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proviso, every person so offending shall be subject to a penalty as in the act prescribed.

It may be conceded that the making of this subscription is not a work necessarily done on Sunday. The question then is whether the raising of money to build a house of worship is a work of charity within the meaning of the act, or is the solicitation of contributions for that purpose from a congregation assembled on Sunday for religious worship, a work of charity?

No man can legally be compelled to contribute toward the erection of a house for public worship, nor to attend or support religious services therein. The statute imposes no such obligation. It however does recognize Sunday as the proper day for public worship. It leaves every one free to use the day for that It is designed to purpose or refrain from such use. compel a cessation from all those employments which will interfere with or interrupt the exercise of religious services, either public or private, on that day. The right to so worship is protected by its penal enactments. Each person has an indefeasible right to worship Almighty God according to the dictates of his own conscience. Each is at liberty to use Sunday for the purpose contemplated by the statute. If he refrains therefrom, he shall not so use the day as to annoy others who may be engaged in religious worship. Johnston v. Commonwealth, 10 Harris, 102. The purpose of the law is to protect the day for the comfort of those conducting or attending religious worship. Charity is active goodness. The means which long established and common usage of religious congregations show to be reasonably necessary to advance the cause of religion are not forbidden, and may be deemed works of charity within the meaning of the statute. It is not essential that they be purely charitable. It is sufficient if they so far partake of that character as to be recognized by the congregation as a part of its active goodness, and are not expressly forbidden by the statute. Commonwealth v. Nesbit, 10 Casey, 398.

The inclination of this court has long been not to permit a person to set up this law against another person from whom he has received a meritorious consideration or on whom he has inflicted an injury. It was therefore said in Mohney v. Cook, 2 Casey, 342, that the law relating to the observance of the Sabbath defines a duty of the citizen to the State and to the State only. It was there held that one who had erected an obstruction in a navigable stream whereby the boat and cargo of another were wrecked on Sunday, could not, in an action for such injury, set up as a defense that the plaintiff was unlawfully engaged in navigating his boat on that day. So it was held the hiring of a carriage on Sunday by a son to visit his father created a legal contract, although no reason was shown for visiting him on that day, other than flows from a general filial duty and affection. Logan v. Mathews, 6 Barr, 417. It is not a violation of the act for a hired domestic servant to drive his employer's family to church on Sunday in the employer's private carriage. ComA will executed on monwealth v. Nesbit, supra. Sunday is not void, although at the time the testator be in his usual good state of health and live five or six months thereafter. Beitenman's Appeal, 5 P. F. Smith, 183.

Contracts for services on Sunday of the preacher, the sexton, the organist and the singers are not illegal, although these persons may engage in such employment as a means of livelihood. Their services are in furtherance of the same great charity.

The custom of soliciting contributions on Sunday from congregations assembled for religious worship is very general, and has existed from an early period of time. With some denominations it may be for a greater variety of objects than with others. Sabbath offerings may be for the incidental expenses of the church; to

light and warm the house; to pay the organist and the sexton; to assist the poor; to repair, enlarge and rebuild the church edifice; to support foreign and domestic missions. The latter often extends to furnishing aid to poorer congregations toward erecting houses of worship. If it be illegal to give or agree to give for such objects on Sunday, it must be illegal to solicit the giving. We are not aware it has ever been held that the preacher became liable to the penal provisions of the statute by soliciting from the pulpit such contributions, nor any of the officers of the church for taking up the collection. Whether the sum be large or small does not change the principle applicable to the transaction. It is true there is a legal distinction between having given and agreeing to give, yet inasmuch as we think a subscription toward the erection of a house of public worship is a work of charity, such agreement is not prohibited by the act of 22d of April, 1794. The conclusion at which we have arrived is not in accord with the doctrine assumed in Catlett v. Trustees, etc., 62 Ind. 365, but in principle it is in harmony with the rule declared in Flagg v. Millbury, 4 Cush. 243; Bennett v. Brooks, 9 Allen, 118; Doyle v. Lynn, 118 Mass. 195, and directly sustained in Allen v. Duffy, 9 Reporter, 646, decided last year by the Supreme Court of Michigan.

