. Webster, 58—139. 
 
 18. A wife after obtaining a divorce from her husband can not 
 maintain an action against him for an assault committed upon her 
 during coverture or against those who assisted him in the commission 
 of such assault. Abbott v. Abbott, 67 — 304. 
 
 See Intoxicating Liquoes, 10, p. 314. 
 
 MASTER AND SERVANT. 
 
 1. A city is not liable at common law as for gross negligence in 
 omitting to place guards indicating the position of an excavation which 
 was being made by servants of the town. Morgan v. Mallowell, 57 — 
 875. 
 
 2. Liability of Seevant to Mastee. A servant is liable to an 
 action by his master, when a third person has brought an action and 
 recovered damages against the master on account of the negligence or 
 misconduct of the servant. Orand Trunk Co. v. Latham, 63 — 177. 
 
 3. The verdict against the master in the action brought against him 
 is evidence of the quantum of damages. lb. 
 
 4. When the suit against the master is defended at the request of 
 the servant, the latter is responsible to the master for counsel fees and 
 disbursements in that suit. lb. 
 
 5. Respondeat Supeeioe. A railroad corporation is not liable foj 
 injuries to land in the vicinity of its road caused by blasting by the 
 carelessness of contractors or sub-contractors in grading the road, 
 although by the contract the corporation reserves the right to retain 
 out of money due the contractor sums sufficient to pay for such injuries 
 not adjusted by the contractors, and the work is to be done under its 
 direction. Tibbetts v. Knox & L. B. B. Co., 62—437. 
 
362 MASTER AND SEEVANT. 
 
 6. In a case where master and servant are both liable, the servant 
 for his own negligence, the master because the law makes him respon- 
 sible for the negligence of his servant, an action against both jointly 
 can not be maintained. Campbell v. Portland Sugar Co., 62 — 552. 
 
 7. Liability oi" Master to Servant. The i-ule that a servant, 
 ■who is injured by the negligence or misconduct of his fellow servant, 
 cannot maintain an action against the master for such injury, applies 
 when the servant causing the injury is engaged in a different depart- 
 ment of the same service, or exercises a higher grade of authority. 
 Lawler v. Androscoggin It. JR. Co., 62 — 463. 
 
 8. When a servant injured seeks to hold the master for negli- 
 gence in employing unsuitable servants, by whose incompetency the 
 injury was caused, the negligence should be distinctly alleged in an 
 appropriate count. lb. 
 
 9. The master of men in dangerous employments is bound to pro- 
 vide for their safety, both good machinery and skilled and judicious 
 men to control it. 
 
 10. The servant, under his contract for service, assumes such risks 
 only as are incident to his employment. These risks include the use, 
 not the purchase of machinery ; as well as the dangers resulting from 
 the carelessness of a fellow servant, not the responsibility of hiring in 
 the first place. Shanny v. Androscoggin Mills, 66 — 420. 
 
 11. The employer is liable for the acts of an incompetent or careless 
 servant whom he keeps in his employ after a knowledge of such 
 incompetency or carelessness, or when in the exercise of due care he 
 should have known it. lb. 
 
 12. Also if through a want of such care of the machinery as the 
 law requires, it is permitted to become and remain in a dangerous 
 state, the fault is imputible to the master or employer, and he 
 cannot excuse himself on the ground that it was through the negli- 
 gence of an agent or servant. lb. 
 
 13. A servant whose duty it is to keep the machinery in repair, is not 
 the fellow servant of one whose duty it is to use the same machinery, 
 so far as to exempt the master from liability for an injury to a servant 
 on the ground that it occurred through the carelessness of a fellow 
 servant. lb. 
 
 14. To have that effect they must not only work under the same 
 master but must be at the time engaged in the same general business. 
 lb. 
 
 15. If a servant is injured through a defect in the machinery which 
 has existed so long a time that its condition must be imputed to 
 culpable negligence on the part of the master, to relieve the latter from 
 liability upon the ground that the servant had impliedly assumed the 
 risk, it must appear not only that the servant had knowledge of the 
 defect, but that his age and experience, or the instructions given him 
 by the master, or some one in his behalf, were such as to enable him 
 to fully understand and appreciate the dangers of his employment. 
 lb. 
 
 16. If however the injury happens to the servant when not in the 
 exercise of ordinary care, or when in violation of the reasonable and 
 proper rules of the employer regulating the work, and which L£ obeyed 
 would avoid the injury, the employer is not liable. lb. 
 
MASTER AND SERVANT — MEETING-HOUSE. 363 
 
 17. A person who voluntarily assists the servant of another by vol- 
 unteering his services can not have greater rights nor can he impose 
 any grenter duty on the master than would have existed had he been 
 a hired servant. Osborne v. Knox & Lincoln R. R. Co., 68 — i9. 
 
 18. The same rule of law is applicable if a servant, of his own 
 motion at the request of a fellow servant, should undertake temporar- 
 ily to perform the duties of a fellow servant. Jb. 
 
 19. The servant of the occupants of an upper tenement accidentally 
 left open a faucet, thereby causing the water to overflow and flood 
 the tenement below. Held, that the occupants of the upper tenement 
 were liable for the damage thereby done. Simonton v. Loring, 68 
 —164. 
 
 20. One of the defendants was acting in his official capacity as 
 selectman, and the other as servant of the town, directing and assists 
 ing in the repairs of the stone work of a bridge, a public highway. 
 One of the grounds of complaint was that one Smith, while hauling 
 stone with plaintiff's team from plaintiff's pasture to the bridge, 
 improperly took a short cut across plaintiff 's clover patch, the town 
 having hired of plaintiff his team and Smith and paid him therefor. 
 Held, that Smith was the servant of the town, and that the defend- 
 ants were not liable for his trespasses while performing the service, 
 unless they directed or authorized them. JBacheller v. Pinkham, 68 
 —253. 
 
 See Negligence. 
 Opeicee, 53. 
 Railroad, 47, 67. 
 
 MEETING-HOUSE. 
 
 1. A meeting-house erected by a contract with a religious society, 
 duly organized under an act of incorporation, upon land owned by the 
 corporation, is owned by the corporation and not by its members. 
 First Baptist Society in Leeds v. Grant, 59 — 245. Union House 
 V. Rowell, 66—400. 
 
 2. The owners of pews in a meeting-house owned by a corporation, 
 have only an easement in and not a title to the freehold. First Bap- 
 tist Society in Leeds v. Grant, 59 — 245. 
 
 3. The pew-owners have only a qualified property in the pews of a 
 meeting-house owned by a corporation. lb. 
 
 4. Two conditions must co-exist before there can be any legal action 
 under the provisions of R. S., c. 12, § 35, for obtaining a division of 
 the time of occupying a meeting-house ; (1) there must be a "house 
 of public worship owned by persons of different denominations ; " and 
 (2) in such house, so owned, "an organized society, or its members, 
 must own at least five pews." lb. 
 
 See CoEPOEATioN, 61, p. 133. 
 Real Action, 4. 
 Teust, 1. 
 
364 MERGER — MILLS. 
 
 MERGER. 
 
 1. When a lesser estate is merged in a greater, the greater estate 
 mast be assumed as valid and continuing. There can be no merger 
 when the estates are successive, and not concurrent, nor where the 
 greater is void and has been avoided. Richardson v. Wyman, 62 — 
 280. 
 
 2. Mergers are not favored in law or in equity, and the separate 
 estates will be sustained when the parties so intend, and this inten- 
 tion will be inferred when justice permits and the interests of the par- 
 ties require. Bean v. Boothby, bl — 295. 
 
 3. When a mortgage given for the purchase money is assigned 
 bona fide to the wife of the mortgager, and the husband quitclaims to 
 her, and she thereupon conveys to a third person by a deed of war- 
 ranty, therein refering to the mortgage as having been cancelled by 
 assignment, the mortgage will not thereby become merged but will 
 be upheld. Ih. 
 
 4. An invalid attachment of a life estate followed by a levy and the 
 possession of the creditor, or his grantees, will not prevent a merger 
 of the life estate by a conveyance from its owner to the reversioner 
 made after the attachment and before the levy. Cary v. Wariur, 
 63—571. 
 
 See Evidence, 19, p. 220. 
 
 Feaud, 53, p. 276, or Holmes v. Farris, 63—318. 
 Mortgage, or Randall v. Bradley, 65 — 43. 
 
 MILLS. 
 
 1. GENERALLY. 
 II. CONVEYANCES. 
 III. COMPLAINTS FOE FLOW AGE. 
 
 I. GENERALLY. 
 
 1. The owners of a dam across tide-waters, erected in accordance 
 with a legislative grant, are not thereby protected from liability to 
 the owner of an ancient mill injuriously flowed by such dam. Lee v. 
 Pemhrohe Iron Co., 57 — 481. 
 
 2. If such grant provides no means for ascertaining and paying the 
 damages thus directly resulting to such mill, the owner thereof has a 
 remedy at common law therefor. lb. 
 
 3. Use op Watee. A mill owner, having all the rights given him 
 by prior occupancy, and all which can be acquired by prescription, so 
 far as the height of his dam is concerned, has no right to unreason- 
 ably withhold water not necessary for the use of his mm. Phillips 
 T. Sherman, 64-\— 171. 
 
 4. Liability to Land Ownee. A log owner who builds a boom 
 to hold logs to be sawed at his mill, is liable in trespass for such 
 erections, when made upon land of another. Mansur v. Blake, 62 
 —38. 
 
MILLS. 365 
 
 5. If slabs and other waste material, thrown into a river by a mill 
 owner, and left to float away without care, are cast upon the land of 
 a proprietor below, to his damage, the fact that they were cast on to 
 the land by a great freshet and the jamming of ice below the land 
 will not exonerate the mill owner from liability for the damage. 
 Washburn v. Gilman, 64 — 163. 
 
 6. If a mill owner becomes liable for damages to land below from 
 waste material thrown into the stream by him, the fact that other mill 
 owners are also liable on account of drift cast upon the land at the 
 same time, while it may render it difficult to proportion and assess 
 the damage done by one owner, will not exonerate him from damages 
 arising from his own wrongful acts. lb. 
 
 7. One whose land has been flowed by a reservoir dam, erected by 
 the defendants upon their own land for the use of mills not owned by 
 them, nor standing upon their land, may maintain an action on the 
 case for the injury sustained. Crockett v. Millett, 65 — 191. 
 
 II. CONTETAlSrCES. 
 
 8. Where the plaintiff and one of the defendant's predecessors in 
 title, being tenants in common of a grist-mill and saw-mill on the same 
 dam, were careful to leave at least four and one-half feet of water in 
 the reservoir pond, for the exclusive use of the grist-mill from 1841 to 
 1847, when the plaintiff's co-tenant conveyed his undivided half of 
 the saw-mill and its privileges to a grantor of the defendant, reserv- 
 ing all the water in the reservoir-pond when not more than four and 
 one-half feet deep, and received back a bond conditioned that the 
 grantee would not use, or cause to be used, any water in the pond for 
 running the saw-mill when the water was less than four and one-half 
 feet deep ; and no attempt to otherwise use the water until 1865, 
 held, that the proprietor of the grist-mill was entitled to the exclusive 
 use of the water when it was not more than four and one-half feet 
 deep. Hines v. Robinson, 57 — 324. 
 
 9. A construction of a grant of a water-power which will restrict 
 the grantee to the specific use to which the water was applied when 
 the grant was made, will never be adopted unless the language of the 
 grant unmistakably indicate such to have been the intention of the 
 parties. lb. 
 
 10. The grant by deed of "a full and perfect right to flow all land 
 belonging to" the grantors, "situated in" a certain town, "and adjoin- 
 ing the Brown brook, so-called, meaning, nevertheless, to grant no 
 right of flowage which would injure of effect the privilege of the 
 Philpot mill, so-called," — conveyed the right to flow such only of the^ 
 grantors' lands there as would be flowed by a dam, so constructed as 
 not to interfere with the Philpot mill-privilege as it existed at the date 
 of the grant. Webster v. Holland, 58 — 168. 
 
 11. J. S. Putnam, being the owner of the whole of a mill privilege 
 on the west side of a stream, and three-fourths of the privilege on the 
 east side as tenant in common with Lysander Putnam, they conveyed 
 "all the land and privilege of said Putnams, lying on the east side of 
 the" stream, together with the right and privilege of all the water of 
 said creek, "only excepting what may be necessary, and sufl5.cient for 
 
366 MILLS. 
 
 carrying two run of mill stones on the west side of said creek, and 
 also, when not required for the use of the saw mills of said Kelleran, 
 or those purchasing or acting under him, what may be necessary for 
 such other machinery (saw mills excepted) as may be' erected on the 
 west side of said creek." It appeai-ed that prior to the date of the 
 deed, J. S. Putnam had had a grist mill on the west side of the 
 stream, but at that time it had been taken down and was rebuilt the 
 year following, that the Putnams had had a saw mill on the east side 
 of the stream, which had been taken down prior to the date of the 
 deed, and that at that time Kelleran was constructing on the privilege 
 on that side a double saw mill, or two mills under one roof. The 
 plaintiff held the title conveyed to Kelleran, and the defendant that 
 remaining in the Putnams after the conveyance. Jleld^ (1) that in 
 the exception, the "saw mills of said Kelleran" meant those which he 
 was constructing when the deed was given, (2) that the first excep- 
 tion was of an abstract quantity of water, and that its use was not 
 limited to the running of a grist mill, and that the defendant had the 
 right to use a quantity of water, sufficient to carry two run of mill 
 stones operated by water wheels in use at the time the deed was given, 
 for the use of any machinery (saw mills excepted) on the west side of 
 the creek, (3) that the plaintiff had the right to use all the rest of the 
 water when required for the use of the saw mills as above stated, 
 (4) that the defendants had the right to the use of the water of the 
 west side of the creek for the use of any machinery (except saw mills) 
 subject to the rights of the plaintiff as above stated. Blake v. Mulli- 
 gan, 65 — 522. 
 
 III. COMPLAIJ^'TS FOE FLOWAGE. 
 
 12. Parties Complaii^ant. In a complaint for flowage the com- 
 plainants must show that they are the sole owners of the land flowed. 
 
 Webster v. Holland, 58—168. Post, 24. 
 
 13. In trial of a complaint for flowage, the complainants introduced 
 nine deeds of warranty, given to them by as many heirs of A. C, 
 deceased, each conveying an undivided tenth part of the real estate 
 of which A. C. died seized and possessed ; a deed of quitclaim to 
 them of the remaining tenth given by an execution creditor of the 
 tenth and last heir of A. C, based on a void levy ; and a deed of quit- 
 claim to them, given by the widow of A. C, in which deed the grantor 
 is described as the "widow of A. C, deceased," and the premises 
 therein as "aU the real estate that the said A. C. owned at the time of 
 his death," all which deeds were duly executed, delivered, and 
 recorded, after the decease of A. C. Held, that the evidence did not 
 show the complainants to be sole owners of the premises mentioned 
 in the deeds. Davis v. Stevens, bl — 593. 
 
 14. The fact that a fee, of which a complainant is sole seized, is 
 liable to be defeated by the non-performance of some condition sub- 
 sequent by some former owner, will not prechide the complainant 
 from recovering of a" stranger to the title the damages sustained by 
 flowage while he is in possession, no one having entered to claim a 
 forfeiture for condition broken. Webster v. Holland, 58 — 168. 
 
 15. In a complaint for flowage, possession of the land flowed by 
 the complainant, claiming title, during the time for which damages 
 are claimed, but in fact without title, is not sufficient to maintain the 
 
MILLS. 367 
 
 process against respondents not claiming title to the land. Phillips 
 y. Sherman, 61 — 548. 
 
 16. The complaint must allege the dbfbkdant's ownebshep of the 
 land on which the dam causing the flowage is erected, or it will be 
 held bad upon demurrer. Jones v. Skinner, 61 — 25. Morton v. 
 Franklin Co., 62 — 455. 
 
 17. If the case has been rightly tried on its merits the defect may 
 be cured by an amendment after the verdict. Mussell v. Turner, 
 62—496. 
 
 18. To sustain a complaint for flowage, both mill and dam must be 
 upon the land of the mill-owner. Crockett v. Millett, 65 — 191. 
 
 19. Aebiteation. a claim for damages for flowing lands may be 
 submitted to a statute arbitration, and the decision of the arbitrators 
 is valid, unless it appears that it involved the title to real estate. 
 Quinn v. JBesse, 64r— 366. 
 
 20. Waivee oe Damages. The plaintiffs' demand is but a mere 
 pecuniary claim capable of being waived, satisfied or extinguished by 
 parol. Ih. 
 
 21. Reservoie Dam. One whose land is flowed by a reservoir 
 dam, erected by the defendants upon their own land, for the use of 
 mills not owned by them, nor standing upon their land, can not main- 
 tain a complaint for flowage. Crockett v. Millett, 65 — 191. 
 
 22. A complaint for flowage can not be sustained if either of the 
 several respondents have the right to flow the complainant's premises 
 without compensation. Sutler v. Huse, 63 — 447. 
 
 23. Pleading by Respondents. "Where all the defendants have 
 joined in raising a distinct issue that all the owners of the dam are not 
 joined, and alleging that there are owners whose names are unknown, 
 and one of the respondents subsequently files a brief statement rais- 
 ing the same issue, and giving the names of the co-tenants not joined, 
 a special demurrer to the latter, on the ground that the pleader was 
 bound by the former is properly sustained. Turner v. Whitehouse, 
 68—221. 
 
 24. A complaint to recover damages caused by flowage, under R. 
 S., c. 92, may be sustained by one who has been the owner of the 
 land flowed, at any time within three years previous to the institution 
 of the complaint. lb. 
 
 25. The fact that the complainant has parted with his interest prior 
 to the trial will not defeat the action. In such case an adjudication 
 as to future damages may be omitted. Jb. 
 
 26. If DAMAGES are claimed for the whole three years, and the 
 evidence shows that complainant was the owner of the land for a 
 portion of the time only, the warrant to the commissioners may be 
 framed so as to state definitely the time for which the damages are to 
 be appraised. lb. 
 
 27. A case where the respondent erected a steam mill and a dam to 
 raise water for floating logs, is not within the mill act. Dixon v. 
 Ilaton, 68—542. 
 
 28. Judgment. The complainant recovered judgment by default of 
 the respondents, the record not showing any notice to them of the 
 pendency of the complaint. Commissioners were appointed who gave 
 
368 MILLS — mSNOMEE — MISTAKE. 
 
 notice to two of the original respondents, and to the persons who 
 were then owners of the dam. The latter appeared before the com- 
 missioners, and also in court and objected to the report and moved to 
 have the original default stricken off, but after a full hearing their 
 motion was denied and the report accepted. In an action against 
 these last owners of the dam to recover the annual compensation 
 allowed, held, (1) that to recover such annual compensation the plain- 
 tiff must show a valid judgment in his favor against the proper parties 
 as respondents, (2) that the course of proceedings upon the complaint 
 not being according to the common law, there was no presumption of 
 jurisdiction, (3) that the recital in the report of the commissioners 
 that the respondents after due notice did not appear was not record 
 proof of notice to them, (4) that without notice the judgment by 
 default was not valid, (5) and that the appearance of the defendants 
 in the last suit before the commissioners, and their abortive attempt 
 to have the default tak^n off, did not cure the radical defect of want of 
 notice to the original respondents. Prentiss v. Parks, 65 — 559. 
 
 MISNOMER. 
 
 1. A certificate by an officer to the registry of deeds of an attach- 
 ment of real estate of Henry M. Hawkins will not create a lien upon 
 the estate of Henry F. Hawkins, who was the man intended, jket- 
 ton V. Simmons, 65 — 583. 
 
 2. In proceedings to foreclose a chattel mortgage the fact that the 
 name of the mortgagee is sometimes stated in the papers to be 
 "William H. Mansell, and sometimes William Mansell will not vitiate 
 the foreclosure, it appearing that no misapprehension was caused on 
 that account. Ryder v. Mansell, 66 — 167. 
 
 See Appeal, 2, p. 24. 
 Election, p. 194. 
 ExEcimoir, 25, p. 253. 
 Indictment, 68, p. 294. 
 Maeeiage. 
 
 Pleading, or Colton v. Stan-wood, 67 — 25. 
 Tax, or Farnsworth Co. v. Rand, 65 — 19. 
 
 MISTAKE. 
 
 1 . Money paid under a mistake of fact may be recovered back, as 
 where a certain sum was added to defendant's bill when it should 
 have been subtracted from it. Millett v. Holt, 60 — 169. 
 
 2. An indorser of a note, who pays its amount to an indorsee, in 
 ignorance of the fact that the note had been materially altered by the 
 maker in the hands of the indorsee, can recover it back. Sheridan v. 
 Carpenter, 61 — 83. 
 
 3. Where one sues to recover back the amount of a note paid by 
 mistake of fact, it is enough to offer to return the note at the trial. Ih. 
 
MONEY — MORTGAGE. 369 
 
 4. If a mistake is made in drafting a written contract, and the par- 
 ties subsequently settle upon the basis of the contract as it should 
 have been written, and a promise is made to pay or allow the balance 
 thus found due, this verbal correction of the mistake may be shown, 
 and the promise enforced. Wiggin v. Goodwin, 63 — 389. 
 See Bounty, 9, p. 78. 
 Equity, p. 201. 
 Tkotbe, 23. 
 
 MONEY. 
 
 1. If a party receives money, or bank bills, in the usual course of 
 business, for a valuable consideration, and in ignorance of the circum- 
 stances by which the payer came by it, he will be entitled to hold it 
 against a former owner from whom it was fraudulently or feloneously 
 taken. Orneville v. Pearson, 61 — 552. 
 
 2. There are two descriptions of lawful money under the acts of 
 Congress — coin and legal tenders. Stringer v. Coombs, 62 — 160. 
 
 3. An officer, who has collected money on an execution, can not 
 apply it in satisfaction of another execution against the person for 
 whom it was collected, both executions being in his hands for collec- 
 tion at the same time. Hardy v. Tilton, 68 — 195. 
 
 See Payment, 12. 
 
 MORTGAGE. 
 
 I. 
 
 VALIDITY. 
 
 II. 
 
 EIGHTS AND INTERESTS OP THE PARTIES. 
 
 III. 
 
 TRANSFER OF RIGHTS IN MORTGAGED ESTATES. 
 
 IV. 
 
 DISCHARGE. 
 
 V. 
 
 REDEMPTION. 
 
 
 (a) The bight to rbdbem. 
 
 
 (b) Adjustment of accounts. 
 
 
 (c) Bills to bbdeem. 
 
 VI. 
 
 FORECLOSURE. 
 
 VII. 
 
 ACTIONS AT LAW. 
 
 VIII. 
 
 CHATTEL MORTGAGES. 
 
 
 I. VALIDITY. 
 
 1. A deed absolute on its face, with a separate instrument of defeas- 
 ance, must be executed at the same time or as a part of the same tran- 
 saction, in order to constitute a mortgage, and this must affirmatively 
 appear. Cotton v. McKee, 68 — 488. 
 
 2. If the grantee of land conveyed by an absolute deed gives back 
 a bond of defeasance, which is not recorded, as to the public without 
 notice, such grantee is the owner of the fee. Knight v. Dyer, 57 — 174. 
 
 24 
 
370 MOETGAGE. 
 
 3. A man may make a valid mortgage for the payment of money 
 without particularly describing the writing which may be evidence 
 of the debt designed to be secured, or without even giving any 
 
 independent written evidence of' the debt. Varney v. Hawes, 68 
 
 442. 
 
 4. Plaintiff was selling agent of a wholesale firm of whom defendant 
 desired to purchase goods on credit. To obtain the credit it was 
 arranged between plaintiff and defendant that plaintiff should become 
 surety on defendant's note to the firm on four months, for the price of 
 the goods, and defendant should give plaintiff a mortgage on the 
 property demanded in this suit, conditioned for the payment to the 
 plaintiff in four months of a sum of money equal to the amount of the 
 note. This was all done, and defendant had the goods and made par- 
 tial payments to the plaintiff as agent, which were accounted for on 
 the note. He resisted the suit on the mortgage, claiming that the 
 conditional clause in the mortgage did not sufficiently describe the 
 plaintiff's liability on the note and was contradictory to it, and because 
 plaintiff had not then paid the note to his principals. Held, that 
 neither of these defenses could be sustained. lb. 
 
 II. EIGHTS AND INTERESTS OF THE PARTIES. 
 
 5. To postpone a subsequent recorded mortgage to an earlier unre- 
 corded one it is necessary that actual notice of the existence of the 
 earlier mortgage to the subsequent mortgagee be shown by a prepon- 
 derance of testimony. Marshall v. Dunham, 66 — 539. 
 
 6. FixTUEEs, annexed to the reality, by a mortgager, after the 
 execution of the mortgage pass under it. Pope v. Jackson, 65 — 162. 
 
 7. The holder of a junior mortgage may disregard his own mort- 
 gage and sell on execution, issued upon a judgment recovered on his 
 mortgage debt, the debtor's equity growing out of a prior mortgage. 
 Forsyth v. Bowell, 59 — 131. 
 
 8. If the indorser of a note, secured by a mortgage containing a 
 power of sale can disaffirm an auction sale of the premises to the 
 assignee of the mortgage, he must do so within a reasonable time. 
 Patten v. Pearson, 60 — 220. 
 
 9. Where a sale was made in August, 1859, and no disaffirmance 
 attempted until Dec, 1861, when the indorser was sued on the note, 
 and the property had passed to third persons, it was held too late. Ih. 
 
 10. Insurance. When the mortgaged property is insured by the 
 mortgager for his own benefit, and a loss happens, the mortgagee has 
 no lien upon the amount due from the insurers until after he has 
 given the notice required by li. S., 1871, c. 49. Burns v. Collins, 64 
 —215. 
 
 11. If the insurance company, in good faith, pays the amount of 
 the loss to the mortgager before the expiration of the sixty days after 
 the loss, and before any notice is received from the mortgagee of any 
 claim thereon, the latter has no claim against the company, although, 
 after such payment and within sixty days from the time of the loss a 
 notice of the lien or claim is given the company, and a suit com- 
 menced by trustee process to enforce it. lb. 
 
 12. Liability op Moetgagee. Under the statute providing that 
 any railroad corporation, by whose negligence, or by that of its ser- 
 
MOETGAGE. 371 
 
 vants, or agents while employed in its business, the life of any person 
 is lost, shall forfeit a certain sum, to be recovered by indictment, the 
 railroad company is not liable for the forfeiture when, at the time 
 of the accident occasioning the death, the possession of the road is in 
 the hands of mortgagees, having the entire control over it. State v. 
 European & N. A. B. R. Co., 67—479. 
 
 13. Rights of Mortgagee. A mortgagee has the right to take 
 possession of the mortgaged premises, by lawful entry, after publica- 
 tion of notice of foreclosure. Stewart v. Davis, 63 — 539. 
 
 14. As against everybody but the mortgager or his representatives, 
 a mortgage in fee simple conveys an absolute title and right of pos- 
 session. Bird V. Decker, 64 — 550. 
 
 15. Upon an entry by the mortgagee, the mortgager is not entitled 
 to emblements. Oilman v. Wills, 66 — 273. 
 
 16. The owner of land planted crops, and before they were harvested 
 conveyed the land by warranty deed, and took back a mortgage to secure 
 a part of the purchase money. Held, (1) that the crops vested in the 
 grantee in the deed, upon its delivery, (2) that by the mortgage they 
 became revested in the grantor (mortgagee), (3) that he could enter 
 and take them, and (4) that he would be accountable therefor in case 
 of the redemption of the mortgage. lb. 
 
 17. An agreement that the mortgager may retain possession of the 
 mortgaged property until breach of condition is not implied from a 
 conditional clause requiring the mortgager to provide a comfortable 
 home for the mortgagee, and furnish her with sufficient food, cloth- 
 ing, and other necessaries during her natural life. Mason v. Mason, 
 67—546. 
 
 18. Of Moktgagee. Rents and profits of mortgaged property, 
 accruing while the mortgager is in undisturbed possession, belong to 
 him. Mnerson v. European & N. A. H. H. Co., 67^387. 
 
 19. A railroad company mortgaged "all its right, title and interest, 
 in and to all and singular, its property, real and personal, of whatever 
 nature and description, now possessed or to be hereafter acquired," 
 the description also enumerating certain kinds of property, such as 
 franchises, easements, cars, material, etc. Held, that, at law, a sum 
 of money due the company for the carriage of freight, under a con- 
 tract entered into and performed after the execution of the mortgage, 
 did not become the jsroperty of the mortgagee upon his taking pos- 
 session of the road, as against the attaching creditors of the company. 
 lb. 
 
 20. The contract in this case was for the conveyance of an express 
 crate for five years at a certain rate, payable monthly. The mort- 
 gagee took possession of the road between the monthly pay days. 
 JBeld, in trustee process by the creditors of the railroad company, 
 that the pay for the month could be apportioned, that the creditors 
 were entitled to the portion earned up to the time when the mortgagee 
 took possession and the mortgagee for the portion earned after that 
 time. lb. 
 
 21. The POSSESSION of a mortgagee, after foreclosure of the 
 mortgage, is, at most, but a tenancy at sufferance, and may be ter- 
 minated at any moment without a previous notice to quit. Dinsmore 
 V. Savage, 68—191. 
 
372 MORTGAGE. 
 
 22. The right of an outgoing mortgager, after condition broken, to 
 the manure produced upon a farm in the ordinary course of husbandry 
 by him, and while in possession of the mortgaged premises, is to be 
 determined by the rule of law which prevails between mortgager and 
 mortgagee, and not that which prevails between landlprd and tenant. 
 Chase v. Wingate, 68 — 204. 
 
 23. The fact that the mortgagee, after obtaining a writ of posses- 
 sion, allows the mortgager to remain in possession awhile does not 
 change the rule, and a purchaser from the mortgager acquires no title 
 as against the mortgagee. lb. 
 
 24. Land Damages. A mortgagee, not in possession, but whose 
 mortgage is recorded, should have notice of the pendency of proceed- 
 ings instituted by a railway company, before county commissioners, 
 to ascertain the damages of land owners for land taken for the track 
 of the road ; if none is given, the company takes the risk of the want 
 of it. Wilson V. European S IST. A. R. JR. Co., 67—358. 
 
 See Trust, 3. 
 Post, 111. 
 
 III. TRANSFER OF EIGHTS IN MORTGAGED ESTATES. 
 
 25. The assignment of a mortgage must be under seal. Stanley v. 
 ITempton, 59 — 472. Johnson v. Leonards., 68 — 237. 
 
 26. Effect. An assignment by a mortgagee of a mortgage con- 
 ditioned for his support, is not a release of his claim for support under 
 the mortgage. Mitchell v. JBumham, 57 — 314. 
 
 27. When a mortgage debt is paid by one who is bound by contract 
 to pay it, who pays it and takes an assignment, the assignment will 
 be held to be a discharge. Hatch v. Palmer, 58 — 271. 
 
 28. The purchaser, by quitclaim from a mortgagee, who had fore- 
 closed the mortgage, and subsequently waived the foreclosure, has no 
 rights superior to the mortgagee. Dow v. Moor, 59 — 118. 
 
 29. The assent, by a surviving mortgagee, that the administrator 
 of the estate of the assignee of the mortgager may succeed and take 
 the place of his intestate, may be given after as well as before an 
 assignment by the mortgagees, but cannot affect the previously ac- 
 quired rights of the assignees of the mortgagees. JBryant v. Jackson, 
 59—165. 
 
 30. If a mortgager sells a portion of the mortgaged premises, the 
 effect is to impose the whole of the mortgage debt upon the remain- 
 ing portion, if of sufficient value, as against all but the mortgagee. 
 
 Wallace v. Stevens, 64 — 225. 
 
 31. An assignment of a mortgage thus : "I hereby assign to the 
 said (assignee) the within mortgage deed, the debt thereby secured, 
 and all my right, title and interest in the premises thereby described," 
 conveys to the assignee not merely the interest of the mortgagee, but 
 the entire mortgage. Willey v. Williamson, 68 — 71. 
 
 32. The' assignee in such case will take the precedence, his assign- 
 ment being recorded, of a prior unrecorded assignment by the same 
 mortgagee. lb. 
 
 33. By Wareantt Deed. The mortgage must be regarded as 
 assigned when the mortgagee by deed of warranty conveys the mort- 
 gaged premises. Woods v. Woods, 66 — 206. 
 
MOETGAGE. 373 
 
 35. A QtriTOLAiM DEED of the mortgagee to a stranger is sufficient 
 to assign the mortgage and all his interest under it, when no separate 
 obligation is given for payment of the consideration of the mortgage. 
 Johnson v. Leonards, 68 — 237. 
 
 36. Or when it is accompanied by a delivery of the mortgage notes. 
 lb. 
 
 37. Or when it is executed by the executrix of the mortgagee. lb. 
 
 38. Or when the mortgagee is in possession. lb. 
 
 39. And, in general, when it is the intention of the parties that the 
 quitclaim deed shall be effectual to carry the mortgagee's interest in 
 the estate. lb. 
 
 40. Where the quitclaim deed was given for a pecuniary considera- 
 tion, to take effect immediately for the benefit of the bargainee, who 
 was at the time of the conveyance an owner of an undivided half 
 interest in part of the land, and ^Vho received from the bargainor 
 only a qualified warranty in consideration of the sum paid by him for 
 the deed of release, it was held that the deed conveyed the interest of 
 the mortgagee, although the mortgage note was not transferred. lb. 
 
 IV. DISCHARGE. 
 
 41. If the grantee of real estate mortgage it back to secure the 
 purchase-money, and the mortgagee assign bona fide the mortgage to 
 the wife of the mortgager, such assignment will not operate as a dis- 
 charge of the mortgage. Bean v. Boothby, 57' — 295. 
 
 42. And if, when the mortgage given back for the purchase-money 
 of. real estate is assigned bona fide to the wife of the mortgager, the 
 husband quitclaim to her, and she thereupon convey to a third person, 
 by deed of warranty, therein referring to the mortgage, "as having 
 been cancelled by assignment," the mortgage will not thereby become 
 merged, but it will be upheld. lb. 
 
 43. Where a mortgager of real estate, in his lifetime, assigned his 
 property for the benefit of his creditors, and his assignees sold the 
 equity of redemption to the tenants, making the conveyance "subject 
 to a mortgage . . . to be provided for by the purchasers," a pay- 
 ment of the amount due on the mortgage, by the tenants, and an 
 assignment th^eof to themselves, operate as an extinguishment of 
 the mortgage ; and the mortgager's widow, if she did not join in the 
 deed, may recover dower in the premises, notwithstanding she joined 
 in the mortgage for the purpose of releasing her dower. Hatch v. 
 Palmer, 58—271. 
 
 44. If a mortgager sells portions of the mortgaged premises to dif- 
 ferent persons, at different times, each grantee having actual or con- 
 structive notice of the mortgage and of the prior conveyances, the 
 grantees are not bound to contribute rateably to discharge the mort- 
 gage, but the part last sold is primarily liable in equity for the whole 
 debt. Wallace v. Stevens, 64—225. 
 
 45. The acceptance of a quitclaim deed of the grantor's interest in 
 land, including the right to redeem the same from a mortgage, does 
 not impose upon the grantee an obligation to pay the mortgage debt, 
 and he may afterwards become the assignee of the mortgage without 
 thereby discharging it. Randall v. Bradley, 65 — 48. 
 
374 MORTGAGE. 
 
 46. The PEESTiMPTioN of the payment of a mortgage, arising from 
 twenty years' possession by the mortgager without recognizing the 
 mortgage, may be rebutted. Jarvis v. Albro, 67 — 310. 
 
 47. Evidence that the executor of the mortgagee found the note 
 and mortgage among the papers of his testator, that at the time they 
 were found the note was from six to ten years overdue, that nothing 
 was paid on it after that time, and that the executor kept the note 
 and mortgage from twelve to sixteen years after they came into his 
 hands without asserting any claim under them, was held not sufficient 
 to rebut the presumption of payment. lb. 
 
 48. A TENDER of the amount due upon a mortgage after condition 
 broken does not discharge the mortgage. Howell v. Mitchell, 68 — 21. 
 
 49. Suing the notes secured by a mortgage, and procuring judg- 
 ment upon them, without satisfaction, in no way affects the validity 
 of the mortgage. Jewett v. Hamlin, 68 — 172. 
 
 V. REDEMPTION. 
 
 (a) THB EIGHT TO REDEEM. 
 
 (b) Adjustment of ACCorrNTS. 
 
 (c) Bills to bbdebm. 
 
 (a) The right to redeem. 
 
 50. Where the same person holds, as assignee, two mortgages of real 
 estate, the purchaser of the equity of redemption may maintain a 
 bill to redeem from only one of them ; nor will the expiration of the 
 statute term of foreclosure proceedings upon the other mortgage, 
 prevent a decree in his favor as to the mortgage he seeks to redeem. 
 Millihen v. f alley, 61 — 316. 
 
 51. If a mortgagee in possession, after publication, of a notice of 
 foreclosure, is disseized by parties claiming under the mortgager, 
 and obtains an absolute judgment against them in a writ of entry, 
 such judgment will not affect their right of redemption. Stewart v. 
 Pavis, 63—539. 
 
 52. A mortgage condition for the support of the mortgagee is sub- 
 ject to redemption after breach of the condition. Fales v. Hemen- 
 way, 64—373. 
 
 53. It seems that as long as a mortgagee has a right to redeem any 
 portion of the mortgaged premises he has a right to redeem the whole. 
 Howard v. Houghton, 64—445. 
 
 (b) Adjustment of accounts. 
 
 54. When a mortgagee in possession either actually receives rent, 
 or ought to have received it, he will be held accountable therefor to 
 the person entitled to redeem. Milliken v. Bailey, 61 — 816. 
 
 55. MoETGAGB FOE SuppoET. Where by the terms of the condition 
 the mortgagee was to be maintained upon the mortgaged premises 
 the complainant cannot object to a reasonable allowance by the 
 master, for the support of the mortgagee off from the premises, 
 when the complainant had neglected to furnish means for his support 
 on them. Mitchell v. Burnham, 57 — 314. 
 
 56. Nor, for support accruing after an assignment by the mortgagee 
 
MORTGAGE. 375 
 
 to one of the beneficiaries named in the condition, when such assign- 
 ment was not made until a breach of the condition, nor until after an 
 assignment by the mortgager to the complainant, who, with the 
 mortgagee's assent, had undertaken, but failed to fulfil the condition 
 of the mortgage. Ih. 
 
 57. Such an assignment by the mortgagee, is not a release^and dis- 
 charge of his claim for support under the condition of the mortgage. 
 Ih. 
 
 58. Such assignee of the mortgagee, may claim for the future sup- 
 port of the mortgagee and other beneficiaries named in the condition, 
 on the failure of the assignee of the mortgager to furnish it. lb. 
 
 59. Nor can the complainant object to an allowance for support of 
 the mortgagee, actually incurred by the respondent after she had 
 assigned for a time the legal title in trust for the beneficiaries named 
 in the condition. Ih. 
 
 60. Nor can the complainant object that the respondent is not 
 charged with the rents and profits after the building on the premises 
 were burned, and the complainant had collected the insurance thereon, 
 and placed a tenant of his own on the premises. lb. 
 
 61. DowEE. When the widow of a mortgager brings a bill in equity 
 to redeem the mortgage, that she may have dower, the mortgagee 
 must account to her for the rents and profits from the date of his 
 entry into possession under the mortgage, and not merely from the 
 time an account was first demanded of him by the dowress. Dela v. 
 Stamoood, 62 — 574. 
 
 62. If a mortgagee recovers for rents in a writ of entry on the 
 mortgage, in which he has absolute judgment, he must account for the 
 sum recovered if the mortgage be redeemed. Stewart v. Davis, 63 
 —539. See also Qilman v. Wills, 66—273. 
 
 63. Auction Sale. The plaintiff held, by assignment from the 
 defendant, a mortgage on real estate in Massachusetts, containing a 
 power to sell upon breach of condition, in pursuance of which, after 
 due notice, a sale was made at public auction, in August, 1859, and 
 the property struck off for $1,950 to the plaintiff's agent, who, 
 without paying the price, conveyed the property to the plaintiff, who 
 indorsed upon the note the amount of the agent's bid, less expenses 
 of sale and amount paid by him on a prior mortgage, and some years 
 later brought this suit to recover a balance due on the note against 
 the defendant, as indorser. The defendant offered to prove, that in 
 March, 1861, the property was sold for $2,300, and claimed that that 
 sura should be allowed as paid on the note, and that the sale, made in 
 1859, should be treated as a nullity. Held, that in the absence of any 
 evidence tending to show fraudulent practices on the part of the holder 
 of the mortgage in making the first sale, or that the property was 
 fairly worth more at that time than the auction price, this claim must 
 be disallowed, and the evidence that the property sold for a larger 
 sum at a later period rejected. Patten v. Pearson, 57 — 428. 
 
 64. It seems, that a sale under such circumstances, where the 
 mortgagee or trustee becomes the purchaser, is voidable by the 
 mortgager, or cestui que trust, in equity within a reasonable time, but 
 cannot be treated as absolutely void in a suit at common law where 
 there is no evidence of actual fraud or unfair practices. lb. 
 
376 MORTGAGE. 
 
 65. One of the defendants (Savage) in a bill to redeem conveyed 
 the land in question, by deed of warranty, to Charles Bean and 
 Joseph Bean, taking back the mortgage, from which the plaintiffs 
 claim to redeem, to secure the greater part of the purchase money. 
 At the time of this conveyance, Thomas F. Chase was in possession 
 of the land, claiming that he had an existing right to redeem it from 
 a former mortgage given by him to Savage. This claim was un- 
 founded, the mortgage having been legally foreclosed, but Chase 
 refused to surrender the land to either Savage or his grantees, and 
 held it, in spite of all efforts to remove him, for more than seven 
 years. Held, that the owners of the right to redeem, by virtue of a 
 title derived from the Beans, were not entitled to have the defendants 
 charged with rent or damages equal to the income of the land for 
 the seven years that Chase occupied, and to have that amount de- 
 ducted from what would otherwise be due upon the mortgage. 
 Dinsmorey. Savage, 68 — 191. 
 
 66. Improvements. Upon a bill to redeem a mortgage, the sum 
 to be paid by the mortgager, to entitle him to redeem, may include 
 the value of improvements made by the mortgagee in good faith and 
 in the honest belief that he was the absolute owner of the premises, 
 and in some degree authorized by the acts and omissions of the oppos- 
 ing party. Pitman v. Thornton, 66 — 469. 
 
 67. Insueancb. a mortgager can not require a mortgagee to 
 account to him for money received for insurance, where there is 
 no contract between them to that effect, and the insurance was pro- 
 cured by the mortgagee for his own benefit, and the premium paid 
 out of his own money. Mclntire v. Plaisted, 68 — 363. 
 
 (c) Pills to redeem. 
 
 68. A bill to redeem land mortgaged may be brought in the county 
 where the defendant resides, although all the land is situated in other 
 counties. Smith v. Larrabee, 58 — 361. 
 
 69. The right to redeem is a right which can be enforced only in 
 equity ; it cannot be enforced in a suit at law. Randall v. Bradley, 
 65—48. 
 
 70. Demand eoe an Account. If a mortgagee does not object to 
 rendering an account to one claiming to be the owner of the equity 
 of redemption, and demanding an account, but does render an 
 incorrect statement, he can not afterwards urge a technical defect 
 in the title of such person, at the time of the demand, which has 
 been cured by amendment. Milliken v. Bailey, 61 — 316. 
 
 71. A demand for an account by the holder of an equity of redeem- 
 ing one of several tracts of land embraced in the same mortgage, will 
 not enure to the benefit of those who afterwards obtain the title to 
 the right to redeem the remainder of the mortgage, so that all may 
 maintain a bill to redeem the mortgage. Wallace v. Stevens, 64 — 
 225. 
 
 72. A demand for an account, left at the residence of the mort- 
 gagee, is sufiicient, when no question is made in the answer as to its 
 reception, the right of the complainant to require an account is denied, 
 and none is prepared or rendered. Grooher v. Holmes, 65 — 195. 
 
 73. It is not essential to the validity of the demand that it be 
 made by the complainant personally. Ih. 
 
MOETGAGB. 377 
 
 74. A demand by the owner of the equity of redemption, upon the 
 mortgagee, for an account, made upon the mortgagee at a store two 
 miles from his residence, to which the reply was that about eleven 
 hundred dollars was due and that he should not render a more partic- 
 ular account until he was obliged to, no objection being made to the 
 place or further time asked for, was held good, the mortgagee having 
 left the State shortly after and not returned, and the bill commenced 
 about four years after the demand. Wallace v. Stevens, 66 — 190. 
 
 75. ExcKPXiONS. In arguing exceptions to a master's report, find- 
 ing that, to entitle the assignee of a mortgager in a bill in equity 
 against the assignee of the mortgagee to redeem the mortgage condi- 
 tioned for the maintenance of the mortgagee, he shall pay a certain 
 sum incurred for support since the recovery of a conditional judgment 
 on the mortgage, by the mortgagee against the mortgager, the com- 
 plainant cannot urge that the respondent is estopped by the judgment, 
 unless such objection is specially raised by the exceptions. Mitchell 
 V. Burnham, 57 — 314. 
 
 76. In a bill in equity to redeem real estate from a mortgage con- 
 ditioned for the support of the mortgagees and the survivor of them, 
 during life, brought by the assignee of the mortgager against the 
 assignee of the mortgagees, a distinct allegation that the interest of 
 the mortgager was assigned with the consent of the mortgagees is suf- 
 ficient, although it is not alleged that such consent was in writing. 
 Bryant v. Jackson, 59 — 165. 
 
 77. In a bill in equity brought by the heirs of a deceased mort- 
 gager to redeem his mortgage, the defendant is not a competent wit- 
 ness to testify, before a master, for what, and under what circum- 
 stances, his receipt to the deceased offered in evidence, by the plain- 
 tiffs, was given. Cary v. Herrin, 59 — 361. 
 
 78. If a mortgagee recognize the right of redemption as existing in 
 one demanding an account, and render an incorrect statement, he 
 cannot subsequently avail himself of a technical defect in the title of 
 such person, which has been cured by amendment, to avoid payment 
 of costs. MilUhen v. Bailey, 61 — 316. 
 
 79. In the description of pebmises sought to be redeemed in 
 equity, mistakes in the names of the owners of adjoining estates and 
 the omission of one boundary line are immaterial, if enough remain 
 clearly to identify the land intended to be designated. Ih. 
 
 80. When the same person holds as assignee of two mortgages, the 
 purchaser of the equity of redemption may maintain a bill to redeem 
 from only one of them, although by the expiration of time the other 
 has apparently foreclosed during the pendency of the suit. Ih. 
 
 81. When a bill to redeem is brought by a second against a first 
 mortgagee, the latter cannot interpose the objection that the second 
 mortgage is fraudulent as against creditors of the mortgager. Croak- 
 er v. Holmes, 65 — 195. 
 
 82. When a suit in equity is submitted to a referee, under a rule of 
 court, he has the power to decide it upon the same principles that 
 the court has. Pitman, v. Thornton, 66 — 469. 
 
 83. Decebb. When a bill to redeem a mortgage is sustained, the 
 decree should fix the time within which the mortgager shall pay the 
 mortgage debt, or the bill be dismissed with costs. Ih. 
 
378 MORTGAGE. 
 
 86. A further statement in the decree that unless such payment is 
 made within the time therein fixed the mortgage shall stand forever 
 foreclosed, is merely a statement of what could have been the legal 
 effect of the dismissal of the bill without such statement. Ih. 
 
 87. Tender. To support a bill in equity to redeem real estate 
 under mortgage, without first making a tender of the amount due 
 upon the mortgage, the plaintiff must aver and prove that he has 
 been prevented from making the tender by the default of the defend- 
 ant. Dinsmore v. Savage, 68 — 191. 
 
 88. This default may consist in refusing or neglecting to render an 
 account of the sum due upon the mortgage, when requested so to do ; 
 or in rendering a false account. Ih. 
 
 89. But when the defendant is guilty of neither, and has in no 
 Other way, by his default, prevented the plaintiff from performing or 
 tendering performance of the conditions of the mortgage, a suit 
 against him to redeem cannot be maintained. Ih. 
 
 90. Parties. All the owners of a right in equity to redeem real 
 estate under mortgage must be made parties to a bill to redeem. If 
 any one of them refuses to become a party plaintiff, he must be made 
 a party defendant. Southard v. Sutton, 68 — 575. 
 
 91. Costs. If the plaintiff prevails upon a bill in equity to redeem 
 land from a mortgage, he recovers costs as a legal right. Dinsmore 
 V. Savage, 68 — 191. 
 
 VI. FORECLOSURE. 
 
 92. By publication. When a mortgage describes two parcels of 
 land in different counties, and the notice for foreclosure, describing 
 both parcels, is published according to law in a newspaper printed in 
 each county, a copy of the notice published in each county, with the 
 name and date of the paper in each county in which it was last pub- 
 lished, duly recorded in the respective registries, is a sufficient record. 
 Smith V. larrabee, 58 — 361. 
 
 93. A notice, describing land as "one undivided sixth part of 
 township numbered four in the fifteenth range in the county of Piscata- 
 quis, and of township numbered four in the sixteenth range in the 
 county of Somerset, subject to the reservation of public lots," and 
 referring to the mortgage described by naming the parties, and date, 
 and the book and page of registration, contains an intelligible descrip- 
 tion, lb. 
 
 94. Where a published notice is signed with the name of the mort- 
 gagee "by" A. W. P., "his attorney," and the niortgager subsequently 
 recognizes and adopts the proceeding as effectual, he may rely on 
 these facts as, prima facie, sufiicient evidence of the authority of the 
 attorney. Ih. 
 
 95. The giving of permits to cut timber on mortgaged land by the 
 mortgagee, and the receiving of stumpage after publishing notice for 
 the purpose of foreclosure, are not a waiver of such attempted fore- 
 closure. Ih. 
 
 96. A published notice of foreclosure, reciting that on a certain date, 
 L. D., of Portland, "mortgaged to the undersigned certain property 
 particularly described in the deed situated at the corner of Fore and 
 
MORTGAGE. 379 
 
 India streets in said city," does not sufficiently describe the premises. 
 Bela V. Stanwood, 61 — 51. 
 
 97. A mortgagee has the right to take possession of the mortgaged 
 premises, by lawful entry, after publication of notice of foreclosure. 
 Stewart v. Davis, 63 — 539. 
 
 98. A mortgagee in possession, not for the purpose of foreclosure, 
 may avail himself of the method of foreclosing by publishing or serv- 
 ing a copy. Smith v. Zfarrabee, 58 — 361. 
 
 99. Peacbable Entry. A mortgagee in possession of the mortga- 
 ged premises, who enters peaceably in the presence of two witnesses, 
 for the purpose of foreclosure, and causes their certificate to be duly 
 recorded, need not inform the mortgager of the entry. Davis v. 
 Rogers, 64 — 159. 
 
 100. Probably if the proceedings are otherwise regular the foreclos- 
 ure is not prevented by the fact that the entry was purposely made in 
 secret. lb. 
 
 101. To foreclose a mortgage by a peaceable entry in the presence 
 of two witnesses, it is necessary that the mortgagee continue in 
 possession for the three years following the entry. Chase v. Marston, 
 66—271. Jarvis v. Albro, 67—310. 
 
 102. Where the entry is merely formal and the mortgager and those 
 claiming under him remain in possession, not as tenants of the mort- 
 gagee and in subordination to his title, but in opposition to it, the 
 foreclosure is ineffectual. Chase v. Marston, 66 — 271. 
 
 103. Twenty years' possession of the premises under and by 
 virtue of a mortgage is presumptive evidence of a foreclosure. San- 
 dall V. Bradley, 65 — 43. 
 
 104. Misnomer. When the mortgagee in proceedings for foreclos- 
 ure was sometimes called William H. Mansell and sometimes William 
 Mansell, omitting the middle initial, the foreclosure was held valid, it 
 appearing that he was by both names known to be the same person, 
 and that no mistake or misapprehension had occurred on that account. 
 Ryder v. Mansell, 66 — 167. 
 
 105. The Kennebec & Portland Railroad Company, on the 15th of 
 October, 1852, pursuant to a vote of its directors, mortgaged its road, 
 franchise, and other property to certain persons named, in trust, for 
 the benefit of the holders of a certain class of its bonds, duly issued 
 by the company, with interest payable semi-annually. The company 
 having neglected to pay the interest coupons due on the bonds, on and 
 after April 1, 1856, the trustees, upon due application by the holders 
 of the Ijonds to an amount exceeding one-third of the amount of the 
 mortgage, on the 18th of October, 1859, in accordance with the Public 
 Laws of 1857, c. 57, gave the public notice, and caused the same to be 
 published, and a copy of the printed notice recorded at the time and 
 place and in the manner prescribed in said statute, for the purpose of 
 obtaining a foreclosure of the mortgage for the breach of its condition. 
 In a bill to redeem, held, by a majority of the court, that the mortgage 
 was legally foreclosed. Ken. <& Port. R. R. Co. v. Port. d> Ken. R. 
 R. Co., 59—9. 
 
 106. When a bill to redeem a mortgage is dismissed by a decree 
 terminating the suit upon its merits, the legal effect of such decree is- 
 a foreclosure of the mortgage. Pitman v. Thornton, 66 — 469. 
 
380 MORTGAGE. 
 
 107. And if the bill is sustained and a decree entered that the mort- 
 gager shall pay the mortgage debt within a time therein fixed, or the 
 bill be dismissed the neglect of the mortgager to make the payment 
 ■within the time fixed is a foreclosure of the mortgage. lb. 
 
 108. Waivee. The receipt, after foreclosure, of a part of the debt 
 secured by a mortgage of real estate, under an express understanding 
 that the foreclosure was opened, will be deemed a waiver of the fore- 
 closure. Dow V. Moor, 59 — 118. 
 
 109. Where a mortgage of real estate has been lawfully foreclosed 
 by the mortgagee, and the most that can be alleged as the result of 
 his acts and agreements in relation thereto is, that he was willing and 
 had agreed to sell his foreclosure title on receipt, within a specified 
 time, of a sum equal to the amount of the notes secured by the mort- 
 gage, the foreclosure cannot be considered as thereby opened. Stet- 
 son V. Everett, 59—376. 
 
 110. Thus, a written agreement by the mortgagee, with the assignee 
 of the mortgager after foreclosure, that upon the receipt, within a 
 specified time, of a fixed sum equal to the amount secured by the mort- 
 gage, he will release his title acquired "by virtue of the foreclosure of 
 my mortgage," adding, "it is the foreclosure title only, which I here- 
 by agree to convey ;" or, a bond, given by the mortgagee to the 
 assignee of the mortgager, conditioned to release all the obligor's title 
 "being Only a foreclosure or mortgage title, on, payment of the balance 
 due on the mortgage notes, the balance being" a specified sum, with a 
 further proviso that the obligee shall pay the obligor all the sums of 
 money which the obligee owes him, — is not sufiicient evidence of an 
 intention on the part of the obligor to keep open the foreclosure. Ih. 
 
 111. The mortgager of timber land, having reserved the right to 
 cut and carry off timber from the mortgaged premises, the mortgagee, 
 retaining title thereto, to secure the stumpage on the notes secured, 
 conveyed his interest in different proportions to various persons, /to 
 one of whom the mortgagee, after foreclosure was perfected, gave a 
 bond to release to the obligee the mortgagee's foreclosure title upon 
 the receipt, within a specified time, of a sum equal to the amount due 
 on the mortgage, with interest annually. The interest was paid 
 annually from the stumpage and indorsed upon the mortgage notes, 
 and the whole sum was paid within the time specified. Held, that the 
 payment and indorsements ' of the interest did not open the fore- 
 closure ; and that the assignee of the mortgager, in obtaining the 
 mortgagee's title, did not act as the trustee of the other assignees of 
 the mortgager. Ih. 
 
 112. If a mortgagee who has published a notice to foreclose the 
 mortgage, has also the possession of the premises, and is disseized 
 by parties claiming under the mortgager, a writ of entry brought by 
 him against such disseizors, and an absolute judgment for possession, 
 are not a waiver of the foreclosure by publication. Stewart v. Davis, 
 63—539. 
 
 VII. ACTIONS AT LAW. 
 
 113. To a writ of entry, brought on an unassigned mortgage, the 
 fact that the notes and mortgage are the property of a third person, 
 is no defense. Stanley v. Kempton, 59 — 472. 
 
 114. Although the note offered to support a mortgage differs from 
 
MORTGAGE. 381 
 
 the one therein described in date, time of payment, amount, and 
 name of payee, parol evidence is admissible to show that the one 
 offered is the one intended to be secured by the mortgage. The large 
 number of mistakes in the description renders the proof more difficult, 
 but does not exclude the evidence. Hoey v. Candage, 61 — 257. 
 
 115. A mortgagee, after lawful entry, may maintain trespass or a 
 writ of entry against the mortgager, or those claiming under him, 
 who enters upon the premises without his consent. Stewart v. Davis, 
 63—539. 
 
 116. When the mortgage is conditioned for the support of the 
 mortgagee, or others, during life, the sum for which the conditional 
 judgment should be awarded, should include not only damages for 
 past defaults, but general prospective damages for the future ; that 
 is, the sum should be a present equivalent for fuU performance. Fales 
 V. Hemenway, 64 — 373. 
 
 117. When a note secured by mortgage is barred by the statute of 
 limitations, yet if not paid, a recovery may be had on the mortgage. 
 Crooher v. Holmes, 65 — 195. 
 
 118. The objection that trespass quare clausum will not lie by a 
 mortgager against a mortgagee is not sustainable when the mortgager 
 is in possession under such an agreement as creates the relation of 
 landlord and tenant between them. Marden v. Jordan, 65 — 9. 
 
 120. Where a mortgage is given in usual form, the mortgager can- 
 not maintain an action of trespass against the mortgagee for entering, 
 harvesting, and carrying away the crops which were planted but not 
 severed from the soil at the time of the delivery of the mortgage, or 
 the entry. Gilman v. Wills, 66 — 273. 
 
 121 . A tender of the amount due on a mortgage after condition 
 broken, although it may be good as a prerequisite to a bill in equity 
 is not, in a real action, equivalent to a discharge of the mortgage, 
 and in such a case a mortgager cannot maintain a writ of entry against 
 a mortgagee in possession. Howell v. Mitchell, 68 — 21. 
 
 122. The mortgager cannot maintain a writ of entry against the 
 mortgagee, or his assignees, without showing a satisfaction of the 
 mortgage. Jewett v. Samlin, 68 — 172. Woods v. Woods, 66 — 206. 
 
 123. A writ of entry by the mortgager, against the mortgagee or 
 his assignee, is not an appropriate action in which to determine the 
 validity of an attempted foreclosure. Jewett v. Hamlin, 68 — 172. 
 
 124. The Jxtdgmbnt. A mortgagee who brings, after entry, and 
 before foreclosure, a writ of entry against the mortgager, or those 
 claiming under him, on account of a disseizin committed by the latter, 
 is entitled to an absolute judgment. Stewart v. Davis, 63 — 539. 
 
 125. In a real action upon a mortgage, in which the mortgagee 
 counts generally upon his own seizin, and the demanded premises 
 include only a part of the premises embraced in the mortgage, if the 
 defendant objects to a conditional judgment, and the plaintiff does 
 not ask for it, the latter is entitled to judgment at common law. 
 Howard v. Houghton, 64 — 445. 
 
 126. In a real action by a mortgagee or assignee, against one hav- 
 ing no title, the demandant is entitled to absolute judgment, and 
 damages for waste when claimed. Bird v. Decker, 64 — 550. 
 
 127. Under R. S., 1871, c. 90, § 9, providing that if it appears that 
 
382 MORTGAGE. 
 
 nothing is due on the mortgage, judgment shall be for the defendant, 
 the defense is not made out by showing that nothing is payable 
 merely. It must appear that nothing is due or is ever to be due. 
 Mason v. Mason, 67 — 546. 
 
 VIII. CHATTEL MORTGAGES. 
 
 128. To render a mortgage or pledge good as against attaching 
 creditors or subsequent purchasers, there must be a distinct and spec- 
 ific condition that can be clearly stated and understood, and which 
 being performed, the property would be released. Fairfield Bridge 
 Co. V. Nye, 60—372. 
 
 129. A DBSCEiPTioN of the property as "eight horses in stable No. 
 19 Silver street," is sufficient, although other horses not belonging to 
 the mortgager were in the stable. Elder v. Miller, 60 — 118. 
 
 130. Parol evidence is admissible to establish the identity of perso- 
 nal property embraced in a mortgage, but not particularly described 
 therein, the description being goods in a store. lb. 
 
 131. A mortgage of the goods and chattels now in the mortgager's 
 store, "a schedule of which is hereunto annexed," covers only the goods 
 then in the store of which a schedule was made. Partridge v. White, 
 59—564. 
 
 132. In January, 1869, McNeill and Swett gave the plaintiff their 
 note secured by a mortgage of all the stock in trade, in the store 
 occupied by the mortgagers on Point street, in Calais ; "also, any and 
 all additions that may, from time to time, be made to said stock by" 
 the mortgagers. In May, 1869, the unsold original stock, together 
 with additions theretofore made and remaining unsold, was removed 
 to another store by the mortgagers, who executed under their hands 
 and seals on the back of the mortgage a writing duly recorded, therein 
 agreeing that the "mortgage, with this indorsement thereon, shall cover 
 the portion of said stock removed, the same as though it had remained 
 in the former store, and that it shall hold and cover any and all addi- 
 tions that have been or may be made to the same, as though the stock 
 had remained and been put into the former store." In tres^ss by 
 the mortgagee, against an officer for attaching the goods in July, 1869, 
 as the property of the mortgagers, held, that the mortgage, with the 
 indorsement thereon, gave to the plaintiff a title to the stock in the 
 second store at the time of the indorsement. Brown v. Thompson, 
 59—372. 
 
 133. Accession. Under a mortgage of plants and shrubs in a green 
 house, other plants, raised in the green house, the growth of cuttings 
 from the mortgaged plants, pass to the mortgagee by accession. 
 Bryant v. Pennell, 61 — 108. 
 
 134. Record. Before a vessel is registered or enrolled, a mortgage 
 of it will be valid if recorded agreeably to the laws of the State. 
 After it is registered or enrolled, a mortgage of it will not be valid 
 against any person other than the mortgager, his heirs and devisees, 
 and persons having actual notice thereof, unless recorded as required 
 by the laws of the United States. Perkins v. JEmersen, 59 — 319. 
 
 135. A receipted bill of parcels, or bill of sale, by which the title 
 to personal property is conveyed to a creditor of the owner, absolute 
 in form but made for the purpose of securing a debt of more than thirty 
 dollars, and designed to operate as a mortgage, is not valid against 
 
MOETGAGB. 383 
 
 bona fide purchases from the owner, or attaching creditors, unless 
 recorded or possession is delivered to and retained by the creditors. 
 Shaw V. WUshire, 65—487. 
 
 136. A mere formal delivery at the time of the execution of the in- 
 strument, the property afterwards going into the possession of the 
 debtor by whom it is retained, is not sufficient. Jb. 
 
 137. In 1869, the plaintiff being then and still a citizen of Brighton, 
 Vermont, then and there delivered to one Philbrick, then and still a 
 citizen of Maine, four horses, six stage harnesses, and a covered two- 
 horse wagon, receiving from the latter his promissory note of that 
 date, together with a writing signed by him, dated at Brighton, recit- 
 ing what the note was given for, and stipulating that the "said horses, 
 harnesses, and wagon are to remain the property of the said" plaintiff 
 "until said note is paid the said" plaintiff, "to have and apply toward 
 the payment of the said note, the sums paid by the TJ. S. Government 
 for transportation of the mails from East Machias (Maine), to Lubec 
 (Maine), as the same shall become due." The statute of Vermont 
 does not require such a contract to be recorded. Held, that the law 
 of Vermont governed the contract, and that R. S., c. Ill, § 5, does 
 not affect it. J)rew v. Smith, 59 — 393. 
 
 138. FoEECLOsuEE. Since April 12, 1861, the sixty days after which 
 the. right to redeem mortgages of personal property to secure the 
 payment of more than thirty dollars will be forfeited, commence to 
 run when the notice provided in R. S., c. 91, § 4, is given and recorded. 
 Trask v. Pennell, 59-^19. 
 
 139. Where there are two mortgages upon goods, and the first 
 mortgagee takes possession and sells the goods, without foreclosure, 
 he will be liable to the second mortgagee if there were more goods 
 than were sufficient to pay his mortgage. Partridge v. White, 59 
 —564. 
 
 140. By virtue of R. S., c. 81, § 42, a mortgagee or pledgee of prop- 
 erty attached, cannot replevy it from the attaching officer, until he 
 has given the officer "at least forty-eight hours" written notice of the 
 claim and the true amount thereof. Fairfield B. Go. v. Nye, 60 — 
 372. 
 
 141. Personal property in the possession of a vendee, under an 
 agreement that he is to become the owner when it is paid for, may be 
 mortgaged by the vender at any time before it is fully paid for, and 
 the mortgagee will obtain a title superior at law to that of the condi- 
 tional vendee. Everett v. Hall, 67 — 497. 
 
 142. Whether the conditional vendee has, in equity, any lien upon 
 the property for payments made to the conditional vender before the 
 mortgage is recorded qucere,. Ih: 
 
 143. The plaintiff and her husband gave a note to one Robie, and 
 secured it by a mortgage or written pledge of the furniture in ques- 
 tion in this suit. The defendant advanced to the husband, who was 
 his son, money, in whole or part, to pay the note. Thereupon the 
 note and mortgage were surrendered to the husband in the presence 
 of the defendant, the plaintiff not appearing to be present at the time. 
 Before the parties separated, upon re-consideration, it was determined 
 that Robie should assign the note and mortgage to the defendant, and 
 he did so. Held, that as against the plaintiff, the defendant could 
 not receive the title in that way, if the note had been previously paid 
 
384 MORTGAGE — NEGLIGENCE. 
 
 and the note and mortgfige given up to one of the makers. It then 
 heoame functus officio. Moody v. Moody, 68 — 155. 
 See AppuETBNAiircB, p. 26. 
 
 Equity, 57, p. 201. 
 
 Sale, 28. 
 
 Tktjst, 3. 
 
 Tkotbe, 17. 
 
 NEGLIGENCE. 
 
 I. 6ENEEALLY. 
 
 II. OONTEIBUTORT NEGLIGENCE AND PROXIMATE CAUSE. 
 in. WHETHER THE QUESTION IS ONE OF LAW OR FACT. 
 
 I. GENERALLY. 
 
 1. A city is not liable at common law as for gross negligence in 
 omitting to place guards indicating the position of an excavation 
 ■which was being made by servants of the town. Morgan v. ITal- 
 lowell, 57—375. 
 
 2. A person undertaking to drive logs for the owner, cannot excuse 
 his carelessness in driving, upon the ground that the owner did not 
 turn out to be driven all the logs he had contracted to. Boody v. 
 Goddard, 57—602. 
 
 8. On the premises of the defendant, within one foot of the side- 
 walk of a public street, was a descending roll-way leading to the base- 
 jiient of the defendant's block of stores. The entrance to the south 
 store, occupied by the defendant's tenant as a drug store, was up four 
 narrow steps immediately south of the roll-way. In front of the 
 roll-way was a continuous platform, extending from the north end of 
 the block to the roll-way. The roll-way was unprovided with 
 railing or other safeguard, except a buttress on either side thereof, 
 rising nine inches above the level of the platform. The plaintiff 
 went upon the north end of the platform, in the evening, and 
 while passing along in the exercise of ordinary care, for the 
 purpose of entering the drug store on legitimate business, fell into 
 the roll-way and was injured. Seld, that the place was unsafe, and 
 the defendant liable. Stratton v. Staples, 59 — 94. 
 
 4. In the trial of an action agamst a mutual company, on a fire pol- 
 icy conditioned that in case of gross negligence on the part of the in- 
 sured, the policy should be absolutely void, there was conflicting tes- 
 timony as to the actual condition and situation of the stove, from 
 which the fire was communicated to the building insured. The jury 
 were instructed that gross negligence was the "utter disregard of 
 those precautionary measures which men of ordinary prudence adopt 
 in such a case." Seld, that while there might be positive acts of 
 gross negligence, which would not come within the instruction, it 
 also impliedly required a higher degree of diligence on the part of 
 the plaintiff than he was bound to exercise ; and as this branch of the 
 case evidently turned upon the finding as to the actual condition and 
 
NEGLIGENCE. 385 
 
 aituation of the stove, and not upon any nice definition of gross neg- 
 ligence, the exception would be overruled. Campbell v. Monmouth 
 Mutual Fire Ins. Co., 59 — 430. 
 
 5. Railroad. In the trial of an action for an injury alleged to 
 have been received while passing along a "public street and highway 
 across the railroad track of the defendants," if the evidence of a legal 
 location is wanting, it is proper to instruct the jury that there was no 
 legal highway bv reason of any proper location ; but that if the jury 
 should find, that, with the consent of the company owning the track 
 and having the right of passage there with trains, and of the owners 
 of the fee in the land, there had been a thoroughfare in open and 
 continuous use by the public, and all who had occasion to go between 
 the termini mentioned, and that use commenced prior to the running 
 of the defendant's trains there, and continued to the time of the acci- 
 dent without objection made by the company owning the track, or the 
 owners of the fee, or the defendants, they might thence infer the exist- 
 ence of such a way and right of crossing the railroad at grade there, 
 aswould bind the defendants to the use of the same precautions, 
 prudence, care, and diligence in running their engines, as they would 
 be bound to exercise if a highway had been located across the track 
 there at grade. Webh v. Portland & Kennebec R. R. Co., 67 — 117. 
 
 6. R. S., c. 51, § 36, provides that any railroad corporation, by 
 whose negligence or carelessness, or by that of its servants or agents 
 which are employed in its business, the life of any person, in the exer- 
 cise of due care and diligence, is lost, forfeits not less than five 
 hundred nor more than five thousand dollars, to be recovered by 
 indictment found within one year, wholly to the use of his widow, if 
 no children ; and to the children, if no widow ; if both, to her and 
 them equally. State v. G. T. R. Co., 60—145. 
 
 7. To bring a case within this statute the killing must be instanta^ 
 neous. State v. G. T. Railway, 60 — 145. Same v. Same, 61 — 114. 
 
 8. The remedy is not applicable in any case to the emjjloyees of 
 the road. State v. M. C. R. R. Co., 60—490. 
 
 9. In an action against a foewaeder for negligence, the burden of 
 proof is on the plaintiff. Plantation No. 4 v. Sail, 61 — 517. 
 
 10. Note. If a person, without reading it, signs and delivers to 
 another a blank promissory note, wanting only date, time and amount, 
 upon the assurance of the latter that it is some other agreement, and 
 the blanks are filled up and the note put into circulation, he is liable to 
 a bona fide holder for value on the ground that his own negligence fur- 
 nished the opportunity for the fraud from which either he or the 
 holder must suffer. Abbott v. Rose, 62 — 194. Kellogg v. Curtis, 
 65—59. 
 
 11. A PHYSICIAN who leaves a patient at a critical stage of the dis- 
 ease, without suiBcient notice to enable the patient to procure another 
 medical attendant, is guilty of negligence, although his employment 
 m the first instance was for no specific period. Barbour v. Martin, 
 62—536. 
 
 12. A portion of a wharf was occupied by a mercantile house for 
 the storage of goods and the dispatch of vessels, in pursuance of a 
 verbal arrangement with the owner, the wharf to be kept in repair by 
 the lessor. A truckman employed by a seaman to carry a chest to a 
 
 25 
 
386 NEGLIGENCE. 
 
 vessel lying at the wharf, stepped into an old hole in the covering of 
 that portion used by the house and was injured. Held, that the owner 
 was liable for the injury caused by his negligence; that it did not 
 relieve the owner from liability that the occupier might be liable to 
 an action ; that if the place was held out to the public as a place of 
 public travel, either by the owner or the lessee, the owner was 
 responsible for injuries, happening from negligence in keeping it in 
 repair, to all persons rightfully engaged in any business relating to 
 the general purpose for which that portion of the wharf was hired ; 
 that it was not necessary that the business should directly concern 
 the owner or the lessee ; and that the truckman was not a mere 
 licensee but was engaged in a necessary and common incident of the 
 business for which the wharf was constructed and let. Oamphell v. 
 Portland Sugar Co., 62 — 552. 
 
 13. The liability of the owner of real estate for injuries caused by 
 his neglect to keep in repair places upon which the public is induced 
 to enter for business, with the consent of such owner, dej^ends not on 
 privity of contract, but on duty and obligation. lb. 
 
 14. Common Caeeiees can not stipulate for exemption from losses 
 occasioned by their own negligence, or that of their servants. Willis 
 V. Grand Trunk Railway, 62 — 488. Little v. Boston & Maine R. 
 R. Co., 66—239. 
 
 15. PiEE. In an action under the statute providing that whoever 
 kindles a fire on his own land shall do so in a careful and prudent 
 manner, and for failure so to do, shall be liable to any person injured, 
 (R. S., 1871, c. 26, § 21), the burden of proof is upon the plaintiff to 
 show negligence on the part of the defendant. Sturgis v. Robbins, 
 62—289. 
 
 16. When a seevant seeks to recover of his master for negligence 
 in hiring incompetent persons, on account of which an injury resulted 
 to the plaintiff, he must distinctly set out such negligence. Lawler 
 y. Androscoggin R. R. Co., 62—463. 
 
 17. The plaintiffs, with their stock of goods, occupied the first floor 
 of a building in Portland, and the defendants the hall in the third 
 story, together with the appurtenances thei-eto, including a urinal 
 supplied with Sebago water. In the night the faucet in the closet 
 regulating the flow of the water into the urinal was left wide open, 
 and the eflJux, from some cause, not being equal to the influx, the 
 water overflowed the bowl and flooded the plaintiff's store and injured 
 their stock. The faucet was left open, negligently, by the janitor 
 who had charge of the hall. Held, that the defendants were liable 
 for the damage caused by the overflow. Simonton v. Loring, 68 — 
 164. 
 
 18. Oedinaet caee depends wholly upon the particular facts of 
 each case — the degree of caution and diligence rising, conforming to 
 and being commensurate with the exigencies which call for its exer- 
 cise. It must be equal to the occasion on which it is to be used, and 
 is always to be judged of according to the subject matter, the force 
 and dangerous nature of the material under one's charge. lb. 
 
 II. CONTRIBUTORY NEGLIGENCE AND PROXIMATE CAUSE. 
 
 19. The plaintiff being in a narrow fenced lane leading to the 
 crossing over defendant's railroad, and distant about two and one-half 
 
NEGLIGENCE. 387 
 
 rods from its track, perceiving the defendant's train forty rods from 
 but approaching the crossing, he being distant seven rods from the 
 same, attempted to cross the track before the train should reach it, 
 and was injured by the train. Held, that the plaintiff was guilty of 
 contributory negligence. Grows Y.Maine Central R. M. Go.,Ql — 100. 
 
 20. The plaintiff's lot and those adjoining on the north and south, 
 were crossed by the defendants' road, and bounded on the east by a 
 river, the division fence between so much of the plaintiff's and the 
 south lot as lay between the railroad and river (being the plaintiff's 
 pasture) being defective. The railroad fence extended on both sides 
 of the road across the plaintiff's lot ; that on the river side of the 
 road, across the north lot setting several feet further from the track 
 did not form a continuous line with that across the ])laintiff's ; while 
 pursuant to an agreement between the defendants and the proprietor 
 thereof, there was no railroad fence on the south lot on the river side 
 
 ,of the road. The plaintiff's pasture was also fenced on the river 
 bank above high-water mark. An ox of the plaintiff escaped from 
 his owner's pasture through the gap of the defendants' fence, occa- 
 sioned by want of continuity upon the track, was driven thence by 
 the defendants' employee upon the north lot, whence during the next 
 six hours, the ox wandered along the river bank across his owner's 
 land outside of its inclosure, to and upon the south lot and thence 
 upon the track, where he was killed by the defendants' locomotive 
 while being managed with proper care on their part. Held, that the 
 gap in the defendants' fence on the plaintiffs land, through which the 
 animal escaped from his pasture was the efficient procuring caiise of 
 the accident, and that the maxim '■'■causa proxima, " had no applioa^ 
 tion to the case. Gilman v. European & N. A. R. R. Co., 60 — 235. 
 
 21. Also, held, that the omission of the plaintiff to erect a suffi- 
 cient fence between his pasture and the south lot can not be imputed 
 to him as contributory negligence. lb. 
 
 22. If a defect in a highway causes such a breaking and derange- 
 ment of a safe and proper vehicle, that the direct and natural conse- 
 quence is the frightening of a kind, safe, and well broken horse 
 beyond the control of a reasonably skillful and careful driver, and the 
 horse while violently running down a steep hill falls and the plaintiff 
 is thrown out and injured, it is competent for the jury to find the 
 defect to be the sole cause of the accident. The fall of such a horse, 
 under such circumstances, is not to be reckoned a contributory cause, 
 but a part of the accident, like the fall of the plaintiff from the car- 
 riage. Willey V. Belfast, 61—569. 
 
 23. The principle seems clearly established that negligence may be 
 regarded as the proximate cause of an injury of which it is not the 
 sole and immediate cause. Luke v. Milliken, 62 — 240. 
 
 24. If an injury is the result of two concurring causes, the party 
 responsible for one of these causes is not exempt from liability because 
 the person (not the plaintiff), who is responsible for the other cause 
 may be equally culpable. lb. 
 
 25. The failure of a truckman, who was cariying a chest upon his 
 shoulder down a wharf, in the twilight, to observe a hole worn 
 through the covering of the wharf, into which he stepped and was 
 injured, was not considered a want of ordinary care. Campbell v. 
 Portland Sugar Co., 62—552. 
 
388 NEGLIGENCE. 
 
 26. If a horse through fright, occasioned solely by a defect in the 
 road, becomes uncontrollable, and while in that condition runs away, 
 throws the driver out and injures him, the defect is the true proxi- 
 mate cause of the injury. It cannot be maintained that the fright, 
 loss of control and running away of the horse, are intervening causes 
 which crowd the defect back into causa remota. Clark v. Lebanon, 
 63—393. 
 
 27. If the defendant, a mill owner, is liable in damages for negli- 
 gence in throwing drift stuff into a stream, to float away without care 
 or oversight, the fact that the drift stuff was thrown upon the plain- 
 tiff's land by a freshet will not exonerate him. Washburn v. Gilman, 
 64—163. 
 
 28. ISov will the fact that the injury to the plaintiff's land was occa- 
 sioned by the drift stuff thrown into the stream by others, mingled 
 with that thrown in by the defendant, reduce the plaintiff's claim to 
 nominal damages, lb. 
 
 29. The difficulty of accurately proportioning and assessing the 
 damages may be great, but this does not relieve the defendant from 
 liability for the results of his own wrongful or negligent acts. lb. 
 
 80. In an action against a town to recover three-fourths of the value 
 of a porgy oil factory destroyed by a mob, evidence that the factory 
 was a nuisance is not admissible to show contributory negligence on 
 the part of the plaintiffs. Srightman v. Bristol, 65 — 426. 
 
 31. On the trial of an action against a town for having negligently 
 and unlawfully filled up one of two channels of a stream, turning the 
 water into the other, and causing it to cut a new channel and destroy 
 the plaintiff's bridge, it was alleged in defense that contributory 
 causes might be found in the plaintiff's negligence in building an un- 
 safe abutment to the bridge, and in an unusual freshet. The presid- 
 ing judge, after defining the term ordinary care, instructed the jury 
 that the sole, true, and efficient cause of the damage, must be shown to 
 be the want of care on the part of the defendant, that if the damage 
 was occasioned in part by an extraordinary outburst of the powers of 
 nature in storm and freshet, such as men of ordinary prudence could 
 not be reasonably expected to anticipate, the plaintiff could not re- 
 cover. Held, that the language of the judge did not convey an 
 erroneous idea of the character of the freshet, which could be re- 
 garded as a contributory cause. Topsham v. Lisbon, 65 — 449. 
 
 32. Held, also, that the defendant could not complain because the 
 judge cautioned the jury not to indulge in nice logical refinements as 
 to what constitutes a sole cause, but to apply their common sense and 
 ascertain what was the real, true, and efficient cause of the damage. 
 lb. 
 
 33. Parent and Child. A ditch was dug along the side of a 
 house and extended into the street, so that there was no way to go 
 from the house to the privy used therewith except by crossing the 
 ditch, or passing around that end of it which was in the street. The 
 ditch was dug by the owner of the house which was occupied by ten- 
 ants ; the plaintiff, a minor, "living in the house as a member of the 
 family of her father, one of the tenants, in attempting to go around 
 the drain, to return from the privy to the house, fell into it and was 
 injured. Held, that the negligence of the father in allowing the drain 
 to remain uncovered would preclude the plaintiff from recovering 
 
NEGLIGENCE. 389 
 
 damages of the city, though at the time of the accident she was in the 
 exercise of ordinary care. Zieslie v. Ziewiston, 62 — 468. 
 
 34. In an action to recover damages for injuries to a child, non sui 
 juris, occasioned by the negligence of defendant, negligence on the 
 part of the parents is no defense, where it appears that the child has 
 not committed or omitted any act which would constitute contribu- 
 tory negligence in a person of years of discretion. G'JBrien v. Mc- 
 GUnchy, 68—552. See Infant, 16, p. 297. 
 
 35. Negligence can only be imputed to the child through the 
 parents, but where the child has done no negligent act the conduct of 
 the parents is immaterial. lb. 
 
 36. Generally, it is a defense to an action of tort that the plaintiff's 
 negligence contributed to produce the injury. But in cases where 
 the negligent acts of the parties are distinct and independent of each 
 other, the act of the plaintiff preceding that of the defendant, it is 
 considered that the plaintiffs conduct does not contribute to produce 
 the injury, if, notwithstanding his negligence, the injury could have 
 been avoided by the use of ordinary care at the time by the defend- 
 ant, lb. 
 
