tion of the report of the committee appointed by the court, upon the appeal from the doings of the commissioners upon a petition for the discontinuance of a highway. The objection to the report is that one of the committee was a brother of one of the petitioners, and a more distant relation of another, and therefore not disinterested, as required by the statute. It appears that this member of the committee was appointed with the consent of the petitioners, made known through their counsel. It must be presumed that the petitioner had knowledge of the relationship at the time of the appointment. No objection was made by either party to his acting until an adjourned meeting of the committee. It now comes from that party in whose favor the interest must be presumed to have operated, if it had any influence whatever. Under such circumstances, though it may not be legally correct to say that the interest was waived, yet, by a well-settled principle of law, it must be held that a party who has knowingly taken his chances for a report in his favor is estopped from raising the objection founded upon that interest when the decision is found to be against him. The entry must therefore be, upon the motion, exceptions overruled upon the case as reported; report of the committed accepted; judgment to be entered thereon, with costs for the appellants; the case to be certified to the county commissioners. BUNKER v. FORSAITH.1 (Supreme Judicial Court of Maine. June 5, 1886.) DEBT-DEBT ON JUDGMENT INSUFFICIENT RECORD. An action of debt on judgment for $14.95 debt, and $3.48 costs, is not sustained where the only record given in evidence is the word "defaulted," in the handwriting of the justice on the back of the original writ, and the execution reciting a judgment of $14 debt, and $3.48 costs. This was an action of debt on judgment rendered by a trial justice. The plea was nul tiel record. The justice was called as a witness in behalf of the plaintiff, and testified, in substance, that he was acting as a trial justice in 1871 and 1872, and that he had lost the docket which he kept at that time. He identified the original writ upon which the judgment in suit was rendered, and testified that the word "Defaulted," written upon the back of that writ, was in his handwriting; that all the rest that appeared upon the writ was in the handwriting of Mr. Parlin, plaintiff's attorney. The following words and figures thus appeared, following the word "defaulted:" 1 Reported by Leslie C. Cornish, Esq., of the Augusta bar. 57 1 50 42 99 $18 43 The witness testified that the only record he made upon the docket was the fact of issuing the execution, and the date. He identified the execution dated January 20, 1872, containing the following recitals: "Whereas, Samuel Bunker, of Anson, in the county of Somerset, on the thirtieth day of December, A. D. 1871, before THOMAS GRAY, Esq., one of our trial justices for our county aforesaid, recovered judgment against John G. Forsaith, of Solon, in said county, for the sum of fourteen dollars and no cents, debt, or damage, and three dollars and forty-eight cents for charges of suit, as to us appears of record, whereof execution remains to be done: "We command you, therefore, that of the money of the said debtor, or of his goods or chattels within your precinct, at the value thereof in money, you cause to be levied, paid, and satisfied unto the creditor the aforesaid sums, being eighteen dollars and forty-three cents in the whole," etc. The plaintiff's exceptions were to the ruling of the presiding justice in ordering a nonsuit. J. J. Parlin, for plaintiff. Walton & Walton, for defendant. PER CURIAM. The court is of opinion that the evidence introduced by the plaintiff does not prove the judgment declared on in his writ, and that the nonsuit was properly ordered. Exceptions overruled. BUNKER V. STeward.1 (Supreme Judicial Court of Maine. June 5, 1886.) 1. CHATTEL MORTGAGE-RIGHT OF POSSESSION. A mortgagor of personal property cannot defend against the right of possession by the mortgagee, as between themselves, upon the ground of nonownership of the property by the mortgagor; it not appearing that the true owner had dispossessed the mortgagor thereof, or had made the mortgagor accountable to him therefor. 