(108 A.) with brief statement, defendant contended that during the trading between himself and Roy Skehan was consulted with regard to outstanding claims against the automobile; that, suppressing information of his own demand, he by his speech and by the words of Laundry, asserted to have been authoritatively spoken, led both plaintiff and defendant to believe the automobile to be without incumbrance; that he encouraged and sanctioned the sale and purchase of the car; and that the proceeds of the transaction, with the other Bellevieu notes eventually moving to him, superseded the Holmes note, and left it without potent existence. Plaintiff recovered a verdict for $259.50. That verdict defendant has moved, in usual form motion, to have set aside. prospective purchaser. Negotiations which the trial, under a plea of the general issue ultimately led to a pretended outright sale and a supposed purchase of the car were promptly under way. Harry Bellevieu, so the plaintiff testified, did not mention the subsisting Holmes note, and said nothing to indicate that any person other than himself owned the automobile. Testifying as a witness, Mr. Bellevieu said that he not only told Roy at the time that he was acting for his brother, but that he gave him a receipt, covering a partial payment in money, which he (Harry) had executed as agent for Walter. Besides that, the negotiable promissory note, accepted from Roy in payment of the balance of the price for the car, was payable to the order of Walter Bellevieu. Respecting the receipt and the note, Mr. Roy bore witness that, though he could write, yet he could not read, the English language; that, until subseuently explained, the receipt was unintelligible to him; that his knowledge concerning the note was restricted to signing it, after its form had been written out by Harry Bellevieu, and to its destruction upon payment. Roy had had the automobile in his possession but a short time when Skehan, holding the Holmes note, came to see him. Then, at first Skehan, and him following, Roy, called upon and interviewed Harry Bellevieu; each, in turn, insisting upon recognition by the latter of claimed rights. Finally, Harry Bellevieu paid to Skehan what remained, unused by Walter, of the money that Roy had paid. Also he delivered to him Roy's purchase price note. Furthermore, he tendered him and Skehan accepted, two other notes, signed by Walter and his father and mother, payable to Skehan's order. So Skehan had the original Holmes note, and, too, cash and negotiable promissory notes aggregately equaling the amount of the face of the Holmes note. Skehan presented Roy's note, and from him received a substantial cash payment, with a new note for the balance. which was paid at maturity. From the time of Skehan's arrival, reckoning from the sale to Roy, a year had gone, The new notes from Walter Bellevieu and his parents, both long overdue, were unpaid, and efforts to enforce collection unavailing. Relying, under the Holmes note, on legal title to the automobile in himself, Skehan sued Roy. On confession of liability, damages were assesed at $278.42, and judgment therefor entered in the Kennebec superior court. Roy paid the judgment, and against Harry Bellevieu brought the pending suit for deceit in the sale, counting in his writ on the concurrence of both fraud and damage. At [1-3] It is the general rule that receiving a negotiable promissory note creates presumptive evidence of the payment of the indebtment for which it was taken. For foundation that presumption rests upon the intent of the parties, rebuttable always by competent evidence, the presumption does not attend in cases where the creditor thereby would lose the benefit of existing security. Skehan retained the Holmes note. Nevertheless, it was open to show that he had waived his rights thereunder; that against him there operated an equitable estoppel to assert title to the property. [4, 5] Waiver is a question of fact. Estoppel in pais is a question of law and fact mixed. In the case in hand, there is absence of assignment of erroneous instruction. The tribunal to which determination of the facts in controversy was referred found that all the essential ingredients required to sustain the action existed. It is the office of a jury to judge of fact. The members of the panel that tried this case saw the witnesses, heard them testify, and observed them while on the stand. Having those distinct advantages, they considered all the testimony, adjusted its conflicts, weighed its value, and based their report upon that part which they found to be of greater weight. A verdict, if