self, were such newly discovered evidence as could not have been
presented at the trial by the exercise of due diligence. Ih.
15. When a report of the evidence introduced at the trial was not
produced so that the court could determine whether or not the newly
discovered evidence would be likely to change the result, a new trial
was refused. Hagar v. New England Ins. Co., 63 â 502.
16. Where the newly discovered evidence was communicated to
the losing party during the argument of the counsel for the adverse
party, but no attempt was made to bring it before the referees by
whom the case was heard, a new trial was not granted. lb.
III. ERRORS OF THE JURY.
(a) Veediot against law ob bvidbncb.
(b) Excessive damages.
(c) Misconduct of jtjkors.
(a) Verdict against law or evidence.
17. By R. S., c. 82, Â§ 83, when a motion is made to have a verdict set
aside as being aga'nst law or evidence, a report of the whole evidence
shall be signed by the presiding judge. A report, certified by the
counsel to be a correct report of all the material evidence in the case,
is not sufiicient. Bartlett v. Lewis, 58 â 350.
18. A motion founded on any alleged cause not shown by the evi-
dence reported, accompanied by depositions annexed, and not by tes-
timony "heard and reported by the judge," is not in compliance with
the second clause of Â§ 33. li.
19. The verdict and the nature and grounds of the action and of
the defense should appear in a motion to have a verdict set aside as
being against law or evidence. 1 h.
20. A verdict, founded upon conflicting testimony, will not be set
aside as being against the weight of evidence, unless it be clearly
wrong. Staples v. Wellington, 58 â 458. Weeks v. Parsonsfldd,
65â285. Maynell v. Sullivan, 67â314. Hunter v. Heath, 67â507.
21. A verdict which had no other support than the testimony of
one deeply interested witness, in opposition to that of five intelligent,
disinterested, and unimpeached witnesses, was set aside as against the
weight of evidence. Pollard v. Grand Trunk Railway., 62 â 93.
NEW TRIAL. 393
22. When the question presented to the jury is purely one of fact,
the court will not set aside the verdict unless it seems certain that
injustice has been done by reason of some bias on the part of the jury,
or a total misapprehension of the case. If the evidence is conflicting
upon vital points the preponderance against the verdict must be such
as to amount to a moral certainty that the jurv erred. Mnfield v. Bus-
23. In the absence of any special finding showing the ground upon
â which the jury based their verdict, the court will not set it aside as
against the evidence upon one branch of the case, when the evidence
is sufficient to sustain it upon another. Jennings v. Wayne, 63 â 468.
24. A motion for a new trial, on the ground that the verdict is
against evidence, cannot be sustained without a full report of all the
evidence in the case. The losing party cannot base such a motion
upon a report of portions of the testimony produced by his opponent
tending to show that the verdict was wrong, because such portions
may have been effectually controlled or explained by that which is
not reported. Cyr v. Dufour, 68 â 492.
(b) Excessive damages.
25. When, in addition to the fact that a verdict is, in the opinion
of the court, against the weight of evidence, it is certain that the
damages were assessed upon a wrong principle, the court will not
attempt to correct the error, but will in its discretion, set the verdict
aside. Cyr v. Dufour, 62 â 20.
26. In an action upon the case, for injuries resulting in death, a
verdict for five thousand dollars was not set aside because of exces-
sive damages. Hobbs v. Eastern R. R. Co., 66 â 573.
27. A verdict will not be set aside on the ground that the dam-
ages are excessive unless they are clearly so. Butler v. Bangor, 67
â385. See Damages, p. 148.
(c) Misconduct of jurors.
28. Upon cross-examination of the defendant it appeared, that he
being in attendance upon the court as a juror as well as a party, con-
versed with several of his associates in relation to his case, prior to its
coming on for trial. The plaintiff did not then choose to insist upon
the objection, but went on and closed the trial, when a verdict was
found against him. Held, that the objection was waived. Hussey v.