2. DURESS-WHAT DOES NOT CONSTITUTE. It is not duress for an officer to threaten to take an execution debtor to jail unless he secures the debt by a mortgage of personal property, when the of ficer has in his hands legal process requiring him so to do. Action of replevin of a cow and heifer. The plaintiff claimed title under a mortgage from the defendant, and he introduced the deposition of a witness who testified, in substance, that he was a deputy-sheriff in the spring of 1884, when a justice's execution in favor of plaintiff, and against the defendant, for $18.75 debt, and $5.08 costs, was placed in his hands for service; that he went to the defendant's place, and “told him my business. He said he should not pay the execution. I asked him if there was not some way he could secure it if I would give him time. He said no; he would not secure it; he would go to jail first. I asked him if he had not some stock he could secure it on. He said he had no stock around him but a cow and calf. I told him that was sufficient to secure it on. He then said the cow belonged to his wife's mother, and the calf to his wife. I told him then he would have 1 Reported by Leslie C. Cornish, Esq., of the Augusta bar. * * to go to Norridgewock jail. He said he would go. We went to his J. J. Parlin and D. D. Stewart, for plaintiff. PER CURIAM. The mortgagor could not defend against the right of possession by his mortgagee, as between themselves, upon the ground of non-ownership of the cow by the mortgagor; it not appearing that the true owner had in any way dispossessed the mortgagor thereof, or that the mortgagor had become accountable to the owner therefor. It is not duress for an officer to threaten to take an execution debtor to jail unless he secures the debt by a mortgage of personal property, when the officer has in his hands proper process requiring him to do so. He merely threatens to do what he should do. Judgment for plaintiff; damages, one dollar. BARTLETT v. GILBERT.1 (Supreme Judicial Court of Maine. June 5, 1886.) PAYMENT-PROMISSORY NOTES-TRANSFER OF STOCK. In an action on certain promissory notes, the evidence tended to show that the defendant had transferred to the plaintiff certain stock by a conveyance absolute in form, but which the plaintiff claimed was collateral merely, and not in payment. The presiding judge instructed the jury (1) that, if the jury believe from the evidence that the transfer to Bartlett was absolute in form, the jury are to allow to the defendant the actual value of the stock, as ascertained by subsequent conditions of the stock; (2) that if the defendant, in consideration of his indebtedness to the plaintiff upon the notes in suit, conveyed to him his stock referred to, by a conveyance which was in form absolute, the conveyance must, at law, be regarded as payment of the notes to the extent of the said value of the property thus conveyed, and that such will be the effect of the conveyance notwithstanding it may be true, as claimed by the plaintiff, that his understanding of the transaction was that the conveyance to him was as collateral security only. Held not error. Assumpsit on four promissory notes. The defense was general issue, statute of limitations, and set-off. The opinion sufficiently states the facts. After the charge, by request of defendant, the presiding judge 1 Reported by Leslie C. Cornish, Esq., of the Augusta bar. further instructed the jury that, if the jury believe from the evidence that the transfer to Bartlett was absolute in form, the jury are to allow to the defendant the actual value of the stock, as ascertained by subsequent conditions of the stock; that if the defendant, in consideration of his indebtedness to the plaintiff upon the notes in suit, conveyed to him his stock referred to, by a conveyance which was in form absolute, the conveyance must, at law, be regarded as payment of the notes to the extent of the said value of the property thus conveyed, and that such will be the effect of the conveyance, notwithstanding it may be true, as claimed by the plaintiff, that his understanding of the transaction was that the conveyance to him was as collateral security only. S. & L. Titcomb, for plaintiff. It is claimed in PER CURIAM. This is an action upon certain notes. defense that, after the notes were given, some stock of the Galatin L. C. & O. Co. was conveyed by the defendant to the plaintiff, the value of which at the time was not known, but, when ascertained by a settlement of the affairs of the company, the amount was to be allowed on the notes, and there was evidence tending to sustain this proposition. The plaintiff claimed that the conveyance was conditional, and