it be a conclusion to which, acting fairly, justly, and intelligently, a jury might come, is final. The function of a court is to correct manifest error-to set aside verdicts palpably wrong. Were it to interpose otherwise, for the purpose of granting a new trial, the court would go outside its own province, and trench upon the constitutional sphere of the jury. No sufficient reason is appreciated for disturbing the present verdict. Motion for new trial overruled. (118 Me. 296) DRUMMOND v. TRICKEY. discontinued their milk route, and, plaintiff being unable to continue payments, a breach of the conditions of the mortgage occurred. (Supreme Judicial Court of Maine. Oct. 31, December 18, 1917, defendant replevied the 1919.) 1. CHATTEL MORTGAGES Where the mortgagee of cows disposed them by absolute sale before foreclosure, and did not account to the mortgagor, or in any manner regard his substantial rights, he committed a conversion, and is liable to the mort gagor. [1] Before this suit was brought the plaintiff sought the defendant for the purpose of redeeming the mortgage, and was told by 2. CHATTEL MORTGAGES 298-TENDER TO the defendant that he had sold the cows to ATTORNEY OF AMOUNT DUE. Under Rev. St. c. 96, § 3, mortgagor of cows sold by the mortgagee before foreclosure held to have made good tender to the mortgagee's attorney of the amount due on the mortgage. 3. CHATTEL MORTGAGES 298-TENDER TO MORTGAGEE WHO HAS SOLD PROPERTY UN NECESSARY. Under Rev. St. c. 96, § 3, where the mortgagee of cows sold them before foreclosure, the mortgagor, to perfect his right of action for conversion of the cows, was not required to tender the amount due on the mortgage, tender not being necessary where it would be an idle ceremony, as where the mortgagee has not power to return the property. 4. CHATTEL MORTGAGES 296 REDEEM UNTIL FORECLOSURE. RIGHT TO different parties, and that some of them were shipped out of the country. The plaintiff then went to the office of defendant's counsel, and there produced the amount due on the mortgage, and passed it to the defendant's counsel at his desk, telling him that he was there to make a tender and redeem the mortgage, and on receiving the same information that the defendant had imparted, that the cows had been sold, he recovered his money and left the office. This action followed, and the defendant contends that the sale of the cows was not a conversion, and that the action of the plaintiff in producing the money, as before stated, did not constitute a tender, because the money was not refused. We cannot agree with either contention of the defendant's counsel. When the mortgagee exercised absolute dominion over the mortgaged A chattel mortgage being security for a debt, the mortgagor has the right to redeem by payment of the debt until the mortgage is legal-property, and disposed of the same by absolute sale before foreclosure, and did not acly foreclosed. count to the plaintiff, or in any manner re On Motion from Supreme Judicial Court, gard his substantial rights, he committed a Waldo County, at Law. Action by Albert E. Drummond against C. J. Trickey, resulting in verdict for plaintiff. On motion for new trial. Motion overruled. C. C. Jones, of Waterville, for plaintiff. H. R. Coolidge, of Pittsfield, and H. C. Buzzell, of Belfast, for defendant. wrongful act which in this state has been held to be a conversion. Mathews v. Fisk, 64 Me. 101, citing Spaulding v. Barnes, 4 Gray (Mass.) 330; 11 Corpus Juris, 593(h), 596, 597; Hall v. N. Y. Tel. Co., 214 N. Y. 49, 108 N. E. 182, L. R. A. 1915E, 198; Montenegro-Riehm Music Co. v. Beuris, 160 Ky. 557, 169 S. W. 986, L. R. A. 1916C, 557; Lee v. Gorham, 165 Mass. 130, 42 N. E. 556; Bacon v. Hooker, 173 Mass. 554, 54 N. E. 253. HANSON, J. This is an action by a mort- But here no doubt exists as to the plaingagor against a mortgagee to recover dam-tiff's right of action as presented. R. S. ch. ages for selling certain cows and a calf, included in the mortgage, after the mortgagee had taken possession for breach of condition, and before the mortgage was foreclosed. A verdict was rendered for the plaintiff, and the case comes before the court on a motion for new trial. 