The support of religious societies is a charity. It is a giving for the love of God, or the love of a neighbor in a broad catholic sense. Whatever is morally fit and proper to be done on Sunday in furtherance of the great object, is likewise a charity. The learned judge therefore erred in ordering a nonsuit and in refusing to take it off.

Judgment reversed.

BOUNDARY OF LAND BY HIGHWAY.

MAINE SUPREME JUDICIAL COURT, FEBRUARY, 1881.

Low v. TIBBETTS.*

The well-settled doctrine in this State is, that a grant of land bounded on a highway carries the fee in the highway to the center of it, if the grantor owns to the center, unless the terms of the conveyance clearly and distinctly exclude it.

The mere mention of a monument on the side of the road, or on the bank of a stream, as the place of beginning or end of a line in the description, is not of itself sufficient to control the ordinary presumption, that the grantee will hold to the center of the road or the thread of the stream where the road or stream is made the boundary. PRESPASS for hauling certain loads of stone upon

TRES

the locus which is within the limits of a town way, and the plaintiff claimed to own the fee. The question presented called for the construction of a deed from the plaintiff to the defendant, dated June 26, 1857. The description is given in the opinion.

At the trial the presiding justice was of the opinion that the fee was in the defendant, and a nonsuit was ordered" which is to be set aside if such construction of the deed was erroneous."

Asa Low, for plaintiff.
R. P. Tapley, for defendant.

BARROWS, J. The question is, whether the fee in
the locus (which is a strip about twelve rods in length
by forty-four feet in width, being a section of a duly
located street in the village of Spring Vale, running
along the bank of Mousam river, cutting a lot formerly
owned by the plaintiff very unequally, and leaving the
largest part of it on the side farthest from the river,
and a little irregularly shaped land between street and
river) is in the plaintiff, or in the defendant.
After the street was built plaintiff conveyed his lot
*To appear in 72 Maine Reports.

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and running (course given) by said road * ** * to a stake," and thence around the rear of the lot "to the place begun at; also the land now owned by said Low between said road and Mousam river."

The well-settled doctrine in this State is, that a grant of land bounded on a highway carries the fee in the highway to the center of it, if the grantor owns to the center, unless the terms of the conveyance clearly and distinctly exclude it, so as to control the ordinary presumption. Oxton v. Groves, 68 Me. 372. Here the principal piece is bounded by the road as a monument or abuttal. So is the land lying opposite "between the road and the river."

Is there enough in the language used to exclude the street from the conveyance? The mere mention in the description of a fixed point on the side of the road as the place of beginning or end of one or more of the lot lines does not seem to be of itself sufficient. Cottle v. Young, 59 Me. 105, 109; Johnson v. Anderson, 18 id. 76. Nor will similar language, with reference to monuments standing on or near the bank of a stream, in lines beginning or ending at such stream, prevent the grantee from holding ad medium filum aquae. Pike v. Monroe, 36 Me. 309; Robinson v. White, 42 id. 210, 218; Cold Spring Iron Works v. Tolland, 9 Cush. 495, 496. The case of Sibley v. Holden, 10 Pick. 249, cited by plaintiff, was commented on by this court in Bucknam v. Bucknam, 12 Me. 465, and that of Tyler v. Hammond, 11 Pick. 193, in Johnson v. Anderson, 18 Me. 78; and the apparent force of these decisions is somewhat restricted and explained by the learned court which pronounced them, in Newhall v. Ireson, 8 Cush. 598, and Phillips v. Bowers, 7 Gray, 24; although it is apparent from the last case and from Smith v. Slocomb, 9 Gray, 36, that the Massachusetts court lays less stress upon the ordinary presumption, and requires less distinctness in the terms of the deed to obviate it, than we have done in the cases above cited from the 18th, 59th and 68th of our own reports. See, also, Perkins' note to Sibley v. Holden, in the secend edition of Pickering's Reports, vol. 10, p. 251.

Had the plaintiff run his first line "by the northeasterly side line of said road," instead of by said road," and conveyed the land "lying between the south-westerly side line of said road and Mousam river," instead of that "lying between said road and Mousam river," a different question would have been presented.

