After a very careful consideration of the argument and briefs of counsel, we feel, however, that the great weight of authority is now to the contrary, and that the better rule is to allow recovery in such actions.

57

In Jester et al. v. Knotts, 7 Boyce, Atl. 1094, the Superior Court, in stating what is universally held to be the law where the property wrongfully taken has been sold by taker, said:

"If one tortiously takes possession of property, and sells it, and thereby comes into possession of money belonging to another, the law will not permit him to deny an implied promise to pay the proceeds as money had and received to the use of the party entitled. The owner of the property thus taken and disposed of may either disaffirm the act, and treat the taker as a wrongdoer, and sue him for a trespass or for a conversion of the property, or he may waive the tort, affirm the act, and have an action like this for money had and received from the proceeds of the sale."

THE CHANCELLOR. The bill asks that the defendant be enjoined from erecting a public garage on his land which adjoins land of the complainants, and the basis of the right claimed is that the complainants had not consented thereto. An ordinance of the City of Wilmington declares that no permit shall be granted by the Building Inspector for the erection of a public garage in the residential portion of the city within 40 feet of adjoining land, without the consent of the owners of such adjoining land.

It would seem that every reason for allowing a recovery in assumpsit, upon a count for money had and received, of the amount for which the property was sold, will apply with equal force, to a case for the recovery of the fair value of the property, upon a count for goods sold and delivered, where the property is not sold, but retained or consumed by the tort-feasor. 2 Street, Foundations of Legal Liability, 216; 3 Street, 199; Keener, Quasi Cont. 192; 2 Page on Cont. § 843; 2 R. C. L. 756, 757; Woodruff v. Zaban, 17 Ann. Cas. 975 (note) 977; 1 Cooley on Torts, §§ 109-111; 1 Hilliard on Torts, 47; Putnam v. Wise, 1 By the demurrer to the bill the questions Hill (N. Y.) 240 (note); Hill v. Parrott, 3 raised are the same as those raised in the Taunton, 274; Bradfield v. Patterson, 106 case of Dangel v. Williams, 99 Atl. 84, and Ala. 397, 17 South. 536; Roberts v. Evans, 43 there considered and decided by me. After Cal. 380; Fountain v. Sacramento, 1 Cal. App. reviewing my opinion and considering the 461, 82 Pac. 637; City of Elgin v. Joslyn, 136 authorities submitted by the solicitor for the Ill. 525, 26 N. E. 1090; Reynolds v. N. Y. complainants, I find no reason to change any Trust Co., 188 Fed. 611, 110 C. C. A. 409, 39 of the views expressed in the opinion filed in L. R. A. (N. S.) 309: Douns v. Finnegan, that case. I did not find, as the solicitor for 58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. the complainant did, “a wilderness of cases" 488; Crane v. Murray, 106 Mo. App. 697, 80 bearing on the validity of an ordinance S. W. 280; Galvin v. Mac Mining & Milling granting to private persons the power to Co., 14 Mont. 508, 37 Pac. 366; Abbott v. make an ordinance effective, though there Blossom, 66 Barb. (N. Y.) 353; Terry v. Mun- may be many conflicting decisions as to the ger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. validity of an ordinance which confers upon 216, 18 Am. St. Rep. 803; Braithwaite v. an administrative official, or official board, Akin, 3 N. D. 365, 56 N. W. 135; Barker v. power to grant or withhold permission for Cory, 15 Ohio, 9; Albrook v. Hathaway, 3 the carrying on of a particular trade or busiSneed (Tenn.) 454; Tidewater Quarry Co. v. ness. This latter question, and not the forScott, 105 Va. 160, 52 S. E. 835, 115 Am. St. mer one, is discussed in 11 Dillon on MuniciRep. 864, 8 Ann. Cas. 736; Livingstone v. Lov-pal Corporations (5th Ed.) § 598, p. 934. The gren, 27 Wash. 102, 67 Pac. 599; Norden v. distinction between the two questions is clear Jones, 33 Wis. 600, 14 Am. Rep. 782.

We are of opinion a new trial should be granted. It is ordered that the foregoing opinion and decision be and it is hereby certified to the Superior Court, Sussex County.

The opinion being so certified, the Superior Court awarded a new trial.

and has not been borne in mind by the solicitor for the complainant, for the cases cited by him, such as Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018, and others, were of the latter class. As Mr. Dillon says, some of the courts which have sustained ordinances of the latter kind do so be

(108 A.)

cause it cannot be assumed that the official | makes it, we think, an unreasonable exercise will act arbitrarily or otherwise than in the of the police power." exercise of a sound discretion. But it seems

This vice exists as clearly in the one as in to me clear that private persons to whom as the other of the ordinances considered by the owners of land is given the power to control Supreme Court of the United States, and the the use by the owners of adjoining land of distinction which the court drew in the lattheir property, are presumably governed by est case does not seem reasonable. The two self interest, and are more apt than an offi- decisions are conflicting, and I find the earlicial to be arbitrary and unjust when their er one more convincing. As the same vice own interests are affected. Obviously, then, appears in the ordinance of the City of Wildecisions which uphold the validity of an or-mington, I must, for that reason, hold to the dinance giving to a single official arbitrary view heretofore expressed, and declare power to make effective an ordinance do not again that the ordinance is invalid.

apply to legislation which gives such power to private persons when control is thereby given them over the use of land of other private persons.