96, § 3, provides for redemption of mortgaged personal property, and concludes, "And the property, if not immediately restored, may be replevied, or damages for withholding it recovered in an action on the case." [2, 3] As to a tender: The statute requires a tender of the amount due on the mortgage, and we hold that the facts in the case dis close that a tender was made. We further hold that from the undisputed testimony no tender was necessary, although in fact made. The defendant by his own admission could not restore the property mortgaged. A tender in such case would be an idle, useless ceremony which the law does not require. A tender is The case shows that the plaintiff gave defendant a mortgage on seven cows June 12, 1915, for $537. The mortgage was transferred to Borden's Condensed Milk Company, and the amount due was to be paid by the Borden's Milk Company withholding $35 a month during certain months of the year from money due plaintiff from the milk company for milk purchased. Borden's Milk Company not necessary when the recipient has not the (108 A.) power to return the property. Richards v. 1 to September 21, 1918, the sum of $574.98. Allen, 17 Me. 296-299; Woods v. Cooke, 61 Me. 215-218; 11 Corpus Juris, 595; Brink v. Freoff, 40 Mich. 610; Id., 44 Mich. 69, 6 N. W. 94. [4] The defendant was not the owner of the property, and could not lawfully sell the same until he had complied with the statute. The statute was ignored by him. His mortgage was security for a debt, and the mortgagor had a right to redeem by the payment of the debt, until the mortgage was legally foreclosed. The questions involved we must assume were presented to the jury under proper instruction. We find nothing in the case to indicate that the verdict is wrong. Motion overruled. (118 Me. 293) INHABITANTS OF MT. DESERT v. IN- The principal contention of the parties is found in the final item of the account sued for, namely: Paid Julia C. Nevins for board and $524 00 This charge includes the alleged pauper supplies for Lulu Grindle, as well as such support for her two children during the period stated. Certain admissions appear in the report of the evidence, two of which may be mentioned as necessary in the determination of this case, and are as follows: (1) The pauper settlement of the two children of Lulu Grindle named in the plaintiff's writ at this date is in the town of Bluehill; their pauper settlement not being questioned in this action. (2) Lulu Grindle moved to the town of Mt. Desert in 1910, and resided there continuously from that time until some time in 1918. The first admission involves the question of the amount to be allowed for the support (Supreme Judicial Court of Maine. Oct. 31, of said children as an independent charge, 1919.) inasmuch as they were born while Lulu Grindle had a pauper settlement in the de 1. PAUPERS 19(7)-ACQUISITION OF PAU- fendant town. PER SETTLEMENT. A pauper acquired a settlement in a town though, during her residence therein, the man with whom she was unlawfully living applied to a single selectman for support, where no action was taken by the board, the applicant or any member of his household was not in distress or in need of immediate relief, and the only supplies furnished consisted of rent furnished five months later. 2. PAUPERS 19(7)-FURNISHING To constitute pauper supplies, breaking the continuity of a pauper's residence, there must be an adjudication by the board that the pauper is in distress and in need of relief, or a furnishing of supplies by the overseer, subsequently ratified by the board. From the evidence in the case we find that a proper allowance for their support during [1] The only other question involved, in the order of the admission in the record, is this: Was the continuity of the residence of Lulu Grindle in the plaintiff town from 1910 to 1918 interrupted by the receipt of pauper supplies from that town? The plaintiff claims that such residence was interrupted in 1913, and that Lulu Grindle did not during the period acquire a pauper settlement in plaintiff town. In support of this contention the plaintiff introduced testimony tending to show that one James I. Myrick, with whom Lulu Grindle was living unlawfully, applied to one of the selectmen of Mt. Desert for duced Exhibit No. 1, which reads as follows: Report from Supreme Judicial Court, Han- "pauper support," and the plaintiff introcock County, at Law. Action by the Inhabitants of Mt. Desert against the Inhabitants of Bluehill. On report for determination by the law court. Judgment for plaintiff. J. H. Knowles, of Northeast Harbor, and "Town of Mt. Desert, Maine. "Northeast Harbor, Me., Aug. 1, 1912. "James I. Myrick." D. E. Hurley, of Ellsworth, for plaintiffs. support for myself and family. The selectman mentioned was one George J. Joy, and so far as the report shows he was HANSON, J. This is an action to recover the only officer of the town having knowledge for pauper supplies furnished to one Lulu of such application. No action was taken by Grindle and her two illegitimate