In the absence of the very few words which were necessary to make plain an intention on the part of the plaintiff to reserve the fee in the land covered by the street to himself, we think the ordinary presumption and construction must prevail.

Nonsuit confirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

CONSTITUTIONAL LAW- LOCAL ACT-SUBJECT NOT EXPRESSED IN TITLE. - Chapter 604 of the Laws of 1874 is entitled "An act to provide for the surveying, laying out and monumenting certain portions of the city and county of New York, and to provide means therefor." The act not only confers power to lay out, survey and monument, but certain provisions contained therein authorize the taking of proceedings to acquire title and to pay for the land taken for that purpose. Held, that the act is not unconstitutional on the ground that it is a local act and the subject is not sufficiently expressed in the title, as required by

section 16 of article 3 of the State Constitution. The subject of the act is the improvement of streets, and the words "laying out" must be interpreted in a broad and liberal sense. The constitutional provision referred to does not require that the title should be exact and precise in all respects, and it is a sufficient compliance with its terms if this is done fairly and in such manner as to convey to the mind an indication of the subject to which it relates. The provisions of the act in question belong to one single act of legislation, and could properly be included in the same. They have reference to local improvements, and ali tend to the attainment of this general power. Matter of Mayer, 50 N. Y. 506; People v. Briggs, id. 553; Matter of Douglass, 74 id. 95. Order affirmed. Matter of opening One Hundred and Thirty-eighth Street. Opinion by Miller, J., Finch, J., dissenting. [Decided Oct. 18, 1881.]

CONTRACT

INVALIDATED BY CONCEALMENT OF MATERIAL FACT-AGENT ACTING FOR OTHER PARTY.

- About November 24, 1875, H., who represented plaintiff and others, owners of stock in the L. Railroad Co., called upon defendants, who also owned stock in the same company (the stock owned by defendants and those represented by H. constituting a majority of the stock) and entered into an agreement with defendants whereby it was agreed that H. might sell a majority of the stock of the company to one P., with whom negotiations for sale had been had by him, which should include all stock represented by him and owned by defendants at a specified price. It was further agreed that there should be no separate sale of any of the stock by any of the parties. Previous to calling on defendants H. had made an offer to P. to work in his interest in the sale of the stock, and in hostility to the interests of defendants in the matter. This offer had been accepted by P. Of the fact of the offer, etc., defendants had no knowledge, H. having concealed it from them. On the 14th of December, 1875, defendants notified H. that they declined further negotiations for the sale of their stock. About the same time they purchased other stock, which together with what they owned, constituted a majority of the stock without that represented by H. In January they sold all of their stock to P., who having obtained a majority of the stock refused to purchase more, and thus the stock represented by H. was greatly dimin ished in value, and had but little salable value. In an action by plaintiffs against defendants for a violation of the agreement, held, that the concealment from the defendants of the offer of H. to P. and its acceptance by P. was a sufficient defense to the action. Hitchens v. Congreve, 4 Russell, 562; Blake's case, 34 Beav. 639; Foss v. Harbottle, 2 Hare, 461; Rawlins v. Wickham, 3 D. G. & J. 304; Conkey v. Bond, 36 N. Y. 428; Getty v. Devlin, 54 id. 403; Getty v. Donnelly, 9 Hun, 603; Place v. Minster, 65 N. Y. 102. Judgment affirmed. Havemeyer v. Havemeyer. Opinion by Earl, J. [Decided Oct. 4, 1881.]

EXECUTOR SURETY FOR NON-RESIDENT LIABLE FOR DEFAULT OF PRINCIPAL IN TRUST MATTERS — ACTION AGAINST SURETY NOT MAINTAINABLE AT LAW OR IN EQUITY UNTIL SURROGATE HAS MADE DECREE - PRACTICE -NEW PARTIES — CANNOT BE BROUGHT IN BY VERBAL ORDER DURING TRIAL. In an action by legatees against the executors under the will and the sureties for a non-resident executor in a bond given under 2 Rev. Stat. 70, section 7, to compel an accounting by said executors, and to charge the nonresident executor with funds alleged to be misapplied, and to compel the sureties to pay the same, if it could not be collected from him, held (1), that the circumstance that real and personal estate, was left by the will to the executors in trust for certain purposes did not render them trustees merely as to such property so as