 37. But this principle will not govern where both parties are 
 contemporaneously and actively in fault, and by their mutual care- 
 lessness an injury ensues to one or both of them ; nor where the neg- 
 ligent act of the defendant takes place first and the negligence of the 
 plaintiff operates as an intervening cause between it and the injury ; 
 and there may be other exceptions. lb. 
 
 III. WHETHER THE QUESTION IS ONE OF LAW OR FACT. 
 
 38. Whether a pei'son injured by a locomotive at a railroad crossing 
 was or not in the exercise of ordinary care, is a question of fact to be 
 submitted to the jury under proper instructions, unless some unques- 
 tioned fact affords conclusive proof of negligence. Webb v. Portland 
 & Kennebec B. B. Co., 57—117. 
 
 39. The defendant had thrown a pile of boards into the travelled 
 path of the highway, the boards laying loosely. A wagon loaded with 
 barrels, was driven over the boards, causing the boards and barrels to 
 rattle and thereby frightening the horse of the plaintiff, who was fol- 
 lowing with due care, on account of which the plaintiff was thrown 
 from his wagon and injured. Held, that a nonsuit was improperly 
 ordered, it being for the jury to say whether the defendant did not 
 place his lumber in such a situation that he might reasonably antici- 
 pate the very result which followed. Lake v. Milliken, 62 — 240. 
 
 40. If the evidence of the plaintiff tends to show that a gate erected 
 by a railroad company, (the defendant) as a part of a fence it is bound 
 to maintain, was insecurely hung, that when the plaintiff, or his ser- 
 vant, was passing through it fell on account of its defective fastening, 
 that the plaintiff was unable to replace it but shut up his cattle in his 
 bam-yard for greater security, from whence they escaped upon the 
 defendant's track and were killed, the question of contributory negli- 
 gence should be submitted to the jury. Estes v. Atlantic & St. 
 Lawrence B. B. Co., 63—308. 
 
 41. The mere fact that improved land adjoining a railroad track is 
 not fenced is not proof that the owner of the land was guilty of con- 
 
390 NEGLIGENCE — NEW TEIAL. 
 
 tributory negligence in turning out his horse upon the land, and will 
 not relieve the railroad company from liability for damages if the 
 horse strays upon the track and is killed by a train. Wilder v. 
 Maine Central JR. B. Co., 65—332. 
 
 42. In such case the question of fact, whether under all the circum- 
 stances of the case it was negligence on the part of the owner to turn 
 his horse out as he did should be submitted to the jury under appro- 
 priate instructions. Jb. 
 
 43. When the issue in a case turns upon the negligence of a party and 
 when men of equal intelligence and impartiality might honestly draw 
 different conclusions from the facts, the court will not determine the 
 question as one of law. Larrahee v. Sewall, 66 — 376. 
 
 44. And where the question depends upon testimony not only more 
 or less remote and uncertain, but seriously conflicting, and where it is 
 possible to perceive more than one decision at which the jury might 
 arrive without being open to the charge of manifestly disregarding the 
 evidence, the court will decline to select a series of facts possible to 
 exist from the testimony, and state to the jury whether such facts, if 
 found would or would not constitute negligence. Hobbs v. Eastern 
 B. B. Co., 66—572. 
 
 45. It is sufficient if the presiding judge gives to the jury clear defi- 
 nitions of what the law means by the term negligence, and then leaves 
 the question to their decision. lb. 
 
 46. The facts being undisputed the question of contributory negli- 
 gence is one of law. Grows v. Maine Central B. B. Co., 67 — 100. 
 ITellogg v. Curtis, 65 — 59. 
 
 See Equity, 53, p. 201. 
 Estoppel, 37, p. 218. 
 Insueance, 60, p. 307. 
 Landlord and Tenant, 23, p. 335. 
 Mastek and Sbbvant. 
 Railroad, 63. 
 Telegraph. 
 Wat, IX. 
 
 NEW TRIAL. 
 
 I. GENERALLY. 
 II. NEWLY DISCOVEKED EVIDENCE. 
 
 III. ERRORS OF THE JURY. 
 
 (a) Vbkdiot against law or evidbnce. 
 
 (b) Excessive dajmages. 
 
 (c) Misconduct op juet. 
 
 IV. ERRORS OF THE COURT. 
 
 I. GENERALLY. 
 
 1. In an action against the Atlantic & St. Lawrence R. R. Co. to 
 recover for a building destroyed by fire communicated by a locomotive 
 in use upon the road by the Grand Trunk Company, it did not appear 
 
NEW TRIAL. 391 
 
 at the trial how or why the latter company was in occupation of the 
 road of the defendant, but the court refused to send the case to a new 
 trial for the mere purpose of putting in formal proof of the lease, hold- 
 ing that its existence must have been tacitly admitted at the tria!, and 
 that the objection should have been then raised. Bean v. Atlantic 
 <Sb St. Lawrence B. R. Co., 63—293. 
 
 2. A motion to set aside the verdict of a jury assessing damages for 
 land taken for a railroad must be addressed to and adjudicated upon 
 by the court to which the verdict is returned. Bryant v. Knox tfc L. 
 R. R. Co., 61—300. Burrv. Bucksport <& Bangor B. R. Co., 64— 
 130. 
 
 3. In such cases a general allegation in the motion that the verdict 
 of the jury was against law, presents no question for the law court to 
 act upon. Burr v. Bucksport <& Bangor R. R. Co., 64 — 130. 
 
 4. A motion for a new trial, in a criminal case, on the ground of 
 newly discovered evidence, and of alleged errors of the court and 
 misconduct of the jury, is addressed to the discretion of the presiding 
 judge, and, no error in law appearing, his decision is conclusive. 
 State V. Pike, 65 — 111. 
 
 5. Point not made at the teial. A losing party has not the right 
 to take advantage of a point to obtain a new trial which was not taken 
 when the cause was tried. Banton v. Boston, 66 — 171. 
 
 6. But a winning party may, to retain a verdict, when ifis manifest 
 that if a new trial is granted the action, for a fundamental reason can 
 not be maintained. lb. 
 
 7. Surprise. When, from the nature of the issue, a party has 
 reasonable cause to anticipate that the point to which certain testi- 
 mony is applicable will be controverted, and when, by proper diligence 
 such party might have obtained the testimony claimed to be newly 
 discovered, he can not be said to have been taken by surprise by the 
 testimony thus introduced. Blake v. Madigan, 65 — 522. 
 
 8. A new trial will not be granted upon the ground that the party 
 moving for it was taken by surprise at his adversary's evidence, unless 
 due diligence was used to guard against the surprise; nor unless relief 
 was sought at the earliest opportunity. Maynell\. Sullivan, 67 — 314. 
 
 9. If a party is unexpectedly met by testimony which is false, and 
 the testimony relates to a matter the truth of which can be readily 
 ascertained, it is his first duty to move for a postponement of the trial, 
 or a continuance, and if instead of doing this he voluntarily lets the 
 case go to the jury he can not afterwards make the surprise a ground 
 for a new trial. lb. 
 
 II. NEWLY DISCOVERED EVIDENCE. 
 
 10. A motion for a new trial on the ground of newly discovered 
 evidence wiU not be sustained when the testimony might have been 
 discovered before the trial by the use of ordinary diligence. Fal- 
 mouth V. Windham, 63 — 44. Harden v. Jordan, 65 — 9. Blake v. 
 Madigan, 65—522. Maynell v. Sullivan, 67—314. Hunter v. Heath, 
 67—507. 
 
 11. The discovery of new testimony immediately consequent on the 
 loss of a verdict must always be looked upon with suspicion. Woodis 
 V. Jordan, 62 — 490. 
 
392 NEW TRIAL. 
 
 12. To afford good ground for a new trial the newly discovered evi- 
 dence must be so material as to induce a reasonable probability that it 
 would, on a second trial, change the result. Ih. 
 
 13. When the question at issue was the authority of one who made 
 a contract with the plaintiff as agent of the defendant, and the only 
 witnesses at the trial were the agent and the defendant, the one testi- 
 fying that there was and the other that there was not such authority, 
 newly discovered evidence, consisting of admissions of the defendant, 
 was held not cumulative. Strout v. Stewart, 63 — 227. 
 
 14. Where the plaintiff, a resident of a town distant from the resi- 
 dence of the defendant, contracted with one representing himself as 
 the authorized agent of the defendant to make the contract, and at 
 the trial the agent testified that he had such authority while the 
 defendant denied it, it was held, that the admissions of the defendant 
 as to the agency, made to persons residing in the same town with him- 
 self, were such newly discovered evidence as could not have been 
 presented at the trial by the exercise of due diligence. Ih. 
 
 15. When a report of the evidence introduced at the trial was not 
 produced so that the court could determine whether or not the newly 
 discovered evidence would be likely to change the result, a new trial 
 was refused. Hagar v. New England Ins. Co., 63 — 502. 
 
 16. Where the newly discovered evidence was communicated to 
 the losing party during the argument of the counsel for the adverse 
 party, but no attempt was made to bring it before the referees by 
 whom the case was heard, a new trial was not granted. lb. 
 
 III. ERRORS OF THE JURY. 
 
 (a) Veediot against law ob bvidbncb. 
 
 (b) Excessive damages. 
 
 (c) Misconduct of jtjkors. 
 
 (a) Verdict against law or evidence. 
 
 17. By R. S., c. 82, § 83, when a motion is made to have a verdict set 
 aside as being aga'nst law or evidence, a report of the whole evidence 
 shall be signed by the presiding judge. A report, certified by the 
 counsel to be a correct report of all the material evidence in the case, 
 is not sufiicient. Bartlett v. Lewis, 58 — 350. 
 
 18. A motion founded on any alleged cause not shown by the evi- 
 dence reported, accompanied by depositions annexed, and not by tes- 
 timony "heard and reported by the judge," is not in compliance with 
 the second clause of § 33. li. 
 
 19. The verdict and the nature and grounds of the action and of 
 the defense should appear in a motion to have a verdict set aside as 
 being against law or evidence. 1 h. 
 
 20. A verdict, founded upon conflicting testimony, will not be set 
 aside as being against the weight of evidence, unless it be clearly 
 wrong. Staples v. Wellington, 58 — 458. Weeks v. Parsonsfldd, 
 65—285. Maynell v. Sullivan, 67—314. Hunter v. Heath, 67—507. 
 
 21. A verdict which had no other support than the testimony of 
 one deeply interested witness, in opposition to that of five intelligent, 
 disinterested, and unimpeached witnesses, was set aside as against the 
 weight of evidence. Pollard v. Grand Trunk Railway., 62 — 93. 
 
NEW TRIAL. 393 
 
 22. When the question presented to the jury is purely one of fact, 
 the court will not set aside the verdict unless it seems certain that 
 injustice has been done by reason of some bias on the part of the jury, 
 or a total misapprehension of the case. If the evidence is conflicting 
 upon vital points the preponderance against the verdict must be such 
 as to amount to a moral certainty that the jurv erred. Mnfield v. Bus- 
 well, 62—128. 
 
 23. In the absence of any special finding showing the ground upon 
 ■which the jury based their verdict, the court will not set it aside as 
 against the evidence upon one branch of the case, when the evidence 
 is sufficient to sustain it upon another. Jennings v. Wayne, 63 — 468. 
 
 24. A motion for a new trial, on the ground that the verdict is 
 against evidence, cannot be sustained without a full report of all the 
 evidence in the case. The losing party cannot base such a motion 
 upon a report of portions of the testimony produced by his opponent 
 tending to show that the verdict was wrong, because such portions 
 may have been effectually controlled or explained by that which is 
 not reported. Cyr v. Dufour, 68 — 492. 
 
 (b) Excessive damages. 
 
 25. When, in addition to the fact that a verdict is, in the opinion 
 of the court, against the weight of evidence, it is certain that the 
 damages were assessed upon a wrong principle, the court will not 
 attempt to correct the error, but will in its discretion, set the verdict 
 aside. Cyr v. Dufour, 62 — 20. 
 
 26. In an action upon the case, for injuries resulting in death, a 
 verdict for five thousand dollars was not set aside because of exces- 
 sive damages. Hobbs v. Eastern R. R. Co., 66 — 573. 
 
 27. A verdict will not be set aside on the ground that the dam- 
 ages are excessive unless they are clearly so. Butler v. Bangor, 67 
 —385. See Damages, p. 148. 
 
 (c) Misconduct of jurors. 
 
 28. Upon cross-examination of the defendant it appeared, that he 
 being in attendance upon the court as a juror as well as a party, con- 
 versed with several of his associates in relation to his case, prior to its 
 coming on for trial. The plaintiff did not then choose to insist upon 
 the objection, but went on and closed the trial, when a verdict was 
 found against him. Held, that the objection was waived. Hussey v. 
 Allen, 59—269. 
 
 29. A motion for a new trial on the ground of misconduct of the 
 jury cannot be sustained by the testimony of the jurors themselves as 
 to what took place in the jury room during their deliberations. Gree- 
 ley V. Mansur, 64 — 211. State v. Pihe, 65 — 111. 
 
 See JuET, p. 331. 
 
 IV. EEKOKS OF THE COUET. 
 
 30. Any thing in the remarks or instructions of the presiding 
 judge, which does not constitute a valid ground of exception, cannot 
 be made available under a motion to set aside the verdict, unless it 
 appears upon a report of the whole case that the verdict was wrong, 
 and that the suggestions of the judge may have misled the jury. 
 Stephenson v. Thayer, 63—143. 
 
394 NONSUIT — NOTICE — NUISANCE. 
 
 31. A new trial will not be granted, because the presiding judge, on 
 being informed by the jury that they were unable to agree, called 
 them into court, and, in the absence of the defendant's counsel, read 
 to them as instructions, a portion of the opinion of the court of 
 another State, upon the duty of jurors to agree upon a verdict; it 
 not appearing that the respondent was prejudiced thereby. State v. 
 Fike, 65—111. 
 
 See Exceptions, p. 241. 
 Pkacticb. 
 
 NONSUIT. 
 
 1. When, by the plaintiff's own showing, the promise upon which 
 he d.eclares appears to have been made upon an illegal consideration, 
 a nonsuit may properly be ordered. Merrill v. Goodenow, 65 — 178. 
 See ExcBPTioifS, 35, p. 244. 
 Negligence, 39, p. 389. 
 Practice, 93. 
 
 NOTICE. 
 
 1. A notice required by statute to be by "letter or otherwise" may 
 be given verbally. Sawyer v. Naples, 66 — 453. 
 
 2. A notice required by statute to be given the municipal oiBcers 
 of a town is sufficient if given to one of them. lb. 
 
 See Certioeaei, 6, p. 86. Deed, p. 159. Equity, 57, p. 201. Exe- 
 CTJTioiir, 28, 36, 41, p. 254. Executoe and Administrator, 26, 31, 
 p. 258. Insane Hospital, p. 298. Insurance, 41, et. seq., p. 305. 
 Landlord and Tenant, 5, et seq.y p. 334. Lien, p. 343. Mort- 
 gage, 5, p. 370. Officer, 44. Paupbe, 39, et seq. Plantation, 
 5, 10, 12. Quo Waeeanto. Registry of Instruments. School 
 House, 1. Way, 31, 143. 
 
 NUISANCE. 
 
 I. GENERALLY. 
 II. LIQUOR NUISANCE, ETC. 
 III. REMEDIES. 
 
 I. GENERALLY. 
 
 1. Under R. S., c. 17, § 12, the temporary location of a travelling 
 circus in its vicinity can not convert a reservoir in process of con- 
 struction in a vacant lot into a nuisance either public or private. 
 Morgan v. Sallowell, 57 — 375. 
 
 2. Under R. S., 1871,. c. 14, § 16, the owner of the land is liable for 
 
NTHSANCE. 395 
 
 the expenses of removing a nuisance therefrom, although a tenant for 
 years caused the nuisance and continued to be the occupant of the 
 premises under his lease when the nuisance was removed. Bangor 
 V. Bowe, 57—436. 
 
 3. Wat. Want of action by the county commissioners, in deter- 
 mining the manner of the crossing of a railroad and highway, alone, 
 constitutes the nuisance mentioned in R. S., 1857, c. 51, § 13. State 
 V. Portland, Saco & Portsmouth R. P. Co., 58—46. 
 
 4. If they have determined the manner of the crossing it is not a 
 nuisance. Ih. 
 
 5. In the trial of a complaint for a nuisance, by obstructing a town 
 way by a fence, the instruction, that if the jury found there was at 
 the time of the acts charged, and had been for more than twenty 
 years before, a road or way open to the whole public without limita- 
 tion or restriction ; and it was in fact so used by travelers on foot or 
 with horses and carriages during all that time ; and was recognized as 
 such public way by the town, by expending money on it for repairs 
 during all those years,^ — then it was such a highway, public road, or 
 way, as the law would regard as sufficiently proved to sustain the 
 complaint on this point, is unexceptionable. State v. Bunher, 59 — 366. 
 
 6. Abatement. Undoubtedly, in certain cases and under certain 
 limitations, nuisances may be abated by those specially aggrieved 
 thereby. Brightman v. Bristol, 65—426. 
 
 7. But when the subject matter of complaint is lawful ^e?- se, and 
 the nuisance consists not in the business itself, but in the unsuitable 
 place in which it is carried on, its abatement must be by the judg- 
 ment of the court, and by the officers of the law carrying into effect 
 such judgment. lb. 
 
 8. Only so much must be abated as constitutes the nuisance. If it 
 consists in the use of such building, such use must be prohibited and 
 punished. If the location is what constitutes the nuisance it must be 
 removed. Ih. 
 
 9. A smith's forge, a tobacco mill, a manufactory for spirits of sul- 
 phur, a distillery, a slaughter house, a livery stable, a melting house, 
 a gaming house or grog shop, a powder magazine, a tallow factory, a 
 tannery, a blacksmith shop and a tomb, have been delared nuisances, 
 because of their unsuitable location ; but this will not justify a riotous 
 mob in destroying them. lb. 
 
 10. In an action against a town to recover three-fourths of the value 
 of a porgy oil factory destroyed by a mob (R. 8., 1871, c. 123, § 8), 
 the persons causing its destruction being unknown, evidence that 
 strong and offensive odors arose from the factory, and that it was a 
 public nuisance is not admissible. lb. . 
 
 11. A STATIONERY STEAM ENGINE, usod without a liceusc from the 
 municipal officers of the town is declared by statute (R. S., 1871, c. 
 17, § 19,) to be a nuisance, but this does not justify a riotous mob in 
 destroying it, nor is it a defense to an action against the town in 
 which it is situated for three-fourths of the damage caused by its 
 destruction by such mob. lb. 
 
 II. LIQUOR NUISANCE, ETC. 
 
 12. Under the statute making "places used as houses of ill fame," 
 
396 NUISANCE. 
 
 "resorted to for the illegal sale or keeping of intoxicating liquors," 
 nuisances, an indictment setting out only one of the causes constitut- 
 ing the nuisance is valid. State v. Lang^ 63 — 215. 
 
 13. An allegation that the place was "used for" the Olegal sale of 
 liquors, instead of "was resorted to," is sufficient. Ih. 
 
 14. In such an indictment it is not necessary that the place should 
 be particularly described. Ih. 
 
 15. Teial Justices have no jurisdiction in case of a nuisance, where 
 the punishment may be by fine of one thousand dollars, except to 
 bind over the defendant. State v. Pierre, 65 — 293. 
 
 16. CiDBE AND WiNB. Under the act of 1873, c. 152, one may be 
 indicted for a nuisance for selling cider and wine, made from fruit 
 grown in this State, for tippling purposes, if the jury find they are 
 intoxicating liquors. State v. Page, 66 — 418. 
 
 17. Owner of Building. Under the statute providing that if any 
 person "knowingly permits" any building owned by him, or under 
 his control to be used for the illegal sale or keeping of intoxicating 
 liquors, he shall be deemed guilty of keeping a nuisance, it is neces- 
 sary to constitute the offense that the owner shall not only have 
 knowledge of such illegal sale or keeping, but must also consent to or 
 permit, the same. State v. Stafford, 67 — 125. 
 
 18. Locality. Upon an indictment charging the respondent with 
 keeping a nuisance on ,the "plains," a well-known locality in a town, 
 evidence that the respondent kept a nuisance on a street in the same 
 town, one-third of a mile distant from the "plains," is not admissible. 
 State V. Lashus, 67 — 564. 
 
 19. Locality is an essential element of the offence denominated a 
 common nuisance. Ih. 
 
 See House op III Fame, p. 284. 
 
 III. REMEDIES. 
 
 20. An injunction will not be granted to stay or prevent a nuisance 
 under R. S., c. 17, unless an indictment, complaint, or action for the 
 nuisance be pending in court. Varney v. Pope, 60 — 192. 
 
 21. An injunction will not be granted, under the general equity 
 powers of the court, to restrain a nuisance, unless the complainant's 
 rights have been settled in a suit at law, or long enjoyed without in- 
 terruption, or unless there is imminent danger that the threatened 
 injury will result in irreparable damage. lb. 
 
 22. The plaintiff had contracted and was ready to carry sand by 
 boats down a navigable stream, but was prevented from doing so by 
 the erection, by the defendant, of a boom across the river. Held, 
 that he could maintain an action for this public nuisance, for which 
 he suffered special injury. Dudley v. Kennedy, 63 — 465. 
 
 23. If a mill owner casts saw dust, edgings, or other waste stuff 
 from his mill into the stream, leaving the same to be floated away, 
 without care or oversight, and if such drift stuff is carried by the ac- 
 tion of the water upon the plaintiff's land, and deposited there, it is a 
 private and special nuisance, for the consequences of which the plain- 
 tiff may maintain an action. Washburn v. Oilman, 64 — 163. 
 
 24. The fact that the drift stuff was cast upon the plaintiff's land 
 
NUISANCE — ODD PBLLOWS' LODGE — OPPICEE. 397 
 
 by a great freshet, does not exonerate the defendant from liability 
 for the consequences of his own negligence ; nor does the fact that 
 part of the drift cast upon the plaintiff's land was thrown into the 
 stream by other mill owners. Jb. 
 
 25. It is well settled that one who creates a nuisance upon another's 
 land, is under a legal obligation to remove it, and successive actions 
 may be maintained until he is compelled to do so. Cumberland cfc 
 Oxford Canal Co. v. Hitchinga, 65 — 140. 
 
 26. In such case the plaintiff can recover such damages only as he 
 has sustained when the suit was commenced. lb. 
 
 27. An individual can not maintain a civil action for a public nuis- 
 ance, by reason of an injury which he suffers in common with the 
 public. Franklin Wharf Co. v. Portland, 67 — 46. 
 
 28. But if by reason of a public nuisance, an individual sustains 
 an injury, differing in kind and not in degree from that which the 
 
 ■ general public sustains from the same cause, he may recover damages 
 in a private suit for such peculiar injury. lb. 
 
 29. When a sewer is laid out and constructed, opening into the 
 public docks of a city, it is the duty of the city to cause such docks 
 to be cleared of the refuse matter deposited therein, and if it neglects 
 to do this within a reasonable time, and if such deposits cause dam- 
 age to the owners of the wharves, by diminishing the depth of the 
 water about them, and thereby impairing their use for the purposes 
 for which they were constructed and have been used, causing incon- 
 venience and injury not common to the public, they become a nuis- 
 ance and the city is liable therefor to the wharf owners. lb. 
 
 30. But if the injuiy to the wharf owners is merely an injury to 
 the right of navigation, in common with the public, the city will not 
 be liable to a civil suit. lb. 
 
 See Ante, 6, 7, 8, 9 and 10. 
 Case, p. 83. 
 
 ODD FELLOWS' LODGE. 
 
 1. Neither an odd fellows' lodge nor its trustee acting for it, will 
 be allowed to convey its property, receive and retain the considera- 
 tion, and then repudiate the conveyance upon the sole ground, that 
 in making it, they acted in violation of their own constitution and by- 
 laws. Sawyer v. Skowhegan, 57 — 500. 
 
 OFFICER. 
 
 I. GENERALLY. 
 II. OATH OF OFFICE, 
 ni. AUTHORITY AND DUTY. 
 
 (a) Sebvice of precepts. 
 
 (b) In othek eespbcts. 
 
398 OFFICER. 
 
 IV. EETUEN. 
 Y. LIABILITY. 
 
 (a) G-BNBEALLT. 
 
 (b) As TBESPASSEB AB INITIO. 
 
 YI. JUSTIFICATION. 
 
 I. GENERALLY. 
 
 1. De Facto. The question of the validity of the election of select- 
 men who issued a warrant for a town meeting, during their official 
 term, is not open to the town when it appears that they were officers 
 de facto, and that the meeting was otherwise legal. flushing v. 
 Frankfort, 57—541. 
 
 2. Where the charter of a city vested the powers of selectmen in 
 the mayor and aldermen, and provided that all elections of officers 
 should be by ballot by the aldermen and common council in joint con- 
 vention, it was held, that a concurrent vote of the two boards that the 
 mayor and aldermen and city clerk be overseers of the poor, followed 
 by their action in that capacity was sufficient to constitute them, includ- 
 ing the clerk, overseers, de facto. Belfast v. Morrill, 65-^581. 
 
 3. Where one of a boaid of officers is not legally elected or quali- 
 fied, but is an officer de facto, he may legally join in the action of the 
 board, with those who are officers, de jure. lb. See Post, 25. 
 
 4. Compatibility of Offices. An office holder by accepting and 
 qualifying for an office incompatible with one then held by him, 
 thereby vacates it. Stubbs v. Lee, 64 — 195. 
 
 5. One who is appointed and sworn as deputy sheriff vacates the 
 office of trial justice previously held by him. Ih. 
 
 6. What is not an Office. An agent for the sale of intoxicat- 
 ing liquors in a town or city is not an officer. His "situation" is an 
 employment not an office. State v. Weeks, 67 — 60. 
 
 7. Compensation. When the salary of a public officer is dimin- 
 ished during his term of office, the diminution is prospective only. 
 Farwell v. Rockland, 62 — 296. 
 
 8. Public offices, established by the legislature, are mere agencies 
 for the benefit of the people, not contracts on their part with the 
 office holder for his benefit. lb. 
 
 9. Where the ordinances of a city provide for an annual salary for 
 the city physician, to be determined by the city council, and also that 
 in cases of infectious diseases he shall receive such additional com- 
 pensation as the city council shall deem just, the last provision refers 
 not only to infectious diseases among the paupers of the city, but for 
 attendance upon all oases of infectious diseases for the city. Preble 
 V. Bangor, 64 — 115. 
 
 10. The representative of a city in the legislature, or the city solic- 
 itor, is under no official obligation to aid in the adjustment of the 
 claims of the city against the State. For services in this behalf he is 
 entitled to just compensation. Calais v. Whidden, 64 — 249. 
 
 11. The town treasurer as such has no authority to agree upon the 
 rate of compensation for extra official services. lb. 
 
 12. The provision of statute (R. S., 1871, c. 80, § 52) that no officer 
 
fi?'' 
 
 OFFICER. 399 
 
 shall "draw any writ, plaint, declaration, citation, process or plea for 
 any other person," relates to civil proceedings, and does not prohibit 
 sheriffs or their deputies from di-awing complaints under the liquor 
 law to be sworn to by other persons. State v. Mc Cann, 67 — 372. 
 
 II. OATH OF OFFICE. 
 
 13. Assessors, auditors and referees, appointed by the court, are 
 not required to be sworn ; nor is a commissioner to take evidence. 
 Penobscot Bar v. Kimball, 64 — 140. 
 
 14. Where the court, jury, or commissioners, or any other body or 
 persons are authorized to act judicially, and their appointment or 
 selection is without the assent of the parties whose rights they are to 
 determine, the law usually requires an oath. Lewis v. Foster, 65 — 
 555. 
 
 15. A commissioner appointed by the court to take the disclosure of 
 a defendant, need not be sworn. lb. 
 
 16. The record, "Oxford, ss., March 3, 1862, personally appeared 
 William Woodsum, and took the oath necessary to qualify him to 
 discharge the duties of clerk of the town of Peru for the ensuing 
 year, according to law, before me, Samuel Holmes, moderator. A 
 true copy of certificate, William Woodsum, town clerk," is sufficient 
 evidence of a compliance with R. S., c. 3, § 17 ; and that the oath 
 prescribed in § 14 was administered. Greene v. Lunt, 58 — 518. 
 
 17. If the persons chosen selectmen make oath that they will faith- 
 fully and impartially discharge the duties of selectmen and assessors 
 to the best of their abilities and according to law, it is a compliance 
 with the statute. Gould v. Monroe, 61 — 544. 
 
 18. In the absence of record evidence, the fact that a tovsm officer 
 was legally sworn may be shown by parol. Farnsworth Go. v. Rand, 
 65—19. 
 
 19. The clear and distinct testimony of the person administering, or 
 of the person taking the oath, appearing to proceed from a distinct 
 recollection of the fact, can not be said to be insufficient to establish 
 it. lb. 
 
 III. AUTHORITY AND DUTY. 
 
 (a) Service of phbcepts. 
 
 (b) lU OTHEB RESPECTS. 
 
 (a) Service of precepts. 
 
 20. The word party, as used in R. S., 1871, c. 80, § 42, providing 
 that coroners shall serve all writs in which a sheriff or deputy is a 
 party, means the person whose name is expressly mentioned in the 
 record. Douglass v. Gardiner, 63 — 463. 
 
 21. Therefore, a replevin writ may be served by a deputy sheriff 
 upon one in whose custody another deputy of the same sheriff has 
 placed the goods replevied for safe keeping, after having attached 
 them as the goods of a person other than the plaintiff in replevin. lb. 
 
 22. In the statute authorizing truant officers to make complaints in 
 certain cases, and execute the judgments of the court (R. S., 1871, c. 
 11, § 14), the word judgments is not limited to the sentence, or final 
 judgment, and the officer may serve the warrant for the arrest of the 
 
400 OFFICER. 
 
 accused, as -well as the mittimus after his conviction. O'Malia v. 
 Wentworth, 65—130. 
 
 23. Money collected by an officer on legal process, while it remains 
 in his hands, is to be regarded as in custodia legis, and not the sub- 
 ject of levy or attachment in any form. Hardy v. Tilton, 68 — 195. 
 
 24. An officer, who has collected money on an execution, can not 
 apply it in satisfaction of another execution against the party for 
 whom it was collected, both executions being in the officer's hands for 
 collection at the same time. lb. 
 
 25. It is not a valid objection to the service of a citation in a poor 
 debtor's disclosure that the constable who made the service had not 
 given bond if he was an officer de facto, the acts of an officer de facto, 
 so far as third persons are concerned, being as valid as the acts of an 
 officer de jure. JBKss v. Day, 68 — 201'. 
 
 26. An officer can not sell property against which an execution in 
 his hands does not run. As to such property he has no execution. 
 Mayford v. Everett, 68—505. 
 
 See PooE Debtor, 1. 
 
 (b) In other respects. 
 
 27. If a deputy sheriff, after receiving a bond of indemnity, 
 attaches, as the property of the . debtor, goods which are claimed by 
 another and sells them upon the writ, and the claimant recovers judg- 
 ment against the sheriff for the value of the goods in an action in 
 which he alleges himself to be their owner, the deputy may maintain 
 an action upon the agreement given him, although in the sale of the 
 goods he does not strictly conform to the requirements of the statute, 
 unless it is expressly shown that his irregularity in the sale was the 
 ground for the recovery of the judgment by the claimant against the 
 sheriff. Grossman v. Owen, 62 — 528. 
 
 28. If property seized by an officer is taken from him by a writ of 
 replevin, and no further service is made upon him, nor is the writ 
 returned, his remedy is in trespass or trover. Adams v. Mc Olinchy, 
 62—538. 
 
 29. Ordinarily, a special action on the case, setting forth the par- 
 ticulars which constitute the default or misfeasance, or in some cases 
 an action of debt, is the proper remedy against a public officer for 
 neglect or misbehavior in office. School District in Sanford v. 
 Tebbetts, 67—239. 
 
 30. If an officer, after attaching personal property, delivers the 
 same to a third party upon his own responsibility, and for his own 
 convenience, and takes a receipt therefor, such receipt can be dis- 
 charged by the officer alone, so long as his liability for the property 
 attached continues, either to creditor or debtor. Torrey v. Otis, 67 
 —573. 
 
 31. In an action by the officer upon such receipt, evidence that a 
 full discharge had been given the receiptor by the judgment creditor 
 is not admissible in evidence, and does not constitute a defense. lb. 
 
 rv. EETURN. 
 
 32. It is not necessary that an officer's return of a sale of an equity 
 of redeeming land from a mortgage should state the day or hour, or 
 
OPPICEE. 401 
 
 particular place of sale which was mentioned in the notice, if it appear 
 that the time required by law to intervene between the notice and 
 sale did intervene ; if it states the fact that he gave notice of the 
 time and place of the sale. Townsend v. Meader, 58 — 288. 
 
 33. The return of the oiEcer as to the time of serving the writ upon 
 a trustee, can not be contradicted by the disclosure of such trustee. 
 Brainard v. Shannon, 60 — 342. 
 
 34. An officer's return upon a writ of an attachment of real estate 
 that he has filed in the registry of deeds the certificate required by 
 law, may be contradicted by the certificate itself. Dutton v. Simmons, 
 65—588. 
 
 35. When an ofiicer, in his return of the sale of an equity of redemp- 
 tion, states that he published in a designated newspaper due and legal 
 notice of the sale, the debtor can not contradict the return by the jjro- 
 duction of the newspaper, showing that the notice was not legal and 
 sufficient. True v. Emery, 67 — 28. 
 
 36. An officer's return upon a warrant that he seized certain speci- 
 fied liquors upon the premises described therein, can not be contrar 
 dieted by evidence that the search and seizure was made by others, 
 in his absence, and not under his direction. State v. JTenniston, 67 
 —559. 
 
 See Eqititt, 42, p. 200, 
 
 Intoxicating Liqitoes, 49, p. 318. 
 Attachment, 9, p. 45. 
 
 V. LIABILITY. 
 
 (a) Gesteballt. 
 
 (b) As TBESPASSBE AB IITITIO. 
 
 (a) Generally. 
 
 37. The pendency of an action of trespass against a deputy sheriff 
 for his wrongful act, done under color of his office, is no release of 
 the liability of the sheriff for the same cause of action. Severy v. 
 JVye, 58—246. 
 
 38. The creditor may relieve the officer of the duty of causing the 
 execution and his return thereon to be recorded, after making a levy. 
 Thompson v. Qoding, 63 — 425. 
 
 39. After an execution has been placed in an officer's hands for 
 collection by the plaintiff, if the debtor pays the amount due upon it 
 to the attorney of record of the plaintiff, and the officer delivers the 
 execution to the attorney to be discharged, he is relieved from further 
 responsibility in regard to it. ~White v. Johnson, 67 — 287. 
 
 40. If an officer, after attaching personal property, delivers it to a 
 third person, upon his own responsibility, and for his own convenience, 
 and takes a receipt therefor, he is liable to the creditors so long as the 
 attachment continues in force, and to the debtor for the return of the 
 property when the attachment shall be dissolved. Torrey v. Otis, 67 
 —573. 
 
 41. The debtor also has a legal claim that the property attached 
 shall be applied to the satisfaction of the judgment unless it is restored 
 to him. lb. 
 
 26 
 
402 OPFICEE. 
 
 (b) As trespasser ab initio. 
 
 42. If an officer fail to post notices of the time and place of an 
 adjourned sale of personal property as required by R. S., c. 84, he 
 will be a trespasser ab initio. Hayes v. BuzzeU, 60 — 205. 
 
 43. A notice of a sale of goods by an officer, defective for -want of suf- 
 ficient time, is not cured by a postponement of the sale, on the day 
 appointed therefor, to one remote enough to answer the statute require- 
 ment. The officer can not make a valid sale at the adjournment which 
 would be invalid if made on the day originally designated. Sawyer v. 
 
 Wilson, 61—529. 
 
 44. Where a collector, after selling enough to pay the tax and ex- 
 pense of sale, sells other personal property distrained he will not become 
 a trespasser ab initio as to any of the articles seized except such as 
 he has sold in excess of his authority. Williamson v. Dow, 32 — 559, 
 explained. Seekins v. Goodale, 61 — 400. 
 
 45. An officer can not defend himself against an action for taking 
 liquors upon an insufficient warrant by showing that they were subse- 
 quently libelled and declared forfeited. Guptil v. Richardson, 62 — 
 257. 
 
 46. If an officer seizes intoxicating liquors at a place not authorized 
 by his warrant, the owner may maintain trespass jgainst him. Flah- 
 erty V. Longley, 62 — 420. 
 
 47. When it is necessary for an officer to give a bond before he can 
 serve precepts, if he does give a valid bond and serves a precept, he 
 can not be made a trespasser by a subsequent unauthorized alteration 
 of the bond by another. Fournier v. Cyr, 64 — 32. 
 
 48. When the statute requires an officer to sell property seized in 
 four days from the time of the seizure, if he keeps the property beyond 
 that time he becomes a trespasser ab initio. Farnsworth Go. v. 
 Hand, 65 — 19. 
 
 See Trespass. 
 
 VI. JUSTIFICATION. 
 
 49. A search warrant (for liquors) described the place to be searched 
 as premises occupied by A., bounded, etc., then followed a description 
 by metes and bounds of a block of two houses separated by a partition 
 wall having no inside communication with each other ; one was occu- 
 pied by A. and the other by B.; the officer seized liquors in the house 
 of B.; held, that the warrant afforded him no justification. Flaherty 
 V. Longley, 62 — 420. 
 
 50. A precept, issued from a court of limited jurisdiction, can not 
 be a justification to the officer unless issued by a court of competent 
 jurisdiction, which must appear upon the face of the process. Guptil 
 V. Richardson, 62 — 257. 
 
 51. An officer, who seizes property by authority of law, must show 
 that he has done all that is required of him, in order to complete and 
 fulfil the duty imposed upon him by virtue of which he was authorized 
 to act; otherwise he becomes a trespasser db initio, lb. 
 
 52. An officer who executes the process of an inferior court of 
 limited jurisdiction does not subject himself to an action unless the 
 fact that the court acted without, or in excess of, jurisdiction, appears 
 upon the face of the process. Waterville v. Barton, 64 — 321. 
 
PAEDON— PAEENT AND CHILD — PARTITION. 403 
 
 53. The plaintiff, a deputy sheriff, seized certain liquors belonging 
 to the defendant M., by virtue of a warrant intended to conform to 
 the requirements of the law relating to search and seizure process. 
 While the liquors were in his possession the defendant M. procured a 
 replevin writ, by virtue of which the defendant H., a coroner, took 
 them and delivered them to M., who assisted H. in the service of the 
 writ. Owing to an informality in the bond, the writ was not returned 
 to court. Held^ that whether or not the warrant under which the plain- 
 tiff took the liquors was sufficient; (1) the defendants could not justify 
 the taking upon the ground that it would have been a useless formal- 
 ity for the coroner to have returned the writ, to be at once abatable, 
 and by showing that the defendant M. had a legal right to take the 
 liquors without any writ ; (2) that the act of taking them was the 
 coroner's and not M's., and that as the act of the former could not be 
 justified therefore the act of the latter could not be ; (3) that whether 
 M. had the general property in the liquors was not a material question ; 
 (4) that it was a matter of right between the plaintiff and the coroner ; 
 and (5) the fact that the general owner M. lent his assistance to the 
 coroner did not make his violation of the law justifiable. Adams v. 
 ilfcGf?wc%,66— 474. 
 
 PARDOlSr. 
 
 A pardon granted to an attorney at law for the crime of forgery of 
 a document offered by him in evidence does not protect him from the 
 consequences of the violation of his official oath, and prevent his sub- 
 sequent removal from the bar on account of it. Penobscot Bar v. 
 Kimball, 64—140. 
 
 PARENT AND CHILD. 
 
 See Advancement, p. 11. Infant, p. 296. Negligence, 33, p. 388. 
 
 PARISHES AND RELIGIOUS SOCIETIES. 
 See CoKPOEATioN, 63, p. 133. Meeting House, p. 363. Teust, 1. 
 
 PARTITION. 
 
 1. Adverse Possession. In 1836 the petitioners, entertaining 
 the mistaken hypothesis that their father, then deceased, was in his 
 lifetime the owner of the land in question, quitclaimed their interest 
 therein to the respondents, who entered under the deed, and in 
 December, 1848, divided the premises by mutual deeds of release, 
 and continued to occupy in severalty. The title, in fact, was in the 
 mother, who died in 1845. On petition for partition commenced in 
 
404 PAETITION. 
 
 September, 1868, held, that the petitioners had lost their right of 
 entry in consequence of the adverse possession of their grantees. 
 Mitchell V. persons unknown, 59 — 448. 
 
 2. It is a sufficient dbscription of the pbtitioker's rNTBBEST, if 
 it be stated in the petition to be a certain fractional part of the land, 
 though their interest really is the stated proportional part, exclusive 
 of a reservation of a specified number of acres set forth in the peti- 
 tion. Jewett \. persons unknown, 61 — 408. 
 
 3. Upon petition for partition of a township in which is a reserva^ 
 tion of a certain number of acres in favor of the State, the respon- 
 dents can not, without plea, or brief statement stating the fact, 
 defend on the ground that no special notice has been given the land 
 agent. lb. 
 
 4. In petition for partition, a mortgage by the petitioners of their 
 share, can not be set up to defeat the partition, by respondents who 
 have no interest in or claim under the mortgage. lb. 
 
 5. Sale. If real estate can not be divided among part-owners, 
 without greatly impairing its value, the whole may be sold under pro- 
 cess in equity, and the proceeds divided among the owners. Wilson 
 V. European <& JST. A. R. B. Co., 62—112. 
 
 6. The right to partition is incident to all real estate held in joint 
 tenancy or tenancy in common. lb. 
 
 7. On petition for partition the commissioners have not authority 
 to set off to one of the part owners, against his will, more than his 
 proportionate share of the land, and require him to pay for the excess 
 in money to the other owners. lb. 
 
 8. Sees. 1 and 2, c. 88, R. S., 1871, conferring the right of partition 
 upon any petitioner who has only "a right of entry" into lands, refers 
 to one having the title and not the possession of land, and not to one 
 whose title is conditional upon the fact of entry. Jenks v. Walton, 
 64—97. 
 
 9. The fact that the whole estate is subject to a right of dower 
 hitherto unassigned, is no bar to partition. Mlaisdell v. Pray, 68 — 269. 
 
 10. Pleadii^g. It may well be doubted whether the fact, that two 
 copartnerships having a common member are interested as tenants in 
 common in the estate to be divided, will defeat the prosecution of a 
 petition for partition by one of the firms, on the ground that no one 
 can be both plaintiff and defendant in a suit at law. Ih. 
 
 11. It seems that such an objection is in the nature of a plea to 
 the ability of the petitioners to prosecute, and if taken at all it must be 
 by a plea in abatement, and where the firm named in the petition as 
 co-tenants are defaulted, the other tenants in common can not set it 
 up under a plea denying the title, and seizin of both firms and alleging 
 sole seizin in themselves. lb. 
 
 12. Impkovemekts. A tenant in common, when the partition is 
 made, is entitled to the benefit of the improvements made by him. 
 Meed v. Beed, 68—568. 
 
 13. If such improvements are made on a part of which he has had 
 exclusive possession with the consent of his co-tenants, his share 
 should be assigned from such part or including it. lb. 
 
 14. If such possession was without their consent, he is entitled to the 
 
PAETNKKSHIP. 405 
 
 benefit of their actual value, though in the division some other part 
 shall fall to him. lb. 
 
 See Evidence, 143, p. 234. 
 
 PARTNERSHIP. 
 
 I. WHAT DOES OR DOES NOT CONSTITUTE A PARTNERSHIP. 
 II. POWERS AND LIABILITIES OF PARTNERS. 
 
 (a) As KESPEOTS THE PABTNEESHIP PROPBKTY. 
 
 (b) As KBSPECTS EACH OTHEB. 
 
 (c) How FAB ONE CAN BIND THE FIRM. 
 
 HI. REMEDIES AGAINST PARTNERSHIP PEOPERTT> 
 IV. PLEADINGS AND EVIDENCE. 
 
 I. WHAT DOES OR DOES NOT CONSTITUTE A PARTNERSHIP. 
 
 1. A contract between the owner and master of a vessel, whereby 
 the latter is to sail her at the halves, man and victual her, and the 
 former to have half the earnings, constitutes the master owner pro 
 hac vice, and creates no partnership between them. Bridges v. 
 Sprague, 57 — 543. 
 
 2. Although the amount which a seaman is to receive for his labor 
 on a fishing voyage is made to depend upon the amount of fish caught, 
 still, he is not on that account a partner in the enterprise, and need 
 not join any of the crew with him as plaintiffs in an action to recover 
 his share of the proceeds. Holden v. French, 68 — 241. 
 
 3. When two joint tenants agree to cut the wood from their land 
 and share equally the expenses and proceeds of its sale, it constitutes 
 no partnership. Millett v. Holt, 60 — 169. 
 
 4. A bill of sale of "one-half of a horse," providing that the vendee 
 is "to take the horse, keep him and handle him," and that the vender 
 shall "pay one-half of the keeping and expenses of said horse and 
 receive one-half of the profits which the horse may earn," the vender's 
 "part of the horse's keeping to be two dollars and fifty cents per week," 
 does not constitute a partnership between the vender and vendee. 
 Chapman v. Eames, 67 — 452. 
 
 See Joint Stock Association, p. 320. 
 
 II. POWERS AND LIABILITIES OF PARTNERS. 
 
 (a) As BESPECTS THE PABTNEBSHIP PBOPEBXY. 
 
 (b) As BESPECTS EACH OTHEB. 
 
 (c) How FAR ONE PABTNEB CAN BIND THE FIBM. 
 
 (a) As respects the partnership property. 
 
 5. For the purpose of taxation, the firm, and not an individual 
 member of it, is the owner of the partnership property. Stockwell 
 V. Brewer, 59—286. 
 
 6. A license, under the TJ. S.' revenue laws, given to a firm to carry 
 on a certain business, will not protect one of the members of the firm 
 in carrying on the business after the dissolution of the firm. Harding 
 V. Hagwr, 68—515. 
 
406 PAETNEESHIP. 
 
 7. One partner has no right to apply effects of the partnership to 
 the payment of his own private debts, without the express or implied 
 consent of his co-partner. Blodgett v. Sleeper, 67 — 499. 
 
 8. Such consent is not to be implied from slight and inconclusive 
 facts. Ih. 
 
 9. Where one partner applies the partnership effects to the pay- 
 ment of his private debts, without the consent of his co-partner, an 
 action in the name of both partners, to recover back the payment, 
 can not be maintained, because of the necessity of setting up the 
 fraudulent misapplication of the partnership funds by one of the 
 plaintiffs. Ih. 
 
 10. Whether the innocent partner can maintain an action at law 
 qucere f lb. 
 
 11. Lien. The rule that each partner has a lien upon the partner- 
 ship property for his own indemnity against the partnership debts, 
 and for any amount due him over and above what may be due his 
 co-partners, out of the joint effects, is applicable at law as well as in 
 equity. Hacker v. Johnson, 66 — 21. 
 
 12. The presumption is, nothing appearing to the contrary, that 
 partners are equal owners of the partnership goods. Crabtree v. 
 Clapham, 67—326. See Post, 25. 
 
 13. SuKviviNG Paetnee. a sale of partnership property (real 
 estate) can not be legally made by a surviving partner unless he first 
 qualifies himself to administer upon the partnership estate by giving 
 the bond required by law, nor unless he first obtains a license to make 
 the sale. JSill v. Treat, 67—501. 
 
 (b) As respects each other. 
 
 14. In the absence of any adjustment of the matters of a partner- 
 ship, two members thereof cannot maintain a joint action of account 
 against a third, to recover their share of the net profits. Farrar v. 
 Pearson, 59 — 561. 
 
 15. An action at law may be maintained between partners when 
 it does not propose to open a settlement, but only to correct a mis- 
 take. Millett V. Solt, 60—169. 
 
 16. Equity and not assumpsit is the appropriate remedy for one 
 whose membership, and consequent right to a share in the profits of 
 a joint stock company, is denied, and to whom no portion of the 
 profits have been set apart. Pray v. Mitchell, 60 — 430. 
 
 17. As a general rule, replevin does not lie by one partner against 
 another for the partnership property. Crabtree v. Clapham, 67 — 326. 
 
 18. If a firm gives a premium note for the security of dealers, to a 
 mutual insurance company, such note forming a part of the capital 
 stock of the company, and a new firm, which succeeds to the business 
 of the old, gives a new note in renewal of the one first given, the new 
 firm is liable upon such note for its amount, but not for premiums 
 earned by the company in addition to the amount of the note. Maine 
 Mutual Ins. Go. v. Blunt, 64 — 95. 
 
 19. A sale, by one of two partners to the other, of his interest in 
 the firm, extinguishes a claim of the firm against the partner selling. 
 
 Wiggin v. Goodwin, 63 — 889. 
 
PARTNEESHIP. 407 
 
 20. A firm may give notes to the members composing it, and the 
 members may give their notes to the firm ; in either case the makers 
 of the note are liable to an indorsee. Woodman v. Jioothby, 66 — 389. 
 Sapgoodv. Watson, 65 — 510. 
 
 (c) Sow far one partner can bind the firm. 
 
 21. One partner can not bind the firm by signing their name to a 
 note, given for the premium for insuring a vessel, owned by the part- 
 ners in equal proportions, in their individual capacity. Lime jRock 
 Fire & Marine Ins. Co. v. Treat, 58 — 415. 
 
 III. REMEDIES AGAINST PARTNERS AND PARTNERSHIP 
 PROPERTY. 
 
 22. A person having in his hands money belonging to a late firm of 
 three persons may be held as trustee of a new firm, comprising mem- 
 bers of the old firm and other persons, if no interposing claim is made 
 by a creditor of the old firm. Burnell v. Weld, 59—423. 
 
 28. Prior to 1870 (R. S., 1871, c. 69, § 6), a partnership debt was 
 provable for the full amount against the estate of a deceased part- 
 ner which had been represented insolvent. If, thereby, the estate of 
 the deceased was obliged to pay more than its share of the partner- 
 ship debts, its representative had a remedy against the surviving 
 partners to compel an adjustment. Egery v. Howard, 64 — 68. 
 
 24. All the legal interest in partnership property, attachable on a 
 debt of one of the partners, is such partner's share, subject to the 
 claims of the copartners. Hacker v. Johnson, 66 — 21. 
 
 25. Replevin can not be maintained by one partner for copartner- 
 ship goods in the hands of an officer under an attachment of another 
 co-partner's interest therein. Ih. 
 
 26. In such case if the plaintiff in replevin becomes nonsuit, the 
 right of the defendant to a return can not be defeated by proof that 
 the firm was insolvent, and that the goods have been sold and the 
 proceeds gone to pay the debts of the firm. Ih. 
 
 27. But these facts may be shown in a suit upon the replevin bond, 
 and the accounts then examined, unless the creditor has before that 
 time obtained an account in equity. Ih. 
 
 28. When partnership property is taken for the private debt of one 
 of the partners, it seems that the debtor is entitled to have an account 
 of the partnership affairs settled by a court of equity before the sale 
 of the property, and the creditor or purchaser, after the sale. Ih. 
 
 29. In an action by a private creditor against one partner, where 
 a creditor of the firm is summoned as trustee, and discloses an indebt- 
 edness to the firm, the other partner or partners may voluntarily 
 appear and file allegations showing that the demand disclosed by the 
 trustee is necessary for the payment of the firm debts. Parker v. 
 Wright, 66—392. 
 
 30. An officer who has a writ in favor of a creditor of one of the 
 members of a firma. may attach such partner's interest in a spec- 
 ific portion of a stock of goods belonging to the firm. It is not 
 necessary that the interest of such partner in the entire stock be taken. 
 Fogg V. Lawry, 68 — 78. 
 
408 PABTNBESHIP — ^PATENT. 
 
 IV. PLEADING. 
 
 31. At common law an action to recover a debt due a firm, one of 
 tlie members of which had deceased, could be brought only in the 
 names of the survivors. Strang v. Hirst, 61 — 9. 
 
 32. An action on the case, for knowingly aiding a debtor in the 
 fraudulent transfer of his property, may be brought in the name of 
 the survivors of a creditor firm, and the form of the action being the 
 same whether the suit is prosecuted by them or by the representative 
 of the deceased partner, the question whether the survivors have 
 given bond is not raised by a demurrer to the declaration. Piatt v. 
 Jones, 59—232. 
 
 V. EVIDENCE. 
 
 33. In an action for goods sold and delivered, against parties indi- 
 vidually and in their capacity of surviving partners, in order to 
 rebut the inference of a sale drawn from their possession of the 
 goods, it is competent for the defendants to introduce evidence to 
 prove that when their copartnership was formed it was agreed by the 
 members of the firm that the partner to whom the plaintiff sold the 
 goods, supposing he was acting for the firm, should put in the goods 
 in controversy, as his share of the capital stock, and did so, and that 
 they knew nothing of any purchase of the goods from the plaintiff. 
 Fuller V. Wilder, 61— &25. 
 
 34. The plaintiff and defendant, being copartners under the style 
 of D. & Co., the plaintiff sold to the defendant his interest in the 
 firm, and the latter promised to pay all the debts of the firm and hold 
 the plaintiff harmless from all loss on account of them. On the trial 
 of an action for a breach of the contract, the plaintiff introduced two 
 notes signed by himself, payable to his own order, and endorsed by 
 himself and by D. & Co., and which he had paid. Held, that whether 
 the indebtedness represented by these notes was a firm debt was 
 properly left to the jury. Duran v. Ayer, 67 — 145. 
 
 PATENT. 
 
 1. A certificate that a certain person named "is the owner of five- 
 fortieth parts of the letters-patent and property of the M. T. Co.," 
 . . . and stipulating "that whenever an incorporated company 
 shall be organized . . . the holder hereof shall be entitled to 
 receive its equivalent value in the certificate of shares in the capi- 
 tal stock of such company," does not operate as an assignment to the 
 holder of any interest in the letters-patent. Hope Iron Works v. 
 JBblden, 58—146. 
 
 2. After a patent has been issued, and while its validity is in litiga- 
 tion, if one obtains the right to use it, agreeing to pay the patentee 
 a royality therefor, he cannot defend a suit for the royalty for the 
 use of the patent under the contract, on the ground that the patent 
 was void, for want of novelty, although the patent was afterwards 
 declared void by the court of final jurisdiction. Jones v. Burnham, 
 67—93. 
 
PAUPEE. 409 
 
 PAUPER. 
 
 I. SETTLEMENT. 
 
 (a) By deeivation. 
 
 (b) Incorporation, division, and annexation of towns. 
 
 (c) Eksidbncb for riVB ybabs. 
 II. ACTIONS. 
 
 (a) Between towns. 
 
 (b) Notice. 
 
 (c) iNDIVIDUALa against TOWNS. 
 
 (d) Towns against indiyiduals. 
 III. EVIDENCE. 
 
 IT. RELIEF FROM THE STATE. 
 
 I. SETTLEMENT. 
 
 (a) By derivation. 
 
 1. If a naturalized citizen, after obtaining a legal settlement in a 
 town in this State, removes to Canada, his child born there, upon 
 coming into this State takes the settlement of his father, although the 
 father does not return. Oldtown v. JBangor, 58 — 353. 
 
 2. Though a wife can not have a pauper settlement different from 
 that of her husband, she can establish for herself a separate home so 
 that in law, as well as in fact, her home will not be his home. JBur- 
 lington v. Swanville, 64 — 78. 
 
 3. An illegitimate child does ijot gain a new derivative settle- 
 ment under the mother, but retains that which the mother had at the 
 time of the birth of the child. Raymond v. North Berwick, 60 — 114. 
 
 4. A minor, emancipated, may gain a settlement independent of 
 the parent, and from the time of emancipation ceases to follow that 
 of the parent. Lowell v. Newport, 66 — 78. 
 
 5. Emancipation may be established by contract between the par- 
 ent and child. It need not be in writing. It must be an entire sur- 
 render, by the parent, of all right to the care, custody, and earnings 
 of the child, as well as a renunciation of parental duties. It is not to 
 be presumed. Ih. 
 
 6. What is emancipation may be considered a question of law ; 
 whether it has taken place a question of fact. Ih. 
 
 (b) Incorporation, division, and annexation of towns. 
 
 7. When an act annexing a plantation to a town was silent upon 
 the subject of pauper settlements, it was held, that the settlement of 
 a pauper residing upon the plantation at the time of the annexation, 
 but having her settlement in the defendant town, was not thereby 
 changed. Woodstock v. Bethel, 66—569. 
 
 (c) Residence for five years. 
 
 8. When a Settlement is Prevented bt Receiving Supplies. 
 To prevent his gaining a settlement it is not absolutely essential that 
 the pauper should make the application for aid, if it is actually fur- 
 nished, and the fact is known to him. Hampden v. Levant, 59 — 557. 
 
410 PATTPEE. 
 
 9. When supplies are furnished by ovei-seers of the poor to a pau- 
 per then actually in need of relief, the intention of the overseers there- 
 by to prevent a settlement by such pauper, in their town, is immate- 
 rial to qualify the legal effect of their action. Foxcroft v. Corinth, 
 61—559. 
 
 10. But the fact that five years continued residence had nearly 
 expired, coupled with an intention on the part of the overseers to 
 prevent the pauper's gaining a settlement, may properly be considered 
 by the jury in relation to the weight to be given their testimony as 
 to the existence of actual distress and the necessity of immediate 
 relief. lb. 
 
 11. It seems that when a father deliberately abandons his family 
 and takes up his residence in another town, supplies furnished them 
 under such circumstances as imply a knowledge of the fact upon his 
 part, will not prevent his gaining a settlement in his new place of 
 residence. Eastport v. Lubec, 64 — 244. 
 
 12. But when there has been no emancipation or abandonment, and 
 the father evidently has knowledge of the necessities of his children, 
 and fails to relieve them, supplies furnished them in good faith by the 
 town officers, will operate to prevent his gaining a settlement. lb. 
 
 1 3. If the supplies were actually needed, furnished, received and 
 consumed, it is immaterial whether or not the recipient called for 
 them, or the person whose settlement is affected assented to their 
 being furnished. lb. 
 
 14. The furnishing supplies to a minor child, who is away from her 
 father's home, by a distant town where she may happen to fall into 
 distress, without the knowledge or consent of the father, he being 
 able and willing to support the child at his own home, is not such fur- 
 nishing of supplies as will prevent his gaining a settlement to which 
 he would otherwise be entitled. Jb. 
 
 15. Supplies furnished by one oveesbek to a person in distress, 
 will interrupt the running of the time necessary to gain a settlement, 
 if the act of the single overseer is afterwards ratified by an associate. 
 Fayette v. JOivermore, 62 — 229. SmithfieM v. Waterville, 64 — 412. 
 
 16. The fact that the bill for such supplies is presented to the town 
 where the settlement of the person was claimed to be by another 
 overseer, who had knowledge that the supplies were furnished is evi- 
 dence of a ratification by him. lb. 
 
 17. The act of 1873, providing "that to constitute pauper supplies, 
 nnder the laws of this State, such supplies shall be applied for, in case 
 of all adult persons of sound mind, by such persons themselves, or, 
 by some person by them duly authorized, or such supplies shall be re- 
 ceived by such persons, or by some person duly authorized by them, 
 with a full knowledge that they are such supplies," does not limit the 
 right to apply to the overseers of the poor for relief for a suffering 
 family to the husband alone. Sebec v. Foxcroft, 67 — 491. 
 
 18. If the application is made by the wife, for relief for herself and 
 her children, and the case is one of actual destitution, neither the 
 want of previous authority from the husband, nor the absence of sub- 
 sequent ratification by him, will prevent the supplies furnished in 
 pursuance of such an application from being pauper supplies. lb. 
 
 19. A RESIDENCE once established may be abandoned without ac- 
 quiring another. North Yarmouth v. West Gardiner, 58 — 207. 
 
PAUPER. 411 
 
 20. When a person leaves his place of residence, ■with everything 
 he has, without any intention of returning,'he has, under the pauper 
 laws, abandoned it, whether he has established another or not. The 
 interruption of a residence does not depend in any degree upon the 
 fact whether he did or not return. lb. 
 
 21. If, while absent from the place of his residence, a person forms 
 the intention to abandon it, his residence then as effectually ceases as 
 if he had intended not to return when he left it. Hampden v. Le- 
 vant, 59 — 557. 
 
 22. When a single woman, who has long been supported by a 
 brother as a member of his family, designs, with his knowledge and 
 consent, to remove with him to another town, but is delayed upon 
 the journey by bodily ailments, and he with his family arrives at such 
 town before she does, she cannot be said to have her home in such 
 town, within the meaning of the pauper law, until she actually ar- 
 rives there. Fayette v. Livermore, 62 — 229. 
 
 23. A requested instruction, that if the pauper once established 
 his residence in a town named, and has never since abandoned his 
 wife or family, and no pauper supplies have been furnished, their con- 
 tinued residence in that town for more than five years consecutively 
 gave him a settlement in that town is incorrect, because it does not 
 discriminate between the abandonment of one's family and a change of 
 residence from one town to another. Burlington v. Swanville, 64 
 —78. 
 
 24. An ABSENCE from a town will defeat the running of the five 
 successive years' residence necessary to acquire a pauper settlement 
 therein, if made with the intention on the part of the pauper not to 
 return, though he does in fact return. Burnham v. Pittsfield, 68 — - 
 580. See Post, 54. 
 
 See CoNSTiTUTioKAi, Law, 49, p. 107. 
 
 II. ACTIONS. 
 
 (a) Between towns. 
 
 (b) Notice. 
 
 (c) INDIVIDTJALS AGAINST TOWNS. 
 
 (d) Towns against individuals. 
 
 (a) Between towns. 
 
 26. The younger of two towns adjoining an unincorporated place, 
 can not furnish supplies to a person living in such place, and recover 
 them from the older town, notwithstanding the settlement of the 
 pauper was in the latter town. Newry v. Oilead, 60 — 154. 
 
 27. If supplies have been furnished in good faith, it is not necessary 
 to prove also that they have been consumed in order to entitle the 
 town furnishing to recover for them. Fayette v. Livermore, 62 — 
 229. • 
 
 28. A brother who had previously supported his sister, a few days 
 before the completion of a five years' residence by her in a town, no- 
 tified the overseers of the poor, that he should support her no longer, 
 and at the same time informed them when the five years would expire, 
 with the intention of throwing the expense of her support upon the 
 town where her settlement then was. He afterwards carried the no- 
 
412 PAUPEE. 
 
 tice that she was chargeable from the overseers of the former to those 
 of the latter town. He was under no legal obligation to support his 
 sister, and when he refused to do so, she became destitute. IIeld,no 
 such evidence of bad faith as would justify the setting aside a ver- 
 dict in favor of the town of her residence against that of her settle- 
 ment, lb. 
 
 29. Foe what Supplies a Recovebt mat be had. In an action 
 by a town, furnishing supplies, against the town of the settlement of 
 the pauper, the plaintiff may recover for any supplies furnished 
 within three months before the notice is given, and for all furnished 
 afterwards up to the time of the commencement of the action, even 
 though no actual payment had then been made. Ih. Post, 48. 
 
 30. Burden or Proof. When the settlement of a pauper is 
 proved to be in a town the burden is upon such town to show that 
 the pauper has gained another settlement, if it would avoid liabiUty 
 for his support. JBowdoinham v. Phippsburg, 63 — 497. 
 
 31. Power of Town Officers. One overseer may, in a proper 
 case, furnish supplies to a distressed pauper without precedent author- 
 ity, and his act may be ratified by the others. Fayette v. JDivermore, 
 62—229. Smithfield v. Waterville, 64—412. 
 
 82. In an action by a town which has furnished supplies to a pau- 
 per against the town of his settlement, it is sufficient for the plaintiff 
 to prove that the supplies were furnished by a majority of the acting 
 overseers of the poor. Belfast v. Morrill^ 65 — 580. 
 
 33. Selectmen and town agents have authority to make contracts 
 relating to the disposition of pauper suits in which their towns are 
 interested, although not authorized by any special vote. Industry v. 
 Starhs, 65—167. 
 
 34. In R. S., 1871, c. 14, § 1, providing that the expense of nurses, 
 medical attendance, etc., furnished a person sick with the small pox, 
 by the town in which such person is sick, shall bfe repaid by the sick 
 person, if able, otherwise by the town to which he belongs, the 
 phrase, "the town to which he belongs," means the town where the 
 person has a pauper settlement. Hampden v. Newburg, 67 — 870. 
 
 35. Where the expenses incurred were one hundred and ninety-six 
 dollars, and the sick person had, in savings banks and notes, some 
 six hundred dollars, it was held, that she was able to pay the expenses 
 incurred for her relief, and that the town incurring the expense could 
 not recover of the town in which she had a settlement. lb. 
 
 36. What are Supplies. Acts of private charity or aid volunta- 
 rily furnished one, though in distress, do not constitute supplies 
 within the statute. Hampden v. Bangor, 68 — 868. 
 
 37. The rights of all parties interested must be determined by the 
 facts existing at the time the alleged supplies were furnished. lb. 
 
 38. If the person furnishing and the person receiving aid under- 
 stand the act to be a mere act of neighborly kindness, the subsequent 
 voluntary payment by the town of what never was a charge against 
 it, will not make the aid thus furnished to be supplies within the pau- 
 per act. lb. Ante, 17. 
 
 See Pleading, or Fryeburg v. Brownfield, 68 — 145, 
 
PATTPEB. 413 
 
 (b) Notice. 
 
 39. A written notice signed by the city clerk, "for the overseers of 
 the poor" is not a compliance with the statute, though done under the 
 instruction of the overseers. Belfast v. Lee, 59 — 293. 
 
 40. The defect in a notice, that it was signed by the city clerk, is 
 not waived by a reply sent to the clerk, inquiring concerning the age 
 of the pauper, the amount of expense already incurred and the prob- 
 able future expense. Ih. 
 
 41. When thb Notice mat be given. A brother who had long 
 voluntarily supported his sister notified one of the overseers of the 
 town in which they resided that he could support her no longer with- 
 out compensation from the town. The pecuniary and bodily condi- 
 tion of the sister was such that she stood in need of immediate relief 
 when the support of her brother was withdrawn. The overseer 
 thereupon directed the brother to take care of her and he would see 
 to it, and on the same day, after he had communicated the fact to 
 another overseer, who assented to what he had done, a notice that she 
 had become chargeable was made and sent by them to the town in 
 which the sister had her settlement. Held, that the notice was not 
 premature, although no bargain was made with the brother as to the 
 price to be paid for her board until some days after. Fayette v. Liv- 
 ermore, 62 — 229. 
 
 42. When an insane pauper is committed to the hospital by a 
 town in which he has no settlement, a notice, given by the town 
 making the commitment, to the town of his settlement, after the liar 
 bility for hospital expenses has been incurred, but before their pay- 
 ment, is premature. West Gardner v. Hartland, 62 — 246. 
 
 43. When the supplies are furnished continuously, and the defend- 
 ant town has paid no part of the expenses at the time of the com- 
 mencement of the suit, and several notices have been given, it is 
 sufficient if one of the legal notices covers the time when all the pay- 
 ments were made, including the sums paid three months prior to the 
 notice, and all sums afterwards accruing and paid, unless barred by 
 the statute of limitations. Bowdoinham v. Bhippsburg, 68 — 497. 
 
 44. Example. When the payments are for the support of a per- 
 son committed to the insane hospital, it is not necessary that a new 
 notice be given when each payment is made to the hospital. lb. 
 
 45. A MISSTATEMENT of material facts, so important that they 
 change the settlement of the pauper, will vitiate the notice. Glen- 
 hum V. Oldtown, 63—582. 
 
 46. A statement in the notice that a woman and children are the 
 wife and children of a man named, when in fact she is not his wife, 
 and the children are illegitimate, is such a misrepresentation of 
 material facts as will prevent its laying the foundation for a recovery 
 of the expense incurred in their support. Holden v. Glenhurn, 
 63-579. 
 
 47. A notice stating that Mrs. A. E., and her five children, had 
 fallen into distress, etc., is sufficiently definite, although the names of 
 the children are not given and two of them are not legitimate. 
 
 Woodstock V. Bethel, 66—569. 
 
 48. A NEW notice must be given for every new action. East 
 Machias v. Bradley, 67—533. 
 
414 PATJPEE. 
 
 49. One notice mil not suffice for a series of consecutive suits, com- 
 menced within the two years allowed by statute. lb. 
 
 See Pleading, 60. 
 
 (c) Individuals against towns. 
 
 50. The notice and request required by R. S., 1871, c. 24, § 32, to 
 enable an inhabitant to recover of a town the expenses incurred in 
 the support of a pauper, is sufficient if made to only one member of 
 the board of overseers. Newhit v. Appleton, 63 — 491. 
 
 51. A person, living in an unincorporated place, who furnishes sup- 
 plies to a pauper in such place, cannot recover therefor against the 
 oldest incorporated town adjoining such place, unless the pauper 
 has his legal settlement in such town. Kennedy v. 'Weston, 65 — 596. 
 
 52. The remedy of the person furnishing relief in such cases seems 
 to be against the town in which the pauper has a settlement. Ih. 
 
 (d) Towns against individuals. 
 
 53. One of the kindred of a pauper, assessed a certain sum for the 
 support of the pauper, can not maintain a petition for the alteration 
 of the assessment in any county other than that in which the assess- 
 ment was originally made. Tracy v. Home, 64 — 201. 
 
 III. EVIDENCE. 
 
 54. Where, in a pauper case, upon the issue, whether the pauper 
 had had his home five consecutive years, between March, 1860, and 
 December, 1867, in the plaintiff town, the question turned mainly on 
 the facts connected with an undisputed absence of three weeks, in 
 March, 1868, in another town, where he went and resided with one 
 K. and of another of a few days in September, 1863, it is competent 
 for the plaintiffs to show, that the pauper came to the witness's house 
 in the plaintiff town and wanted to stay a spell, but that the witness 
 declined to allow him stay but a short time, stating to the pauper the 
 condition of the witness's family as the reason for thus declining; 
 and also to show that when the pauper came, he brought nothing ex- 
 cept the clothes he had on. Ripley v. Hebron, 60 — 379. 
 
 55. Held, that such conversation tended to show the character of 
 the residence and was not mere declarations. lb. 
 
 56. Held, also, that it was competent for such witness to testify 
 that while the pauper was thus stopping at his house in March, 1863, 
 he heard K. propose to the pauper to go and live with him in D., — 
 that he would give him a home there as long as he wanted one ; that 
 the pauper replied he would think of it ; that two days afterwards K. 
 came and renewed his proposition, when the pauper said he would go, 
 and did go the next morning. lb. 
 
 57. Also held, that it was competent for such witnesses to testify 
 whether or not, at the time the pauper thus left the witness's house, 
 there was any understanding between the witness and the pauper, or 
 any authority given by the witness to the pauper, that the latter 
 might return to the witness's house. lb. 
 
 58. But held, also, that it was not competent to prove the declara- 
 tions of K. (who was not a witness) as to his understanding of the 
 nature of the pauper's residence with him. lb. 
 
PAUPEK. 415 
 
 59. When a pauper leaves a town where he has resided, having no 
 family, leaving no house or place therein to which he has any right to 
 return, and having no effects save the clothes he wears, the law does 
 not presume that he intends a temporary absence, and has a continu- 
 ing purpose to retain a home in such town, and return to it at some 
 future period. lb. 
 
 60. Nor does the law presume that he has no such intention. Tb. 
 
 61. But it leaves it to the jury to determine upon all the evidential 
 circumstances and probabilities in the case, what his intention in fact 
 was. Ih. 
 
 62. It is not necessary that there should be any distinct declara- 
 tion of intention proved ; but it may be latent in the mind of the 
 pauper. lb. 
 
 63. Where the original settlement of a pauper is admitted to have 
 been in the defendant town, and in setting up a subsequent five 
 years' continuous residence, between the years 1860 and 1867, in 
 another town, a personal absence of three weeks in March, 1863, 
 appears, it is incumbent upon the defendants to satisfy the jury, from 
 all the circumstances and probabilities in the case, that when he left 
 he did not intend to abandon it as his home, but did intend to retain 
 his connection with the town as his home during his absence, and to 
 return to it, as such, after accomplishing the purpose of his absence. 
 lb. 
 
 64. When the residence of a pauper on March 21, 1821, was alleged 
 to be in a certain town, evidence that his residence was in that town 
 in 1852, and that his wife was then supplied as a pauper, is not admis- 
 sible. Appleton V. Belfast, 67 — 579. 
 
 65. Proof that after the pauper was furnished with supplies he 
 recovered a small judgment for wages is not admissible to show that 
 he was not in distress at the time the supplies were furnished. Ih. 
 
 66. A record of town orders, given by the officers of a town for the 
 support of a pauper on the ground that he had a settlement therein, 
 is admissible in evidence on the question of his settlement, not con- 
 clusive as an estoppel, but for the jury to weigh. Weld v. Farming- 
 ton, 68—301. 
 
 IV. BELIEF PROM THE STATE. 
 
 67. A person found in an unincorporated place, in need of relief, 
 having no home or place of residence in such unincorporated place, 
 but being there for some temporary purpose only, is not within the 
 meaning of section 22, chapter 24, of the revised statutes. Opinion 
 of the Judges, 68—593. 
 
 68. If such person is relieved by the oldest adjoining incorporated 
 town, and he has no legal settlement in the State, and he has not 
 lived in the town furnishing such relief, such town is not entitled to 
 be reimbursed by the State for the relief furnished under the statute 
 aforesaid, and act of 1874, chapter 230. lb. 
 
416 PAYMENT. 
 
 PAYMENT. 
 
 I. WHAT IS A PAYMENT. 
 II. SETTLEMENT OF A DEBT BY PAYMENT OF LESS THAN 
 THE AMOUNT DUE. 
 
 III. APPROPRIATION OF PAYMENTS. 
 
 (a) By the pabxies. 
 
 (b) When no appeopbiation is made bt the pasties. 
 
 IV. EFFECT. 
 
 I. WHAT IS A PAYMENT. 
 
 1. An accommodation indorser of a negotiable promissory note can 
 not recover of the maker the amount of the note, on the ground of 
 payment by another note, when the second note is signed by a third 
 party, unless he shows that the second note was given under such 
 circumstances as to make it payment of the first by the plaintiff. 
 Lentill v. Getchell, 59 — 135. 
 
 2. The plaintiff, for the accommodation of the defendant, became 
 the second indorser of a promissory note made payable to the order 
 of and signed and indorsed by the defendant. At maturity, the note 
 was taken up by one of like tenor, signed and indorsed by one 
 Thompson, and further indorsed by the plaintiff and one Sumner. 
 When the second note matured, it was taken up by a note of like 
 tenor, signed and indorsed by Sumner, and further indorsed by the 
 plaintiff, who paid it at maturity. While the second note was out- 
 standing, and before its maturity, the plaintiff sued the defendant, 
 claiming to recover for payment of the latter's note, and interest on 
 the money paid. Held, that the action could not be maintained, in 
 the absence of proof that the second note was given as payment by the 
 plaintiff. lb. 
 
 3. The taking of a check for an existing debt is not, ipso facto, 
 payment of the debt. Marrett v. JBra.clcett, 60 — 524. 
 
 4. The acceptance of a check implies an undertaking on the part of 
 the holder to use due diligence in presenting it for payment. lb. 
 
 5. The holder is in the exercise of due diligence when he presents 
 it for payment in accordance with the usage of the banks where pay- 
 able, and of the persons having accounts with such banks — provided 
 the usage is well established, reasonable, and lawful, and recognized by 
 the mercantile community and the parties to the check. lb. 
 
 6. And it makes no difference that the check is that of the agent 
 of the debtor. lb. 
 
 7. In Maine a promissory note, or an accepted biU of exchange is 
 prima facie evidence of payment of the debt for which it is given. 
 Strang v. Hirst, 61 — 9. 
 
 8. A BILL OF EXCHANGE, not accepted by the drawee, is not an 
 extinguishment of the original indebtedness on account of which it 
 was given. lb. 
 
 9. When a debtor gives negotiable paper for an antecedent debt, 
 which does not operate as payment, the creditor must produce and 
 give up the bill or note before he will be allowed to recover upon the 
 original consideration. lb. 
 
FT. 
 
 PAYMENT. 417 
 
 10. If a creditor takes a cash oedee, drawn on himself, in satis- 
 faction of his debt, the debt is thereby paid. Waite V. Vbse, 62 — 184. 
 
 11. Condition. If the order is taken upon condition, the payment 
 becomes absolute when the condition is performed, although the fact 
 of perf oimance is not ascertained until some time after. It -is the fact 
 of the performance of the condition, and not the ascertainment of it, 
 that makes the payment absolute. lb. 
 
 12. Where a creditor takes from his debtor the negotiable notes of 
 a third person, with the agreement that they shall be a payment of 
 the debt when they are paid, the fact that the notes are made paya^ 
 ble directly to the order of the creditor, does not cause them to oper- 
 ate as a payment of the debt in opposition to the agreement. Prentiss 
 V. Garland, 67—345. 
 
 13. Nor does the conditional payment become absolute by an 
 agreement between the creditor and the maker of the notes that they 
 shall be discharged for less than their face, upon another condition 
 which does not happen, although the creditor indorses them, not to 
 pass any present title, but that the title may pass in the future if 
 occasion should ever after require it. lb. 
 
 14. WoKTHLBSS Papee. A town order delivered by a debtor to 
 his creditor as a payment of an existing debt, and received in good 
 faith as such, and subsequently proved to be invalid and utterly 
 worthless for any purpose whatever, fails to operate as a payment. 
 Hussey v. Sibley, 66 — 192. 
 
 15. In such case the creditor, by returning the order within a rea- 
 sonable time, may recover the amount of his debt. lb. 
 
 16. Twenty Tbaes' Possession of the mortgaged premises by 
 the mortgager, without recognizing the mortgage, is presumptive evi- 
 dence of payment, although the presumption may be rebutted. Jar- 
 vis v. Albro, 67—310. 
 
 17. A ship's husband employed a master in this country, the con- 
 tract fixing the amount of the wages but not the time or place of pay- 
 ment. The master, while in foreign ports, from time to time, appro- 
 priated from the earnings of the vessel, certain sums in the coin of 
 the country in which he was, for the payment of his own wages, giv- 
 ing the owners credit for its legal value in U. S. currency. Held, that 
 he was right in so doing, and was not obliged to give the credits for 
 the market value of the coin in U. S . currency. Loring v. Loring, 
 
 Dtc 000. 
 
 18. When property is conveyed by an absolute bill of sale, by a 
 debtor to a creditor, and a writing given back promising to re-convey 
 upon payment of the debt, within a specified time, if it appears that 
 the parties intended a transaction which would in law amount to a 
 mortgage, and that the property remained in the possession of the 
 mortgager, and no part of the proceeds of the vessel came to the 
 hands of the mortgagee, he should not be held accountable for her 
 value as a partial payment. Varney v. JTawes, 68 — 442. 
 
 See Insueance, 79, p. 309. Moetgage, 63, p. 375. 
 
 II. SETTLEMENT OF A DEBT BT PAYMENT OF LESS THAN 
 THE AMOUNT DUE. 
 
 19. A conditional agreement to compromise a debt is not per se a 
 compromise. Prentiss v. Garland, 67 — 345. 
 
418 PAYMENT. 
 
 20. Part payment of a debt made with an agreement that the debt- 
 or shall have his "own time to pay the balance," does not come within 
 the operation of R. S., c. 82, § 38, and an action is maintainable to 
 recover the amount remaining due. Mayo v. Stevens, 61 — 562. 
 
 21. To render a partial payment, an extinguishment of the whole 
 debt, both parties must concur in the understanding that it was a pay- 
 ment in full. lb. 
 
 22. After the settlement for a claim for less than the sum due be- 
 fore the creditor can maintain a suit on the original cause of action, 
 on the ground of fraud in the settlement, he must seasonably rescind the 
 contract of settlement, and return to the debtor whatever sum was 
 paid and received in effecting it. Potter v. Monmouth Fire Ins. 
 Co., 63—440. 
 
 23. Evidence of an agreement under seal, by a creditor, to accept 
 a certain per centage less than the amount of his debt in payment 
 thereof, and to transfer the debt to some third person on receipt of 
 the same within a certain time, and that the creditor refused to ac- 
 cept the per centage within the time limited does not show payment, 
 and is not a bar to a suit to recover the debt. Young v. Jones, 64 — 
 563. 
 
 See Accord and Satisfaction, p. 7. 
 
 III. APPKOPRIATIOK OF PAYMENTS. 
 
 (a) By the pabtibs. 
 
 (b) When no appeopbiation is made by the pakties. 
 
 (a) JBy the parties. 
 
 24. The party who makes a payment has a right to apply it as he 
 chooses. If he does not apply it, the party who receives it may make 
 the application. But the application once made, he who receives has 
 no power to change it ; he who pays none to withdraw it. Phillips 
 V. Moses, 65—70. 
 
 25. A payment once appropriated, with the consent of the debtor, 
 to an illegal demand cannot afterward be transferred to a legal demand, 
 without the consent of both parties. Plummer v. Ershine, 58 — ^59. 
 Phillips V. Moses, 65 — 70. Prawn v. Burns, 67 — 535. 
 
 26. If enough of the payments made on an account be subsequently 
 applied by the creditor to liquidate the items consisting of liquors 
 sold in violation of law; and a statement of the account, omitting 
 therefrom the liquor items, and their equivalent in credits be sent to 
 the debtor, who thereupon replies that he will pay the same — the ap- 
 propriations wiU be deemed made by mutual assent, and they cannot 
 be revoked without such assent. Plummer v. Ershine, 58 — 59. 
 
 27. The consent of a debtor to the appropriation of payments, by 
 the creditor, to illegal items may be inferred from the fact that the 
 account between them extended over several years, and included _ a 
 large number of sales, that the debtor made many payments and did 
 not intend at any time to pay more than he thought was due, and 
 that the payments were largely in excess of the legal items. Phil- 
 lips V. Moses, 65 — 70. 
 