children the selectmen as a body, or by the overseers and is before the court on report. The plain- of the poor. The provisions of the statute in tiff claims to have expended for the relief of such cases were wholly disregarded. the alleged paupers, from October 25, 1917,| The remaining Exhibit No. 2 reads: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It will be seen that "rent for James I. Myrick" is the only item of alleged "pauper supplies," and that rent was furnished five months after the date of the application. It follows that the claim as to Lulu Grindle is without merit. It does not appear that James I. Myrick, or any member of his household, had fallen into distress and stood in need of immediate relief, and it is very clear that the legal status of Lulu Grindle was in no way affected by the action of Myrick and the selectman in August, 1912. The person alleged to be a pauper must have fallen into distress and stood in need of immediate relief, and it must appear that the supplies furnished were necessary for their maintenance and support. Bangor v. Hampden, 41 Me. 484; Corinna v. Exeter, 13 Me. 321. ment of whatever obstruction of highways amounts to a nuisance. 4. MUNICIPAL CORPORATIONS 696 PROCEDURE FOR SUMMARY REMOVAL OF OBSTRUCTIONS IN STREET. The adoption by a municipal corporation of an ordinance providing a procedure for enforcing orders for the removal of obstructions from streets does not limit the exercise of the general power given by 24 Del. Laws, c. 220, §§ 6, 7, and 14 Del. Laws, c. 536, to do so in a summary way, and the procedure provided by the ordi nance need not be followed. 5. MUNICIPAL CORPORATIONS 696 OB NUI 7. MUNICIPAL CORPORATIONS 696 [2] To constitute pauper supplies, it must be shown that there was an adjudication by a majority of the overseers of the poor that the alleged pauper had fallen into distressing a nuisance from a public street must not unand stood in need of relief, or that the over- necessarily injure the obstruction. seer furnished the supplies upon his own view of what is necessary and proper, if his act is subsequently assented to or ratified by a majority of the board. Linneus v. Sidney, 70 Me. 114. The entry will be: costs. (7 Boyce, 428) One who removes an obstruction constitut Error to Superior Court, Sussex County. Action of trespass vi et armis by Charles M. Murden against the Commissioners of Lewes to recover for alleged damages to houseboat, certain personal property therein, as well as for personal injuries resulting from the removal of the boat from the beach and pushing the same into the bay. Judgment below for defendant, which was affirmed. Same case below, 6 Boyce, 48, 96 MURDEN v. COMMISSIONERS OF LEWES. Atl. 506. Plaintiff brings error. Affirmed. (Supreme Court of Delaware. Oct. 28, 1919.) CURTIS, Ch., and CONRAD and HEISEL, JJ., sitting. Robert G. Houston, of Georgetown, and J. Hall Anderson, of Dover, for plaintiff in error. Daniel J. Layton, Jr., of Georgetown, for defendant in error. It was claimed by the defendant in error that some time in the summer of 1910 the plaintiff in error asked permission of the corporate authorities of Lewes to place his houseboat on the beach front at Lewes, Del., for the purpose of calking or repairing the boat; that permission was given to him by the mayor of the town to locate the boat on the beach front for a period of two weeks, for the purpose aforesaid. wife denied that any limited permission was At the trial below the plaintiff and his granted him. Plaintiff also showed that he paid a tax to the defendant. In the declaration filed it was alleged: (108 A.) "The said houseboat sprang a leak, and thereby became in danger of sinking, and the said plaintiff called upon the proper officers of said corporation for the purpose of obtaining permission to take and haul out his said houseboat from the waters of said bay, to and upon the beach." now or may hereafter be laid out in the town of Lewes, including the streets, lanes, alleys and sidewalks on the public lands and beach in front of said town and along the Delaware Bay shore, and it shall likewise be unlawful to place any house, boat or boathouse, any booth or anything else that may obstruct a clear view of the bay, on or upon what is known as Bay The houseboat was located by the plain-avenue or between Bay avenue and the low-watiff upon the beach front upon what is known as Bay avenue, and in the line of South street extended. South street is the main thoroughfare from the town of Lewes proper to the beach settlement, and touches Bay avenue approximately at right angles. The houseboat