to render the sureties for the executor not liable for his default in the management of such trust. Stagg v. Jackson, 1 N. Y. 206. Sureties of an executor can in a proper proceeding be held liable for his defaults in respect to the application of the proceeds of the real and personal estate given by the will to him in trust. Wright v. Trustees, etc., 1 Hoff. Ch. 202; Wood v. Wood. 4 Paige, 299. (2) The action in question was not maintainable without showing that there was a decree against the executor under 2 Rev. Stat. 116, section 19, or an execution returned unsatisfied and an order of the surrogate authorizing the prosecution of the bond under Laws 1837, chapter 460, sections 63 to 65. People v. Guild, 4 Den. 551; People v. Barnes, 12 Wend. 492; Baggott v. Boulger, 2 Duer, 160; Annett v. Kerr, 2 Rob. 556; Annett v. Terry, 35 N. Y. 256. The result of the authorities is that no action at law can be maintained against the sureties of an executor or administrator except in case of disobedience of some order of the surrogate, and after he shall have authorized the prosecution of the bond. People v. Corlies, 1 Sandf. 228; People v. Falconer, 2 id. 81; Behrle v. Sherman, 10 Bosw. 292; People v. Rowland, 5 Barb. 449; Thayer v. Clark, 48 id. 243. (3) Nor in such case can an equitable action be maintained. Salsbury v. Vanhoesan, 3 Hill, 77. All the authorities agree that special circumstances must be shown, establishing the necessity for the interposition of a court of equity, and that if the legal remedies can be pursued they alone can be resorted to. Cases referred to: Cuddeback v. Kent, 5 Paige, 92; Carow v. Mowatt, 2 Ed. Ch. 59; Bachelder v. Elliott's Administrator, 1 Hen. & Munf. 10; Clark v. Webb, 2 id. 8; Spotswood v. Dandridge, 4 Munf. 289; Stillwell v. Mills, 19 Johns. 304. No case was made out here so far as the sureties were concerned for any proceeding in equity. The decree of the surrogate would be binding upon the sureties, and no necessity existed for making them parties to a suit in equity for the purpose of concluding them. Douglass v. Howland, 24 Wend. 55; Caesoni v. Jerome, 58 N. Y. 315. (4) Some of the defendants set up in their answers an assignment by one of the plaintiffs of all his right, title and interest in the estate of testator to the firm of T. Bros. before the commencement of the action. At the trial such assignment was proved and defendants objected to the defect of parties. Plaintiff's counsel stated that one of the firm was present in court, whereupon the court verbally directed an amendment of the pleadings that the members of the firm be brought in as parties. Defendants objected, but the objection was overruled and the trial proceeded. Held, that the direction of the judge was error. The defendants were entitled to set up any defense they might have against the firm, and also to have them made parties in such manner as to bind them by the judgment. The mere verbal order of the court did not make the firm parties, and the presence of one of the firm at trial did not obviate the difficulty. Judgment and order reversed and new trial ordered. Hood v. Hood. Opinion by Rapallo, J.

[Decided Oct. 4, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

MORTGAGE-BY RAILWAY COMPANY OF ALL RIGHTS AND PROPERTY - DOES NOT INCLUDE MUNICIPAL AID.

-A mortgage conveyed all the present and in future to be acquired property of, or in any manner pertaining to, the L. branch of the B. Railway Company, and all the right, title and interest and equity of redemption therein, whether of said company or the stockholders in said branch or leased premises, that is to say, all the branch railroad, including the premises leased of the L. Railroad Company, now made and to be con