One decision rendered since the opinion was filed in Dangel v. Williams, supra, has been cited to uphold the ordinance, viz., Cusack Co. v. City of Chicago, 242 U. S. 526, 37 Sup. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594. There an ordinance prohibiting the erection of bill boards in residence sections of the city of Chicago without first obtaining the consent of the majority of the owners of land on both sides of the street in the block was held valid.

ON NOTES MATURING AFTER DEATH AGAINST
ADMINISTRATOR APPOINTED LONG THEREAFT-
ER NOT BARRED.

Where the administrator for the estate of the deceased maker of notes was not appointed the notes, an action on the notes is barred as until more than six years after the maturity of to those which matured before the death, but not as to those maturing thereafter.

2. LIMITATION OF ACTIONS 6(1)-ADMIN

ISTRATION BEGUN BETWEEN ENACTMENT AND
EFFECTIVE DATE OF ACT IS "PENDING."

The court pointed out that as that ordinance had been declared valid by the Supreme Court of Illinois, it must be so considered by the Supreme Court of the United States unless the record shows it to be clearly unreasonable and arbitrary. The opinion then considers this feature, which is different from the question as to a delegation of legislative Where an administrator was appointed aftpower. Notwithstanding this, the opinion in the Supreme Court of the United States, at er the enactment of Rev. St. c. 86, § 109, as added by Pub. Laws 1917, c. 133, § 13, barring the end thereof, discussed the question of the certain actions against decedents' estates, but delegation of legislative power, and under-before that act took effect, the administration took unsuccessfully, it seems to me, to distinguish the ordinance before it from that considered in Eubank v. Richmond, 226 U. S. 137, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192. In the latter case the court pointed out that the vice of such legislation is the control of the property of one person by other owners of property exercised under the ordinance. The court thus expressed the true principle:

"We are testing the ordinance by its extreme possibilities to show how in its tendency and instances it enables the convenience or purpose of one set of property owners to control the property right of others, and property determined, as the case may be, for business or residence-even, it may be, the kind of business or character of residence. One person having a two-thirds ownership of a block may have that power against a number having a less collective ownership. If it be said that in the instant case there is no such condition presented, we answer that there is control of the property of the plaintiff in error by other owners of property exercised under the ordinance. This, as we have said, is the vice of the ordinance, and

was pending so as to be excepted from the act by its terms.

3. LIMITATION OF ACTIONS 6(1)—ACT BAR

RING ACTIONS AGAINST ESTATES NOT RETRO-
ACTIVE.

Rev. St. c. 86, § 109, as added by Pub. Laws 1917, c. 133, § 13, barring actions against estates where no administrator is appointed for six years after the death, which makes no express reference to estates of persons deceased before its passage, will not be construed to apply to such estates, especially in an action against an administrator appointed 30 days before the act took effect, so that there had been no time for bringing a suit under Rev. St. c. 92, § 14.

Agreed Statement from Supreme Judicial Court, Waldo County, at Law.

Assumpsit by Ezra A. Carpenter against Herbert C. Hadley, as administrator of the estate of Charles H. Hadley, deceased. On Judgment renagreed statement of facts. dered for plaintiff for part of the amount sued for.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[3] But it was not the legislative intent Upon the facts stated it appears that the to make the section retroactive. There is no administrator complied with the statute by express reference therein to estates of perfiling the affidavit of notice of his appoint-sons deceased before its passage, or language ment, and that the plaintiff delivered his claim to the administrator, and filed the same in the probate court as required by law. The action, then, is properly brought, and may be maintained, unless barred by limitation.

(108 A.)

790; Chew Heong v. U. S., 112 U. S. 559, 54. ELECTION OF REMEDIES 11-NO ELECTION
Sup. Ct. 255, 28 L. Ed. 770.
THROUGH MISTAKEN PROSECUTION OF INAP-
PROPRIATE ACTION.

In Soper v. Lawrence, 98 Me. 283, 56 Atl. 908, 99 Am. St. Rep. 397, the court emphasized the doctrine first announced in Proprietors of Kennebec Purchase v. Laboree, 2 Me. (Greenl.) 203, 11 Am. Dec. 79, that"This allowance of a reasonable time for the prosecution of claims after the passage of an act of limitation made to take effect upon existing rights is the settled principle by which the constitutionality of all such acts is tested." Lewis' Sutherland, Statutory Construction (2d Ed.) vol. 2, p. 1283; Sanford v. Hampden Paint etc., Co., 179 Mass. 10, 14, 60 N. E. 399.

