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, â– 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> â– 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.