structed, extending from the main line of said B. railway at or near U., by way of, etc., including the right of way therefor, road-bed, superstructure, iron, ties, chairs, splices, bolts, nuts, spikes, and all the lands and depot grounds, station-houses, depots, viaducts, bridges, timber and materials and property, purchased or to be purchased, or otherwise acquired, for the construction and maintenance of said branch railroad, and all the engines, tenders, cars and machinery, and all kinds of rolling-stock, now owned or hereafter purchased by said party of the first part for and on account of said branch railroad, all the revenue and income of said L. branch, and all the rights, privileges and franchises relating thereto, and property acquired by virtue thereof, now in possession or hereafter to be acquired, including machine-shops, tools, implements and personal property used therein or along the line of said branch railroad, together with all the property of every kind acquired by said party of the first part by virtue of said lease of said L. railroad." etc. Held, that the "rights, privileges and franchises" mortgaged were only such as had direct connection with the management and operation of the road after it was constructed and put in use as a public highway. There was no purpose to pass to the mortgagee any interest whatever in municipal subscriptions which had been previously obtained and accepted by the company for the purpose of raising money to build the road. Decree of U. S. Circ. Ct., W. D. Missouri, affirmed. Smith v. McCullough. Opinion by Harlan, J. [Decided Oct. 25, 1881.]

SURETYSHIP -BOND OF REVENUE COLLECTOR NOT DESIGNATING DISTRICT, VALID — DEMURRER. · (1) A bond given by a collector of internal revenue for the faithful discharge of his official duties did not state for what particular collection district the principal was collector of taxes, and for the proper discharge of the duties of which the sureties undertook to be responsible. In an action on such bond against the sureties, held, that the bond was not invalid because it did not state the particular district. It is a matter of which this court will take particular notice that by law the country is divided into collection districts for internal revenue purposes, and in some States there are several of these districts, with defined geographical boundaries. A collector is appointed for each of them, and his duties relate to the collection of internal revenue within that district. The bond bound the signers for the faithful performance of the duties of their principal. Those duties were well defined. The person who was to perform them, and for whose default they consented to become liable, was named in the obligation. The only matter of importance left out of the writing obligatory was the place or district within which those duties were to be performed. He was collector for but one district. It is fairly to be presumed that the obligors of whom he was one, knew for what district he had been appointed, since they say he had already been appointed by the president when they signed the bond. This appointment was a matter of public record. The evidence of it was the commission of one of the obligors, signed and sealed by the president. The district therefore for which he was appointed was known to them, and was a matter of public government record. (2) In the declaration in the action there was no averment that the principal was or ever had been appointed collector of any particular district. Held, that there was no foundation for proof of that fact and consequently the declaration was demurrable. Judgment of U. S. Circ. Ct., E. D. Virginia, affirmed. United States v. Jackson. Opinion by Miller, J. [Decided Oct. 31, 1881.]

USURY-PAID NATIONAL BANK ON ONE DEBT MAY NOT BE APPLIED TO DISCHARGE PRINCIPAL OF AN

OTHER. — The object of the plaintiffs in error in these suits was to have usurious interest paid a National bank on renewing a series of notes, of which those in suit were the last, applied in satisfaction of the principal of the debt. The claim was not for interest stipulated for and included in the notes sued on, but for the application of what had actually been paid as interest to the discharge of principal. This the court held in Barnet v. National Bank, 98 U. S. 555, could not be done; and in National Bank v. Gruber, 8 W. Notes of Cas. 119, and National Bank v. Dushane, 9 id. 472, the Supreme Court of Pennsylvania followed that case, overruling its former docisions on the same question in Lucas v. Bank, 78 Penu. St. 228, and Overholt v. Bank, 82 id. 490. The court therefore refused to reverse the judgments for specific errors complained of, as it would serve no useful purpose, for on the facts admitted the same general result must follow another trial. Judgment of U. S. Circ. Ct., W. D. Pennsylvania, affirmed. Driesbach v. Second National Bank of Wilkesbarre. Opinion by Waite, C. J. [Decided Nov. 7, 1881.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

DECEIT

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APRIL, 1881.

