defendant in gambling or betting, brought by one not the loser, is
penal and must be commenced within one year after the offence is
committed. Heals v. Thurlow, 63 â 9.
26. If by the laches of the complainant it has become doubtful
whether the other parties can be in a condition to produce the evidence
necessary to a fair presentation of the case on their part, or have been
deprived of any just advantage which they might have had if the
claim had been put forward before it became stale and antiquated, or
if they be subjected to any hardship which might have been avoided
by more prompt proceedings, although the full time may not have
elapsed which would be required to bar the remedy at law, the court
will deal with the remedy in equity as barred. Lawrence v. Mokes,
27. On the other hand when it appears that lapse of time has not,
in fact, changed the position and condition of the parties in any
important particular, and there are any peculiar circumstances entitled
to consideration as excusing the delay, the court will not refuse the
appropriate relief, though a strict application of the rules of limita-
tion might seem to require it. lb.
28. In the absence of any intimation in the answer that the respon-
dent claims the benefit of the lapse of time, the court will not interfere
to set up the bar, but will consider the respondent as waiving it, though
the facts alleged are such as to make it appear that it might be success-
fully interposed. lb.
29. Sec. 6, c. Ill, R. S., 1871, providing that when a party who had
contracted in writing to convey land dies, the other party may have
a bill for specific performance against heirs, executors, &c., if written
notice of the existence of the contract is given the executor or admin-
istrator within one year from the grant of administration, does not
apply to a case of trust evidenced by writing. Frost v. Frost,
See Equity, 137, p. 209.
VI. EXCEPTIONS AND AVOIDANCE.
(a) Pabtibs abroad.
(b) Witnessed kote.
(d) New peomise.
(f) Pbaudtjlent concealment of cause of action.
(h) Failure of service.
(a) Parties abroad.
31. The statute does not protect a defendant who resided out of
the State when the cause of action accrued, and has continued to so
352 LIMITATIONS, STATUTE OF.
reside, although he may have been within the limits of the State
many times to the knowledge of the plaintiff. Hacker v. Everett. 57
32. Under R. S., c. 81, Â§ 99, the maker of a promissory note given
in this State, who has always resided, and who still resides with his
family in the Province of New Brunswick, but who has, since the
note became due, frequently, but temporarily, and with the knowledge
of the payee, been in the payee's place of residence within this State,
with attachable property, and paid him money several times, cannot
avail himself of the statue of limitations in an action on the note by
the payee. Ih.
33. Where one of two co-promisors resides out of the State for a
sufficient length of time the right of recovery against him is not barred
although it may be against his co-promisor who has resided within the
State. Hapgoodx. Watson, 65 â 510.
(b) Witnessed note.
34. A written promise to pay the plaintiff insurance company, at a
time specified "the sum of two hundred and twenty-five dollars, and
such other sums as may arise as additional premium" on an insurance
policy, is not a promissory note within the meaning of R. S., c. 81, Â§
83, which excepts from the six years' limitations "actions on promis-
sory notes signed in the presence of an attesting witness." Lime
Rock F.& M. Ins. Co. v. Hewett, 60â407.
35. An action for money had and received, sustained by a valid
promissory note, signed in the presence of an attesting witness, is an
action upon such note, within the meaning of the section in the stat-
ute excepting such actions from the six years' limitation. Merrill v.
36. An action against the indorser of a witnessed note is within the
general six years' limitation â the indorsement not being witnessed.
Seavey v. Coffin, 64 â 224.
37. The twenty years' limitation is an absolute bar to an action
upon a witnessed promissory note. Pulsifer v. Pulsifer, 66 â 442.
38. In order that an item of credit in an open and mutual account
may take it out of the statute of limitations, it must appear that the
payment credited was made by the debtor or some one legally compe-
tent to act for him. Sawyer v. Lufkin, 58 â 429.
39. Where the two items on the debit side of an account were dated
Oct., 1860, and Nov., 1867, respectively, and upon the credit side was
an item for wood proved by plaintiff to have been delivered by defend-
ant in the fall of 1862. Held, that under R. S., 1871, c. 81, Â§ 84, the
cause of action accrued at the date of the latest item. Baker v.