was not only within the limits of Bay avenue, but was in the limits of South street, if extended down to the water front. The houseboat was 25 feet long, 9 feet high and 10 feet wide. It was divided into a sleeping room, living room, kitchen, and toilet. In the course of time, during the occupancy of the beach by the plaintiff and his wife, he had built or collected around and about the houseboat other appurtenances and conveniences, such as chicken coops, platforms, a workshop, a pump or driven well, lobster pots, etc., all indicating an intention to remain indefinitely. The plaintiff and his wife continued to live there until August 23, 1911. Complaints were made to the mayor of Lewes with respect to the houseboat by the residents of the town. Subsequently the mayor verbally notified the plaintiff to move his houseboat. He disregarded the request. He was twice thereafter, at different periods, notified in writing to remove the boat. He, however, decided to stay on the beach. The plaintiff not obeying the written notices served upon him by the defendant, on August 8, 1911, the defendant adopted a resolution as follows: "Motion prevailed that the houseboat owned by Murden, and bathhouse owned by Thomas Connell, be removed, and the bailiff to be instructed to hire force enough to remove the same." On August 23, 1911, the houseboat was removed by agents of the defendant by being pushed off into the water. The defendant justified under the general plea of not guilty, and under several special pleas, in some of which the ordinance as set forth by the plaintiff was relied upon as a justification, and by other pleas, under which the defendant justified, in that the houseboat was an encroachment upon a public street or thoroughfare of the town, an obstruction thereon, and a nuisance, and which was subject to abatement after notice. The ordinance referred to is as follows: ter mark of said Delaware Bay. *** In case of any obstructions in any of the public streets, lanes, alleys or sidewalks, in said town, on the public lands and beach front, or upon what is known as Bay avenue and between Bay avenue and the low-water mark, said Bay avenue, which shall be adjudged to be a nuisance, written notice shall be given by the mayor or sect. or by supervisor of the streets to the owner, or depositor or person having possession thereof to remove the same, and upon his, her or its refusal or neglect to do so for the space of twenty-four hours after receiving such notice, he, she or it shall forfeit and pay a sum cost by action before the mayor in the name of not exceeding ten dollars, to be recovered with the commissioners of Lewes. * In case of continuing nuisance of either class mentioned above, the owner, depositor or occupier, shall be liable to renewed complaints and forfeitures, and the town commissioners may in their discretion order the supervisor of streets with such assistance as may be necessary to abate and remove such continuing nuisance. Said ordinance, it was claimed, was adopted under authority of section 6, chapter 220, volume 24, Laws of Delaware, as follows: "The commissioners of Lewes *** shall have power to make, establish, publish and modify, and amend or repeal ordinances, rules, regulations and by-laws for the following purposes: * To ascertain and establish the boundaries of all streets in said town and the beach or beach strand or public lands in or contiguous to or vested in said town, and prevent or remove all encroachments on said streets, * * * beach or beach strand; to regulate, clean and keep in repair the streets, highways, wharves or docks in any manner whatsoever; to abate or remove nuisances of every kind, at the expense of those maintaining the same. Evidence was introduced to show that Bay avenue was all that space from the building line of the cottages of the beach settlement to the bay shore, and all of that area or space was open to public use, and it was used continuously by the public since 1902, and that improvement permits were sold to prospective cottage builders upon the assurance of the municipal authorities that Bay avenue was open to the bay front and that all obstructions would be removed. By section 7, chapter 220, volume 24, Laws of Delaware, all of the public and vacant lands within the corporate limits of the town of Lewes are vested in the Commissioners of Lewes, "That it shall be unlawful for any person or persons, corporation or corporations, to obstruct in any manner whatsoever any public commissioners shall have justreets, lanes, or alleys or sidewalks that may risdiction over the same; and all ordinances "and the |