WHAT NECESSARY TO MAINTAIN ACTION FOR. In an action of tort for deceit in sale of an interest in a stock of goods and business, held, that to maintain this action the plaintiff must prove that he was induced to buy the stock of goods and a share of the business in question by the fraudulent misrepresentation or concealment by the defendant of material facts, and that he suffered damage thereby. He has no cause of action, if having ample opportunity to examine the property, he saw fit to rely upon the statement of the seller concerning the value of the thing sold. Brown v. Castles, 11 Cush. 350; Mooney v. Miller, 102 Mass. 217; Parker v. Moulton, 114 id. 99. As to the goods in this case they were exposed, and plaintiff relied on his own judgment and that of a friend, and defendant made if any thing mere seller's statements, which furnish no ground for an action for damages. Gordon v. Parmelee, 2 Allen, 212; Pike v. Fay, 101 Mass. 134. Poland v. Brownell. Opinion by Colt, J. DURESS

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PARENT MAY AVOID OBLIGATION GIVEN UNDER THREATS TO IMPRISON CHILD. Defendant sought to avoid a mortgage on the ground that he was induced to execute it by threats to imprison his son. Held, a good defense. At common law, as a general rule, the defense of duress per minas must be sustained by proof of threats which create a reasonable fear of loss of life or of great bodily harm or of imprisOument of the person to whom the threats are made; and one man cannot avoid his obligation by reason of duress to another. There is a well-settled exception to this rule in the case of husband and wife, all the authorities agreeing that each may avoid a contract if it was made to relieve the other from duress. Shep. Touch. 61; Metc. Con. 28, and note; Robinson v. Gould, 11 Cush. 55, and cases cited. The question whether this exception extends to the relation of parent and child does not appear to have been expressly adjudicated. But there are many dicta of judges and statements of authors entitled to great respect, which show that from the earliest times it has been considered as the settled law that the relation of parent and child was within the exception. See Bayley v. Clare, 2 Brownl. 275; 1 Rol. Ab. 687, pl. 4-6; Bac. Max. reg. 18; Bac. Ab. Duress B.: 5 Dane Ab. 166, 375; McClintock v. Cummings, 3 McLean, 158, 159. There is no reference to any modern authorities opposed to the views of the learned judges and authors whom we have

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In an action upon the surety bond of an agent of an insurance company it appeared that the agent rendered his accounts regularly until December, 1877, when he failed to pay the whole balance due the company, and that thereafter his indebtedness increased monthly until March, 1879, when he died, owing a balance larger than the bond. The company did not give notice to the surety of the default until after this time, and the surety did not know of it. Held, that it was not the company's duty to notify the surety of the default within a reasonable time, and the failure to do so was not laches discharging the surety. There is no rule of law which makes it a duty which the creditor, under the circumstances of this case, owes to the surety either to dismiss its agent or to notify the surety of his default. It is the business of the surety to see that bis principal performs the duty which he has guaranteed, and not that of the creditor. Wright v. Simpson, 6 Ves. 734; Adams Bank v. Anthony, 18 Pick. 238; Taft v. Gifford, 13 Metc. 187. The surety is bound to inquire for himself, and cannot complain that the creditor does not notify him of the state of the accounts between him and his agent for whom the surety is liable. Mere inaction of the creditor will not discharge the surety, unless it amounts to fraud or concealment. Watertown Insurance Co. v. Simmons. Opinion by Morton, J.

TITLE TO OVERDUE STOLEN COUPONS. - The purchaser in good faith for value of overdue coupons from negotiable bonds that have been stolen acquires no title against the owner of the bonds, although the bonds were stolen before the coupons were due. Hinckler v. Merchants' National Bank. Opinion by Lord, J.

MINNESOTA SUPREME COURT ABSTRACT. SEPTEMBER, 1881.

CONSTITUTIONAL LAW- STATE CONSTITUTIONAL PROVISION FORBIDDING LEGISLATURE TO PROVIDE FOR PAYMENT OF STATE DEBT INVALID. - A constitutional amendment adopted in Minnesota November 6, 1860, provides in reference to certain bonds upon which the State was liable thus: "No law levying a tax or making other provision for the payment of interest or principal of the bonds denominated 'Minnesota State railroad bonds' shall take effect or be in force until such law shall have been submitted to a vote of the people, and adopted by a majority of the electors of the State voting on the same." Held, that the amendment is invalid under the Federal Constitution, for the reason that it impairs the obligations of those bonds. Sturges v. Crowninshield, 4 Wheat. 122; Fletcher v. Peck, 6 Cranch, 87; Green v. Biddle, 8 Wheat. 1; Merriwether v. Garrett, 102 U. S. 472; Ogden v. Saunders, 12 Wheat. 213; Von Hoffman v. City of Quincy, 4 Wall. 535; Rees v. Watertown, 19 id. 107; Railroad Co. v. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, id. 832; Murray v. Charleston, 96 U. S. 445; Chisholm v. Georgia, 2 Dall. 419; McCauly v. Brooks, 16 Cal. 11; St. Paul & Chic. R. Co. v. Brown, 24 Minn. 517; New Jersey v. Wilson, 7 Cranch, 164; State Bank of Ohio v. Knoop, 16 How. 389; Dodge v. Woolsey, 18 id. 331; McGee v. Mathis, 4 Wall. 143; City of Galena v. Amy, 5 id. 705; United States v. New Orleans, 18 Ch. Leg. News, 207; United States v. County Court, 2 Fed. Rep. 1; State v. City of Madison,