40. It is not necessary that the plaintiff state both sides of the
account, strike the balance and declare for that specific sum, to render
his action one "to recover the balance due." Hagar v. Springer, 68
41. The last item of the plaintiff's account, which contained no
credit items, was dated more than six years prior to the date of the
LIMITATIONS, STATUTE OP. 353
writ. The plaintiff proved that the defendant had recovered judg-
ment against him, upon an account, some of the items of 'which were
within six years of the date of the plaintiff's writ and of the items
of his account. Held, that the action was not barred. lb.
42. A sale of a single article, with jaart payment at the time, and
subsequent partial payments within six years, constitutes a case of
"mutual dealings" and the balance due may be recovered at any time
within six years from the last payment. Benjamin v. Webster, 65 â
(d) JSfew promise.
43. No verbal acknowledgment or promise on the part of a debtor
can take the items of an account out of the statute of limitations.
Hager v. Springer, 60 â 436.
44. When a partial payment is made as part of a larger debt, and
upon an ascertained or specific sum due, and not upon a mere claim of
quantum meruit, it is prima facie evidence of a promise by the debtor
to pay the balance due, and conclusive evidence of the same unless
there is some proof to the contrary. Benjamin v. 'Webster, 65 â 170.
(f) Fraudulent concealment of cause of action.
44. If a "person summoned as a trustee, upon his examination wil-
fully and knowingly answers falsely" the perjury thereby committed,
constitutes not only a cause of action, but also a fraudulent conceal-
ment of the same within R. S., 1857, c. 81, Â§ 107. Gerry v. Dun-
45. The nominal plaintiff sold to the defendant certain of its bonds,
the defendant giving his note for the amount agreed to be paid there-
for. When the note was given, it was verbally agreed that if the
defendant did not sell the bonds or receive any compensation there-
for, his note should be cancelled and given up to him. Some time
afterward, the defendant falsely and fraudulently represented to the
plaintiff, that he had turned over the bonds to certain parties without
compensation, and thereby procured the surrender of his note with-
out payment. Held, that a suit on the note was not within the pro-
vision (R. S., 1871, 0. 81, Â§ 92), that if a person liable to an action
fraudulently conceals the cause thereof, an action may be commenced
any time within six years after the person entitled thereto discovers
that he has just cause of action. Penobscot Bailroad Company v.
46. In the same case, held, that the fraudulent procurement of the
surrender of the note by the defendant, was equivalent to the receipt
of the money due upon it, that the plaintiff might waive the tort and
maintain assumpsit for money had and received, and that in such
action the same rule of limitation was applicable as in an action for
the fraud, six years from the time of the discovery of the fraud.
Penobscot Railroad Company v. Mayo, 67 â 470.
(g) Disability to sue.
47. The statute of limitations does not begin to run against a rever-
354 LIMITATIONS, STATUTE OP â LORD'S DAY.
sioner during the continuance of the particular estate. I'oor v.
Xarrabee, 58 â 543.
(h) Failure of service.
48. The plaintiff commenced a suit upon a claim against the defend-
ant on the day before it would have become barred by the statute of
limitations, but retained the writ until the day preceding the last day
of service, and then sent it by mail to an officer in another town,
where, in the ordinary course of mail, it would arrive on the day of its
transmission. The writ did not reach the officer in season for service.
Held, that the failure of service was not the result of unavoidable
accident, but was occasioned by the negligence of the plaintiff in not
forwarding the writ at an earlier day, and that a subsequent suit for
the same cause of action (R. S., 1871, c. 81, Â§ 87) could not be main-
tained. Marble v. Hinds, 67 â 203.
49. When the first suit is for "balance of account," $75.00, and the
second is upon an account annexed, the items of which amount to
$223.75 with no credits, the second suit is not upon the same demand
as the first, so that upon failure of service in the first, the second
might be commenced within six months, to avoid the statute of limit-
1. Section 20, c. 124, of R. S., 1871, prohibiting traveling on the
Lord's day, makes no distinction between those who travel in town
and those who travel from town to town. Cratty v. Bangor, 57
2. Nor between those who travel on foot and those who travel with
horses and carriages. lb.
3. A person cannot maintain an action to recover damages for an
injury sustained in consequence of a defect in the highway, while he
was walking a short distance, on Sunday evening, in company with
several other persons, all going by invitation to the house of a friend
for the purpose of spending the evening for pleasure. lb.