 28. By the Ckeditoe. There is a well marked distinction, in 
 regard to the right of appropriation by the creditor, between demands 
 
PAYMENT. 419 
 
 growing out of contracts which the law simply declines to enforce 
 and those which it directly prohibits. lb. 
 
 29. A creditor having two demands, one lawful, the other accru- 
 ing from a transaction forbidden by law, can not apply a payment to 
 the illegal demands without the express or implied consent of the 
 debtor. lb. 
 
 30. But if one of the demands is legal, and the other is simply non 
 enforceable, for example, on account of the infancy of the debtor, or 
 by reason of the statute of frauds, and the debtor makes a general 
 payment, the creditor may apply it to the demand which could not 
 be enforced by law. lb. 
 
 31. When a defendant, who has verbally jjromised to pay for cer- 
 tain goods to be furnished by the plaintiff to a third person and after- 
 wards promised in writing to pay for such as should be furnished, 
 makes payments generally upon the order of such third person, after 
 the date of the- written promise, without reference to the question of 
 liability, the plaintiff may apply such payments to the items of the 
 account furnished under the oral promise. Murphy v. Webber., 61 
 —478. 
 
 32. If a COLLECTOR OF TAXES, who has held the office for consecutive 
 years, pays money, without any appropriation on his part, to the treas- 
 urer, who appropriates it to the oldest liability, neither the collector 
 or his sureties can afterwards appropriate the money so paid upon 
 his liabilities for a subsequent year, although the money was actually 
 collected from that year's taxes. Orneville v. Pearson., 61 — 552. 
 
 33. When money paid by a collector of taxes to the treasurer is at 
 the time appropriated to a particular tax, such appropriation can not 
 be subsequently changed by the town to the injury of the collector. 
 Richmond v. Brown., 66 — 373. 
 
 See Receipt. 
 
 (b) "When no appropriation is made by the parties. 
 
 34. Payments, in the absence of any specific appropriation, are ap- 
 propriated to the earliest items in an account for labor. Brainard v. 
 Shannon, 60 — 342. 
 
 35. If a payment is made without any appropriation by the parties, 
 the court will not appropriate it upon a demand, the existence or valid- 
 ity of which is not established, or admitted. Cary v. "Herrin, 62 — 16. 
 
 36. When a note is made payable in instalments, with a provision 
 that payments may be made in advance, in the absence of an appro- 
 priation by the parties, advance payments are to be applied upon the 
 first instalment becoming due. Sampson v. Sampson, 68 — 828. 
 
 rv. EFFECT. 
 
 37. When a debtor has paid certain items of his creditor's account, 
 and the creditor subsequently takes judgment for the full amount of 
 the original account, and the debtor satisfies the judgment, he can not 
 recover back the amount thus wrongfully included in the judgment 
 and paid twice ; his remedy being in review. Hagar v. Springer, 60 
 
 38. The purchaser of goods, the sale of which is prohibited as 
 against public policy, e. g. intoxicating liquors, if he pays for them, 
 
420 PAYMENT — PBDDLEE — PENALTY. 
 
 has no right of action at common law (and at present none by stat- 
 ute) to recover back the purchase money. Mudgett v. Morton, 60 — 
 260. Phillips V. Moses, 65—70. 
 
 40. The mere advancement by a stranger of the amount of a debt 
 due, will not bar an action prosecuted in the name and with the con- 
 sent of the creditor against the debtor, to recover the amount. Brown 
 V. Chesterville, 63—241. 
 
 41. A voluntary payment of another's debt by a stranger will give 
 no right of action by the payer against the debtor. lb. 
 
 42. When a claim for which a creditor has a lien upon logs is paid 
 in full by the debtor, and the creditor's lien thereby discharged, the 
 fact that the debtor had made a contract with a third person for the 
 sale of the logs and the repayment to him of the amount paid to ex- 
 tinguish the lien, and that such person refuses to repay the amount 
 paid by the debtor, will not enable the creditor to assert a claim 
 which had been discharged by the party whose duty it was to dis- 
 charge it. Kennedy v. Jones, 67 — 538. 
 
 43. Where suits are brought against the maker and indorser of a 
 promissory note, and the indorser pays the amount, and it is agreed 
 between the holder and the indorser that the suit against the maker 
 shall be prosecuted for the benefit of the indorser, the maker cannot 
 avail himself of the payment by the indorser as a defense in the suit 
 against him. Ticonic Bank v. Bagley, 68 — 249. 
 
 See Mistake, p. 368. 
 
 Mortgage, 143, p. 383. 
 
 PEDDLER. 
 
 1. By R. S., 1871, c. 44, § 1, no person unless licensed shall travel 
 from town to town carrying for sale, or offering for sale, any goods, 
 wares, or merchandise, whole or by sample, under a penalty. Bwr- 
 hanh v. McDuffee, 65—135. 
 
 2. One C, a traveling salesman for the plaintiffs, procured from 
 the defendant in this State an order for certain goods. The order 
 was drawn by the defendant upon the plaintiffs, and they forwarded 
 the goods from Xew York, where was their place of business. Held, 
 that the defendant could not invoke the provisions of the statute in 
 defense of a suit for the price of the goods. lb. 
 
 3. Whether the statute is constitutional quaere, lb. 
 
 PENALTY. 
 
 1. The keeping an inn without a license subjects the person so 
 doing to a penalty. A recovery of this penalty for violating the law 
 during one month is not a bar to another violation in the month fol- 
 lowing. State V. Johnson, 65 — 360. 
 
 2. So much of R. S., 1871, c. 125, § 4, as authorizes an action on 
 the case to be brought, in certain contingencies, by any person to re- 
 
PEEJTJEY — PHYSICIAN AND SUEGEON. 421 
 
 cover from the winner treble the value of property received by him 
 upon a gambling transaction, one-half to the plaintiff's use, is penal, 
 ^nd should be strictly construed. Beats v. Thurlow, 63 — 9. 
 
 3. R. S., 1871, c. 95, § 11, giving treble damages where one enters 
 upon grass land without the pel-mission of the owner and takes away 
 grass, is remedial, not penal. Black v. Mace, 66 — 49. 
 
 4. CoEPOKATioN. An action of debt to recover the penalty given 
 by statute for unlawfully taking logs out of a river, can not be main- 
 tained against a corporation. Androscoggin W. P. Co. v. Bethel S. 
 M. Go., 64—441. 
 
 5. Right to Penalty. He who first commences a qui tarn suit 
 acquires a right to the penalty, which can not be divested by a subse- 
 quent suit, though judgment be first recovered in the second suit. 
 State V. Smith, 64 — 423. 
 
 6. Pleading. In an action by a creditor, against one alleged to 
 have assisted the debtor in the fraudulent transfer of his property, 
 (R. S., 1871, c. 113, § 51,) when the declaration expressly refers to 
 the chapter and section on which the action is based, it is not nec- 
 essary to conclude with the words "contrary to the form of the stat- 
 ute." Wentworth v. Hinkley, 67—368. 
 
 See Damages, 76, p. 153. 
 Indictment, p. 290. 
 Limitations, 17, p. 350. 
 Pleading, 41, p. 427 ; 55, p. 429. 
 
 PERJURY. 
 
 An indictment for perjury, drawn in accordance with the statute 
 form is good, and need not directly allege that the words set forth as 
 the testimony given were false. State v. Uorson, 59 — 137. 
 
 See Constitutional Law, 12, p. 104. 
 
 PHYSICIAN AND SURGEON. 
 
 1. The professional services of a medical clairvoyant are medical 
 services within the meaning of R. S., 1871, c. 13, § 3, relating to 
 recovery of compensation for medical services. Bibber v. Simpson, 
 59—181. 
 
 2. "When a physician is called to a patient and attends, nothing being 
 said as to time, it is a dereliction of duty on his part to leave that 
 patient in the midst of a critical sickness without cause, or without 
 notice. Barbour v. Martin, 62 — 536. Ballou v. Prescott, 64 — 305. 
 
 3. If a physician is called to attend, in the usual manner, and under- 
 takes to do so by word or act, nothing being said or done to modify 
 this undertaking, it is a legal proposition that not only reasonable care 
 and skill be used, but also continued attention, and culpable negligence 
 in this respect will render him liable. Barbour v. Martin, 62-— 536. 
 Ballou V. Prescott, 64—305. 
 
422 PHYSICIAN AND SURGEON — PLANTATION. 
 
 > 4. In an action on the case against a surgeon for malpractice, in 
 whicli the injury is alleged to have resulted from a want of ordinary- 
 care and skill on the part of the defendant, evidence that the defend- 
 ant assured the plaintiff that he was fully competent to treat the case 
 • and would warrant a cure, is not admissible to maintain the action, 
 since the only issue presented by the pleadings is want of ordinary 
 skill and care. Goodwin v. Hersom, 65 — 223. 
 
 See Contagious Diseases, p. 109. 
 Offioee, 9, p. 308. 
 
 PLANTATION. 
 
 1. Where a land agent, in his deed of the right to cut timber and 
 grass upon a certain township, sold under R. S. of 1857, c. 5, § 11, 
 professed to convey this right till the township was organized for 
 plantation purposes ; it was held, nevertheless, that the right was ter- 
 minated upon the organization of the township for election purposes. 
 Bragg v. Burleigh, 61 — 444. 
 
 2. Oeganization. a warrant issued by a county commissioner for 
 a meeting of the inhabitants of an unincorporated township for the 
 organization of a plantation must name the place of meeting, the offi- 
 cers to be chosen, and must require that attested copies of the warrant 
 be posted in two public and conspicuous places in the township. State 
 V. Shaw, 64—263. 
 
 3. The place of meeting can not be fixed by the pei-son to whom 
 the warrant is directed for service. lb. 
 
 4. When the return upon the warrant is not dated, and it can not 
 be known that the required notice was given, or that the notices were 
 posted in public and conspicuous places, and it is certain that the 
 notice was not to choose the officers required by statute to be chosen, 
 the organization effected under the warrant is invalid. lb. 
 
 5. When it appears that a plantation, during the war had its quota 
 of soldiers under the different calls for troops regularly assigned to it, 
 it comes within the purview of the various legislative acts affecting 
 the powers and duties of towns and plantations in relation to the pro- 
 curement of soldiers, the business of State aid, and kindred topics, 
 whether the organization of the plantation originally was for election 
 purposes only, or for other purposes. Bessey v. Unity, 65 — 342. 
 
 6. Liability. The giving an order by the assessors of a plantation 
 does not render it liable to pay to the holder any money to which he 
 is not otherwise entitled. Bartlett v. Ha-mlin^s Grant, 63 — 292. 
 
 7. A plantation voted to raise a sum of money to fill its quota of 
 men called for during the late war of the rebellion, chose a special 
 agent and empowered him to hire the money necessary, upon the credit 
 of the plantation, and give obligation binding the inhabitants of the 
 plantation paying tax thereon. Held, that an order for the money 
 drawn in blank by the assessors of the plantation upon the treasurer, 
 by them delivered to the agent and by him filled up and delivered 
 to the plaintiff, who loaned the money and delivered it to the agent 
 upon the strength of the order, was a valid execution of the power 
 within the terms of the vote. Bessey v. Unity, 65 — 342. 
 
PLANTATION — ^PLEADING. 423 
 
 9. The vote was passed at a time when, by virtue of c. 227, Laws of 
 1864, the plantation might make temporary provision to pay three 
 hundred dollars for each recruit, but provided for raising a sura not to 
 exceed three hundred and fifty dollars for each recruit. Held, that 
 the action of the plantation was not within the authority granted. lb. 
 . 10. Meetings. A notice of a meeting of the inhabitants of a plan- 
 tation, signed by the assessors, and a certificate thereon that they had 
 notified the within named inhabitants of the time and place of the 
 intended meeting by posting up notices as the law directs, is not 
 legal evidence that the proper notice was given. lb. 
 
 11. The assessors are not certifying officers. lb. 
 
 12. Nor can their opinion that notice was given as the law directs 
 be accepted in lieu of a statement of the facts, showing when and how 
 the notice was given. lb. 
 
 PLEADING. 
 
 I. 
 
 PAKTIES. 
 
 
 (a) Genbeallt. 
 
 
 (b) Joinder of plaintiff. 
 
 
 (c) JOtNDBB OF DEFENDANTS. 
 
 II. 
 
 DECLARATION. 
 
 
 (a) General eulbs. 
 
 
 (b) Venue. 
 
 
 (c) JOINDBE OF COUNTS. 
 
 
 (d) Dbclaeations in paeticulae actions. 
 
 
 (e) Vaeiancb. 
 
 III. 
 
 GENERAL REQUISITES OF PLEADING. 
 
 
 (a) Cebtainty and paeticulabity. 
 
 
 (b) Duplicity. 
 
 
 (o) Surplusage. 
 
 IV. 
 
 DEMURRERS. 
 
 V. 
 
 GENERAL ISSUE AND BRIEF STATEMENT. 
 
 VI. 
 
 PLEAS PUIS DARREIN CONTINUANCE. 
 
 VII. 
 
 ADMISSIONS BY PLEADING. 
 
 VIII. 
 
 RESULTS OF PLEADING. 
 
 I 
 
 . PARTIES. 
 
 (a) Oenerally. 
 
 1. The principal defendant having been arrested on a special writ, 
 in favor of the plaintiff, gave a bond with the other defendants, sure- 
 ties, therein acknowledging themselves bound to the sheriff by name 
 who made the arrest in a specific sum named, "to be paid unto" the 
 plaintiff, "her heirs and assigns," with the condition annexed in the 
 usual form of a bail-bond. In debt on the bond brought in the name 
 of the plaintiff, held, (1) that if the instrument declared on be a 
 bail-bond, scire facias and not debt is the remedy ; and (2) that if 
 it be deemed a common-law bond, the action must be in the name of 
 
424 PLEADING. 
 
 the sheriff to whom it was given, and not in the name of the plaintiff. 
 Packard v. Brewster, 59—404. 
 
 2. CoEPOEATioN. In case of alleged misconduct of the corpora- 
 tion or its officers, creditors or stock holders must pursue their remedy- 
 in their own names. Piscataquis F. <Sb M. Ins. Co. v. Sill, 60 — 178. 
 
 3. Surviving Partners. Upon a debt due a partnership, one of 
 the members of which has deceased, the action must be brought in 
 the names of the survivors, whether for their own benefit, or under 
 the control of the administrator of the deceased partner. Strang 
 V. Birst, 61—9. 
 
 4. Objection to plaintiff's right to maintain suit as surviving part- 
 ner, because he has not given the bond required by law, must be 
 taken in abatement, or it will be considered as waived. Strang v. 
 Hirst, 61 — 9. Page v. Mc Glinch, 63 — 472. Pope v. Jackson, 65— 
 162. 
 
 5. Insurance. When, by the terms of a policy the insurance 
 company insure A. and B. against loss by fire, to an amount therein 
 stated, A.'s interest payable in case of loss to C, to the amount of 
 his claim, an action upon the policy may be maintained by A. and 
 B., with the consent of C. Patterson v. Triumph Insurance Co., 
 64 — 500. See Grindle v. Eastern Express Co., 67 — 317. 
 
 6. When an insurance is effected upon a vessel by a part owner, 
 "for the benefit of whom it may concern," a suit, in case of loss may 
 be maintained upon the policy, in the name of the party effecting the 
 insurance, or in the name or names of those for whose benefit it was 
 made. Sleeper v. Union Ins. Co., 65 — 385. 
 
 7. A JUDGE OF PROBATE oan maintain a suit upon a bond given to 
 his predecessor, only when authorized by statute. Cleaves v. Pock- 
 ray, 67—118. 
 
 8. When an administrator's bond is not valid as a statutory bond, 
 but is good at common law, an action upon it can be maintained only 
 in the name of the person to whom it was given. lb. 
 
 9. If an administrator's bond is not good as a statute bond, a suit 
 thereon can not be maintained in the name of the successor in office, 
 to the probate judge to whom it was given. lb. 
 
 See Case, 6, p. 83. 
 
 Infant, 10, p. 297. 
 Nuisance, 27, p. 397. 
 
 (b) Joinder of plaintiffs. 
 
 10. Tenants in Common, holding under the same deed as gran- 
 tees, have several freeholds, and are not obliged to join in an action 
 against their grantor for a breach of the covenants of warranty in 
 his deed. Iamb v. Panforth, 59 — 322. 
 
 11. In case of a tenancy in common, each tenant may bring his sev- 
 eral action; but two cannot join against a third, for they have no 
 joint interest. Farrar v. Pearson, 59 — 561. 
 
 12. All the co-tenants must be joined in a complaint for flowage, 
 and their non-joinder may be taken advantage of under the general 
 issue, with a brief statement denying the ownership. Phillips v. 
 Sherman, 61 — 548. 
 
PLEADING. 425 
 
 13. A wrong doer may expose himself to as many suits as there are 
 parties, whose rights and interests are effected by his wrongful acts. 
 Toothaker v. Winslow, 61 — 123. 
 
 14. It seems that when an administrator has collected rent of real 
 estate of his intestate, without the consent of the heirs, they may 
 elect to sue jointly or severally, but an action against the administra- 
 tor, in which a part only of the heirs are joined as plaintiffs, can not 
 be maintained. Kimball v. Sumner, 62 — 305. 
 
 15. StTBYiTiifG Parties. By Public Laws of 1870, c. 128, when 
 either of several plaintiffs or defendants in an action that survives, 
 dies, the action may be further prosecuted or defended by the survi- 
 vors and the executor or administrator of such deceased party jointly. 
 Treat v. Dwinel, 59 — 341. 
 
 (c) Joinder of defendants. 
 
 16. Prior to 1870, in no conceivable case could the representative 
 of a deceased party (there being several plaintiffs or defendants), be 
 joined with the survivors, by the provisions of the revision of 1857. 
 Treat v. Dwinel, 59—341. 
 
 17. By Public Laws of 1870, c. 109, actions pending at the time of 
 the passage or repeal of an act, shall not be affected thereby. lb. 
 
 18. Hence, an action of trespass against several defendants, 
 brought to recover treble damages for the destruction of personal 
 property, pending when c. 128 took effect, can not be prosecuted 
 against the representative of one of the deceased defendants jointly 
 with the survivors. lb. 
 
 19. But in such case, the plaintiff may, under R. S., c. 82, § 11, 
 discontinue against the survivors, and proceed against the represen- 
 tative of the deceased defendant, or proceed against any or all of the 
 survivors upon discontinuing against the representative party, and 
 such of the survivors as the plaintiff may elect not to proceed against, 
 subject to the provision relating to cost. Ih. 
 
 20. Principal and Agent. "Where an agent is liable to an ac- 
 tion on account of his own negligence, and the principal, on the prin- 
 ciple of respondeat superior, is liable for the same injury, they can 
 not be charged jointly. Campbell v. Portland Sugar Company, 
 62—552. 
 
 21. Heies. When the right of action does not accrue until after 
 the statute of limitations attaches in favor of the administrator, and 
 the property has been divided among the heirs, an action by a credi- 
 tor of the ancestor is rightly brought against one of the heirs to 
 recover the proportion of the debt, it belongs to such heir to pay. 
 Sampson v. Sampson, 63 — 328 
 
 22. Joint and Sbvbeal Conteact. "When a contract is joint 
 and several, there are two distinct remedies upon it ; one by a joint 
 action against all, the other by a several action against each. Turner 
 V. Whitmore, 63—526. 
 
 II. DECLARATION. 
 
 (a) Gbnebal btjles. 
 
 (b) Venue. 
 
 (c) JOINDEB OF COUNTS. 
 
 (d) Declabations in pabtictilae actions. 
 
 (e) Vabiance. 
 
426 PLEADING. 
 
 (a) General rules. 
 
 23. Time. An averment that a debtor made a fraudulent transfer 
 of his property "on or about" a given day is insufficient. Piatt v. 
 Jon.es, 59—232. 
 
 24. A declaration must, in general, state a time when every mate- 
 rial or traversable fact happened. The statement of the real time, 
 however, is not necessary, unless it constitutes a material part of the 
 contract declared on, or the date of a written contract is described. 
 Ripley v. Hebron,, 60 — 379. See also Gilmore v. Matthews, 67 — 517. 
 
 25. An ACCOUNT annexed is a part of the declaration. Bennett 
 V. Davis, 62 — 544. 
 
 26. A sufficient declaration must contain all the allegations neces- 
 sary to make out the plaintiff's case, without reference to a paper not 
 attached. lb. 
 
 27. If the defendant neglects to demur, and goes to trial without 
 a bill of particulars, and without asking for one, he can not object to 
 the want of one. Sarrington v. Tuttle, 64 — 474. 
 
 28. In an action by the assignee of a chose in action, if the decla- 
 ration alleges that the original creditor "did transfer, sell, and 
 assign" the same, the presumption is that it is a valid assignment in 
 writing. Wood v. Decoster, 66 — 542. 
 
 29. In an action against two defendants the declaration ran, "for 
 that said 'defendant' at, etc., by 'their' promissory note, promised, etc." 
 Held, that there was no uncertainty in the declaration, it being 
 plain from all the language used that the word defendant was used in 
 the singular number by mistake. JPenley v. Record, 66 — 415. 
 
 30. In an action against two judgment debtors, if there is a formal 
 allegation of the liability of one of them, that one can not, by demur- 
 rer avail himself of the want of formal allegations against the other 
 defendant. ~Wood v. Decoster, 66 — 542. 
 
 31. There is no imperative rule against reciting an instrument in 
 hoBC verba in pleadings. JBean v. Ayers, 67 — 482. 
 
 32. An allegation that the plaintiff delivered certain logs to the 
 defendants at their request, and that "thereupon" the defendants 
 delivered the agreement declared upon to the plaintiff, the word 
 "thereupon" implies that the delivery of the logs was the considera- 
 tion of the agreement. lb. 
 
 33. In ASSUMPSIT unless a promise is directly and positively asserted 
 in the declaration, it will be held bad on special demurrer. lb. 
 
 34. The declaration in the writ is the criterion for determining 
 what is recoverable in an action. If the declaration is broad enough 
 to cover a particular claim, it may be proved and recovered, though 
 it was not contemplated by the plaintiff when the writ was drawn. 
 Haley v. Sobson, 68 — 167. 
 
 (b) Yenue. 
 
 35. It is a sufficient allegation of the venue, that in a contract 
 recited in the declaration in hmc verba, the prefix Penobscot S. S. 
 appears, and that certain acts were alleged to have been done at a 
 place named in Penobscot county, no other place being named in the 
 declaration. Bean, v. Ayers, 67—482. 
 
PLEADING. 427 
 
 36. A declaration alleged that the defendants "al said Lewiston, 
 to wit, at said Auburn," bound and acknowledged themselves. Held^ 
 that the venue was properly laid. Colton v. Stanwood, 68 — 482. 
 
 (c) Joinder of counts. 
 
 37. To a declaration containing one good count in debt on a judg- 
 ment, one on a promissory note alleging a promise, and the general 
 omnibus count, a general demurrer was overruled. Nat. Exchange 
 Bank V. Ahell, 63—346. 
 
 88. One test with respect to the propriety of a joinder of counts is, 
 can the same plea be pleaded and the same kind of judgment rendered 
 on both. Allen v. Ham, 63 — 532. 
 
 39. That the plaintifE does not set out a legal cause of action in one 
 count does not make a misjoinder. Ih. 
 
 (d) Declarations in particular actions. 
 
 40. In assumpsit by a toll-bridge corporation against a stock holder 
 therein to recover certain assessments on his stock, it must be alleged 
 that the assessments sought to be recovered were due and payable 
 when the action was commenced. Bethel & S. T. Bridge Co. v. 
 Bean, 58—89. 
 
 41. In an action on the case under R. S., c. 113, § 51, for knowingly 
 aiding a debtor in a fraudulent transfer of his property after averring 
 that the plaintiffs had, prior to Jan. 23, 1869, sold and delivered to a 
 certain vendee named, divers goods, wares, and merchandise, in pay- 
 ment for which the vendee drew two orders, of the dates, on the per- 
 sons, and for the several amounts respectively named payable to the 
 order of himself at the several times named, and by him indorsed to 
 the plaintiffs, — the declaration then alleged that on the 23d day of 
 January, 1869, "said sums of money, as mentioned in said orders, 
 were due the plaintiffs, and unpaid from the said" vendee, "which 
 said sums and interest still remain justly due and unpaid to the said 
 plaintiffs." Held, to be a sufficiently distinct affirmative averment of 
 the existence of the relation of creditor and debtor between the 
 plaintiffs and their vendee. Piatt v. Jones, 59 — 232. 
 
 42. In such case it is not necessary to allege in addition the facts 
 necessary to fix the liability of the drawer on the orders to the plain- 
 tiffs. Ih. 
 
 43. The declaration must allege with certainty the time when the 
 fraudulent transfer was made ; an allegation that it was done "on or 
 about" a day certain, is not sufficient. Ih. 
 
 44. In such an action a count setting out the fraudulent transfer of 
 several pieces of property, and at various times, but all pertaining to 
 one demand, is not bad for duplicity. Ih. 
 
 45. When the kind of property alleged to have been fraudulently 
 transferred is stated so that it may be seen whether or not it is liable 
 to seizure on execution, and it is alleged to be the property of the 
 debtor, the allegation is sufficient in this respect and will be sustained 
 by proof that it was liable to be taken for his debts by the proper 
 process. Ih. 
 
428 PLBADIKG. 
 
 46. Thus, an allegation that the defendant knowingly aided the 
 debtor in a fraudulent sale to the former, of certain property then 
 belonging to the debtor, to secure it from his creditors and prevent 
 its attachment, or seizure on execution, by receiving from the said 
 debtor and his wife a conveyance of certain real estate described, of 
 a certain value ; or of certain other property then belonging to the 
 said debtor, by receiving from his wife a conveyance of a certain 
 brick-mill building, situated on land bonded to the debtor's wife by a 
 third person named, of the value named ; or of certain other prop- 
 erty, then belonging to the said debtor, by receiving frbm a third 
 person named a conveyance of certain real estate, described, is a 
 sufficient allegation of title in the debtor so that the same may be 
 seized by the proper process. 1 b. 
 
 47. In such an action where the kinds and quantity of property are 
 specifically described in the declaration, and more of such property in 
 value than double the amount of the creditor's demand is not exempt 
 from attachment and seizure on execution, it is not necessary to set 
 forth in so many words that the property described was liable to 
 attachment. Wentworth v. Hinkley, 67 — 368. 
 
 48. And when the declaration expressly refers to the chapter and 
 section of the statute on which the action is based it is not necessary 
 to conclude with the words "contrary to the form of the statute." Ih. 
 
 49. By virtue of R. S., c. 133, § 22, no actiokt on a BEcoGNizAisrcE 
 in a criminal case will be defeated, nor judgment arrested, for any 
 defect in the form of the recognizance, if it can be sufficiently under- 
 stood from its tenor, at what court the party was to appear, and from 
 the description of the offence charged, that the magistrate was 
 authorized to require and take the same. State v. Hatch, 59 — 410. 
 
 50. Thus, a recognizance after alleging that the principal therein 
 was brought before the municipal court of Portland by virtue of a 
 warrant duly issued upon the complaint, on oath, of a person named, 
 then recited the allegations in the complaint which technically set out 
 a compound larceny by the principal in this county, and concluded 
 with the condition, "that if the said respondent shall personally 
 appear at the court aforesaid, and answer to such matters and things 
 as may be objected against him, and more especially to the charge 
 contained in said complaint, and shall abide the order and judgment 
 of said court and not depart without license ; then etc. ; held, (1) 
 that the recognizance contains the requirements specified in the stat- 
 ute ; and (2) that the clause "to answer to such matters and things as 
 may be objected against him," not being authorized, may be rejected 
 as surplusage. lb. 
 
 51. The declaration in a wkit of entry should describe the 
 demanded premises clearly, and without reference to papers or 
 records, dehors the writ ; but such a reference will not vitiate the 
 declaration if the description is complete without it. Willey v. 
 Nichols, 59—253. Bragg v. White, 66—157. 
 
 52. A description of the demanded premises in a writ of entry is 
 sufficient if it gives the number of the lot, when the lot has been act- 
 ually run out and numbered, the number of the lot in such case 
 becoming, for the purpose of identification, its name. Willey v. 
 Mchols, 59—253. 
 
 53. "So much of the Hunnewell farm, so called," in a town and 
 
PLEADING. 429 
 
 county named, "as is contained in lots two, three, and four, according 
 to the division of said farm made by commissioners of partition, 
 appointed by the supreme judicial court, on the petition of B. P. 
 Hunnewell; said lots are adjoining each other, and containing in all 
 eighty acres, more or less ; said lot two being the same set off by said 
 commissioners to Jonas Hunnewell ; said lot three the same set off to 
 Eliza Willey ; and said lot four the same set off to Bethana Bruce," is 
 a sufficient description of the premises demanded in a writ of entry. 
 lb. 
 
 54. A COMPLAINT FOE PLOWAGE Under R. S., c. 92, § 1, containing 
 no allegation of defendant's ownership of the land on which the dam 
 causing the flowage was erected, held, bad on demurrer. Jones v. 
 Skinner, 61 — 25. 
 
 55. In an action of trespass, alleging substantially in the language 
 of the statute the doing by the defendant of the acts for which R. S., 
 1871, c. 95, § 11, gives the injured party three times the value of the 
 property taken, it is not essential to allege that the acts were done 
 against the form of the statute. Slack v. Mace, 66 — 49. 
 
 56. Or, to conclude with the words "against the form of the sta- 
 tute." lb. 
 
 57. Or, to allege specifically that the plaintiff is entitled to treble 
 damages. lb. 
 
 58. Or, to allege a scienter on the part of the defendant. lb. 
 
 59. Patjpee. In a declaration in an action between towns for pau- 
 per supplies furnished a married woman, it is not necessary to aver 
 that the husband's settlement was in the defendant town, or that he 
 was unable to support her. It is sufiicient to aver that the settlement 
 of the person receiving the supplies was in the defendant town, and 
 that, at the time the supplies were furnished, she was destitute and 
 needed the relief. Fryeburg v. Brownfield, 68 — 145. 
 
 60. An averment "that within three months next after the second 
 day of June aforesaid, to wit : on the fourth day of June, in the year 
 eighteen hundred and seventy-five, the overseers of the poor of said 
 Fryeburg sent a written notice signed by them, stating the facts 
 aforesaid respecting the said Georgiana Booth, to the overseers of 
 the poor of the said town of Brownfield, and requesting them to re- 
 move the said Georgiana Booth," is a sufiicient averment of notice. 
 lb. 
 
 61. In an action on a poor debtor bond, the plaintiff 'in the first 
 instance need not count upon any other than the penal part of the 
 instrument, leaving the condition to be pleaded by the defendant. 
 Colton V. Stanwood, 68 — 482. 
 
 See Libel, p. 341. 
 Lien, 21, p. 345. 
 SciEE Facias, 2. 
 
 (e) Variance. 
 
 62. In an action for injuries caused by being thrown from a carriage 
 by a locomotive at a railroad crossing, a variance will, after verdict, 
 be overlooked as immaterial, when there is no dispute or misunder- 
 standing as to the precise spot on the face of the earth where the 
 accident occurred, and when the case declared upon and that proved, 
 
430 PLEADING. 
 
 do not require or admit different kinds or degrees of proof, or the 
 application of different rules of law. Webb v. P. d> K. H. Ji. Co 
 57—117. 
 
 63. A declaration setting out an unconditional promise to pay a 
 specified sum in money is not supported by proof of a promise to pay 
 partly in certain notes of a third person, at fifty cents on the dollar, 
 and the balance in money. /Swanton v. Lynch^ 58 — 294. 
 
 64. In an action on a contract for the maintenance of the plaintiff, 
 in which the declaration alleges a contract to support, without stating 
 where, and the evidence shows a contract to support upon a specified 
 farm, the variance is immaterial when the complaint of the plaintiff 
 is a refusal to support on the farm, and the defence is performance, or 
 a readiness to perform, and the defendant is not aggrieved by a re- 
 fusal to instruct the jury that the variance is fatal. Harmon v. Har- 
 mon, 63—437. 
 
 65. In a declaration upon a contract, greater latitude in respect to 
 a variance between the allegations and the proof is allowable with 
 regard to the consideration, than to the operative part of the contract. 
 
 n. 
 
 204. In an action on the case against a surgeon for malpractice, in 
 which the injury is alleged to have resulted from a want of ordinary 
 care and skill on the part of the defendant, evidence that the defend- 
 ant assured the plaintiff that he was fully competent to treat the case, 
 and would warrant a cure is not admissible to maintain the action, 
 since the only issue presented by the pleadings is want of ordinary 
 skill and care. Goodwin v. Hersom, 65 — 223. 
 
 66. Example of variance between a note and declaration which 
 was not treated as fatal may be found in Collins v. Bradbury, 64 — 87. 
 
 67. Paetibs. If the plaintiff sues as payee of a note, promisee in 
 a simple contract, or obligee in a bond, which, on its face, appears to 
 be made to or with a person of a different name, there will be no 
 variance if the plaintiff avers and proves that he was the person really 
 intended. Cotton v. Stanwood, 67 — 25. 
 
 68. Where one of several joint contractors is sued alone, the 
 declaration setting out the contract as his, no notice being taken of 
 the joint contractors, there is no variance. First National Bank v. 
 McKenney, 67—272. 
 
 69. Nor, in a suit by the payee against one of the makers of a joint 
 and several promissory note, is a note which, upon its face, purports 
 to have been given by a firm as principal, and by the defendant and 
 others as sureties, inadmissible because the declaration is silent as to 
 the partnership or suretyship of the makers. lb. 
 
 See LiBiir, 41, p. 347. 
 
 III. GENERAL REQUISITES OF PLEADING. 
 
 (a) Cebtaintt and pakticulabixt. 
 
 (b) Duplicity. 
 
 (C) SUEPLTTSAGB. 
 
 (a) Certainty and particularity. 
 
 70. To a plea, of general performance of the conditions of the bond 
 of the treasurer of State, the plaintiff replied that the principal de- 
 
r-' 
 
 PLEADING. 431 
 
 fendant "continued to hold and exercise the office of treasurer of 
 State, to which he was chosen, as in said condition of said writing 
 obligatory mentioned, . . . from Jan. 13, 1858, to Feb. 4, 1859 ; that 
 during said time, ... on Jan, 14, 1858, and on divers other days and 
 times between that day and the said Feb. 4, 1859, at," etc., the prin- 
 cipal defendant, "as such treasurer, had and received divers sums of 
 money amounting in the whole to the sum of thirty-nine thousand, 
 two hundred and thirty-one dollars and nineteen cents, belonging to 
 the State, and hath not accounted for or paid to the State the same, 
 or any part thereof, although often requested so to do, but hath 
 therein wholly failed, and made default; " "and that the same is still 
 wholly unpaid and unsatisfied, contrary to the form and effect of the 
 said condition of the said writing obligatory." On special demurrer, 
 held, that the replication set out the breach with sufficient particu- 
 larity and precision. State v. Peck, 58 — 123. 
 
 71. In such cases, general pleading is allowable when the facts con- 
 stituting the breach lie more in the knowledge of the opposite party 
 than of the party pleading. lb. 
 
 72; Where the aggregate amount of the breaches is set out in the 
 replication, and the replication is adjudged good on demurrer, judg- 
 ment must go for the amount thus claimed, unless the demurrer is, 
 with the consent of the other party, and by leave of the court, with- 
 drawn under R. S., c. 82, § 19. lb. 
 
 73. A declaration alleging that the plaintiff, at the request of the 
 defendants, a railroad corporation, had conveyed his stock therein to 
 a third person, to be held in trust for certain purposes, and that the 
 defendants in consideration thereof agreed with such trustee not to 
 issue any additional stock without the consent of the contractors, 
 who were constructing their railroad ; but that the defendants, with- 
 out such consent, had issued other stock whereby the value of that 
 conveyed in trust by the plaintiff had been materially diminished, — 
 discloses no ground of an action either e'XrContractu or ea>delicto. 
 Poor V. Buropean & N. A. B. B. Co., 59—270. 
 
 74. An objection at the trial, after general issue joined and the evi- 
 dence closed, in an action for injuries received upon a defective high- 
 way, that there is no allegation that the carriage used was safe and 
 suitable to ride upon, or that the injury was caused by a want of re- 
 pair in the road, can not avail where it is alleged that the plaintiff 
 was driving a safe horse, and that the road was unsafe by means of 
 drifts, in passing which, the plaintiff was injured. Moody v. Camden, 
 61—264. 
 
 75. Every fact necessary to sustain the action should be not only 
 stated but set out in the declaration distinctly and with certainty, 
 leaving nothing to inference. Gilmore v. Matthews, 67 — 517. 
 
 76. It is not good ground of demurrer that, in a joint action upon 
 a joint and several bond, the bond is merely described as joint. Col- 
 ton V. Stanwood, 67 — 25. See Ante, 29. 
 
 (b) Duplicity. 
 
 77. In an action for knowingly aiding a debtor in the fraudulent 
 transfer of his property, by a creditor, a count setting out the fraud- 
 ulent transfer of several pieces of property, and at various times, but 
 
432 PLEADING. 
 
 all pertaining to one demand, is not bad for duplicity. Piatt v. Jones. 
 59—232. 
 
 78. A petition alleging that the wife of the petitioner had obtained 
 a divorce from him by fraud, praying for a "review of the same," and 
 that said decree of divorce "may be annulled," is not bad for duplicity. 
 Lord V. Lord, 66—265. 
 
 (c) Surplusage. 
 
 79. , A count in common form upon a submission and award is not 
 vitiated by an allegation setting up a lien claim, but the claim for a 
 lien being waived, all relating thereto may be rejected as surplusage. 
 Bodge v. Hull, 59—225. 
 
 80. Whatever is useless in a declaration, though objectionable as 
 tending to undue prolixity, and almost necessarily rendering that, 
 which otherwise might be plain and certain, obscure and uncertain, if 
 it can be separated from the useful, is to be rejected as surplusage, 
 and can not be taken advantage of on demurrer. Gilmore v. Matthews, 
 67—517. 
 
 81. The remedy may be by motion to strike out such useless mat- 
 ter. Bean, v. Ayers, 67 — 482. 
 
 IV. DEMUKKEK. 
 
 82. When the pleadings end in a demurrer, judgment must be ren- 
 dered against the party which committed the first fault. Stilphen, v. 
 Stilphen, 58—508. Poor v. European & N. A. R. B. Co., 59—270. 
 
 83. Every objection to a plea in abatement may be taken on gen- 
 eral demurrer. Severy v. Nye, 58 — 246. 
 
 84. Under a general demurrer, no advantage can be taken of formal 
 defects in pleading. JSFeal v. Sanson, 60 — 84. 
 
 85. As that the declaration does not state the value of a note, in 
 trover, or that the plaintiff was possessed of it as of his own proper 
 goods. lb. 
 
 86. In case, by surviving partners, for aiding a debtor in a fraud- 
 ulent conveyance of his property, the objection that the declaration 
 does not allege that the plaintiffs have given the bond provided by 
 R. S., c. 69, §§ 1 and 2, cannot be raised by demurrer. Piatt v. 
 Jones, 59—232. 
 
 87. Where an amendment of a declaration is necessary, and is not 
 made, a deniurrer will be sustained. Bennett v. Davis, 62 — 544. 
 
 88. Section 19, c. 82, R. S., 1871, providing that either party may 
 demur at any stage of the pleadings, does not contemplate the filing 
 of a demurrer to the declaration at any stage of the pleadings, but 
 only that either party may, within the time allowed by law and the 
 rules of the court, thus test the sufficiency of his adversary's next pre- 
 vious pleading. Tukey v. Gerry, 63 — 151. 
 
 89. The act creating the superior court for Cumberland county, 
 requires the defendant's pleadings to be filed within the first fourteen 
 days of the return term. If a defendant files a plea within that time, 
 he cannot, after its expiration, withdraw the plea and file a demur- 
 rer to the declaration as a matter of legal right. lb. 
 
 90. A general demurrer to a declaration containing several counts, 
 
PLEADING. 433 
 
 will be overruled if one of the counts is good. National Mcchange 
 Bank v. Abell, 63—346. 
 
 91. A demurrer to a plea does not reach the brief statement under 
 it. Stevens v. Doherty, 65 — 94. 
 
 92. In an action by the assignee of a chose in action, where the 
 declaration alleges an assignment, if the debtor would question its 
 validity or sufficiency, he must do so by plea and brief statement, and 
 not by demurrer. Wood v. Decoster, 66 — 542. 
 
 93. He must take advantage of an alleged failure of the plaintiff 
 to file the assignment with the writ in the same manner. lb. 
 
 94. Special demurrers are not practically set aside by the statute 
 providing that no process shall be abated, arrested, or reversed for 
 want of form only. The idea of the statute is, not that bad plead- 
 ings shall stand as good, but that they may be made good by amend- 
 ment, liean v. Ayers, 67 — 482. 
 
 95. If a declaration contains useless and redundant allegations, the 
 remedy is not by demurrer, but may be by motion to strike out. 
 lb. 
 
 96. Judgment upon a demurrer, not filed at the first term is final. 
 The defendant cannot withdraw his demurrer and plead anew, unless 
 by leave of court and of the opposite party. Fryeburg v. Brown- 
 field, 68—145. Post, 120. 
 
 V. GENERAL ISSUE AND BRIEF STATEMENTS. 
 
 97. When an action against a town for damages by reason of a 
 defect in its highway is brought in a county other that in which the 
 town is situated, advantage of the fact may be taken under the general 
 issue. Haskell v. 'Woolwich., 58 — 535. 
 
 98. In an action on a bond given to procure the release of a poor 
 debtor from arrest on execution, if the defendants in their brief state- 
 ment allege performance of its conditions according to the statute, 
 and this is denied by the counter brief statement of the plaintiff, it is 
 too late, in the law court to claim that the bond varies from the 
 requirements of the statute, is good only at common law, and subject 
 to chancery. Hackett v. Lane, 61 — 31. 
 
 99. Judgment. Nil debet is no plea to an action on a domestic judg- 
 ment. The proper plea is nul tiel record. Dunn v. Hill, 63 — 174. 
 
 100. In debt on a judgment of a court of another State, a plea of 
 nul tiel record concluding to the country, instead of with a verifica- 
 tion, is bad on demurrer. Endicott v. Morgan, 66 — 456. 
 
 101. Whether or not nil debet is a good plea to suit on a judgment 
 of a court of another State, when the record shows that the defendant 
 had no notice of the suit, it is certain that the defense of want of 
 jurisdiction may be pleaded in bar. lb. 
 
 102. In ASSUMPSIT against sevbeal defendants, where the decla- 
 ration alleges a joint promise, a plea by one of the defendants, that he 
 never promised, etc., is bad upon special demurrer. Moore v. Knowles, 
 65—494. 
 
 103. In an action against husband and wipe, for the tort of the 
 wife, the proper general issue is that the wife is not guilty. Ferguson 
 v. Brooks, 67—251. 
 
 28 
 
434 PLEADING, 
 
 104. But in such case the husband should join in making the plea. 
 Ih. 
 
 105. If the defendant makes an iNSirFFiciBNT and futile plea of the 
 general issue, he is not thereby deprived of his rights under a brief 
 statement which affords a complete answer to the plaintiff's claim. 
 Moore v. Knowles, 65 — 494. Endicott v. Morgan, 66 — 456. 
 
 106. In such case if the plea is demurred to specially, and the ease 
 is reported to the full court with an agreement that such judgment 
 shall be entered by nonsuit or default, as shall be in accordance with 
 the law of the case, the agreement becomes abortive, as the law of the 
 case does not warrant final judgment for either party upon the plead- 
 ings. Moore v. Knowles, 65—494. 
 
 VI. PLEAS PUIS DARREIN CONTINUANCE. 
 
 107. Where the ground of defense is a matter that occurs while 
 the suit is pending, it can be taken advantage of only by plea puis 
 darrein continuance. Stilphen v. Stilphen, 58 — 508. 
 
 108. A plea^Mis darrein continuance must be pleaded to the fur- 
 ther maintenance of the action. lb. 
 
 109. In a plea jOMi's darrein continuance, the day of the continu- 
 ance must be set forth. Jewett v. Jewett, 58 — 234. 
 
 110. A plea puis darrein continuance may be filed after issue 
 joined, but never after that issue has been decided. State v. Peck, 
 60—498. 
 
 111. It is held, with here and there an exception in particular 
 cases, that a plea jumis darrein continuance comes too late after ver- 
 dict. Staples V. Wellington, 62 — 9. 
 
 VII. ADMISSIONS BY PLEADING. 
 
 112. A plea of the general issue admits the capacity of the plain- 
 tiffs to sue. Strang Y. Hirst, &l — 9. PageY.McGrlinch,&'^—A12. 
 Pope V. Jackson, 65 — 162. 
 
 113. In an action against husband and wife, where the cause of 
 action is alleged to be a tort of the wife, a joint plea of the general 
 issue is an admission of such relation between them. Ferguson v. 
 Brooks, 67—251. 
 
 114. When the replication to a plea of performance of a treasur- 
 er's bond, which sets forth the precise amount of money received by 
 the principal, and unaccounted for, is held good on special demurrer, 
 the sum named in the replication is a fact admitted by the demurrer, 
 and judgment must go for that sum. State v. Peck, 60 — 498. 
 
 115. A special demurrer to a faulty plea of the general issue, is not 
 an admission of the facts alleged in a good brief statement under it. 
 Moore v. Snowies, 65 — 494. 
 
 116. In a suit by a corporation, pleading the general issue, admits 
 the legal existence and competency of the corporation to bring the 
 suit. Penobscot B. B. Co. v. Mayo, 60 — 306. Ticonic Bank v. 
 Bagley, 68—249. 
 
 VIII. RESULTS OF PLEADING. 
 
 117. When the pleadings end in a demurrer, the decision must be 
 
PLEADING. 435 
 
 against the party committing the first error. Stilphen v. Stilphen, 
 68—508. 
 
 118. If on demurrer to a plea, a, puis darrein continuance the de- 
 cision be against the plea, judgment is peremptory. Jewett v. Jew- 
 ett, 58—234. 
 
 119. When a special demurrer to a replication, setting out all the 
 facts necessary to maintain the plaintiff's case, is overruled and the 
 replication adjudged good, final judgment follows. State v. JPeck, 
 60—498. 
 
 120. But under R. 8., c. 82, § 19, judgment is not rendered on de- 
 murrer until the term following the certificate of the decision. lb. 
 
 121. Nor then, if the costs are paid and new pleadings are filed on 
 the second day of the term. lb. 
 
 122. If the costs are not paid and new pleadings filed on the sec- 
 ond day of the term succeeding the decision, the right to pay and 
 file them is waived. lb. 
 
 123. When the replication to a plea of performance of the condi- 
 tions of a bond for the performance of covenants and agreements, 
 sets forth the precise amount of money received by the principal and 
 unaccounted for, and is adjudged good on special demurrer, the sum 
 named is a fact admitted by the demurrer, and judgment must go for 
 that amount. lb. 
 
 124. When the pleadings have become complicated in consequence 
 of an erroneous ruling, the law court may send the case back with 
 an order that all the pleadings after the writ be stricken out, and the 
 case stand for trial. Timony v. Timony, 63 — 564. 
 
 125. When a plea in abatement is adjudged bad on demurrer, the 
 judgment is always respondeat ouster. State v. PiJce, 65 — 111. 
 
 See Post, 129. 
 
 126. When a defendant pleads a bad plea of the general issue, and 
 also files a brief statement which is a complete answer to the action, 
 a demurrer to J;he plea does not, if sustained, warrant final judgment 
 for the plaintiff. Moore v. Knowles, 65 — 494. Endicott v. Morgan, 
 66—456. 
 
 127. The defendant may then plead anew upon terms. lb. 
 
 128. When a demurrer is filed after the first term, and overruled, 
 leave to plead anew can not be claimed as a legal right. Winthrop 
 Savings Bank v. Blake, 66 — 285. 
 
 129. In a civil case, where a demuri-er to a plea in abatement by 
 the defendant, is sustained by the presiding judge, and the defendant, 
 without asking leave to plead anew, files exceptions and enters the 
 ease in the law court, if the exceptions are overruled judgment is 
 final. Furbish v. Robertson, 67 — 35. 
 
 130. If one of several joint promisors, pending a suit against them 
 on the contract, file his petition and obtain his discharge in bankruptcy 
 and plead it, and its validity is denied, a verdict and judgment may 
 be legally rendered in his favor, and against the other defendants. 
 
 West V. Furbish, 67—17. 
 
 131. Under the provision of statute, that after a decision on de- 
 murrer has been certified from the law court, to the clerk of the 
 county, judgment shall be entered at the next term, unless the costs 
 
436 PLEADING — ^PLEDGE — POOR DEBTOE. 
 
 are paid and an amendment or new pleadings filed on the second day 
 of the term, it is the defeated party only who needs the delay, and 
 he may take all the time allowed for filing new pleadings, or not, as he 
 pleases. £ean v. Ayers, 67 — 482. 
 
 PLEDGE. 
 
 See Bailment, p. 52. Moetgagb, 128, p. 382. 
 
 POOR DEBTOR. 
 
 I. PEOCEEDIN-GS IN OBTAINING DISCHARGE. 
 
 (a) The citation and seuvice. 
 
 (b) Justices and their selection. 
 
 (c) Commissioner. 
 
 (d) Examination and proceedings. 
 
 (e) Certificate of discharge. 
 
 II. BONDS. 
 
 (a) Form. 
 
 (b) When the condition is broken and when not. 
 
 (c) Damages. 
 III. OTHER MATTERS. 
 
 I. PROCEEDINGS IN OBTAINING DISCHARGE, 
 (a) The citation and service. 
 
 1. When the citation for a poor debtor's disclosure, alleges that the 
 debtor was arrested by the deputy of a sheriff of a county named, 
 the presumption is that the arrest was made in that county. Emery 
 V. Brann, 67—39. 
 
 2. The citation to the creditor is the foundation of the jurisdiction 
 of the justices. Poor -v. Knight, QQ — 482. 
 
 3. If there is a material variance between the judgment described 
 in the bond and that described in the citation, the variance is fatal. 
 lb. 
 
 4. A constable may serve the citation in a poor debtor's disclosure, 
 although the amount due the creditor is more than a hundred dollars. 
 Bliss V. Day, 68—201. 
 
 5. It is not a valid objection to the service of a citation in a poor 
 debtor's disclosure, that the constable who made the service had not 
 given the bond required by law, he being an ofilcer de facto. lb. 
 
 (b) Justices and their selection. 
 
 6. When the justices have no jurisdiction their proceedings are 
 wholly void. Spaulding v. Record, 65 — 220. 
 
 7. They have none when the right of the creditor to select a jus- 
 tice is denied. lb. 
 
POOR DBBTOE. 437 
 
 8. Parol evidence is admissible to show that the justices had no 
 jurisdiction. Ih. 
 
 (c) Commissioners. 
 
 9. A commissioner, appointed by the court to hear the disclosure 
 of a defendant need not be sworn. Lewis v. Foster, 65 — 555. 
 
 (d) JExamination and proceedings. 
 
 10. A debtor, commitedto jail without having given bond, and dis- 
 closing there under §§ 21 and 22, of c. 113, R. S., 1871, is not legally 
 entitled to his discharge without paying the jailer the amount due for 
 his support in jail. McPheters v. Morrill, 66 — 123. 
 
 11. An action for damages for a malicious prosecution, prior to ren- 
 dition of judgment thereon, is not an item of property within the 
 meaning of R. S., c. 113, § 31, which should be appraised and set off 
 to the creditor as provided in said section. Hopkins v. Fogler, 60 
 —266. See Post, 24, et seq. 
 
 (e) Certificate of discharge. 
 
 12. In an action upon a poor debtor's bond a certificate of discharge, 
 signed by two justices, is prima facie evidence that one of the alter- 
 native conditions has been performed, although the bond may not be 
 a statute bond because not approved as provided by statute. Smith 
 V. Brown, 61—70. Dunham v. Felt, 65—218. 
 
 13. When the proceedings of the justices are void, for want of jur- 
 isdiction because the right of the creditor to select a justice is denied 
 him, the discharge is no bar to a suit on the bond, when the bond is 
 good under the statute. Spaulding v. Record, 65 — 220. 
 
 14. The certificate of the justices selected to hear a poor debtor's 
 disclosure, in which it is stated that the debtor had caused the cred- 
 itor to be notified according to law, is prima facie evidence of a 
 legal service. Bliss v. Day, 68 — 201. 
 
 II. BOND. 
 
 (a) Form. 
 
 (b) WhEK the CONDITION" IS BEOKEN AND WHBH" NOT. 
 
 (c) Damages. 
 
 (a) Form. 
 
 15. When Good at CoMMOisr Law. If it does not appear that the 
 justices who approved the bond were selected in accordance with the 
 statute, it can not be deemed a statute bond. GfuilfordY. Delaney, 
 67—589. 
 
 16. One of the conditions of a poor debtor's bond was that the 
 debtor would take the oath prescribed in the 28th section, of chapter 
 113, of R. S., 1871, but no oath was prescribed by that section. Held, 
 that the bond was not a statute bond. Chase v. Collins, 68 — 375. 
 
 17. In such case parol evidence is not admissible to show that the 
 words "28th" were unintentionally left in the printed form of the 
 bond. lb. 
 
 See Estoppel, 24, p. 216. 
 
 18. Appkotal. Where the bond was approved by justices, one 
 
438 POOR DEBTOR. 
 
 chosen by the debtor, and one by the jailer for the creditor, the court 
 will not assume that the action of the jailer was unlawful for the pur- 
 pose of quashing proceedings otherwise regular. Hopkins v. Foq- 
 ler, 60—267. 
 
 19. If a poor debtor's bond does not show by whom the justices 
 approving it were selected, it is good only at common law. Smith v. 
 JBrown, 61 — 70. 
 
 20. A bond for release of the debtor from arrest upon execution is 
 valid, so far as the approval is concerned, if approved by the attorney 
 for the creditor in his own name as attorney, without using the name 
 of the creditor. Poor v. Knight, 66 — 483. 
 
 21. An approval in the following terms, "We, the subscribers, do 
 approve of the sureties named in the foregoing bond. Scribner & 
 Blossom, (plaintiffs) per E. S. Ridlon, attorney," is a statute approval. 
 Scribner v. Mansfield, 68 — 74. 
 
 22. The FEES of the officer in making the arrest are properly 
 included in the sum due on the execution which is to be doubled to 
 fix the penalty of the bond to be given by the debtor to obtain his re- 
 lease. Bradley v. Pinhham, 63 — 164. 
 
 23. If the condition of a six months' bond, instead of following the 
 language of the statute, by providing that the principal shall within 
 six months from the time of his arrest (or imprisonment) cite, etc., 
 provides that "he shall in six months from the time of executing this 
 bond," etc., it is nevertheless valid as a statute bond. Scribner v. 
 Mansfield, 68—74. 
 
 (b) When the condition is broken and when not. 
 
 24. A disclosure, commenced on the last day of the six months, and 
 lasting until three o'clock of the succeeding morning when it was con- 
 cluded, and the poor debtor's oath administered, will not save a for- 
 feiture of the bond, unless the delay was had at the request of the 
 creditor, or the forfeiture was waived by him. Guilford v. Pelaney, 
 57—589. 
 
 25. A creditor's participation in the examination of the debtor 
 after the expiration of the six months, does not constitute a waiver of 
 such forfeiture. lb. 
 
 26. When it appears that a poor debtor has performed one of the 
 conditions of a bond, good only at common lave, by citing the credi- 
 tor and taking the oath, it is not necessary that the record of the jus- 
 tices should show that they were disinterested, nor why the creditor 
 did not select one of them, nor where the disclosure was had, nor that 
 a7iy disclosure was had. Smith v. Brown, 61 — 70. 
 
 27. When a poor debtor's bond does not conform to the statute a 
 forfeiture is saved if he takes the oath therein named, notwithstand- 
 ing a new statute changing the form of the oath is in force when the 
 oath is taken. lb. 
 
 28. In a disclosure upon a poor debtor's bond good only at common 
 law, where the debtor discloses notes and accounts, a failure to ap- 
 praise and secure them to the creditor is not a breach of the bond, 
 unless such appraisal and assignment is provided for in the bond. lb, 
 
 29. If a poor debtor's bond, good only at common law, requires the 
 debtor to "cite the creditors," service upon one of the creditors is 
 
POOR DEBTOE. 439 
 
 sufficient, the bond being silent as to how they shall be notified, and 
 the notice being in accordance with the statute in force at the time 
 the bond is given and also at the time the citation is served. lb. 
 
 30. A debtor was arrested on an execution dated March 30, 1875, 
 issued on a judgment recovered February 25, 1875, at a term of court 
 held on the first Tuesday of February of the same year, and gave a bond 
 in accordance with the statute. The citation for his disclosure gave 
 the date of the judgment as March 30, 1875, at a term of court held 
 on the first Tuesday of March, of the same year. The amount of the 
 judgment was 1109.45. In the certificate of discharge it was stated 
 to be $109.55. Held, that the variance was fatal, and that the dis- 
 closure was not a performance of the condition of the bond. Poor v. 
 Knight, 66—482. 
 
 31. In COMPUTING THE TIME for the performance of the conditions 
 of a bond, upon arrest on execution, the obligors are bound by the 
 date of the bond and the recital of the day of arrest therein. Scrib- 
 ner v. Mansfield, 68 — 74. 
 
 32. Parol evidence is inadmissible to show that the bond was in 
 fact executed on a subsequent date. lb. 
 
 (c) Damages. 
 
 33. If a debtor, having failed to disclose in accordance with the 
 conditions of a bond given to obtain his discharge from arrest on 
 mesne process, (R. S., 1857, c. 113, § 16,) would reduce the damages 
 to be recovered thereon to a nominal sum, he must satisfy the court, 
 upon the hearing in chancery, that during the thirty days next after 
 judgment in the original suit he was utterly worthless in property, so 
 that the plaintiff suffered no damage by his failure to disclose. Proof 
 that he was insolvent during that time is insuflicient. Webster v. 
 Bailey, 57—364. 
 
 34. In an action on a statute bond given to procure the release of 
 a debtor from arrest on execution, to entitle the debtor to have the 
 real and actual damages assessed, under the provisions of R. S., 
 1871, c. 113, § 52, the justices acting in the disclosure must have 
 been selected according to law, and have jurisdiction over that par- 
 ticular disclosure. Hackett v. Lane, 61 — 31. 
 
 35. If the citation to the creditor does not correctly describe the 
 judgment upon which the arrest was made, the justices have no juris- 
 diction and the actual damages can not be shown in a suit on the 
 bond. Poor v. Knight, 66—482. 
 
 III. OTHER MATTERS. 
 
 36. A creditor may recover of his debtor the amount he has paid 
 the jailer for his board while imprisoned on the creditor's execution. 
 Howes V. Tolman, 63 — 258. 
 
 37. In such case it is not necessary to show a formal complaint to 
 the jailer. Any evidence which shows that the debtor knew that the 
 creditor was required by the jailer to pay his board, and that he 
 intended the creditor to pay it, will raise an implied promise to re- 
 imburse the creditor for the amount paid. lb. 
 
440 PEACTICB. 
 
 PRACTICE. 
 
 I. APPEARAKCE. 
 II. MOTIONS, AND PROCEEDINGS BEFORE TRIAL. 
 
 (a) Generally. 
 
 (b) DiSCONTINtTANCB AWD TRANSFER. 
 
 (c) Notice to produce papers. 
 
 III. INTRODUCTION OF TESTIMONY. 
 
 (a) Generally. 
 
 (b) Cross examination. 
 
 (c) Rebuttal. 
 
 (d) Impeachment op witnesses. 
 
 IV. INSTRUCTIONS TO THE JURY. 
 
 (a) Generally. 
 
 (b) Requested instructions. 
 
 (c) Whbn further instructions must be requested. 
 
 (d) Expression of opinion. 
 
 V. OTHER MATTERS RELATING TO THE TRIAL. 
 
 (a) Forming issues for the jury. 
 
 (b) Right to open and close. 
 
 (o) Power of the court to order a nonsuit or default. 
 
 (d) Mode of conducting trial. 
 
 (e) Assessment of damages, 
 
 (f) Rules of court. 
 VI. LAW COURT. 
 
 (a) Report and agreements of parties. 
 
 (b) Generally. 
 
 I. APPEARANCE. 
 
 1. When both parties die during the pendency of a suit, the admin- 
 istrator of the plaintiff has a right to apf)ear, and summon in the 
 administrator of the defendant. Fulton v. JVason, 66 — 446. 
 
 2. In an action by a husband and wife, for an injury to the wife, 
 there was a verdict foif' the plaintiff, exceptions filed and overruled, 
 and judgment entered up for the plaintiffs. In the interval between 
 the verdict and the entry of the judgment, the wife died. At a term 
 subsequent to that in which the judgment was entered, the action was 
 brought forward, the death of the female plaintiff suggested, the hus- 
 band withdrew as a party, and the administrator of the wife assumed 
 the prosecution of the suit, and judgment was entered in his favor for 
 the amount of the verdict. JHeld, that the proceedings were correct. 
 
 West V. Jordan, 62 — 484. 
 
 See ExBCUTOES and Administeatoks, 87, p. 263. 
 
 Nos, 3 to 7 were notes from the earlier reports included by mistake. 
 
 II. MOTIONS, AND PROCEEDINGS BEFORE TRIAL. 
 
 (a) Generally. 
 
 (b) Discontinuance and transfer. 
 
 (c) Notice to produce papers. 
 
PEACTICE. 441 
 
 (a) Generally. 
 
 8. The court will not quash a capias writ on which the defendant 
 has been held to bail, on the ground that the ad damnum is evidently 
 excessive. Moore v. Moore, 61 — 417. 
 
 9. Where this court has jurisdiction of the parties and subject mat- 
 ter in a writ returnable thereto, and the ad damnum is fixed at a sum 
 below the jurisdiction of this court, but within the exclusive jurisdic- 
 tion of the superior court, the ad damnum may, before trial, be 
 increased, so as to bring the action within the jurisdiction of this 
 court. Merrill v. Curtis, 57 — 152. 
 
 10. After exceptions have been allowed, and the case marked law, 
 the party in whose favor the ruling excepted to was made, may, at nisi 
 prius, by consent of court, have an entry made sustaining the exceptions, 
 and further proceedings may be had as if they had been sustained by 
 the law court. Bean v. Ayers, 67 — 482. 
 
 11. In such case if the exceptions are to a ruling sustaining the de- 
 murrer to the declaration, the plaintiff may amend upon payment of 
 costs, and the case is ready for further trial. Ih. 
 
 12. When a demurrer to a declaration has been overruled, and the 
 defendant's exceptions sustained at nisi prius by consent of the plain- 
 tiff, and the plaintiff has, by leave of court, filed a new declaration, 
 the case is then ready for trial, and neither party has a legal right to a 
 continuance. lb. 
 
 See CoNDiTiosr, 22, p. 97. 
 Costs, p. 134. 
 
 (b) Discontinuance and transfer. 
 
 13. A statute authorized a log driving company to take and use the 
 shore or adjacent land necessary to the erection of a boom on a river, 
 and provided that in case of disagreement as to damage suffered by 
 any one by the exercise of this power, the supreme court should, 
 upon application of the party aggrieved, appoint a committee to ascer- 
 tafa the damage. In a case where a land owner petitioned for a 
 committee, and it appeared that there was no written evidence, either 
 by vote of the company or otherwise, showing what property was 
 taken, the committee reported their want of jurisdiction, and the 
 petitioner was allowed to discontinue, against the objection of the 
 company. Lancaster v. Kennebec Co., 62 — 272. 
 
 14. Want of PEOSEorTiON. The dismissal of an action, or other 
 judicial process, for want of prosecution, rests in the judicial discretion 
 of the court where the proceedings are pending. Davis v. Co. Com., 
 63—396. 
 
 15. So, when an acti^in has been dismissed, whether it shall again 
 De restored to the docket is equally a matter of discretion. lb. 
 
 16. A srBMissioN TO AEBiTKATioiir is, in general, a discontinuance 
 of the suit. Hearne v. Brown, 67 — 156. 
 
 17. But not when, by necessary implication, the case is to remain 
 in court until the award, and such implication arises from the stipula- 
 tion that judgment suall be entered on the award. lb. 
 
 18. If one of the /arbitrators declines to act, the agreement becomes 
 nugatory. lb. 
 
442 PEACTICB. 
 
 19. The defendant filed an account in set-off. The case was sent 
 to an auditor, who heard the parties, and made report to the court, 
 finding a balance due the defendant. Meld, that the plaintiff could 
 not then discontinue his suit without the consent of the defendant. 
 Dyer v. Morris, 68 — 472. 
 
 20. A petition for the ebmoval of a case from the supreme court 
 of the State to the circuit court of the United States, for any of the 
 causes mentioned in the act of Congress of March 3, 1875, must be 
 filed at the first term. School District y. ^tna Ins. Oo.,QQ — 370. 
 
 (c) Notice to produce papers. 
 
 21. A notice to produce written evidence in the hands of the ad- 
 verse party is seasonable if given before the trial commences. IState 
 T. Litchfield, 58—267. 
 
 22. When a party is seasonably notified, under the twenty-seventh 
 rule of court, to produce at the trial a specified book, and it is pro- 
 duced, and the party calling for it examines it and omits to introduce 
 it in evidence, the party producing it may introduce so much of it as 
 is pertinent. Merrill v. Merrill, 67 — 70. 
 
 III. INTRODUCTIOlSr OF TESTIMONY. 
 
 (a) GrENKRALLY. 
 
 (b) Cboss examination. 
 
 (c) Rebuttal. 
 
 (d) Impeachment op witnesses. 
 
 (a) Generally. 
 
 24. To be available, the grounds of objection to the admissibility of 
 testimony must be stated when it is offered. Staples v. Wellington, 
 58—453. 
 
 25. It is for the judge presiding at the trial to determine whether 
 an objection to evidence is seasonably taken, and his determination is 
 final. Thompson v. Dudley, 66 — 515. 
 
 26. A party is not injured by the exclusion of an admissible state- 
 ment contained in an answer in a deposition, when the same statement 
 in other portions of the deposition is received. Staples v. Welling- 
 ton, 58—453. 
 
 27. The admission of irrelevant testimony will not be deemed suf- 
 ficient ground for a new trial, when the jury were expressly instructed 
 to disregard it. State v. Kingsbury, 58 — 238. 
 
 28. Specific Rbqtjest. When an illegal answer to a legal ques- 
 tion in a deposition is read, and the presiding jiudge immediately, in 
 the presence and hearing of the jury, announcf s that the answer is 
 inadmissible, but that as it has been read he cannot exclude it, but 
 that he shall instruct the jury to disregard it ; a new trial will not be 
 given on the ground that no farther instruction was given, unless the 
 attention of the presiding judge was specially called thereto. CoUor 
 gan v. Durns, 57 — 449. 
 
 29. When a question is objected to and admitted, with the remark 
 that the evidence was only admissible for a cer^tain purpose, if the 
 party offering the evidence desu-es the removal o,r qualification im- 
 posed upon the admission he should so request. Powers v. Caa-y, 
 
 64r-9. 
 
PRACTICE. 443 
 
 30. When testimony. introduced for one purpose tends indirectly to 
 effect another, it is the duty of counsel to request an instruction as to 
 its application and effect. Howard v. Kimball^ 65 — 308. 
 
 31. If the irresponsive answer of a witness is objectionable, the 
 objection must be taken at the time. The court should be requested 
 to have it stricken out. State v. Benner, 64 — 267. 
 
 32. Where it is admitted that the damages are not too large, if any 
 are recoverable, the exclusion of testimony which would have a bear- 
 ing only upon the amount of damages becomes immaterial. Moody 
 v. Camden, 61 — 264. 
 
 33. Objections to the admission of testimony which is apparently 
 relevant and competent, upon any ground which is capable of being 
 covered by proof, and which might readily be taken for granted, 
 must state the ground of objection at the time, or they will be con- 
 sidered as waived. State v. JSowe, 61 — 171. 
 
 34. Example. Objection to the admission of the record of a court 
 against a party on the ground that there is no proof of identity. lb. 
 
 35. An objection to an interrogatory as defective in substance is 
 too general. Harriman v. Sanger, 67 — 442. 
 
 36. Leading Questions. A presiding judge may, in his discre- 
 tion, permit counsel to put leading questions to witnesses called by 
 them. Blanchard v. Hodghins, 62 — 119. Harriman v. Sanger, 
 67—442. State v. JBenner, 64—267. 
 
 37. The decision of a presiding judge that a witness is unwilling, 
 and one to whom leading questions may be proposed, and who 
 may be cross-examined by, the counsel calling him, is not open to 
 revision. State v. Benner, 64 — 267. 
 
 88. Peeliminaet Questions. When the admissibility of testi- 
 mony depends upon the decision of some preliminary question by 
 the presiding judge, his finding is conclusive. Barbour v. Martin, 
 62—536. 
 
 39. The decision of a\ presiding judge that the attesting witnesses 
 to a deed are out of the jurisdiction of the court, as a ground for the 
 admission of secondary evidence of its execution, is final. Jones v. 
 Eoberts, 65—273. 
 
 40. In an action of trespass quare clausum the defendant offered 
 evidence to prove an easement in the locus in quo, and also of adverse 
 possession for more than six years next before the commencement of 
 the action. The plaintiff objected to the evidence as insufficient to 
 prove an easement, and it was excluded upon that ground. Held, 
 that the exclusion was precisely commensurate with the objection, 
 and that the evidence of adverse possession might have been intro- 
 duced by the defendant if he had so desired. Mansur v. Blake, 
 62—38. 
 
 41. SuEPRiSB. If a party is taken by surprise at the evidence pro- 
 duced by his adversary at the trial, it is his first duty to ask for a 
 postponement or continuance. Maynell v. Sullivan, 67 — 314. 
 
 42. Repetition. It is no just ground of exception that a witness 
 is not permitted to repeat what he had before stated because a differ- 
 ent phraseology is adopted in making the inquiry. Washington Ice 
 (Jo. V. Webster, 68—449. 
 
444 PEACTICB. 
 
 (b) Cross-examination. 
 
 43. Answers to inquiries on collateral matters elicited on cross- 
 examination can not be contradicted. Bell v. Woodman, 60 — 465. 
 State V. Benner, 64 — 267. Davis v. Rohy, 64 — 427. 
 
 44. When an irrelevant question is asked and answered, without 
 objection, upon cross-examination, the presiding judge may, in his 
 discretion, refuse to allow the witness to be further interrogated as to 
 the irrelevant matter upon the re-direct examination. Sturgis v. 
 Bobbins, 62—289. 
 
 45. The rule that a party is confined on cross-examination to the 
 subject matter of the direct examination has not been adopted in this 
 State. Falmouth, v. Windham, 63 — 44. 
 
 46. But exceptions will not be sustained to a rule thus limiting it 
 unless the party is prejudiced thereby. lb. 
 
 47. The limit of cross-examination allowable upon collateral mat- 
 ters is within the discretion of the presiding judge. State v. Benner, 
 64—267. 
 
 48. The presiding judge may, in his discretion, allow an unwilling 
 witness to be cross-examined by the counsel calling him. lb. 
 
 49. It seems that a witness, on cross-examination, must answer as to 
 all matters pertinent to the issue, whether inquired about in the direct 
 examination or not, unless a personal privilege is invoked. State v. 
 
 Wentworth, 65—284. 
 
 50. When a witness testifies that a person "remarked, in a 
 cool manner, that he thought a very proper thing was to shoot" 
 another, it is within the discretionary power of the judge to allow 
 the witness to be asked upon cross-examination whether he really 
 apprehended the speaker was going to shoot the person named. 
 Stacy V. Portland Pub. Co., 68—279. 
 
 (c) Rebuttal. 
 
 51. The enforcement of the rule that cumulative evidence will not 
 be received from a party after he has closed, and the adverse party 
 has introduced testimony, without seasonable notice from the presid- 
 ing judge, is erroneous. Ershine v. Mrskine, 64 — 214. 
 
 52. It is not competent for one of the parties to give the notice and 
 then insist upon the enforcement of the rule. lb. 
 
 53. The notice by the court that the party will be confined to re- 
 butting testimony may be inferential. Yeaton v. Chapman, 65 — 126. 
 
 54. The plaintiffs, in support of their action, relied upon an alleged 
 statement of the defendant, called a witness who gave his recollection 
 of the conversation in which it was made, and rested their case. The 
 defendant then testified, giving a different version of the conversa- 
 tion. Meld, that the testimony of another witness, on the part of the 
 plaintiffs to the same conversation, would be cumulative, and not 
 rebutting, although it might contradict the testimony of the defend- 
 ant, lb. 
 
 (d) Impeachment of witnesses. 
 
 55. When a witness is impeached by proof of a prior statement 
 made by him in conflict with his testimony, it is competent for such 
 
PRACTICE. 445 
 
 witness upon re-examination to give the circumstances and influences 
 under which the first statement was made. State v. Reed^ 62 — 129. 
 
 56. A witness who is impeached can not be corroborated by proof 
 that at other times he has made statements in accordance with his 
 present testimony. The discredit arising from contradictory state- 
 ment still remains. Powers v. Cary, 64 — 9. 
 
 57. A witness may be impeached by proof that she had said that 
 she knew nothing about the case except what her husband had told 
 her. Davis v. lioby, 64 — 427. See Witness. 
 
 Nos. 58 and 59 were from earlier reports. 
 
 IT. INSTRUCTIONS TO THE JURY. 
 
 (a) Gbnkeallt. 
 
 (b) Requbstbd instbuctions. 
 
 (o) WeBN FUBTHBH I]srSTEnCTIOH"S MUST BB EBQUBSTBD. 
 (d) EXPBESSION OF OPINIOSr. 
 
 (a) Generally. 
 
 60. The test of impaetiality in the presentation of a case to the 
 jury by a presiding judge is not the presentation of the testimony 
 upon one side or the other as having equal force, or entitled to the 
 same weight, but rather in the presentation of it as it is, with such 
 suggestions as may be pro23er for the consideration of the jury. If 
 the facts bear decidedly one way or the other a fair presentation of 
 them must show it. State v. Heed, 62 — 129. 
 
 61. When there is no evidence showing a want of ordinary care on 
 the part of the plaintiff, an instruction that he "was bound to use 
 ordinary care and diligence" may be rightfully refused because it is 
 then the statement of an abstract principle of law not pertinent to the 
 case. Hoberts v. Plaisted, 63 — 335. 
 
 62. In an action by H. upon an order drawn by K. upon and accepted 
 by the defendant's testator P. for any balance due upon a settlement 
 of accounts, the order introduced in evidence was in favor of H., 
 cashier, and was indorsed by him as cashier, and sued by him in his 
 own name for his own benefit. The evidence showed that H. was 
 cashier of a bank but negatived the idea that the bank had any interest 
 in the order and showed that it was originally made and intended 
 to assign to H. any indebtedness due from K. to P., and the jury would 
 not have been authorized to come to any other conclusion. The trial 
 took place prior to 1874, when it was the doctrine of the court that if 
 the whole testimony, if believed, would not in law establish a fact, the 
 judge might express the legal effect of the testimony as a matter of 
 law. Held, that a ruling that the word cashier might be regarded as 
 merely descriptio personce, and that tl\e order was negotiable, whether 
 technically correct or not, did no wrong to the defendant. SLoward v. 
 Kimball, 65—308. 
 
 63. The jury were instructed that if the plaintiff procured the con- 
 tract of guaranty in suit by a fraudulent misrepresentation to the 
 defendant of its amount he could not prevail, and afterwards were 
 instructed, that, if the defendant signed the guaranty under a misap- 
 prehension and was deceived as to its amount, he had by certain acts 
 precluded himself from objecting to the guaranty for that cause. 
 Held, that the last instruction was limited to a case of self deception 
 and did not revoke the first. Adams v. Macfarlane, 65 — 143. 
 
446 PRACTICE. 
 
 64. The presiding judge, on being informed by the jury that they 
 ■were unable to agree, called them into court, and, in the absence of 
 the defendant's counsel, read to them a portion of the opinion of a 
 court of another State relating to the duty of jurors to finally agree 
 upon a verdict. Held, not objectionable. State v. Pike, 65 — 111. 
 
 65. The plaintiff in replevin claimed title to the property by bill of 
 sale from the son of the defendant. The defend;int claimed the prop- 
 erty as his own, but the plaintiff claimed that the defendant by point- 
 ing out the property to the plaintiff without making known his title 
 was estopped to assert it. At the time the defendant pointed out the 
 property the plaintiff delivered to him a letter from the son, the con- 
 tents of which were unknown to the plaintiff. The letter was not 
 introduced in evidence, nor were its contents proved. Held, that an 
 instruction that the jury might consider whether the letter contained 
 any directions from the son to his father, and that they had the right 
 to draw any proper inferences as to whether it was in regard to that 
 matter or not, was not exceptionable. Lewis v. Smart, 67 — 206. 
 
 66. When no demand is necessary prior to a suit, instructions 
 defining what would constitute a legal demand are immaterial. lb. 
 
 (b) Requested instructions. 
 
 67. In the trial of an action on an administrator's bond, for an 
 alleged breach in knowingly omitting to inventory a certain sum of 
 money deposited in a savings bank and belonging to the estate, the 
 presiding judge declined to instruct the jury, at the defendant's 
 request, that if they believed the testimony of a certain witness as to 
 what the intestate said and did when the bank-book was put into the 
 witness' hand, that transaction amounted to a gift of the money to 
 two certain persons ; but he did accurately state to the jury the law 
 concerning gifts; held, that the defendant had no cause for exception. 
 Bourne v. Stevenson, 58 — 499. 
 
 68. The fact that counsel in argument takes certain legal positions, 
 does not impose upon the presiding judge the duty of instructing the 
 jury specifically upon the positions taken in argument without specific 
 request. Willey v. Belfast, 61 — 570. 
 
 69. When the same rule of law is applicable to several different 
 facts in a case, and several instructions are requested each stating the 
 rule as applicable to the particular fact recited in it, it is a sufficient 
 compliance to give the law in a general statement and not in detail as 
 required by the requests. State v. Reed, 62 — 129. 
 
 70. If a requested instruction states the law correctly the presiding 
 judge is not bound to adopt its precise language, or to abstain from 
 adding qualifications according to the necessities of the case. Woodis 
 V. Jordan, 62—490. 
 
 71. Requested instructions may be refused, if drawn up so as to 
 have the effect of a one-sided argument, though as abstract proposi- 
 tions they may be correct. State v. Pike, 65 — 111. 
 
 72. When a requested instruction contains two propositions, if 
 either one is incorrect, the instruction may be refused. Larrabee v. 
 Sewall, 66 — 376. 
 
 73. A requested instruction, not based upon the evidence, may 
 properly be refused. State v. Smith, 65 — 257. State v. Oorham, 67 
 —247. 
 
rr--' 
 
 PEACTICB. 447 
 
 74. On the trial of an indictment for keeping a drinking house and 
 tippling shop, where it appeared from the evidence that the respond- 
 ent had pleaded guilty to two complaints for single sales, and one 
 upon search and seizure process, it was held, that a requested instruc- 
 tion that a single sale of intoxicating liquor and allowmg the same to 
 be drank upon the premises where sold, do not constitute the offence 
 of keeping a drinking house and tippling shop, was not applicable 
 to the evidence and was rightly refused. State v. Gorham, 67 — 247. 
 
 75. A party is not precluded from first presenting a point by a 
 requested instruction, after the arguments and before the charge, 
 when fairly presented by the evidence. Perkins v. McDuffee, 63 — 
 181. 
 
 (c) When fwrther instructions must he requested. 
 
 76. If a party desires more definite instructions upon any particular 
 point, he should make a request therefor. Wehh v. P. & K. R. R. 
 Co., 57—117. 
 
 77. All objections to the charge of a presiding judge, on the ground 
 of ambiguity, or inadequacy of expression, in relation to matters of 
 minor importance will be considered as waived, unless made at the 
 time of trial. Stratton v. Staples, 59 — 94. 
 
 78. If the meaning of additional remarks made by a presiding judge, 
 after giving a requested instruction, are not plain the party making 
 the request should request an explanation. Woodis v. Jordan, 62 — 
 490. 
 
 79. Should the judge misstate any fact to the jury his attention 
 ^should be called to the error at the time that it may then and there be 
 corrected. Bradstreet v. Pradstreet, 64 — 204. 
 
 80. When it is perceived that the court has misapprehended the 
 testimony it is the duty of counsel to call its attention to the subject 
 at the time that the correction may be then made. State v. Penner, 
 64—267. See Ante, 28, 29, 30, 31, 33, 68. 
 
 (d) Expression of opinion. 
 
 81. The statute prohibiting a presiding judge from expressing an 
 opinion upon issues of fact arising in a case does not restrict the power 
 and duty of the court to state to the jury the principles of law appli- 
 cable to the different phases of the case, and to state the grounds 
 respectively taken by counsel and the law applicable to the hypothesis 
 assumed by the one and the other. State v. Penner, 64 — 267. See 
 also State v. Smith, 65—257. 
 
 82. Where defense was an alibi the remark "if you believe that 
 he was there perhaps you would not hesitate to believe he was the 
 perpetrator of the crime" is not an expression of an opinion upon an 
 issue of fact. State v. Penner, 64 — 267. 
 
 83. In an action where the principal question at issue was the pre- 
 cise locality of a defect in a bridge which caused an injury, an addi- 
 tion to an instruction upon that question, "that the great question for 
 you to pass upon is whereabouts was the defect" which caused the 
 injury, is not objectionable as the expression of an opinion upon a 
 question of fact. Perkins v. Oxford, 66 — 546. 
 
 84. An instruction "L£ the plaintiff gave his consent and said to the 
 
448 PBACTICB. 
 
 officer, 'there, all that property in that yard, is mine, and you can take 
 the oxen or any of the rest of them you see fit,' that would be a waiv- 
 er, the action cannot be maintained," followed by a statement of the 
 plaintiff 's denial of this and of his version of the matter and "if this 
 was all he said the jury would probably come to the conclusion there 
 was no consent." jSeld, that this instruction was not a decision by the 
 judge of any question of fact within the province of the jury. Fogg 
 V. Littlefield, 68—52. 
 