15 Wis. 33; Loan Assoc. v. Topeka, 20 Wall. 655; Planters' Bank v. Sharp, 6 How. 327. State of Minnesota ex rel Attorney General v. Young. Opinion by Gilfillan, C. J.

PRACTICE

APPLICATION FOR NEW TRIAL AFTER JUDGMENT - WHAT REQUIRED TO AUTHORIZE RELIEF. — In an application for a new trial after judgment on the ground of a mistake in the testimony of a witness, held, that the fact that the judgment had been affirmed on appeal was not an obstacle to granting the relief sought, and was important only on the question of diligence. Tucker v. White, 27 How. Pr. 97, S. C., 28 id. 78; Blydenburgh v. Johnson, 9 Abb. Pr. (N. S.) 459; Tracy v. Altmeyer, 46 N. Y. 598; Spanagel v. Dillenger, 38 Cal. 281; Johnson v. Paul, 23 Minn. 461. But it is not ground for relief in such case that the witness did not use language that conveyed to the court the fact he meant to express, the moving party having proceeded to judgment, and to a review of the judgment on appeal on the evidence as it stood after the mistake for which relief is sought was apparent. It has always been a universal requirement, founded on sound reasons, that applications for relief on the ground of newly-discovered evidence, should be made with dilligence after the new evidence was discovered, so that it could be introduced into the case at the earliest practicable stage. In Story's Eq. Pl. 423, it is said: "It seems to be a general rule that a supplemental bill for new-discovered matter should be filed as soon after the new matter is discovered as it reasonably may be. If therefore the party proceeds to a decree after the discovery of the facts upon which the new claim is founded, he will not be permitted afterward to file a supplemental bill, in the nature of a bill of review, founded on those facts; for it was his own laches not to have brought them forward at an earlier stage of the case." In Young v. Keighly, 16 Ves. Jr. 350, it is said: "I am persuaded that by refusing the application I decide against the plaintiff in a case which he might perhaps with confidence have contended that upon the evidence he was entitled to the whole money. On the other hand, it is most incumbent on the court to take care that the same subject shall not be put in a course of repeated litigation, and that with a view to.the termination of the suit, the necessity of using reasonably active diligence in the first instance should be imposed upon parties. The court must not therefore be induced by any persuasion as to the fact that the plaintiff had originally a demand which he could clearly have sustained, to break down rules established to prevent general mischief at the expense even of particular injury." And see 2 Barb. Ch. Pr. 93; 2 Daniel's Ch. Pr. 1639; Livingston v. Hubbs, 3 Johns. Ch. 124; Pendleton v. Fay, 3 Paige Ch. 204. In Robertson v. Lampson, 26 Me. 11, the court held that a misapprehension of the effect of the evidence taken, either by the party or the counsel, will furnish no sufficient ground for relief after a final decree. And such appears to be the well-settled rule. Norris v. Le Neve, 3 Aitkins, 34; Baker v. Whiting, 1 Story, 218; Jenkins v. Eldredge, 3 id. 300. In the latter case Judge Story observes that "leave is never given to file a supplemental bill in order to admit new evidence, after an interlocutory decree, where the party might by due diligence have introduced it originally into the cause, or had full and ample means of knowledge of it within his reach. It matters not that he or his solicitor or counsel did not understand the full value or importance of it, if they knew the facts or had ample means of knowledge; and a fortiori, if by the very nature and character of the matters put in issue, they were bound to search, and to make full and perfect inquiries. The authorities are very numerous and pointed to this effect." Sheffield v. Mullen. Opinion by Clark, J.