4. The owner of a horse can not maintain an action, against a
person to whom the horse was let for a pleasure drive on Sunday, for
damages, arising from the negligent driving of such bailee. Pajrker
V. Latner, 60â528.
5. If some particular acts in a course of proceedings take place on
Sunday, but the transaction is not completed on that day, so as to
become effective it is not vitiated by the illegal acts. Bailey v.
Blanchard, 62 â 168.
6. Example. The scaling of logs is not complete until the scale
bill is delivered to the person to be charged thereby, and if a part of
the logs are measured and cast up and a memorandum left with such
person on Sunday, but the scale bill is not delivered until a subsequent
day, the scale is not invalid. lb.
7. It is no objection to the legality of a sale by a collector of taxes
lord's day â LOST GOODS â MAIL. 355
that one of the four days during which he kept the distress (R. S., o. 6,
Â§ 104,) was Sunday. Carville v. Additon, 62 â 459.
8. The four days' notice for a meeting for drafting jurors, R. S.,
1871, c. 106, Â§ 9, may include Sunday. State v. Wheeler, 64â532.
9. The defendant sold a horse to the plaintiff on Sunday. On the
same day the plaintiff gave a bank check for the price, and the de-
fendant deposited a bill of sale of the horse with a third person, to be
delivered when the check should be paid. The check was paid, and
the horse and bill of sale delivered on a secular day. The plaintiff
undertook to rescind the sale on account of a deceit practiced in it
by the defendant. Held, that he could not recover back the price paid
for the horse. Plaisted v. Palmer, 63â576.
10. Nor could he overcome the obstacle presented by the illegality
of the transaction, by proof of representations made on Saturday, and
the production of the papers bearing date on Monday, on the ground
that having thus made out & prima facie case,, the defendant could
not avoid his liability by proof of his own illegal act. lb.
11. A young lady, who, on the Lord's day, walks one-fourth of a
mile to her aunt's house, calls there, and invites her cousin to walk
with her, and they then proceed to walk three-fourths of a mile, sim-
ply for exercise in the open air, is not traveling in violation of the
statute (R. S., 1871, c. 124, Â§ 20), prohibiting travel on Sunday, and
may recover of the town for injuries sustained, during such walk,
from a defect in the highway. 0' Gonnell v. Lewiston, 65 â 34.
12. If money is loaned upon the Lord's day, upon the verbal or
written promise of the borrower to repay it, its repayment can not be
enforced by law. Meader v. White, 66 â 90.
Lost goods, as against all but the loser, belong to the first finder
who takes possession. Lawrence v. Buck, 62 â 275.
1. An attachment, knowingly, of a team standing in front of a post-
office, on a mail route, in charge of the mail-carrier waiting for the
mail, is a wilful obstruction and retarding of the passage of the mail,
within the meaning of the Act of Congress, of March 3, 1825, Â§ 9, and
therefore void. Harmon v. Moore, 59 â 428.
2. A mail-carrier, who is at the time engaged in carrying the United
States mail, is liable to arrest by an officer holding a warrant for his
arrest to answer for an offence against a State law, when the charge
is neither felony nor a breach of the peace, but a violation of the
liquor law. Penney v. Walker, 64 â 430.
3. One who contracts with the government to transport the mail,
may contract with, or hire another to perform the same service.
Such contract is not a violation of the IT. S. statute prohibiting the
assignment of mail contracts. Frye v. Burdict, 67 â 408.
356 MALICIOUS PROSECUTION.
4. A promise to pay a mail contractor for performing his contract
â with the post-office department is without consideration. Putnam v.
1. Peobablb cause is a question for the court only when the facts
are not disputed, and, when they are in dispute, a question for the
court whether it is proved by such facts as the jury find from the evi-
dence. Speck V. Judson, 63 â 207.
2. Evidence that the defendant was a city marshal and made the
complaint (for larceny) upon information from the owner of the
property, and from others, including the ofiicers of another city, is
sufiicient to show probable cause. Smith v. Swett, 63 â 344.