 V. OTHER MATTERS RELATING TO THE TRIAL. 
 
 (a) FOEMING ISSUES FOB THE JUET. 
 
 (b) Right to open and close. 
 
 (o) Power of the couet to oedee a nonsuit oe default. 
 
 (d) Mode of conducting teial. 
 
 (e) Assessment of damages. 
 
 (f) Rules op coubt. 
 
 (a) Forming issues for the jury. 
 
 85. On the trial of an appeal from a decree of a judge of probate it 
 is for the judge of the appellate court to determine what, if any, 
 issues shall be submitted to a jury. JBradstreet v. Bradstreet, 64 
 —204. 
 
 86. N^either party can complain that some of the issues involve 
 questions of law as well as of fact, if proper instructions are given to 
 the jury. lb. 
 
 87. After a verdict in his favor, and before judgment, the plaintiff 
 released his claim, but when the defendant produced the release in 
 court and moved for the discontinuance of the suit the plaintiff denied 
 the validity of the release. Thereupon issues were formed, under the 
 direction of the court, and the questions submitted to a jury. This 
 course seems to have been regarded as a substitute for audita quer- 
 ela. Staples V. Wellington, 62 — ^9. 
 
 (b) Might to open and close. 
 
 88. Upon the trial of an appeal from a decree of a probate court, 
 whether the appellant or appellee shall have the opening and close, 
 depends upon the character of the issue presented. MeLoon v. 
 Spaulding, 62 — 315. 
 
 89. Upon the preliminary question, whether the appellants have 
 such an interest as entitles them to appeal, the affirmative is upon 
 them, and they have the right to open and close. Ih. 
 
 90. On an appeal from a decree allowing an administration account, 
 where the burden of proof is upon the administrator, the opening and 
 close belongs to him. I b. 
 
 91. On the trial of an appeal from a decree of the judge of probate 
 establishing a will, the issue being the sanity of the testator, the 
 opening and close belongs to the executor, though he is the appellee. 
 McLoon V. Spaulding, 62 — 315. Uobinson v. Adams, 62 — 369. 
 
 92. When, either from the position of the case or the agreement of 
 parties, the only inquiry relates to the assessment of damages, the 
 party making the claim should open and close. Washington Ice Co. 
 V. Webster, 68—449. 
 
PEACTICE. 449 
 
 (c) Power of the court to order a nonsuit or default. 
 
 93. When the facts are not controverted, a nonsuit may properly 
 be granted, if a verdict in favor of the plaintiff upon the proof offered 
 by him would be set aside as being against evidence. Brown v. E. 
 &N. A.R. R. Co., 58—384. 
 
 94. If, upon the unquestioned facts and uncontroverted testimony 
 introduced, by whichsoever party it is offered, it is apparent that the 
 plaintiff's action can not be maintained, it is competent for the presiding 
 judge so to declare in the form of a ruling, the correctness of which 
 may be tested upon exceptions, or upon report with a stipulation for 
 that purpose. White v. Bradley, 66 — 254. 
 
 95. After the time has elapsed within which, according to the reg- 
 ular course of proceedings in the court in which he is called to answer, 
 the party should have filed his answer or plea, he has no right to file 
 them, or claim to a jury trial, except in the discretion of the court. 
 Heed V. Oxford <& Cumherland Canal Co., 65 — 132. 
 
 96. If a party, having the burden of proof upon an issue necessary 
 to the maintenance of an action, or to the defense of a prima facie 
 case, introduces no evidence which, if true, giving to it all its proba- 
 tive force, will authorize the jury to find in his favor, the judge may 
 direct a verdict against him. Heath v. Jaquith, 68—438. 
 
 97. If a judge improperly submits a case to the jury, and they 
 deliberate upon it and report that they cannot agree, he still has the 
 same power to direct a verdict that he had before the submission. Ih. 
 
 (d) Mode of conducting trial. 
 
 98. It is to some extent, a question of discretion with the presiding 
 judge, whether papers used at a trial shall be taken to the jury room 
 or not. &awyer v. Garcelon, 63 — 25. 
 
 99. The law court will not revise the decision of the presiding 
 judge, unless it is clear that injustice has been done. lb. 
 
 100. View by Juet. Under the act of 1873, c. 95, on the trial of an 
 appeal from the decision of county commissioners, awarding dam- 
 ages for land taken for railroad purposes, it is within the discretion of 
 the presiding judge whether or not a view may be had by the jury. 
 Snow V. Boston d> Maine It. B. Co., 65 — 231. 
 
 101. Inquiries op. A presiding judge may inquire of the jury, 
 when they return a verdict, upon which of several grounds taken by 
 parties the verdict is based, or the rule upon which they assessed the 
 damages. Walker v. Bailey, 65 — 354. 
 
 102. This power should be exercised with great caution. The bet- 
 ter mode is to submit distinct questions to the jury in writing in the 
 outset, BO that their findings may be verified like a special verdict. 
 
 103. Teial at First Term. An action can be tried in the supreme 
 court at the first term, if the writ has been fully served, and all the 
 parties to the suit are legally before the court. School District v. 
 .^tna Ins. Go., 66—370. 
 
 104. Argumekt of Counsel. It is erroneous for the presiding 
 judge to permit counsel, against objection, to proceed in his argument 
 
 29 
 
450 PEACTICB. 
 
 to the jury upon asserted facts not in evidence, and having no legiti- 
 mate pertinency to the issue, although he instructs the jury that the 
 facts in the case are to be settled from the testimony in the case given 
 under oath. JRolfe v. Rumford, 66 — 564. 
 See Indictment, 52, p. 293. 
 Vebdict, 7. 
 
 (e) Assessment of damages, 
 
 107. After a default of an action of debt on a collector's bond, the 
 defendants cannot have the damages assessed by a jury, especially 
 after an auditor, appointed for that purpose, has heard the parties 
 and presented his report for acceptance. Qorham v. Hall, 57 — 58. 
 
 108. The duties of the person, appointed to assess the damages in 
 such a case are different from those contemplated by R. S. of 1871, c. 
 82, § 62, et seq. lb. 
 
 109. Where the aggregate amount of the breaches of a bond is set 
 out in the replication, and the replication is adjudged good on demur- 
 rer, judgment must go for the amount thus claimed, unless the demur- 
 rer is, with the consent of the other party, and by leave of the court, 
 withdrawn under R. S., c. 82, § 19. State v. Peck, 58—123. 
 
 110. In an action on an executor's bond, which came before the law 
 court, on facts agreed, in which it was stipulated that if the court de- 
 cided that the sureties were liable for certain property the "damages 
 are to be assessed by the jury." Held, that these words did not extend 
 the usual rule that the decree of the probate court as to the amount 
 in the settlement of the account was conclusive upon the parties, they 
 having been present and taken no appeal. Thurlough v. Chick, 59 
 —395. 
 
 (f) Rules of court. 
 See Ante, 22. Aebiteation, 33, p. 30. Deposition, p. 173. 
 
 VI. LAW COURT. - 
 
 (a) EbPOBT AST) ABGtJMBNTS OP PAKTIES. 
 
 (b) Genbkally. 
 
 (a) Report and <igreem,ents of parties. 
 
 111. An ADMISSION made at the first trial, if reduced to writing, or 
 incorporated into a record of the case, will be binding at another 
 trial of the case, unless the presiding judge, in the exercise of his dis- ' 
 cretion, thinks proper to relieve the party from it. Holley v. Young, 
 68—215. Woodcock r. Calais,' 68— 244. 
 
 112. When a case is referred to the presiding judge with the right 
 to except, his decision upon questions of fact are not reviewable 
 upon a report of the evidence. Starbird v. Henderson, 64—570. 
 
 113. A report certified by the counsel, as "agreed to as a correct 
 report of all the material evidence in the case," is not a sufficient 
 report of the whole evidence signed by the presiding judge, as 
 required by R. S., 1871, c. 82, § 33. Bartlette v. Lewis, 58—350. 
 
 114. An action by a railroad corporation against a town to recover 
 back money paid for taxes assessed upon wood, upon the ground that 
 its place of business was not in the defendant" town, pending before 
 
PRACTICE. 451 
 
 the full court upon an agreed statement, will fail unless it appears 
 that its place of business was not in the defendant town. P. /S. &. 
 P. R. B. Co. T. 8aco, 60—196. 
 
 116. Where the report of the evidence shows that the administrator 
 testified without objection, that "the estate was represented insolvent, 
 Aug. 4, 1868 ;" that "a license from the judge of probate to sell the 
 real estate was issued" on the same day; and the report stipulates 
 that if upon the foregoing facts and evidence, the action is maintain- 
 able, a new trial is to be granted, then for the purpose of determining 
 whether or not the action is maintainable, the court will regard the 
 insolvency as an admitted fact. Bates v. Avery, 59 — 354. 
 
 117. Agreeing to a fact in the case stated, which the other party 
 would have been estopped to assert, is a waiver of the estoppel. 
 Thurlough v. Kendall, 62 — 166. 
 
 118. "When a case is presented upon report to test the ruling of a 
 presiding judge the presumptions are in favor of the ruling, and it is 
 incumbent upon the party against whom the ruling is made to incor- 
 porate into the report enough of the facts or evidence to show that 
 the ruling was erroneous. Sowes v. Tolman, 63 — 258. 
 
 119. Objections to the admission of evidence, which apparently 
 might have been obviated had they been specifically presented at 
 nisi prius, will not be entertained when first presented at the hear- 
 ing before the law court, though the case is submitted for decision 
 upon so much of the evidence as is admissible. Emery v. Legro, 68 
 —357. 
 
 120. Example. Of this kind, are objections based upon the want 
 of proof of identity of persons. Ih. 
 
 121. When a plea is demurred to, and the demurrer is joined, and 
 the case is reported to the law court, with an agreement that the law 
 court shall enter such judgment by nonsuit or default, as shall be in 
 accordance with the law of the case, if the law of the case does not 
 warrant judgment for either party, because of a good brief statement 
 filed with a defective plea, the agreement becomes abortive. Moore 
 v. Knowles, 65 — 494. 
 
 122. When, after evidence has been introduced upon both sides, 
 the presiding judge rules, as a matter of law, that the action can not 
 be maintained, and the case is reported to the law court, with the 
 stipulation that if the ruling is not correct, or if the jury would be 
 authorized to find for the plaintiff upon the evidence, the case is to 
 stand for trial, otherwise a nonsuit to be entered, the question pre- 
 sented is whether a verdict for the plaintiff could be sustained, as 
 where a nonsuit is ordered; White v. Bradley, 66 — 254. 
 
 (b) Generally. 
 
 123. A case was brought to the law court from the superior court 
 of Cumberland county, under an agreement, that if the jury would 
 be authorized to find a verdict for the plaintiff, upon the testimony 
 reported, the defendant should be defaulted, otherwise the action was 
 to stand for trial. As the evidence showed a conflict upon several 
 questions of fact, the court refused to determine the case, and dis- 
 charged the report. Nickerson v. Mills, 61 — 74. 
 
 124. The clerk may correct mistakes or omissions in the copies of 
 
452 PEACTICE — PRECEDENTS. 
 
 papers, which make a part of the case reported to the law court, after 
 the case has been entered upon the law docket. Emery y. Leqro^ 
 63—357. ^ 
 
 125. When the pleadings have become complicated, and an erron- 
 eous ruling has led to an unnecessary one, the law court may send 
 the case back to have the pleadings stricken out, that new pleadings 
 may be filed. Timony v. Timony, 63 — 564. 
 
 126. When, in a case pending upon the law docket, an entry is 
 made, either by consent of parties or by order of court, that copies or 
 arguments are to be furnished within a time stated, or the motion 
 or exceptions to be overruled, if the copies or arguments are not 
 placed in the hands of the chief justice within the time limited, the 
 case will be disposed of according to the entry. Kidder v. Sawyer, 
 64—472. 
 
 127. When a motion is overruled and exceptions are taken, if the 
 overruling of the motion does not end the suit, the case should not be 
 marked law and entered upon the law docket, until the final disposi- 
 tion of the case. JDay v. Chandler, 65 — 366. 
 
 ,128. When a case is improperly entered in the law court upon ex- 
 ceptions, before it is ready for final disposition, it will be dismissed 
 from that docket. lb. 
 
 129. The rule limiting the time within which a party may first 
 raise a point in a case, has not been carried further than that a losing 
 party cannot avail himself of a point of law not raised at the trial as 
 a ground for setting aside a verdict, on motion for a new trial. Per- 
 kins V. McDuffee, 63—181. 
 
 130. But a party can not make before the law court to sustain ex- 
 ceptions, a point not raised at the trial, unless in furtherance of justice. 
 Eaton V. Telegraph Co., 68—63. 
 
 See Judgment, 1, p. 323. 
 New Teial. 
 
 Nos. to 143, were from earlier reports. 
 
 PRECEDENTS. 
 
 1. Declaeation. Assumpsit on award. Bodge v. Hull, 59 — 
 225. 
 
 2. By town against another town, for pauper supplies. Ripley v. 
 Mehron, 60 — 381. Fryehurg v. Brownfield, 68 — 145. 
 
 3. Assumpsit for demurrage. Hall v. Barker, 64 — 339. 
 
 4. Declaration against one of the makers of a joint and several 
 note. First Nat. Bank v. McKermey, 67 — 273. 
 
 5. Debt on simple contract. Portland v. Atlantic & St. Law- 
 rence R. R. Co., 66—485. 
 
 6. Debt by a town for a tax. York v. Goodwin, 67 — 260. 
 
 7. Debt on bond where the obligors are incorrectly named in the 
 bond. Colton v. Stanwood, 68 — 482. 
 
 8. Case for aiding a debtor in fraudulently securing his property 
 from creditors. Piatt v. Jones, 59 — 232. 
 
PRECEDENTS — PKBSCEIPTION. 453 
 
 9. Case for injury to mill, from back water. Plimpton t. Gardi- 
 ner, 64—360. 
 
 10. Case for nuisance in filling up a canal, against municipal corpo- 
 ration. Cumberland <& O. C. Go. v. Portland, 62 — 504. 
 
 11. Trespass. Treble damages. Jilack v. Mace, 66 — 49. 
 
 12. Trespass for an assault and battery. Soule v. Bruce, 67 — 
 584. Flint v. Bruce, 68—183. 
 
 13. Libel for divorce. Huston v. Huston, 63 — 184. 
 
 14. Petition to annul a divorce. Lord v. Lord, 66 — 265. 
 
 15. Plea and Replication. In debt on bond. State v. Peck, 58 
 —123. 
 
 16. Plea in abatement and replication. Bellows v. Murray, 66 — 
 199. 8tate v. Flemming, 66—142. 
 
 17. Assignment for the benefit of creditors. Thomas v. OlarJc, 
 65—297. 
 
 18. Indictment for nuisance in keeping a shop used for the illegal 
 sale of intoxicating liquors. State v. Lang, 63 — 215. 
 
 19. Indictment for traveling from place to place taking orders for 
 the sale of intoxicating liquors. State v. Smith, 64 — 423. 
 
 20. Indictment for manslaughter. State v. Smith, 65 — 257. 
 
 21. Indictment for larceny. State v. Leavitt, 66 — 440. 
 
 22. Indictment for nuisance, against the one maintaining it and the 
 one assisting in maintaining it. State v. Ruby, 68 — 543. 
 
 PRESCRIPTION. 
 
 1. In an action of trespass an offer by the defendant to show that 
 he had the undisputed privilege of cutting the grass in dispute for 
 thirty years is not an offer to show the acquisition of the right by 
 prescription. Cottle v. Young, 59 — 105. 
 
 2. The respective owners of adjacent lands may become bound by 
 prescription, to maintain specific portions of their partition fence. 
 Harlow v. Stimson, 60 — 347. 
 
 3. When a' party offers to prove that he and those under whom he 
 claims have been in the open continuous and adverse enjoyment of 
 an easement for more than twenty years, and admits that the same 
 person was the owner of both dominant and servient estates during a 
 portion of the twenty years, no offer is made which gives him an ease- 
 ment by prescription. Mansur v. Blake, 62 — 38. 
 
 4. When the question at issue is whether the plaintiff is, by pre- 
 scription, entitled to a private way across the defendant's land, evi- 
 dence that a person, before the dispute arose between the parties, on 
 having occasion to use the way, obtained the consent of the owner 
 of the land for the use of it, and paid him for it, is not admissible 
 when neither the plaintiff nor his grantors appear to have ever 
 claimed under such person or to have had any knowledge of the 
 transaction. Mclntire v. Talbot, 62 — 312. 
 
454 PEESCEIPTION — PRESUMPTION, 
 
 5. In such a case the admissibility of evidence of the attempts of a 
 person to interrupt the user of the way depends upon whether such 
 person at the time had a title to the servient estate which has been 
 transmitted to the defendant. lb. 
 
 6. To establish title by prescription the use must be adverse for all 
 the requisite time and so notorious that the owner may be presumed 
 to have knowledge that it is adverse. Morse v. Williams, 62 — 445. 
 
 7. An instruction that when a party uses land for the purposes of a 
 way as the owner would use it, disregarding his claims entirely, with- 
 out his permission,, it is an adverse user which if continued for twen- 
 ty years will give the party a right equivalent to a grant of the right 
 of way, is correct. Slanchard v. Moulton, 63 — 434. 
 
 See Easement, p. 198. 
 Fence, 7, p. 266. 
 Mill, 8, p. 365. 
 
 PRESUMPTION. 
 
 1. Sanity. Every man is presumed to be sane, until the contrary 
 is proved. State v. Lawrence, 57 — 574. 
 
 2. There is no presumption of law as to the continuance of a tem- 
 porary hallucination or delusion resulting from disease ; and a party 
 claiming to avoid -a contract by reason thereof, must show its exist- 
 ence at the time of the making of the contract, and that the halluci- 
 nation was of a character affecting his capacity to make the contract 
 sought to be avoided. Staples v. Wellington, 58 — 453. 
 
 3. Delivery of Deed. In the absence of other evidence, a deed 
 may be presumed to have been executed and delivered on the day of 
 its date. Poor v. La/rrahee, 58 — 543. Fowle v. Goe, 63 — 245. 
 
 4. Where the deed of an administrator, licensed to sell lands of 
 the intestate, was dated within the year from the date of the license, 
 but acknowledged after its expiration, and it appeared that the gran- 
 tee entered and erected an expensive building on the land, prior to 
 the acknowledgment, and there was no evidence when the deed was 
 delivered, it was presumed that it was delivered on the day of its 
 date. Poor v. Larrabee, 58 — 543. 
 
 5. This presumption is rather an application of the principle, that 
 in doubtful matters the transaction should be read by the light of the 
 maxim ut res magis valeat quam pereat. lb. 
 
 6. Oedee of Official Acts. It will be presumed that acts re- 
 quired to be done by statute, when done, have been done in the order 
 required by statute. Bethel v. County Commissioners of Oxford 
 County, 60—535. 
 
 7. Residence. When a pauper leaves a town where he has resided, 
 having no family, leaving no house or place therein to which he has 
 any right to return, and having no effects, save the clothes he wears, 
 the law does not presume that he intends a temporary absence, and 
 has a continuing purpose to retain a home in such town, and return 
 to it at some future period. Ripley v. Hebron, 60 — 379. 
 
 8. Nor does the law presume that he has no such intention. lb. 
 
PEESUMPTION. 455 
 
 9. But it leaves it to the jury to determine upon all the evidential 
 circumstances and probabilities in the case, what his intention in fact 
 was. lb. 
 
 10. The laws of other States can only be recognized by our courts 
 when proved as facts. In the absence of such proof their law will 
 be assumed to be the same as our own. McKenzie v. Wardwell, 61 
 —136. 
 
 11. Election oe Ofpicee. Where certain persons signed a sub- 
 scription for railroad stock, as selectmen of a town, and it appeared 
 that they called the town meeting, at which the vote was passed, au- 
 thorizing the subscription, in the absence of any evidence that other 
 persons had been elected, or acted as selectmen, it will be presumed 
 that they were actually chosen to that oiEce. Belfast <& Moosehead 
 Lake B. B. Co. v. Brooks, 60—568. 
 
 12. Possession of Land. Where one claims title to land under 
 a tax deed, thirty years old, made to his grantors, and proves his own 
 possession for five years, but not the possession of his grantors under 
 it, the antiquity of the deed does not raise the presumption that the 
 requirements of law in advertising and selling the land were complied 
 with. BMllips V. Sherman, 61 — 548. 
 
 13. Where one has the right to use land for certain purposes, his 
 occupation of it must be presumed, prima facie, to be in accordance 
 with his legal right. Mowe v. Stevens, 61 — 592. 
 
 14. The father of the defendants used a water power, under a 
 lease from the plaintiff. After the death of their father, the defend- 
 ants continued to carry on his business and use the water. Held, 
 that in the absence of evidence tending to repel the presumption 
 arising from this evidence, the jury might infer that the defendants 
 went into possession under the letting to their father, and kept it as 
 his successors or assigns by permission of the plaintiff. Page v. 
 McGlinch, 68—472. 
 
 15. Knowledge op Ieeegulabitt. The court will presume that 
 the party objecting to the acceptance of a report, on the ground that 
 the committee making it were not seasonably sworn, had knowledge 
 of the irregularity, at the time, and in season to have made the ob- 
 jection before the trial, unless the contrary is shown. Baym,ond v. 
 Co. Com., 63—110. 
 
 16. Intent. When an act is in itself unlawful the law implies a 
 criminal intent. State v. Goodenow, 65 — 30. 
 
 17. On the trial of an indictment for adultery it appeared that the 
 respondents had been living together as husband and wife while the 
 female respondent was lawfully married to another man who was 
 still alive. The respondents offered to prove that the lawful husband 
 had married again and that the justice of the peace who united the 
 respondents in matrimony advised them that on that account they had 
 the right to marry, and, that they acted upon such advice in good faith. 
 Held, that they must be presumed to know the law, or rather were 
 bound as if they did know it, and that the evidence was inadmissible. 
 
 n. 
 
 18. Vote. Under a statute requiring both the raising of money by 
 a town to aid in the construction of a railroad, and the manner of its 
 appropriation, to be settled by a two-thirds vote, where the record 
 
456 PRESUMPTION. 
 
 showed that the requisite two-thirds voted to render the aid, the de- 
 tails of the vote being stated, and then as to the manner in which 
 the aid was to be given merely stated that it was "voted" to subscribe 
 to stock. Held, that the word "voted" did not imply that the last 
 vote was carried by the necessary two-thirds. Portland & Ogdens- 
 hurg B. B. Co. v. Standish, 65 — 63. 
 
 19. CoNTEAOT. When a verbal contract for service for a certain 
 number of weeks or months is silent as to the time when that service 
 is to commence, while the presumption is that it is to commence forth- 
 with, it is no such conclusive presumption as to exclude evidence from 
 the acts of the parties to show that in fact the understanding was 
 that the service should commence at a future day. Searne v. Gfiad- 
 bourne, 65 — 302. 
 
 20. In the absence of any suggestion of fraud, a party is presumed 
 to know the contents of a paper he has signed. Mattocks v. Young, 
 66—459. 
 
 21. Assent. In assumpsit for the value of earth taken from the 
 plaintiff's land by a railroad company, where the defense was that the 
 taking was tortious, and not under a contract, and the evidence was 
 that the company's engineer asked permission of the plaintiff to take 
 the earth, but it did not appear what the reply was, and it did appear 
 that the earth was afterwards taken, and that the taking was of such 
 character as to permanently injure the estate, and it did not appear 
 that any objection was made, the full court, on report, held, that it 
 was to be inferred that the owner gave the consent asked for. 
 Sweetser v. Boston <& Maine B. B. Co., 66 — 583. 
 
 22. Payment. Evidence that the executor of the mortgagee found 
 the note and mortgage among the papers of his testator, that at the 
 time they were found the note was from six to ten years overdue, 
 that nothing was paid on or after that time, and that the executor 
 kept the note and mortgage from twelve to sixteen years after they 
 came into his possession, without asserting any claim under them, 
 was held not to rebut the presumption of payment, arising from 
 twenty years' possession by the mortgager, without recognizing the 
 mortgage. Jarvis v. Albro, 67 — 310. 
 
 23. Deed. It is to be presumed that a grantor intends to convey 
 something by his deed. Patterson v. SneU, 67 — 560. 
 
 24. Where the question is whether the court shall impute positive 
 fraud, or a mistake in the law to a party to a conveyance, it wiU, in 
 the absence of convincing proof, infer the latter. lb. 
 
 25. Sbevicb of Precept. When the citation for a poor debtor's 
 disclosure, alleges that the debtor was arrested by a deputy of a 
 sheriff of a county named, the presumption is that the arrest was 
 made in that county, and that justices of that county had jurisdiction. 
 Emery v. Brann, 67 — 39. 
 
 See Bills and Notes, 42, 45, p. 65. 
 
 JUKISDICTION, 18, p. 329. 
 
 Paetnbkship, 33, p. 408. 
 PooK Dbbtoe, 18, p. 437. 
 Raileoad, 11, p. 463. 
 
PROBATE COURT. 457 
 
 PROBATE COURT. 
 
 I. JURISDICTION. 
 II. DECREES. 
 III. APPEALS. 
 
 I. JURISDICTION. 
 
 1. The jurisdiction assumed by a judge of probate, so far as it de- 
 pends upon the residence of any person, can not be contested except 
 on appeal in the original case, unless there is fraud or want of juris- 
 diction apparent upon the face of the record. Record v. Howard, 
 58—225. 
 
 2. Administration commenced upon the assumption that the de- 
 ceased was a citizen of Maine, must be closed upon the same assump- 
 tion, and it will not be competent for parties adversely interested to 
 show that the deceased was a citizen of another State to affect the 
 distribution of the estate. Ih. 
 
 3. Thus, where administration was granted upon a representation 
 that the deceased, at the time of her death, was a citizen of Maine, 
 and the record states that this fact was made fully to appear, and 
 there was no suggestion of fraud, and no appeal from the decree of 
 the probate court granting the administration, and the settlement of 
 the estate was proceeded with till the administrator had settled his 
 fourth and final account, and had applied for an order of final distri- 
 bution. Held, that the domicile of the deceased, at the time of her 
 death, must be regarded as conclusively settled, not only for the pur- 
 pose of giving jurisdiction to the probate court, but also for the 
 purpose of distributing the estate ; and that it was not competent to 
 show that the domicile of the deceased, at the time of her death, was 
 in Ohio, and not in Maine, either to show want of jurisdiction in the 
 probate court, or to affect the distribution of the estate. lb. 
 
 4. Ordinarily, the personal estate of a decedent is to be first applied 
 in pajrment of his debts before resort is had to the realty ; but real 
 estate may be sold for this purpose without having used any part of 
 the personal, where this course is evidently necessary in order to carry 
 out the intent of the testator, as gathered from the whole of his will, 
 though such sale be not expressly directed by any of its particular 
 provisions. Quinhy v. Frost, 61 — 77. 
 
 5. When a non-negotiable note, given by the decedent in another 
 State, where he had his domicile, becomes the property of an inhabitant 
 of this State, and the decedent left the requisite amount of real estate 
 in this State, a probate court in the county where the real estate is 
 situate has jurisdiction to grant administration, although the note is 
 barred by the statute of limitations in such other State, where admin- 
 istration was had, and where the administrator had sufficient funds to 
 have paid it had it been presented, and was afterwards transferred to 
 the citizen of this State. Fowle v. Coe, 63 — 245. 
 
 6. In cases of mal-administeation, the most convenient and com- 
 plete remedy is by a resort, in the first place, to the probate court, 
 where a specific decree may be had which wiU do justice to all parties, 
 and for non-compliance with which a suit on the bond may be main- 
 tained. Gilbert v. Duncan, 65 — 469. 
 
458 PROBATE COURT. 
 
 7. Where the defendant received from the plaintiff's intestate a 
 sum of money, partly as a gift, and partly in consideration of her 
 promise to take care of him during life, it was held that although, 
 upon the insolvency of the estate, the administrator might recover 
 that part of the money which was without consideration, yet that 
 the value of her services was a preferred claim which might be secured 
 to her by a decree of the probate court, or allowed in mitigation of 
 damages in the suit by the administrator. McLean v. Weeks, 65 — 
 411. 
 
 8. The plaintiff made a contract with the defendant's intestate by 
 which she agreed to properly maintain him during his life, and after 
 his death give him a proper burial, and in consideration thereof was 
 to have all his estate after his death. She fully performed her part of 
 the contract. Held, that her remedy was not by suit at law but by 
 application to the probate court for a decree requiring the adminis- 
 trator to pay over to her what might be left in his hands after the 
 settlement of the estate. Johnson v. Kingsbury, 67 — 528. 
 
 II. DECREES. 
 
 9. The decrees of a probate court touching matters within its juris- 
 diction, when not appealed from, are conclusive upon all persons. 
 Thurlough v. Chick, 59 — 395. McLean v. Weeks, 65 — 411. 
 
 10. The surviving partner of a firm having been duly appointed 
 executor of the will of his deceased partner, and given bond in com- 
 mon form as executor, included in his inventory "the whole of the 
 partnership" property, and charged himself, in his executor's ac- 
 counts with "one-half amount of personal estate of" the firm, 
 "except notes and accounts, at the value mentioned in the inventory," 
 together with "one-half of rents collected on the real estate of the 
 firm," all of which the judge of probate allowed against the objec- 
 tions of the sureties on the executor's bond, and thereupon made 
 a decree charging the executor with a balance against him. In an 
 action upon the executor's bond, the question of the sureties' liability 
 came before the law court on facts agreed, wherein it was stipulated 
 that "if the (jourt should be of the opinion that the sureties were liable 
 for one-half of the partnership property, the damages should be 
 assessed by the jury; " and the court decided that the sureties were 
 so liable. Held, that the record of the decree of the probate court in 
 the settlement of the executor's account, charging him with a balance 
 against him, was conclusive upon the parties, they having been pres- 
 ent and contested the account, and taken no appeal from such decree. 
 Thurlough v. Chick, 59 — 395. 
 
 11. The plaintiff's intestate, shortly before his death, gave to the 
 defendant a sum of money, partly in consideration of friendship and 
 affection, and partly upon her promise to take care of him as long as 
 he should live. After his death the estate was represented insolvent, 
 and the administrator brought suit to recover of the defendant the 
 money so paid to her. Held, that the decree of the probate court 
 was conclusive evidence of the insolvency of the estate, and that the 
 defendant could not go into an examination of the claims laid before 
 the commissioners and show that they ought not to have been allowed, 
 unless she could show that their allowance was procured by fraud. 
 MeLean v. Weeks, 65 — 411. 
 
PROBATE COURT. 459 
 
 12. Also that, as the date of the gift was very near the time of the 
 death of the plaintiff's intestate, the proceedings in insolvency were 
 sufficient to authorize the jury to find him insolvent at the time of 
 the gift. lb. 
 
 13. Also, that it was not the representation of insolvency, and the 
 decree appointing commissioners, which was conclusive evidence of 
 insolvency. Such evidence would be imperfect without the report of 
 the commissioners, the accompanying documents and the decree 
 thereon, together with other proceedings establishing the amount of 
 the assets. lb. 
 
 14. Nor did it make any difference that the proceedings were had 
 after the commencement of the suit, if they were so had as to be put 
 in evidence, in the form of conclusive adjudications, at the trial, lb. 
 
 15. When it appears by the probate records that all the property 
 inventoried has been fully and legally administered, a final account 
 settled and no appeal taken, it can not be shown in a suit against the 
 administrator, to avoid the defense of plene administravit, that a f uU 
 inventory was not returned, and that there is other property which 
 belongs to the estate, and which ought to be administered upon. Sdr- 
 low V. Harlow, 65 — 448. 
 
 16. If no appeal is taken to the decision of commissioners on ex- 
 orbitant claims, every item passed upon by them becomes res adju- 
 dicata. Rogers v. Rogers, 67 — 458. 
 
 17. When Impeached Collatekallt. The decrees of probate 
 courts, made without their jurisdiction, may be called in question, 
 even collaterally, although the probate court, in giving judgment,, 
 passed upon the question of jurisdiction. Fowle v. Goe, 63 — 245. 
 
 See R. S., 1871, c. 63, § 7. 
 
 III. APPEALS. 
 
 18. An HEiE AT LAW appealing from the allowance of a claim by 
 commissioners of insolvency, under R. S., c. 66, § 11, is liable to have 
 costs awarded against him if the creditor recover, though the amount 
 finally allowed may be less than that awarded by the commissioners. 
 Benry v. Miller, 61 — 105. 
 
 19. In such case the claimant is the prevailing party. lb. 
 
 20. The EEPOET OF commissionees to decide upon claims against 
 an estate can not be appealed from until it has been accepted. Palmer 
 V. Palmer, 61—236. 
 
 21. The creditor can resort to the process provided in R. S., o. 82, 
 § 131, when an executor has entered an appeal from the report of 
 the commissioners, but has failed to complete it by giving the requisite 
 notice. lb. 
 
 22. An appeal, by an administrator, from the decision of commis- 
 sioners appointed to decide upon claims against the estate, does not 
 vacate their decision, if the administrator does not give the requisite 
 notice to the claimant within the time required by statute. lb. 
 
 23. Administeatoe's Account. On an appeal from a decree of 
 a judge of probate, allowing an administrator's account, former 
 accounts, from the allowance of which no appeal was taken, and to 
 which no reference is made in the latter except by bringing forward 
 
460 PROBATE COITBT. 
 
 the balance there stated, can not be revised, or the matters therein 
 passed upon be re-adjusted, when the administrator was not called 
 upon ia the probate court to correct any alleged errors in the former 
 accounts. McLoon v. Spaulding, 62 — 315. 
 
 24. On the settlement of an administration account the attention of 
 the judge of probate may be called to the correction of alleged errors 
 in previous accounts, and a refusal to correct upon good cause shown 
 may become a fresh subject of appeal. lb. 
 
 25. An executor's account is ia the nature of a declaration in a 
 writ, and, unless amended by order of court, a greater sum than is 
 charged can not be allowed the executor, in its settlement, either in 
 the probate court or on appeal. Pettengill v. Pettengill, 64 — 350. 
 
 26. Reasons of appeal. On an appeal from a decree of a judge 
 of probate the reasons for the appeal are to be filed in the probate 
 office, and the appellant is restricted to them. JBradstreet v. Brad- 
 street, 64 — 204. Barnes v. Barnes, 66 — 286. 
 
 27. A reason, alleging that the testator was influenced by an 
 unreasonable and unfounded prejudice against his own children, does 
 not raise the question of an insane delusion on the part of the testator 
 in reference to his children. Barnes v. Barnes, 66 — 286. 
 
 28. JuBT Teial. Upon an appeal from a decree of a judge of 
 probate it is for the judge of the appellate court to determine what, if 
 any, issues shall be submitted to a jury. Bradstreet v. Bradstreet, 64 
 —204. 
 
 29. Neither party can complain that some of the issues submitted 
 by the judge involved questions of law as well as of fact, when the 
 jury was correctly instructed as to the law. lb. 
 
 30. Who may appeal. The heirs of an intestate have no right of 
 appeal from the decree of a judge of probate accepting the report of 
 commissioners appointed to decide upon claims alleged to be exorbi- 
 tant. Burroughs v. Bourne, 67 — 225. 
 
 31. Nor can they appeal in the name of the administrator without 
 his knowledge, or against his will. lb. 
 
 82. A surety upon a probate bond can not appeal from a decree of 
 the judge of probate affecting the liability of the principal. Tuxbury, 
 appellant, 67 — 267. 
 
 33. If the principal in collusion with parties interested in the estate 
 refuses to prosecute an appeal in a case where there is an erroneous 
 decree, the surety may show it in a suit on the bond. lb. 
 
 34. In cases of dissatisfaction with the decision of the commission- 
 ers of insolvency appointed by the probate court, under certain stat- 
 ute provisions and restrictions, the question between the claimant and 
 the estate is transferred from the probate court to a common law 
 court having jurisdiction of the parties and the case. Merrillv. Cross- 
 man, 68 — 412. 
 
 35. The action of money had and received given to one who claims 
 to be a creditor of an insolvent estate, where the commissioners of 
 insolvency decide against him, or where the administrator, an heir at 
 law, or another creditor, gives notice at the probate office of an appeal 
 from a decision of such commissioners iu his favor, is not to be regard- 
 ed as a probate appeal. I b. 
 
 See Evidence, 143, p. 284. 
 
PROBATE BOND — PTTBLIC LANDS. 461 
 
 PROBATE BOND. 
 
 See ExEcrTOES and Administeatoes, p. 260. Judgment, 28, 
 p. 326. Pleading, 7, p. 424. 
 
 PUBLIC LANDS. 
 
 1. The land agent has no authority to locate roads through public 
 lands selected for settlement, but only to "cause such roads to be 
 located as the public interest and the accommodation of the future set- 
 tlement require." R. S., c. 5, § 29. Burns v. Annas, 60 — 288. 
 
 2. Neither can the land agent establish such road by dedication. lb. 
 
 3. By a resolve approved March 22, 1864, the Legislature directed 
 the land agent to sell the timber from a certain township, and pay the 
 proceeds, not 'exceeding $10,000, to the trustees of the Maine Wes- 
 leyan Seminary. The act prescribed the manner of the sale. The 
 land agent sold without strictly observing the law in relation thereto. 
 In May, 1868, the State conveyed the land containing the timber to 
 the plaintiff, subject to all the reservations in an act of March 24, 
 1864, one of which was of "all timber and lumber and lands granted 
 by that or any previous Legislature." Held, that the timber was 
 "voted" by the resolve of March 22, within the meaning of that term 
 as used in the act of March 24, and was excepted from the operation 
 of the deed to the plaintiff ; also, that the reservation in the deed to 
 the plaintiff was absolute, and not dependent upon a valid sale by the 
 land agent. European <b North American Railroad Co. v. Dunn., 
 60—453. 
 
 4. The statute authorizing the land agent to sell the right to cut 
 timber and grass upon the land of the State in all townships, until they 
 are incorporated into plantations, terminates that right whenever the 
 township is organized into a plantation, whether for election or plan- 
 tation purposes. Bragg v. Burleigh., 61 — 444. 
 
 5. Nor can the land agent by any form of language, em^ployed in 
 his deed to the purchaser, extend the right to cut beyond the time of 
 an organization of the township for either purpose. Ih. 
 
 6. By a conveyance to the European & North American R. R. Co. 
 from the State of certain lands, reserving "all lands set apart and 
 designated for settlement under existing laws," a township designated 
 for settlement by a resolve of the Legislature is included in the reser- 
 vation. Dunn v. Burleigh, 62 — 24. 
 
 See Constitutional Law, 20, p. 105. 
 
 QUO WARRANTO. 
 
 1. Upon filing a petition for permission to file an information in 
 the nature of a quo warranto, the length and manner of the notice to 
 be given the adverse party seems to be discretionary with the judge 
 who orders it. Beed v. Canal Corporation, 65 — 53. 
 
462 QUO WABEANTO — KAILEOAD. 
 
 2. The notice may be by summons. lb. 
 
 3. An information in the nature of a quo warranto, filed by the 
 attorney general, seems to be the appropriate remedy for nonfeasance 
 or malfeasance, abuse of power, or misuse of privilege, by a corpora- 
 tion chartered by the State. Same v. Same, 65 — 132. 
 
 4. The proper judgment is that of "ouster and seizure." Ih. 
 
 See Exceptions, 5, p. 242. 
 
 RAILROAD. 
 
 I. THE TAKIKa OF LAND. 
 
 II. LAiro DAMAGES. 
 
 III. LIABILITY FOB INSUFFICIENT FENCES. 
 
 IV. LIABILITY FOR FIRE PROM LOCOMOTIVES. 
 V. HIGHWAY CROSSINGS. 
 
 VL INDICTMENT FOE PENALTY FOE LOSS OF LIFE BY NEGLI- 
 GENCE. 
 VII. EIGHTS AND LIABILITIES AS CARRIERS. 
 
 (a) Gbskrallt. 
 
 (b) As CAEBIEES OP PASSENGBBS. 
 
 VIII. LIABILITY FOR ACTS OF CONTEACTOES. 
 IX. GENEEALLY. 
 
 I. THE TAKING OF LAND. 
 
 1. Where the charter authorized the taking of land "not to exceed 
 six rods in width," and by an act of the legislature the time for com- 
 pletion was extended two years, and "all rights, privileges, and grants 
 theretofore appertaining to said company" were thereby continued, 
 held, that the charter was thereby renewed in its entirety, and the 
 company retained the right to take land six rods in width, although 
 the general statute allowed but four. Eaton v. European <& N. A.. 
 M. R. Co., 59—520. 
 
 2. Where the time for filing the location with the county commis- 
 sioners was fixed by a statute to be on February 8th, a depositing 
 of it at their office, with their clerk, on February 6th is seasonable, 
 although a term of the commissioners' court did not occur until the 
 foUowuig April. lb. 
 
 3. So where by an act of the legislature, approved Jan. 17, 1869, 
 "one year from and after the approval" was given to alter and amend 
 the location between certain tennini, and the amended location was 
 adopted on Jan. 15, 1870, and received and filed by their clerk in the 
 county, commissioners' office, on Jan. 17, 1870, the filing was season- 
 able, although there was no session of the commissioners' court until 
 the following April. lb. 
 
 4. The purposes for which a railroad corporation may take and 
 hold lands for the "location, construction and convenient use of its 
 road," are "for necessary tracks, side tracks, wood sheds, repair 
 shops, car, engine and freight houses." Spofford v. Bucksport d) 
 Bangor B. B. Co., 66—26. 
 
EAILEOAD. 463 
 
 5. The EAILEOAD coMMissiONBES are a tribunal created by statute 
 and they obtain jurisdiction only when the petition presented to 
 them, presents a case within the provisions of the statute. H. 
 
 6. The statute gives the railroad commissioners jurisdiction only in 
 cases of disagreement between the parties as to the necessity and 
 extent of the real estate to be taken for side tracks, depots, wood 
 sheds, repair shops, and car, engine and freight houses ; and they have 
 the power only to determine the necessity and extent of the real 
 estate to be taken for these purposes, having in view the reasonable 
 accommodation of the traffic and appropriate business of the corpor 
 ation. li. 
 
 7. To give the commissioners jurisdiction the petition should con- 
 tain a description of the estate which the corporation claims to take, 
 naming the persons interested in it, with averments that the corpora- 
 tion claims to take it for some one or more of the purposes specified 
 in the statute, and that the parties do not agree as to the necessity 
 and extent of the estate described, to be taken for the purpose or 
 purposes named. It. 
 
 8. An adjudication by the commissioners that certain described 
 real estate is necessary for "tracks, side tracks," etc., and for the 
 reasonable accomniodation of the traffic and appropriate business of 
 the corporation, is in excess of their jurisdiction, for the reason that 
 they have no authority to condemn lands for the main track; or for 
 the general uses of the corporation, in addition to the specific pur- 
 poses named in the statute. IJ). 
 
 9. And when it is impossible to ascertain how much of the real 
 estate described was adjudged necessary for tracks and the general 
 uses of the road, the excess of authority in these particulars renders 
 the whole adjudication of the commissioners invalid. Ih. 
 
 10. Under the act of 1872, c. 70, authorizing the commissioners to 
 condemn land for borrow or gravel pits, for the construction of the 
 road, if the adjudication of the i;ommissioners embraces land not 
 described in the petition, it is unauthorized. Ih. 
 
 See "VV^AT. 
 
 II. LAND DAMAGES. 
 
 11. Where a railroad company had seasonably filed a petition in 
 the nature of an appeal on the question of damages, which was after- 
 wards dismissed, and the plaintiff applied to the county commissioners 
 for the security required by statute for the payment of damages, and 
 the company gave no security, biit subsequently paid the amount of 
 damages awarded and costs, this payment was presumed to be in 
 satisfp,ction of the damages awarded by the commissioners. Eaton 
 V. European & N. A. R. R. Co., 59—520. 
 
 12. The owner of land taken for the location of a railroad is entitled 
 to interest on the amount of the damages, from the time of the tak- 
 ing to the time of the assessment. Bangor & P. B. R. R. Co. v. 
 McComb, 60—290. 
 
 13. On motion by the petitioners to set aside the verdict of a sher- 
 iff's jury for damages for land taken for the location of a railroad, the 
 presiding judge declined to hear witnesses known to the petitioners 
 and obtainable at the trial before the jury, or which by ordinary dUi- 
 
464 EAILEOAD. 
 
 gence might have been known to and had by them at the trial ; held, 
 to be no ground for exceptions. Tb. 
 
 14. This court will not set aside the verdict of a sheriff's jury upon 
 the ground of excessive damages, when the chief evidence relating 
 thereto was derived by the jury from a view of the premises. Ih. 
 
 15. In impaneling a sheriff's jury, summoned to assess damages for 
 land taken for the location of a railroad, the parties are not entitled 
 to have the names of all the jurors summoned placed separately in a 
 box, and the jury drawn in accordance with the provisions of R. S., 
 c. 82, § 66. Davis v. B. & P. B. B. Co., 60—303. 
 
 16. By R. S., c. 18, § 12, it is made the duty of the person presid- 
 ing at the view and hearing by a jury, in the assessment of damages 
 for land taken for a railroad, to "certify to the court with the verdict, 
 the substance of any decision or instruction by him given, when any 
 party shall request it." Allen v. And/roscoggin B. B. Co., 60 — 494. 
 
 17. When a party does not request the person presiding to certify 
 his rulings, he thereby waives all right of exception, and cannot prove 
 the rulings by calling, as a witness, the person who presided. lb. 
 
 18. In cases where a hearing is had on a petition for an increase of 
 damages for the location of a railroad or highway before a jury, in 
 order to present the questions of law involved, the statute (R. S., c. 
 18, § 13) requires a written motion setting out the objections to the 
 verdict, whether of law or fact, and exceptions filed to the ruling of 
 the court in adjudicating thereon. If these requirements be not com- 
 plied with the court will decline to consider any objections to the 
 verdict, or exceptions improvidently allowed to the rulings relative 
 thereto. Bryant v. BT. &. L. B. B. Co., 61—300. Burr v. Bucks- 
 port <& B. B. B. Co., 64—130. 
 
 19. The jury in assessing damages should be allowed to view the 
 premises from such stand points and in such a manner as will give 
 them an accurate knowledge of the considerations that go to make 
 up the damage. They should not be required by the presiding officer 
 to make their view from the location alone. Wakejield v. Boston tfc 
 Maine B. B. Co., 63—385. 
 
 20. Who is entitled to Damages. Where E. N". petitioned for 
 damages awarded by the county commissioners for his land taken by 
 the K. & L. Railroad Company, and the jury before whom the peti- 
 tion was heard, returned a verdict purporting to be "on the petition 
 of E. N"., administrator of the estate of B. N., deceased," and to 
 award damages for the real estate of the deceased, taken by said cor- 
 poration, such verdict was set aside. JVeal v. it. d; B. B. B. Co., 
 61—298. 
 
 21. Unless the real estate, which was of an intestate, be taken for 
 public uses prior to his decease, his administrator has no right to peti- 
 tion for increase of damages ; since, in such case, it would be the land 
 of the intestate's heirs that was taken. Jb. 
 
 22. A MOETGAGEE, not in possession, but whose mortgage is re- 
 corded, should have notice of the pendency of proceedings, instituted 
 by a railway company, before county commissioners, to ascertain the 
 damages of land owners for land taken for the track of the road. 
 
 Wilson V. Miropean & N. A. B. B. Co., 67—358. 
 
 23. The railroad corporation must see that the mortgagee is some 
 
KAILEOAD. 465 
 
 how paid or satisfied for the land taken, so far as is covered by the 
 mortgage. Ih. 
 
 24. The provisions of R. S., 1871, c. 51, § 8, relating to applications 
 for increase of damages for land taken for a railroad, are repealed by 
 c. 95, Laws of 1873. Knight v. Aroostook R. R. Co., 67—291. 
 
 III. LIABILITY FOE INSUFFICIENT FENCES. 
 
 26. By the requirements of R. S., c. 51, § 20, legal and sufficient 
 fences are to be made on each side of land taken for a railroad, where 
 it passes through inclosed or improved land or woodlots belonging to 
 a farm, before a construction of the road is commenced, and they are 
 to be kept in good repair by the corporation. Gilman v. E. <fe. iV". 
 A. R. R. Co., 60—235. See Negligence, 20, p. 387. 
 
 27. An agreement between a railroad corporation and an adjoining 
 proprietor not to require them to fence but one side of their road 
 across his land until notified by him, will not relieve them from any 
 liability they may thereby incur to any person not cognizant of or as- 
 senting to it. lb. 
 
 28. Such an agreement does not run with the land and is not bind- 
 ing upon the grantee of the proprietor making it. Wilder v. Me. Ceri- 
 tral R. R. Co., 65—332. 
 
 29. The statute requiring railroad corporations to inclose the land 
 taken for their road with fences is a police regulation, designed to 
 secure the safety of the public travel and transportation, and is oligar 
 tory upon all such corporations, whether chartered before or after its 
 passage. Ih. 
 
 80. When a horse, turned out by his owner upon his improved land, 
 adjoining a railroad track, strays upon the track and is killed by a 
 train of the railroad company, the mere fact that the track adjoining 
 the land is not fenced is not conclusive evidence that the owner was 
 negligent in turning him out there. The question of contributory 
 negligence should be submitted to the jury with appropriate instruc- 
 tions, lb. 
 
 IV. LIABILITY FOR FIRE FROM LOCOMOTIVES. 
 
 31. In an action under the statute to recover damages for property 
 injured by fire, communicated by a locomotive, the plaintiff, holding 
 an absolute title, may recover for the whole injury, although he held 
 the title as security for debt. Bean v. Atlantic & St. Lawrence R. 
 R. Co., 58—82. 
 
 32. And where the plaintiff had insurance upon a building so 
 destroyed, and upon payment of the amount insured had, before the 
 commencement of the action, assigned his claim under the statute to 
 the insurers, with the stipulation that any excess recovered, beyond 
 the sum paid, should belong to him, the action in the plaintiff's name 
 may be sustained for the whole injury. lb. 
 
 33. The revision of the statutes since the case of Stearns v. Atlan- 
 tic <& St. Lawrence R. R. Co., has made no change in the law relat- 
 ing to the liability of that company for damages caused by fire from 
 locomotives in use by the Grand Trunk Railway upon its road. Bean 
 V. Atlantic c& St. Lawrence R. R. Co., 63 — 293. See Post, 56. 
 
 30 
 
466 EAILROAD. 
 
 V. HIGHWAY CEOssisras. 
 
 34. A compliance with the provisions of R. S., 1871, c. 51, in rela- 
 tion to the duties of railroad corporations at crossings, does not 
 absolve the company from observing such other precautions as reason- 
 able and ordinary care may require, in crossing a thoroughfare leading 
 to and from a city. Webb v. Portland & Kennebec JR. It. Co., 57 
 —117. 
 
 35. When one railroad company is using, by permission, the track 
 of another, the former must be held to observe such precautions for 
 the safety of the public at a crossing as shall be equivalent to those 
 required of the latter. lb. 
 
 36. The establishment of a flag station at a railroad crossing is not 
 an assertion of a paramount right on the part of the company. lb. 
 
 37. The road bed of a railroad prevented the flow of surface water 
 down the side of a depression of land, and diverted it upon the land 
 of the plaintiff, causing him damage. Held, that the plaintiff was 
 not included in the terms "those injured," in R. S., 1871, c. 51, § 15, 
 providing that those injured by the neglect of railroad corporations 
 to perform certain acts at the crossing of highways may have an action 
 on the case for their damages. Morrison v. Bucksport cfc Bangor R. 
 B. Co., 67—353. 
 
 38. An indictment founded on R. S., c. 51, § 13, is fatally defective 
 unless it allege substantially that the railroad crosses the highway in 
 a manner not determined in writing by the county commissioners. 
 State V. Portland, Saco & Portsmouth B. B. Co., 58 — 46. 
 
 39. An allegation that the defendants "did unlawfully and inju- 
 riously lay, place, and put down, and cause to be laid, placed, and put 
 down three certain tracks with iron rails in, upon, across, and over 
 said highway," is not sufiicient. lb. 
 
 40. By virtue of R. S., 1871, c. 131, § 13, an indictment will lie to 
 recover the forfeiture provided for in chapter 51, section 40, for un- 
 reasonably and negligently obstructing by cars, engines and tenders, 
 any way. State v. Grarid Trunk Bailway, 59 — 189. 
 
 41. Without the statute of 1871, a town could recover of a rail- 
 road company such damages as they may have been compelled to pay 
 by reason of a defect in one of their streets caused by the negligence 
 of the comj)any in the construction or maintenance of their railroad 
 crossing. Portlands. Atlantic <& St. Lawrence B. B. Co., 66 — 485. 
 
 42. That statute does not take away the common law remedy. lb. 
 
 VI. INDICTMBNT FOR PENALTY IN CASE OP LOSS OF LIFE 
 BY NEGLIGENCE. 
 
 43. In the trial of a railroad company on an indictment under R. 
 S., 1857, c. 51, § 42, for negligence, by which the life of a person is 
 lost, the same rules of evidence and same principles of law should be 
 applied, as in analagous civil suits for damages. State v. Qrand 
 Trunk Bailway, 58 — 176. 
 
 44. When a passenger on a railway train leaves the car at a station 
 to which he is not destined, without objection made, he does no illegal 
 act, but for a time surrenders his place as a passenger, and takes upon 
 himself the responsibility of his own motions. Whilst thus his own 
 
EAILEOAD. 467 
 
 man he may be injured or killed by the "negligence or carelessness 
 of the railroad or its agents," and the corporation liable for such neg- 
 ligence. Ih. 
 
 45. The remedy, by indictment, when the life of a person is lost 
 through the carelessness of a railroad corporation or its servants, is 
 limited to cases where the person injured dies immediately, and is not 
 applicable in any case to the employees of the road. State v. Maine 
 Central R. M. Co., 60 — 490. State v. Grand Trunk Railway, 61 — 
 114. 
 
 46. An indictment against a railroad company for the statute pen- 
 alty for negligence of its employees causing the death of a person 
 must aver that the person whose life was lost le^t a widow, or heirs, 
 or both, as the case may be. An averment that "he then and there 
 having a lawful wife and child alive," or "that there is now living a 
 widow and one child," is not sufSoient. The indictment must set out 
 the names of the persons who are to receive the forfeiture. The alle- 
 gation that "their names are to the jurors unknown" is not sufficient. 
 State V. Gravid Trunk Railway, 60 — 145. 
 
 47. A railroad corporation is not liable for the forfeiture imposed 
 by statute for the loss of life through the negligence of its servants or 
 agents, if, at the time of the accident, the road is not in the posses- 
 sion of the corporation, but of its mortgagees, who have the entire 
 management and control. State v. European <b M. A. R. R. Co., 67 
 —479. 
 
 VII. EIGHTS AND LIABILITIES AS CAERIEES. 
 
 (a) Genekallt. 
 
 (b) As CABEIBKS OF PASSEN6EBS. 
 
 (a) Generally. 
 
 46. The delivery of a trunk into the possession of a railroad sta- 
 tion baggage-master, at his station, for transportation, and his recep- 
 tion of the same for that purpose, imposes upon the corporation the 
 obligation of a common carrier. Wilson v. G. T. R. R. Co., bl — 138. 
 Graffam v. Boston & Maine R. R. Co., 67 — 234. 
 
 47. Where the Maine Central Railroad Company let to the Eastern 
 Express Company, for four years, the exclusive use of a certain sepa- 
 rate apartment in a car attached to each of their passenger trains, 
 for the purpose of transporting the express company's messenger and 
 merchandise, and agreed that they would not, during the continuance 
 of such contract, let any space in any car on their passenger trains, 
 to any other express carrier; and the railroad company before the 
 expiration of such contract, but after reasonable notice to them, re- 
 fused to receive, upon any terms, from the New England Express 
 Company, when and where they received the Eastern Express Com- 
 pany's freight, such packages as are usually carried by express com- 
 panies, to be transported by their passenger trains ; held, that the 
 railroad company were liable, under c. 193 of the Public Laws of 
 1868, to the New England Express Company, in an action of dam- 
 ages. N. E. Exp. Co. V. M. C. R. R. Co., 57—188. 
 
 48. It seems that an action at common law would lie against the 
 railroad under the same circumstances. lb. 
 
468 BATLEOAD. 
 
 49. A railroad corporation, whose track is located within the limits 
 of a highway, may load and unload one of its cars while temporarily 
 standing for that purpose in the street, provided it be done in such a 
 prudent manner as not unreasonably to interfere with the rights of 
 those having occasion to use the way for the ordinary purposes of 
 travel. Mathews v. Kelsey, 58—56. 
 
 50. And for the purpose of unloading a car of flour, a merchant, 
 whose store is on the street, may use skids, temporarily elevated 
 above the ground and extending from the car door, fifty feet to the 
 store, provided there is ample room between the car and the opposite 
 side of the street to accommodate the travel of the street. lb. 
 
 (b) As carriers of passengers. 
 
 51. MiscoiTDTTCT OF EMPLOYEES. A common Carrier of passengers 
 is responsible for the wilful misconduct of his servant toward a pas- 
 senger. Goddard v. G. T. R. R. Co., 57—202. 
 
 52. A passenger, who is assaulted and grossly insulted in a railway 
 car by. a brakeman employed on the train, has a remedy therefor 
 against the company. lb. 
 
 53. If a passenger upon a railroad assaults a servant of the com- 
 pany and resists him in the performance of a legitimate duty, this 
 does not justify the servant in pursuing and punishing the passenger 
 after the assault or resistance is over ; if he does he makes the com- 
 pany as well as himself liable for the injury. Hanson v. European 
 & N.A.R. R. Co., 62—84. 
 
 54. When a passenger, without objection made, leaves a railroad 
 train at a station to which he is not destined, it is the duty of the cor- 
 poration to give reasonable notice in time for such person to return 
 to the cars by the usual signal. State v. Gh'and Trunk Railway, 58 
 —176. 
 
 55. Freight Train. If a person enters the saloon car of a freight 
 train, and is not requested to leave when the train starts, but remains 
 there as a passenger and pays to the conductor the usual fare of a 
 first-class passenger, the company incurs the same liability for his 
 safety as if he were in a regular passenger train ; notwithstanding the 
 regulations of the company prohibit the carrying of passengers on 
 freight trains. Dunn v. Grand Trunk Railway, 58 — 187. 
 
 56. Grand Trunk Railway. Act of 1871, c. 223, which declares 
 that no railroad company shall limit the right of a ticket holder to a 
 given train, is obligatory on the Grand Trunk Railway. Dryden v. 
 Grand Trunk Railway Co., 60 — 512. 
 
 57. The lease of its road by the Atlantic and St. Lawrence Rail- 
 road Company to the Grand Trunk Railway does not relieve the les- 
 sor from liability for injuries caused by the negligence or carelessness 
 of the servants of the lessee in running its trains. Mahoney v. Atlan- 
 tic & St. Lawrence R. R. Co., 63 — 68. 
 
 58. But the lessor is not liable for an injury to a passenger caused 
 by the positive wrong of a person employed by the lessee in running 
 its train, while in possession of the road under the lease. lb. 
 
 59. Tickets. It is seldom if ever that a railroad ticket embodies 
 all the elements of the contract for passage. Burnham v. Grand 
 Trunk Railway, 63—298. 
 
KAILEOAD. 469 
 
 60. The plaintiff, wishing to go over a portion of his journey on 
 the road one day and the remainder the next, and being informed by 
 the ticket seller that the conductor would give him a "stop over" 
 check, paid his fare for the whole distance, receiving a ticket not 
 signed, and bearing the words "good for this day only." The custom 
 of giving "stop over checks" had been abrogated a few days previous, 
 and upon the second day his ticket was refused, and, upon his refusal 
 to pay a second fare, he was expelled from the cars, although he in- 
 formed the conductor that he had paid his fare for the full distance. 
 Held, that the ticket did not express the real contract for passage, 
 which was the verbal one made with the ticket agent, and that the 
 company, acting through the conductor, must first restore the surplus 
 money, or deduct it from the fare claimed, before it could refuse to 
 execute the contract made with the agent, even if it was not bound 
 by it. lb. 
 
 61. A railroad ticket, with the words "Portland to Boston" printed 
 on it, purchased in Portland under no other contract than what is 
 inferable from the ticket itself, does not entitle the holder to a ride 
 on the road of the company issuing it, from Boston to Portland. 
 Keeley v. Boston tfc Maine R. R. Co., 67 — 163. 
 
 62. It does not make any difference that the holder of the ticket had 
 before that time passed over the road upon other tickets in a direc- 
 tion the reverse of that advertised upon their face. Or that he was 
 advised by another conductor, upon another train, at another time, 
 that the ticket would be good for either direction. lb. 
 
 63. Accident. When a passenger is in the exercise of proper care 
 when an injury happens to him by the cars running off the track, neg- 
 ligence on the part of the railroad company may be presumed against 
 them, the cause of the accident not appearing from the attending cir- 
 cumstances, unless the imputation is removed by some satisfactory 
 explanation on their part. Stevens v. European <& A^. A. H. H. Co., 
 66—74. 
 
 64. Depot. A railroad company is bound to make the approaches 
 to its depots safe, not only for passengers, but for all who have right- 
 ful occasion to use them. Tobin v. Portland, 8. <& P. H. B. Co., 
 59—183. 
 
 65. A railroad corporation is liable to a hackman for an injury re- 
 ceived, while carrying a passenger to their depot for transportation, 
 by stepping, without fault, into a cavity in their platform occasioned 
 solely by negligence on the part of the corporation in leaving the 
 platform in an unsafe condition. lb. 
 
 66. The liability of the company for negligence in leaving the plat- 
 form in front of their depot, in an unsafe condition is not changed by 
 the fact that the platform was erected and maintained by the com- 
 pany within the limits of the highway. lb. 
 
 Vni. LIABILITY FOE ACTS OF CONTKACTOES. 
 
 67. A railroad corporation engaged a contractor to construct 
 "under the general supervision of the chief engineer of the company" 
 a specific portion of its railroad, located across the plaintiff's timber 
 tract, and the sub-contractor and his employees cut a tote road 
 through the plaintiff's premises, outside of the location, and set fires 
 which, through their negligence, spread and burnt the plaintiff's tim- 
 
470 BAILEOAD. 
 
 ber. Held, that the compiany, not having directed the acts complained 
 of, and having no such control over the persons who committed them, 
 was not liable for the damages occasioned thereby. JEaton v. E. <fc 
 JST. A. R. B. Co., 69—520." 
 
 68. If the company's engineer direct the sub-contractor to do an 
 unauthorized act, such as grading outside of the limits of the true 
 location, the company is liable therefor. lb. 
 
 69. A railroad corporation is not liable under R. S., of 1857, c. 51, 
 § 25, (R. S., 1871, § 22,) for trespasses and injuries to lands and 
 buildings adjoining, or in the vicinity of its road committed by con- 
 tractors or the servants of contractors. lb. 
 
 70. A railroad company is not liable for injuries to buildings in 
 the vicinity of its road caused by blasting by contractors to build the 
 road, or those in their employ, although under the contract the cor- 
 poration reserves the right to retain in its hands sums sufficient to 
 pay all damages, not adjusted within thirty days from the time they 
 are inflicted. Tibbetts v. SJnox & Lincoln R. R. Oo., 62 — 437. 
 
 IX. GENERALLY. 
 
 71. Railroads are public highways. R. R. Commissioners v. Port- 
 land & 0. U. U. B. Co., 63—269. 
 
 72. In cases of apparent conflict between the rights and powers 
 conferred upon railroad corporations, and the duties imposed upon 
 them, the solution may be often rendered easy by regarding the ad- 
 mitted right of public use as the touch-stone of judicial interpretation. 
 lb. 
 
 73. PowEK OF DiEECTOKS. When the charter of a railroad corpor- 
 ation i-equires it to receive persons and articles for transportation at 
 all proper times and places, and also that the legislature may correct 
 and prevent abuses of the franchise, the directors of the company are 
 not the sole and ultimate judges of the times and places when and 
 where it will receive and convey persons and articles on its line, but 
 the power to determine lies in the appropriate State tribunals. Ih. 
 
 14:. Where the bailed ad coMsnssioiirEES after a full hearing directed 
 a company to erect and maintain a depot at a certain place on its 
 line, the court affirmed their decision without further hearing. lb. 
 
 75 to 79 were cases from the earlier reports numbered in by mistake. 
 
 80. The Atlantic & St. Lawrence R. R. Co., having the right to 
 extend its track along the water front of a street in Portland, which 
 it was under obligation to build, made a contract with the P., S. & 
 P. R. R. Co., by the terms of which in consideration that the latter 
 would pay one-half of the expense of building the track and street, 
 which would connect the termini of their roads, the former would 
 give to the latter an irrevocable lease of the western half of the 
 tracks so built, and of the right to use the remainder for the delivery 
 of freight, under certain rules. Held, that the P., S. & P. Co. might 
 receive the cars of other roads at its depot in Portland, and haul 
 them over the tracks built in pursuance of the contract, in the same 
 manner as it might its own cars. Portland, S. db P. B. B. Co. v. 
 Grand Trun/c Bailway, 63 — 90. 
 
 81. Railroad charters are to receive such a construction as is rea- 
 
BAPB — EATITICATIOK. 471 
 
 sonable and consistent with the public objects to be promoted by 
 them. -K. R. Commissioners v. P. <& 0. C. H. R. Co., 63 — 269. 
 
 82. The act of 1872, c. 32, which prohibits any railroad company 
 from constructing or maintaining any track, or running any engines 
 or cars on any highway so near any depot of another railroad as to 
 endanger the safe and convenient access to and use of such depot for 
 ordinary depot purposes is only a police regulation for the safety of 
 the public, and applies to railroads chartered before its passage. Port- 
 land, Saco db Portsmouth R. R. Co. v. Boston <& Maine R. R. Co, 
 65—122. 
 
 See CoEPORATioN, p. 126. 
 
 CoNSTiTUTioi^'AL Law, 44, p. 107. 
 
 Tax, 2. 
 
 RAPE. 
 
 An indictment for having carnal knowledge of a female child less 
 than ten years old, need not allege that the offence was committed 
 "with force," or "against the will" of the child. State \. Black, 
 63—210. See Exceptions, 50, p. 245. 
 
 RATIFICATION. 
 
 1. By bringing a suit to recover the value of goods mortgaged to 
 the plaintiff, claiming to hold under the mortgage, the plaintiff thereby 
 ratifies the act of his attorney in taking the mortgage in the plaintiff's 
 name. Partridge v. White, 59 — 564. 
 
 2. After judgment on a marine policy recovered by the owner of 
 one-eighth interest alone, the owner of the remaining seven-eighths 
 settled with the attorney who recovered the judgment, for the amount 
 of his fees paying him seven-eighths of the amount, and collected the 
 execution. Jffeld, that this constituted a ratification of the original 
 suit. Vose V. Treat, 58—378. 
 
 3. The legislature established a police court in a city "to be held at 
 such place as the city shall provide." The city failed to provide a 
 place, though notified to do so, and the judge hired a room, in which 
 he held the court, paid the rent, and presented his bill therefor to the 
 city council, by which it was referred to the appropriate committee, 
 but no further action was taken, and the judge continued to hold his 
 court in the room. Held, no ratification of the act of the judge in 
 hiring the room. French v. Auburn, 62 — 452. 
 
 4. "Where a committee, authorized by a school district to sell prop- 
 erty, sold it on credit, thereby exceeding their authority, the reten- 
 tion by the committee' of the money and notes received, and also the 
 knowledge of the transaction by the inhabitants, is not a ratification 
 by the district of the sale. School District in Dresden v. ^tna Ins. 
 Co., 62—330. 
 
 5. If it could be admitted that the unauthorized alteration of a 
 
472 BATIFICATION — ^EEAL ACTIONS. 
 
 collector's bond, and increase of the penal sum, with the consent of 
 the selectmen, should not affect the rights of the town, the bringing 
 of a suit by the town, in which the writ contains a count on the bond 
 in its original condition, and one as altered, is a ratification of the act 
 of the selectmen. Dover v. Robinson, 64 — 183. 
 
 6. If one who has no right to lease real estate does so, and receives 
 the rents, the owner of the building may afiirm the wrongful acts and 
 recover the rents. The affirmation may be by suit. Wright v. Wil- 
 liamson, 67 — 524. 
 
 See CoEPOEATiON, 4, p. 125 ; 32, p. 130. 
 Paupee, 15, p. 410. 
 
 EEAL ACTIONS. 
 
 I. WHElSr AND BY WHOM MAINTAINABLE. 
 
 II. PLEADINGS BY THE PLAINTIFF. 
 
 III. PLEADINGS BY THE DEFENDANT. 
 
 IV. EVIDENCE. 
 
 (a) On the paet of the plaintiff. 
 
 (b) On the part of the defendant. 
 V. JUDGMENT. 
 
 I. WHEN AND BY WHOM MAINTAINABLE. 
 
 1. In PASSIVE TEUSTS, where the right to possess and enjoy the 
 property is in the cestui que trust, the trustee cannot maintain a writ 
 of entry against him or those holding under him. Sawyer v. Skowhe- 
 gan, 57—500. 
 
 2. Thus, where the second-story of a building was conveyed to a 
 committee of an incorporated odd fellows' lodge, chosen to receive the 
 conveyance for the benefit of the lodge, and subsequently, by a vote 
 
 , of the lodge, the premises were conveyed, by another committee duly 
 chosen for that purpose, to the defendant's predecessors in title, held, 
 that the former committee cannot maintain a writ of entry against the 
 defendants to recover the premises. lb. 
 
 3. Ceeditoe. The simple evidence that land has been fraudulently 
 conveyed by a debtor; and that the fraudulent grantee has quitclaimed 
 all his right, title, and interest to a third person, will not prevent a 
 prior creditor, subsequently levying his execution thereon under R. 
 S. of 1857, c. 76, § 13, from acquiring the "momentary seizin" neces- 
 sary to enable him to try the title with the party in possession not 
 claiming under such conveyances. Morse v. Sleeper, 58 — 329. 
 
 4. When the rights of pew-hoidees in a meeting-house are invaded 
 by grantees of the corporation to which they belong, their remedy is 
 in equity. Certainly it is not in a real action where their rights are 
 confounded with those of the corporation under whose grant the tenant 
 holds, and where the judgment for the demandant if it could be 
 obtained would enure directly to the benefit of the same corporation. 
 Craig v. Franklin County, 58 — 479., 
 
 5. If a TENAiirT AT vriLL gives his landlord thirty days' notice of the 
 termination of the tenancy and on the the day specified for the surren- 
 
KEAL ACTIONS. 473 
 
 der of the premises the landlord coming to take possession finds the 
 doors locked he may elect to consider himself disseized and bring a 
 writ of entry. Longfellow v. Longfellow, 61 — 590. 
 
 6. A real action can not legally be commenced by a capias writ, 
 served by arrest of the defendant. Richardson v. Rich, 66 — 249. 
 
 7. A JOINT real action can not be maintained when one of the 
 demandants is estopped by his deed to set up the title. Read v. Fogg, 
 60—479. 
 
 8. A writ of entry by mortgager against the mortgagee, or his 
 assignee, is not an appropriate action in which to determine the validity 
 of an attempted foreclosure. Jewett v. Hamlin, 68 — 172. 
 
 9. A mortgager cannot maintain a writ of entry against the mort- 
 gagee, or his assignees, without showing a satisfaction of the mort- 
 gage. Ih. 
 
 10. A tender of the amount due on a mortgage may lay the founda- 
 tion for a bill in equity for redemption, but will not enable the mort- 
 gager to get possession by an action at law. Rowell v. Mitchell, 68 — 
 21. 
 
 11. Detisbe. In a real action the death of the demandant being 
 suggested, her devisee was admitted to prosecute the suit. lb. 
 
 II. PLEADINGS BY THE PLAINTIFF. 
 
 12. By R. S. of 1857, c. 104, § 3, the plaintiff in a real action is 
 required to "set forth the estate he claims in the premises, whether in 
 fee-simple, fee-tail, for life, or for years ; and if for life, then whether 
 for his own life or that of another." Rawson v. Taylor, 57 — 343. 
 
 13. To recover he must prove that he is entitled to such estate as 
 he has alleged, and that he had a right of entry therein when he com- 
 menced his action. lb. 
 
 14. In a real action if the demandant claims a fee-simple and proves 
 a fee-tail he can not recover. Hamilton v. Wentworth, 58 — 101. 
 
 15. In a real action, under a count claiming a fee-simple the demand- 
 ant can not recover for a life estate. Forsyth v. Rowell, 59 — 131. 
 Rawson v. Taylor, 57 — 343. Parker v. Murch, 64 — 54. 
 
 16. Desceiption. The declaration in a writ of entry should describe 
 the demanded premises clearly, and without reference to papers or 
 records, dehors the writ ; but such a reference will not vitiate the 
 declaration if the description is complete without it. Willey v. 
 Nichols, 59—253. Bragg v. White, 66—157. 
 
 17. A description of the demanded premises in a writ of entry is 
 sufficient if it gives the number of the lot, when the lot has been 
 actually run out and numbered, the number of the lot in such case 
 becoming, for the purpose of identification, its name. Willey v. 
 Mchols, 59—253. 
 
 18. "So much of the Huunewell farm, so called," in a town and 
 county named, "as is contained in lots two, three, and four, according 
 to the division of said farm made by commissioners of partition, 
 appointed by the supreme judicial court, on the petition of B. P. 
 Hunnewell ; said lots are adjoining each other, and containing in all 
 eighty acres, more or less ; said lot two being the same set off by said 
 commissioners to Jonas Hunnewell ; said lot three the same set off to 
 Eliza Willey ; and said lot four the same set off to Bethana Bruce," is 
 
474 EEAL ACTIONS. 
 
 a sufficient description of the premises demanded in a writ of entry. 
 lb. 
 
 19. A description of the demanded premises as "a certain parcel 
 or lot of land with the buildings thereon, situated in said Bangor, on 
 the easterly side of Ohio street, being the former homestead of Carle- 
 ton S. Bragg," followed by references to the registry of deeds, is 
 sufficient, on demurrer. Sragg v. White., 66 — 157. 
 
 20. In a real action, which is evidently brought to recover a strip 
 of land occupied by the tenant, and in dispute between the parties as 
 co-terminous proprietors, but in which the description of the demanded 
 premises includes the whole lot of the demandant and on the disputed 
 side describes it as bounded by a lot of land which is the same owned 
 and occupied by the tenant, a general verdict for the demandant, 
 although unavailing, will not be set aside, because of the uncertainty 
 of the description. Ramsey v. O^Leary, 61 — 366. 
 
 21. In a real action, brought to recover a mill "together with the 
 water privilege used in operating it, and the road or private way 
 leading from said mills to the county road," the title depending upon 
 the construction to be given to an exception in a deed, the plaintiff 
 claimed that as the general issue was pleaded he could at all events 
 recover the road in which the defendant only claimed an easement, but 
 as the declaration did not give a more particular description it was 
 held, that the purpose was merely to describe the easement and that 
 the fee of the road was not in issue. Moulton v. Trafton, 64 — 218. 
 
 III. PLEADINGS BY THE DEFENDANT. 
 
 22. In a real action, under the general issue, the defendant in pos- 
 session of the demanded premises can not be disturbed until the plain- 
 tiff shows a better title. Douglass v. Libby, 59 — 200. 
 
 23. Under the general issue in a real action, the defendant may dis- 
 prove the seizin of the plaintiff, as alleged in the writ, by showing 
 that the plaintiff's grantor had previously conveyed the title to a third 
 person, although the defendant does not claim under him. Morse v. 
 Sleeper, 58—329. 
 
 See Post, 49. 
 
 24. A verdict in a real action is not erroneous, because it finds that 
 the demandant was disseized of the entire tract when the evidence 
 shows that he was disseized of a small portion only. The tenant not 
 having plead his special matter seasonably, and the disclaimer being 
 in part untrue. Itamsay v. O'Leary, 61 — 366. 
 
 25. In a writ of entry, if the tenant pleads nul disseizin, he 
 thereby admits that he is in possession, claiming a freehold. Long- 
 fellow V. Longfellow, 61 — 590. 
 
 26. In a real action, a plea of the general issue admits the tenant 
 to be in possession of the premises demanded. Cooper v. Page, 62 
 —192. 
 
 27. In a joint plea of nul disseizin by two defendants, with brief 
 statement that one disclaims title and is in possession, under the 
 other, who claims as mortgagee, although the brief statement not 
 having been filed within the time allowed for filing pleas in abate- 
 ment, is not valid as a disclaimer, yet as the plaintiff must prevail, 
 
KEAL ACTIONS. 475 
 
 if at all, on the strength of his own title, and having alleged a disseizin 
 by both, and the title of one of the defendants proving to be stronger 
 than his, the plaintiff can not prevail. Howell v. Mitchell, 68 — 21. 
 
 IV. EVIDENCE. 
 
 (a) Obt the part of thb plaintiff. 
 
 (b) On the pabt of the defendant. 
 
 (a) On the part of the plaintiff. 
 
 28. The title of the government is superior to that of the abori- 
 ginees. Pen. Indians v. Veazie, 58 — 402. 
 
 29. Where the State conveyed land to the grantor of the defend- 
 ant's ancestor, more than thirty years ago, and the defendants and 
 those under whom they claim, have held the possession- and claimed 
 to be the owners of the land during all that time, it is not competent 
 for a tribe of Indians, who do not appear to have any title to the 
 premises, to question the regularity of the sale by the State, lb. 
 
 30. Where, in the trial of a writ of entry, the plaintiff's title de- 
 pends upon a tax sale, his production, in pursuance with R. S., c. 6, § 
 162, of the "treasurer's deed, duly executed and recorded, the assess- 
 ments signed by the assessors, their warrants to the collector," and 
 proof "that the taxes were advertised according to law," make only a 
 prima facie case. Orono v. Veazie, bl — 517. 
 
 31. While the plaintiff is making out a, prima facie case, by proofs 
 on his part, the defendant may contest the sufficiency of the plain- 
 tiff's evidence to establish the requirements of the statute, without 
 being required to pay or tender the amount of "taxes, charges and in- 
 terest." lb. 
 
 32. If the defendant would go further, and introduce proof, he 
 must pay or tender the "amount of all taxes, charges and interest," 
 as required by the latter clause of § 145, whereupon he may take ad- 
 vantage of all illegalities in the raising, assessing, and collecting of 
 the tax. 1 b. 
 
 33. In a real action, tried upon a plea of nul disseizin, a warranty 
 deed to the plaintiff, or to one from whom the plaintiff has a quit- 
 claim deed, is sufficient prima facie evidence of ownershij). Blethen 
 V. Bwinel, 34—133. Band v. SUllin, 63—103. 
 
 34. Where the description of the premises in the deeds introduced 
 by the demandant is substantially the same as that contained in \a& 
 writ, no further evidence of identity is necessary to make ovAz. prima 
 facie case. Band v. Skillin, 63 — 103. 
 
 35. It is not indispensable that the plaintiff should trace his title 
 back to the first person named by him as owner in the informal state- 
 ment of title filed under direction of the court, if he goes back in the 
 line indicated, far enough to show a better title than the defendant. 
 Hatch V. Brown, 63^10. 
 
 36. Two adjoining land owners, between whom there had been a 
 controversy as to the location ijpon the earth of the dividing line be- 
 tween them, entered into a written agreement that the line was where 
 one party claimed it to be, and the other party paid the costs of ref- 
 erees, who had met under a submission of the dispute. In a real ac- 
 tion in which the same line was in controversy, an instruction that if 
 
476 EBAL ACTIONS. 
 
 the parties entered into the contract without any misapprehension of 
 their rights, they would be bound by it as by any other contract, was 
 held correct. Hunter v. Heath, 67 — 507. 
 
 37. In a real action, the demandant can recover only upon the 
 strength of his own title, and not on the weakness of that of the ten- 
 ant. Ih. 
 
 38. Where all the deeds, under or through which a demandant 
 claims, are merely releases and quitclaim conveyances, and it does not 
 appear that any of the grantors were ever in possession, such demand- 
 ant, upon such title, can not recover. Rand v. Slcillin, 63 — 103. 
 
 39. This doctrine is not applicable where the title of each side 
 comes down from the same grantor, and the demandant claims under a 
 mortgage with covenants of general warranty from such grantor. 
 
 Willey V. Williamson, 68 — 71. 
 
 (b) On the part of the defendant. 
 
 40. In the trial of a writ of entry to recover a part of lot seventy- 
 one, the declarations of an owner (since deceased), of a lot adjoining 
 
 ' seventy-one on the west, while surveying it for the purpose of con- 
 veying it, that a certain monument at which he was then standing, 
 was the declarant's north-east corner, are not admissible. Sullivan 
 Granite Co. v. Gordon, 57 — 520. 
 
 41. In the trial of a real action, it is competent for the defendant 
 in possession, under the general issue, to disprove the seizin of the 
 demandants as alleged in the writ, by showing that the party under 
 whom they claim, had neither title nor possession at the time of the 
 conveyance under which they claim. Poor v. Larrdbee, 58 — 543. 
 
 42. Thus, where the demandant's title depended upon an alleged 
 attachment, seasonably followed by a levy on real estate, made in fa- 
 vor of the demandant's grantor against his debtor, the tenant may, 
 for the purpose of disproving the demandant's seizin within twenty 
 years, show that the alleged attachment was void, and that after the 
 attachment, but prior to the levy, the debtor was decreed a bankrupt 
 under the United States Bankrupt Act of 1841, and that the demand- 
 ant's grantor's debtor did not have possession when the levy was 
 made. Ih. 
 
 43. The administrator of the intestate estate, to which belonged 
 the lots of land in controversy, under a license from the probate court, 
 conveyed them to the defendant's grantors, and the widow, to whom 
 the land had been assigned as dower against common right, joined in 
 the deeds, to convey apd release her dower. Thereupon, the defend- 
 ant's grantors entered and erected a brick block upon the premises. 
 In a real action by the grantee of the levying creditors of the heirs 
 of the intestate ; held, that it is incompetent for the defendants to 
 question the regularity of the probate proceedings by which the 
 dower was assigned. Ih. 
 