MAINE SUPREME JUDICIAL COURT AB-
STRACT.*
MARCH, 1881.

LEASE

HOW TENANCY AT WILL DETERMINED.

In Maine a tenancy at will can be determined by either party by thirty days' notice in writing for that purpose given to the other party, and not otherwise except by mutual consent. Held, that where a tenant without written notice, or the consent of the landlord, abandons the possession of premises verbally leased to him, his liability for rent continues for whatever period may elapse before the tenancy becomes terminated by written notice, or until possession of the premises may be accepted by the landlord. Redpath v. Roberts, 3 Esp. 225; Barlow v. Wainwright, 22 Vt. 88; Hall v. Western Transportation Co., 34 N. Y. 291; Wheaton's Selwyn, N. P. 521; Taylor's Land. & Ten., §§ 641, 647; 1 Wash. Real Prop.; Estates at Will. In Pugsley v. Aikin, 11 N. Y. 494, it is said, alluding to cases cited in the opinion, "The doctrine of these authorities, when analyzed, amounts to this: that when a tenancy from year to year is created by the parties, it continues until terminated by a legal notice. The estate does not depend upon a continuance of the possession; for the tenant cannot put an end to the tenancy, or his liability for rent, by withdrawing from the occupation of the premises. The notice is a condition of the contract, in the language of the authorities, arising out of it, which must be complied with, in order to absolve him from further responsibility." Wood v. Wilcox, 1 Denio, 37. Rollins v. Moody. Opinion by Peters, J.

MARITIME LAW JURISDICTION OF FEDERAL COURTS AS TO REPAIRS TO FOREIGN VESSELS. - For repairs put upon a foreign vessel (a vessel out of the State or country where owned), the remedy in admiralty ever since the creation of the Federal court, has belonged exclusively in such courts; and the later rules and opinions of the Supreme Court of the United States (although formerly otherwise) have established the policy of requiring that admiralty remedies for repairs upon domestic vessels shall belong exclusively to the same tribunals. Cases referred to: People's Ferry Co. v. Beers, 20 How. 393; Roach v. Chapman, 22 id. 129; Maguire v. Card, 21 id. 248; The Moses Tayler, 4 Wall. 411; The Hine v. Trevor, id. 555; The Belfast, 7 id. 624; The Lottawana, 21 id. 558; Terrill v. Schooner Woolsey, 10 Reporter, 619; Edwards v. Elliott, 21 Wall. 532; In re Edith, 11 Blatchf. 451; The Circassian, id. 472; Robert Fulton, 1 Paine (C. C.) 620; Dever v. The Hope, 42 Miss. 715; Southern Dry Dock Co. v. The Perry, 23 La. Ann. 30; Jackson v. Propeller Kinnie, 8 Am. Law Reg. (N. S.) 470; Murphey v. Mobile Co., 49 Ala. 436; Crawford v. Bark Reed, 42 Cal. 471; Cavender v. The Barker, 40 Mo. 235; Wyatt v. Stuckley, 29 Ind. 279; Campbell v. Sherman, 35 Wis. 103; Weston v. Morse, 40 id. 455; Steamboat General Buell v. Long, 18 Ohio St. 521; Foster v. Busteed, 100 Mass. 409; The Josephine, 39 N. Y. 19; Sheppard v. Steele, 43 N. Y. 52; Brookman v. Hamill, id. 554; Happy v. Mosher, 48 id. 313; King v. Greenway, 71 N. Y. 417; Wilson v. Lawrence, 82 id. 409. Hayford v. Cunningham. Opinion by Peters, J.

MORTGAGE -OF RAILROAD TO TRUSTEES OF PROPERTY RIGHTS TO BE ACQUIRED. A mortgage of a railroad company to trustees for the security of its bondholders of "all its right, title and interest in and to all and singular its property, real and personal, of whatsoever nature and description, now possessed or to be hereafter acquired, including its railway, equipments and appurtenances, all its rights, privileges, franchises and easements," etc., operates upon the *To appear in 72 Maine Reports.

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