3. A minor made a contract to work six months at eighteen dollars
per month, but left at the expiration of two months and demanded
for his labor thirty-six dollars. The employer tendered in payment
seventeen dollars, which was refused and a suit was commenced. In
that suit S. W. permitted his name to be used as prochein ami, but
in the writ the emjoloyer was required to answer to S. W., next
friend to the minor. At the trial the sufiioiency of the tender was
established and judgment rendered for the amount tendered without
costs, while the employer recovered costs against the minor. In an
action for malicious prosecution by the employer against S. W., held,
that if the first action be regarded as brought by the minor, there
was no want of probable cause ; that S. W. was the plaintiff, and
not the minor, and should have been non-suited, yet as it did not
appear that he knew that the suit was so commenced, he could not
be held liable for a malicious prosecution. Soule v. Winslow, 64 â
4. Malice. Evidence that the defendant allowed his name to be
used under the professional advice of a lawyer, that it was necessary
in order that the minor might collect his debt, is admissible as tend-
ing to negative malice. Soule v. Winslow, 66 â 447.
5. If the suit was erroneously commenced it was not the fault of
the defendant. lb.
6. The fact that the defendant recovered no more than the the ten-
der does not indicate malice ; nor, does the fact that judgment for the
amount of the tender was erroneous, when no exceptions were taken.
7. The action for malicious prosecution must be supported by want
of probable cause, and by malice conjoined. Soule v. Winslow, 64 â
8. Malice in fact is to be found by the jury from the evidence. It
may be inferred from want of probable cause. Pullen v. Olidden,
9. Whatever is done wilfully and purposely, if it be at the same
time unlawful, and that known to the party, is in legal contemplation
10. The plaintiff is not required to prove express malice, in the pop-
MANDAMUS AND PROHIBITION. 357
ular signification of the term, as that the defendant was prompted by
malevolence, or acted from motives of ill will, hatred, or resentment
toward the plaintiff. Ih.
11. In an action for malicious prosecution either party has a right,
upon request therefor, to a direct and specific ruling as to whether
the facts proved or admitted taken together do or do not show a
want of probable cause. Pullen v. Qlidden, 68 â 559.
12. Evidence. It is competent for the defendant to prove, as hav-
ing some bearing upon the questions of want of probable cause and
malice in fact, that prior to the' prosecution complained of, it was the
common report in the n-eighborhood of the parties that the plaintiff
had committed the crime for which he was prosecuted. lb.
13. Such common report is not of itself suificient to show probable
cause, but in connection with other facts or information that came to
the knowledge of the defendant before he commenced proceedings, it
may tend to show it and to negative malice, lb.
14. The unexplained neglect of the plaintiff, to appear or testify at
the trial of his case is a matter competent for the consideration of the
jury upon the question of want of probable cause. lb.
15. Not only the facts which the defendant knew, but the informa-
tion he had received, in fine, the circumstances under which he acted,
even, his own consultations with counsel learned in the law, if he took
the advice of such, are competent evidence upon these questions of
probable cause and malice in fact. lb.
MANDAMUS AND PROHIBITION.
1. Whether mandamus would be a proper remedy for a railroad
company to compel the issuing of the bonds of a town, in case the
conditions of a vote had been complied with by the railroad com-
pany, qumre. P- d O. JR. B. Co. v. Hartford, 58â23.
2. The writ of mandamus should expressly state the duty required
of the defendant. Hartshorn v. Ellsworth, 60 â 276.
3. A mandate requiring the defendant to assess a school district tax
"according to law," being a requirement to look beyond the writ, is
erroneous. 1 b.
4. Where, on a petition for mandamus, by the terms of the exceptions,
"if the petitioners were not entitled to have the writ as prayed for,"
the petition was to be dismissed, and the prayer was that the defend-
ants should "assess said district tax according to law, to wit, on the
personal estate within the district of non-residents of the district,"
and the defendants could not lawfully assess such property unless such
"owners should occupy," as is provided in the first clause of R. S.,
c. 6, Â§ 14, a mandate cannot legally issue as prayed for. lb.