 44. In the trial of a real action, where the plaintiff's title, depend- 
 ed upon a deed recorded September 19th, and the defendants upon 
 an attachment, made on a writ against the plaintiff's grantor, dated 
 September 15th, the attachment being recorded September 19th, it is 
 competent for the plaintiff to show that the defendant's writ was not 
 made on the 15th, but that it was made on the 19th, after the defend- 
 
REAL ACTIONS. 477 
 
 ant had knowledge of the record of the plaintiff's deed, and that both 
 ■writ and return were fraudulently ante-dated. Warren v. Kimball, 
 59—264. 
 
 45. To a writ of entry brought on an unassigned mortgage of land 
 by the mortgagee against the mortgager, the fact that the mortgage 
 and notes secured thereby, were the property of a third person who 
 forbade the suit, constitutes no defense. Stanley v. JS^empton, 59 — 
 472. 
 
 46. The plaintiff put in evidence a copy of his writ ag&inst one 
 Charles Moulton, with the return and record thereof of the attach- 
 ment of the latter's real estate, dated August 17, 1867, a copy of the 
 judgment recovered Feb. 4, 1868, and of a seasonable extent duly 
 recorded of the execution on the demanded premises. The defendant 
 proved his possession at the time, and ever since the plaintiff's attach- 
 ment, and offered in evidence a mortgage of the premises to herself, 
 from C. Moulton, dated July 20, 1867, and recorded Aug. 19, 1867, 
 and a deed from C. Moulton to J. Moulton, dated and recorded July 
 23, 1867, with a quitclaim back, dated Oct. 27, 1868. Keld, that the 
 defendant had the better title. Douglass v. JLibby, 59 — 200. 
 
 47. Where both parties in a real action claim under deed from the 
 same grantor, that of the demandant being prior to that of the tenant, 
 the latter can not introduce a deed from the common grantor to a 
 third person, subsequent to the deed to the parties to the suit for the 
 purpose of defeating the title of the demandant. Such deed is merely 
 the subsequent declaration of the grantor reduced to writing. Worth- 
 ing V. Worthing, 64 — 335. 
 
 48. But where the wife of the grantor testified that the deed to the 
 demandant was delivered to her to keep for the grantee, the subse- 
 quent deed in which she released her dower, is admissible to affect 
 her testimony, since it tends to counteract her statement that her hus- 
 band had no title. lb. 
 
 49. Title is Stkangee. The defendant in a real action can not 
 under the general issue, introduce a deed of the demanded premises 
 from the plaintiff to a third person, under which he does not claim, 
 and made since the commencement of the suit, although such defense 
 is set up in a brief statement. Gammon v. Huff, 67 — 184. 
 
 50. Under a plea of nul disseizin, without disclaimer, and justifica- 
 tion under the title of another, the tenant may show title in a 
 stranger for the purpose of rebutting plaintiff's title. Howell v. 
 Mitchell, 68—21. 
 
 51. In a writ of entry against two defendants, B. and M., there 
 was a joint plea of nul disseizin with a brief statement, not filed 
 within the time allowed for pleas in abatement, that B. was mortga- 
 gee in possession, and that M. was holding possession under him. The 
 defendants offered in evidence an assignment to B. of an outstanding 
 mortgage of the premises. Held, that the assignment was admissible 
 as showing the plaintiff's rights under her title, and that she did not 
 sustain her right of possession as claimed in her writ. lb. 
 
 V. JUDGMENT. 
 
 52. If the demandant in a real action, after verdict in his favor, 
 but before judgment, convey the real estate in controversy to a third 
 
478 EECEIPT — BECOGNTZANCE. 
 
 person, such conveyance will not prevent a judgment in his favor in 
 a review of the action, if he is otherwise entitled to it. Berry v. 
 Whitaker, 58—422. 
 
 53. In a real action upon a mortgage, by the mortgagee against a 
 stranger, the demandant is entitled to an absolute judgment for pos- 
 session, and for waste. Bird v. Decker, 64 — 550. 
 
 54. In a writ of entry upon a mortgage, in which the mortgagee 
 declares generally upon his own seizin, and only claims to recover 
 judgment for one of several parcels of land embraced in the mort- 
 gage, and the mortgager objects to a conditional judgment, the de- 
 mandant may have judgment at common law. JTowardv. Houghton, 
 64—445. 
 
 RECEIPT. 
 
 The plaintiffs had an account against Brewer <fe Lothrop, and 
 one against Brewer. The defendant Brewer gave his note to the 
 plaintiffs, for which they gave him a receipt in the following words : 
 "Lewiston, October 22, 1875. Received from F. S. Brewer his ninety 
 day note for three hundred dollars, to be paid at either bank in Port- 
 land. Geo. A. Hunt & Co. Starbird." The jury were instructed 
 that "the receipt for the note does not show, upon the face of it, 
 whether the note was or was not given in discharge of the joint 
 indebtedness of Brewer and Lothrop, or the individual indebtedness^ 
 of Brewer alone. It shows from whom it was received, but not upon 
 which of the two accounts it was to be applied. Upon the latter 
 point it is silent, and can have no legitimate bearing one way or the 
 other." Held, correct. Hunt v. Brewer, 68 — 262. 
 
 RECOGNIZANCE. 
 
 1. A recognizance, after alleging that the principal therein was 
 brought before the municipal court of Portland by virtue of a warrant 
 duly issued upon the complaint, on oath, of a person named, then re- 
 cited the allegations in the complaint which technically set out a com- 
 pound larceny by the principal in this county, and concluded with the 
 condition, "that if the said respondent shall personally appear at the 
 court aforesaid, and answer to such matters and things as may be ob- 
 jected against him, and more especially to the charge contained in 
 said complaint, and shall abide the order and judgment of said court, 
 and not depart without license ; then, etc." Held, (1) that the recog- 
 nizance contains the requirements specified in the statute ; and (2) that 
 the clause "to answer to such matters and things as may be objected 
 against him," not being authorized, may be objected as surplusage. 
 State V. Hatch, 59 — 410. 
 
 2. Section 24, c. 33 of Public Laws of 1858, which provides that no 
 surety in any recognizance "taken by virtue of the provisions of this 
 act," shall be discharged from his liability therein by a surrender of 
 
RECOGNIZANCE — EECOED. 479 
 
 his principal in court after he has been defaulted upon his recogaiz- 
 ance, applies to those recognizances only mentioned in the preceding 
 clause of the section ; and does not apply to recognizances taken in 
 the supreme judicial court "in proceedings under this act," and in 
 conformity with Public Laws of 1867, c. 130, § 6, which latter act is 
 "additional to, and amendatory of" the former. 8tate v. Crowley, 
 60—103. 
 
 8. When, from the tenor of a recognizance in a criminal prosecution 
 it can be sufficiently understood at what court the party was to ap- 
 pear, and from the description of the offence charged, that the magis- 
 trate was authorized to require and take the same, an action upon the 
 recognizance cannot be defeated upon the ground that it contains 
 conditions additional to those authorized by the statute. lb, 
 
 4. Thus, in a recognizance taken in the supreme judicial court, un- 
 der Public Laws of 1867, c. 130, § 6, the condition provided not only 
 that the party respondent shall appear and answer to the complaint at 
 the court designated, but also that he "shall abide and perform the 
 order and judgment of the court that may be rendered therein, and 
 shall not depart without license ;" held, that the recognizance is suffi- 
 cient, and that the extra^statutory conditions may be rejected as sur- 
 plusage, lb. 
 
 5. One memorandum of recognizance returned by a magistrate 
 allowing an appeal may be filed by the clerk of the court to which the 
 appeal is taken without special authority from the judge, and it will 
 thereby become of record in the appellate court. Ingalls v. Chase, 
 68—113. 
 
 6. It can not be admitted that after having returned one memoran- 
 dum of recognizance which has regularly become of record, the mag- 
 istrate who allowed the appeal may, of his own motion or at the in- 
 stance of the attorney of one of the parties, without the permission of 
 some member of the court, substitute another, which shall supersede 
 the first and be entitled to superior faith and credit merely because it 
 is the last version of the matter which he has chosen to give. lb. 
 
 RECORD. 
 
 1. A dociket entry "continued as before," has the effect to continue 
 a case under like orders and stipulations as appeared by the entry at 
 the previous term. Marble v. McKenney, 60 — 332. 
 
 2. A clerk of court has, ex-officio, no right without an express order 
 of court to that effect, to complete, alter, or amend the record kept 
 by a predecessor in that office, whose term has expired. Rockland 
 W. P. Co. V. Pillsbury, 60—425. 
 
 3. If there be a failure to make record of a judgment, the party 
 desiring to have it recorded should present a petition to the court to 
 have this done, and give due notice to the adverse party. lb. 
 
 4. The account annexed to the writ is a part of the record, and 
 should be fully recorded. Piper v. Goodwin, 23 — 251. Bennett v. 
 Davis, 62—544. Baker v. Moor, 63—443. 
 
 5. When a judgment of the court in which the trial is had is offered 
 
480 EEFBKEE — ^EBFOEM SCHOOL — EEGISTEE OP DEEDS. 
 
 in evidence, it may be proved by the production of tlie record, or by 
 a certified copy. Sawyer v. Qarcelon, 63 — 25. 
 
 6. It is not necessary that such record be taken to the jury room as 
 its construction is for the court. lb. 
 
 7. When the record of a previous judgment is introduced in evi- 
 dence, the docket entries may be read to the jury if a more extended 
 record has not been made. State v. Neagle, 65 — 468. 
 
 See Practice, 124, p. 451. 
 Presumption, 18, p. 455. 
 School House. 
 Waivee, 25. 
 
 REFEREE. 
 
 When parties to a contract of a sale of logs mutually select a sur- 
 veyor to determine the quantity of each particular quality thereof, 
 who thereupon makes a survey and renders his certificate thereof, his 
 decision of the subject matter is, in the absence of fraud and unfair 
 practice by the party claiming to uphold it, conclusive upon the par- 
 ties. BaiUy V. Blanchard, 62 — 168. 
 
 REFORM SCHOOL. 
 
 1. The latter clause of § 5, c. 37, Public Laws of 1858, was not 
 repealed by c. 57, Public Laws of 1861. Jay v. Oray, 57 — 345. 
 
 2. Where a boy sentenced to the reform school, is actually received 
 there, it seems not important to inquire whether the alternative sen- 
 tence is legal or not ; so regarded in petition for habeas corpus to 
 obtain his release from the reform school. G' Malta v. Wentworth, 
 65—130. 
 
 3. A boy was sentenced to the reform school, and the execution of 
 the sentence suspended upon his good behavior, so that he was not 
 actually committed to the reform school until nearly a year after the 
 sentence was passed. Held, on petition for habeas corpus, that as all 
 sentences to the reform school are during minority, the delay only 
 made the imprisonment of the boy so much the shorter, and did not 
 render it illegal. lb. 
 
 REGISTER OF DEEDS. 
 
 See CoiirsTiTUTioNAL Law, 7, p. 103. Indictment, p. 288. 
 Mandamus, 11, p. 358. 
 
REGISTRY OP INSTRUMENTS — RELEASE. 481 
 
 REGISTRY OF IlsrSTRUMENTS. 
 
 1. A MOETGAGB ov A VESSEL, recorded agreeably to the laws of 
 the State, is valid before the vessel is enrolled, but after registry or 
 enrollment it will not continue to be valid against a purchaser for 
 value without notice thereof, unless recorded as required by the laws 
 of the United States. Perkins v. Emerson, 59 — 319. 
 
 2. Holmes' Note. The plaintiff sold a wagon, with the agree- 
 ment that it should remain his property until paid for, and received 
 part payment in cash, the property passing into the possession of the 
 vendee. Afterwards he informed the vendee that he wanted some- 
 thing to show how much was still due, and the vendee then gave him 
 his promissory note for the balance. Held, that, under the registry 
 law, the vender had no title as against an attaching creditor of the 
 vendee. JBoynton v. JLibby, 62 — 253. 
 
 3. Bill of Sale. A written instrument, by which personal prop- 
 erty is conveyed to a creditor of the owner, for the purpose of secur- 
 ing a debt of more than thirty dollars, must be recorded to be valid 
 against the creditors of the vender, he retaining possession, although 
 the terms of the condition are not expressed in the instrument, but 
 verbally agreed upon between the parties. Shaw v. Wilshire, 65 — 
 485. 
 
 4. Deed. When two parties claim under separate deeds from the 
 same grantor, if the grantee in the deed first given but last recorded 
 would postpone the deed last given but first recorded, to his own, he 
 must show that the grantee in the deed last given had actual knowl- 
 edge, when he received his deed, of the existence of the prior con- 
 veyance. Marshall v. Dunham, 66 — 539. 
 
 5. The same rule, as to the necessity of registration, in order to 
 give a priority of title, prevails between different assignees of a mort- 
 gage as between grantees in deeds. Willey v. Williamson, 68 — 71. 
 
 6. A record of a deed or levy of land described as part of lot 29 is 
 not constructive notice to subsequent purchasers that the deed or levy 
 was intended to cover lot 32, when the other particulars of the de- 
 scription are applicable as well to lot 29 as to lot 32. Jones v. IfcNar- 
 rin, 68—335. 
 
 7. An ASSIGNMENT of a contract, and of future earnings under it, 
 need not be recorded under chapter 93, Public Laws of 1876, requiring 
 assignments of wages to be recorded. Augur v. Couture, 68—427. 
 
 See Bankeuptcy, 19, p. 58. 
 Evidence, 195, p. 240. 
 Execution, 25, p. 253. 
 
 RELEASE. 
 
 1 . Where the payee of a negotiable note fraudulently indorsed it 
 before maturity, and without value, to the plaintiff for the purpose of 
 excluding any inquiry into the fraudulent inception or want of con- 
 sideration of the note, and by fraudulent devices concealed the true 
 31 
 
482 RELEASE — EEMAINDEE. 
 
 relations of the parties ; in an action of scire facias to obtain an alias 
 execution upon a judgment recovered by the indorsee against the 
 maker, the court ■would not set aside a release from the nominal plain- 
 tiff to the defendant. Atkinson v. Hunnells, 60 — 440. 
 
 2. A discharge under seal, not fraudulently obtained, by •which a 
 verdict for three hundred and fifty dollars is released for sixty-seven 
 dollars, during the pendency of a motion for a new trial, is not invalid 
 for inadequacy of consideration. Staples v. Wellington, 62 — 9. 
 
 REMAINDER. 
 
 1. A testator, after devising his property to his wife during her 
 natural life, continued, "after the death of my wife it is my wiU that 
 my son Reuel have all the property, both real and personal, which may 
 then remain, by paying out" certain bequests. The wife survived 
 the son who died without paying any of the bequests. As to the real 
 estate, held, that by the will the son took a vested remainder, liable 
 only to be divested by non-payment of the legacies, as a condition sub- 
 sequent, and by an actual entry on the part of the legatees entitled to 
 claim a forfeiture. Leighton v. Leighton, 58 — 63. See also Verrill 
 V. Weymouth, 68—318. 
 
 2. Certain land was conveyed in 1845, by John Randall to Margaret 
 Read, "for her use and benefit during her lifetime, and after her decease 
 to her legal heirs, to them and their heirs and assigns forever." Mar- 
 garet Read had two children, Alvah J. Read, and Margaret J., who inter- 
 married with Oliver E. Randall in 1856. In 1861 a warranty deed of 
 the land to John Carville, was executed by Margaret Read and her 
 husband, her daughter Margaret J. Randall and her husband, and by 
 Alvah J. Read and his wife. The title of Carville came to the 
 respondents. Alvah J. Read died in 1861, and Margaret Read in 
 1866. Meld, (R. S., 1871, c. 73, § 8,) that Alvah J. Read's deed would 
 pass his interest in the farm subject to the contingency of his surviv- 
 ing his mother, which he did not do, and hence, his heir, the petitioner, 
 would take his half directly under John Randall's deed, and the only 
 remedy of the grantee would be upon the covenants of Alvah J. 
 Bead v. Hilton, 68—139. 
 
 8. But the estate of Margaret J. Randall was perfected by the hap- 
 pening of the contingency, and the respondents are entitled to her 
 rights which by force of the statute she might lawfully convey when 
 she did convey them, subject only to the contingency which in her 
 case fell out favorably for her grantee. lb. 
 
 4. Not only did Margaret J. Randall have a contingent remainder 
 or an expectant estate in the premises which she might lawfully con- 
 vey subject to the contingency, by force of the statute, but the title in 
 her was acquired only by force of John Randall's deed and existed 
 long before the deed to Carville. lb. 
 
 5. Nor could she claim any thing as heir of her mother whose title 
 had passed to Carville. What was before a contingent remainder 
 became a fee-simple in Margaret J. Randall, or her assigns, on the 
 death of her mother, but the source of the title was not changed, lb. 
 
EBPLEVIN. 483 
 
 6. By R. S., 1871, c. 104, § 23,..iniprovements made by a tenant for 
 life, or assignee, who, after the termination of the life estate, becomes 
 a tenant in common, do not, after the termination of the life estate 
 become the common inheritance of the remainder men, but the tenant 
 is entitled to their benefit. Read v. JRead, 68 — 568. 
 See Devisee and Legacy, p. 178. 
 Limitations, 47, p. 353. 
 
 REPLEVIlsr. 
 
 I. BY AND AGAINST WHOM REPLEVIN MAY BE MAINTAINED. 
 II. BOND AND DAMAGES THEEEON. 
 
 III. JUDGMENT FOR RETURN. 
 
 IV. PLEADING AND EVIDENCE. 
 
 1. BY AND AGAINST WHOM REPLEVIN MAY BE MAIN- 
 TAINED. 
 
 1. One tenant in common cannot maintain replevin for the com- 
 mon property against his co-tenant. Witham v. Witham, 57 — 447. 
 
 2. By virtue of R. S., c. 81, § 42, a moetgagee or pledgee of prop- 
 erty attached, cannot replevy it from the attaching officer, until he 
 has given the officer "at least forty-eight hours' written notice of the 
 claim and the true amount thereof." Fairfield JB. Go. v. Nye, 60 — 
 872. 
 
 3. No previous demand upon a bona fide purchaser of a chattel, 
 from one who had no authority to sell, is necessary to enable the true 
 owner to maintain replevin. Prime v. Cohh, 63 — 200. 
 
 4. A sale by a mortgager in possession is such a repudiation by the 
 possessor of the mortgagee's paramount rights as to make a demand 
 upon the vendee by the mortgagee unnecessary, before bringing 
 replevin. Lewis v. Smart, 67 — 206. 
 
 5. Taking. It is not always necessary to prove a taking of the 
 goods since the action may be maintained against a bailee by proof of 
 an unlawful detention. Mamsdell v. Suswell, 54 — 546. Douglass v. 
 Gardner, 63—462. 
 
 6. Peopeett attached. The owner of goods which are attached 
 as the property of another may maintain replevin against the keeper 
 appointed by the attaching officer. Douglass v. Gardner, 63 — 462. 
 
 7. Where replevin is brought by one who claims the property by 
 an absolute bill of sale from the person as whose property it is 
 attached, and is against the keeper placed in charge of the goods by 
 the attaching officer, it seems that although the conveyance was 
 intended as collateral security for a loan, no previous notice of the 
 claim and amount due thereon is necessary. Ih. 
 
 8. The plaintiff, the owner of the wagon in suit, exchanged it with 
 one C. for another wagon and some money, receiving the wagon and 
 the money and agreeing to deliver his wagon to C. in two weeks. 
 Before that time the wagon the plaintiff received was taken from him 
 
484 KEPLEVIN. 
 
 Upon a replevin -writ. The wagon in suit having been removed to the 
 defendant's shop the plaintiff replevied it, but the title having passed 
 to C, he was nonsuited. Marson v. Plummer, 64 — 315. 
 
 9. Replevin can not be maintained by one partner for co-partner- 
 ship goods in the hands of an officer under an attachment of another 
 partner's interest therein. Hacker v. Johnson, 66 — 21. 
 
 10. As a general rule replevin does not lie by one partner against 
 another for the partnership goods. Crabtree v. Glapham, 67 — 326. 
 
 11. A sale on mesne process of the personal property of a stranger 
 to the process, conveys no title to the vendee, and the real owner may 
 replevy it from the purchaser, after it has come into his possession. 
 
 Coombs V. Gordon, 59 — 111. 
 
 II. BOND AND DAMAGES THEREON. 
 
 12. A replevin bond, not in double the value of the goods to be 
 replevied, but with the condition in the usual form of such bond, and 
 such as is prescribed by statute, holds the obligors to fulfil the judg- 
 ment in the replevin suit, and all the obligations legally resulting 
 therefrom. Tuck v. Moses, 58 — 461. 
 
 13. In an action upon a replevin bond, it is competent for the de- 
 fendants to show in mitigation of damages, that since the taking by 
 the replevin writ, the plaintiff's interest in whole or in part has ceased 
 to exist, the actual damages to the plaintiff, or those he represents 
 being the simple question involved. lb. 
 
 14. A defendant in replevin is entitled to the value of the prop- 
 erty replevied at the time of rendition of judgment for a return. lb. 
 
 15. A large quantity of wood having been replevied from an attach- 
 ing officer, the actions in which the attachments were made proceeded 
 to judgment and execution, and the full value of the wood was in- 
 sufficient to satisfy the executions. The replevin writ was abated 
 because the replevin bond was not "in double the value of the goods 
 to be replevied ; " but it was good at common law, and "conditioned 
 as in the prescribed form of the writ." Judgment was thereupon 
 rendered for a return, but not complied with. In an action upon the 
 bond, Tield, that the market value of the wood having increased since 
 it was replevied, the defendants were liable, (1) for the value of the 
 wood at the date of the judgment for return, with interest at six per 
 cent from the date of that judgment to the date of the judgment on 
 the bond ; (2) the cost in the replevin suit with interest for the same 
 time ; and (3) for^a sum equal to twelve per cent on the value of the 
 wood, when replevied from the date of the judgment in the suit in 
 which it was attached, to the date of the judgment for return, lb. 
 
 15. If a nonsuit is ordered in a replevin suit, without any assess- 
 ment of damages for the defendant, and the goods are not returned, 
 the damages are to be assessed in a suit upon the bond, the same as 
 though a verdict had been rendered when the nonsuit was ordered. 
 
 Washington Ice Go. v. Webster, 62 — 341. 
 
 16. In a replevin suit, if there is judgment for a return, and the 
 damages for the detention are not assessed at the trial, if the goods 
 are returned in like good condition as when taken, and the costs are 
 paid, the defendant has no further remedy on his bond. lb. 
 
 17. The defendant in replevin is not bound by the valuation of the 
 
EEPLBVIN. 485 
 
 property in the -writ, but in a suit upon the bond, may show the valu- 
 ation too low, and recover the actual valuation of the property taken 
 from him. Ih. 
 
 18. When a partner fails in a replevin suit against an oflB.cer who 
 has attached the partnership goods on a writ against another partner, 
 it seems that in a suit upon the replevin bond, it may be shown in 
 defense that the firm was insolvent and that the goods were sold by 
 the plaintiff in replevin, and the proceeds, applied to the payment of 
 the partnership debts. Hacker v. Johnson, 66 — 21. 
 
 See Abatement, 15, p. 3. 
 Damages, p. 145. 
 
 III. JUDGMENT FOE KETUKN. 
 
 19. Entet. "When an action of replevin, in which the pleadings 
 put in issue the title of the plaintiff, is submitted to the law court on 
 report of the evidence, the clerk of the court in the county where 
 the action is pending, may, upon receipt of the certificate, "plaintiff 
 nonsuit," rightfully. enter up judgment for a return of the property 
 replevied. Hoeffner v. Stratton, 57 — 360. 
 
 20. Co-TBifAiirTS. Where the plaintiff fails to maintain an action 
 of replevin, for the reason that the parties are co-tenants of the prop- 
 erty, the defendant is entitled to judgment for return. Witham 
 V. Witham, 57 — 447. 
 
 21. NoNSOTT. Where the defendant in replevin pleads property in 
 himself, and prays for a return, and no motion adverse to such re- 
 turn is filed, if upon the evidence a nonsuit is entered, the order for 
 a return is rightfully made a part of the judgment consequent on such 
 nonsuit. Washington Ice Co. v. Webster, 68 — 449. 
 
 22. Effect. Judgment for a return in a replevin suit is conclu- 
 sive between the parties. It involves an adjudication, upon the mer- 
 its of the question at issue, and does not, as a matter of course, follow 
 the previous result of the suit. Tuck v. Moses, 58 — 461. 
 
 23. Pinal judgment in an action of replevin is not rendered un- 
 til the question of return is disposed of, notwithstanding the writ is 
 al)ated at one term, and judgment is rendered at another, to which 
 the action is continued upon the motion for a return. lb. 
 
 24. Actions between Paetnees. When the interest of one part- 
 ner in the co-partnership goods is attached, and the officer takes pos- 
 session of the goods, and in replevin for the goods by another partner 
 against the ofiicer a nonsuit is ordered, the defendant is entitled to 
 an order for a return. Hacker v. Johnson, 66 — 21 . 
 
 25. The right of the defendant to an order for a return, can not be 
 prevented by proof that the firm was insolvent, and that the goods 
 replevied were sold by the plaintiff and the proceeds applied to the 
 payment of the debts of the firm. lb. 
 
 26. And when one co-partner replevies the partnership goods from 
 another co-partner, and becomes nonsuit, the defendant is entitled to 
 a return. Grabtree v. Clapham, 67 — 326. 
 
 27. In replevin by one partner against another for co-partnership 
 property, when the plaintiff becomes nonsuit, the measure of damages 
 for the detention should be in proportion to the extent of the defend- 
 ant's ownership in the property replevied. lb. 
 
486 REPLEVIN. 
 
 28. Damages. The plaintiff in replevin is bound by the value he 
 puts upon the property in his writ, it is otherwise with the defend- 
 ant. Tuck V. Moses, 58 — 461. Washington Ice Co. v. Webster, 62 
 ^341. 
 
 29. If a nonsuit is ordered in a replevin suit, the defendant has the 
 right to have the damages to that time assessed by a jury. Wash- 
 ington Ice Go. V. Webster, 62 — 341. 
 
 30. In a replevin suit, Avtere there is a judgment for a return, and 
 the defendant is the owner of the goods, the expense of procuring 
 teams for the purpose of removing them, which were rendered useless 
 by the wrongful suing out of the replevin writ, may become a por- 
 tion of the damages. lb. 
 
 31. But damages arising from the possible loss of customers, are 
 too indefinite, remote and contingent to be considered. 1 b. 
 
 32. The damages for the detention may exceed the interest upon the 
 value of the property replevied, as in case of the replevin of a horse 
 or oxen, the defendant is entitled to the value of their use, or for 
 what their service in use would be worth. Washington Ice Go. v. 
 
 Webster, 62—341. Grabtree v. Clapham, 67—326. 
 
 33. CoMPLAiM'T FOE CosTS. If an officer takes property by authority 
 of a writ of replevin without the statute bond, but does n9t complete 
 the service by summoning the defendant, and the writ is not entered, 
 the defendant can not, by filing a complaint, obtain an order requir- 
 ing the plaintiff to file a copy of the writ, and a judgment for a 
 return of the property, or for costs. Adams v. Mc Glinchy, 62 — 533. 
 
 IV. PLEADING AND EVIDENCE. 
 
 84. In replevin, a plea of non cepit alone does not deny the plain- 
 tiff's title to the chattels replevied. Pope v. Jackson, 65 — 162. lewis 
 V. Smart, 67—206. 
 
 35. And when such plea is accompanied by a brief statement alleg- 
 ing property in the defendant, the burden is on the defendant to 
 sustain his affirmative allegation. 1 b. 
 
 36. But when the brief statement alleges title in the defendant, and 
 not in the plaintiff, the burden is on the plaintiff to prove his title. 
 lb. 
 
 37. If the defendant pleads merely that he did not take the goods 
 he thereby admits the property to be in the plaintiff, and he thereby 
 throws upon the plaintiff the burden of showing only that he wrong- 
 fully took, or wrongfully detained the goods at the place alleged. 
 lewis V. Smart, 67 — 206. 
 
 38. But if, by his pleadings, he avows the taking, and justifies it on 
 the ground that the goods belong, not to the plaintiff, but to himself 
 or to some third person whose bailiff he is, and so demands a return, 
 the question is as to the property and right of possession of the plain- 
 tiff, and the burden upon the plaintiff is to establish only these. lb. 
 
 39. When the original taking by the defendant was lawful, if he 
 plead property in himself, it is not necessary for the plaintiff to prove 
 a demand prior to suing out the writ of replevin. lb. 
 
 40. The plaintiff's attorney testified that he went with an officer to 
 the defendant's house, took the writ from the officer, demanded the 
 articles replevied, which were refused, then handed the same to the 
 
EESPONDBAT SUPERIOR — REVENUE — REVIEW. 487 
 
 officer by whom the service was made. Held, that, if the writ was 
 made provisionally, to be used only in case of refusal by the defend- 
 ant to deliver the property upon demand, it might not, it seems, be 
 regarded as prematurely brought. G'Neil v. Bailey, 68 — 429. See 
 Wehher v. Read, 65—564. 
 
 RESPONDEAT SUPERIOR. 
 
 See Insurance, 60, p. 307. Master and Servant, p. 361. 
 
 Mortgage, 12, p. 371 ; 24, p. 372. Negligence, 
 
 12, p. 385. Railroad, 47, p. 467 ; 67, 
 
 p. 469. Shipping, 20. 
 
 REVENUE. 
 
 1. An instrument, not stamped as required by act of Congress, is 
 admissible in evidence, when the omission is without fraudulent intent. 
 Emery v. Hohson, 63 — 33. Dela v. Stanwood, 61 — 51. Sawyer v. 
 Parker, 57—39. 
 
 2. A license to individuals will not protect partnership transactions, 
 nor will a license to a firm protect the several members in their indi- 
 vidual business. Harding v. Hagar, 68 — 515. 
 
 3. In August, 1866, the owner of a horse in Canaan, Vermont, took 
 him one and one-half miles into Canada, to a race, where he kept 
 him six weeks, when he returned with the horse to Canaan without 
 having entered him at the custom house, either in going or returning. 
 In the following November, the owner, without informing him that 
 he was a Canadian horse, sold him to the defendant, who, in the fol- 
 lowing June, sold him in good faith, without knowing he was smug- 
 gled or claimed as a smuggled horse, to the plaintiff. In August, 
 1867, the horse was seized and taken from the plaintiff by a U. S. 
 revenue officer, and, after due proceedings, sold in September. In 
 assumpsit brought Aug. 31, 1867, held, (1) that the horse having been 
 brought into the U. S. in violation of the revenue laws, became for- 
 feited by that act ; and (2) that the plaintiff is entitled to recover of 
 the defendant the value of the horse at the time of the seizure. Knee- 
 land y. Willard, 59 — 445. 
 
 REVIEW. 
 
 I. WHEN" A REVIEW WILL OR WILL NOT BE GRANTED. 
 U. PROCEEDINGS. 
 
 L WHEN A REVIEW WILL OR WILL NOT BE GRANTED. 
 1 . Real Action. If the demandant in a real action, after verdict 
 
488 REVIEW. 
 
 in his favor but before judgment, convey the land in controversy to 
 a third person, such conveyance will not entitle the defendant to de- 
 feat the judgment by a writ of review. Berry v. Whitaker, 58 — 422. 
 
 2. An ADMiNisTEATOK can not prosecute a writ of review in a real 
 action not brought to foreclose a mortgage. H. 
 
 3. Rbpoet or Rbfeeees. A review may be granted of a judg- 
 ment upon a report of referees, in an action referred to them by rule 
 of court, although no other matters in dispute between the parties 
 were included in the rule. Oooding v. Baker, 60 — 52. 
 
 4. Judgment for too much. Where a debtor has paid certain 
 items of his creditor's account, and the creditor subsequently takes 
 judgment for the full amount of the original account, the debtor can- 
 not recover back the amount thus paid and wrongfully included in 
 the judgment, his remedy being review. Sagar v. Springer, 60 — 
 436. 
 
 5. To PUT IN Testimony. A review will not be granted to enable 
 a party to put in testimony which either was, or might, with reason- 
 able diligence, have been within his knowledge and reach at the trial 
 of the original suit, and was either wilfully suppressed, or negligently 
 omitted. ToddY. Chipman, 62 — 189. 
 
 6. Nor will a review be granted to let in additional testimony 
 when such testimony would not be likely to change the result, nor 
 when the court perceive no probability that injustice was done. lb. 
 
 7. Mistake of Counsel. A review will be granted where the 
 petitioner, one of several defendants in the original action, having a 
 good defense (as bankruptcy), was defaulted, because his counsel 
 failed to appear for him in defense, although requested, from the mis- 
 taken supposition that the counsel for the other defendants also ap- 
 peared for the petitioner. ShurtleffY. Thompson, &i — 118. 
 
 8. Divorce. Where a husband obtains a divorce upon his own 
 libel, which contains no mention of his wife's dower or alimony, and 
 no decree is made on that subject, the wife can not review the pro- 
 ceedings so far as alimony, allowance, and dower is concerned. Seii^ 
 derson v. Henderson, 64 — 419. 
 
 9. A petition by a defendant in a suit for a review of a judgment 
 against him, not because the verdict is wrong, or is expected to be 
 reversed by the review prayed for, but to give the petitioner time to 
 recover judgment in a suit commenced by him against the plaintiff, 
 so that the judgments may be set off against each other, can not be 
 sustained. Pierce v. Bent, 67 — 404. 
 
 10. The fact that the defendant in a suit, requested the law court 
 to order the judgment which might be rendered against him, to be 
 rendered in term time, but judgment was rendered in vacation and ex- 
 ecution issued, does not make it appear that justice has not been done 
 through accident or mistake. lb. 
 
 II. PROCEEDINGS. 
 
 11. A petition for a writ of review is to be served and entered as 
 an independent proceeding. If the writ be granted the order is 
 entered under the entry of the petition, and further proceedings un- 
 der the petition are ended. The writ can not be sued out until final 
 judgment on the petition. The writ of review should be sued out at 
 
REVIEW— EIOT. 489 
 
 the next term after final judgment on the petition, entered as a new 
 action, and the case heard on that writ under the old pleadings. 
 Bradstreet v. Partridge, 59 — 155. 
 
 12. There must be a final disposition of the petition for review 
 before the writ can issue. Bradstreet v. Partridge, 61 — 335. 
 
 13. Bond. After denial of a petition for review a suit can be 
 maintained on a bond, filed with such petition, to obtain stay of exe- 
 cution on the judgment recovered in the action sought to be reviewed, 
 although, before suit is brought, a new petition for review, and a new 
 bond for the same purpose as the previous one has been filed, and a 
 stay of execution ordered. Kenney v. Burke, 61 — 134. 
 
 14. Upon a bond given for a supersedeas on petition for review, 
 conditioned to pay the amount of the debt and costs if the petition is 
 denied, or the amount of the final judgment on review, if it is granted, 
 "with interest thereon at the rate of twelve per cent," the interest is 
 not to be computed upon the costs of review, but upon the debt and 
 costs first recovered, unless reduced. Whitaker v. Berry, 64 — 236. 
 
 15. In cases where a party is not entitled as of right to a review, it 
 may be granted upon such conditions imposed upon the party seeking 
 it as the court may consider reasonable. Austin v. Dunham, 65 — 
 533. 
 
 16. A review may be granted to a party who has become insane 
 and been placed under guardianship, upon the condition that the 
 petitioner will stipulate that no objection shall be made to the re- 
 spondent's testifying generally upon the trial of the case in review, lb. 
 
 17. And when the review is granted upon such stipulation made, 
 it is binding upon the legal representative of the petitioner, after his 
 decease. lb. 
 
 18. If the plaintiff fails to enter a writ of review at the next term 
 after it is granted, the court has power, in its discretion, to allow it 
 to be entered at the second term. Iiook v. Ramsdell, 68 — 479. 
 
 See Pleading, 78, p. 432. 
 
 RIOT. 
 
 1. In an action against a town to recover three-fourths of the value 
 of a porgy oil factory, destroyed by a mob, (R. S., 1871, c. 123, § 8,) 
 the persons causing its destruction being unknown, it is no defense 
 that strong and offensive odors arose from the factory, and that it 
 was a public nuisance. Brightman v. Bristol, 65 — 426. 
 
 2. Nor that a stationary steam engine was used in the building 
 without a license from the municipal oflicers of the town. lb. 
 
 3. Nor, if the plaintiffs have used all reasonable diligence to dis- 
 cover the offenders, in good faith, and for the purpose of convicting 
 them, and communicated such evidence and facts as they discovered, 
 or were known, to the officer whose duty it was to prosecute (county 
 attorney) and were ready to follow his suggestions, and did so act, 
 even though they made no complaint to the grand jury, is it necessary 
 that they should furnish such evidence to the municipal officers of 
 the town. lb. 
 
490 BTJLES OF COURT — SAiART — SALE. 
 
 KIPARIAN PROPRIETORS. 
 
 See Watbb Cotjeses. 
 
 RULES OF COURT. 
 
 ADDiTioiiTAL Rule iis^ Chancery, vol. 59 — 605. See Equity, 
 144, p. 210. Peactice. 
 
 SALARY. 
 
 1. When the salary of a public officer is diminished during his 
 official term the dimiauation is prospective only. Fa/rwell v. Rock- 
 land, 62—296. 
 
 2. The authority which establishes the compensation of a public 
 officer may increase or diminish it, unless there is a constitutional 
 provision to the contrary. lb. 
 
 3. When it is the legal duty of a municipal corporation to pay the 
 salary of a public officer the latter may maintain assumpsit to enforce 
 performance of the duty. Ih. 
 
 See Ofpicbe, 9, p. 398. 
 
 
 SALE. 
 
 I. 
 
 WHAT MAT BE SOLD. 
 
 II. 
 
 DELIVERY. 
 
 III. 
 
 CONSTRUCTION. 
 
 
 (a) Conditional sales. 
 
 
 (b) "When pbopbrtt passes. 
 
 
 (o) Validity or sales. 
 
 
 (d) W ABB ANT Y. 
 
 IV. 
 
 "WHEN VOIDABLE. 
 
 V. 
 
 EE-SALE. 
 
 VI. 
 
 SALE UNDER LEGAL PROCESS. 
 
 VII. 
 
 GENERALLY. 
 
 I. WHAT MAT BE SOLD. 
 
 1. A thing may be sold or mortgaged which has only a potential 
 existence at the time, if it is specific, identified, and the vender or 
 mortgager has a present actual interest in it, or concerning it. Far- 
 rar v. Smith, 64 — 74. Emerson v. European & N. A. JR. R. Co., 
 67—387. 
 
 2. Example. Manure, not in existence at the time of the sale, but 
 
SALE. 491 
 
 to be made within a specified time, at a specified place, and by the 
 particular animals then owned and possessed by the vender, may be 
 legally sold. Farrar v. Smith, 64 — 74. 
 
 3. A person can not sell the products of a field which he does not 
 own at the time of the sale but which he expects to own. lb. 
 
 4. A man can not sell that which he does not have. Emerson v. 
 European & N. A. R. B. Co., 67—387. 
 
 5. Although he may sell property of which he is potentially but not 
 actually possessed, the thing sold must be specific and identified. lb. 
 
 6. He may make a valid sale of the wine that a vineyard is expected 
 to produce, or the grain a field may grow in a given time, but the 
 vineyard or the field must be his at the time of the sale. lb. Post, 41. 
 
 II. DELIVERY. 
 
 7. A SYMBOLICAL delivery of large quantities of logs, landed on a 
 stream preparatory to driving, is sufficient. Bethel Steam Mill Co. 
 V. Brown, hi — 9. 
 
 8. And a survey of such logs by a person mutually agreed upon by 
 the parties to the sale, and the putting thereon by the vender the 
 vendee's mark as they are thus landed, constitute a sufficient delivery 
 even as against subsequent purchasers, although by the terms of the 
 contract of sale the vender is bound to deliver the logs at a specified 
 place many miles below the landing. lb. 
 
 9. A transfer of an elevator order, with notice thereof to the eleva- 
 tor company, and a partial delivery of the grain, is sufficient to trans- 
 fer the property in the whole. Warren v. Milliken, 57 — 97. 
 
 10. On April 30, 1868, the plaintiff by his agent verbally negotiated 
 with the defendant to sell to the latter 170 barrels and six half-barrels 
 of mackerel, at a specified price, and being all the mackerel stored in 
 agent's store-house. On May 1st, following, the defendant paid the 
 plaintiff's agent $600, and received a written paper reciting the re- 
 ceipt of "S600 on account of mackerel in store No. 10, Long Wharf, 
 at the purchaser's risk as regards fire." The next day the defendant 
 caused each barrel to be examined by a cooper who refilled with 
 pickle such as needed it, and found two in which the fish had rusted, 
 which were subsequently excepted and carried away by the plaintiff's 
 agent. On or before May 9th, the defendant had paid $2,900 on 
 account of the mackerel. During the night of May 9th, fifty barrels 
 were stolen. Subsequently and at different times the remaining bar- 
 rels were taken away by the defendant. Held, that the sale was com- 
 plete, and that the loss of the mackerel stolen fell upon the vendee. 
 Chase V. Willard, 57—157. 
 
 11. Against Cebditobs, oe Subsbquent Purchasers. Although 
 the rule which requires a delivery to a bona fide purchaser, who has 
 paid the price for personal property, as against a second purchaser, 
 or attaching creditor, has been liberally construed, it has not been 
 abrogated and some evidence of a delivery is required. McKee v. 
 Qa/rcelon, 60 — 165. Farrar v. Smith, 64 — 74. 
 
 12. A husband, having purchased some neat stock with money lent 
 him by his wife for the purpose, and put it upon a farm carried on by 
 him and on which she resided with him, thereupon for the purpose of 
 repaying her for the money conveyed to her the stock by an absolute 
 
492 SALE. 
 
 bill of sale which he delivered to her, and which she ever after 
 retained. No other delivery of the stock was made, and it remained 
 and was used on the farm as before. Three months thereafter, the 
 defendant, as an officer, attached some of the stock on a writ against 
 the husband. In replevin by the wife, field, that there was no suffi- 
 cient delivery of^the stock from the husband to the wife. McKee v. 
 Garcelon, 60 — ^165. j 
 
 13. Also, held, that notice of the sale to the officer holding the 
 writ, before service, uncommunicated to the attaching creditor, was not 
 notiQB to the latter, lb. 
 
 14. On Nov. 13, 1869, A. contracted with the plaintiff bridge com- 
 pany, to furnish materials and build two granite piers of Hallowell 
 granite, according to certain specifications, for fourteen dollars per 
 cubic yard, five hundred dollars to be paid down, and five hundred 
 dollars monthly, until the piers shall be completed and accepted, when 
 the balance is to be paid, and all to be completed before the following 
 spring freshets. Thereupon A. procured the blocks of granite, hauled 
 them upon land leased by him near the contemplated location of the 
 bridge, and commenced dressing and fashioning them. The plaintiffs 
 duly paid the first four instalments, and before the next one became 
 due, and before any of the granite was placed in the pi«rs, it was 
 attached by A.'s creditor. In replevin by the bridge company, held, 
 that the plaintiffs, acquired no title by virtue of the contract and the 
 payments made, or any rights or interest in the granite as against the 
 attaching creditor. Fairfield B. Co. v. Nye, 60 — 372. 
 
 15. Also, held, that the bridge company could not hold the stone as 
 against the attaching creditor by virtue of an absolute bill of sale 
 thereof from A. to the company, the consideration of which was the 
 four payments made in accordance with the terms of the original con- 
 tract, lb. 
 
 16. When a bill of sale of personal property is given, there must 
 be actual or symbolical delivery, as between the vendee and subse- 
 quent purchasers or attaching erfeditors. lb. 
 
 17. In case of a sale of a specific quantity of an article, as grain, 
 from a larger bulk, the separation and delivery of a part of the spec- 
 ified quantity, does not vest in the vendee the title to any portion of 
 the bulk not separated and delivered. Morrison v. Dinghy, 63 — 553. 
 
 18. But where the owner of grain in bulk sold a certain number of 
 bushels therefrom, and received his pay, and the vendee took away a 
 portion, it was held, that the property in the part sold, but not sepa- 
 rated from the heap, passed to the vendee. Probably upon the prin- 
 ciple that the vender became the bailee of the purchaser. lb. 
 
 19. If goods be sold by number, weight or measure, the sale is 
 incomplete until the specific property be separated and identified. lb. 
 
 See Post, 41. 
 
 Feauds, Statute of, 9, p. 279. 
 Law and Fact, 18, p. 340. 
 
 III. COKSTEUCTION. 
 
 (a) Conditional sales. 
 
 (b) When pbopebtt passes. 
 
 (c) Validity of sale. 
 
 (d) Wabbantt. 
 
SALE. 493 
 
 (a) Conditional sales. 
 
 20. The plaintiffs, merchants in Boston, through a broker, on July 
 5th, sold for cash a lot of flour which they shipped to the vendees in 
 Portland two days after, and on the 8th of July forwarded a bill with 
 "terms cash" printed thereon. On the 10th of July, one of the plain- 
 tiffs went to Portland, and ascertaining the vendees had failed, and 
 that the flour had been attached, replevied it from the attaching offi- 
 cer. Held, that by the lex loci, the sale was upon condition of pay- 
 ment on cash upon delivery ; and that the action was maintainable 
 without previous demand. Stone v. Perry, 60 — 48. 
 
 21. Possession. When a note is given for personal property pur- 
 chased, in which it is stipulated that the title to the property shall 
 remain in the payee until the note is paid, the payee is entitled (in 
 the absence of any agreement to the contrary) to the possession 
 before the expiration of the term of credit. Bunker v. McKenney, 
 63—529. 
 
 22. Nor will an extension of the time of paymerit by the payee 
 interfere with his right of possession. lb. 
 
 23. Sample. When a sale of merchandise is made by sample, and 
 delivered to the vendee upon the condition that if when received it 
 shall be found to agi-ee with the sample, the vendee shall give the 
 vender a note for the price, the giving of the note is a condition 
 precedent, and until that is done or waived, the title does not pass 
 from the vender. Sneed v. Lord, 66 — 580. 
 
 24. Where the vendee, after receiving the merchandise, became 
 insolvent, and wrote to the venders informing them of his inability to 
 pay, but not sending the note or mentioning it, it was held, that this 
 inforination must be regarded as notice that the vendee had decided 
 not to give the note, and for the purpose of enabling the creditor to 
 resume possession of his property, and that after the creditor had 
 obtained possession, but had been prevented from removing the prop- 
 erty by the purchaser, the latter did not, by sending the note for the 
 price to the vender, obtain any title to the property. Ih. 
 
 25. Right to RBTtrEH^. When one receives goods and chattels of 
 another on a contract, by which he has a right to return them or pay 
 a stipulated price therefor, the property passes and he is regarded as 
 the purchaser. Frye v. Burdick, 67 — 411. 
 
 26. But where the defendant received property of the plaintiff and 
 gave him a receipt therefor, describing the property, stating its value, 
 and containing a promise to keep it in good order and condition and 
 "return it at the end of two years, unless paid for," the defendant 
 was not regarded as the bailee of the property, but the purchaser. Ih. 
 
 27. Second Sale by Vender. When property is sold upon con- 
 dition that the title is to remain in the vender until paid for, it may be 
 sold by the vender any time before it is completely paid for. Part 
 payment by the vendee will not prevent the vender from giving a 
 good title to a third party. Everett v. Hall, 67 — 497. 
 
 28. A. purchased a shingle machine, giving the seller a mortgage 
 on the machine to secure the purchase money. On the day of ttft 
 purchase, before the mortgage was recorded, A. sold the machine to 
 the defendant under an agreement that the title should remain in A. 
 until the machine was paid for, the defendant taking and keeping pos- 
 
494 SALE. 
 
 session. Before the mortgage was recorded the defendant paid A. 
 something toward the machine, and after its record paid the balance. 
 Held, that the title was in the assignee of the mortgage, and that he 
 could recover its fuU value in trover. lb, 
 
 29. Whether the defendant would have any remedy in equity, for 
 his advances made before the record of the mortgage, quaere. lb. 
 
 (b) When property passes. 
 
 30. If it be agreed that goods sold shall be hauled by the vender to 
 a place specified, it does not necessarily follow that the title thereto 
 does not pass till they reach the place designated. The property may 
 pass so as to take the case out of the statute of frauds, at the time 
 the agreement is made, if the parties so intend ; and whether or not 
 such was their intention, in any given case, is a question for the jury, 
 to be determined from the words, acts, and conduct of the parties, and 
 all the circumstances. Dyer v. Ziibby, 61 — 45. 
 
 31. A building was sold and paid for, to be removed by a day des- 
 ignated, but was not so removed ; held, that the vendee did not there- 
 by forfeit his title thereto, but only became liable to his vender for 
 the damages occasioned by its continuance upon the land after the 
 date fixed and in moving it subsequently, to the time agreed upon 
 therefor. Davis v. Emery, 61 — 140. 
 
 See Ante. 
 
 Paetneeship, 33, p. 408. 
 
 (c) Validity of sale. 
 
 32. A master may sell the whole or a part of a vessel according to 
 his authority. Gates v. Thompson, 57—442. , 
 
 33. The sale, by the master, of such parts of a vessel as belong to 
 part-owners who were not, but might have been, notified by telegraph 
 in season to act in the premises before the sale, is void. Miller v. 
 Thompson, 60—322. 
 
 34. Thus a vessel went ashore on one of the "Wolves" in the Prov- 
 ince of New Brunswick, on the morning of July 6, and the master, 
 leaving her in charge of the mate, arrived at noon of the same day in 
 Eastport. Between Eastport and New York there was constant tele- 
 graphic communication, and a telegram sent by the master on his 
 arrival in Eastport to the plaintiffs resident in New York, would, in 
 the usual course of business, have received an answer several hours 
 before the sale, which took place in the afternoon of the next day. 
 Held, that the sale was void. lb. 
 
 35. A COMMISSION MEECHANT who sells and delivers property, 
 intrusted to him for sale, before notice of a revocation of his authority, 
 is not liable in trover for making such sale. Jones v. Hodgkins, 61 — 
 480. 
 
 36. The bona fide purchaser under such sale and delivery acquires 
 thereby a good title as against a prior purchaser from the consignor 
 without delivery. II). 
 
 a7. Survey. When the parties to a contract for the cutting and 
 hauling, or sale, of logs mutually agree upon a person to survey them, 
 and determine the quantity of each particular quality thereof, the 
 
SAx,B. 495 
 
 scale made by such person is binding and conclusive upon the parties 
 in the absence of fraud or unfair practices by the party seeking to 
 uphold it. Bailey v. Blanchard, 62 — 168. 
 
 38. If the surveyor selected does not scale all the logs his scale is 
 nevertheless conclusive as far as it goes. lb. 
 
 39. The scale bill made by such person and submitted to the parties 
 is admissible in evidence in an action between the parties, although 
 the surveyor is not a sworn oflScer, and is not offered as a witness. Ih. 
 
 40. The plaintiff having agreed upon a sale to the defendant of 
 several bundles of unbranded pressed hay, an Ulegal contract by stat- 
 ute, delivered a number of bales, when a dispute arose as to the qual- 
 ity, and the plaintiff declared that if the defendant would not take 
 the lot he should not have any, and thereupon sold to one G. the 
 whole lot, but did not deliver to him or receive pay for the bales in 
 the possession of the defendant. Held, that the title to the hay in 
 the possession of the defendant did not pass to G. Foye v. Southard, 
 64—389. 
 
 41. Ftjturb DeliVeet. A contract for the sale and purchase of 
 wheat to be delivered in good faith at a future time is not illegal. 
 Mumsey v. Berry, 65 — 570. 
 
 42. But a contract entered into without an intention of having any 
 wheat pass from one party to the other, but with an understanding 
 that at the appointed time the purchaser is merely to receive or pay 
 the difference between the contract and market price, can not be sus- 
 tained, lb. 
 
 43. No action can be maintained for the price of hoops sold iu con- 
 travention of the provision of R. S., c. 41, § 21. Durgin v. Dyer, 
 68—143. 
 
 44. R. S., c. 41, § 13, providing that the seller of coal shall not 
 maintain a suit for the price thereof, unless he has caused the same to 
 be weighed by a sworn weigher and a certificate of the weight deliv- 
 ered to the buyer, is not complied with ts^hen the weigher is either 
 the owner of the coal or sells it on commission. Smith v. Campbell, 
 68—268. 
 
 See Loed's Day, p. 855. 
 
 (d) Warranty. 
 
 45. Whoever sells personal property, in his possession, for a fair 
 price, becomes by implication of law a warrantor of the title. Kriee- 
 land V. Willard, 59 — 445. 
 
 46. In August the owner of a horse took him into Canada to a 
 race and returned. In November he sold him to defendant without 
 informing him of the fact, who in June sold him to the plaintiff. In 
 the following August the horse was taken from the plaintiff by a rev- 
 nue officer and sold. Held, that the horse being liable to forfeiture 
 to the TJ. S. the defendant had no title when he sold him to the plain- 
 tiff and was liable for the value at the time of seizure. lb. 
 
 IV. WHEN VOIDABLE. 
 
 47. A vender of goods has a lien upon them, at common law, for 
 the purchase money, as long as they remain in his possession, though 
 a promissory note has been given, if it remains in the hands of the 
 
496 SALE. 
 
 vender so that it may be given up on discharge of the lien. 
 V. Warren, 57 — 46. 
 
 48. The plaintiff held, by assignment from the defendant, a mort- 
 gage on real estate in Massachusetts, containing a power to sell upon 
 breach of condition, in pursuance of which, after due notice, a sale 
 was made at public auction, in August, 1859, and the property struck 
 off for $1,950 to the plaintiff's agent, who, without paying the price, 
 conveyed the property to the plaintiff, who indorsed upon the note 
 the amount of the agent's bid, less expenses of sale and amount paid 
 by him on a prior mortgage, and some years later brought this suit to 
 recover a balance due on the note against the defendant, as indorser. 
 The defendant offered to prove, that in March, 1861, the property 
 was sold for $2,300, and claimed that that sum should be allowed as 
 paid on the note, and that the sale, made in 1859, should be treated 
 as a nullity. Seld, that in the absence of any evidence tending to 
 show fraudulent practices on the part of the holder of this mortgage 
 in making the first sale, or that the property was fairly worth more 
 at that time than the auction price, this claim must be disallowed, 
 and the evidence that the property sold for a larger sum at a later 
 period rejected. Patten v. Pearson, bl — 428. 
 
 49. On May 12 the defendant purchased of plaintiff a lot of beans 
 warranted sound. On the 24th of June the defendant ordered, and 
 on the 26th rebeived from plaintiff, fifteen barrels of medium beans, 
 and thereupon, for the first time, notified the plaintiff that fifteen bar- 
 rels of the first lot were mouldy, and that he had ordered the latter 
 lot to replace the mouldy ones which he then returned. In an action 
 to recover for the latter lot, held, that the latter lot could not be sub- 
 stituted for the mouldy ones without the assent of the plaintiff. 
 
 Woodward v. Libhy, 58 — 42. 
 
 50. Where, after the sale and delivery of the goods to the pur- 
 chaser, without the payment of the price, the seller retakes posses- 
 sion with the consent of the purchaser, the latter making no objection 
 upon his own account but imposing a condition that the resumption of 
 possession by the purchaser should not be valid if it would interfere 
 with the rights of creditors, the sale is effectually rescinded, and an 
 attachment of the property, made afterwards, by the creditors of the 
 vendee will give them no rights. Sneed v. Lord, 66 — 580. 
 
 V. EE-SALE. 
 
 51. When goods have been sold and delivered and are in the ven- 
 dee's possession, the same evidence is necessary to show a sale to the 
 original vender as would have been required to establish a sale from 
 him. State v. Intoxicating Liquors, 61 — 520. Kennedy v. Jones, 
 67—538. 
 
 52. Where it appeared that liquors libeled as intended for illegal 
 sale were sold in Boston by the claimant and brought into this State 
 by the vendee, that afterwards the claimant agreed to take them 
 back, and told the vendee to keep them in a safe place until they 
 could be sent back, but took no delivery nor gave any credit for their 
 value, it was held, that there was no re-sale, and the claimant was not 
 entitled to them. State v. Intoxicating Liquors, 61 — 520. 
 
 VI. SALE UNDER LEGAL PROCESS. 
 
 58, If, under a license duly issued by the probate court, an admin- 
 
SALE. 497 
 
 istrator, after taking the oath, and giving the bond prescribed by the 
 statute, regularly sell the land described in his license, at public auc- 
 tion, and execute and deliver a deed thereof to the purchaser, within 
 a year from the date of his license, then the title passes, although the 
 deed was not acknowledged until after the expiration of the year. 
 Poor V. Larrabee, 58 — 543. 
 
 54. Aliter, where the land was duly sold and struck off to the pur- 
 chaser within the year, but the deed thereof was not executed and 
 delivered until afterwards. lb. 
 
 55. A sale on mesne process of the personal property of a stranger 
 to the process, conveys no title to the vendee ; and the real owner 
 may replevy it from the purchaser after it has come into his posses- 
 sion. Coombs V. Garden, 59 — 111. 
 
 56. If an officer sell on execution the gersonal property of the exe- 
 cution debtor, at an adjourned sale, without having posted up public 
 notice of the time and place of such sale, forty-eight hours prior there- 
 to, in two or more public places in the town or place of sale, as re- 
 quired by R. S., c. 84, §§ 4 and 5, the sale will be void, and the officer 
 a trespasser ab initio. Mayes v. Buzzell, 60 — 205. 
 
 57. A notice of a sale of goods taken and appraised on mesne process, 
 defective for want of sufficient time, is not cured by a postponement 
 of the sale on the day appointed therefor to one remote enough to 
 answer the statute requirement. The officer cannot make a valid sale 
 at the adjournment that would be invalid if made on the day orig- 
 inally designated. Sawyer v. Wilson, 61 — 529. 
 
 VII. GENEKALLT. 
 
 58. The plaintiff caused certain cigars and tobacco to be attached 
 in a suit against one T., and was made keeper by the attaching officer. 
 It was afterward agreed between T. and the plaintiff that the plain- 
 tiff should have the property, and that T. should sell it as his agent. 
 The cigars were not counted, nor the tobacco weighed, nor any price 
 fixed upon them, nor any credit given T. upon his debt to the plain- 
 tiff. The property went into the possession of T., and the suit was 
 not entered. Seld, that the transaction did not constitute a sale, and 
 the property might be attached by the creditors of T. Chay v. Mil- 
 lay, 61—327. 
 
 59. The plaintiff sold a wagon, with the agreement that it should 
 remain his property until paid for, and received part payment in cash, 
 the wagon passing into the hands of the vendee. Afterwards he in- 
 formed the vendee that he wanted something to show how much was 
 still due, and the vendee gave him his promissory note for the balance. 
 Held, that under the registry law (R. S., 1871, c. Ill, § 3), the ven- 
 der had no longer any title as against the attaching creditors of the 
 vendee. Boynton v. Libby, 62 — 253. 
 
 60. If the owner of a farm sell stones lying on the land, and re- 
 ceives payment therefor, and the vendee removes them to another 
 portion of the farm, they become the personal property of the vendee. 
 Fulton V. Norton, 64 — 410. 
 
 61. At Cost. If a seller offers to sell an article at cost, and at the 
 same time states the cost to the purchaser, who accepts the offer and 
 pays the amount stated, the jury may find it a sale at cost and not a 
 
 32 
 
498 SAIiE — SCHOOL COMMITTEE. 
 
 sale at the price named by the seller, and if the cost stated by the sel- 
 ler is larger than it actually was, the purchaser may, in assumpsit, re- 
 cover of him the difference between the sum paid and the actual cost. 
 Willard v. Randall, 65 — 81. 
 
 62. In such case, ■whether the contract was for a sale at cost, or 
 whether it was a sale at the price named, to which the purchaser was 
 induced to accede by the misrepresentation of the seller as to the cost 
 price, is for the jury. lb. 
 
 63. Where made. A traveling salesman of a N'ew York firm, 
 obtained in this State an order drawn by the defendant upon the firm 
 for certain goods, which were forwarded to him by the firm in pursu- 
 ance of the order. Seld, that as it was optional with the firm to send 
 the goods or not, the contract was not completed until the order was 
 accepted, and as it was accepted in New York, the sale was made 
 there. Burhank v. McDuffee, 65 — 135. 
 
 64. A EUNNiNG ACCOUNT for goods sold and delivered, or money 
 had and received at different times, will not constitute an entire 
 demand unless there is some agreement to that effect, or some usage 
 from which such an agreement may be inferred. Goodwin v. Clark, 
 65—280. Brown v. Burns, 67—535. 
 
 65. An instrument under seal was given by a wife to her husband, 
 reading inter alia, as follows : "I hereby sell, transfer, and make over 
 to him (her husband) all the wood and timber of every description 
 now standing and growing upon all the wild lands which I have . . . 
 together with the grass, cranberries, blueberries, and all other fruit, 
 if any, which may be found or grown thereon for the space of ten 
 years from the date hereof," giving him authority to enter the lands 
 for the purpose of enjoying the property sold, and to control and 
 manage the same. SpM, that the writing amounted to an executory 
 sale of the blueberries, afterwards grown upon the land, which would 
 make them the husband's when picked from the bush, or perhaps 
 when grown, so far as to enable him to maintain an action in his own 
 name against strangers taking them. Freeman v. Underwood, 66 — 
 229. 
 
 66. In a bill of sale of one-half of a horse, from E. to S., containing 
 a stipulation that said S. is to take the horse, keep him and handle 
 him, said E. to pay one-half the expenses and keeping of said horse 
 and to receive one-half of the profits which said horse may earn, said 
 E.'s part of said horse's keeping to be two dollars and fifty cents per 
 week, the stipulation on the part of E. to pay for the board of the 
 horse is an independent one, and the sum affixed is payable absolutely,, 
 profits or no profits. Chapman v. Eames, 67 — 452. 
 
 See CoNsiDBEATioiir, 5, p. 100. 
 
 SCHOOL COMMITTEE. 
 
 "When a statute requires the written report of the municipal 
 officers, or of the superintending school committee, as a pre-requi- 
 site to the action of the town, such report signed by a majority is 
 valid without it appearing that the others acted. Weliber v. Stover, 
 62—512. 
 
SCHOOL DISTRICT. 499 
 
 SCHOOL DISTRICT. 
 
 I. GENEEALLT. 
 II. DIVISION AND DISCONTINUANCE. 
 
 I. GENERALLY. 
 
 1. Raising Monet. By R. S., 1871, c. 11, § 44, -when a school 
 district votes to raise money, not only residents, but also persons who, 
 at the time of raising the money, own therein the class of property 
 mentioned in the first clause of R. S., 1871, o. 6, § 14, are liable to be 
 assessed therefor. Hartshorn v. Assessors of Ellsworth, 60 — 276. 
 
 2. Money raised for the erection of a school-house upon a lot other 
 than the one legally designated by the municipal officers of a town, 
 upon proper appeal from the action of a school district, is for an ille- 
 gal purpose. Marble v. McKenney, 60 — 332. 
 
 3. The single fact that at one time money of a school district was 
 in the hands of the town treasurer, without proof of any order drawn 
 upon him for it, or any demand for the money on the part of the dis- 
 trict, is not sufficient to sustain an action by the district against the 
 treasurer for the money. School District v. Tebbetts, 67 — 239. 
 
 4. And where the district voted not to put certain funds, the pro- 
 ceeds of property sold, into the treasury but to pay where the district 
 was owing, the mere fact that, contrary to the vote of the district, the 
 money went into the hands of the treasurer, by whom it was disposed 
 of in accordance with the vote of the district does not render him 
 responsible for it a second time to the district. lb. 
 
 5. Formation. Under an article in the warrant "to see if the town 
 will set off a part of the districts, numbers 9 and 17," so as to form a 
 school district with contiguous portions of an adjoining town, it is not 
 competent for the town to set off a portion of a district other than 
 those specified in the warrant. JRutterfield, v. School District JVb. 6 
 in Prospect, 61 — 583. 
 
 6. Where a party attempting to show that a school district was 
 formed out of contiguous portions of two towns, shows only the cor- 
 porate action of -one of the towns, such action must be regarded as 
 inoperative, in the absence of any evidence of any co-operation on the 
 part of the other. lb. 
 
 7. Evidence of an abortive effort to organize a school district is not 
 of itself sufficient to rebut the presumption of its legal existence, 
 arising from its exercising the privileges of a district for one year. 
 Brown v. Chesterville, 63 — 241. 
 
 8. A vote of a school district directing a committee "to sell the 
 school-house," does not authorize a sale on credit. School District 
 in Dresden v. ^tna Ins. Co., 62 — 330. 
 
 IL DIVISION AND DISCONTINUANCE. 
 
 9. A person seeking to recover a tax paid by him to a school dis- 
 trict, upon the ground that he was not, at the time of the assessment, 
 a resident of the defendant district, but that the part of the town in 
 which he resided had been formed into a new district with portions 
 
600 SCHOOL DISTBICT — SCHOOL-HOTTSE. 
 
 of a neighboring town, is not entitled to recover unless he shows that 
 the towns co-operated in their corporate capacity to form such new 
 district. Butter-field v. School District JVo. 6 in Prospect^ 61 — 583. 
 
 10. A report of the selectmen and superintending school committee 
 stating that under ordinary circumstances a division of a school dis- 
 trict would not be desirable, yet considering the present state of feel- 
 ing among its inhabitants, they were of opinion that the peace and 
 harmony of the district, and consequently the cause of education 
 would be promoted by a division, the lines of which they recom- 
 mended, was held a sufficient statement of facts, it appearing that 
 there was a chronic strife in the district. Webber v. Stover, 62 — 512. 
 
 11. The selectmen and superintending school committee of a town 
 made a written report, accompanied by a statement of facts, recom- 
 mending the division of a school district, which was accepted by the 
 town at a meeting held in October, and recorded. At the succeeding 
 annual meeting, under an article, "To see if the town will vote to. 
 divide" the district "as recommended," the clerk read the report as 
 recorded, and the town "voted to accept the report," etc. JETeld, that 
 the first acceptance did not render the report /wwc^ms officio, and that 
 the second acceptance effectually decided the. matter. Tb. 
 
 12. A report signed by the majority of the school committee and 
 municipal officers is valid without it appearing that the others acted. 
 lb. 
 
 13. The recommendation of the municipal officers, npon which alter- 
 ation or discontinuation of a school district is to be made, may be in 
 general terms, and the town may settle the details as it pleases. 
 Grindle v. School District, 64 — 44. 
 
 14. A vote "to divide school district No. 2, and annex Mark H. 
 Grindle and all northwest to district No. 3, and the remainder of said 
 No. 2 district to district No. 1," was held valid, the reference to 
 Mark H. Grindle being regarded as identifying the homestead owned 
 and occupied by him, and not as a personal description merely. lb. 
 
 15. An omission, in the vote of a town discontinuing a school dis- 
 trict, to provide for the disposition of the school-house, is not fatal to 
 its validity. lb. 
 
 SCHOOL-HOUSE. 
 
 I. LOCATION. 
 II. EEPAIES. 
 
 I. LOCATION. 
 
 1. An omission in the return of a warrant for the meeting of a 
 school district, called for the purpose of locating a school-house, to 
 state that the place where the notices were posted were public and 
 conspicuous places within the district, when such was the fact, and 
 other records in the case show the places to be within the district, 
 will not invalidate the doings of the meeting, on a petition for injunc- 
 tion to prevent the town treasurer from paying out money for the 
 
SCHOOL-HOUSE. 501 
 
 building such house after appeal to the municipal oflScers and their 
 reversal of the action of the majority of the district. Marble v. 
 McKenney, 60—332. 
 
 2. When a meeting of a school district has been legally called, 
 notified and held for the purpose of locating a school-house, the clerk 
 thereof can not so destroy the effect of the action of the district as 
 to prevent an appeal therefrom, by refusing to record the application, 
 warrant and return thereon, for the next meeting, so long as clear 
 proof of the facts can be made aliunde. lb. 
 
 3. The municipal officers of a town have no authority to "decide 
 where a school-house shall be placed," until, "more than one-third of 
 the voters present and voting" at a district meeting, legally called for 
 the purpose, shall have objected to the place voted by the majority. 
 Goodwin v. Nye, 60 — 402. 
 
 4. The simple adjournment for one month of a district meeting, 
 called for the purpose of locating a school-house, lays no foundation 
 for the jurisdiction of the municipal officers in the premises. lb. 
 
 5. When the location of a school-house has been legally designated 
 by the municipal officers of a town, a jury summoned under R. S., 
 1871, c. 11, § 34, may fix the boundaries and price of the lot, but can- 
 not change the location to land of another or to that of the district. 
 Jordan v. School Dist. JVb. 8 in Cape Elizabeth, 60 — 540. 
 
 6. The phrase "location of the lot" as used in R. S., c. 11, § 34, 
 refers to the laying out of a school-house lot mentioned in § 33, and 
 not to "where the school-house shall be placed" mentioned in § 32. 
 lb. 
 
 7. The provision of R. S., 1871, c. 11, § 33,\that a school-house lot 
 shall revert to the owner when a school-house has ceased to be there- 
 on for two years, applies only to an occupancy once had and aban- 
 doned. Jordan v. Saskell, 63 — 189. 
 
 8. It does not apply to a case where no school-house has been 
 placed on the lot within two years from the time the lot is located by 
 the municipal officers of the town. lb. 
 
 9. The location of a school-house lot is not invalid merely because 
 it includes by mistake some part of a public way. lb. 
 
 10. If the owner of land taken for the location of a school-house 
 petitions the county commissioners for a jury to consider the question 
 of a change of location, and for an increase of damages, he can not 
 after the close of such litigation, repudiate it and maintain trespass 
 for the taking of the land, upon the ground that the location was 
 invalid. Jordan v. Haskell, 63 — 193. 
 
 11. Under R. S., 1871, c. 11, § 32, providing that at any district 
 meeting called for the purpose of locating or removing a school-house, 
 "if more than one-third of the voters present and voting object thereto, 
 the clerk shall make a record of the fact," a simple record showing 
 the number of the votes for and against the proposed location is suffi- 
 cient. It is not necessary that the clerk shall record the names of the 
 persons objecting, or that they shall make a written objection after 
 the vote. Norton v. Perry, 65 — 183. 
 
 12. If the vote establishing the location has a majority in the 
 affirmative, and more than one-third in the negative, and within thirty 
 days afterwards, three or more of those present and voting in the 
 
502 SCHOOL-HOUSE. 
 
 negative make a written application to the municipal officers of the 
 town, reciting the proceedings, upon which proper notice is given, 
 the municipal officers have jurisdiction of the question of location, 
 and the certificate of their determination, given to the clerk of the 
 district within ten days, is conclusive. Ih. 
 
 13. A certificate by the municipal officers that they are unable to 
 agree is not final. They may, notwithstanding, certify to the location 
 within the ten days. Ih. 
 
 14. If at a district meeting called for the purpose of locating a 
 school-house, a majority vote in favor of a specified location, but 
 more than one-third present and voting object thereto, and proper 
 proceedings are had to carry the case to the municipal officers for 
 decision, and they make a location which is void for any cause, the 
 location made by the majority of the district does not become valid, 
 but a new district meeting must be called and proceedings com- 
 menced de novo. lb. 
 
 15. Under articles in the warrant, "to see if the district wiU vote 
 to build a new school-house, and out buildings and enclose the same," 
 and "to see if the district will vote to purchase land to enlarge their 
 present school-house lot, for said school-house and out buildings and 
 for yards and play grounds," the district voted to purchase the land 
 and enlarge the lot. The district thereupon caused a new lot to be laid 
 out, including the former lot and also land adjoining, the whole being 
 less than forty rods square, and built a school-house thereon. It also 
 caused the damages of the owner of the land taken to be appraised 
 by the municipal officers. Held, that the votes and acts showed that 
 the object of the proceedings was to lay, out a school-house lot for the 
 purpose of erecting a school-house upon it, and that it was none the 
 less a designation of the land for a school-house lot for the erection 
 of the new school-house that they added the old lot to it and called it 
 an enlargement of their present school-house lot. Cousens v. /School 
 District, 67—280. 
 
 16. When a school district has designated the land it desires for a 
 school-house lot, and applied to the owner to sell the same, and he 
 has refused, the municipal officers of the town may lay out the lot 
 and assess the damages at the same time. lb. 
 
 17. The proper place for returning and recording the doings of the 
 selectmen in the laying out of a school-house lot for a school district 
 is the record of the district. lb. 
 
 II. EEPAIKS. 
 
 18. A statement in an application by the superintending school 
 committee to the municipal officers, that the district unreasonably 
 neglects to repair its school-house, indicates sufficiently a refusal to raise 
 money for that purpose. Knowles v. School District, 63 — 261. 
 
 19. The opinion of the superintending school committee that any 
 district in the town unreasonably neglects to raise money for the re- 
 pair of its school-house is conclusive, and, when expressed in a writ- 
 ten application to the municipal officers, requires them to act in ac- 
 cordance therewith. lb. 
 
 20. It is no defense to an action against a district to recover for 
 labor and materials furnished in repairing a school-house, under a con- 
 
SCHOOL TEACHER — SCIEB FACIAS. 503 
 
 tract with a committee appointed by the selectmen, after an applica- 
 tion by the school committee and due proceedings by the town thereon, 
 that the selectmen illegally moved the school-house, or that the tax 
 assessed to raise funds for the repairs was illegally assessed or col- 
 lected. Ih. 
 
 SCHOOL TEACHER. 
 
 Where a union school district, lying in two towns, has a school- 
 house in the oldest town, where the school is actually kept, and whiere 
 it last voted to locate the school-house, the teacher is justified in ob- 
 taining a certificate from and returning the register to the committee 
 of that town, although the district may have a school-house in the 
 other town, and once have voted to locate its school-house there. 
 Brown v. Chesterville, 63 — 241. 
 
 SCIRE FACIAS. 
 
 1. Scire facias is the only eembdt upon a bail bond, given in a 
 civil action. Sewins v. Currier, 62 — 236. 
 
 2. The principal defendant having been arrested on a special writ, 
 in favor of this plaintiff, gave a bond with the other defendants, sure- 
 ties, therein acknowledging themselves bound to the sheriff by name 
 who made the arrest, in a specific sum named, "to be paid unto" the 
 plaintiff, "her heirs and assigns," with the condition annexed in the 
 usual form of a bail-bond. In debt on the bond brought in the name 
 of the plaintiff, held, that if the instrument declared on be a bail-bond, 
 scire facias and not debt is the remedy. Packard v. Brewster, 59 
 —404. 
 
 3. The BETFEN of "unsatisfied," made before the return day upon 
 an execution against the principal defendant, will not authorize the 
 issuing' a writ of scire facias, after the return day against the person 
 adjudged trustee. Austin v. Goodale, 58 — 109. Cotta v. Boss, 66 
 —161. 
 
 4. Where the respondent, as mortgagee, in possession of mortgaged 
 chattels, at the March term, 1869, was charged as trustee, "condition- 
 ally, namely, if the plaintiff pay him $2000 and interest from" a spec- 
 ified date, "within sixty days after the final judgment," an averment 
 that the plaintiff tendered to the respondent "said $2000 and interest 
 within said sixty days, to wit, on the seventeenth day of May, 1869," is, 
 on demurrer, a sufiicient allegation of a compliance with the condi- 
 tion. Woods V. Cooke, 58—282. 
 
 5. And it will be presumed that the court, in fixing the time within 
 which the money should be paid, complied with R. S., c. 86, § 50 ; 
 and an averment of tender within the time thus fixed, is equivalent 
 to an averment of a tender "while the equity of redemption existed." 
 Ih. 
 
 6. When a person is adjudged a trustee for "specific property, in 
 
604 SCIRE FACIAS. 
 
 his hands, which he is bound to deliver at a future day," a demand 
 need not be made upon him "within thirty days next after final judg- 
 ment," to prevent a dissolution of the attachment. Ih. 
 
 7. But when the court, under R. S., c. 86, § 50, fixes a time during 
 the life of the equity of redemption of personal property, within 
 which the plaintiff may tender the amount due on the mortgage, a de- 
 mand within thirty days next, after the tender by the attaching cred- 
 itor, is necessary, under § 73, to fix the liability of the trustee. Ih. 
 
 8. If an alleged trustee does not disclose in the original action, he 
 is liable to costs on scire facias, although the attachment is dissolved 
 before judgment is recovered in the original action. Bowker v. JBlll, 
 60—172. 
 
 9. In a DiscLOSTJKB on scire facias, all doubtful or uncertain state- 
 ments are construed against the trustee having it in his power to 
 make them positive. Brainard v. Shannon, 60 — 342. 
 
 10. Where the exceptions state that a trustee was discharged on 
 his disclosure on scire facias, it will not be presumed that he was 
 discharged for failure on the part of the plaintiff, to exhibit the rec- 
 ord in the original suit. lb. 
 
 11. When, by a previous disposition of the property for which he 
 is charged, tlie trustee renders himself unable to deliver it upon de- 
 mand, it is not necessary for the maintenance of scire facias that the 
 ofiicer make a demand. Woods v. Cooke, 61 — 215. 
 
 12. A return of nulla bona, dated the second day after the return 
 day of the execution, taken in connection with a previous return by 
 the ofiicer, that by virtue of the execution he had made demand upon 
 the trustee, shows with sufficient certainty that the search for goods 
 was made in the life-time of the execution, and that what was done 
 by the officer was done by virtue of it. lb. 
 
 13. The court may allow an officer to amend his return upon exe- 
 cution, by adding his certificate of nulla bona after the return day of 
 the execution. lb. 
 
 14. It is no defense to an action of scire facias, that the note upon 
 which the original suit was- instituted, was afterwards paid by an in- 
 dorser, and the suit carried on for the benefit of such indorser in the 
 name of the payee. lb. 
 
 15. The defendant in scire facias can not show, in order to reduce 
 the damages, that the adjudication of the court in the original action 
 was erroneous. Jb. 
 
 16. The fact that the principal defendant had no att^ichable prop- 
 erty in the State, during the life of the execution, and that he was 
 not personally within the State during that period, does not cure the 
 failure of the officer to make the return of unsatisfied upon the re- 
 turn day of the execution. Gotta v. Boss, 66 — 161. 
 
 17. A trustee may show on scire facias, that there was no service 
 on the principal defendant in the original writ, or that the service 
 was voidable, and upon showing this is entitled to his discharge. Jb. 
 
 See Debt, 6, p. 157. 
 
SEAL — SBIZm AND DISSEIZIN. 505 
 
 SEAL. 
 
 1. A seal implies that the instrument upon which it is placed was 
 given for some consideration, but does not estop the parties to show 
 the actual consideration. Eames v. Gray, 61 — 405. 
 
 2. A seal will not avoid a defense founded upon the illegality of 
 the consideration of the instrument upon which it is placed. Morrill 
 V. Qoodenow, 65 — 178. 
 
 3. A scroll has not the effect of a seal. McLaughlin v. Randall, 
 66—226. 
 
 SEIZIN" AND DISSEIZIN. 
 
 I. WHAT IS A GOOD SEIZIN. 
 II. DISSEIZIN. 
 
 I. WHAT IS A GOOD SEIZIN. 
 
 1. The simple evidence that land has been fraudulently conveyed 
 by a debtor, and that the frudulent grantee has quitclaimed all his 
 right, title, and interest to a third person, wiU not prevent a prior 
 creditor, subsequently levying his execution thereon under R. S. of 
 1857, 0. 76, § 13, from acquiring the "momentary seizin" necessary to 
 enable him to try the title with the party in possession not claiming 
 xmder such conveyances. Morse v. Sleeper, 58 — 329. 
 
 2. Proof of such conveyances does not rebut the evidence of the 
 levying creditor's seizin. lb. 
 
 II. DISSEIZIN. 
 
 3. A GEANTOE who has conveyed a good title by his deed of war- 
 ranty, may, nevertheless, set up against his grantee and those holding 
 that title, a title subsequently acquired by himself by disseizin of his 
 original grantee or those holding under him. Mines v. Robinson, 57 
 —324. Traipy. Traip, 57—268. 
 
 4. What facts will sustain such a title by disseizin. lb. 
 
 5. Paeol Demise. "Where one of three grantees paid no part of 
 the purchase money, and claimed neither possession nor title under 
 the deed, he may be considered as having made a parol demise to the 
 other grantees. Webster v. Holland, 58 — 168. 
 
 6. Such transfer, followed by more than forty years' exclusive pos- 
 session by his co-grantees and their assigns will bar any claim he may 
 assert. lb. 
 
 7. Against Reveesionee. An administrator, under a license 
 from the probate court, conveyed lands of the intestate estate to the 
 defendants' grantors, and the widow to whom the land had been as- 
 signed as dower against common right, joined in the deed to convey 
 and release her dower, and thereupon the defendant's grantors entered 
 into possession. In a real action by the grantee of the levying cred- 
 itors of the heirs of the intestate, held, that during the life of the 
 
506 SEIZIN AND DISSEIZIN. 
 
 widow the tenants could not be considered as holding adversely to 
 the reversioners. Poor v. Larrabee, 58 — 543. 
 
 8. An invalid attachment was made of a life estate, which was 
 afterwards levied upon. Between the attachment and the levy the 
 owner of the life estate conveyed it to the reversioner. The (supposed) 
 title of the creditor was conveyed to one, who also claimed the title 
 to the reversion, and who occupied the premises more than twenty 
 years. Seld, that the attachment and levy did not prevent the mer- 
 ger of the life estate, by the conveyance to the reversioner, nor give 
 the occupant a right of possession during the life of the life tenant, 
 which would prevent him from gaining a title by adverse possession. 
 Cary v. Warner, 63 — 571. 
 
 9. Teust. a cestui que trust conveyed to the defendant the de- 
 manded premises, with a condition that the deed should be void if 
 ever a court house for the use of the county should be erected on any 
 other site. The defendant took possession of the premises under the 
 deed, claiming to own them subject to the condition, and exercised 
 all the rights of ownership for more than twenty years. Held, that 
 the statute of limitations was a bar to a writ of entry brought by 
 the trustee for the benefit of the cestui que trust. Craig v. Frank- 
 lin County, 58 — 479. 
 