as collateral security for the notes. There was also evidence tending to show that the plaintiff had used the stock, and it appears to have been conceded that he had not accounted for it upon the notes or otherwise. If the conveyance was absolute in form, he could so have used it. Hence, if the defendant's proposition was established by the proof, the ruling excepted to may be sustained. The case finds that "there was other evidence, also other instructions, and limitations of instructions, not herein stated." As these instructions are not excepted to, we may well suppose that they were appropriate to the plaintiff's phase of the case, and properly limited the instructions recited. Under these circumstances it does not appear that the plaintiff is aggrieved by the instructions given to which exceptions are taken, whether erroneous or otherwise. ruled. Exceptions over STATE v. SEVERANCE.1 (Supreme Judicial Court of Maine. June 5, 1886.) COURTS-MUNICIPAL JUDGE-NOT DISQUALIFIED, WHEN. A municipal judge is not disqualified from taking cognizance of liquor cases because he is a tax-payer in the city to which the law appropriates the penalty if recovered in the prosecution. Appeal from the Rockland police court, by which defendant was found guilty of a first offense, and sentenced to pay a fine of $100 and costs, and, in default of payment, to imprisonment in Wiscasset jail for 90 1 Reported by Leslie C. Cornish, Esq., of the Augusta bar. days. In the appellate court the defendant filed the following plea in abatement: "And now the said Thomas B. Severance, in his own proper person, comes into court here, and says that the court here ought not take cognizance of the charge set forth in the complaint and warrant above specified; because, protesting that he is not guilty of the same, nevertheless the said Thomas B. Severance says that GORDON M. HICKS, Esq., judge of the police court within and for the city of Rockland, before whom said complaint was made, and by whom said warrant was issued, and before whom said warrant is returnable, and by whom it was tried, was then and still is pecuniarily interested in the result of said complaint and warrant, and the charge made therein against him, the said Thomas B. Severance; that said GORDON M. HICKS was then and still is a resident within said city of Rockland, and a large tax-payer therein; that said warrant ought to have been issued by and made returnable before some trial justice within said county of Knox who was disinterested, and not before the said GORDON M. HICKS, who was and is interested therein, and this he is ready to verify. "Wherefore, he prays judgment, if the said court here will or ought to take cognizance of the complaint and warrant aforesaid, and that by the court here he may be dismissed and discharged, and that the said complaint and warrant may be quashed." To this plea the county attorney filed a demurrer, which was sustained, and the defendant alleged exceptions. True P. Pierce, Co. Atty., for the State. Robinson & Rowell, for defendant. PER CURIAM. The decisions in this state have settled the question raised in this case. The judge of the police court of Rockland is competent to sit in liquor cases, whether the city, county, or state is interested in the penalty and costs, though he be a resident and tax-payer in such city. The costs are a part of the penalty or punishment. State v. Woodward, 34 Me. 293; State v. Intoxicating Liquors, 54 Me. 564. Exceptions overruled; demurrer sustained; plea adjudged bad, defendant to plead over. GREEN v. MORRIS and another.1 (Supreme Court of Vermont. June 14, 1886.) STATUTE OF LIMITATIONS-PAYMENT BY SURETY-AGENT. When a surety pays money which he has received, in the presence of the payee, from a principal on the note, it is a question of intent, in its effect on the statute of limitations, whether he paid it as agent of the principal, or for himself. If it was the understanding of all the parties that the surety was acting for himself, it was a payment by him, and removes the statute bar as to him.2 Assumpsit on a promissory note. Trial by court; September term, 1885; Rutland county; VEAZEY, J., presiding. Judgment for the de 1 Reported by John H. Senter, Esq., of the Montpelier bar. 2 Respecting the effect of part payment of a promissory note by a joint obligor or surety, see Stewart v. McBurney, (Pa.) 1 Atl. Rep. 639, and note, 641-653; Corliss v. Grow, (Vt.) 2 Atl. Rep. 388, and note, 389, 390. v.4A.no.4-36 |