5. By virtue of Public Laws of 1872, c. 8, Â§ 3, the previous sections
thereof (changing the place of holding the supreme judicial court
from Norridgewock to Skowhegan, and authorizing the county com-
missioners to erect a court-house in the latter place), were to be void,
unless the town or citizens of Skowhegan should, on or before March
358 MANDAMUS AND PROHIBITION â MANSLATTGHTEE.
1, 1872, -without expense to the county, provide suitable room and
other accommodations for the court and officers, to the acceptance of
a majority of the county commissioners ; and secure to the county
the use thereof for the purposes, and during the time therein specified,
and the conveyance of a suitable site in Skowhegan, for the county
buildings. By Â§ 4, when such room and accommodations had been
provided, the county commissioners should cause the records in all
the county offices, with the records and files of all the courts, to be
removed to the places prepared in Skowhegan, and cause notice of
the facts to be published as therein directed. On petition praying
that a writ of prohibition may issue against the county commission-
ers, prohibiting them from ordering such removal or publishing such
notice ; held, (1) that the county attorney had no right to institute
this process in his official capacity, or in behalf of the county ; and,
(2) that the town of Skowhegan, should have been made a party.
'Walton V. Greenwood, 60 â 356.
5. Also held, that exceptions do not lie to revise the decision of
the presiding judge upon the question whether the facts alleged in
the information as the foundation for the writ, are substantially true
as alleged. Ih.
7. The writ of mandamus is not a writ of right, but is issuable at
the discretion of the court when equity requires it. Selcher v. Treat,
8. When an inferior court has discretion in relation to proceedings
before it, and proceeds to exercise it, the court will not control that
discretion by mandamus. Davis v. Co. Com., 63 â 396.
9. If, however, the discretion of the court below is exercised with
manifest injustice, the court is, probably, not precluded from com-
manding its due exercise. lb.
10. Mandamus is the appropriate remedy to compel a railroad com-
pany to perform the public duties imposed upon it by its charter.
B. It. Commissioners v. P. & 0. C. R. B. Co., 63â269.
11. Where county commissioners are authorized by an act of the
Legislature to change the form of the indexes in the registry of deeds
they have the right to employ a proper person to perfonn the work, and
to use a portion of the office of the register of deeds if not inconsis-
tent with a proper discharge of the duties of his office by the register,
and if this right is denied by the register, and the commissioners refus-
ed access to his office, they may enforce their rights by mandamus.
Hawes v. White, 66â305.
1. No mere provocation is sufficient to justify a homicide. State v.
Murphy, 61 â 56.
2. An instruction that if the respondent "in the heat of blood and
upon sufficient provocation," threw the deceased down stairs, the
offence was manslaughter, where subsequent instructions showed that
by "sufficient" was meant "great and sudden," was hdd, not to afford
him cause for exception. Ih.
MANURE â MARKET OVERT â MARRIAGE. 359
3. The naked negligent omission of a known duty, when it causes
or hastens the death of a person, constitutes manslaughter. State v.
4. Upon a charge of manslaughter by the negligent omission of a
known duty, a criminal intent on the part of the defendant need not
be alleged or proved. Ih.
5. An indictment for manslaughter of the prisoner's insane wife,
alleging the relation he sustained to the deceased, his duty and ability
to provide for her necessities, her incapacity to do so, and that he
feloniously and wilfully refused and neglected to provide necessary
clothing and protection for her from the cold during a certain number
of days during the winter, in consequence of which she sickened and
died, and also alleging the manslaughter of the wife, in the manner
and by the means aforesaid, is sufBcient under the practice requiring
the manner and means by which the crime was accomplished to be
set forth in detail, although containing no formal allegation that the
condition and necessities of the wife were known to the prisoner. Ih.
See EviDBNCE, 78, p. 228.
See FixTTJKE, or Chase v. Wingate, 68 â 204. Norton v. Craig,
In this country markets overt, as established in England, have
never been recognized as legal institutions. Coombs v. Gordon,
1. Testimony of the particeps criminis that she was "married two
years ago by C. L., at his house ;" it not appearing that C. L. pro-
fessed to be "a justice of the peace or an ordained or licensed minis-
ter of the gospel," or that the marriage was "consummated with a
full belief on the part of either of the persons married, that they
were lawfully married," is not sufficient evidence of a marriage in an
indictment for adultery. State v. JBowe, 61 â 171.
2. In a civU action, where evidence of a marriage became material,
and in the record of the intention of marriage, the initial of the mid-