 10. Tenants isr Common. In August, 1836, the petitioners, to- 
 gether with their sister, entertaining the mistaken hypothesis that 
 their father, instead of their mother, owned the land in question, by 
 their deed of quitclaim duly recorded, released their interest therein 
 to the respondents, who entered under the deed, claiming to own the 
 land, and in December, 1848, divided the premises by mutual deeds 
 of release, and subsequently thereto their occupation was in severalty, 
 and was open, notorious, adverse, and known to the petitioners. On 
 petition for partition, commenced in September, 1868, held, that in 
 the absence of any actual entry by either of the petitioners within 
 twenty years, their right of entry was gone. Mitchell v. Persons 
 
 Unknown, 59 — 448. 
 
 11. Pkbsumption. Where one has the right to the use of land, 
 his occupation of it must be presumed prima facie to be in accord- 
 ance with his legal right. Mowe v. Stevens, 61 — 592. 
 
 12. Conceding a right to betterments is an admission that the pos- 
 session, during the term in which the right was acquired, was adverse. 
 Moore v. Moore, 61 — 417. 
 
 18. The adverse possession of a disseizor must import a denial of 
 the true owner's title in the specific parcel of land claimed. Dow v. 
 McKenney, 64—138. 
 
 14. Mistake. Where a land owner built a fence, supposed to be 
 on the line between himself and an adjacent land owner, but which, 
 in fact, varied from the true line, and, in ignorance of the mistake, 
 continued to occupy to the fence for more than twenty years ; held, 
 that by such occupation he did not acquire title to the land between 
 the true line and the location of the fence. lb. 
 
 15. An occupation of land by Indians for temporary purposes does 
 not constitute disseizin. Ghanger v. Avery, 64— -292. 
 
 See Landloed and Tenant, 1, p. 888. 
 
SBNTEKCE — SET-OFF. 507 
 
 SENTENCE. 
 
 1. After a convict has been duly committed to jail on a warrant 
 of commitment, in pursuance of a legal sentence, the judge can not 
 revise and increase it, although the punishment, imposed by the latter 
 sentence, be within the limit fixed by law. Brown v. Rice, 57 — 55. 
 
 2. A sentence is no part of a conviction. State v. Hines, 68 — 202. 
 
 See Rbfoem School, p. 480. 
 
 SET-OFF. 
 
 I. WHAT CLAIMS MAT BE SET OFF AND WHEN. 
 II. SET-OFF OF EXECUTIONS. 
 
 I. WHAT CLAIMS MAT BE SET OFF AND WHEN. 
 
 1. The right to set off one demand against another is wholly reg- 
 ulated by statute. Robinson v. Safford, 57 — 163. 
 
 2. A claim in set-off, to be available, must be due and payable when 
 the plaintiff's action was begun ; and the fact that the plaintiff has 
 assigned his property for the benefit of his creditors, does not modify 
 or change the rights of the parties. -Z"5. 
 
 3. A mere liability as indorser, existing at the time when, but not 
 discharged till after, the plaintiff commenced his action, is not allow- 
 able in set-off. lb. 
 
 4. Otherwise, money received by the plaintiff for his authorized 
 transfer of the defendant's shares of stock in a corporation prior to 
 the commencement of the action. lb. 
 
 5. Also, for amount of drafts drawn by the defendant for the 
 accommodation of the plaintiff, and paid by the former prior to the 
 commencement of the action. lb. 
 
 6. Also, for amount paid by the defendant prior to the commence- 
 ment of the action, to redeem his shares of stock in a corporation, 
 pledged by the plaintiff under a power of attorney from the defend- 
 ant, to a savings bank as collateral for money loaned to the plaintiff, 
 
 7. Also, for items paid prior to the commencement of the action, 
 for protest. lb. 
 
 8. If in the trial of an action the defendant offered evidence in 
 support of an account by him filed in set-off, and the question of 
 allowance or disallowance was submitted to and passed upon by the 
 jury, he is precluded from again offering proof in support of the same 
 account in anotner suit, although the jury may have decided in the 
 former suit not to allow it. Baker v. Stinchfield, 57 — 363. 
 
 9. When the amount of an item of credit in the plaintiff's account 
 is conceded by both parties to be erroneous, the jury can not properly 
 allow the defendant's account in set-off, without proof, merely because 
 it is less than the amount of such credit. Kelton v. Ilill, 58 — 114. 
 
508 SET-OPF — SHIPPING. 
 
 10. The provision of R. S., 1871, o. 86, § 64, excepting from the 
 right of set-off by trustees, claims for "unliquidated damages for 
 wrongs and injuries" refers to independent claims and not to those 
 accruing from the contract itself. Cota v. Mishow, 62 — 124. 
 
 11. Claims rejected by commissioners upon exorbitant claims can 
 not afterwards be filed in set-off in a suit by the administrator against 
 the claimant. Rogers v. Rogers, 67 — 458. 
 
 12. A bank lent the defendant money and took his note therefor 
 with a United States bond as collateral security. After the note was 
 payable, and before it was paid, the bond was stolen from the bank. 
 In an action by the bank upon the note, held, that an account in set- 
 off for the value of the bond could not be legally allowed, and that 
 the law of recoupment did not apply. Winthrop Savings Rank v. 
 Jackson, 67—570. 
 
 13. The defendant, at the best, was not entitled to the possession 
 of the bond until the note was paid. 1 b. 
 
 14. Judgment. In an action on account annexed, where a set-off 
 was filed by defendant and a counter set-off by plaintiff, an instruction, 
 "If upon the whole account, you find as much due the defendant as 
 there is due the plaintiff, your verdict will be for the defendant," is 
 erroneous, as the verdict should be, "nothing due either party." R. 
 S., c. 82, § 60. Morgan v. Befler, 68—131. 
 
 15. The defendant filed his account in set-off. The case was sent 
 to an auditor, who heard the parties and made report to the court. 
 JSTeld, that the plaintiff could not then discontinue his suit without the 
 consent of the defendant. R. S., c. 82, § 59. Judgment was properly 
 rendered on the auditor's report. Dyer v. Morris, 68 — 472. 
 
 11. SET-OFF OF EXECUTION. 
 
 16. The creditor in an execution, issued on a judgment, in which 
 the damage recovered is for rent, "became entitled to the sum due 
 thereon," within the meaning of R. S., 1871, c. 84, § 27, when his 
 cause of action accrued. He is not so entitled to costs until judgment 
 obtained therefor. MoQlinchy v. Hall, 58 — 152. 
 
 17. The "first execution," in the same section, is the one issued in 
 the action first commenced. lb. 
 
 SHIPPING. 
 
 I. TITLE. 
 II. MASTER AND SEAMEN. 
 
 (a) Gbneballt. 
 
 (b) Wages. 
 
 ni. RIGHTS AND LIABILITIES OF OWNERS, 
 IV. BILLS OF LADING- AND CHARTERS. 
 V. COLLISION. 
 
 L TITLE. 
 1. Before a vessel is registered or enroUed, a mortgage of it will be 
 
SHIPPING. 509 
 
 valid if recorded agreeably to the laws of the State. Perkins v. 
 Emerson, 59 — 319. 
 
 2. After it is registered or enrolled, a mortgage of it will not be 
 valid against any person other than the mortgager, his heirs and devi- 
 sees, and persons having actual notice thereof, unless recorded as 
 required by the laws of the United States. lb. 
 
 3. A sale of a part of a vessel to the master, for a specified sum, 
 part of which is paid, a clear bill of sale to be given when the balance 
 is paid, does not pass the title until the bill of sale is given so far as 
 to make the master a part owner and prevent him from maintaining 
 an action at law to recover of the owners of the vessel payment for 
 his services and disbursements as master under a contract with the 
 ship's husband. Loring v. JLoring, 64 — 556. 
 
 4. Actual possession and acts of ownership are presumptive evi- 
 dence of title. lb. 
 
 See Attachment, 1, p . 44. 
 
 MASTER AND SEAMEN. 
 
 (a) GrBNBBALLTT. 
 
 (b) Wagbs. 
 
 (a) Generally. 
 
 5. Substantially the same necessity must exist for hypothecating 
 a vessel that is required to justify a sale by necessity. Dunning v. 
 Merchants^ Mutual Marine Ins. Co., 57 — 108. 
 
 6. Neither the sale of a vessel by necessity, nor the abandonment 
 of her, can be justified, unless it will cost more than half her value, 
 after deducting one-third new for old, to repair her. lb. 
 
 7. A SALE BT THE MASTER of a vcsscl of such parts thereof as be- 
 long to part owners, who were not, but might have been, notified by 
 telegraph, in season to act in the premises, is void. Gates v. Thomp- 
 son, 57—442. Miller v. Thompson, 60—322. 
 
 8. Thus a vessel went ashore on one of the "Wolves," in the Prov- 
 ince of New Brunswick, on the morning of July 6, and the master 
 leaving her in charge of the mate, arrived at noon of the same day in 
 Eastport. Between Eastport and New York there was constant tele- 
 graphic communication, and a telegram sent by the master on his 
 arrival in Eastport, to the plaintiffs resident in New York, would, in 
 the usual course of business, have received an answer several hours 
 before the sale, which took place in the afternoon of the next day. 
 Held, that the sale was void. Miller v. Thompson, 60 — 322. 
 
 9. A contract between the owner and master of a vessel, by which 
 the latter is to man and victual her, and the former to have half the 
 earnings, constitutes the master owner pro hac vice. ^Bridges v. 
 Sprague, 57 — 543. 
 
 10. Such a contract between the owner and master of a vessel 
 creates no partnership between them. lb. 
 
 11. A master when owner pro hac vice may sue for demurrage. 
 Hunt V. Barker, 64 — 344. 
 
 12. A master testified that he sailed the vessel on shares, that he 
 had the whole management of the vessel when away from home, that 
 
510 SHIPPING. 
 
 at home he was accustomed to consult the agent of the owners who 
 had the right to direct him, but who did not. Meld, on report, that 
 the master must be understood as having entire control of the vessel 
 and owner p^o hac vice. Sunt v. Sarker, 64 — 344. 
 
 13. Although the amount which a seaman is to receive for his labor 
 is made to depend upon the amount of fish caught, still he is not on 
 that account a partner in the enterprise, and need not join any of the 
 crew with him as plaintiffs in an action to recover his share of the 
 proceeds. Holden v. French, 68 — 241. 
 
 (b) Wages. 
 
 14. A ship master, whose wages are a specified sum per month, no 
 time or place of payment being fixed, may, from time to time, whether 
 at home or abroad, take from the earnings of the vessel and appro- 
 priate to his own payment such sums as may be necessary for that 
 purpose. Loving v. Loving, 64 — 556. 
 
 15. Part owners are not liable for wages earned before they become 
 owners. Ih. 
 
 16. When a fishing vessel is let to the master on shares, and he 
 mans her, and victuals her, and has the possession and control of her, 
 he is pro hac vice her owner, and liable, as such, to the seamen for 
 their wages. Holden v. Fvench, 68 — 241. 
 
 17. The owner joro hac vice, is liable to the seamen for their wages 
 "on a personal implied contract." Ih. 
 
 III. EIGHTS AND LIABILITIES OF OWNERS. 
 
 18. When the master is owner pro hac vice the owner is relieved 
 from any responsibility on account .of the contracts or negligence of 
 the master and is precluded from claiming freight as owner. Bridges 
 V. Sprague, 57 — 543. 
 
 19. In order to make the master of a vessel the owner ^ro hac vice 
 under a contract for sailing on shares he must have the exclusive con- 
 trol of her for the time being. N'oyes v. Staples, 61 — 422. 
 
 20. The liability of the owners of a vessel for the defaults of the 
 master must arise under the maxim respondeat superior, if at all. 
 Somes V. White, 65 — 542. 
 
 21. Claims against the owner for the obligations of the master, 
 whether arising ex contractu or ex delicto, stand upon the same foun- 
 dation, lb. 
 
 22. An action can not be maintained by the owners of a vessel 
 against the general owners of another vessel for a collision caused by 
 the fault of the latter vessel, if at the time of the collision the latter 
 vessel was in the control and possession of the master sailing her on 
 shares in such manner as to constitute him owner ^o hac vice. lb. 
 
 23. To relieve the owners of a vessel let on shares to the master, it 
 must affirmatively appear that the master has the entire control and 
 direction of the vessel, with no right of interference on the part of 
 the owners. Wickersham v. Southard, 67 — 595. 
 
 24. The owners of a vessel are liable in solido for its debts. Mob- 
 inson v. Stuart, 68 — 61. 
 
 See Equity, p. 203. 
 
SHIPPING— SIGNATUBE — SOLDIER. 611 
 
 rV. BILLS OF LADING AND CHAUTEKS. 
 
 25. A charterer is not bound to make repairs or incur charges ex- 
 ceeding one-half the value of the vessel, after deducting one-third 
 new for old, icfr the purpose of prosecuting the voyage, and earning 
 the whole freight, but he may abandon both ship and freight, and 
 recover for a total loss against the respective underwriters. Dunning 
 V. Merchants M. M. Ins. Co., 57—108. 
 
 26. When a bill of lading is silent as to demurrage and the vessel 
 is unreasonably detained at the port of delivery before being unloaded, 
 the owner, or master when owner ^ro hac vice, may maintain assump- 
 sit against the shipper for damages arising from the delay in the 
 nature of demurrage. Hall v. JBarker, 64 — 339. 
 
 27. Bills of lading are transferable by indorsement. Mohinson v. 
 Stuart, 68—61. 
 
 V. COLLISION. 
 
 28. Rules for the conduct of vessels in case of a threatened col- 
 Usion. If two vessels, one of which is a sail vessel and the other a 
 steam vessel, are proceeding in such direction as to involve a risk of 
 collision, the steam vessel shall keep out of the way of the sail vessel. 
 Every steam vessel when approaching another vessel, so as to involve 
 a risk of collision, shall slacken her speed, or, if necessary, stop and 
 reverse. "When by the rules, one of two vessels, one shall keep out 
 of the way, the other shall keep on her course. Lord v. Mazeltine, 
 67—399. 
 
 29. The rules of admiralty on the subject of collision, do not con- 
 cur in all respects with those of the common law. Jb. 
 
 30. In a suit at common law, if the collision occurs by the fault of 
 the plaintiff, or of both parties, or of neither, the plaintiff can not 
 recover. If it happens by that of the defendant, without any con- 
 tributory fault of the plaintiff, then he can recover. lb. 
 
 See Ante, 22. 
 
 SIGNATURE. 
 
 1. A deed or other instrument is well executed if the name of the 
 party be put to it by his direction, and in his presence, by the hand of 
 another person. £ird v. Decker, 64 — 550. JLovejoy v. Richardson, 
 68—386. 
 
 2. The official signature of a public officer must be written by 
 himself. Opinion of the Judges, 68 — 587. 
 
 SOLDIER. 
 
 See Bounty, p. 77. 
 
612 STATUTES. 
 
 STATUTES. 
 
 I. ENACTMENT, AMENDMENT AND REPEAL. 
 II. CONSTRUCTION. 
 
 (a) When mastdaxosy and when dieeotobt. 
 
 (b) Effect upon pending actions and existing causes of 
 
 ACTION. 
 
 (c) Generally. 
 
 I. ENACTMENT, AMENDMENT AND REPEAL. 
 
 1. Where a section of a statute contains a reference to the preceding 
 section, and the preceding section is amended, from the date of the 
 amendment the succeeding section refers to the preceding, as amend- 
 ed, and not as it originally stood. -Byron, appt., 57 — 340. 
 
 2. A statute was repealed by an act of the legislature, ■which, after 
 its passage but before it took effect, was repealed by a subsequent act 
 of the same legislature. Held, that the statute remained unchanged. 
 Coe T. Co. Com., 64—31. 
 
 3. The same legislature passed, at different times in the same session, 
 two acts, the second repealing the first. Under the general law both 
 acts took effect at the same moment. Held, that it was the obvious 
 intent of the legislature that the first should not come into life, even 
 for an instant. lb. 
 
 4. In an act relating to the remedy for injuries sustained by reason 
 of a defect in the highway, and excepting from its application injuries 
 '■'■already sustained," there does not appear any intention to change 
 the same law by which an act would take effect thirty days after the 
 adjournment of the legislature. Jackman v. Garland, 64 — 133. 
 
 5. "Whenever a statute is passed which embraces all the provisions 
 of previous statutes on the same subject, the new statute operates as 
 a repeal of antecedent enactments. Knight v. Aroostook JR. JR. Co., 
 67—291. 
 
 6. The repealing statute obliterates the statute repealed, as com- 
 pletely as if it had not been passed, and it must be considered as a 
 law that never existed, except for the purpose of those actions which 
 were commenced, prosecuted and concluded while it was existing. 
 Holmes v. French, 68 — 525. 
 
 7. By a special act of the legislature, approved January 24, 1876, M. 
 C, his heirs and assigns, were authorized to "erect fish weirs in tide 
 waters below low water-mark . . provided such weirs so erected 
 shall not obstruct or interfere with navigation." By a general act, 
 approved February 11, 1876, it was enacted that "any person intend- 
 ing to build . . a fish weir in tide waters, within the limits of any 
 city or town in this State, may make application in writing to the 
 municipal ofScers thereof," etc. If, after proper proceedings, "said 
 officers shall decide that such erection would not be an obstruction to 
 navigation, or an injury to the rights of others, and shall determine 
 to allow the same, they shall issue a license under their hands to the 
 applicant, authorizing him to make said erection." Both acts took 
 effect upon their approval. Held, that the first act was not repealed 
 by the second. State v. Gleland, 68 — 258. 
 
STATUTES. 613 
 
 n. CONSTRUCTION. 
 
 (a) When mandatobt and when dieectoht. 
 
 (b) Effect upon pending actions, and existing causes of 
 
 ACTIONS. 
 
 (c) Geneballt. 
 
 (a) When mandatory and when directory. 
 
 8. The word "may" in a statute is to be construed "must" or 
 "shall" where the public interests or rights are concerned and the 
 public or third persons have a claim de jure that the power shall be 
 exercised. Low v. Dunham, 61 — 566. 
 
 9. When a public body, or officer is clothed with the power, and 
 furnished with the means to do an act which concerns the public in- 
 terest, or the rights of third persons, the execution of such power 
 may be insisted upon as a duty, though the statute conferring it be 
 permissive in its terms. Ih. 
 
 10. Statutes imposing a duty and giving the means of performing 
 such duty are to be regarded as mandatory. Ih. 
 
 11. In an act intended to add, and not to take away, a form of rem- 
 edy, the word "shall" will be construed as meaning no more than 
 "may." Parks v. Crockett, 61 — 489. 
 
 12. The clause in R. S., c. 91, § 35, which provides that in a lien 
 action the forms and proceedings shall be the same as in ordinary 
 actions of assumpsit, is to be construed as permissive and not manda- 
 tory ; so that the word "shall," contained therein, will be construed 
 as meaning " may." lb. 
 
 13. The provision of R. S., 1871, c. 106, § 8, that "venires for 
 grand jurors to serve at the supreme judicial court shall be issued 
 forty days at least before the second Monday of September, annually," 
 is directory merely. State v. Smith, 67 — 328. 
 
 14. A general rule relating to the construction of statutes is thus 
 stated : "Negative words will make a statute imperative ; and it is 
 apprehended affirmative may if they are absolute, explicit and per- 
 emptory, and show that no direction is intended to be given ; and 
 especially so where jurisdiction is conferred." JBoothbay v. Race, 68 
 — 551. 
 
 15. Another rule of practical value is, that where the clause relates 
 to circumstances which do not affect the essence of the thing to be 
 done, it may be regarded as directory. Ih. 
 
 See Wat, 169. 
 
 (b) Effect upon pending actions, and existing causes of action. 
 
 16. An act will not be held to apply to past transactions or inter- 
 fere with actions pendifig at the time of its passage, unless it is plain 
 that no other construction can fairly be given. Rogers v. Oreenhush, 
 58-395. 
 
 17. Chapter 199, Public Laws of 1868, limiting the right of recov- 
 ery of non-resident tax-payers to money raised for an unlawful purpose 
 does not apply to past transactions or interfere with actions pending. 
 Ih. 
 
 18. The Statute of 1838, c. 344, § 4, which provided that it should 
 
 33 
 
514 STATUTES. 
 
 be necessary to the validity of an attachment of real estate that the 
 plaintiff should set out in his writ, specifically, the demand or claim 
 on which his action is founded, applied to suits pending at the time 
 the act took effect as well as to those subsequently commenced. Poor 
 V. JLarrabee, 58 — 543. 
 
 19. The last clause of R. S., 1871, c. 1, § 3, providing that actions 
 pending at the time of the passage or repeal of an act, shall not be 
 affected thereby, does not apply to a petition for the location of a 
 highway, pending before a board of county commissioners. Webster 
 V. Co. Com., 63—27. 
 
 20. Petitions pending before county commissioners, are not actions 
 within R. S., 1871, c. 1, § 8, providing that pending actions shall not 
 be affected by the passage or repeal of a statute. Webster v. County 
 Commissioners, 64 — 434. 
 
 21. The act of 1873, c. 91, required an appeal from the decision of 
 county commissioners to be taken before the next term of court, 
 after "their return has been placed on file," instead of after "it has 
 been entered of record," as was previously the law. Held, that the 
 act affected cases before the commissioners, where the next term af- 
 ter the placing of the return on file had passed before its passage and 
 their decision not entered of record until after, and an appeal was by 
 it made impossible. lb. 
 
 22. The act authorizing towns to bring suits for the recovery of 
 taxes, is retroactive and applies to taxes assessed before its passage. 
 
 York V. Goodwin, 67 — 260. 
 
 23. Where a right has arisen upon a contract, or a transaction in 
 the nature of a contract, authorized by statute, and has been so far 
 perfected that nothing remains to be done by the party asserting it, 
 the repeal of the statute does not affect it, or an action for its enforce- 
 ment. It becomes a vested right, which stands independent of the 
 statute. State v. Waterville Savings Bank, 68 — 515. 
 
 24. By the law of 1875, savings banks were required to make cer- 
 tain returns of their deposits to the State treasurer, and were made 
 liable for a tax, for which, if unpaid when due, the State treasurer 
 might issue a warrant of distress. The law of 1876 gave a remedy 
 by action. The law of 1877, c. 218, revising the laws relating to tax- 
 ation of savings banks, repealed the act of 1876. Seld, that the re- 
 peal did not defeat the right of the State to recover a tax which a 
 savings bank was liable to pay at the time of the repeal. 1 b. 
 
 (c) Generally. 
 
 25. It was held, that the specific enumeration in the act of Congress, 
 requiring legal documents to be stamped, excluded all not thus enum- 
 erated. Angier v. Smalley, 58 — 425. 
 
 26. Of otheb States. In the absence of proof, the statutes of 
 another State will be presumed to be similar to our own. McKenzie 
 V. Ward-well, 61—136. 
 
 27. A number of persons signed an agreement to take stock in an 
 association, to be formed pursuant to the provisions of R. S., 1871, c. 
 48, and several assessments were voted, but the parties failed to com- 
 plete the organization of the corporation. Subsequently a portion of 
 the associates procured an act of incorporation to effect the object 
 
STATUTES — STJPEEIOK COUBT. 615 
 
 contemplated, in which the organization of the original association, 
 "and all their doings and by-laws" were ratified and made legal, so 
 far as might constitutionally be done. Held, that the act did not 
 authorize the incorporated company to recover of those not members 
 of it, but who had signed for stock in the original association, the 
 assessments made by the association. Richmond Factory Asso. v. 
 Clarke, 61—351. 
 
 28. Re-knactment. When a statute has received a judicial con- 
 struction, and is afterwards re-enacted in the same terms, the legisla- 
 ture is understood to have adopted the construction given. Jones v. 
 Skinner, 61—25. French v. Co. Com., 64—583. Cotta v. Hoss, 66 
 --161. Tuxbury, appt., 67—267. 
 
 29. Revision. When the principal object in a revision of the 
 statutes, is "to revise, collate and arrange the Public Laws of the State 
 and condense as far as practicable," a mere change of phraseology is 
 not to be regarded a change of the law, unless a change was evidently 
 intended by the legislature. French v. County Commissioners, 64 
 —583. 
 
 80. If, in a revision of the statutes, there are omissions, it is not for 
 the court to assume the omissions to be accidental, and then insert by 
 construction what may have been omitted by design. Union Ins. 
 Co. V. Oreenleaf, 64—123. 
 
 31. The words of an act must be construed as though spoken at 
 the time the act takes effect, and not at the date of its actual passage. 
 Jackman v. Garland, 64 — 133. 
 
 32. Genbeal tbkms. In the construction of a statute, the mean- 
 ing of general terms is to be determined by the context. State v. 
 McCann, 67—372. 
 
 33. All the existing statute provisions upon a particular topic, 
 should be examined to ascertain the meaning of each ; and a meaning 
 which is found to be incompatible with any plain provision must be 
 rejected. Merrill v. Crossman, 68 — 412. 
 
 34. Penal. The statute giving the loser an action to recover back 
 money lost at gambling is remedial. JBeals v. Thurlow, 63 — 9. 
 
 See Penalty, 3, p. 421. 
 
 35. But that portion of the statute which authorizes any person 
 not the loser to recover of the winner treble the amount of his unlaw- 
 ful gains is penal. lb. 
 
 See Intoxicating Liquoks, 13, p. 315. „ 
 
 Mills, 1, p.^364. ^ . " , J 
 
 SUPERIOR COURT. 
 
 1. The finding of the justice of the superior court upon matters of 
 fact, in cases tried by him without a jury are conclusive. Montine v. 
 Beake, 57 — 37. Kneeland v. Webb, 68 — 540. Sazen v. Jones, 68 — 
 343. 
 
 2. Where exceptions are taken to the rulings and decision of the 
 judge of the superior court, as to the liability of the trustee to be 
 
516 StrPERIOE COUET — StrUETY. 
 
 charged, the whole case may be re-examined by the law court. Simp- 
 son Y. Bibber, 59 — 196. 
 
 3. When a case is tried before the justice of the superior court, his 
 findings in matters of fact are not finally conclusive until rendition of 
 judgment. If exceptions are filed and sustained, the case goes back 
 for trial de novo. Mosher v. Jewett, 63 — 84. 
 
 4. Where a cause was brought before this court from the superior 
 court of Cumberland county, under an agreement that if the jury 
 would be authorized to find a verdict for the plaintiff upon the 
 testimony reported, the defendant was to be defaulted ; otherwise the 
 action to stand for trial ; and the evidence showed a conflict upon sev- 
 eral questions of fact ; this court refused to determine the case and 
 discharged the report. Nickerson v. Mills, 61 — 74. 
 
 5. Whether or not it is proper to invoke the decision of this court, 
 in such cases, where there has been no action of the superior court, 
 and the report does not present the rights of the parties, quaere. 
 
 6. Section 21, c. 77, R. S., providing that exceptions deemed frivo- 
 lous and intended for delay, may be transmitted to the chief justice, 
 and argued in writing as therein required, relates exclusively to excep- 
 tions in the supreme judicial court. Thorn v. Mosher, 60 — 463. 
 
 7. An action to set aside a verdict in a criminal case, rendered in 
 the superior court, must be addressed to and decided by the justice of 
 that court. State v. Garland, 63 — 121. 
 
 8. The January term of the superior court may be adjourned to a 
 day in February, and the February term held during the interval. 
 State V. Boardman, 64 — 523. 
 
 See Pleading, 89, p. 432. 
 
 SURETY. 
 
 I. LIABILITY. 
 II. WHEN DISCHARGED. 
 III. CONTRIBUTION. 
 
 I. LIABILITY. 
 
 1. The defendant's husband borrowed fourteen hundred doUars of 
 the plaintiff, for which he then gave his promissory note, and, at the 
 same time, agreed to procure a good additional signer the next day. 
 Eighteen months afterwards, in the sick-room of the husband where 
 he was confined to his bed in his last sickness, and four days prior to 
 his death, the defendant, without receiving any consideration therefor, 
 in the absence of the plaintiff, in ignorance of her husband's agree- 
 ment, but at his request, placed her name upon the back of the note. 
 In an action on the note against her, held, that she was not liable. 
 Sawyer v. Fernald, 59 — 500. 
 
 2. One who signs a note as surety is not released from liability 
 because the signatures preceding his, upon the strength of which he 
 was induced to sign, prove to be forgeries, the party taking the note 
 being ignorant of the forgery. Chase v. Hathorne, 61 — 505. 
 
SURETY. 517 
 
 3. If a note, payable to the order of a person named therein, after 
 its signature by principal and sureties, is sold by the principal to a 
 third person not the payee, without the consent of the sureties, they 
 are not liable upon it. lb. 
 
 4. The consent of a surety upon a note, that the principal may sell 
 it to any person other than the payee named therein, need not be 
 express, but may be inferred from the situation of the parties and the 
 course of their business transactions. lb. 
 
 See Bills and Notes, 7, p. 60. 
 Judgment, 30, p. 326. 
 
 II. WHEN DISCHARGED. 
 
 5. If the creditor makes a valid contract with the principal, giving 
 him further time, without the consent of the surety, the latter is dis- 
 charged. Andrews v. Marrett, 58 — 539. 
 
 6. The taking of a new security, payable at a future day, by opera- 
 tion of law and without any agreement to that effect, suspends the 
 right of the creditor to enforce payment until the new security matures. 
 lb. 
 
 7. Where the holder of an overdue non-negotiable promissory note, 
 knowing one of the makers to be a surety, accepted from the principal 
 new notes for the same debt, part of which were payable at a future 
 day, and agreed that the original note should remain in his hands as 
 collateral security for the payment of the new ones, all without the 
 knowledge of the surety ; held, that by this arrangement the surety 
 was discharged. lb. 
 
 8. A. procured, for his own accommodation, the acceptance of B. by 
 giving the latter as collateral security his own promissory note signed 
 by the defendant as surety. Before the acceptance became due A. 
 procured another acceptance of B., which he had discounted, and with 
 the avails thereof and other money paid the former acceptance. This 
 course of procedure continued several times. Meld, that the surety 
 was discharged. Thomas v. Stetson, 59 — 229. 
 
 9. The ABANDONMENT OF AN ATTACHMENT of property in a suit 
 against one surety on a note, constitutes no bar to the maintenance 
 of a subsequent suit against the co-surety. Ohipman v. Todd, 60 
 —282. 
 
 10. If the creditor, with the consent of the sureties, releases the 
 principal debtor, upon the payment of a sum less than the amount of 
 the debt, the sureties are not thereby discharged. Osgood v. Miller, 
 67—174. 
 
 11. The failure of the selectmen to examine the accounts of a town 
 treasurer, as directed by R. S., c. 6, § 152, will not affect the liability 
 of the sureties upon his bond. N"or will a surety be released if the 
 selectmen, failing to detect an error in addition, certify the treasurer's 
 account to be correct, when, in fact, there is a deficit j even if this 
 certificate be made known to the surety soon after its entry upon the 
 treasurer's books, and while the treasurer has attachable assets enough 
 to cover the deficit, though he subsequently dies insolvent. Farming- 
 ton V. Stanley, 60 — 472. 
 
 12. If a surety give the creditor his individual notes, under an 
 agreement, not known to the principal, that the notes when paid shall 
 be in full discharge of the original contract, and only a part of the 
 
518 SUBETY. 
 
 notes are paid, this does not discharge the principal, nor suspend the 
 right of action against him upon the original contract and he may be 
 held for so much as remains due thereon after deducting the amounts 
 paid by the surety. Emery v. Richardson, 61 — 99. 
 
 13. A verdict and judgment, i-endered in a suit upon a joint and 
 several note in favor of one surety, will not be a bar to another suit 
 against another surety upon such note, unless it is shown that the first 
 verdict was rendered upon a defense which would be an extinguishment 
 of the cause of action ; or unless the grounds of defense set up in both 
 cases are shown to be identical. Hill v. Morse, 61 — 541. 
 
 14. The PATMBNT OF EXTRA iNTEEBST by the principal debtor to the 
 creditor, followed by mere forbearance to sue, is not of itself suffi- 
 cient evidence of a contract for delay to discharge the suretv. Eaton 
 V. Waite, 66—221. 
 
 15. A verbal request by the surety to the creditor to bring a suit, 
 with an offer to point out property of the principal debtor to be at- 
 tached and of a bond of indemnity against costs, but without a ten- 
 der of such bond, does not impose upon the creditor the duty of pro- 
 ceeding against the principal debtor at the peril of discharging the 
 surety. lb. 
 
 16. If the holder of a note becomes a party to an assignment by 
 the principal debtor of his property for the benefit of his creditors 
 under the statute, at the request of the sureties on the note, and with 
 their written agreement that by doing so the holder should release no 
 right against the sureties, and that the sureties would pay the differ- 
 ence between the amount of the notes and what might be received as 
 dividends, the discharge of the principal does not release the sureties, 
 nor is the right of action of the holder against the sureties suspended 
 until final distribution under the assignment, but, if after collection of 
 the note from the sureties, the holder should receive any dividends 
 under the assignment he would hold them as trustee for the surety. 
 First JVat. Banlc v. McKenney, 67 — 273. 
 
 III. CONTRIBUTION. 
 
 17. A surety who has been discharged from his primary liability 
 upon a bond may be held to contribute to reimburse a co-surety for 
 any sum he may be subsequently compelled to pay. Hill v. Morse, 
 61—541. 
 
 18. The general rule is that a surety who defends an action brought 
 for money deficient can not claim contribution of his co-sureties for 
 costs, unless he was authorized by them to defend. Hichborn v. 
 Fletcher, 66—209. 
 
 19. One surety may be discharged from his principal obligation 
 without discharging his co-sureties, but this does not relieve him from 
 his liability to them for contribution. lb. 
 
 20. If one surety pays the debt after suit brought but before judg- 
 ment, (or, it seems, before suit) he may compel a co-surety to contri- 
 bute, although the creditor by giving time to the principal debtor had 
 released the sureties, if the surety at the time of making the payment 
 had no knowledge of such release and was guilty of no neglect in such 
 want of knowledge. lb. 
 
SURTETORS OF HIGHWAYS — TAX. 519 
 
 SURVEYOKS OF HIGHWAYS. 
 See Wat, 108. 
 
 TAX. 
 
 I. 
 
 WHAT IS TAXABLE. 
 
 II. 
 
 WHERE AND TO WHOM. 
 
 III. 
 
 ASSESSMENT. 
 
 
 (a) Gbneballt. 
 
 
 (b) Desceiption of the PEOPBJttxj;. 
 
 IV. 
 
 ABATEMENT. 
 
 V. 
 
 COLLECTION. 
 
 
 (a) Genbballt. 
 
 
 (b) Sale of land. 
 
 
 (c) By suit. 
 
 VI. 
 
 TAX DEEDS. 
 
 VII. 
 
 REMEDIES FOR ILLEGAL TAXATION. 
 
 L WHAT IS TAXABLE. 
 
 1. Railroad Property. Personal property belonging to a rail- 
 road corporation, not composing any part of its capital stock, is lia- 
 ble to be taxed where it has its place of business. P. S. dt P. H. H. 
 Co. r. Saco, 60—196. 
 
 2. The provision "that the track of the road and land on which it 
 is constructed," shall not, for purposes of taxation, "be deemed real 
 estate," does not exempt from taxation depots and other erections of 
 railroads upon land owned by them. lb. 
 
 3. Vote to Exempt. A town voted to exempt from taxation "any 
 improvements that may be made upon the water power" of a stream, 
 " by the erection of mills and buildings for manufacturing purposes." 
 Held, that a tannery operated by steam power, situated above the 
 dam which made the water power available, and drawing water from 
 the stream, which apparently might be as easily drawn without any 
 dam or improvements on the stream, was not within the terms of the 
 vote. Plaisted v. Lincoln, 62 — 91. Post, 10. 
 
 See Constitutional Law, p. 105. 
 
 4. The property of a missionary society, incorporated for the pur- 
 pose of diffusing christian knowledge and intelligence, is exempt from 
 taxation. Convention v. Portland, 65 — 92. 
 
 5. The tax upon savings banks provided by the statute of 1872, 
 c. 74, as amended in 1875, c. 47, § 1, is one upon the franchise of the 
 bank, and becomes a subsisting debt only when the return of the 
 average amount of its gross deposits is or should be made, and not a 
 tax upon deposits which accrues as soon and as often as each deposit 
 is made. Jones v. Winthrop Savings Bank, 66 — 242. 
 
 6. Such tax can not be recovered of a bank whose charter had ex- 
 pired by force of a decree of sequestration before the time had arrived 
 when the return should be made. Ih. 
 
520 TAX. 
 
 7. The trustees of the defendant bank, on April 29, 1876, voted to 
 close the bank for the present, and arranged with the depositors to 
 scale down their deposits 12|- per cent, the depositors exchanging 
 their books for new ones. These arrangements being consummated, 
 the bank, on November 14, 1876, resumed business ; and its treasurer 
 returned the reduced amount to the State treasurer, upon which a 
 tax was assessed. Held, that the assessment was valid and binding ; 
 that the tax having been legally assessed and due, a right of action 
 existed by statute for its recovery, and that the repeal of the act, 
 under which the assessment had been made, did not vacate a pre: 
 vious assessment duly made under then existing statutes, for the 
 recovery of which a right of action was given. Maine v. Waterville 
 Savings Bank, 68 — 515. 
 
 8. CoEPOEATioNS. When two or more corporations, with a special 
 immunity from general taxation, the amount of such taxation being 
 dependent upon certain precedent acts to be done by such corporation 
 thus to be exempted, are incorporated into a new corporation which 
 is not required, and is unable to perform the acts which must precede 
 such special taxation, the new corporation can not claim the special 
 immunity belonging to the corporations out of which it is composed. 
 State V. Maine Central R. R. Co., 66 — 488. 
 
 9. Corporations formed by the action of the mortgagees, and those 
 formed by the consolidation of pre-existing corporations, are new cor- 
 porations, and both by the rules of the common law and by the express 
 terms of the statutes, as such new corporations are subject to 
 the general law of 1831, making the charters of corporations liable 
 to amendment by the legislature, and are consequently liable to 
 taxation. lb. 
 
 10. The charter of the Portland Water Company granted in 1869, 
 authorized the city council "to exempt any property of said corpora- 
 tion, not now in existence, from taxation for the term of six years." 
 In 1870 the city council passed an order "that the property of the 
 Portland Water Company be exempted from taxation for five years." 
 In an action by the city to recover a tax assessed in 1874, held, (1) 
 that the legislature had the power to pass such an enactment, (2) that 
 under the right to exempt for six years, an exemption for five years 
 was valid, (3) that the exemption must be voted, if at all, within a 
 reasonable time, (4) that, und^r the circumstances, the exemption 
 was voted within a reasonable time, (5) that the term of exemption 
 commenced from the vote allowing it. Portland v. Water Company, 
 67—185. 
 
 11. As to the EXTENT OF THE EXEMPTION, held, (1) that real estate 
 owned by the company was taxable for what it would have been 
 worth had no additions or improvements, enhancing its value, been 
 placed thereon, by the company after 1867. It was in existence then, 
 whether owned by the company or not. (2) That personal property 
 held by the company in 1874, and acquired by it after 1867 should 
 be considered as newly created property, and not taxable, although 
 more or less of it, may have been in existence in other forms and con- 
 ditions before 1867. lb. 
 
 12. Geneva Award. The interest of a claimant under the award 
 of the "Tribunal of Arbitration" on the Alabama claims was not tax- 
 able in the year 1876, the amount to be received being contingent 
 
TAX. 621 
 
 until after April 1st of that year, the award being for a gross sum 
 from one government to the other, and no specific appropriation hav- 
 ing been made by Congress for the payment of the judgment until 
 April 11, 1876. JBucksport v. Woodman, 68 — 33. 
 
 II. WHERE AND TO WHOM. 
 
 13. The piling of sawed lumber upon a wharf to season, and the 
 payment of wharfage therefor, do not constitute such an occupation 
 of the wharf as is contemplated in R. S., c. 6, § 14, clause 1. Stock- 
 well V. lirewer, 59 — 286. 
 
 14. For the purpose of taxation, the firm, and not an individual 
 member of it, is the owner of the partnership property. lb. 
 
 15. Hence, where the plaintiff was a member of a firm, residing and 
 carrying on a lumber business in Bangor, and also of another firm 
 owning a wharf in Brewer, — he cannot be taxed in Brewer for his 
 portion of the former firm's lumber piled on the wharf of the latter 
 firm to season, and for which the former firm pays wharfage to the 
 latter. lb. 
 
 16. Where a shipmaster, a resident of Brooklyn, N. T., went to sea 
 in 1866, and his wife, shortly after, came to Augusta with her chil- 
 dren and trunks to visit her mother, and remained there until 1867, 
 when she returned to Brooklyn to meet her husband upon his return, 
 and it did not appear that the husband owned any real or personal 
 estate in Augusta, or had any intention to change his domicile, it was 
 held that he was not taxable in Augusta. Porterfield v. Augusta, 67 
 — 556. See Domicile, p. 188. 
 
 III. ASSESSMENT. 
 
 (a) Gbnbeally. 
 
 (b) Description of the peopeett. 
 
 (a) Generally. 
 
 17. By virtue of the Public Laws of 1865, c. 319, assessors are not 
 concluded by lists made and returned in conformity with R. S. of 
 1857, c. 6, § 53, as amended by c. 318 of the Public Laws of 1862. 
 Gilpatrick v. Saco, 57 — 277. 
 
 18. When the inhabitant of a town has returned to the assessors a 
 list of his property as required by R. S., 1857, c. 6, § 51, which is 
 vague and imperfect, the assessors may add thereto a sum for "other 
 personal property." lb. 
 
 19. The law will not sanction the aggregation of the several sep- 
 arate and distinct estates owned by a non-resident proprietor, into 
 one valuation and assessment. Greene v. Lunt, 58 — 518. Ndson v. 
 Bicker, 63—381. 
 
 20. An assessment made by assessors, becoming such in conse- 
 quence of having been previously chosen selectmen, is properly 
 signed by them as assessors, without stating that they are selectmen 
 acting as assessors. Gould v. Monroe, 61 — 544. 
 
 21. When, on the division of a town, a certain portion of the 
 indebtedness of the town is to be paid by the inhabitants of that por- 
 tion which forms the new town, to be assessed and collected by the 
 officers of the old town, the assessment may include, not only the sum 
 
522 TAX. 
 
 to be raised, but also the usual and proper allowance for abatements 
 and expenses. Vbse v. Frankfort, 64 — 229. 
 
 22. MiSNOMBE. A collector of taxes may justify the taking of 
 chattels belonging to a corporation, the name of which is incorrectly 
 stated, both in the assessment and tax list, through the mistake of the 
 assessors, to pay a tax for which such corporation would have been 
 legally responsible had its true name appeared upon the assessors' 
 books and tax list. Proof of such mistake, and parol evidence to 
 identify the corporation intended to be taxed, is competent in a suit 
 by the corporation against the collector, whenever his proceedings are 
 in other respects regular. Farnsworth Co. v. Hand, 65 — 19. 
 
 23. Those measures which are intended for the security of the 
 citizen, for insuring an equality of taxation, and to enable every one 
 to know with reasonable certainty for what he is taxed, and for what 
 all those who are liable with him are taxed, are conditions precedent, 
 and if they are not observed he is not legally taxed. Boothbay v. 
 Bace, 68—351. 
 
 24. Notice to being in Lists. Since the remedy for a party 
 illegally assessed, which is now embodied in R. S. of 1871, c. 6, § 
 114, the requirement in R. S., c. 6, § 65, that the assessors shall give 
 notice to the inhabitants of a town to bring in their lists of taxable 
 property before proceeding to make an assessment, is no longer a con- 
 dition precedent to a valid assessment. lb. 
 
 (b) Description of the property. 
 
 25. The certificate duly assigned by the assessors, "that the fore- 
 going pages contain an inventory of polls and estate, real and personal, 
 liable to be taxed in" a town named, sufficiently indicates that the 
 real estate described above lay in such town. Greene v. Lunt, 58 — 
 518. Greene v. Walker, 63—311. 
 
 26. In the assessment of taxes on land of resident owners, the par- 
 cels taxed must be definitely and distinctly described, or no lien will 
 attach. lb. 
 
 27. Thus, neither of the following descriptions is sufiicient : "Part 
 of the two river lots joining N. Walker's and Pettingill farm, lots 1 
 and 2, range 1, 100 acres ; " "One-half of lot north-westerly of Luther 
 Jackson's farm, lot 2, range 2, 50 acres ; " "A piece of land between 
 A. J. Churchill and J. H. Weymouth, part of lot 7, range 3, 27 
 acres; " "One-half island opposite S. Holmes', 15 acres;" "A part of 
 E. A. Pollard's farm, lot 6, range 5, 25 acres ; " "The lot being south- 
 erly and joining J. P. Hopkins' and S. R. ISTewell's wood-land, lot 3, 
 range 4, 60 acres." G^reene v. Bunt, 58 — 518. 
 
 28. But each of the following is sufficient : "The island opposite N". 
 Walker's, and above Alden's Ferry ; " "Second lot from S. Holmes', 
 lot 4, range 3, 100 acres ; " "Second lot from D. L. Conant's land, lot 
 3, range 8, 85 acres ; " "Larry Farm on the hill formerly owned by 
 S. Roberts, being part of lot 1, in ranges 3 and 4, 75 acres ; " and 
 "Second lot from J. Lunt's, lot 6, range 3, 100 acres." lb. 
 
 29. It is sufficient if the assessors so describe the land of non-resi- 
 dents taxed by them as to identify it with reasonable certainty. 
 French v. Patterson, 61 — 203. 
 
 30. The description, "Orrin Emerson, or unknown, about 175 acres, 
 
TAX. 523 
 
 4th range, 17 school district, part of the Craig lot, value $875, amount 
 of tax, $15.93," held sufficient. Ih. 
 
 31. Such description is sufficient also in the advertisement of land 
 to be sold for taxes. Ih. 
 
 32. In an assessment of taxes, and tax deed, a description, "2 
 acres of land, house, boom, and privileges, shore of lots one and two," 
 is void for uncertainty. Orono v. Veazie, 61 — 431. 
 
 33. "Eighteen tons of hay, $540," is a sufficiently definite descrip- 
 tion of the property in the -assessment. Donnelly. Webster, QS — 15. 
 
 34. A description, "land east corner of Congress and Exchange 
 streets, extending through to Market," is uncertain. Bingham v. 
 Smith, 64—450. 
 
 IV. ABATEMENT. 
 
 35. The assessors of a town gave notice that they would meet on 
 April 1, at a place appointed, for the purpose of receiving lists of 
 polls and estates. During a portion of the day only one assessor 
 was present at the place appointed. At some time during the day, 
 the assessors went to the place of business of a tax payer, who had 
 not appeared before them at the place appointed, and received from 
 him a paper purporting to be a statement of his taxable property, 
 which he made oath to before them, and answered their questions 
 concerning his property. On the fourth day of April the assessors 
 proposed further questions to the tax payer who answered them in 
 writing, but refused to sign and swear to the answers. Held, that he 
 had not complied with the statute (R. S., 1871, c. 6, §§ 66, 67,) and 
 that the county commissioners had no jurisdiction upon a petition by 
 the tax payer for an abatement of the tax assessed by the assessors. 
 Freedom v. Co. Com., 66—172. 
 
 36. The authority of the assessors to require a tax payer to answer 
 all proper inquiries in writing as to the nature and situation of his 
 property, and if required, subscribe and make oath thereto, is not 
 limited to the first day of April, but may be exercised within a rea- 
 sonable time thereafter, if the inquiries are predicated upon the pos- 
 session and ownership of property on April 1. lb. 
 
 37. An application to the assessors for the abatement of a tax need 
 not be in writing unless expressly requested by them. Levant v. Co. 
 Com., 67—429. 
 
 38. The application to the county commissioners however must 
 necessarily be in writing. Ih. 
 
 39. It is not enough that the applicant answer certain proper 
 inquiries by the assessors as to the nature and situation of his prop- 
 erty. He must answer all such inquiries. lb. 
 
 V. COLLECTION. 
 
 (a) GbnkkalIjT. 
 
 (b) Bt sale of land. 
 
 (c) By suit. 
 
 (a) Generally. 
 
 40. Neither § 11, nor § 22, of article 1, of the constitution of this 
 State, limits or restricts the power of the legislature to repeal any 
 
524 TAX. 
 
 statute by whicli taxes have been imgosed, or to prohibit the collec- 
 tion of taxes after they have been duly assessed and committed to 
 the collector. Augusta v. Iforth, 57 — 392. 
 
 41. The plaintiff, a non-resident of Bangor, was duly assessed 
 therein, upon his shares of stock in the First National Bank. After 
 legal demand, the plaintiff, refusing to pay the tax upon the warrant 
 of the collector of the city, issued April, 1870, was duly arrested by 
 the sheriff of the county in the following May, for the tax, which the 
 plaintiff then paid under protest, together with costs to the officer 
 and he to the city treasurer. In assumpsit to recover the money thus 
 paid, held, (1) that the collection of such tax is to be enforced in 
 accordance with the general law ; and (2) that c. 209 of Public Laws 
 of 1868 related exclusively to the assessment, and in nowise affected 
 the collection of taxes duly assessed under previously existing laws. 
 
 Weld V. Bangor, 59—416. 
 
 42. A collector of taxes, acting under a warrant to make a partial 
 collection of the assessments committed to him, is exonerated from 
 completing the service under such warrant if it directs an exemption 
 from distress of "property not exempted by statute. Ornemlle v. 
 Pearson, 61 — 552. 
 
 43. Sale of Peopeett. The words "the distress shall be openly 
 sold," in R. S., 1871, c. 6, § 104, do not authorize a collector of taxes 
 to sell additional articles after enough have been sold to pay the tax 
 committed to him and the expense of sale. Seekins v. Goodale, 
 61—400. 
 
 44. There is no law requiring property seized for taxes by a collec- 
 tor to be sold in the town where it is distrained. Carville v. Addi- 
 ton, 62—459. 
 
 45. It is no objection to the validity of the sale that one of the 
 four days during which the distress was kept was Sunday. lb. 
 
 46. Or that the fees of the officer were eight cents a mile one way 
 instead of four cents a mile each way. lb. 
 
 47. Where land has been sold by a collector of taxes for an 
 amount sufficient to cover taxes and expenses, and the purchaser has 
 paid that amount, there is no further claim upon the lands or their 
 owner for those taxes whether the purchaser gets a good title or not. 
 Farnsworih Co. v. Rand, 65 — 19. 
 
 48. But when property seized by the collector has been replevied 
 from him by the owner on account of a defect in the proceedings, 
 and without being in any manner appropriated to the payment of the 
 tax, the tax may be subsequently collected. lb. 
 
 See CoLLECTOE, p. 93. 
 
 (b) JBy sale of land. 
 
 49. Eeeoes Remedied by R. S., c. 6, § 114. The sale of land for 
 taxes will not be illegal because the lists of assessments upon the polls 
 and estates required by R. S., c. 6, § 70, contain no description of the 
 lands assessed other than the number of acres and the numbers of the 
 lots and ranges in which they are situated. Greene v. Ziunt, 58 — 518. 
 
 50. Nor because it does not affirmatively appear that a "record of 
 the assessment and of the invoice and valuation from which it was 
 made," "or a copy of it," was deposited in the assessors' or clerk's 
 
TAX, 625 
 
 office, "before the taxes were committed to the proper officer for col- 
 lection." lb. 
 
 51. Nor because the warrant to the collector for the collection of 
 State, county and town taxes also contained a direction to collect a 
 certain "sum voted by the inhabitants of school district, No. 9," when 
 it did not appear that the provisions of R. S., 1857, c. 11, § 39, had 
 been complied with. lb. 
 
 52. Nor because it contained a direction to collect a deficient high- 
 way tax when it did not appear that the highway surveyor gave the 
 statute notice to the delinquent tax-payer, or returned to the assessors 
 the lists required by R. S., c. 18, § 48. lb. 
 
 53. Nor because it does not appear that prior to the notice of sale, 
 the collector made a demand on the owner for the tax on the land 
 advertised. lb. 
 
 54. Nor because the collector's notice of (sale did not designate 
 the owner's "right," or contain any sucfc description of the land "as 
 is necessary to render it certain and plain," other than the number of 
 acres and the number of lot and range. lb. 
 
 55. Nor because there was no evidence that the owner was noti- 
 fied of the sale as required by R. S., c. 6, § 168, except so far as it 
 appeared from the collector's return upon the back of the notice, and 
 in his "return with a particular statement of his doings in making the 
 sale," that he has "given the notice of said intended sale as required 
 bylaw." lb. 
 
 56. Nor because the collector's return to the town treasurer was not 
 made within four days of the time notified for the sale, but was made 
 within four days of the time to which the sale was adjourned and 
 actually made. lb. 
 
 57. The Sale. In order to authorize the sale of an entire parcel 
 of land for taxes, it should distinctly appear of record that the sale 
 of the whole "was required to pay the tax, interest, and charges," and 
 that no person would pay the sum required for a fractional part of 
 the land. French v. Patterson^ 61 — 203. 
 
 58. It should appear that the treasurer offered for sale to pay these 
 sums, a fractional part of the land ; or that no person would pay the 
 amount due for a less quantity of land than the whole parcel. lb. 
 
 59. A return by the treasurer, that he "sold so much of the estate 
 as was sufficient to pay the amount due," does not show that he did 
 not sell piore than "was required" therefor. Ih. 
 
 60. Adveetisement. In the sale of land for non-payment of taxes, 
 the land assessed and sold must be accurately described. Chiffin v. 
 Cretin, 60—270. 
 
 61. Thus in the notice of the State treasurer's annual sale of lands 
 in places not incorporated, and forfeited for State and county taxes, 
 certain land, situated in township No. 8, South Division, in Hancock 
 county, consisting of twenty thousand acres, was advertised and 
 described as follows : " Track No. 8, S. D. Advertised 4197 ; held, 
 that the description was too vague to pass the title. lb. 
 
 62. When taxes are set to different persons, or upon different and 
 distinct rights, numbers of lots, or divisions, each right, number of 
 lot, or division, must be separately advertised, and sold. Nason v. 
 MicTcer, 63—881. 
 
526 TAX. 
 
 63. A record of the State treasurer reads thus : "Previous to said 
 sale, I caused notice of the time and place of sale, and lists of said 
 tracts intended for sale, with the amount of said unpaid taxes, interest 
 and costs, on each parcel, to be published three weeks successively as 
 follows, viz : 1. In the Kennebec Journal, the State paper, a list of 
 all said tracts. 2. In the Ellsworth American, a newspaper printed 
 in the county of Hancock, a list of all said tracts which lie in that 
 county," does not show that he published in such papers the amount 
 of such taxes, etc., but only a list of the lands taxed. Tolmam, v. 
 Hohhs, 68—316. 
 
 (c) JBy suit. 
 
 64. In an action by a collbctoe to recover a poll tax assessed 
 upon one not an inhabitant of the town at the time the tax was 
 assessed, the defendant may go behind the warrant and show the tax 
 to be illegal. McCrilUs v. Mansfield, 64—198. 
 
 65. An action by a collector, against an administrator of an insolvent 
 estate, to recover taxes assessed against the intestate, may be main- 
 tained without having laid the claim before the commissioners of insol- 
 vency appointed upon the estate. Bulfinch v. Jienner, 64 — 404. 
 
 _ 66. By Town. Under the Act of 1874, c. 232,>giving towns the 
 right of action to recover unpaid taxes, held, that an action would lie 
 to recover a tax assessed before the statute became operative. York 
 V. Goodwin, 67—260. 
 
 67. Also that the demand, required by the act to be made before 
 the action could be maintained, might be made by the collector. li. 
 
 68. The fact that a warrant for the collection of the tax was in the 
 hands of the collector, by whom the demand was made, is no objec- 
 tion to the maintenance of the suit. lb. 
 
 69. It seems that if a suit is brought it is a waiver of procedure 
 by arrest or distraint. lb. 
 
 70. An action may be maintained by a town against a tax payer to 
 recover the amount of his tax without proof that the direction of the 
 statute, (R. S., 1871, c. 6, § 65,) that the assessors shall give notice to 
 the inhabitants of the town to bring in their lists of taxable property 
 before proceeding to make an assessment, has been complied with. 
 Boothbay v. Bace, 68 — 351. 
 
 VI. TAX DEEDS. 
 
 • 
 
 71. Where in the trial of a writ of entry, the plaintiff's title depends 
 upon a tax sale, his production of the treasurer's deed, the assess- 
 ments, warrants and proof of advertisement in pursuance of R. S., 
 1857, c. 6, § 145, make only a prima facie case. Orono v. Veazie, 
 57—517. 
 
 72. While setting up a tax-title, the plaintiff is making out aprima 
 facie case, by proofs on his part, the defendant may contest the suffi- 
 ciency of the plaintiff's evidence to establish the requirements of the 
 statute, without being required to pay or tender the amount of "taxes 
 charges, and interest." lb. See also French v. Patterson, 61 — ^203. 
 
 73. But if he would go further and introduce proof and take advan- 
 tage of all illegalities in the raising, assessing and collecting of the 
 
TAX. 627 
 
 tax, he must make the payment or tender required by the statute. 
 lb. 
 
 74. The claimant under a tax deed can not invoke the provisions 
 of R. S., 1871, c. 6, § 174, requiring payment or tender of the amount 
 of the tax, charges and interest, by the defendant before he can con- 
 test the validity of such deed, where the land m controversy was 
 sold for a gross sum with other land. Phillips v. Sherman, 61 — 548. 
 
 75. DBSCRiPTioisr. A tax deed describing the premises as "one- 
 fourth, No. 5, R. 8, W. E. L. S.," is void for vagueness of descrip- 
 tion. Larrabee v. Sodgkins, 58 — 412. 
 
 76. Parol evidence is not admissible to identify land insufficiently 
 described in an assessment and tax deed. Orono v. Veazie, 61 — 
 432. 
 
 77. As the law was in this State in 1835, in order to sustain a title 
 under the tax deed from a county treasurer, it must affirmatively ap- 
 pear that the provisions of law, preparatory to and authorizing a sale 
 of land for taxes, had been strictly complied with. Savage v. Holy- 
 oke, 59—345. 
 
 78. The KECITALS in a tax deed, that the officer executing it, com- 
 plied with the requirements of the statute in advertising and selling 
 the land, must be proved by extrinsic evidence. Five years' posses- 
 sion by the complainant, raises no presumption of law that the stat- 
 ute has been complied with. Phillips v. Sherman, 61 — 548. 
 
 79. The recitals in a tax deed, unless made so by statute, are not in 
 themselves evidence of a compliance with the statute in making the 
 sale. Nason v. Picker, 63 — 381. 
 
 80. The deed of the treasurer of a town, of land sold for the non- 
 payment of taxes, under R. S., c. 6, § 160, so describing himself in 
 the deed, and signing it as treasurer, is only the personal deed of the 
 treasurer, and will not avail or aid in making out & prima facie title, 
 under § 162. Treat v. Smith, 68—894. 
 
 VII. REMEDY FOR ILLEGAL TAXATIOST. 
 
 81. Ovee-Valtjation. If the assessors of a town make upon one of 
 the inhabitants an over-valuation or assess him for property not owned 
 by him, his only remedy is by application for abatement in accordance 
 with R. S., 1857, c. 6, §§ 54, 55. Gilpatrick v. Saco, b7—277. 
 
 82. Illegal Assessment. Assumpsit can not be maintained by a 
 resident owner to recover from his town money paid under protest to 
 redeem land sold for taxes, raised for a legal purpose but assessed in 
 an irregular or defective manner. Pogers v. Gheenbush, 58 — 390. 
 
 83. Pbotest. The form of protestation under which a tax is paid 
 with a view of recovering it back is immaterial, but it must be more 
 definite than a general complaint of injustice or inequality. It must 
 be a distinct and definite protest against paying the particular tax on 
 the ground of its illegality. lb. 
 
 84. Under R. S., c. 6, § 114, a tax-payer can not in an action for 
 money had and received, recover "any damages he has sustained, by 
 reason of the mistakes, errors, or omissions," of the assessors, collector, 
 or treasurer. Grilman v. Waterville, 59 — 491. 
 
 85. An action under c. 6, § 114, to recover such damages can not 
 
528 TAX — TELEGRAPH. 
 
 be sustained, 'when it does not appear that the plaintiff has paid more 
 than his tax ; or more than he ■would have paid, if the mistakes, errors, 
 or omissions had not occurred ; or that he has in his person or property 
 suffered injury on that account. Ih. 
 
 86. Sums paid for extra interest as well as those paid to a "prosecu- 
 ting committee," but not raised for those purposes by a vote of the 
 town, can not be deemed to be included in a tax and be recovered 
 back as being "raised for an illegal purpose." Ih. 
 
 87. A sum assessed to pay a disputed claim against the town, which 
 has been settled in good faith, and in the exercise of a sound discretion, 
 can not be considered as '■'■not raised for a legal object." Vbse v. 
 Frankfort, 64—229. 
 
 88. Want of Jueisdiction in the Assessors. A person, whose 
 property has been sold to pay an assessment which was illegal for want 
 of jurisdiction in the assessors, may recover damages to the extent of 
 his injury in an action of tort against the assessors ; or he may recover 
 the proceeds of the sale in assumpsit against the town. Ware v. 
 Percival, 61—391. 
 
 89. Having elected assumpsit, and the judgment therein recovered 
 having been satisfied, the party aggrieved is estopped to set up the 
 tort, the waiver of which was the foundation of his suit in assumpsit, 
 and can not maintain an action against the assessors. lb. 
 
 90. A collector is not liable in trespass for arresting one whose 
 name is borne upon the tax-lists committed to him for collection, 
 though such person be not liable to assessment in the taxing town, 
 when assessed. Nowell v. Tripp., 61 — 426. 
 
 91. If a tax payer, who is properly assessed for certain personal 
 property in a town, is also assessed for certain other property alleged 
 to be taxable therein, but which is taxable in another town, his reme- 
 dy is not by suit against the town to recover the tax paid upon the 
 last mentioned property under protest, but by application to the 
 county commissioners. Waite v. Princeton, 66 — 225. 
 
 See Pkactice, 114, p. 450. 
 
 TELEGRAPH. 
 
 1. A telegraph operator is bound to testify to the contents of a mes- 
 sage. State V. Litchfield, 58 — 267. 
 
 2. A rule adopted by a telegraph company, that it will send mes- 
 sages at night at half the usual rates, on condition that the company 
 shall not be liable for errors or delay in the transmission or delivery, 
 or for the non-delivery of such messages, from whatever cause occur- 
 ring, and shall only be bound in such case to return the amount paid 
 by the sender, is unreasonable and void. Nor is it, when assented to 
 by the sender, valid as a contract between the parties. True v. In- 
 ternational Telegraph Co., 60 — 9. Bartlett v. 'Western Union Tel. 
 Co., 62—209. 
 
 3. In an action against a telegraph company for damage for negli- 
 gence in transmitting a message, evidence of the "nature of the busi- 
 ness, how it is carried on, and its liability to error and mistake," is 
 
TBLEGEAPH — TENDER — TIME. 529 
 
 not admissible as an excuse for the negligence. Bartlett v. Western 
 Union Tel. Co., 62—209. 
 
 4. If the plaintiff shows that the company undertook to send the 
 message and did not send it correctly, if the company would excuse 
 themselves, the burden is upon it to show that the failure was caused 
 by some agency for which it was not responsible. lb. 
 See Damages, p. 154. 
 
 TENDER. 
 
 1. A tender which can not legally be accepted need not be made. 
 Woods V. Gooke, 61—215. 
 
 2. When money has been tendered before or after suit brought, the 
 defendant, to keep his tender good, must bring it into court on the 
 return day of the term at which the entry of the action, to which the 
 tender applies, is made. Pillsbury v. Willoughby, 61 — 274. 
 
 3. If the party to whom a tender should be made, by the terms of 
 a contract, refuses to receive a sum as small as that required to be 
 tendered, the formal tender is waived. Mattocks v. Young, 66 — 467. 
 
 See Accord and SATisFACTiour, 7, p. 8. 
 Equity, 92, p. 205. 
 MoETGAGE, 48, p. 374 ; 70, p. 376. 
 Real Action, 10, p. 473. 
 SciEB Facias, p. 508. 
 Tax, 71, p. 526. 
 
 TIME. 
 
 1. The maxim that in law there are no fractions of a day does not 
 apply to proceedings in bankruptcy, where the exact time when the 
 event occurred is made certain by record ; therefore, where a debtor's 
 property was attached at seven o'clock in the afternoon of March 8, 
 and his petition in bankruptcy under the TJ. S. Bankruptcy Act of 
 1867, was filed at 2 o'clock and fifty minutes in the afternoon of the 
 8th of July next succeeding ; held, that under § 14, the attachment 
 was dissolved, the time between the two events falling short of four 
 months by four hours and ten minutes. Westbrook Manufacturing 
 Go. V. Grant, 60—88. 
 
 2. When the debt is due absolutely, and the happening of a future 
 event is fixed upon as a time for payment merely, and the future 
 event does not happen as contemplated, the law implies a promise to 
 pay in a reasonable time. Grooker v. Holmes, 65 — 195. 
 
 See Bills and Notes, 12, p. 61. 
 Law and Fact, 7, p. 339. 
 
 84 
 
530 TITLE TO PEOPEETT — TOLL BRIDGE — TOWTST. 
 
 TITLE TO PROPERTY. 
 
 1. "Whoever takes a title to real estate in litigation, pendente lite, 
 ■will be bound by the judgment or decree in the suit. Crooker v. 
 Orooker, 57—395. 
 
 2. One who purchases real estate while a bill in equity is pending 
 in relation to the title thereto, is bound by the decree which may be 
 made against the party from whom he takes his title, although the 
 purchaser is not a party to the bill. /Snowman v. Harford, 57 — 397. 
 Snowman v. Harford, 62 — 434. 
 
 3. A title to a particular tract of land, derived from the govern- 
 ment is superior to one derived from the aborigines. Penobscot 
 Tribe v. Veazie, 58 — 402. Granger v. Avery, 64 — 292. 
 
 4. If one places a house on the land of another, without his consent, 
 the building, prima facie, becomes the property of the owner of the 
 soil. Bonney v. Foss, 62 — 248. Sullivan v. Garberry, 67- — 531. 
 
 5. For a lis pendens to affect a purchaser, there must be something 
 in the pleadings, at the date of the purchase, to point his attention to 
 the property purchased, as the identical property in litigation. Jones 
 V. McJSTarrin, 68—334. 
 
 See Accession, p. 7. Insueancb, 4, p. 300. 
 Dbvise and Legacy, p. 175. Lost Goods, p. 355. 
 
 ExECUTOE AND Adminis- Monet, p. 369. 
 
 TEATOE, 2, p. 256. Replevin, 11, p. 484. 
 
 PixTUEE, p. 267. Sale, 21, 28, p. 463. 
 
 Gift, p. 281. Tebspass, 21, p. 540. 
 
 Heies, p. 283. Will, 13. 
 
 TOLL BRIDGE. 
 
 See "Wat, or State v. Madison, 59 — 538. State v. I^orridge^ 
 wock Bridge, 65 — 514. 
 
 TO"WN. 
 
 I. POWERS AND LIABILITIES. 
 
 (a) Liability fob WBONSFtrL acts of its officbes. 
 
 (b) Generally. 
 II. MEETINGS. 
 
 (a) Waebant ajstd bbtukn. Notice. 
 
 (b) Votes. 
 
 III. TOWN OFFICERS. 
 
 IV. DIVISION OF TOWNS. 
 V. TOWN LINES. 
 
TOWN. 631 
 
 I. POWERS AND LIABILITIES. 
 
 (a) Liability for wrongful acts of its officers. 
 
 1. If the persons employed by the municipal officers of a town to 
 make an excavation in a vacant lot, ■without the limits of a public 
 street, are guilty of actionable negligence, in not placing lights around 
 such excavation, the town itself is not liable. Morgan v. Hallowell, 
 57— -375. 
 
 2. Towns and other public corporations are not liable for the unau- 
 thorized or wrongful acts of their officers, though done in the course 
 and within the scope of their employment. Brown v. Vinalhaven, 
 65 — 402. Lynde v. Rockland, 66 — 309. Woodcock v. Calais, 66 — 
 234. Barbour v. Ellsworth, 67—294. 
 
 8. This principle has no proper application to a case where the 
 penal sum of a collector's bond was altered and increased by the 
 principal after delivery, with the consent of the selectmen, and the 
 attempt was made by the town to maintain a suit on the bond upon 
 the ground that the alteration was one which the selectmen were not 
 empowered by law or by the town to permit. Dover v. Robinson, 
 64—183. 
 
 4. A municipal corporation, which, by its agents or servants, and 
 without justification or excuse, does acts which are prima fade acts 
 of trespass, is liable to a suit by the person injured. Cumberland S 
 0. 0. Co. V. Portland, 62—504. 
 
 5. SuKVBTOKS OF Highways when performing their official duties 
 upon highways, come within the rule generally, and third persons in- 
 jured thereby can not invoke against the corporation, the rule of 
 respondeat superior. Woodcock v. Calais, 66 — 234. 
 
 6. But when street commissioners are expressly directed by an or- 
 der of the city council to remove all fences on the public streets, and 
 afterwards a commissioner causes a surveyor to run the line between 
 the plaintiff's land Pand the street, and the line as run proves to be 
 outside the line of the street, and upon the plaintiff's land, but the 
 commissioner believing the line to be correctly ascertained, moves 
 back the plaintiff's fence in accordance therewith, the city is liable for 
 the trespass. lb. 
 
 7. The case shows that the plaintiff built her fence by first erecting 
 a wall of split stone, some two and one-half feet high, on the side next 
 to the street, but filled with earth on the side next to the lot, and up- 
 on the wall placed a light wooden fence. Held, that the wall consti- 
 tuted a part of the fence, within a fair construction of the special 
 order, under which the commissioner was acting, and his removing 
 the wall, earth, and wooden fence, was done in the course of his 
 employment, and the city must respond. Woodcock v. Calais, 68 — 
 244. 
 
 8. Small Pox. A town or city is not liable to an action for the 
 wrongful acts of its health committee, or other officers in taking pos- 
 session of a house and using it for a small pox hospital, without the 
 consent of the owner, and against his wishes and remonstrance. 
 Lynde v. Rockland, 66—309. 
 
 9. If the owner of the house would obtain just compensation for 
 its use, under the provisions of E. S., 1871, c. 14, he should sue in 
 
532 TOWN. 
 
 assumpsit, -with proper averments to establish the legal liability of the 
 city to pay rent or a just compensation. Ih. 
 
 (b) Generally. 
 
 10. A city is not liable for an injury received by a traveler, by 
 falling into an excavation unguarded by lights or railing, situated 
 ■without the limits of a street, in a vacant lot whither he voluntarily 
 went, in the evening, to witness the licensed exhibition of a circus. 
 Morgan v. SalloweU, 57 — 375. 
 
 11. The constitution does not authorize a town to refund money 
 given to it without expectation of repayment. Perkins v. Milford, 
 59—315. 
 
 12. A town cannot incur expenses in opposing before a legislative 
 committee, a division of its territorial limits. WestbrooTc v. Deer- 
 ing, 63—281. 
 
 IB. Loan of Monbt. "Where a town voted to pay a certain sum 
 for men mustered into the service for three years, and credited upon 
 its quota, it was held, that an inhabitant who had been drafted for 
 one year, and who received of the town the sum voted, to enable him 
 to procure a substitute for himself and a three years' man for the town 
 quota, was not entitled to recover of the town a sum paid by him to 
 such substitute, in excess of the bounty voted, on the ground that it 
 was money loaned to the town. Warren v. j)urham, 61 — 19. 
 
 14. After a town had voted "that the selectmen be instructed to 
 raise money," for a purpose for which the town had no right to raise 
 money, the selectmen hired the money, gave their individual note for 
 it, and paid it out in accordance with the vote. The money never 
 went into the town treasury, was not drawn out upon the order of the 
 selectmen, and made no part of their official account when- they set- 
 tled with the town. Held, that the money paid by the selectmen 
 could not be considered a loan to the town. Gomins v. Eddington, 
 64—65. 
 
 15. The lender of money, borrowed by the officers of a town or 
 plantation, for the alleged use of the town or plantation, is bound 
 to show the appropriation of the money to the legitimate expenses of 
 the town or plantation. It is not sufficient merely to show money 
 lent by the plaintiff upon the representations of its officers, that it 
 was required for legitimate expenses. Sessey v. Unity, 65 — 342. 
 
 16. Disputed Claim. A town has the power to settle a disputed 
 claim against it, provided it is done in good faith, and in the exercise 
 of sound discretion. Vbse v. Frankfort, 64 — 229. 
 
 17. Foe Peopeett desteoted by Mob. In a suit against a town 
 to recover damages for property destroyed by a mob, an instruction 
 that if the plaintiffs used all reasonable means to discover the offend- 
 ers, and communicated their information to the county attorney, and 
 were ready to follow his suggestions, it was sufficient, although they 
 never made complaint to the grand jury ; and a refusal to instruct that 
 it was the duty of the plaintiffs to furnish their information to the 
 municipal officers of the town, were held correct. Brightman v. 
 Bristol, 65—427. 
 
 18. Town House. Within reasonable limits, a town may exercise 
 its discretion as to the size of the town house it will build. Jones v. 
 Sanford, 66—585. 
 
TOWN. 633 
 
 19. A town may make a contract to allow a dramatic company the 
 free use of its town hall for the period of six years, when not wanted 
 for town business, in consideration that the company will make cer- 
 tain additions and alterations to the hall at its own expense. lb. 
 
 20. Bt-laws. Ordinances or by-laws of municipal corporations, 
 to be valid, must be reasonable and not oppressive in their character. 
 lb. 
 
 21. Whether a local ordinance is reasonable or not is a question of 
 law for the court. lb. 
 
 22. Municipal corporations are endowed with certain judicial or 
 quasi judicial powers to be exercised, not for their own private con- 
 venience or profit, but as a part of their public duty, for the further- 
 ance of those things necessary or convenient to the community at 
 large. The performance of these duties, involving as they do the ex- 
 ercise of judgment, as to the time and manner of accomplishment, as 
 a general rule, impose no liability to an action for private injury result- 
 ing from acts within their jurisdiction. When these acts cease to be 
 judicial and become ministerial only, then for negligence or omission, 
 an action may be maintained by a person suffering injury thereby. 
 Darling v. Bangor, 68 — 108. 
 
 23. Thus the maintenance of sewers and drains, as they are neces- 
 sary to the public health, or to keep the roads in a safe condition, 
 comes within these judicial powers ; the manner of building and keep- 
 ing them in repair, are usually considered as ministerial duties. lb. 
 
 See Constitutional Law, p. 108. 
 Ratipication, 3, p. 471. 
 
 II. MEETINGS. 
 
 (a) Waekant and ebtubn. Notice. 
 
 (b) Votes. 
 
 (a) Warrant and return. Notice. 
 
 24. A town meeting, otherwise legally called, is not invalid on 
 account of an illegality in the election of the selectmen who called it, 
 they being officers de facto. Gushing v. Frankfort, 57 — 541. 
 
 25. An AETicLB, "to see if the town will vote to pay the same 
 bounty to those who may enlist after" a specified time, "as is now 
 paid by the town to those who enlisted before that time," does not 
 authorize a vote to pay a larger bounty. Austin v. York, 57 — 304. 
 
 26. An article in a warrant for a town meeting is sufiicient, if it 
 gives notice, with reasonable certainty, of the subject matter to be 
 acted upon. Belfast & M. L. R. Co. v. Brooks, 60—568. 
 
 27. Thus, where the only mode provided in the charter of a rail- 
 road, by which towns interested therein may aid in its construction, 
 is a subscription for its stock, an article in a warrant for a town meet- 
 ing "to see if the town will loan its credit to aid in the construction 
 of the" railroad named, gives reasonable notice, that a proposition to 
 subscribe for stock wiU be acted upon, and will authorize such 
 action. lb. 
 
 28. Where, under such an article, the town authorized its select- 
 men to subscribe, in behalf of the town, for stock in the railroad 
 named to the amount of sum specified, without designating the kind 
 
534 TOWN. 
 
 of stock, and the selectmen subscribe for the "non-preferred stock," 
 the town is bound by the selection made. Ih. 
 
 29. Under an article in a warrant "to see if the town will set off a 
 part of districts numbers nine and seventeen" to form a new school 
 district, it is not competent for the town to set off a portion of a dis- 
 trict not specified in the warrant. Butterfield v. School District, 61 
 —583. 
 
 30. When a town is authorized to loan its credit, by a two-thirds 
 vote, at a meeting to be called "for that purpose," if the article in the 
 warrant for the meeting sufficiently designates the purpose, it is no 
 objection that other articles are in the warrant calling attention to 
 business requiring only a majority vote. Canton v. Smith, 65 — 203. 
 
 31. When a town is authorized, by a public act of the legislature, 
 to loan its credit, it is not necessary to allude to the act in the article 
 in the warrant calling the meeting at which the credit is voted. lb. 
 
 32. Manner of Notice. The statute provision, (R. S., 1871, c. 3, § 
 7,) authorizing towns to appoint a mode in which the notice for town 
 meetings may be given, gives to the towns the power to determine the 
 manner and time (within certain limits) of the notice. Jones v. San- 
 ford, 66—585. 
 
 33. This provision, however, merely confers upon towns a right to 
 pass an ordinance or by-law. lb. 
 
 34. Length. A vote of a town requiring three months' notice for 
 an ordinary town meeting is unreasonable ; is an abuse rather than a 
 fair use of the power conferred and is invalid. lb. 
 
 See Plantation, 10, p. 423. 
 School House, p. 500. 
 
 (b) Votes. 
 
 35. A town can not by a majoeitt vote waive, change, or modify 
 the terms and conditions of a vote of two-thirds, in oases where the 
 vote of two-thirds was required to bind the town. Portland <& 
 Oxford Central B. R. Co. v. Hartford, 58—23. 
 
 36. And where the town, at a subsequent legal meeting, by a major- 
 ity of the inhabitants present and voting, voted, "To issue bonds to 
 the Portland & Oxford Central Railroad Company, for the sum named 
 in the previous vote, taking a like amount of preferred stock in said 
 road, in exchange, as contemplated in" the former vote. Held, (1) 
 that as the vote passed by only a majority, the company could claim 
 no rights under it, as a vote under c. 119 ; (2) that the majority 
 could not waive the condition of the former vote ; and (3) that the 
 latter vote does not, in terms, purport to modify the conditions of the 
 former. lb. 
 
 See Condition, 10, p. 96. 
 
 39. A resolution of a town authorizing the selectmen to subscribe 
 for stock in a railroad, without designating the kind of stock, binds 
 the town to the selection made by the selectmen in a subscription for 
 "non-preferred stock." Belfast & Moosehead Lake B. B. Co. v. 
 Brooks, 60—568. 
 
 40. Two-Thibds. Where a statute authorizes a town to enter into 
 a contract, upon a two-thirds vote so to do, and after such vote, a 
 proposition is made by the town to enter into the contract, but not 
 
TOWN. 535 
 
 accepted by the other party, it may withdraw its offer by a majority 
 vote. Belfast & Moosehead Lake R. E. Co. v. Unity, 62 — 148. 
 
 41. It seems that a minority even, larger than one-third, may 
 rescind the vote and withdraw the offer. lb. 
 
 42. Under a statute authorizing towns to raise money to a certain 
 amount, "and to appropriate the same to aid in the construction of 
 any railroad in this State, in such manner as they shall deem proper, 
 provided two-thirds of the legal voters present and voting at such 
 meeting, shall vote therefor," held, that to bind the town it must be 
 shown that not only the raising of the money but its appropriation to 
 aid in the construction of the railroad, and the manner of its appro- 
 priation must be settled by the two-thirds vote. Portland <& Ogdens- 
 burg R. H. Co. v. Standish, 65 — 63. 
 
 43. Where the record shows that the requisite two-thirds majority 
 was obtained on the vote to raise the money, but as to the manner of 
 its appropriation only shows that the town "voted" to subscribe for 
 stock, there is no implication that the last vote was by the two-thirds, 
 but rather the contrary that it passed by a majority. lb. 
 
 44. When a town is authorized to loan its credit, by a two-third» 
 vote, at a meeting to be called for that purpose, the vote may be 
 passed at an adjournment of a meeting properly called, and the 
 adjournment may be by a majority vote. Canton v. Smith, 65 — 208. 
 
 45. If a town authorizes certain action on the part of its selectmen, 
 upon condition that a specified bond be given to the town, and, upon 
 failure to give the bond required, subsequently authorizes such a bond 
 as shall be satisfactory to and accepted by certain town officers, the 
 second vote authorizes a change of obligors and of the form and sub- 
 stance of the bond. lb. 
 
 46. It is in general competent for the town to adopt or reject the 
 proposition submitted by an article in the warrant, wholly or in part, 
 or to adopt it with specific limitations or conditions. Buchsport c6 
 Bangor B. R. Co. v. Buck, 68—81. 
 
 47. A vote of a town as follows : "Chose H. agent to settle with the 
 railroad company, and sell the balance of the town landing if he thinks 
 it will be for the interest of the town to do so, and to settle all other 
 matters with the railroad company," does not limit the power of H. 
 to sell to the railroad company but gives him authority to sell and to 
 execute a deed to the purchaser, which shall bind the town. Noble- 
 boro V. Clark 68—87. 
 
 See School Disteiot, 11, 14, p. 500. 
 Tax, 3, p. 119. 
 
 III. TOWN OFFICERS. 
 
 48. Db Facto. Although a town meeting at which certain persons 
 were elected selectmen of the town, was invalid by reason alone of a 
 defect in the constable's return upon the warrant, they were, never- 
 theless, selectmen, de facto ; and as such, had a right to call other 
 town meetings during their official term. Gushing v. Frankfort, 
 57—541. 
 