The act took effect within 30 days after the appointment of the administrator, and if the defendant's contention is correct, there has never been a time when the plaintiff could have maintained an action against the administrator. R. S. c. 92, § 14. Such re

sult was not intended by the Legislature,

and therefore section 13 cannot be so construed.

A shipper of horses by rail, who for damages to them mistook his remedy, and brought action of tort at common law against the initial carrier, in which action he took voluntary nonsuit, is not precluded, through any election of remedies, from bringing action in contract against the carrier under the Carmack Amendment to the Hepburn Act (U. S. Comp. St. §§ 8604a, 8604aa).

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Frank R. Hayden against the Maine Central Railroad Company, resulting in verdict for plaintiff, and defendant excepts. Exceptions overruled.

Argued before CORNISH, C. J., and PHILBROOK, DUNN, MORRILL, and DEASY, JJ. McGillicuddy & Morey, of Lewiston, for plaintiff.

White, Carter & Skelton, of Lewiston, for defendant.

PHILBROOK, J. The record in this case discloses that the plaintiff was the owner of three horses which he shipped from Lew

(Supreme Judicial Court of Maine. Jan. 26, iston, Me., to Lexington, Ky., on February

1920.)

13, 1917. He delivered the animals to the 1. APPEAL AND ERROR 1210 (1)—MANDATE defendant, for transportation over its road,

AFTER EXCEPTIONS ARE SUSTAINED REMANDS
CASE FOR NEW TRIAL.

When exceptions are sustained in jury cases, as well as in those tried before a single justice without the aid of a jury, trial de novo follows under the mandate of the Supreme Judicial Court, unless it is otherwise decided and stated in the rescript.

2. DISMISSAL AND NONSUIT 29-JUDGMENT 570(3)-DISTINCTION BETWEEN NONSUIT AND "RETRAXIT"; THE LATTER BARRING SUBSEQUENT ACTION.

At common law, "retraxit" was an open voluntary renunciation of a claim in court, by which plaintiff forever lost his action thereon, differing from nonsuit, after entry of which plaintiff may begin his suit again.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Retraxit.]

3. DISMISSAL AND NONSUIT

9-VOLUNTARY

NONSUIT ALLOWED AFTER VERDICT SET ASIDE

ON EXCEPTIONS.

Where plaintiff secured verdict, but defendant excepted, and prevailed on his exceptions, the verdict was set aside, and the rule that there can be no nonsuit, voluntary or otherwise, after verdict, ceased to be operative, so that plaintiff could take voluntary nonsuit.

and connecting roads, to their destination. Upon their arrival, which the plaintiff alleges was unduly delayed, they manifested such lack of food and water during their journey that the owner claimed them to be nearly worthless. On August 15, 1917, he brought an action against this defendant at common law, sounding in tort, and claiming damages for the negligent manner in which the defendant performed its duties as a common carrier. That action, which we shall refer to as the first case, was entered and tried in 1917, at the September term of the Supreme Judicial Court held in Androscoggin county. Verdict was rendered in behalf of the plaintiff, and defendant took that case to the law court on motion and exceptions. In a per curiam decision (117 Me. 560, 103 Atl. 1047) this court said:

"The action was at common law to enforce a common-law liability. The theory of the plaintiff throughout the case, and not abandoned in argument, was that the negligence alleged was in fact the negligence of the defendant, and not that of a connecting carrier, and that the delay causing the damage was on the defendant's railroad in the state of Maine. The defendant asked for a directed verdict and was refused.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The refusal was the subject of the third excep- [et and judgment entered for the defendant, tion. It was incumbent on the plaintiff to which appears as No. 799 on the docket of prove liability on the part of the Maine Central the Androscoggin county Supreme Judicial Railroad. The plaintiff's evidence, taken as a Court, September term, 1918. This motion whole, failed to prove that fact, and therefore was denied, and exceptions by defendant althe motion of the defendant to direct a verdict lowed. in its favor should have been granted. The conclusion here reached necessarily disposes of the motion. Exceptions sustained."

The defendant then objected to the admission of any evidence under the new declaration in the writ in the second case on Thus it will be seen that only one out of the ground that the plaintiff had elected to three exceptions was passed upon by the bring this action on the tort in the first suit, court in the finding upon the first case. and by this election and by the very bringThis finding was certified to the court being of the action he was forever barred from low, and on June 22, 1918, the clerk of that waiving the tort and proceeding under the court entered on his docket: contract. The presiding justice overruled

"Certificate of opinion received from the law these objections, and exceptions were allowcourt, to wit: Exceptions sustained."

"Judgment for defendant Oct. 4, 1918, costs Railroad Company, as it appears upon the $82.95; execution issued April 8, 1919."

Before going to trial on this second case the defendant also presented a motion asking that either the docket entry, "Plaintiff nonsuit," in the case of Frank R. Hayden v. Maine Central Railroad Company, in which the writ was dated August 15, 1917, be considered and read as "Plaintiff nonsuit; no further action," or that this entry of [1] Nonsuit. The mandate in the first