 49. The question of the validity of the election of selectmen, who 
 issued a warrant for a town meeting during their official term, is not 
 open to the town when it appeai-s that they were officers de facto, 
 and that the meeting was otherwise legal, lb. 
 
536 TOWN. 
 
 50. Oath. A certificate that the town clerk "took the oath neces- 
 sary to qualify him to discharge the duties" of clerk, "according to 
 law," is, under R. S., 1857, c. 1, § 6, sufficient evidence that the oath 
 prescribed in c. 3, § 14, was administered. Greene v. Imnt, 58 — 518. 
 
 51. If a COMMITTEE of the city council of Portland are duly au- 
 thorized to make a written contract, such contract is not binding on 
 the city unless executed by a majority of the committee. Curtis v. 
 Portland, 59—483. 
 
 52. The failure of the selectmen to examine the accounts of a 
 town treasurer, as directed by R. S., c. 6, § 152, wiU not affect the 
 liability of the sureties upon his bond. Farmington v. Stanley, 
 60—472. 
 
 53. Nor will a surety be released if the selectmen, failing to detect 
 an error in addition certify the treasurer's account to be correct, when, 
 in fact, there is a deficit ; even if this certificate be made known to 
 the surety soon after its entry upon the treasurer's books, and while 
 the treasurer has attachable assets enough to cover the deficit, though 
 he subsequently dies insolvent. lb. 
 
 54. Where the persons who subscribed for railroad stock, signed 
 the subscription as selectmen, therein referring to the vote under 
 which they acted, and were the same persons who called the town- 
 meeting at which the vote was passed, it will be presumed, in the 
 absence of any evidence, that any other persons had been elected or 
 had acted as selectmen, that they were the selectmen. Selfast tfc 
 M. L. B. R. Co. V. Brooks, 60—568. 
 
 55. If a town votes to raise money to make a donation of money 
 to certain individuals and the selectmen raise the money upon their 
 own credit and make the payments contemplated by the vote, they 
 stand in no better position than the beneficiaries under the vote and 
 can not recover of the town the amount paid by them. Comins v. 
 JEddington, 64 — 65. 
 
 56. AssESSOKS. At a legal town meeting, if, after certain persons 
 are duly chosen selectmen, the town votes that "the selectmen be 
 assessors," such persons are legally chosen assessors. Gould v. Mon- 
 roe, 61 — 544. 
 
 57. City Physician. The ordinances of a city provided that the 
 city physician should receive an annual salary to be fixed by the city 
 council, and also that in cases of small-pox, or other infectious disease, 
 he should receive such additional compensation as the city council 
 should allow. Held, that in all cases of small-pox, not only among 
 paupers, but also among those not paupers, attended to by him for 
 the city he was bound to accept such compensation as the city coun- 
 cil should allow. Preble v. Bangor, 64 — 115. 
 
 58. A city teeasubee, as such, has no authority to agree upon the 
 amount to be paid one who has rendered the city a service for which 
 he is entitled to receive a reasonable compensation. Calais v. 
 
 'Whidde7i, 64—249. 
 
 59. A city solicitoe, or representative in the legislature, is under 
 no obligation to aid in the adjustment of a claim of a city against the 
 State, and for so doing is entitled to a reasonable compensation. lb. 
 
 60. A town, having furnished supplies to a pauper whose settle- 
 ment was in one of two other towns, and being uncertain which, 
 
TOWN. 537 
 
 brought suit against each, when the selectmen of one of th§ defend- 
 ant towns agreed with the plaintiff, without any special authority, 
 that their town should assume the prosecution of the suit against the 
 other town and pay all taxable costs in case the prosecution should be 
 unsuccessful. Meld, that the selectmen had authority to make such a 
 contract. Industry v. StarJcs, 65 — 167. 
 See Agekct, 9, p. 13. ^ 
 Teoyek, 6, -p. 545. 
 
 IV. DIVISION OF TOWNS. 
 
 61. Where a town authorized its selectmen to raise money by loan, 
 and make a contract for the construction of a bridge, which they 
 accordingly did, but before the contract for its construction was made 
 the town was divided, the new town to pay a certain part of the lia- 
 bilities of the old existing at the time of the division, held, that the 
 new town was not liable for any part of the expense of the bridge. 
 
 Westbrook v. Deering, 63 — 231. 
 
 62. When a part of a town was set off and annexed to another town 
 a commissioner was appointed to determine the liabilities and assets 
 of the town, and also the number and nature of the liabilities and 
 assets the precise amount of which can not be determined. The part 
 set off was to pay a certain proportion of the liabilities of the town 
 and of the contingent liabilities when determined. The town had at 
 an illegal meeting voted to issue orders to certain persons who had a 
 valid claim against the town for bounties voted at a previous legal 
 meeting. These original claims for bounties were not in terms men- 
 tioned by the commissioner in his report but the amount of the orders 
 was placed by him in the list of claims, "the amount of which could 
 not then be determined." Held, that the report of the commissioner 
 did show the original valid liability for the bounties, on the ground 
 that the orders were the form and the claim the substance, or that the 
 valid debt might be substituted for the void security, and that the 
 assessment of the tax to pay the claims was a sufficient determination 
 of the amount. Vose v. Frankfort, 64 — 229. 
 
 63. When a part of a town is set off and annexed to another town 
 with a provision that the part set off shall pay a fixed proportion of 
 the liabilities of the town at the time of the separation, the amount 
 to be assessed and collected by the officers of the old town, the 
 expense of collection and the necessary abatements are to be included 
 in the assessments. Ih. 
 
 V. TOWN LINES. 
 
 64. The territorial limits of a town can be changed only by the 
 authority of the legislature. Bethel v. Albany, 65 — 200. 
 
 65. When the precise locality of the common limit between adjoin- 
 ing towns is a subject of controversy the decision of commissioners, 
 appointed under R. S., 1871, c. 3, § 43, to determine the line, is con- 
 clusive, and there seems to be no power in the court to reject their 
 report simply because they may possibly have erred in judgment in 
 ascertaining the true line. Jb. 
 
 66. Although, where two termini of a line between towns are estab- 
 lished, the intermediate line will be deemed a straight one, yet any 
 
538 TOWN — TRESPASS. 
 
 intermediate monument outside of the straiglit line being more cer- 
 tain than the course will govern it. lb. 
 
 67. If the commissioners to determine a disputed line between 
 towns can not find upon the face of the earth sufficient evidence to 
 enable them to ascertain and determine the line as formerly laid out, 
 resort must be had to rules of construction and the line run accord- 
 ingly as if it were projected for the first time. Bremen v. Bristol, 
 66—355. 
 
 68. When the act establishing the boundaries of a town, after 
 defining several boundaries, proceeded, "thence easterly so as to 
 include Long Island and Hog Island, crossing the bar between Hog 
 Island and Loud's Island, thence to the first mentioned bound." In 
 fact the course "easterly" did not include the islands named. Held, 
 that the inaccuracy of the course must give way to the certainty of 
 the island monuments ; that to include the islands meant the whole of 
 them, to low water ; that crossing the bar meant passing clear across 
 the entire width of the bar on the line of low water ; and that when 
 the western limit of the bar was reached the line should run by a 
 straight line from that point "to the first mentioned bound." lb. 
 
 69. This construction must prevail although a small part of a head- 
 land is attached to the town from which it is separated by water, 
 instead of the town joining it by land. lb. 
 
 70. Whatever may have been the real intention of the legislature, 
 the expressed intention must govern. lb. 
 
 71. When the act of incorporation makes a stream one of the 
 boundary lines of a town, the centre of the stream is the boundary 
 line. Perkins v. Oxford, 66 — 545. 
 
 See Fees, p. 265. 
 
 TRESPASS. 
 
 I. WHEN THE ACTIOJ^ WILL LIE. 
 
 (a) Fob injubies to kbal estate. 
 
 (b) Fob injubies to personal estate. 
 
 (c) Foe injubies undbb pbocess of law. 
 
 (d) Fob injubies to the peeson. 
 11. PLEADING AND PRACTICE. 
 
 in. EVIDENCE. 
 
 I. WHEN THE ACTION WILL LIE. 
 
 (a) For injuries to real estate. 
 
 1. Where, by the terms of the lease, the lessor retained a right of 
 occupation of the barn, for the storage of hay and other chattels, he 
 may maintain trespass quare clausum against a stranger for entering 
 and carrying away the hay. Jordan v. Staples, 57 — 352. 
 
 2. A TENANT may maintain trespass quare clausum against his 
 landlord, for an unlawful entry upon him before the tenancy is termi- 
 nated. Bryant v. Sparrow, 62 — 546. Marden v. Jordan, 65 — 9. 
 
TRESPASS. 539 
 
 3. Trespass quare clausum may be maintained by the owner of real 
 estate for an injury done to the free-hold, notwithstanding it was in 
 the possession of a tenant at will, at the time of the injury. Seavey 
 V. Prehle, 64—120. 
 
 4. An action of trespass can not be maintained against a surveyor of 
 highways for removing fences standing within the limits of the loca- 
 tion of a highway in his district, when their continuance has been less 
 than forty years next after the location of the highway. Whittier v. 
 Mclntire, 59—143. 
 
 5. Section 7, c. 74, of the Special Laws of 1821, did not take away 
 from the plaintiffs the common-law remedy of trespass quare clausum. 
 Cumberland & Oxford Canal Corporation v. Ilitchings, 59 — 206. 
 
 6. A railroad corporation is not liable under R. S. of 1857, c. 51, § 
 25 (R. S. § 22) for trespasses and injuries to lands and buildings 
 adjoining, or in the vicinity of its road committed by contractors or 
 the servants of contractors. Eaton v. E. & JV. A. _R. Co., 59 — 520. 
 
 7. When a wife has been divorced from her husband for his fault, 
 and has left her furniture and other property upon his premises, he 
 can not maintain trespass quare clausum against her servants, after 
 divorce, for peaceably entering at her command and removing her 
 goods and chattels so left. jETallook v. Perry, 61 — 273. 
 
 8. CoBTTiNTTiNG Trespass. Trespass quare clausum is the proper 
 remedy against one for wrongfully continuing a building upon the 
 plaintiff's land and for the erection of which he has already recovered 
 compensation. Russell v. £rown, 63 — 203. 
 
 9. The unlawful filling up of the plaintiff's land is an injury for 
 which successive actions may be maintained until the wrong-doer is 
 compelled to remove the obstruction. Cumberland & Oxford Canal 
 Co. V. Hitchings, 65 — 140. 
 
 10. Possession alone, though for a less time than twenty years 
 gives the possessor a title sufficient to enable him to maintain trespass 
 against every one who can show no better title. Maxwell v. Mitchell, 
 61—106. 
 
 11. One who, without being in constant occupation of the premises, 
 has out the grass and standing growth from year to year, and paid the 
 taxes, claiming title under a conveyance, has such possession as will 
 enable him to maintain trespass against a stranger. Mitchell v. £laok, 
 64—48. 
 
 12. He must be deemed a stranger who can show no better or older 
 title or possession. lb. 
 
 13. One who has a eight of way over land has not such posses- 
 sion, or right of possession, as will support an action of trespass quare 
 clausum against one who uses the way by permission of the owner of 
 the land. Morgan v. Boyes, 65 — 124. 
 
 14. The gist of the action of trespass quare clausum is an unlawful 
 entry. Wills v. Oilman, 66—273. 
 
 15. A MOETGAGEB is not liable in trespass to the mortgager for an 
 entry upon the mortgaged premises, in the absence of any stipulation 
 in the mortgage restraining the mortgagee from taking possession, 
 although at the time of the entry the mortgagee does not claim to 
 enter under the mortgage, but under a claim of title to the crops by 
 virtue of an invalid parol agreement. lb. 
 
540 TEESPASS. 
 
 16. Trespass quare clausum may be maintained by the husband 
 for an injury to the real estate of the wife, he being in possession of 
 the same irrespective of any right acquired by virtue of the marriage 
 relation. Wass v. Plummer, 68 — 267. See Bradford v. Hanscom, 
 68—103. 
 
 17. The farm in question belonged to the defendant's wife. A 
 portion of the stock and farming tools upon it belonged to her, and a 
 portion to him. He carried on the farm for several years for his and 
 her support, without any agreement whatever between them, in the 
 same manner as if his own. Disagreements growing up between 
 them, she conveyed the farm to the plaintiff by an absolute deed. 
 During the summer after the conveyance, the plaintiff exercised 
 acts of possession over the property, and so did the defendant. On 
 the 7th of September, the defendant removed and carried away, 
 against the protestation of the plaintiff, the principal part of the 
 manure on the place, for which act he is sued in this action of quare 
 clausum. Held, that the action could be maintained. Norton v. 
 Craig, 68—275. 
 
 18. If a person having lawful authority to enter the land of another 
 for one purpose, forcibly enters, for a different purpose, or to enter 
 one part of it, enters another part of it, he thereby becomes a tres- 
 passer, lb. 
 
 See Executor and Administeatob, 16, p. 257. 
 Landlord and Tenant, 30, p. 336. 
 Mills, 4, p. 364. 
 
 (b) For injuries to personal estate. 
 
 19. The lien given by R. S., c. 23, § 4, in the action of trespass is 
 not one that gives the right of possession to the party injured; but it 
 can only be enforced by attachment. Mosher v. Jewett, 59^453. 
 
 20. An action of trespass de bonis to recover for timber and trees 
 cut from land mortgaged is properly brought by the executor of the 
 deceased mortgagee for the benefit of the person beneficially inter- 
 ested under the will, if the severance was before the death of the 
 mortgagee. Brooks v. Goss, 61 — 307. 
 
 21. The assignee of a permit to cut timber can maintain trespass 
 against an officer who attaches the lumber after it is cut as the prop- 
 erty of the assignor. Sawyer v. Wilson, 61 — 529. 
 
 22. Exclusive possession of property, even if wrongful, will, enable 
 the possessor to maintain trespass against a mere wrong doer. Adams 
 V. McGlinchy, 66—474. 
 
 (c) For injuries under process of law. 
 
 23. If an officer sell on execution the personal property of the 
 execution debtor, at an adjourned sale, without having posted up pub- 
 lic notice of the time and place of such sale, forty-eight hours prior 
 thereto, in two or more public places in the town or place of sale, as 
 required by R. S., c. 84, §§ 4 and 5, the sale will be void, and the 
 officer a trespasser db initio. Hayes v. £uzzell, 60 — 205. 
 
 24. An action of trespass lies against an officer who attaches the 
 goods of a stranger, notwithstanding they are so intermingled with 
 those of the debtor that the officer cannot distinguish them, if the 
 
TRESPASS. 541 
 
 owner is present and offers to select his, and is prevented from so 
 doing by the officer. Yates v. Wormell, 60 — 495. 
 
 25. If an officer, after selling goods sufficient to satisfy his precept, 
 sells other goods seized, he will become a trespasser ab initio as to so 
 much of the property as is sold in excess of his authority, but not as 
 to all taken and sold. Seekins v. Goodale, 61 — 400. 
 
 26. A ministerial officer is protected in the execution of process, 
 whether the same issue from a court of general or limited jurisdiction, 
 although such court has not in fact jurisdiction in the jjarticular case, 
 provided it appears on the face of the process that the court has 
 jurisdiction of the subject matter, and nothing appears in the same to 
 apprise the officer but that the court had also jurisdiction of the person 
 of the party affected by the process. N'owell v. Tripp, 61 — 426. 
 
 27. An officer who sells attached property upon mesne process, with- 
 out giving the notice required by law, becomes a trespasser ab initio, 
 and will not be permitted to show in defense of a suit against him 
 that the conveyance of the attached property by the debtor named in 
 such process to the party suing the officer was fraudulent and void as 
 to creditors. Sawyer v. Wilson, 61 — 529. 
 
 28. A notice of a sale of attached goods, defective for want of suffi- 
 cient time, is not cured by a postponement of the sale, on the day 
 appointed therefor, to one remote enough to answer the statute 
 requirement; and the officer selling the property on the day of 
 adjournment is liable in trespass. lb. 
 
 29. An officer can not defend himself against a suit for taking liquors 
 upon a void warrant by showing that they were subsequently libelled, 
 and the forfeiture of them declared, if these proceedings were initiated 
 by such warrant. Ghiptil v. Richardson, 62 — 257. 
 
 30. If an officer seizes liquors on a valid warrant but neglects to 
 libel them and file the libel with the court or magistrate to which the 
 warrant is returnable, and who has authority to receive it, the officer 
 becomes a trespasser ab initio. lb. 
 
 31. After an officer has filed a libel against liquors seized by him, it 
 is the duty of the magistrate to cause notices thereof to be posted 
 according to law, and the officer does not become a trespasser ab initio 
 if the notices are not posted. lb. 
 
 82. If an officer, takes property by virtue of a replevin writ, with- 
 out first taking the statute bond, but does not complete the service by 
 summoning the defendant, and the writ is not entered, he can not 
 justify under his precept and is a mere trespasser. Adams v. 
 McGlinchy, 62—533. 
 
 33. The plaintiff, a deputy sheriff, seized certain liquors, belonging 
 to the defendant M., by virtue of a warrant intended to conform to 
 the requirements of the law relating to search and seizure process. 
 While the liquors were in his possession, the defendant M. procured 
 a replevin writ, by virtue of which the defendant H., a coroner, took 
 them and delivered them to M., who assisted in the service of the 
 writ. Held, that whether or not the warrant under which the plain- 
 tiff seized the liquors was sufficient, the act of the coroner was unjusti- 
 fiable, and that the defendant M., having taken the liquors as the 
 servant of the coroner, must justify in that capacity or not at all, and 
 could not claim that as general owner he had the legal right to take 
 the liquors without any writ. Same v. Same, 66 — 474. 
 
542 TRESPASS. 
 
 34. Infeeiob couets of limited jurisdiction are responsible in tres- 
 pass to those whom their acts affect, when they act without, or in 
 excess of, their jurisdiction, and not otherwise. Wciterville v. £arton, 
 64—321. 
 
 85. County commissioners were held responsible because they issued 
 a warrant of distress against a town to collect the expense of building 
 a way the day after the time fixed for the completion of the way, 
 built under the direction of an agent, when, by statute, no warrant 
 could lawfully issue until after the expiration of thirty days there- 
 after, and because the warrant was made returnable in ninety days 
 instead of three months, as required by law, and because the warrant 
 recited a judgment "we" had recovered for money expended by the 
 county, when the county was never liable, nor had paid the expense 
 of building the way, and the judgment should have been in favor of the 
 agent, and because there were other errors on the face of the warrant 
 by which the town was compelled to pay in interest and costs more 
 than it was legally liable to pay. Jb. 
 
 36. But not, because they erroneously and unjustly, placed upon 
 the town certain expenses which should have been divided between 
 that and another town. Jb. 
 
 37. If a collector of taxes keeps property which he has distrained 
 beyond the time within which it could be legally sold, he becomes a 
 trespasser ab initio. Farnsworth Co. v. Hand, 65 — 19. 
 
 38. A JUSTICE OP THE PEACE, who is related within the sixth 
 degree of consanguinity to one of the parties to a suit, and is there- 
 fore disqualified to take a deposition therein, is liable in trespass for 
 committing a witness for refusing to give his deposition before him 
 in such case. Call v. Pike, 66 — 350. 
 
 39. D. had a contract with the city, made while he was a member 
 of the city government, for renewing a bridge, which necessitated the 
 removal of the old structure, and had collected his materials at the 
 point where they were to be used. A controversy arose between D. 
 and the city authorities as to the suitableness of the materials, and 
 the defendant, who was city marshal, by direction of the city author- 
 ities, for this reason, notified D. and his men not to proceed with the 
 work. The defendant knew that the plaintiff was in the employ of 
 D., but on his refusal to desist from the work, arrested him without 
 a warrant, committed him to jail until a warrant could be procured, 
 and took him before the municipal court on a charge of obstructing 
 the highway by removing the planking from the bridge. Held, that, 
 inasmuch as the city authorities at the time of the arrest had not 
 claimed that the contract was void because D. was a member of the 
 city government, but were insisting on its performance, the contract 
 could not be regarded as an absolute nullity, and that the arrest and 
 imprisonment of the plaintiff without legal process was not justifiable. 
 Moore v. Durgin, 68 — 148. 
 
 See Oppicbb, p. 402. 
 
 (d) Injuries to the person. 
 
 40. When a prima facie case of assault and batteiy is sought to be 
 justified, it is incumbent upon the one who justifies to show that no 
 more force was used by him than the exigencies of the case called 
 
TRESPASS. 543 
 
 for ; that the force was suitable in kind and reasonable in degree. 
 Manson v. European & N. A. R. R. Co., 62 — 84. 
 
 41. By the law of this State, tbe civil remedy of a person injured 
 by a felonious assault and battery is not suspended till the offender 
 has been prosecuted criminally. Nowlan v. Qriffin, 68 — 235. 
 
 II. PLEADING AND PRACTICE. 
 
 42. Trespass quare clausum fregit is to be regarded as a personal 
 action, and it may be commenced by trustee process. lAnscott v. 
 FulUr, 57—406. 
 
 43. Survival. An action of trespass for double damages to the per- 
 son by a dog (R. S., 1871, c. 80, § 1), survives the death of the plain- 
 tiff during its pendency. Prescott v. Knowles, 62 — 277. 
 
 44. An action of trespass on the case against a married man for 
 deceit in leading the plaintiff, a single woman, into a void marriage, 
 survives against the personal representatives of the defendant. 
 
 Withee v. Brooks, 65 — 14. 
 
 45. The term "trespass on the case," used in § 8, c. 87, R. S., 1871, 
 providing that such actions shall survive, may be fairly construed to 
 mean all actions of tort which are properly designated by the term, 
 whether of injury to the person or property. lb. 
 
 46. Where Maintainable. Trespass quare clausum may be main- 
 tained in the county where the land is situated, although neither of 
 the parties to the suit live in that county. Qordon v. Merry, 65 — 
 168. 
 
 47. In an action of trespass under R. S., 1871, c. 95, § 11, to recov- 
 er treble damages for an entry upon grass land, and taking of grass 
 therefrom, if the plaintiff alleges in his declaration, substantially in 
 the language of the statute, the doing of the acts for which he is en- 
 titled to treble damages, it is not necessary that he should specifically 
 claim such damages. Black v. Mace, 66—49. 
 
 48. Nor is it necessary to conclude the declaration with the words, 
 "against the form," etc. Ih. 
 
 49. Nor to allege a scienter on the part of the defendant, or that 
 the trespass was wilful and malicious. Ih. 
 
 50. Description of the Land. The plaintiff declared for a tres- 
 pass upon his lot, described as part of lot No. 38, being one-half of all the 
 land on the east side of the road formerly owned by T. W., etc. The 
 defendant owned the corresponding lot in the adjoining range, and 
 contended that his acts were done, not upon lot 38, but upon a gore 
 of surplus land, where his lot and the plaintiff's should have come 
 together, but did not. The plaintiff claimed that the line between 
 them had been so long established by agreement as to become bind- 
 ing upon them. The exceptions stated that the only question at issue 
 was the title to the premises, where the trespass was alleged to have 
 been committed. It did not appear that the presiding judge had his 
 attention called to the sufficiency or correctness of the description in 
 the writ. Held, that there was not enough in the case presented to 
 show that the locus was not well described in the plaintiff's writ. 
 Woodward v. Robinson, 67 — 565. 
 
 51. Held, also, that if the plaintiff or his predecessors, by a valid 
 
644 TRESPASS — TRIAL JUSTICES. 
 
 agreement ■with the defendant or Ms predecessors, had included in 
 his close more or less of the surplus land which the defendant sup- 
 posed the former liberal system of admeasurements had left between 
 the lots, and had held possession long enough to give him a good 
 title, it became to all legal and practical intents a part of lot 38, and 
 the defendant could not complain that it was so described. 1 b. 
 
 III. EVIDENCE. * 
 
 52. In trespass for breaking and entering plaintiff's close and car- 
 rying away therefrom certain personal property, the unlawful break- 
 ing and entering constitute the gist of the action, and must be proved 
 in order to maintain it. Dingley v. Buffum, 57 — 379. 
 
 53. To sustain an action of trespass quare clausum against one hav- 
 ing no right to be upon the premises, the plaintiff put in evidence a 
 deed of quitclaim to himself from one who never had either title or 
 possession. The deed was never recorded until after the trespass 
 complained of, and it did not appear that the plaintiff ever had pos- 
 session under it. Held, insufficient. Savage v. Holyoke, 59 — 345. 
 
 54. A certified copy of a certificate of the entry by the mortgagee 
 of a mortgage given by a married woman in 1845 to secure the pur- 
 chase-money of land conveyed to her, on June 4, 1847, for the pur- 
 pose of foreclosing it, in the absence of any evidence that such posses- 
 sion was continued, would not be sufficient evidence of possession to 
 enable him to maintain trespass for acts happening twenty years 
 thereafter. lb. 
 
 55. In trespass quare clausum, the possession is presumed to be in 
 the owner of the legal title, in the absence of all other evidence. 
 Griffin v. Creppin, 60 — 270. 
 
 56. In trespass quare clausum, if the plaintiff was not in possession 
 at the time of the trespass, but produces a deed dated and recorded 
 prior to that time, the defendant may show that the deed was not 
 actually delivered until after the commencement of the action. Maxr 
 well V. Mitchell, 61 — 106. 
 
 57. If county commissioners had jurisdiction to commence proceed- 
 ings for the location of a way the question of the validity of their 
 subsequent proceedings can not be raised in an action of trespass 
 quare clausum, against those employed in building it. - Cyr v. Du- 
 four, 62—20. 
 
 58. In trespass quare clausum, if the declaration is supported by 
 the evidence as to the number of the lot, of the acres it contained and 
 the town in which it was situated, the plaintiff may have a verdict, 
 notwithstanding there is a failure to prove other elements of the 
 description of the land. QoockoiriY. Jack,^ — 4I4i! 
 
 TRIAL JUSTICES. 
 
 See Bastaedt, 4, p. 58. Justice of the Peace, p. 332. 
 
TEOVEE. 645 
 
 TROVER. 
 
 I. WHEN IT LIES. 
 II. CONVERSIOK. 
 III. PEACTICE. 
 
 I. WHEN IT LIES. 
 
 1. Trover does not lie acjainst a bailee for goods lost by or stolen 
 from him. Dearborn v. Union Nat. J3ank, 58 — 273. 
 
 2. Trover can not be maintained against a bank for bonds deposited 
 therein but which have either been lost or stolen. lb. 
 
 3. Trover will not lie against a bailee who, without notice of a 
 revocation of his authority, sells property intrusted to him for sale. 
 Jones V. Hodgkins, 61 — 480. 
 
 4. A. bought lumber of B. to be surveyed by a person agreed upon, 
 and paid for according to the survey. B. procured the survey to be 
 made. A. paid for the lumber according to the contract, and on the 
 same day, without seeing it, re-sold it, at the same survey, to C. 
 Afterwards B., claiming that a car load of the lumber was omitted 
 from the survey, brought trover against A., but it was held, that it 
 could not be maintained. Eaines v. TricJcey, 62 — 126. 
 
 5. Foe Note. Trover may be maintained by the maker against the 
 payee for the conversion or wrongful withholding of his paid promis- 
 sory note. Neal v. Hanson, 60 — 84. Otisfield v. Mayberry, 63 — 197. 
 
 6. If a selectman, having a paid note of his town in his hands for 
 cancellation, should fraudulently transfer it for value to a bona fide 
 holder, to whom it is paid by the treasurer in ignorance of the facts, 
 the town may maintain trover against the selectman for the note. 
 QUsfield V. Mayberry, 63 — 197. 
 
 7. Trover will not lie for a note given for an illegal consideration. 
 Morrill v. Ooodenow, 65 — 178. 
 
 8. Demand. If the owner of an article of personal property 
 delivers it to another to sell, the latter has no right to deliver it to his 
 creditor in payment of his own pre-existing debt ; and if he does so, 
 the owner may maintain trover against the creditor without a previ- 
 ous demand. Rodick v. Coburn, 68 — 170. 
 
 II. CONVEKSION. 
 
 9. Demand and refusal will not be sufficient evidence of conver- 
 sion, when it also appears that the property demanded was not at the 
 time in the possession or conti'ol of the person on whom the demand 
 was made, but that it had been previously lost, or stolen, or mis-deliv- 
 ered. Dearborn v. Union Bank, 58 — 273. 
 
 10. One of the defendants bid off a vessel at a sale thereof by the 
 master, which was void for want of notice of the disaster to the 
 plaintiffs who were part-owners. The other defendant paid part of 
 the purchase-money, the expenses of fitting her for sea, insured her 
 in his own name, participated in her earnings, and refused to recog- 
 nize the plaintiffs as owners of any part of her. Held, that trover 
 would lie. Miller v. Thompson, 60—322. 
 
 35 
 
546 TEOVBE. 
 
 11. If a TENANT IN COMMON of pergonal property attempts to sell 
 more than his share, but no sale is effected, and no title to or posses- 
 sion of the common property passed thereby, his attempt is not a con- 
 version for which trover will lie by a co-tenant. Estey v. Boardman, 
 61—595. 
 
 12. In order to make the seller liable in trover, the sale must be 
 complete and absolute. lb. 
 
 13. To constitute a conversion, there must be either a wrongful 
 taking, or a wrongful detainer, or an illegal using, or a misusing, or 
 an illegal assumption of ownership. Fifield v. Maine Central R. H. 
 Co., 62—77. 
 
 14. The owner of a side track connected with a railroad consented 
 that the railroad company might take possession of it, upon the agree- 
 ment of the company to return it anywhere upon the line of the road, 
 whenever called for. While in this condition, the rails forming the 
 side track were sold on an execution against the owner, and the pur- 
 chaser made a written demand for them on the president of the com- 
 pany, at a place other than that where they were situated, without 
 any statement when or where he desired to receive them. To this 
 the company paid no attention, but did not appear to have used the 
 rails, after the demand, or to have prevented the purchaser from tak- 
 ing possession. Meld, no conversion. Tb. 
 
 15. Demand and Refusal. If the plaintiff relies only upon a 
 demand and refusal, as evidence of a conversion by the defendant, he 
 must also show that the latter had the power to give up the goods. 
 Dearborn v. Union Bank, 58 — 273. Hagar v. Randall, 62 — 489. 
 
 16. Trover can not be maintained without proof that the defendant 
 did some wrongful act, with the intention to appropriate the property 
 to himself, or deprive the rightful owner of it or destroyed it. Hagar 
 V. Randall, 62—439. 
 
 17. An instruction that a mortgagee, who, on taking possession of 
 the mortgaged premises for foreclosure, finds personal property 
 thereon, and merely forbids the owner from entering the premises, is 
 not guilty of a conversion of the property, but that if he forbids the 
 owner from entering to remove it, and claims it himself, he is guilty, 
 is sufficiently favorable to the mortgagee. Woodis v. Jordan, 62 — 490. 
 
 18. If a CAKBiEE refuses to deliver goods, which have arrived at 
 their destination, to the consignee who is entitled to receive the 
 same, upon demand and tender of legal charges, but upon a claim to 
 receive a greater sum, sells the goods at public auction, it is a conver- 
 sion for which trover will lie. Jones v. Boston <& Albany R. R. Co., 
 63—188. 
 
 19. The MOETGAGEE of a horse took possession and placed him in the 
 care of a person to work for his board. The mortgager, a few days 
 after paying the mortgage debt, demanded the horse and was informed 
 that he was ready for him at the stable of the person in whose care 
 he had been jJtaced. A requested instruction that the mortgagee was 
 not bound to prove that the horse was at the place named at the time 
 of the mortgager's demand was refused. Matthews v. Fishe, 64 — 101. 
 
 20. Held, also, that the fact that the horse was at work with the 
 bailee by authority of the defendant (the mortgagee) and under a 
 
TEOVEE — TKUST. 547 
 
 contract with him, after the note had been paid, was of itself a con- 
 version, for which the mortgager could maintain trover. lb. 
 
 21. Berries were picked from the land of the plaintiff in possession 
 by trespassers and sold to the defendants who canned them. Held, 
 that the latter by their purchase and possession although acting in 
 good faith and in ignorance of the want of title of their venders exer- 
 cised a dominion over the property which rendered them liable in 
 trover to the true owner without demand. Freeman v. Underwood, 
 66—229. 
 
 22. Agbnt oe Seevant. A person acting under the direction of 
 another as agent, servant or bailee, is not guilty of conversion, merely 
 by carrying articles from place to place, without any knowledge of 
 wrong doing, supposing the articles to belong to or to be rightfully in 
 the possession of the person from whom the same were received. 
 Smith V. Colby, 67—169. 
 
 23. Nor does a demand upon such agent or bailee to deliver to the 
 true owner, and a neglect to comply with such demand, amount to 
 conversion, if at the time of the demand it is not within the power of 
 such person to deliver the property. lb. 
 
 24. Trover lies against a person who removes a portion of a fence 
 from the land of its owner, or from his possession, although such per- 
 son was acting at the time under the direction of the municipal officers 
 of the town, and mistakenly supposed the fence to be upon the land 
 of the town. lb, 
 
 III. PRACTICE. 
 
 See Veedict, 10. 
 
 TRUST. 
 
 I. CEEATION AND NATURE OP TRUST ESTATES. 
 
 II. RESULTING TRUSTS. 
 
 III. APPOINTMENT OF TRUSTEES. 
 
 IV. RIGHTS AND LIABILITIES OF TRUSTEES. 
 V. RIGHTS OP CESTUIS QUE TRUST. 
 
 L CREATION AND NATURE OP TRUST ESTATES. 
 
 1. In 1802, John Church, by his deed of warranty, in consideration 
 of $100, conveyed certain land, covering the demanded premises, to 
 "David Moors, treasurer of the First Meeting-house Society in the 
 centre of Farmington," a voluntary unincorporated association, "and 
 his successors in said office, for the use of said society so long as it 
 shall be improved for public use," habendum "to the said Moors and 
 his successors in said office, to the use of said society to their use and 
 benefit forever." A meeting-house was soon afterwards erected upon 
 a portion of the land, pews sold, and the house occupied for public 
 worship by several denominations for a series of years. In 1822, pur- 
 suant to action of the association, several of the original associates, 
 
548 TRUST. 
 
 "their associates and assigns," were incorporated into a body politic 
 by the name of "The proprietors of the Center Meeting-house in 
 Farmington," and the act of incorporation provided "that the land 
 heretofore conveyed to D. Moors, treasurer of said proprietors, and 
 now deceased, ... be and hereby is confirmed to such treasurer as 
 said proprietors shall hereafter choose for the use and benefit of said 
 proprietors, . . . and the treasurer, so hereafter to be chosen, shall be, 
 to all intents and purposes, the successor of said Moors." The pro- 
 prietors organized under their charter, chose John Church, jr., treas- 
 urer, confirmed all votes passed prior to incorporation, and, in 1824, 
 erected forty-five pews in the gallery, and sold them, and their treas- 
 urer executed deeds thereof to the purchasers. In the same year, by 
 an additional act of the legislature, the proprietors were authorized 
 to make alterations, additions, and improvements of the house and 
 such improvement of the land "as is designated and intended in the 
 grant thereof." In June, 1839, pursuant to a vote duly recited in the 
 deed, "The proprietors of the Center Meeting-house in Farmington, 
 by John Church, jr., their treasurer, in consideration of one dollar," 
 executed and delivered unto the inhabitants of the county of Frank- 
 lin and their successors forever, a deed of quitclaim of the de- 
 manded premises, with a covenant of warranty against the "lawful 
 claims and demands of all persons claiming by, through, or under 
 them," "for the purpose of a site for a court-house, for the use of said 
 county, provided the same shall be accepted by the county commis- 
 sioners as a full equivalent of all claims of said county on any individ- 
 uals thereof for furnishing a court-house for ten years, reserving the 
 use of said meeting-house for town meetings and meetings of worship 
 in the lower story so long as the same shall remain standing, but 
 with liberty to the county to rebuild, alter, repair, or fit up the same 
 in a proper manner for holding the courts, and also conditioned that 
 said deed shall be void whenever a court-house is erected on any 
 other site." In February, 1838, John Church quitclaimed to the pro- 
 prietors of the Center Meeting-house the land originally granted to 
 Moors, including the site of the old meeting-house, to be "always used 
 for some public building, court-house, town-house, or meeting-house." 
 In 1839, the county took possession, removed most of the pews in 
 the second story, fitted it up for a court-room, and have retained pos- 
 session thereof and held courts therein ever since. In 1852, the 
 remaining gallery-pews were removed against the objections of the 
 owners, and further repairs made. In 1867, at an annual meeting of 
 the proprietors, the plaintiff was duly chosen treasurer, and certain 
 others trustees, who were instructed by a vote of the proprietors, "to 
 take such measures for the defense of " the proprietors' "rights in the 
 Center Meeting-house as they think proper," under which vote the 
 plaintiff, as treasurer, brought this real action to recover possession 
 of the premises claiming the legal title to be in the treasurer as trus- 
 tee of the proprietors. Held, (1) that Moors took a fee-simple condi- 
 tional in trust for the use and benefit of the original associates and 
 those who might afterwards become members of the association by 
 the purchase or inheritance of pews ; (2) that at the decease of Moors, 
 the estate descended to his heirs at law charged with the trust ; (3) 
 that the plaintiff, as the successor of John Church, jr., is estopped by 
 the deed of the proprietors, executed by the latter j^ (4) that the 
 plaintiff, as treasurer, cannot assert a title against the grantee, of the 
 proprietors ; (5) whether the legistature could and did by the addi- 
 
TRUST. 649 
 
 tional act transfer the legal title from Moors' heirs to the treasurer of 
 the corporation to be chosen, quaere ; (6) that if such act did operate 
 as such a transfer, it vested both the legal and equitable estate as a 
 use executed in the corporation ; (7) that the effect of J. Church's 
 quitclaim deed to the corporation in 1838 was to abrogate the condi- 
 tions annexed to the original grant so far as they attached to the im- 
 mediate site of the meeting-house ; (8) that the pew-owners did not 
 become tenants in common of the estate on which the house stood, 
 but were entitled to a beneficial interest, and as against the gi'antees 
 of the corporation could vindicate their rights only in equity ; (9) 
 that the county may avail itself of the limitation bar; and (10) that 
 the case exhibits none of the elements of a public charity. Craig v. 
 Franklin Co., 58 — 479. 
 
 2. Evidence of the object and purpose for which a conveyance was 
 made, is not admissible to convert the deed purporting to be an abso- 
 lute conveyance into one of any trust not expressed therein. Qerry 
 V. Stimson, 60—186. 
 
 3. Where a mortgager of land conveyed his interest in different 
 proportions to various persons, one of whom, after foi-eclosure, ob- 
 tained the mortgagee's title by payment of the mortgage debt and 
 interest ; held, that the assignee of the mortgager in obtaining such 
 title, did not become the trustee of the other assignees, or in any way 
 accountable to them. Stetson v. Everett, 59 — 376. 
 
 4. A. conveyed to B., an undivided half of a tract of land, on which 
 there was a mill jDrivilege. On the same day, B. gave to A. a bond 
 conditioned, to use his endeavor to sell the land and privilege, for the 
 purpose of erecting a mill, but if he should not sell the same within a 
 specified time, he was to quitclaim the premises to A., on demand, 
 and on payment for all improvements made by him (B.); and in case 
 of a sale, B. to pay A. a sum of mobey on demand, A. to pay one- 
 half the expense incurred in effecting a sale and erecting a dam, and 
 to retain possession until a sale should be made, B., however, to have 
 the right to enter to make improvements. Meld, that B. held the 
 premises in trust. Frost v. Frost, 63 — 399. 
 
 5. The Weiting. It is not necessary that a trust be created in 
 writing. It is sufficient if it is proved by some writing, signed by the 
 party or his attorney, whether it be contemporaneous with, or prior, 
 or subsequent to the principal transaction. Sates v. Surd, 65 — ^180. 
 McClellan v. McClellan, 65—500. 
 
 6. Any letter, memorandum or recital, subscribed by the trustee, 
 whether addressed to or deposited with the cestui que trust or not, or 
 whether intended, when made, to be evidence of the trust or not, is 
 sufficient to establish the trust, when the nature of the trust, the par- 
 ties and their relations to it, appear with reasonable certainty. Ih. 
 
 7. A declaration of trust may be contained in an indenture between 
 the parties, in the recitals of a deed, the condition of a bond, or in 
 any writing of an informal character, expressing the gift in trust, and 
 connecting the trustee with the subject matter. Frost v. Frost, 63 
 —399. 
 
 8. When the fact that a trust exists in a particular estate, the na- 
 ture and objects of it, who the beneficiaries are, and what are their 
 respective interests, are not all contained in one paper, but in several, 
 only one of them need be signed, provided the others are so referred 
 
550 TEtrsT. 
 
 to therein as to be deemed altogether parts of one transaction. 
 McGlellan v. McClellan, 65—500. 
 
 9. The signature of the cestuis que trust is not necessary to the 
 declaration of trust. Their assent is all that is necessary. lb. 
 
 10. In the fourth item of a will, real estate, specifically described 
 was devised to trustees, and in the fifth, the residue, including per- 
 sonal property, to the same trustees. The conditions of the trust, the 
 disposition of the income, and in case of sale, the proceeds were the 
 same in both cases. In the fifth item after constituting the trusts and 
 directing that the income and proceeds thereof be appropriated as 
 provided in the fourth item, the testator further provided that the 
 trustees in their discretion, might convey to the beneficiaries their 
 respective shares of "said trust estate." Held, that the words "said 
 trust estate" included all the property left in trust by the fourth as 
 well as by the fifth item. Chase v. Davis, 65 — 102. 
 
 11. When a gtjardian takes a conveyance of the estate of his 
 ward, in his own name, and includes it in the inventory as his ward's 
 property, he is to be regarded as holding it in trust. Fogler v. Buck, 
 66—205. 
 
 II. KESULTING TKUSTS. 
 
 12. Where a conveyance, absolute on its face, was intended to be 
 in trust for the grantor and his wife, no resulting trust can arise from 
 the subsequent payment of money by the children of the grantor. 
 Gerry v. Stimpson, 60 — 186. 
 
 13. If a voluntary conveyance is made for some illegal or fraudu- 
 lent purpose, e. g., to delay, hinder or defraud creditors, no trust will 
 result to the grantor. In such case, both law and equity will leave 
 the parties to the transaction precisely where their own acts leave 
 them, nines v. -Bachelder, 62 — 95. 
 
 14. A sale of land was made, and the deed given to A., but really 
 the purchase was made for the joint benefit of A. and B. Before that 
 time, B. had been the agent of the owners of the land. All the nego- 
 tiations for the sale were conducted by the owners personally, there 
 was nothing to show that it was not made upon perfectly fair terms, 
 which were justly acceptable to them, nor did it appear that they had 
 ever complained or sought to avoid the sale. Whatever profit grew out 
 of the purchase was mainly due to the energy and skill of B., gratui- 
 tously bestowed upon the subsequent management of the property 
 for the joint benefit of himself and A. Meld, that the fact that he 
 had been the agent of the previous owners, would not preclude B. 
 from enforcing against A., the trust resulting from their joint purchase. 
 Burleigh v. White, 64^23. 
 
 15. Held also, that the fact that B. was considerably in debt, and 
 for that reason the purchase was made in the name of A., was not 
 good reason for avoiding the trust, it not appearing that there was 
 any fraudulent design to defraud or delay creditors. Jb. 
 
 16. To establish a resulting trust by parol, the proof must be full, 
 clear and convincing. Jb. 
 
 17. In order to create a resulting trust, it is not necessary that the 
 loan should be in cash. A loan of credit may be an equivalent. lb. 
 
TEtrsT. 651 
 
 in. APPOINTMEIirT OF TRUSTEES. 
 
 18. Whenever an interest in the nature of a trust, or any power 
 or duty implying a trust is created by a will, and there is no designa- 
 tion of the executor or any other person as trustee, nor any provision 
 in the will, for the appointment of a trustee, it devolves upon the 
 executor as such, to administer the estate according to the provisions 
 of the will. Pettingill v. Pettingill^ 60 — 411. Nutter v. Vichery, 
 64—490. Nason v. First Church, 66—100. 
 
 19. But if it appears to be inconvenient or needlessly expensive 
 for the executor to perform the duty, the court will appoint a trustee. 
 Nason V. First Church, 66 — 100. 
 
 IV. EIGHTS, DUTIES AND LIABILITIES OP TRUSTEES. 
 
 20. In passive trusts, where the right to possess and enjoy the prop- 
 erty is in the cestui que trust, the trustee can not maintain a writ of 
 entry against him or those holding under him. Sawyer v. Slcowhe- 
 gan, bl — 500. 
 
 21. The party in interest can not assert through the intervention of 
 a trustee, a claim which he would be estopped from asserting if the 
 suit were in his own name. Bigelow v. Foss, 59 — 162. 
 
 22. Bond. A person to whom a specific sum is devised, a portion 
 of which is to be invested by him, and the income applied in alms to 
 the poor of a certain parish, and the remainder to be applied to cer- 
 tain purposes in his discretion, must give the bond required of testa- 
 mentary trustees, (R. S., 1871, c. 68), before he can receive the 
 money. Stevens v. Burgess, 61 — 89. 
 
 23. Termination. If a grant is coupled with a trust, when the 
 trust ceases, then the grant must cease also. Parker v. Murch, 64 — 
 54. 
 
 24. Where land was conveyed to D. during her natural life, and to 
 hold "in trust" and for her own, and the support of M., during their 
 natural lives, .... "and to descend in equal shares to all the children 
 said D. and said M. shall leave at the decease of the said M., and in 
 such case, said D. to have her thirds only." It was held, that D. held 
 the land for their support during their joint lives, and that upon the 
 death of M., her interest ceased, except a life interest in an undivided 
 third. lb. 
 
 25. If a person purchase of the trustee for a valuable considera^ 
 tion, without notice, he will hold discharged of the trust ; but if the 
 original trustee re-purchases the estate he will again be converted into 
 a trustee. Frost v. Frost, 63 — 399. 
 
 26. If one claiming land by virtue of a resulting trust in his favor 
 obtains a decree in equity for a conveyance from the holder of the 
 legal title, who also had the possession, the owner of buildings placed 
 upon it with the consent of the holder of the legal title may have a 
 reasonable time to remove them. Pines v. Pachelder, 62 — 95. 
 
 27. A., holding the legal title to an estate, subject to a resulting 
 trust in favor of B., died. B. notified the heirs of the trust but did 
 not support the claim by clear proof. The heirs remained in posses- 
 sion some time and made repairs and improvements upon the prem- 
 ises. They also allowed a third person to erect buildings upon a por- 
 tion of the land. After long delay B. brought a bill against them to 
 
552 TEUST. 
 
 enforce the trust. Held, that they must account for the rents and 
 profits, including the use of the land for the buildings placed upon it, 
 by such third person, and also for damage to the realty caused by 
 their removal, if the person erecting them should choose to remove 
 them ; that they should be reimbursed for all repairs necessary to pre- 
 vent waste ; and also for the increased value of the estate by reason of 
 the improvements made by themselves. lb. 
 
 28. A testatrix devised her property to her son in trust for his 
 father during life, with remainder to her children, declaring her wish 
 that the father should have the management of the property while he 
 lived, the title to be in the trustee. Also giving "power to the trustee 
 to sell any or all of the property at such times and prices as his father 
 may deem best," "the proceeds to go to my said husband for the benefit 
 of himself and my children, to be used by him for their benefit." The 
 trustee exchanged some of the land for a stock of goods and placed 
 them in the hands of his father who undertook to sell them as agent 
 of the trustee. Held, not a dry and passive trust, and that under the 
 statute of uses the title to the goods did not pass to the father, and 
 they were not liable to be taken for his debts. Emerson v. Sewins, 
 64^297. 
 
 29. A testator devised property to trustees, and gave them certain 
 discretionary powers as to its disposition, but made no provision in 
 case of the death, resignation, or refusal to act of the trustees, or 
 either of them, nor was there any indication that in any event the 
 provisions of the will were not to be carried out. Held, that § 6, c. 
 68, R. S., 1871, gave to the successors of the trustees, appointed by 
 the judge of probate, the same discretionary powers as were vested 
 by the will in those originally appointed. Chase v. Davis, 65 — 102. 
 
 30. Descbnt of Legal Title. Upon the death of the trustee the 
 legal title to the real estate descends to his heirs, followed by the 
 trust. Mc Clellan v. Mc Clellan, 65—500. 
 
 31. When the trustee has authority to convert the estate into 
 money and apply the proceeds to the purposes of the trust, his gran- 
 tees hold free from the trust. lb. 
 
 32. Two rules of construction have been adopted by courts ; first, 
 when a trust is created, a legal estate sufficient for the purposes of 
 the trust shall, if possible, be implied in the trustee, whatever may be 
 the limitation in the instrument, whether to him or his heirs or not ; 
 and, second, although a legal estate may be limited to a trustee to the 
 fullest extent, as to him and his heirs, yet it shall not be carried fur- 
 ther than the complete execution of the trust requires. Slade v. 
 Patten, 68—380. 
 
 V. EIGHTS OF CESTUIS QUE TRUST. 
 
 32. If the indorser of a note, secured by a power of sale mortgage, 
 can disaffirm an auction sale of the premises, in which the holder of 
 the mortgage becomes the purchaser, he must do so within a reason- 
 able time. Three years, where the property has passed to a third 
 person, is not a reasonable time. Patten v. Pearson, 60 — 220. 
 
 33. If a person whose own note is deposited in trust for others, 
 among whom its proceeds are to be divided, obtains possession of it 
 without the consent of the cestuis que trust, an action for money 
 had and received brought against him, in the name of the depositary, 
 
TRUST — TETJSTEE PROCESS. 553 
 
 for the benefit of one of those entitled to a share of the amount due 
 on the note, is maintainable ; nor can the nominal plaintiff or his 
 assignee discontinue the suit without the assent of the party in inter- 
 est. Penobscot B. B. Co. v. Mayo, 60—306. 
 
 34. Where by the terms of a marriage settlement the trustee under 
 it is to change the investment of the trust-funds upon the joint 
 request in ■writing of the cestui que trust and her husband, such writ- 
 ten request is essential to relieve the trustee from liability for loss 
 arising from any change of investment made by him. Crocker v. 
 Pierce, 61 — 58. 
 
 35. If, after the determination of the trust by the death of the hus- 
 band, in an adjustment, between the trustee and the beneficiary, of 
 the matters of the trust, there be, in the property conveyed to her as 
 the consideration of her release to the trustee, an "inadequacy of 
 price, and inequality of advantages in the bargain," equity will set 
 aside the release so obtained and afford relief. lb. 
 
 36. Where a cestui que trust is entitled to a conveyance from a 
 trustee upon demand and upon payment of certain expenses incurred 
 by the trustee, and a demand is made upon the trustee who declines 
 to convey, alleging as a reason that he has conveyed the premises to 
 a third person, and makes no claim of payment for expenses, the 
 demand is sufficient without a tender of the expenses. Frost v. 
 Frost, 63—399. 
 
 37. When a cestui que trust is entitled to a conveyance from the 
 trustee upon demand, and a demand is made upon the trustee, no 
 new demand is necessary upon his heirs or devisees. lb. 
 
 See CoEPOKATioN, 38, p. 130. 
 Equity, 16, et. seq., p. 198. 
 Limitations, 3, p. 348. 
 Pleading, 73, p. 431. 
 SUEETT, 16, p. 518. 
 
 TRUSTEE PROCESS. 
 
 I. WHEN MAINTAINABLE. 
 II. DISCLOSURE. 
 
 III. WHEN THE TRUSTEE SHALL BE CHARGED. 
 
 (a) Fob specific pbopbety in his hands. 
 
 (b) Fob indebtbdness oe othbb liability. 
 
 IV. WHEN DISCHARGED. 
 V. PRACTICE. 
 
 VI. EFFECT. 
 
 I. WHEN MAINTAINABLE. 
 
 1. Trespass quare clausum is a personal action, and may be com- 
 menced by trustee process. Linscott v. Fuller, ^7 — 406. 
 
 2. By virtue of R. S., c. 61, § 3, a married woman may commence 
 by trustee process and maintain in her own name an action for the 
 recovery of the wages of her personal labor not perfonned for her 
 
554 TETJSTEE PROCESS. 
 
 own family, and summon her husband as trustee of her debtor. 
 Tunks V. Graver, 57 — 586. 
 
 II. DISCLOSURE. 
 
 3. If, in a trustee process brought by a married woman against her 
 debtor, and her husband as trustee, the disclosure does not reveal the 
 
 .relationship between the plaintiff and trustee, it is not competent for 
 the principal defendant to contest the liability of the trustee by filing 
 such an allegation. lb. 
 
 4. A person summoned as trustee will be charged when he declines 
 to state facts which may be important in determining his true legal 
 position toward the principal defendant, and in testing the correct- 
 ness of his own legal conclusion, that on the date of the service of the 
 writ, he did not owe and had no property of the principal defendant 
 in his hands. Mansfield v. N'ew England Express Co., 58 — 35. 
 
 5. In a disclosure, all doubtful or uncertain statements are con- 
 strued against the trustee having it in his power to make them posi- 
 tive. Srainard v. Shannon, 60 — 342. Whitney v. Kelley, 67 — 377. 
 
 6. It is not competent for an alleged trustee, in his disclosure on 
 scire facias, to contradict the ofiicer's return of the service of the 
 original writ. Srainardy. Shannon, 60 — 342. 
 
 7. Although the statute provides that "the answers and statements 
 sworn to by a trustee shall be deemed true, in deciding how far he is 
 chargeable, until the contrary is proved," in deciding that question, 
 the answers of the trustee are to be weighed, and their effect deter- 
 mined by the general principles on whicli conclusions are to be drawn 
 from any other lawful evidence. Kelley v. Weymouth, 68 — 197. 
 
 III. WHEN THE TRUSTEE SHALL BE CHARGED. 
 
 (a) Fob specific pkopbbtt in his hands. 
 
 (b) Foe indebtedness ob othee liability. 
 
 (a) For specific property in his hands. 
 
 8. The provision of R. S., 1871, c. 86,. § 50, that when the trustee 
 has in his possession property mortgaged or pledged, he may be 
 charged upon condition that the amount due him by the principal de- 
 fendant is tendered, is not applicable to a case where the trustee does 
 not claim to hold the property as security, but absolutely. Thomp- 
 son V. Pennell, 67 — 159. 
 
 9. If the trustee comes into court and sets up an absolute title to 
 personal property, by purchase from the principal defendant, and 
 such purchase was fraudulent as to the creditors of the defendant, 
 because for a grossly inadequate price, and a secret agreement to 
 re-convey upon re-payment of the price, he should be charged uncon- 
 ditionally, lb. 
 
 (b) For indebtedness or other liability. 
 
 10. Freight money earned by a vessel while the master is sailing 
 her at the halves belongs to the master alone, and may be attached 
 Iby a creditor by trustee process. Bridges v. Sprague, 57 — 543. 
 
 11. Where an attoenet at law has received money in satisfaction 
 
TETTSTEB PROCESS. 555 
 
 of a demand in favor of his clients, it may be attached in his hands 
 by trustee process. Burnell v. Weld, .'59 — 423. 
 
 12. t)BBT Payable in the Futube. At the time of the service 
 of the writ the principal defendant was engaged in the construction 
 of a railroad for the trustee, under a contract containing a provision 
 that payment for the work should be made on the fifteenth of each 
 month, upon the estimate and certificate of the engineer of the road, 
 of the work done during the previous month. The writ was served 
 on the fourth day of June, and the estimate of the engineer for the 
 month of May was completed on the tenth of June. Held, (1) that 
 the sum due for the work done in May was due absolutely at the time 
 of the service of the writ and not upon any contingency, although not 
 payable until the fifteenth of the month, (2) that if the engineer 
 should neglect or unreasonably refuse to make the estimate and cer- 
 tificate of the work, it would not deprive the contractor of the right 
 to his pay, but that he might prove the amount in some other way, 
 and (3) that the trustee should be charged for the amount due for the 
 work done in May, less payments made prior to the service of the 
 writ. Ware v. G-owen, 65 — 534. 
 
 13. Paetnbeship. a jDerson having money in his hands belonging 
 to a late firm of three persons, may be held as trustees of a new firm 
 comprising two members of the old firm and another person, unless 
 some interposing claim be made by the creditors of the old firm. 
 Burnell v. Weld, 59—423. 
 
 14. "When a creditor of a firm is summoned as trustee in a suit by 
 a private creditor of one of the partners, if the other partners appear 
 as claimants, the creditor can secure by his attachment only his debt- 
 or's actual interest in the debt disclosed by the trustee. Parker v. 
 Wright, 66—392. 
 
 15. Legacy. The words "effects and credits," as used in trustee 
 writs, are sufficient to authorize the attachment of a legacy in the 
 hands of an executor. Cummings v. Garvin, 65 — 301. 
 
 16. When the amount disclosed by the trustee arises from a con- 
 tract which has been broken by the principal defendant, the trustee 
 is liable, if at all, only for the sum due on the contract, less the dam- 
 ages caused by its breach, deducted, not' by way of set-off, but by re- 
 coupment. Gota V. Mishow, 62 — 124. 
 
 17. When a person indebted for transportation of goods over the 
 connecting route of two carriers, is summoned as the trustee of one 
 of them, he can be charged only for that proportion of the freight 
 money earned by that one, although it is the custom for that one to 
 
 / collect the whole amount due for the transportation, and to account to 
 the other for its proportion. Bowler v. European & N. A. R. It, 
 Co., 67—395. 
 
 XV. WHEN DISCHAEGED. 
 
 18. A VERBAL ASSIGNMENT, made Sowa^cfe, before service on the 
 trustee, for a valuable and adequate consideration, will transfer such 
 an interest in an account as may be protected in a trustee process. 
 Simpson v. Bibber, 59 — 196. 
 
 19. The TEEASTTEEE OF A coEPOEATiON cannot be charged as its 
 trustee for funds held by him officially. Bowker v. Hill, 60 — 172. 
 
656 TRUSTEE PEOCESS. 
 
 20. Nor can he be charged as trustee for such funds pledged to him 
 to secure an indebtment of the company to him. lb. 
 
 21. An alleged trustee cannot be charged for promissory notes 
 and STOCKS pledged to secure them, originally given to the principal 
 defendant, and afterwards transferred to him ; and § 52 of c. 81 of 
 R. S., 1857, does not apply in such a case. lb. 
 
 22. An alleged trustee is not chargeable for city and railroad bonds 
 held by him, belonging to the principal defendant. lb. 
 
 23. The EXEMPTION of wages for personal labor, does not apply to 
 a sum which is due from the alleged trustee, for the wages or work 
 of other men employed by the principal defendant, or due to him 
 upon jobs into which other matters besides his personal labor, not 
 capable of being distinguished from it, enter to prove the price he is 
 to receive, even though the amount thus due at the time of the ser- 
 vice of the process does not exceed the amount of his wages for his 
 personal labor during the month next preceding. Jirainard v. Shan- 
 non, 60—342. 
 
 24. It must appear by the disclosui-e, that the money is due as the 
 wages of personal labor in order to bring it within the statute exemp- 
 tion, lb. 
 
 25. Under a bona fide contract that the principal defendant, in a 
 process of foreign attachment, was to receive a certain sum per diem 
 for his own wages, and pay for the work of others employed by him 
 at a fixed rate, the wages of the principal defendant's personal labor, 
 so far as can be ascertained from the accounts, not exceeding the 
 statute amount during the preceding month, may be exempted. lb. 
 
 26. Groceries furnished an unmarried person, and used in the fam- 
 ily in which he is boarding, being taken in payment for board, are 
 not "necessaries furnished him or his family," within the meaning of 
 R. S., 1871, c. 86, § 55. McAuleijY. Tracy, 61—523. 
 
 27. The pees op a jueoe are not "goods, effects or credits," and 
 are not liable to attachment by trustee process. Clark v. Clark, 62 
 —255. 
 
 28. Where the only claim of the principal defendant against the 
 alleged trustee is for intoxicating liquors purchased out of the State 
 with intent to sell within the State, the trustee must be discharged. 
 McGlinchy y. Winchell,.6S — 31. 
 
 29. The principal defendant conveyed certain property to a com- 
 pany composed of himself, the trustee, and others, with an agreement 
 that the company should manufacture and sell the same, and apply 
 the proceeds above the cost of manufacture to the payment of certain 
 
 , debts of the principal defendant, and for the balance to issue an equal 
 amount of the stock of the company to him. It was intended to form 
 an incorporated company, but the intention was not earned out, 
 neither was the business prosecuted. Seld, that the property passed 
 by the sale, and the interest of the principal defendant was contin- 
 gent, and not attachable by trustee process. Libby v. Brainard, 63 
 —65. 
 
 30. The alleged trustee held a mortgage given by the principal 
 defendant to secure a note. The mortgage embraced more than one 
 lot of land. At a sale of the equity of redemption, on execution, it 
 was purchased by the mortgagee for twenty-six dollars. Shortly 
 
TRUSTEE PROCESS. 657 
 
 afterwards the mortgager desired to sell one of the lots, and made 
 an agreement with the mortgagee that in consideration of the release 
 of that lot from the mortgage, the net proceeds of the sale should be 
 paid on the note, which was carried into effect. Held^ that the mort- 
 gagee had the right to hold the money, and was not chargeable as 
 trustee. Flagg v. Bates, 65 — 364. 
 
 31. When the amount due from the alleged trustee to the principal 
 defendant is payable upon condition subsequent, to be expended for 
 certain purposes specifically designated, a general creditor, whose 
 debt was not incurred for the purposes designated, can not, by trustee 
 process, appropriate the fund and divert it to other purposes to which 
 it could not have been legally appropriated by the principal defend- 
 ant. Pihe V. Shore Line, 68—445. 
 
 See Assignment foe Benefit of Ckeditoes, 5, p. 84. 
 Judgment, 24, p. 325. 
 
 V. PRACTICE. 
 
 32. In trustee process it is not competent for the principal defend- 
 ant to intervene with allegations of fact dehors the record to affect the 
 decision as to the liability of the trustee. Tunhs v. Grover, 57 — 586. 
 
 33. R. S., c. 86, § 16, jaroviding that the principal defendant in a 
 trustee process, on whom no personal- service of the writ has been 
 made, "may assume the defense of the suit," does not permit him, 
 after the time allowed therefor by the rule of court, to file a motion in 
 abatement for the want of service upon him. Steward v. Walker, 
 58—299. 
 
 34. "When it appears by the disclosure, that the property disclosed 
 is CLAIMED by a third person by virtue of an assignment by the princi- 
 pal debtor purporting to have been made prior to the commencement 
 of the trustee process, the plaintiff, before he can claim to have the 
 trustee charged, must, unless the claimant voluntarily appear, have 
 written notice issued and served upon the claimant as prescribed in 
 R. S., c. 86, § 32. Burnell v. Weld, 59—423. 
 
 35. In an action by a private creditor against one of two paetneks, 
 the alleged trustee disclosed an indebtedness to the firm, and also 
 stated that there were company debts due and outstanding against the 
 firm to an amount greater than the indebtedness of the trustee to the 
 firm. The other partner voluntarily appeared as a claimant under R. 
 S., 1871, 0. 86, § 32, and offered to file allegations showing that the 
 demand disclosed by the trustee was necessary to pay the debts of the 
 firm for which he was liable. Held, that he should have been allowed 
 to do so. Parker v. Wright, 66—392. 
 
 36. When exceptions are taken to the ruling and decision of the 
 judge of the superior court, as to the liability of the trustee to be 
 charged, the whole case may be re-examined by the law court. Simp- 
 son V. Bilher, 59 — 196. 
 
 37. On an appeal by a trustee from a judgment of a trial justice 
 against him, at the second term, the plaintiff tiled a motion to dismiss 
 the appeal for the reason that the trustee had no right of appeal and 
 the court no jurisdiction. The motion was overruled and the plaintiff 
 filed exceptions. Held, that the exceptions should await the final dis- 
 position of the case, before entry upon the law docket. Day v. Chan- 
 dler, 65—366. 
 
558 TEITSTEE PROCESS — USTJIIY. 
 
 38. Seevice. When the writ contains the names of several trustees, 
 p,nd service is made on some of them and then on the principal defend- 
 ant, the trustees upon whom service is made can not complain that an 
 alteration is afterwards made in the name of the other trustee and 
 service renewed upon the principal defendant. As to them this is not 
 material. Bowler v. European <Sb N. A. R. R. Co., 67 — 395. 
 
 39. If a writ contains the names of several trustees and service is 
 made on some of them and then on the principal defendant, a subse- 
 quent service on the other trustees, or the insertion of the names of 
 new trustees and a renewal of the service on the principal defendant 
 is unavailing so far as the trustees upon whom such subsequent service 
 was made, or whose names were inserted after the first service upon 
 the principal, are concerned. lb. 
 
 40. When a corporation is summoned as trustee, the writ, as regards 
 both trustee and the principal defendant, may be made returnable to 
 the second term of court after the date of service, when the interval 
 between the date of service and the first term thereafter is more than 
 fourteen and less than thirty days. Walker v. Tewksbury, 67 — 496. 
 
 VI. EFFECT. 
 
 41. Where, in a trustee process, the plaintiff claims to charge the 
 person summoned as trustee, under R. S.-, c. 86, § 63, for holding per- 
 sonal property of the principal defendant under a conveyance fraudu- 
 lent and void, as to the latter's creditors ; and that issue is tried in the 
 disclosure of the alleged trustee, and he is thereupon discharged ; the 
 judgment is conclusive between the parties, and is a bar to a subse- 
 quent action between them brought under R. S., 1857, c. 118, § 47, in- 
 volving the same transactions. Bunker v. Tufts, 57 — 417. 
 
 42. The pendency of trustee process is no bar to the commencement 
 of a suit by the principal debtor against the trustee. Ladd v. Jacobs, 
 64^347. 
 
 43. The judgment recovered in the trustee suit, against the princi- 
 pal debtor and trustee, when satisfied by the trustee is a bar to the 
 suit subsequently commenced, to the amount paid and the costs of the 
 trustee, lb. 
 
 USURY. 
 
 1. In order to render a contract void for usury it must be tainted 
 with that offence in its inception. Lindsay v. Hill, 66 — 212. 
 
 2. But in respect to incurring the penalty or forfeiture for a viola- 
 tion of the law against usury, the subsequent receipt by the lender, of 
 usurious interest upon a contract originally untainted with usury, 
 renders him liable. lb. 
 
 4. To a promissory note in which is reserved and on which was 
 received excessive interest, given while R. S. of 1841, c. 69, was in 
 force, and sued after the unconditional repeal of R. S., 1857, c. 45, 
 usury is no defense, and the maker of the note can claim no deductions 
 for excessive interest reserved or paid. Holmes v. French, 68 — 525. 
 
VERDICT. 559 
 
 VERDICT. 
 
 I. FORM AND EFFECT. 
 II. AMENDMENT. 
 III. MOTIONS TO SET IT ASIDE. 
 
 I. FORM AND EFFECT. 
 
 1. Murder. Upon an indictment, charging the crime of murder 
 generally, a general verdict of guilty of the murder whereof the 
 defendant stands indicted, is not a finding that he is guilty of murder 
 in the first degree. State v. Cleveland, 58 — 564. 
 
 2. The SPECIAL FINDING of a jury is conclusive on the parties, in the 
 absence of any motion to set it aside, and of exceptions to the rul- 
 ings in relation thereto. State v. Madison, 59 — 538. 
 
 3. The jury returned a verdict in regular form, in an action of 
 trespass against several defendants, and appended to it a separate 
 paper apportioning the damages among the defendants. Held, that 
 the general verdict must stand and the other finding be rejected as 
 surplusage. Currier v. Swan, 63 — 323. 
 
 4. General Verdict. On search and seizure process, a general ver- 
 dict of guilty or not guilty is all that is necessary, although a clause 
 of § 47, c. 27, R. S., 1871, reads, "the jury shall find specially, under 
 the direction of the court, on all facts necessary to determine the 
 adjudication 5f the court." State v. McCann, 61 — 116. State v. 
 Rowlan, 64—531. 
 
 5. And, in search and seizure process, upon a general verdict of 
 guilty, the presumption arises that the respondent had in his posses- 
 sion all the liquors described in the return. State v. Lang, 63 — 215. 
 
 6. If a jury returns a verdict of guilty upon one count in an 
 indictment, and are silent upon another count which is identical with 
 it, the latter count should be disregarded, or at least a nol pros be 
 entered upon it, and the case proceed to judgment upon the verdict. 
 State V. Watson, 63—128. 
 
 7. Sealed Verdict. In all criminal cases, except capital cases 
 and cases where the punishment is imprisonment for life, the presiding 
 judge may, at his discretion, authorize a jury, when they agree during 
 an adjournment of court, to seal up their verdict and separate, and 
 have it opened, read and afiirmed when the court comes in, with the 
 same effect as if pronounced orally. Anon., 63 — 590. 
 
 8. FoEM OP verdict in criminal cases. Anon., 63 — 591. 
 
 9. Effect. A conviction for one kind of illegal keeping of prem- 
 ises as a nuisance is a bar to another indictment for any or all the 
 other kinds described in the statute, for the period of time covered 
 by both indictments. State v. Lang, 63 — 215. 
 
 10. When a suit is brought against husband and wife for a tort of 
 the wife, the liability of the husband necessarily follows from the 
 existence of the marital relation, and a verdict that the wife is guilty 
 disposes of the whole issue raised by a joint plea of not guilty. Fer- 
 guson V. Brooks, 67—251. 
 
560 VERDICT. 
 
 II. AMENDMENT. 
 
 10. In an action of trover, a verdict that the defendant "did prom- 
 ise," may be amended at a subsequent term, by substituting the words 
 "is guilty." Hoey v. Candage, 61 — 257. 
 
 11. When the error is merely formal, and has no connection with 
 the merits of the case, and the amendment when made, in no respect 
 impairs or changes the rights of the parties, the verdict may be 
 amended under the direction of the court, after it has been affirmed 
 and constructively recorded, and after the jury have separated and 
 even at a subsequent term. Hoey v. Candage, 61 — 257. Weston v. 
 Gilmore, 63—493. 
 
 12. But when the error is either by a verdict for a larger or smaller 
 sum than intended by the jury, or for the wrong party, and by the 
 amendment the verdict is reversed, or the damages increased or 
 diminished, when the verdict has been affirmed in ojsen court, and 
 the jury have separated and become accessible to the parties, the only 
 remedy for the mistake is by setting aside the verdict. Weston v. 
 
 Gilmore, 63 — 493. 
 
 III. MOTIONS TO SET IT ASIDE. 
 
 13. FoEM OF Motion. The verdict and the nature and grounds of 
 the action, and of the defense, should appear in a motion to have a 
 verdict set aside as being against law and evidence. Bartlett v. Lewis, 
 58—350. 
 
 14. A motion founded on any alleged cause not shown by the evi- 
 dence reported, accompanied by depositions annexed, and not by 
 testimony "heard and reported by the judge," is not in compliance 
 with R. S., c. 82, § 33. Ih. 
 
 15. Tribunal. Under R. S., c. 77, § 13, and Public Laws of 1872, 
 c. 83, two distinct tribunals, each exclusive of the other, have cogniz- 
 ance of a motion to set aside a verdict when the evidence demands 
 it; and the aggrieved party has his election. Averill v. Rooney, 
 59—580. 
 
 16. Thus, under R. S., c. 77, § 13, he may present his motion when 
 accompanied by a report of all tlie evidence signed by the presiding 
 judge, to the law court; or under Public Laws of 1872, c. 83, if two 
 verdicts have not been rendered against him in the cause, he may, at 
 the same term at which the verdict was rendered, present his motion 
 to the presiding justice who rendered it, without a report of the evi- 
 dence. Ih. 
 
 17. In criminal oases, a motion to set aside a verdict as against the 
 evidence or weight of evidence, must, be presented to and decided by 
 the presiding judge, whether in the supreme or superior court. Utate 
 V. Intoxicating Liquors, 63 — 121. 
 
 18. Cause. The fact that the jury were unable to agree upon one 
 of four questions submitted to them, can not be presented to the full 
 court upon a motion to set aside the verdict as being against the evi- 
 dence. Mope Iron Works v. Holden, 58 — 146. 
 
 19. The law imposes the duty of determining the facts upon a jury, 
 who see and hear the witnesses, and not upon the court who have not 
 those means of ascertaining the truth. Elliott v. Grant, 59 — 418. 
 
VOLTJNTAEY ACT— TVAGEE — WAIVHE. 561 
 
 20. It is not a sufficient cause for setting aside a verdict that the 
 court might, upon the same evidence, have come to a different result. 
 lb. 
 
 21. But the preponderance of evidence against the verdict must be 
 such as to show that the jury must have acted under a mistake, or 
 been influenced by improper motives. lb. 
 
 22. A paper found in the jury-room after the jury have left it, upon 
 which twelve different sums, ranging from nothing to several thousand 
 dollars, are set down and added together and the amount divided by 
 twelve, the quotient being the precise sum for which the verdict was 
 rendered, does not furnish sufficient cause for setting aside the ver- 
 dict. It can not be concluded from this alone that each and all of 
 the jurors did not agree to the verdict rendered. Willey v. Belfast, 
 61—569. 
 
 23. A motion to set aside a verdict because the jurors had com- 
 munications with one of the parties will not be heard by the court 
 when there is no specification in the motion as to what jurors are 
 thus charged, nor what was said and done during such communica- 
 tions, especially when the verdict is well sustained by the evidence. 
 Lennox v. Shox <& Lmcoln H. It. Co., Q2 — 322. 
 
 24. Irregularity in the drawing of jurors is not a ground for setting 
 aside a verdict unless it appears that the party moving for the new 
 trial has been injured by the irregularity. State v. Neagle, 65 — 468. 
 
 See JuET, p. 331. 
 
 VOLUNTARY ACT. 
 
 It seems that if one voluntarily does what he might have been 
 compelled to do by a decree of a court of equity, such voluntary act 
 is as effectual as if done by the compulsion of a decree. Ouptil v. 
 Home, 63—405. 
 
 WAGER. 
 
 See GAMiifG, p. 281. 
 
 WAIVER. 
 
 1. A TOWN VOTED to issue bonds in aid of a railroad, on condition 
 it should be completed to a certain place, on or before January 1st, 
 1870. On that day the cars were running over the road to the place 
 specified, but the road was not actually completed. On January 15th, 
 1870, the town voted to issue bonds as contemplated by the previous 
 vote. Held, that the last vote did not modify or waive the condition 
 of the first vote. Portland & Oxford Ventral H. B. Co. v. Hart- 
 ford, 58—23. 
 
 36 
 
562 WArvEE. 
 
 2. A SUBSEQUENT DEMAND is proof of a waiver of a prior one, 
 not conclusive but may be satisfactory. Hagar v. Jtandall, 62 — 
 439. 
 
 8. Condition in Contract. The plaintiffs, merchants in Boston, 
 on July 5th, sold for cash, a lot of flour which they forwarded to 
 Portland on the 7th, to the vendees, and on the 8th, they sent also a 
 bill on which was printed "terms cash." On the 10th, plaintiffs learn- 
 ing that vendees had failed, replevied the flour from an attaching of- 
 ficer. JETeld, that by lex loci, the sale was conditional upon payment 
 of cash on delivery, that there was no waiver of the condition, and 
 that the action was maintainable without demand. Stone v. Perry, 
 60 — 48. See also SneedY. Lord, 66 — 580 
 
 4. Of Foreclosure. The receipt, after foreclosure, of a part of 
 the debt secured by mortgage must be deemed a waiver of the fore- 
 closure, especially when received under an agreement to that effect. 
 Dow T. Moor, 59 — 118. 
 
 5. Where a mortgage of real estate has been lawfully foreclosed 
 by the mortgagee, and the most that can be alleged as the result of 
 his acts and agreements thereto is, that he was willing and agreed to 
 sell the title which he acquired by virtue of the foreclosure of the 
 mortgage for a specified sum equal to the amount of the notes 
 secured by the mortgage, the fpreclosure can not be considered as 
 thereby opened. Stetson v. Everett, 59 — 376. 
 
 6. A writ of entry by a mortgagee, and judgment in his favor, is 
 not a waiver of the foreclosure by publication, when the action is not 
 prosecuted for the purpose of foreclosing the mortgage. Stewart \. 
 Davis, 63—539. 
 
 7. The giving of permits to cut timber on mortgaged land, by the 
 mortgagee, and the receiving of stumpage, after publishing notice of 
 foreclosure is not a waiver of such attempted foreclosure. Srnith v. 
 Larrabee, 58 — 361. 
 
 8. Parol Waiver of Written Contract. It is well settled that 
 parol proof of a subsequent waiver of any of the stipulations of a writ- 
 ten contract, or of any right under such contract, is admissible even 
 when the contract is under seal, and that such waiver may be inferred 
 from the acts of the parties. Adams v. McFarlane, 65 — 143. 
 
 9. The FORMAL TENDER of an amount called for by a contract 
 may be waived by the refusal of the party to whom the tender should 
 have been made to receive such amount. Mattoclcs v. Young, 66 — 
 467. 
 
 10. When the subscription to stock in a railroad company, by 
 a town, is made upon condition precedent that the location of the 
 road through the town shall be satisfactory to the selectmen, the 
 silence of the selectmen while the road is located by the company, 
 without asking their approval, is not a waiver of the condition. 
 JBucksport tfc Bangor It. H. Co. v. Brewer, 67 — 295. 
 
 11. A subscriber to stock of an incorporated company, who, as an 
 oflicer, participates in the calling of a meeting for its permanent 
 organization, and is therein chosen a director and acts as such, there- 
 by waives his right to avoid payment on the ground of the insuffi- 
 ciency of the notice for the meeting. Bucksport <& Bangor B. It. 
 Go. V. Buck, 68—81. 
 
WATVEE. ■ 563 
 
 12. DiscLOSUEE. The participation of the creditor in the disclos- 
 ure of a poor debtor, after the expiration of the time limited in the 
 bond, is no waiver of the forfeiture. Guilford v. Delaney, 57 — 589. 
 
 13. Want ov Sbevicb in a Suit. If the principal defendant in 
 trustee process, on whom no personal service jjf the writ has been 
 made, comes in and assumes the defense of the suit, he must neces- 
 sarily be held to waive objections arising out of the want or insuf- 
 ficiency of notice, and to plead to the merits of the case. Steward v. 
 
 Walker, 58—299. 
 
 14. Of Foem in Waeeant. When the respondent in a criminal 
 case, before a trial justice, appears and pleads not guilty to the com- 
 plaint, he thereby waives all objections to matters of form in the 
 warrant. State v. Regan, 67 — 380. 
 
 15. Of Exceptions. When a plea in abatement in a criminal case 
 is adjudged bad on demurrer, the defendant does not, by pleading 
 over, waive his right to except to the ruling upon his plea in abate- 
 ment. State V. Pike, 65 — 111. 
 
 16. A motion in arrest of judgment in a criminal case is not a 
 waiver of exceptions previously filed. State v. Lang, 63 — 215. 
 
 17. Where either party does not request the person presiding at 
 the view and hearing by a jury, in the assessment of damages for 
 land taken for a railroad, to certify to the court the substance of any 
 decision or instruction given by him, all right to exceptions are 
 waived, and the rulings can not be proved by calling as a witness the 
 person who presided. Allen v. Androscoggin, JR. R. Go., 60 — 494. 
 
 18. Of Estoppel. Agreeing to a fact in a case stated, which the 
 other p arty would have been estopped to assert is a waiver of the 
 estoppel. Thurlough v. Kendall, 62 — 166. 
 
 19. Stattjtoet peovisions, as that requiring a demand upon an 
 executor or administrator prior to a suit, may be waived. Mitchell 
 v. Bockray, 63—82. 
 
 20. The objection that the committee, appointed on an appeal from 
 the decision of the county commissioners in the location of a high- 
 way, was not sworn before giving notice of the time and place of 
 the hearing, must be made at the hearing, or it will be regarded as 
 waived. Raymond v. Go. Com., 63 — 110. 
 
 21. Of Peanchisb. When a corporation is chartered to erect a 
 toll-bridge across a river, and they erect one across the main channel 
 to an island, they may waive whatever rights they have for erecting 
 a bridge across the lesser channel. And evidence that the treasurer 
 of the corporation procured the location of a highway from the end 
 of the toll-bridge, across the island and the small channel to a way on 
 the main shore, and caused the town to be indicted for not keeping 
 such way in repair, is sufiicient evidence of such waiver. State v. 
 Madison, 59 — 538. 
 
 22. Objections of a pueelt technical character, which do not 
 go to the merits of the case, must be made at the earliest practicable 
 opportunity, or they will be regarded as waived. Raymond v. Go. 
 Com., 63—110. 
 
 23. An objection that no specific demand is annexed to a statute 
 submission must be made before the referees. Deering v. Saco, 68 
 —322. 
 
564 WAIVEE. 
 
 24. If an owner of land on whicli a school-house has been located, 
 petitions the county commissioners for a jury to consider the question 
 of a change of location, and for an increase of damages, and proceed- 
 ings are fully had on such petition, this is a waiver of any mere 
 irregularities in the location. Jordan v. Saskell, 63 — 193. 
 
 25. When the record of the adjudication, upon complaint that the 
 person for whom relief is asked is insane, is introduced in evidence with- 
 out objection, it is a waiver of the objection that the record is invalid 
 for want of the attestation of the town clerk, and a request for an in- 
 struction that the record is invalid for that cause is properly over- 
 ruled. Bowdoinham v. Phippsburg, 63 — 497. 
 
 26. By electing to go to trial upon a plea of misnomer in a munic- 
 ipal court in a case within its jurisdiction, the respondent waives the 
 right to plead anew in the appellate court, and go to trial on the 
 merits. State v. Gorkrey, 64 — 521. ' 
 
 27. Objection to Jueoe. Upon cross-examination of the defend- 
 ant it appeared that he, being in attendance upon the court as a juror 
 as well as a party, conversed with several of his associates in relation 
 to his case, prior to its coming on for trial. The plaintiff did not 
 then choose to insist upon the objection, but went on and closed the 
 trial, when a verdict was found against him. Held, that the objection 
 was waived. Hussey v. Allen, 59 — 269. 
 
 28. The defendant in a criminal case, who becomes a witness at his 
 own request, waives the constitutional privilege of exemption from 
 givmg evidence against himself. State v. Wentworth, 65 — 234. 
 
 29. It seems that a suit brought by a town to recover a tax must 
 be regarded as a waiver of procedure by arrest or distraint. York 
 V. Goodwin, 67 — 260. 
 
 30. Upon the question whether a debtor had waived the right to 
 hold certain property exempt from attachment, the presiding judge, 
 after saying to the jury that the debtor might waive the privilege and 
 the waiver be proved by any evidence that should satisfy them that 
 such was his intention, that the waiver might be, by words or acts or 
 both, instructed them further : "Or he may so conduct himself that 
 by his manner he may give the officer to understand he does not claim 
 any privilege of exemption, but rather assents that the property may 
 be attached." Held, that the instructions taken with the context 
 cannot be construed as permitting the jury to find any other than a 
 voluntary and intentional waiver by the debtor of his exemption priv- 
 ilege. Fogg V. Littlefield, 68 — 52. 
 
 31. It is a well settled rule, that points not taken in the trial of a 
 cause are waived. Eaton v. New England Telegraph Co., 68 — 63. 
 See Condition, 29, p. 98. Libel, 29, p. 343. 
 
 CoEPOEATiON, 15, p. 127. Railroad, 17, p. 464. 
 
 Day's Woek, 3, p. 156. Town, 35, p. 534; 45, p. 535. 
 
 Insueance, 41, p. 305. Widow. 
 
 Landloed and Tenant, 7, p. 334. Wat, 150. 
 
"WAEEANT — WATEE. 565 
 
 WARRANT. 
 
 1. Under a statute authorizing the clerk of a municipal court to 
 exercise the powers of the judge in criminal matters "when the judge 
 is engaged in civil business or absent from the court room," a war- 
 rant issued by the clerk and reciting as his authority to act, "the judge 
 being busy in court," is unauthorized, and affords no excuse for the 
 acts of an officer under it. Quptil v. Richardson, 62 — ^257. 
 
 2. And where an officer seizes liquors under a sufficient warrant, 
 but files a libel with the clerk of such court with nothing to show his 
 authority to receive it except the allegation, "the judge being occu- 
 pied in court," it affords the officer no justification. Jb. 
 
 3. When the clerk of a municipal court is authorized in certain 
 contingencies to exercise the powers of the judge, and a complaint 
 made before the clerk, and warrant issued by him are upon one i^iece 
 of paper, the warrant referring to the complaint, and an allegation of 
 fact sufficient to authorize the clerk to act appears in the complaint, 
 the same allegation need not be repeated in the warrant. Ih. 
 
 4. In a search warrant, the description of the premises in the com- 
 plaint may be referred to and adopted as a part of the warrant, and 
 both issued to the officer. State v. Erskine, 66 — 358. 
 
 5. The designation in the wairant of a certain dwelling-house and 
 its appurtenances occupied by the defendant, is sufficient to authorize 
 the officer to search a stable on the same lot about ten feet in the rear 
 of his store and dwelling-house, the store being under his dwelling- 
 house and a part of it, and the stable being used by him, though ten- 
 ants of his used the stable in connection with him. State v. Burhe, 
 66—127. State v. Woods, 68—409. 
 
 6. Defects i2sr Form. When a respondent in a criminal case ap- 
 pears generally, and pleads not guilty to a complaint, he thereby 
 waives all objections to matters of form in the warrant. State v. 
 Began, 67—380. 
 
 See lu-TOxicATiNG Liquoes, 22, et seq., p. 316. 
 Offioeb, 22, p. 399 ; 49, p. 402. 
 Plantation, 2, p. 422. 
 Town, 24, p. 533. 
 
 WATER. 
 
 1. One who digs a well on his own land, in good faith, to obtain 
 water for his own domestic uses, and thereby diverts underground 
 water, preventing it from percolating into the ancient spring of a 
 coterminous proprietor to the injury of such proprietor, is not liable 
 to him in damages. Chase v. Silverstone, 62 — 175. 
 
 2. A person may erect structures upon his own land as high as he 
 pleases, without regard to the effect upon surface water. Morrison 
 V. Buchsport & Bangor B. B. Co., 67 — 353. 
 
 3. One may prevent surface water from coming upon his land, 
 whether flowing thereon from a highway, or any adjoining land. 
 Murphy v. Kelley, 68—521. 
 
566 WATEE-COXmSES. 
 
 WATER-COURSES. 
 
 1. Log-owners are liable to the riparian proprietor for the actual 
 damages caused by traveling upon the banks of a floatable stream for 
 the purpose of propelling their logs. Hooper v. Sohson, 57 — 273. 
 
 2. Islands. The owner of land on both sides of a river, above 
 tide waters, is the owner of the islands in it to the extent of the 
 length of his lands upon it. Granger v. Avery, 64 — 292. 
 
 3. A dam company was incorporated for the purpose of improving 
 the navigation of a river and built dams for the purpose of holding 
 back the water in order to float logs to a market. Meld, that one 
 who had placed logs in the river above the dams was not limited in 
 his rights to the natural flow of the water as it was before the improve- 
 ments made by the company, but to that improved condition of the 
 water created by the improvements, unless deprived of it in the exer- 
 cise of a sound legal discretion by the party having the right so to do. 
 Tooihaker v. 'Winslow, 61 — 123. 
 
 4. Held, also, that one who had cut logs and placed them in the 
 lakes in which the water was held back by the dams had the right to 
 maintain an action in his own name against one who, without right 
 and wilfully raised the gates of the dam and drew off the water, 
 thereby preventing the plaintiff's logs from floating to-market. Ih. 
 
 5. Improvements. If a stream is by nature floatable, those who 
 have occasion to use it may do so, and may also have the benefit of 
 such improvements as may be put upon it, having reasonable regard 
 to the rights of the owner. Holden v. Robinson Co., 65 — 215. 
 
 6. Public Highway. A stream which in its natural condition is 
 capable of being used for floating boats, rafts, or logs, for some purpose 
 useful to trade or agriculture, though it be not strictly navigable, is 
 a public highway. lb. 
 
 7. It is not essential that the adaptation of the stream to such use 
 be continuous at all seasons and in all its conditions. Ih. 
 
 8. Nor will the necessity of going upon the banks of the stream 
 for the purpose of driving logs prevent it from being public. lb. 
 
 9. To constitute a water-course it must appear that the water usu- 
 ally flows in a particular direction, and by a regular channel, having 
 a bed with banks and sides. It need not flow continuously but must 
 have a well defined and substantial existence. Morrison v. Bucksport 
 & Bangor B. B. Co., 67—358. 
 
 10. Reasonable Use. When a boom corporation is prohibited 
 by its charter from interrupting the navigation of the river, it can not 
 justify an interruption to navigation by swinging a boom across the 
 river, on the ground of reasonable use. In such case there is no ques- 
 tion of reasonable use for the jury to pass upon. Plummer v. Penob- 
 scot L. A., 67—363. 
 
 11. Flats. When riparian proprietors have laid out and sold 
 their land in lots as delineated upon a plan, having streets indicated 
 thereon, terminating upon a navigable stream, such streets will be 
 considered as dedicated to the use of the purchasers of the lots and 
 the public down to the water at all stages of the tide, unless there be 
 express reservation of the flats, although the plan indicates the bound- 
 
WAY. 567 
 
 ary of the tier of lots ne,arest the river at high water mark. Stetson 
 V. Bangor, 60—313. 
 
 See Indictment, 31, p. 291. 
 
 Law and Fact, 11, p. 340. 
 
 Mills, p. 364. 
 
 Nuisance, 22, p. 396. 
 
 WAT. 
 
 I. GENERALLY. 
 II. LOCATION OP COUNTY ROADS OR HIGHWAYS. 
 
 (a) AriHOBITT TO LAY OUT. 
 
 (b) Peocbedings in laying out. 
 
 (c) Appeal. 
 
 (d) Opening. 
 
 IIL LOCATION OF TOWN OR PRIVATE WAYS. 
 
 (a) PUOOEEDINGS OP MUNICIPAL OFPICEKS. 
 
 (b) Acceptance. 
 
 (c) Appeal and proceedings. 
 IV. LAND DAMAGES. 
 
 (a) Who is entitled to damages. 
 
 (b) Pboceedings to becover damages. 
 
 (c) Assessment. 
 V. DISCONTINUANCE. 
 
 VI. WAYS OTHER THAN BY STATUTE, 
 VII. WAYS IN UNINCORPORATED PLACES. 
 VIIL HIGHWAY SURVEYORS. 
 IX. ACTIONS AGAINST TOWNS FOR INJURIES FROM DEFECTIVE 
 WAYS. 
 
 (a) What constitutes a defect. 
 
 (b) Proximate cause and contbibutoey negligence. 
 
 (c) Notice. 
 
 (d) Other Mattees. 
 
 X. INDICTMENT OF TOWNS FOR DEFECTIVE WAYS. 
 XL OBSTRUCTIONS IN HIGHWAYS. 
 XII. LAW OF THE ROAD. 
 
 I. GENERALLY. 
 
 1. Sidewalk. The provision of R. S., 1857, c. 18, § 62, that the 
 repair of a way estops the town to deny the location, applies to a 
 sidewalk. Mc Cann v. Bangor, 58 — 348. 
 
 2. There appears to be no rule of law which will prevent any one 
 from working on a legally established highway, with the consent of 
 the town, or its municipal officers, if he is willing to do so. Cyr v. 
 Bufour, 62—20. 
 
 3. Location aceoss Tide Waters. A private act authorized the 
 location of a way across the tide waters of Long creek by means of a 
 bridge with suitable draw, subject to the approval of the harbor com- 
 
668 WAY, 
 
 missioners of Portland. Held, that the location must provide for the 
 bridge and draw, and be made subject to the approval of the harbor 
 commissioners, or it would be quashed upon certiorari. Gape Eliza- 
 beth V. Oo. Com., 64^-456. 
 
 4. When a toll beidgb corporation is so built that it consists of 
 two distinct structures, one extending from the shore to an island, 
 and the other extending from the island to the opposite shore, and a 
 highway is laid out over one of these structures, so that the bridge 
 company has no longer the right to exact a toll for crossing it, the 
 burden of supporting it is changed from the bridge company to the 
 town within which that portion is situated. State v. JVorridgewock 
 Falls Bridge Co., 65—514. 
 
 II. LOCATION OF COUNTY EOADS OR HIGHWAYS. 
 
 (a) AUTHOKITT TO LAY OUT. 
 
 (b) Pkocbbdings in laying out. 
 
 (c) Appeal. 
 
 (d) Opening. 
 
 (a) Authority to lay out. 
 
 5. A highway is not "substantially the same thing" as a town-way 
 within the meaning of R. S., 1871, c. 18, § 39. Waterford\. Co. 
 Com. Oxford Co., 59—450. 
 
 6. The reversal on appeal of a judgment of county commissioners 
 in laying out, on appeal, a town-way, can not bar them from enter- 
 taining, within two years after such reversal, a petition praying for 
 the laying out of a highway over the identical place. lb. 
 
 7. In an action by a town against another town by whose negligence 
 an injury was caused to the highway (bridge) within the' plaintiff 
 town, the defendant can not question the validity of the location of 
 the way, if it appears that the county commissioners had jurisdiction 
 and made an actual location which has never been quashed. Tops- 
 ham V. Lisbon, 65 — 449. 
 
 8. It is not necessary in order to give county commissioners juris- 
 diction so that the validity of an alteration by them of the location 
 of a highway can not be questioned collaterally, that their adjudica- 
 tion that the petitioners were responsible persons appear affirmatively 
 upon the records. Cyr v. Dufour, 68 — 492. 
 
 9. When the commissioners order notice and give all concerned an 
 opportunity to be heard it must be presumed that they were satisfied 
 as to the responsibility of the petitioners. lb. 
 
 (b) Proceedings in laying out. 
 
 10. A petition presented to the county commissioners, at a session, 
 held by adjournment from a regular session, is a presentation at a 
 regular session, although the cause of action therein set forth did not 
 occur until after the time fixed by statute for the commencement of 
 the regular session. Bethel v. Co. Com. Oxford Co., 60 — 535. 
 
 11. Where the return of county commissioners on a petition to lay 
 out a highway was made at the January term and the case then con- 
 tinued over the next regular June term to the succeeding July ses- 
 sion when all proceedings therein were closed and recorded ; held. 
 
"WAY. 569 
 
 that the error was fatal to the validity of the proceedings. Monti- 
 cello V. Go. Com. Aroostook Co., 59 — 391. 
 
 12. When the point of beginning of an alteration is on a highway 
 a certain distance from a known and fixed line, the point intended 
 is the center of the highway. Cyr v. Dufour, 68 — 492. 
 
 13. The construction of the record of the location of a highway is 
 for the court: where upon the earth the location is, is for the iury. 
 Ih. •* 
 
 14. When an objection of a technical character is made to the 
 proceedings of the members of a committee to locate a road it will 
 be presumed that the party had knowledge of the ground of the 
 objection at the time it occurred, unless the contrary is shown. Ray- 
 mond V. Co. Com., 63 — 110. 
 
 15. Such objections must be made at the time the errors are com- 
 mitted or they will be considered as waived. lb. 
 
 16. A petition set forth that the public necessity required an alter- 
 ation in certain highways, and proposed two new routes forming dia- 
 gonals of different lengths, between two old roads. The commission- 
 ers laid out a road substantially agreeing with one of the routes 
 suggested in the petition. Held, that although the word "alteration" 
 was improperly used, and the word "location" did not appear in the 
 petition, it sufficiently appeared that the petition was for the location 
 of a new road, and gave the commissioners jurisdiction to locate a 
 new highway. Raymonds. Co. Com., 63 — 112. 
 
 17. An agreement by a land owner, not to claim damages for a way 
 located over his land, does not render the location invalid. Coombs 
 V. Go. Com., 68—484. Ante, 3. 
 
 (c) Appeal. 
 
 18. In the absence of the "written consent" of the parties, a broth- 
 er of the mother of one of the petitioners for the location of a high- 
 way, can not be appointed one of a committee of "three disinterested 
 persons," on appeal by the petitioners from the decision of the county 
 commissioners in refusing to lay out the way. Clifford, Appellant, 
 59—262. 
 
 19. When the committee of appeal reverse the decision of the 
 county commissioners, refusing to lay out a town way, it is no part of 
 the duty of the committee to lay out the way or assess the land dam- 
 ages. Irving v. Go. Com. Sagadahoc Co., 59 — 513. 
 
 20. Appointment of Committee. Upon an appeal from a decis- 
 ion of county commissioners, upon a petition for the laying out of a 
 highway, the committee must be appointed at the term when the ap- 
 peal is entered. French v. Go. Com., 64 — 583. 
 
 21. If from any cause, the presiding judge fails to appoint a com- 
 mittee at the first term, the appeal may be dismissed at any subse- 
 quent term. lb. 
 
 22. On an appeal from the decision of county commissioners lajdng 
 out a highway, if, after the committee has been appointed, one of 
 them resigns, the appellant is held to the same degree of diligence in 
 filling the vacancy as in the original appointment. The vacancy 
 should be filled at the term it occurs. Belfast v. Go. Com., 67 — 530. 
 
570 WAY. 
 
 23. "When the report of a committee is recommitted, they may, in 
 a subsequent report refer to and adopt their first report. Coombs v. 
 Co. Com., 68—484. 
 
 24. A report of the committee saying that the "proceedings of the 
 commissioners" in discontinuing said way, be reversed in part (de- 
 scribing it), "and the residue of the proceedings of the commission- 
 ers be affirmed," substantially says that the "judgment" of the com- 
 missioners be reversed as to the part described and affirmed as to the 
 remainder, and is sufficiently definite as a guide to the commissioners 
 in their subsequent proceedings. lb. 
 
 25. By R. S., c. 18, § 2, when a petition for the location or discon- 
 tinuance of a highway is presented to the county commissioners, be- 
 fore giving the prescribed notice of the time and place of their meet- 
 ing, they must be "satisfied that the petitioners are responsible, and 
 that an inquiry into the merits is expedient." No appeal lies to their 
 decision upon these questions. Moore^s Appeal, 68 — 405. 
 
 (d) Opening. 
 
 26. It is competent for the selectmen to appoint any citizen of the 
 town, whether he be a sworn surveyor or not, to open a highway laid 
 out by the county commissioners. Cyr v. Dufour, 62 — 20. 
 
 27. Under R. S., 1871, c. 18, § 28, providing that when a town 
 does not open and make passable a highway within the time pre- 
 scribed, an agent appointed by the county commissioners shall make 
 a written contract for the work to be done, and the town shall be noti- 
 fied of the amount to be paid and the time when the contract is to be 
 completed ; also, that "when the contract has been completed and the 
 accounts allowed, the town becomes liable to pay the amount ex- 
 pended," and that a warrant may be issued if the town neglects to 
 pay for thirty days ; the liability of the town to pay accrues only at 
 the expiration of the time fixed in the notice and contract, although 
 the work may be completed and accounts allowed at an earlier date, 
 and no warrant of distress can lawfully issue until thirty days there- 
 afterwards. Waterville v. Barton, 64 — 321. 
 
 28. The commissioners have no authority to render a judgment in 
 favor of themselves for the expenses thus incurred, nor for costs eo 
 nom.ine, but it should run in favor of the agent, and should be for such 
 sums as the commissioners allow the agent on the settlement of his 
 accounts for the work done, after notice to the town, and expenses of 
 the agent for superintendence, "and for procuring the allowance of his 
 account." lb. 
 
 29. Upon the amounts so allowed, interest is recoverable from, and 
 after the day fixed for the completion of the work, if it is actually 
 completed, and the accounts allowed at that time. lb. 
 
 30. Although the agent, by the terms of the contract with those 
 who did the work, was not to be personally responsible to them, still 
 the allowance may be made to him and the payment of the expense 
 incurred in the construction of the way enforced for the benefit of 
 whom it might concern, in the name of the agent. lb. 
 
WAY. 571 
 
 III. LOCATION OF TOWN OR PRIVATE WAYS. 
 
 (a) Pbocbbdings of municipal officbbs. 
 
 (b) Acceptance. 
 
 (c) Appeal and proceedings. 
 
 (a) Proceedings of municipal officers. 
 
 31. In^ Cities. By § 9, of the charter of the city of Portland, the 
 city council have exclusive authority, through a committee therein 
 mentioned, to lay out, alter, or discontinue any and all streets in the 
 city, without petition therefor. Jones v. Portland, 57 — 42. 
 
 32. A notice duly published, reciting a petition, praying that a "sur- 
 vey be made of the westerly portion of Congress street, with refer- 
 ence to straightening and otherwise imjDroving said street," and 
 designating the time and place, when and where the committee will 
 meet the parties interested, and "will adjudge and determine whether 
 the public convenience requires said street to be laid out," is sufficient. 
 lb. 
 
 33. The report of the committee need not contain a detailed recital 
 of the notice given. lb. 
 
 34. The "westerly part of Congress street" is sufficiently definite. 
 lb. 
 
 85. Under a statute providing that the city council shall have ex- 
 clusive authority to lay out or alter any street in the city, "and in all 
 other respects shall be governed by and subject to the same rules and 
 restrictions as are provided by the laws of the State, regulating the 
 laying out of streets and public highways, it was held, that where the 
 petition prayed for the widening of certain streets and the council, 
 in accomplishing the main object of the petition, widened a street not 
 petitioned for, and did not widen certain streets petitioned for, the 
 proceedings would not be quashed, it not appearing that there was 
 any abuse of the discretionary power of the council to devise the 
 best means for accomplishing the main object of the petition. Gas- 
 sidy V. Bangor, 61 — 434. 
 
 36. Under a city ordinance providing that upon petition for the 
 laying out or alteration of a street, "and the same shall be of common 
 convenience and necessity, the said city council may commit the same 
 to the board of engineers," who are to report their doings, the com- 
 tnitment of the subject to the engineers is sufficient evidence of the 
 preliminary adjudication, when, upon the acceptance of the report 
 there is a final adjudication that the street laid out is of common con- 
 venience and necessity. lb. 
 
 37. Where the city council had authority to lay out or alter streets 
 without giving notice, but no authority to assess the damages without 
 giving notice, it was Jield, that where a street was laid out and dam- 
 ages assessed upon an insufficient notice, the failure affected only the 
 damages and not the validity of the laying out. lb. 
 
 38. A TOWN WAT may be laid out on petition of inhabitants wheth- 
 er owners or occupiers of land or not. Hall v. Co. Com., 62 — 325. 
 
 39. But a PRIVATE WAT can only be laid out for residents who ocr 
 cupy, or non-residents who own cultivated land, which such way will 
 connect with a town or county road. lb. 
 
 40. A petition for a town-way leading to or from any of the lines 
 
572 WAY. 
 
 separating the town from adjoining towns is within the jurisdiction 
 of the selectmen. Hebron v. Go. Com., 63 — 314. 
 
 41. Nor is it any objection to the jurisdiction of the selectmen that 
 the way connects with a town-way only at one of the termini, the 
 other ending in a pasture. Ih. 
 
 42. In a petition to the selectmen to lay out a town-way a descrip- 
 tion of the petitioners as "inhabitants of said town, or owners of land 
 therein," seems to imply that the signers T^ere of both classes. Ih. 
 
 (b) Acceptance. 
 
 43. It is not competent for a town to establish a way across the 
 private land of its citizens by a simple vote of acceptance, without 
 any previous location by its selectmen. Burns v. Annas, 60 — 288. 
 
 44. When a city council voted to accept the report of engineers 
 laying out a street, and then adjourned for the declared purpose of a 
 further consideration of the matter, it was held, that by the accept- 
 ance, the council intended only to bring the subject before them and 
 not to adopt the laying out as set forth in the report. Cassidy v. 
 Bangor, 61—434. 
 
 (c) Appeal and proceedings. 
 
 45. In 1870, the city council of Portland, under § 9 of their charter, 
 laid out a street across the petitioners' land for which they awarded 
 no damages, and from their adjudication as to damages this appeal 
 was taken. After the appeal the city council discontinued a portion 
 of the street. Held, that the petitioners may abandon their appeal 
 with costs, or pursue it and have the damages assessed for so much of 
 the located street as is not discontinued. Curtis v. Portland, 60 — 55. 
 
 46. To confer on the county commissioners jurisdiction of the lay- 
 ing out of a town-way, leading from land under improvement to a 
 town or highway, founded upon the unreasonable refusal of the 
 municipal officers, the petition to the commissioners must distinctly 
 set out all the jurisdictional facts, and among them that the refusal 
 on the part of the municipal officers was "unreasonable." Goodwin 
 V. Go. Com. Sagadahoc Co., 60 — 328. 
 
 47. And the want of jurisdiction of the commissioners resulting 
 from the omission of such an allegation, may be taken advantage of 
 in the supreme judicial court when the report of the committee ot 
 appeal from the decision of the county commissioners comes up for 
 acceptance ; and the proceedings may be quashed. lb. 
 
 48. The selectmen of a town, after due proceedings, laid out a 
 town-way, and awarded to one of the land owners an under pass for 
 his cattle, and the town refused to accept the road. Upon petition sea- 
 sonably presented the county commissioners laid out the way as if it 
 were a county way, omitting the under pass. Held, correct. Bethel 
 V. Go. Com. Oxford Co., 60—535. 
 
 49. To give county commissionbes jurisdiction to lay out a 
 town-way upon the unreasonable refusal of the town to accept the 
 way when laid out by the selectmen, it is sufficient if the petitioners 
 to the commissioners describe themselves "parties aggrieved" by the 
 refusal of the town, without asserting that the original petitioners to 
 
WAY. 573 
 
 the selectmen were inhabitants, or owners of improved land. True 
 V. Freeman, 64 — 573. 
 
 50. Upon the refusal of a town to accept a town-way laid out by 
 the selectmen, a petition to the county commissioners, describing the 
 petitioners as parties aggrieved by the refusal of the town, giving a 
 general description of the way, sufficient to identify it, and the date 
 of the action of the town thereon, and alleging that the town unrea- 
 sonably refused to accept it, is sufficient for jurisdictional require- 
 ments, without a specific statement of all the acts and facts which go 
 to make up an unreasonable refusal. Ih. 
 
 51. When a town refuses to discontinue a town-way, county com- 
 missioners obtain no jurisdiction, upon the face of the papers, if it is 
 not alleged in the petition to the commissioners, nor does it appear in 
 their proceedings, that the petitioners were inhabitants of the town, 
 or owners of taxable property therein, or that they had any interest 
 whatever in the subject matter, or were in any way connected with 
 the prior proceeding. Brown v. Sagadahoc Commissioners, 68 — 537. 
 
 52. Opening. Where county commissioners, upon the refusal of the 
 town, laid out a town-way where there had formerly been a bridle 
 path subject to gates and bars, the way laid out b^ing one rod wider 
 than the bridle road, which had been in use more than twenty years 
 and more or less wrought by the town, and, after the location, a gate 
 across the way was removed by some one unknown, and the sill on 
 which it ran was removed in the presence of the highway surveyor by 
 those at work on the way, but not by his direction, but by his direc- 
 tion the way was repaired, and left open for public travel, and the 
 town voted to settle the land damages ; it was heldj that the way was 
 opened and the land taken by the town, although the town officers 
 testified that they did not intend to do anything to make the town 
 liable under the location by the commissioners. True v. Freeman, 
 64^573. 
 
 IV. LAND DAMAGES. 
 
 (a) Who is entitled to damages. 
 
 (b) Pbocbedings to eecoveb damages. 
 
 (c) Assessment. 
 
 (a) Who is entitled to damages. 
 
 53. Where E. N. petitioned for an increase of the damages awarded 
 by the county commissioners for his land taken by the K. & L. rail- 
 road company, and the jury before whom the petition was heard, re- 
 turned a verdict purporting to be "on the petition of E. N., adminis- 
 trator of the estate of B. N., deceased," and to award damages for 
 the real estate of the deceased, taken by said corporation, such ver- 
 dict was set aside. Neal v. K. & L. JR. B. Co., 61 — 298. 
 
 54. Unless the real estate which was of an intestate, be taken for 
 public uses prior to his decease, his administrator has no right to peti- 
 tion for increase of damages ; since, in such case, it would be the land 
 of the intestate's heirs that was taken. Jb. 
 
 55. Upon an appeal for land damages occasioned by the location of 
 a street in a city, the committee to whom the matter is referred may 
 consider the title of the appellant to the land so far as it affects the 
 
574 -WAY. 
 
 question of damages, although such power is not given in terms in 
 the charter. Thurston v. Portland, 63 — 149. 
 
 56. The statute, providing for the recovery of damages by a land 
 owner for an injury to bis land by the raising or lowering of a street, 
 gives it to the owner of the land at the time of the injury. Sargent 
 v. Machias, 65 — 591. 
 
 57. A subsequent conveyance by the land owner will not affect 
 his claim for damages. lb. 
 
 (b) Proceedings to recover damages. 
 
 58. When the committee of appeal reverse the decision of county 
 commissioners, it is no part of the duty of the committee to lay out 
 the way, or assess the land damages. Irving v. Co. Com. Sagada- 
 hoc Co., 59—513. 
 
 59. Where a railroad corporation had seasonably filed a petition in 
 the nature of an appeal on the question of damages, which was dis- 
 missed at the October term, 1870, and the plaintiffs applied to the 
 county com.missioners for the security required by R. S. of 1857, c. 
 51, § 51, (R. S., § 6), for the payment of damages awarded, and the 
 corporation gave no security, but in December following, paid the 
 amount of damages awarded and costs ; held, that in the absence of 
 evidence to the contrary, this may well be presumed to be in satisfac- 
 tion of the damages awarded by the commissioners for the land taken 
 to which the assessment refers. Eaton y. E. & N. A. S. M. Co., 
 59—520. 
 
 60. The town in which a town-way has been located, is entitled to 
 notice of the pendency of a petition to the county commissioners for an 
 increase of damages. , Williams v. Richmond, 59 — 517. 
 
 61. Jury. When a petition to the county commissioners for in- 
 crease of damages, by the location of a town-way has been entered, 
 no order for the summoning of a jury can be made until there has 
 been a failure to agree upon a committee. Ih. 
 
 63. In impanneling a sheriff's jury, summoned to assess damages 
 for land taken for the location of a railroad, the parties are not enti- 
 tled to have the names of all the jurors summoned placed separately 
 in a box, and the jury drawn in accordance with the provisions of R. 
 S., c. 82, § 66. Davis v. B. & P. B. R. Co., 60—303. 
 
 63. Nor have they the right peremptorily to challenge two jurors. 
 Ih. 
 
 64. By R. S., c. 18, § 12, it is made the duty of the person presid- 
 ing at the view and hearing by a jury, in the assessment of damages, 
 for land taken for a railroad, to "certify to the court with the verdict, 
 the substance of any decision or instruction by him given, when any 
 party shall request it." Allen v. Androscoggin R. R. Co., 60 — 494. 
 
 65. Exceptions. When a party does not request the person pre- 
 siding to certify his rulings, he thereby waives all right of exception, 
 and cannot prove the rulings by calling, as a witness, the person who 
 presided. lb. 
 
 66. When a hearing is had on a petition for an increase of damages 
 before a jury, in order to present the questions of law, raised by the 
 instructions of the person presiding at the hearing, to the court, it is 
 necessary that a written motion to set the verdict aside, in which the 
 
WAY. 575 
 
 objections to it, whether of law or fact are set out, be filed in the court 
 to which the verdict is returned, and exceptions be filed to the ruling 
 of the court upon that motion. Bryant v. Knox & Lincoln R. H. 
 Co., 61—300. Burr v. Bucksport & Bangor B. B. Co., 64—131. 
 
 67. View by the Jtot. If the jury (R. S., 1871, c. 18, § 12), in 
 assessing the damages, is prevented by the presiding officer from 
 viewing the premises from any standpoint outside the location of the 
 way (railroad), the verdict will be set aside. Wakefield v. Boston <& 
 Maine R. B. Co., 63—385. 
 
 68. The right of examination is not always co-extensive with the 
 claimant's land, but should be confined within reasonable limits, li. 
 
 69. The CITY cottncil of Bangor is a, continuing body. If an as- 
 sessment made by the council of one year is void, by reason of defec- 
 tive notice, the city council of the following year may order a new 
 assessment of the damages occasioned by the location or widening of 
 a way. Cassidy v. Bangor, 61 — 434. 
 
 70. Want of Peoseoution. When a, petition for increase or de- 
 crease of the land damages awarded by the county commissioners is 
 filed, if there is an unreasonable delay in issuing the warrant for the 
 jury, the commissioners may revoke the warrant, and dismiss the 
 petition. The cause for the delay is a matter for the commissioners 
 to pass upon. Portland t& Ogdensburg B. B. Co. v. Co. Com., 64 
 —505. 
 
 71. In an action of debt against a town to recover damages awarded 
 for the taking of the plaintiff's land for a town-way laid out by the 
 county commissioners, upon the unreasonable refusal of the town to 
 accept the way laid out by the selectmen, the court will not inquire 
 whether the location by the commissioners might not be quashed on 
 certiorari, when the case shows that the commissioners had jurisdic- 
 tion, and no proceedings have been taken to quash the location. True 
 V. Freeman, 64 — 573. 
 
 (c) Assessment. 
 
 72. In estimating the damages of a land owner for the taking a 
 strip of land across his land for the location of a railroad, the jury 
 may consider the value of the land taken; injury to the remainder 
 of the lot by reason of being severed or disfigured on account of the 
 strip taken or the use made of it ; the character, situation, present and 
 probable use of the remainder of the lot ; the distance of the owner's 
 buildings from the location of the raili-oad ; any facts which shall injure 
 the value of the premises by a proper and legal use of the road ; all 
 inconveniences from the sounding of whistles, ringing of bells, smoke, 
 rattling of trains, jarring of ground, excluding all indirect damages ; 
 so also diminution of the value of the remainder of the lot from ex- 
 jposure to fire from locomotives, taking into consideration, at the same 
 time, that, by statute, if the property is injured by fire, the company 
 is responsible for such injury. Bangor & Piscataquis B. B. Co. v. 
 Mc Comb, 60 — 290. See also Morrison v. Bucksport <& Bangor B. 
 B. Co., 67—353. 
 
 73. The conversion of a way dedicated to the use of purchasers of 
 adjoining lots into a public way does not authorize the award of 
 more than nominal damages. Stetson v. Bangor, 60 — 313. Bartlett 
 V. Bangor, 67—460. 
 
576 WAY. 
 
 74. The damages to be awarded upon the location of a -way are 
 such only as arise from its proper construction, and should be a gross 
 sum in money. Jackson t. Portland, 63 — 55. 
 
 75. Nor have the committee the right to award the payment of 
 annual damages until the town shall construct it in a particular man- 
 ner, lb. 
 
 76. A committee appointed by the court to award damages sus- 
 tained by a land owner by the laying out of a highway should not 
 appraise separately the land and a structure thereon. Ford v. Co. 
 Com., 64—408. 
 
 77. When a peetiously existing pbivate way is taken for a 
 highway the value of the existing way, with reference to the cost of 
 construction and state of repair, should be considered in estimating 
 the damages for the land taken. 
 
 78. When a previously existing private way is taken for a highway, 
 taking the land takes all things placed or existing upon it adapted to 
 its use as a public way, such as bridges, culverts, paving, &c. lb. 
 
 79. If an erection is to be removed the expense of removal and 
 consequent diminution of value are to be considered in estimating 
 damages for the land taken. Tb. 
 
 80. And if the erection is of such a character as to become incor- 
 porated in the land taken, whatever is taken should be appraised. lb. 
 
 See Ante, 45. 
 
 V. DISCONTINUANCE. 
 
 81. The opening of a specific portion of a highway, within six 
 years from the time allowed therefor, presents the discontinuance of 
 that part, notwithstanding another portion of the same location has 
 been discontinued by not being opened. State v. Madison, 59 — 538. 
 
 82. A highway in two or more counties, located by the commission- 
 ers of the several counties acting jointly, can not be discontinued in 
 whole or in part by the action of the commissioners of one county 
 acting separately. The commissioners of one county can not discon- 
 tinue that portion which is wholly within their own county. State 
 V. Oxford, 65—210. 
 
 83. When an alteration is made in an existing highway, by lawful 
 authority, it operates ipso facto as a discontinuance of so much of 
 the old way as lies between the two points where the alteration begins 
 and ends. Cyr v. Dufour, 68 — 492. 
 
 VI. WATS OTHER THAN BY STATUTE. 
 
 84. Facts from which a highway may by dedication be inferred. 
 Webb v.P.&K. JR. B. Co., 57—117. 
 
 85. The existence of a town-way may be established by proof of 
 user for twenty years by travelers, without restriction or limitation, 
 and that during all that time it was recognized as such by the town, 
 by expending money on it for repairs. State v. Bunker, 59 — 366. 
 
 86. A road by user can not be established in less than twenty 
 years. Burns v. Annis, 60 — 288. 
 
 87. Where riparian proprietors have laid out and sold their land in 
 lots as delineated upon a plan having streets indicated thereon, ter- 
 
■WAY. 577 
 
 minating upon a navigable stream, such streets will be considered as 
 dedicated to the use of purchasers of such lots and of the public, 
 down to the water at all stages of the tide, unless there be some 
 express reservation of the flats, although the lines upon such plan 
 indicating the boundary of the tier of lots nearest the river, be drawn 
 at high-water mark. Stetson v. Sangor, 60 — 313. 
 
 88. A DEDICATION to the public use takes its effect from the inten- 
 tion of the person making it ; and merely opening or widening a 
 street for the convenience, benefit or profit of the person doing it, on 
 his own land, will not constitute a dedication. White v. Bradley, 
 66—254. 
 
 89. Nor will a use which is simply permissive, or the opening of a 
 way as a private way and the subsequent use of it by others, amount 
 to proof of a dedication. lb. 
 
 90. Everything in such case depends upon the intention of the 
 party whose dedication is claimed and upon the character of the per- 
 mission given and the use allowed. Ih. 
 
 91. Declarations of the proprietor which apply as well to a way 
 constructed by him for the profitable use of his estate, as to a way to 
 be donated to the public, or which indicate rather an expectation of 
 what will be done in the future, or upon some possible contingency, 
 than a present absolute intention to make over the right to the pub- 
 lic, have little or no value to prove a dedication. lb. 
 
 92. Among the acts which negative an intention to dedicate is the 
 maintenance of a fence and gate across the way. lb. 
 
 93. An ACCEPTANCE is necessary to constitute a way by dedication. 
 
 94. Unauthorized repairs by a street commissioner do not consti- 
 tute an acceptance. lb. 
 
 96. The action of the, city government in twice laying out a street 
 over the way and twice discontinuing, must be regarded as conclusive 
 against the idea of an accepted dedication. lb. 
 
 97. When the owner of land within or near a growing village, or 
 city, divides it into streets and building lots, and makes a plan of the 
 land thus divided, and then sells one or more of the lots by reference 
 to the plan, he thereby annexes to each lot sold a right of way in the 
 streets, which neither he nor his successors in title can afterwards 
 interrupt or destroy. Bartlett v. Bangor, 67 — 460. 
 
 98. Such platting and selling constitute an incipient dedication of 
 the streets to the public, which the owner of the land can not after- 
 ward revoke. lb. 
 
 99. The dedication is not complete, and will impose no burden up- 
 on the public till the 'streets are accepted by competent authority, or 
 the public has used them for at least twenty years. lb. 
 
 100. The right of way extends to all the streets marked upon the 
 plan. lb. 
 
 101. And is not lost by mere NON-rsE. Until such time as the 
 growth of the place requires the streets to be opened, the owner of 
 the land has the right to use it for temporary purposes, as for pasture- 
 age or tillage, but such use is not adverse, and will not bar the rights 
 of the grantees, or the public to have the streets opened, when, in the 
 opinion of the authorities, they are necessary. lb. 
 
 37 
 
578 WAY. 
 
 102. A cul de sac is as mucli a public highway as a street open at 
 both ends, and may become so by dedication. Ih. 
 
 VII. WATS IN UNINCORPORATED PLACES. 
 
 103. The land agent has no authority to locate highways through 
 the public lands, but only to cause them to be located by the county 
 commissioners, nor can he establish such roads by dedication. Burns 
 ■V.Annas, 60—288. 
 
 104. Under the statute permitting land owners to pay their pro- 
 portion of the expense of opening and making roads, located in 
 unincorporated townships, in labor, and requiring the commissioners 
 to assess upon the lands that would be enhanced in value by the 
 location a sum sufficient to build the road, to be expended by an 
 agent, if the commissioners omit to make the assessment, and appoint 
 the agent, but order the land owners to build the road, the location 
 will be quashed. Pierce v. Go. Com., 63 — 252. 
 
 105. It is not competent for the county commissioners to lay a tax 
 for the repair of a road not legally located or opened. lb. 
 
 106. When a county road exists within the limits of an unincor- 
 porated township, the whole township is liable to be taxed to put it in 
 repair. For the purposes of such taxation the township is a unit, and 
 can not be regarded as composed of two tracts of land, because the 
 west half is owned by one set of owners, and the east half by another. 
 JKing v. Aroostook Co., 63 — 567. 
 
 107. An APPEAL from the decision of county commissioners refus- 
 ing to discontinue a road laid out in an unincorporated township 
 must be heard by the presiding judge, and not by a committee. Pren- 
 tiss V. Co. Com., 63—569. 
 
 VIII. SURVEYORS OP HIGHWAYS. 
 
 108. Fences standing in the highway for a time less than forty 
 years next after its location may be removed by the surveyor. Whit- 
 tier V. Mclntyre, 59 — 143. 
 
 109. It is not necessary that the unlawful existence of fences, stand- 
 ing within the limits of a highway, be established by indictment and 
 conviction under R. S., 1857, c. 18, § 76, prior to their removal by a 
 surveyor of highways. lb. 
 
 110. A land-owner, across whose land a highway has been legally 
 located as an alteration of one previously existing, can not maintain 
 an action of trespass against the highway surveyor for doing within 
 his district such acts as were necessary to make such highway passa- 
 ble, safe and convenient, although it does not appear that the town 
 had raised money to make the alteration, or that the selectmen had 
 specially directed the surveyor to expend money upon that part of the 
 way. Cyr v. Dufour, 68— -492. 
 
 See County Commissionees, p. 141. 
 Town, 5, p. 531. 
 
 IX. ACTIONS AGAINST TOWNS FOR INJURIES PROM DEPEC- 
 
 TIVE WAYS. 
 
 (a) What constitutes a defect. 
 
 (b) Pboximate cause and contbibutoet negligence. 
 (o) Notice. 
 
 (d) Otheb mattees. 
 
WAY. 579 
 
 (a) What constitutes a defect. 
 
 111. Prom a -well-wrought, safe and convenient traveled path on a 
 highway, a passage-way, not made by the town, led by a slightly cir- 
 cuitous course to a watering-trough, erected without authority of the 
 town, within the limits of the highway, for the purpose of enabling 
 travelers to water their animals, and thence turned into the main 
 track again several rods from the point of departure. The plaintiff 
 with his wife, traveling along the highway with a horse and carriage, 
 drove out to the trough and watered his horse ; and while leaving the 
 trough, the wheel of his carriage was drawn upon a rock lying in its 
 natural bed in the passage-way, ten feet from the usually traveled 
 track, and thereby the plaintiff's wife was thrown from the carriage 
 upon the trough and injured. The court was evenly divided upon 
 the question of the liability of the town. Sail v. Unity, 57 — 529. 
 
 112. Highways are not only to be kept "passable," but so passable 
 that travelers may use them with safety and convenience, by the ex- 
 ercise of ordinary care. Rogers v. Neviport, 62 — 101. 
 
 113. Section 46, c. 18, R. S., 1871, requiring highway surveyors to 
 make the highways within their limits "passable," when they become 
 blocked up or encumbered with snow, does not repeal or supersede 
 § 40 of the same chapter requiring towns to keep their way safe and 
 convenient for travelers, nor does it exempt towns from the liability 
 in damages to any person injured through a defect in the highway, 
 imposed by § 65. lb. 
 
 114. Access to the Street. It is no part of the duty of towns 
 to provide a safe and convenient access to any man's house, lot, or 
 garden, in a country village, from the street, and when a man avails 
 himself of such conveniences as the abutters have seen fit to furnish 
 to pass to or from the traveled part of the street, he is not a traveler 
 for whose security the town is bound to make the way safe and con- 
 venient. Philbrick v. Pittston, 63 — 477. 
 
 115. A town may be liable to a traveler for an injury occurring 
 from the fright of his horse at an obstruction in the traveled way, 
 which is an actual defect therein, although not coming in actual con- 
 tact therewith, if the object of fright presents an appearance that 
 would be likely to frighten ordinary horses, and is such that it should 
 reasonably be expected by the town that it naturally might have that 
 effect, and if the horse is an ordinarily safe animal, and well broken 
 for travel upon the public roads. Card\. Ellsworth, 65 — 547. 
 
 116. Fences. Towns are under no obligation to maintain fences 
 to prevent travelers from straying from the highway. Willey v. 
 Ellsworth, 64—57. 
 
 117. But it seems that, if a fence or barrier is necessary for the 
 safety of travelers, the want of such barrier is a defect for which the 
 town will be liable. I b. 
 
 118. Excavation. If one is injured by falling into an excavation 
 in one of the public streets of a city, which is left at night without 
 being sufficiently lighted or guarded, a recovery may be had against 
 the city, although the excavation is made by persons constructing 
 public works. Butler v. Bangor, 67 — 385. 
 
 119. Defects outside the Traveled Wat. A town is not lia^ 
 ble for injuries occurring without the limits of the road legally located 
 
580 -WAT. 
 
 or legally existing by virtue of a long continued user. Willey v. Ells- 
 worth, 64 — '57. Doyle v. Vinalhaven, 66 — 348. 
 , 120. In the fall of the year the town built a stone culvert across 
 the center of the traveled way, about eighteen feet in length, with 
 the surface of the covering stones about six feet wide and eighteen 
 or twenty inches above the general surface of the ground. To over- 
 come this height earth was carted in on either side of the culvert, but 
 leaving the east end of the culvert exposed. The earth composing 
 the approaches to the culvert froze in a rough condition, and, there 
 being no railing or embankment to prevent it, the general course of 
 travel swept around the east end of the culvert. In the winter the 
 plaintiff was driving along the way in the night time, following the 
 path around the east end of the culvert, when his sleigh runner struck 
 one of the exposed stones and he was thrown out and injured. Held, 
 that a verdict of the jury finding the way defective should not be set 
 aside. Whitney v. Uumberland, 64 — 541. 
 
 121. If individuals build a sidewalk of their own motion outside 
 the limits of the road they do not render the town liable for its defect. 
 Doyle V. Vinalhaven, 66 — 348. 
 
 122. Nor is the town liable if the sidewalk is built by the indivi- 
 duals upon land illegally taken by the road commissioners outside the 
 limits of the road. lb. 
 
 123. The body of a common riding wagon, left on the side of the 
 road, laid up edgewise against some bushes, being within the limits 
 of the road but entirely outside the traveled track, is not a defect, 
 and if the horse of a traveler is frightened at it and an injury thereby 
 happens the town is not liable. Nichols v. Athens, 66 — 402. 
 
 124. Whether a recovery can be had where the fright is caused by 
 an object outside of the traveled way, but within its located limits, 
 and, if so, to what extent and under what limitations and conditions, 
 seems to be an open question in this State. lb. 
 
 125. When one voluntaeilt leaves the highway for any pur- 
 pose, and in going out of it or returning into it, at a point which the 
 town has not prepared for travel, receives an injury from an obstacle 
 outside of the traveled path, the town is not responsible. Blake v. 
 Newfield, 68—365. 
 
 126. It can make no difference whether the obstacle is within or 
 without the limits of the way as located, provided it is so situated as 
 not to create a danger or an inconvenience to travelers who keep 
 within that portion of the way which is prepared for travel. lb. 
 
 127. That which was not a defect before can not be made so by 
 another and independent defect having no connection with it. lb. 
 
 128. The highway was in all respects safe and convenient except 
 that the owner of the adjoining land had opened a trench across the 
 entire width of the traveled portion thereby rendering it temporarily 
 impassable. To enable travelers to get by this obstruction the fences 
 were removed and they were allowed to pass through the adjoining 
 field. The plaintiff undertook to pass in this way and in coming 
 into the road her carriage struck against a rock within the location of 
 the road but not within the wrought portion, and she was thrown out 
 and injured. Held, that the town was not liable. lb. 
 
 129. Towns are not required to render roads passable for the entire 
 
way: 581 
 
 width of the whole located limits. The duty of the town is accom- 
 plished by making a sufficient width of the road in a smooth condi- 
 tion so that it would be safe and convenient for travelers. Perkins 
 V. Fayette, 68—152. 
 
 130. Towns have the right in making or repairing a road to remove 
 stones and stumps to the sides of the way, and leave natural obstruc- 
 tions there, provided the same are so far from the traveled track that 
 teams might pass over the road without danger of coming in collision 
 with them. lb. 
 
 131. As what constitutes an obstruction which will render a high- 
 way defective is to a considerable extent a matter of opinion, a ver- 
 dict against a town in a suit for an injury arising from an alleged 
 defect will not be set aside simply because the court, upon the evi- 
 dence, would have come to a conclusion different from that of the 
 jury. Weeks v. Parsonsfield, 65 — 285. 
 
 (b) Proximate cause and contributory negligence. 
 
 132. The fact, that, when a resident of a city was injured by rea- 
 son of a defective way, he was driving at a faster rate than six miles 
 an hour, in violation of a city ordinance, is no bar to his right to re- 
 cover for such injury, if such driving did not in any degree contribute 
 to produce it. Maker v. Portland, 58 — 199. 
 
 133. The fact that the jury failed to agree upon the answer to the 
 question whether the plaintiff was driving at a faster rate than six 
 miles an hour, does not render it reasonably certain that a general 
 verdict for the plaintiff, in an action, for an injury sustained by rea- 
 son of a defective way, is erroneous, lb. 
 
 134. If a defect in a highway is the sole, true, efficient cause of an 
 accident, it is not necessary that the injury should be actually received 
 upon the precise spot where the defect exists, or that it should apjiear 
 that there was any defect where the injury was received. Willey v. 
 Belfast, 61—569. 
 
 135. If a defect in a highway causes such a breaking and derange- 
 ment of a safe and proper vehicle, that the direct and natural conse- 
 quence is the frightening of a kind, safe, and well broken horse beyond 
 the control of a reasonably skillful and careful driver, and the horse 
 while violently running down a steep hUl falls and the plaintiff is 
 thrown out and injured, it is competent for the jury to find the defect 
 to be the sole cause of the accident. The fall of such a horse under 
 such circumstances, is not to be reckoned a contributory cause, but a 
 part of the accident, like the fall of the plaintiff from the carriage. 
 lb. 
 
 136. If a pile of wood within a highway causes a snow-drift to 
 form, and the drift constitutes a defect in the way by which a traveler 
 is thrown from his sleigh and injured, the drift, alone, and not the 
 wood pile, must be considered the proximate cause of the injury. 
 Rogers v. Newport, 62 — 101. 
 
 137. When a horse, through fright caused solely by the striking of 
 the carriage to which he is attached against an obstruction in the 
 highway, becomes uncontrollable and runs away, throwing the driver 
 out and injuring him, the defect is the proximate cause of the injury. 
 Clark V. Lebanon, 63 — 393. 
 
582 WAT. 
 
 138. The plaintiff was driving orer a defective bridge, when his 
 horse broke through and fell. In the effort to extricate the horse 
 the plaintiff was struck by the horse's head and injured. He was at 
 the time in the exercise of ordinary care. Meld, that all that took 
 place at the time of the accident was, as between the plaintiff and the 
 town, a single event, and that the defect in the way was the prox- 
 imate cause of the injury. Page v. JBucksport, 64—51. 
 
 139. The plaintiff was traveling along the highway when her 
 horse became frightened at a large rock raised from the ground by 
 the town and left within the traveled way, and left in such a position 
 as to be calculated to frighten horses passing by. In attempting to 
 get out of the wagon the plaintiff fell and was injured. The rock 
 was a defect in the highway and the plaintiff was in the exercise of 
 ordinary care. Held, that if she was getting out of the wagon, while 
 the horse was frightened and unmanageable, to avoid the threatened 
 danger, when the accident occurred, the defect in the way was the 
 proximate cause of the injury. Card v. Ellsworth, 65 — 547. 
 
 140. But if the horse was at rest and manageable, and the plaintiff 
 got out of the wagon, apprehending difficulty in driving by the obstruc- 
 tion, and the horse (not from fright) started up when the plaintiff 
 was dismounting, and an injury thereby happened to her, the defect 
 could not be considered the proximate cause of the injury. lb. 
 
 141. When two adjoining towns unite in building and maintaining 
 a bridge across a stream which separates them, if an accident happens 
 upon that end of the bridge wholly within the limits of one of the 
 towns, in consequence of a defect in the bridge for which the town 
 would be liable, the fact that the portion of the bridge in the other 
 town was defective, and that such defect produced an effect in the 
 town where the accident happened, does not relieve that town from 
 liability for injuries caused by a defect on its own side of the line. 
 Perkins v. Oxford, 66 — 545. 
 
 142. If there are two efficient, independent proximate causes of an 
 injury sustained by a traveler on a highway, the primary cause being 
 one for which the town is not responsible, and the other being a 
 defect in such highway, the injury can not be said to have been 
 received "through such defect ;" and the town is not liable therefor. 
 And it makes no difference that the traveler himself was in no fault. 
 Perkins v. Fayette, 68 — 152. 
 
 (c) JVotice. 
 
 143. There is no rule of law prescribing for what length of time 
 the continuance of an open, visible, defect in a highway shall consti- 
 tute notice of its existence. Golley v. Westirook, 57 — 181. 
 
 144. An instruction that if the jury should find a legal defect, and 
 that it was open and visible during the whole of a certain month, 
 that such fact would constitute sufficient notice, is erroneous. Ih. 
 
 145. In the trial of an action against a town for an injury occa- 
 sioned by reason of an obstruction suffered to remain on a highway, 
 it is erroneous to instruct the jury that "notice of a defect to any 
 inhabitant of the town, of sufficient intelligence to know and appre- 
 ciate the danger, and for a sufficient length of time to enable such 
 person, by the use of due diligence to remove it, or to give notice to 
 other inhabitants of the town of its existence, so as to enable them 
 
WAY. 583 
 
 to remove it, if the person, to whom the defect was first known, was 
 not a competent or suitable person to do it, was all the law required." 
 Sam V. Wales, 68—222. 
 
 146. The municipal records, showing that a written notice of an 
 injury sustained by a defect in a highway was received, is admissi- 
 ble against the city, although the notice itself is not produced or 
 accounted for. BlacMngton v. Rockland, 66 — 332. 
 
 147. The notice to the municipal officers of a town "setting forth 
 the claim for damages," sustained by reason of a defect in the high- 
 way, need not state the amount in dollars and cents. Sawyer v. 
 Naples, 66—453. 
 
 148. The provision in the laws of 1874, c. 215, requiring the person 
 who receives bodily injury, or suffers damage in his property by a 
 defective highway to give notice to the selectmen of the town, does 
 not apply to a case where the person injured by the accident was 
 instantly killed, and a suit by her administrator brought under R. S., 
 1871, c. 18, § 65. Perkins v. Oxford, 66—545. 
 
 149. Where the alleged defect was a heavily loaded wagon left in 
 the highway, an instruction that it would not be sufficient merely to 
 show notice to the town that it was there, but that the town must 
 have notice that it had been left there without necessity, or was ille- 
 gally there, was held, correct. Bartlett v. Kittery, 68 — 358. 
 
 150. By the act of 1876, c. 97, the notice to the municipal officers 
 of an injury from a defect in the highway must be in writing. Vea- 
 zie V. Rockland, 68 — 511. 
 
 151. The mayor of a city has no authority to waive the require- 
 ment of the statute. Ih. 
 
 (d) Other matters. 
 
 152. A city is not liable under R. S., c. 18, § 65, for an injury 
 received by a traveler by falling into an excavation unguarded by 
 lights or railings, situated just without the limits of a public street, 
 in a vacant lot whither he voluntarily went, in the evening, to witness 
 the licensed exhibition of a circus. Morgan v. Hallowell, 57 — 375. 
 
 153. Nor under R. S., c. 18, § 79; the object of this section being, 
 (1) to guard the streets and public ways from injury by excavations 
 improvidently made by the abuttors ; and (2) to determine under 
 what circumstances a city or town which is compelled to pay dam- 
 ages under § 61, may have a remedy over against the person making 
 the excavation. Ih. 
 
 154. Nor at common law as for gross negligence in omitting to place 
 guards indicating the position of the excavation which was being 
 made by servants of the town. Ih. 
 
 155. Nor under R. S., c. 17, § 12, the temporary location of a trav- 
 eling circus in its vicinity, can not convert a reservoir in process of 
 construction in a vacant lot into a nuisance either public or private. 
 Ih. 
 
 156. The principles of R. S. of 1857, c. 18, § 62, providing that 
 the repair of a way within six years before the cause of action 
 accrued, estops the town to deny the location, apply to a sidewalk. 
 Mc Cann v. Bangor, 58 — 348. 
 
584 WAT. 
 
 158. An objection at the trial, made after general issue joined and 
 the evidence closed, in an action for injury received upon a defective 
 highway, that there is no allegation that the carriage used was suitable 
 or safe to ride upon, and none that the injury was caused by a want 
 of repair in the way, can not avail, where it is alleged in the declara^ 
 tion that the plaintiff was driving carefully with a safe horse, and 
 that the road was unsafe by means of drifts, in passing which plaintiff 
 was injured. Moody v. Camden, 61 — 264. 
 
 159. Damage. In an action against a town for an injury to a 
 stage-coach caused solely by a defect in a highway, the loss of the use 
 of the coach for a reasonable time, while it is being repaired, is not 
 an element of damage. McLaughlin v. Bangor, 58 — 398. 
 
 160. When a horse is injured by a defect in a highway, by break- 
 ing through a bridge, if he is rendered unkind or timid, so as to be 
 unsafe to drive over any bridge thereafter, it is not too vague an 
 injury to be an element of damage. Whiteley v. China, 61 — 199. 
 
 161. "Who is a Teavelek. A ditch was dug along the side of a 
 house and extended into the street as located. There was no way to 
 go from the house to a privy used therewith without crossing the 
 ditch or passing around that end of it which was in the street. The 
 plaintiff, living in the house, in returning to the house from the privy, 
 and having no other purpose than to reach it in the safest way, 
 attempted to go around the ditch, and while within the limits of the 
 street, but before reaching the wrought portion, fell into the ditch and 
 was injured. Held, that she was not in the use of the street as a 
 highway within the meaning of the statute. Leslie v. Lewiston, 
 62—468. 
 
 162. The owner of a mare and colt turned them out upon the high- 
 way to water, on Sunday, when the colt ran away a.nd the owner, 
 upon the back of the mare, started in pursuit, and while in such pur- 
 suit received an injury through a defect in the highway. In an 
 action against the town an instruction that if the owner regained 
 possession of both the animals so as to be their keeper before the 
 accident, or he made the ride which resulted in the accident, he had 
 the right to pursue them upon the highway, though he originally 
 turned them out without a keeper, was held, unobjectional. Jennings 
 V. Wayne, 63—468. 
 
 163. An action does not lie against a town by a person who 
 receives an injury from a defective highway, while using such high- 
 way for the express purpose of horse-racing. Mc Carthy v. Portland, 
 67—167. 
 
 See Jurisdiction, 5, p. 328. 
 Loed's Day, 11, p. 355. 
 
 X. INDICTMENT FOR DEFECTIVE WATS. 
 
 164. The fact that the record of the county commissioners- shows 
 that the return of their doings was not recorded when it should have 
 been, is fatal to their proceedings when presented by certiorari; 
 but it can not be taken advantage of by the town, in defense of an 
 indictment for not keeping the way in repair. State v. Madison, 59 
 —538. 
 
 165. In the trial of a town on an indictment for not keeping in re- 
 
"WAY — WIDOW. 685 
 
 pair, a highway extending from the end of a toll bridge, at the side of 
 an island, thence across the island and the lesser channel of the river 
 to the main shore, the objection that the location by the commission- 
 ers, is within the chartered limits of the toll-bridge corporation is not 
 open to the town. Ih. 
 
 166. An indictment against a town for a defective highway, need 
 not allege the width of the way. IState v. Madison, 63 — 546. 
 
 167. Nor the authority by which the way was laid out. lb. 
 
 168. When a fine is imposed upon a town, convicted under an in- 
 dictment for a defective way, the notice of such fine from the clerk 
 to the assessors need not state the term at which such fine was im- 
 posed. State V. Oxford, 65 — 210. 
 
 169. The provision, R. S., 1871, c. 18, § 71, requiring the clerk to 
 certify such fine to the SkBsa&sovs forthwith, is directory, and an omis- 
 sion to comply therewith is not fatal to the prior proceedings. lb. 
 
 170. When the fine is imposed upon a condition to be complied 
 with in the future, it is suflicient if the notice to the assessors is given 
 forthwith, after the failure of the town to comply with the condition. 
 lb. 
 
 171. The agent to superintend the collection and application of the 
 fine, may be appointed at a term of court, subsequent to that at which 
 the fine was imposed. lb. 
 
 XI. OBSTRUCTIONS IN HIGHWAYS. 
 
 See NuisANCB, 5, p. 395. 
 
 Railkoad, 34, et seq., p. 466 ; 49, p. 468. 
 
 XII. LAW OF THE EOAD. 
 
 172. The fact, that at the time of a collision between the teams of 
 two persons traveling in opposite directions upon the highway, one of 
 them was driving in violation of the law of the road, upon the left 
 hand side, is strong evidence of carelessness. JLarrabee v. Sewall, 
 66—376. 
 
 173. When two alternatives are presented to a traveler upon the 
 highway, as modes of escaping from collision with an approaching 
 team, either of which might fairly be chosen by a prudent person, 
 the law will not hold him guilty of negligence for taking either. lb. 
 
 WIDOW. 
 
 1. The widow of a mortgager is not entitled to remain in the house 
 of her husband ninety days, next after his death, as against the as- 
 signee of a mortgage given by him. Young v. Estes, 59 — 441. 
 
 2. A writing signed by a widow, stipulating that no person shall 
 ever call on a certain one of the devisees of property charged with 
 her maintenance, or his property for any part of her support, as long 
 as there is any of the other property left, is not a waiver of her sup- 
 port from the estate, and is void. Pettingill v. Fettingill, 60 — 411. 
 
 See Annttity, p. 24. 
 
 Devise and Legacy, 40, p. 179. 
 DowEEj'p. 189. 
 
686 WILL. 
 
 WILL. 
 
 I. VALIDITY. 
 II. PROBATE. 
 III. TESTAMENTARY TITLES. 
 
 I. VALIDITY. 
 
 1. The validity of a -will was contested on the ground of undue 
 influence, in that the testatrix believed that the spirit of her deceased 
 husband communicated with her through a medium, and directed what 
 her wiU should be. An instruction that if she did have what she 
 deemed direct communications with the spirit of her husband on the 
 subject of this will and implicity followed them, yielding her own 
 will and judgment, then it would not be her will, but if she had what 
 she deemed her husband's wishes, if she nevertheless acted upon her 
 own wUl and judgment, and did not abandon both to the supposed 
 wishes and opinions of her husband, then it would not be undue influ- 
 ence, was held correct. Robinson v. Adams^ 62 — 369. 
 
 2. Undue influence, to render a wiU invalid, must be of such a de- 
 gree as to take away from the testator his free agency — such as he is 
 too weak to resist — such as to render the will no longer the act of a 
 capable testator. The influence of kindness and affection will not 
 defeat a will. Barnes v. Barnes, 66 — 286. 
 
 3. The existence of a delusion does not necessarily vitiate a will, 
 unless the delusion foriii the ground work of it, or unless decisive 
 evidence be given, that at the time of making the will, the testator's 
 mind was influenced by it. Ih. 
 
 See Mbeeill v. Bickfoed, 65 — 118. 
 
 II. PROBATE. 
 
 4. Evidence of Dbclaeations of the Testator. A will made 
 in 1854 and presented for probate soon after the death of the testator 
 in 1863 had been torn in pieces and the fragments pasted together 
 upon another piece of paper. On the trial of an issue involving a 
 revocation by tearing, evidence was admitted (1) of the declarations 
 of the testator made during his last sickness when having the will in 
 his possession, and while pasting the torn parts together, or reading it 
 after it had been so pasted, that the will had been torn by his mother, 
 but that he had fixed it together again ; (2) declarations of good will 
 for his wife, the principal legatee, and that he had given her all his 
 property, but unaccompanied by any act of the testator in relation to 
 the will ; (3) declarations of good will for his wife but without any 
 mention of property. On the question of the admissibility of such 
 declarations the court was evenly divided. Collagan v. Burns, 57 
 —449. 
 
 5. The rule allowing the introduction of the declarations of a testa- 
 tor to show the condition of his mind is very general, and admits much 
 that would be excluded if offered to prove facts. The rule allows 
 great liberality as to the kind of evidence and the length of time over 
 which it extends. Bohinson v. Adams, 62 — 369. 
 
 6. Where the testator was alleged to have made the will under the 
 influence of an insane delusion the declarations 'were not limited to 
 
WILL — WITNESS. 587 
 
 the subject of the alleged delusion or the time of the execution of 
 the will. Ih. 
 
 7. The fact that one such declaration was sworn to was held not to 
 render it inadmissible. Ih. 
 
 8. Witness. A minor son of a legatee in a will is a competent 
 witness to its execution by virtue of Pub. Laws, 1859, c. 120. Jones 
 V. Tebbetts, 57—572. 
 
 9. A proper attestation clause, showing that all the statute 
 formalities have been complied with, will, in the absence of proof to 
 the contrary, be presumptive evidence of the fact, after the death of 
 the attesting witnesses, or their failure to recollect what took place at 
 the execution of the will. Barnes v. Barnes^ 66 — 286. 
 
 10. An attesting witness to a will may state what was his usual 
 course of business in such cases, when the particulars of the transaction 
 are not distinctly remembered. Ih. ' 
 
 11. BuEDEN OE Peoop. It is not necessary that the proponent 
 offer evidence to show the sanity of the testator until the party 
 alleging insanity has offered evidence to show that fact. Ih. 
 
 12. The burden of proving the sanity of the testator, and all other 
 requirements of the law to make a valid will, is upon the party assert- 
 ing its validity. Ih. 
 
 III. TESTAMENTAET TITLES. 
 
 13. The title of a devisee to whom an immediate estate is given 
 dates from the death of the testator and not from the probate of the 
 will. Wright v. Williamson, 67 — 524. 
 
 14. This rule applies though the will was made and proved in 
 another State and a copy recorded in the probate court of this State. 
 Ih. 
 
 15. The title of one who purchases of a testamentary trustee is 
 defeated by the insolvency of the testator's estate and a sale of the 
 property by the administrator for the payment of debts. Sill v. 
 Treat, 67—501. 
 
 See Devise and Legacy, p. 175. 
 Equity, 93, p. 205. 
 Evidence, 30, p. 222. 
 Tkust, 22, p. 551. 
 
 WITNESS. 
 
 I. COMPETENCY. 
 
 n. IMPEACHMENT. 
 
 III. PEIVILEGED COMMUNICATIONS. 
 
 IV. GENERALLY. 
 
 I. COMPETENCY. 
 
 1. Party to Negotiable Paper. The payee is a competent wit- 
 ness to overcome a presumption that the indorsee of a negotiable 
 promissory note given for intoxicating liquors sold in violation of law. 
 
588 WITNESS. 
 
 is the "holder" thereof "for a valuable consideration, and •without 
 notice of the illegality of the contract." Baxter v. Ellis, 57 — 178. 
 
 2. In an action by the indorsee against the makers of such a note, 
 the makers are not competent witnesses to prove its illegal inception 
 until notice of such illegality or its equivalent is brought home to the 
 plaintiff. lb. 
 
 3. In an action on a joint and several promissoiy note, against sn 
 principal and surety, the defaulted principal is not a competent wit- 
 ness, at common law, for the surety to prove that after the note 
 became due, the payee, for a valuable consideration paid by the prin- 
 cipal, extended its time of payment without the knowledge or consent 
 of the surety. Wing v. Andrews, 59 — 505. 
 
 4. The rule that a party to negotiable paper is not a competent 
 witness, in a suit by a bona fide holder for value, to show illegality or 
 fraud in its inception, is limited to cases where the party is also a 
 partaker in the illegality or fraud. Abbott v. Rose, 62 — 194. 
 
 \^5. "Will. A minor son of a legatee and person named as executor 
 in a will, may be a competent witness to its execution under R. S., 
 1857, c. 74, § 1, as amended by Public Laws of 1859, c. 120. Jones v. 
 Tebbetts, 57—572. 
 
 6. Equity. Touching the power of a party to volunteer his own 
 testimony, the rule is the same at law and in equity. Trowbridge v. 
 jSolden, 58—117. Burleigh v. White, 64—23. Post, 13. 
 
 7. Under R. S., c. 82, § 87, the defendant cannot introduce the tes- 
 timony of the plaintiff's intestate, as given at a previous trial of the 
 action, and then put himself upon the stand as a witness to contradict 
 it. Folsom V. Chapman, 59 — 194. 
 
 8. A paper containing the items of a portion of the account annexed 
 to the -v^it, placed in the hands of a witness on the stand, called by 
 the "legal representative of a deceased" party plaintiff for the sole 
 purpose of refreshing the witness's memory, is not so "used as evi- 
 dence," within the meaning of R. S., c. 82, § 87, clause 4, as to author- 
 ize "the other party to testify in relation thereto." lb. 
 
 9. Under the provisions of R. S., c. 82, in the trial of an action by 
 a MAEEiBD woMAif against the administrator of the estate of a de- 
 ceased person, the husband of the plaintiff cannot testify to facts 
 happening before the death of the defendant's intestate, unless the 
 latter had testified in the case, or the administrator offers his own 
 testimony. Jones v. Simpson, 59 — 180. Hunter v. Lowell, 64 — 572. 
 
 10. A WIFE is a competent witness against her husband, or against 
 him and another person jointly, in the trial of an indictment for using 
 an instrument with intent to procure her miscarriage while pregnant 
 with child. State v. Dyer, 59—303. 
 
 11. Since the passage of chapter 137, Pub. Laws of 1873, a husband 
 or wife may be compelled to testify for or against the other in crim- 
 inal cases. State v. Black, 63 — 210. 
 
 . 12. Rbpeesentative of Deceased Party. In c. 132, Public 
 Laws of 1870 (R. S., c. 82, § 87, clause 4), providing, that in an action 
 by or against an executor, administrator, or other legal representative 
 of a deceased person, in which his account books or other memoranda 
 are used as evidence on either side, the other party may testify in 
 relation thereto, — the phrase, "other memoranda," means memoranda 
 
WITNESS. 589 
 
 made by the deceased only ; and it does not include receipts given 
 by the adverse party to the deceased in his life-time. Cary v. Herrin, 
 59—361. 
 
 13. In a bill in equity brought by the heirs of a deceased mortgager 
 to redeem the mortgage, the defendant is not a competent witness to 
 testify as to facts which happened prior to the death of the plaintiff's 
 ancestor, and which were peculiarly within his knowledge. Ih. 
 
 14. An administrator, who brings a suit upon a note belonging to 
 the estate he is administering, is not a nominal party within R. S., 
 1871, c. 82, § 87, and the adverse party is not competent to testify in 
 such suit. Wing v. Andrews, 59 — 505. 
 
 15. Under the provisions of R. S., 1871, c. 82, in cases where an 
 administrator is a party, and his intestate has never testified in the 
 case, the adverse party can not be a witness unless the administrator 
 offers his own testimony. JKelton v. mil, 59 — 259. 
 
 16. Jurors are not competent witnesses to impeach their own ver- 
 dict. Greeley v. Mansur, 64 — 211. State v. Pike, 65 — 111. 
 
 17. Chapter 66, R. S., 1871, § 15, providing that commissionees 
 UPON INSOLVENT estates may require a claimant to be sworn, and 
 may examine him on all matters relating to his claim, does not give 
 the creditor the right to be a witness at his own instance. White v. 
 £rown, 67 — 196. 
 
 18. And if the claimant is not examined before the commissioners, 
 he can not claim the right to be a witness, at the trial before the 
 court or referees, in case of an appeal. lb. 
 
 19. The general rule being the exclusion of a party whose oppo- 
 nent is an executor or administrator, if the party would be a witness it 
 is for him to bring himself within some one of the exceptions. lb. 
 
 20. Surviving Partner. R. S., 1871, c. 82, § 87, provides that 
 where the legal representative of a deceased person is a party, he 
 may testify to any facts, legally admissible upon the general rules of 
 evidence, happening before the death of such person. A surviving 
 partner who gives bond, under R. S., c. 69, § 2, and is afterwards 
 sued upon a note of the firm, is not, a representative of his deceased 
 partner, and as such entitled to testify to facts happening before his 
 decease. Holmes v. Brooks, 68 — 416. 
 
 II. IMPEACHMENT. 
 
 21. Whenever a witness has testified to any material fact, any acts 
 or declarations inconsistent with such testimony, are competent by 
 way of contradiction. State v. Kingsbury, 58 — 238. 
 
 22. Where in the trial of a person for procuring another to burn 
 a meeting-house, the wife of the defendant had testified that no in- 
 ducements were held forth on a certain occasion, or means furnished 
 by herTiusband, as testified to by the accomplice, it is competent for 
 the purpose of contradicting her, to prove that when her husband 
 was first arrested, and she was informed that the accomplice charged 
 her husband with inciting him to fire the building, she said, "Well, he 
 never would have done it if it had not been for others — others were 
 more to blame than he was." lb. 
 
 23. If a statement of a fact, collateral to the issue, be drawn from 
 
590 WITNESS. 
 
 a witness upon cross-examination, the party eliciting the testimony 
 can not contradict it. Sell v. Woodman, 60 — 465. Davis v. Rohy, 
 64-^27. 
 
 24. Answers to collatbkal inquiries on cross-examination, can 
 not be contradicted by the party inquiring for the purpose of impeach- 
 ing the witness. lb. 
 
 25. Where a witness, called by the defendant, testified to two con- 
 versations between the plaintiff's testator and the defendant, and on 
 cross-examination, stated that she made a memorandum of the con- 
 versation at the time each occurred and produced them, it was held, 
 that the plaintiff might properly put them in evidence, as bearing up- 
 on the credibility of the witness. JBroohs v. Goss, 61 — 307. 
 
 26. Nor had the defendant any valid ground of complaint that the 
 court restricted their application to that purpose. lb. 
 
 27. In the trial of one Reed for the murder of one John Ray, it 
 became a material question, as to the manner in which the defendant 
 hurt his hand, which was found swollen on the morning after the 
 murder. The defendant testified that he hurt it in a fall while get- 
 ting over a pair of bars with a bunch of shingles on his shoulder, and 
 that it was an old sprain and had swollen several times. One Vance, 
 called by the defendant, to impeach certain government witnesses, 
 testified on cross-examination, that the defendant told him what the 
 defendant told one Elder Ray about injuring his hand, — that he could 
 not testify, positively, what it was, it was so long ago, — that it was 
 something about "getting over a pair of bars," but whether it happened 
 when the defendant was after a cow, he did not know. Subsequently 
 one Hale, called by the gevernment, was permitted to testify against 
 seasonable objection, that Vance told witness that defendant told 
 Elder Ray that he hurt his hand "when after a cow, and struck his 
 hand against a log, or something ;" held, that the testimony of Hale 
 had no tendency to impeach the testimony of Vance upon anything 
 material to the issue, and was not admissible. State v. Reed, 60 — 550. 
 
 28. When a witness is impeached by proof of a prior statement 
 made by him in conflict with his testimony, it is competent for him, 
 upon re-examination, to explain under what circumstances and 
 influences the first statement was made. State v. Reed, 62 — 129. 
 
 29. After an attempt has been made to impeach a witness by proof 
 of a former statement made by him in conflict with his testimony, the 
 witness may, on re-examination, state that about the time when the 
 facts testified took place he gave the same account of them as at the 
 trial, and for this purpose may state what he told third persons about 
 that time. lb. 
 
 30. After a witness had testified that on a specified evening she 
 was insulted by the plaintiff, and had also testified that a narration 
 of the transaction made soon after under oath was true, the defend- 
 ant was not allowed to corroborate her testimony by the testimony of 
 persons to whom, on the evening in question, the witness complained 
 of having been insulted, and by evidence that at that time she 
 appeared angry and excited. Powers v. Cary, 64 — 9. 
 
 81. A witness who is impeached can not be corroborated by proof 
 that at other times he has made statements in accordance with his 
 present testimony. The discredit arising from contradictory state- 
 ments still remains, lb. 
 
WITNESS. 691 
 
 32. When the wife of a grantor testified to the delivery of a deed, 
 a subsequent warranty deed by the grantor, of the same premises, to 
 another grantee, in which she joined to release her dower, was held 
 admissible simply as affecting her credibility. Worthing v. 'Worthing, 
 64—335. 
 
 33. A witness may be impeached by proof that she said she knew 
 nothing about the case except what she was told, and that her memory 
 was so treacherous she had to be told what to testify to. Davis v. 
 EoJ)y, 64—427. 
 
 34. FoEMEE CoNYicTiosr. The statute, R. S., 1871, c. 82, § 94, 
 authorizing the introduction of the record of a previous conviction of 
 a criminal offence to affect the credibility of a witness, is not restricted 
 to records of conviction for infamous crimes. State v. Watson, 63 — 
 128. 
 
 35. To impeach a witness by proof that he testified differently at a 
 former trial, his former testimony may be proved by any one who 
 heard it. State v. McDonald, 65 — 466. 
 
 . 36. Rbputatiow. a witness can not be impeached by evidence of 
 general reputation. State v. Morse, 67 — 428. 
 
 37. The inquiry must be limited to the reputation of the witness 
 for truth and veracity. lb. 
 
 38. A party, called as a witness by his opponent to testify to a fact 
 material to the issue, may be asked whether he has ever stated such 
 fact to any person, although he has, in answer to previous questions, 
 denied his knowledge of its existence. In this respect, a party stands 
 on a different footing, as to the course of examination, from a wit- 
 ness who is not a party. Proof may be given of his admissions, as 
 substantive evidence. Gall v. Dike, 68 — 217. 
 
 III. PRIVILEGED COMMUNICATIONS. 
 
 39. A telegraph operator is bound, as a witness, to disclose tele- 
 graphic communications. State v. Litchfield, 58 — 267. 
 
 IV. GENERALLY. 
 
 41. Where a party can not testify as a witness, generally, his book 
 accounts are-admissible with his suppletory oath to prove a charge of 
 money to the amount of $6.67. Kelton v. Hill, 58 — 114. 
 
 42. Testimony to be taken most steonglt against paett 
 CALLING. The defendant called one of the venders to a sale which 
 he sought to avoid as fraudulent, and argued in support of his posi- 
 tion upon the inherent falsity and improbability of the testimony 
 given by this vender. The judge repeatedly invited attention to the 
 fact that this witness had been called by the defense ; that his state- 
 ment disproved the alleged insolvency of his firm at the time of sale, 
 saying as to their solvency, "the defendant has proved it if you 
 believe his witness ;" and by other similar expressions several times 
 presented the idea that the testimony must be taken mfore strongly 
 against the defendant because given by his witness ; this was held, no 
 ground for exception. Rice v. Perry, 61 — -145. 
 
 43. In such case it is for the jury to say whether the evidence of 
 the witness is to be entirely repudiated or not. Ih. 
 
592 WITNESS. 
 
 44. Unwilling Witness. The presiding judge may, in his dis- 
 cretion, allow leading questions to be proposed to an unwilling wit- 
 ness by the counsel calling him. State v. Benner, 64 — 267. 
 
 45. To "entice, solicit and endeavor to persuade" a witness to 
 absent himself from a court where he is legally bound to appear and 
 testify and in a criminal case, is an indictable offence. State v. Ames, 
 64—386. 
 
 46. Sble'-Ceimination. The privilege of exemption from answer- 
 ing questions to which a true answer might criminate the witness is 
 a personal one, and it seems that objection to answering such a ques- 
 tion can not be made by counsel. State v. Wentworth, 65 — 234. 
 
 47. If a witness consents to testify to a matter tending to criminate 
 himself he must testify in all respects relating to that matter, so far as 
 is material to the issue. lb. 
 
 48. A DEFENDANT IN A CRIMINAL casc, who bccomes a witness at 
 his own request, must on cross-examination, answer to all matters in- 
 quired about in the direct examination, and pertinent to the issue, 
 although by so doing, he is obliged to acknowledge himself guilty of 
 offences other than that for which he is on trial. lb. 
 
 See Public Laws, 1879, c. 92. 
 
 49. When the respondent in an indictment for murder, becomes a 
 witness in his own behalf, it is not competent for the attorney for the 
 State, on cross-examination, to question him in relation to alleged sav- 
 age assaults committed by liim upon various persons, not connected 
 with the crime charged ; evidence of his good character not having 
 been introduced. State v. Carson, 66 — 116. 
 
 50. Refusal to Testify. In criminal cases, the fact that the 
 defendant did not testify in his own behalf, may be considered by the 
 jury in determining the question of his guilt or innocence. State v. 
 Cleaves, 59—298. 
 
 See Public Laws, 1879, e. 92. 
 
 51. The refusal of a plaintiff, who is also a witness, to show his 
 books of account already in court, upon which the articles in his ac- 
 count annexed are claimed to be charged, after refreshing his recol- 
 lection by a paper, and testifying that it is a copy from the book, may 
 be considered by the jury as bearing upon the credit to be given to 
 his testimony, and it is error for the presiding justice to refuse so to 
 instruct them. Davie v. Jones, 68 — 393. 
 
 52. An instruction that the jury would not be authorized to allow 
 the fact that a party (an executor), did not offer himself as a witness 
 to operate to his prejudice, unless they should be satisfied from the 
 evidence that he declined to testify because he knew facts which 
 would operate to his prejudice, was held not erroneous. £rooTcs v. 
 Ooss, 61—307. 
 
WKiT. 593 
 
 WRIT. 
 
 I. GENERALLY. 
 II. SERVICE. 
 
 I. GENERALLY. 
 
 1. The court will not quash a capias writ, on which the defendant 
 has been held to bail, on the ground that the ad damnum is evidently 
 excessive. Moore v. Moore, 61 — 417. 
 
 2. An execution is a writ of which the court may change the form. 
 R. S., 1871, c. 81, § 1. Stringer v. Coombs, 62—160. 
 
 3. When a corporation is summoned as trustee, the writ, as regards 
 both the trustee and the principal defendant, may be made returna- 
 ble to the second term of court after the date of the service, when 
 the interval between the date of service and the first term thereafter 
 is more than fourteen and less than thirty days. Walker v. TewJcs- 
 hury, 67 — 496. 
 
 4. A writ in the, supreme court made returnable at a term after an 
 intervening term, at which it might have been made returnable, is 
 voidable and may be abated on motion seasonably filed. McAlpine 
 Y. Smith, 68—423. 
 
 5. A writ may be considered as purchased at any moment of the 
 day of its date, which will most accord with the truth and justice of 
 the case. ONeil v. Bailey, 68 — 429. 
 
 II. SERVICE. 
 
 6. A writ against the master of a vessel to recover the penalty pro- 
 vided in Public Laws of 1869, c. 83, for the unlawful use of a seine 
 for the taking of menhaden or porgies, directing an attachment of the 
 vessel and seine, may, after the attachment of such vessel and seine, 
 be served upon the defendant by a separate summons. Turner v. 
 Friend, 59—290. 
 
 7. The statute requiring writs, in suits to which a sheriff or his 
 deputy is a party, to be served by a coroner means a party of record. 
 Douglass v. Gardiner, 63 — 462. 
 
 See Acts of 1879, c. 82., 
 Aeeest, p. 31. 
 Real Action, 6, p. 473. 
 
 38 
 
1 
 
 I