29. A motion for a new trial on the ground of misconduct of the
jury cannot be sustained by the testimony of the jurors themselves as
to what took place in the jury room during their deliberations. Gree-
ley V. Mansur, 64 â 211. State v. Pihe, 65 â 111.
See JuET, p. 331.
IV. EEKOKS OF THE COUET.
30. Any thing in the remarks or instructions of the presiding
judge, which does not constitute a valid ground of exception, cannot
be made available under a motion to set aside the verdict, unless it
appears upon a report of the whole case that the verdict was wrong,
and that the suggestions of the judge may have misled the jury.
Stephenson v. Thayer, 63â143.
394 NONSUIT â NOTICE â NUISANCE.
31. A new trial will not be granted, because the presiding judge, on
being informed by the jury that they were unable to agree, called
them into court, and, in the absence of the defendant's counsel, read
to them as instructions, a portion of the opinion of the court of
another State, upon the duty of jurors to agree upon a verdict; it
not appearing that the respondent was prejudiced thereby. State v.
See Exceptions, p. 241.
1. When, by the plaintiff's own showing, the promise upon which
he d.eclares appears to have been made upon an illegal consideration,
a nonsuit may properly be ordered. Merrill v. Goodenow, 65 â 178.
See ExcBPTioifS, 35, p. 244.
Negligence, 39, p. 389.
1. A notice required by statute to be by "letter or otherwise" may
be given verbally. Sawyer v. Naples, 66 â 453.
2. A notice required by statute to be given the municipal oiBcers
of a town is sufficient if given to one of them. lb.
See Certioeaei, 6, p. 86. Deed, p. 159. Equity, 57, p. 201. Exe-
CTJTioiir, 28, 36, 41, p. 254. Executoe and Administrator, 26, 31,
p. 258. Insane Hospital, p. 298. Insurance, 41, et. seq., p. 305.
Landlord and Tenant, 5, et seq.y p. 334. Lien, p. 343. Mort-
gage, 5, p. 370. Officer, 44. Paupbe, 39, et seq. Plantation,
5, 10, 12. Quo Waeeanto. Registry of Instruments. School
House, 1. Way, 31, 143.
II. LIQUOR NUISANCE, ETC.
1. Under R. S., c. 17, Â§ 12, the temporary location of a travelling
circus in its vicinity can not convert a reservoir in process of con-
struction in a vacant lot into a nuisance either public or private.
Morgan v. Sallowell, 57 â 375.
2. Under R. S., 1871,. c. 14, Â§ 16, the owner of the land is liable for
the expenses of removing a nuisance therefrom, although a tenant for
years caused the nuisance and continued to be the occupant of the
premises under his lease when the nuisance was removed. Bangor
V. Bowe, 57â436.
3. Wat. Want of action by the county commissioners, in deter-
mining the manner of the crossing of a railroad and highway, alone,
constitutes the nuisance mentioned in R. S., 1857, c. 51, Â§ 13. State
V. Portland, Saco & Portsmouth R. P. Co., 58â46.
4. If they have determined the manner of the crossing it is not a
5. In the trial of a complaint for a nuisance, by obstructing a town
way by a fence, the instruction, that if the jury found there was at
the time of the acts charged, and had been for more than twenty
years before, a road or way open to the whole public without limita-
tion or restriction ; and it was in fact so used by travelers on foot or
with horses and carriages during all that time ; and was recognized as
such public way by the town, by expending money on it for repairs
during all those years,^ â then it was such a highway, public road, or
way, as the law would regard as sufficiently proved to sustain the
complaint on this point, is unexceptionable. State v. Bunher, 59 â 366.
6. Abatement. Undoubtedly, in certain cases and under certain
limitations, nuisances may be abated by those specially aggrieved
thereby. Brightman v. Bristol, 65â426.
7. But when the subject matter of complaint is lawful ^e?- se, and
the nuisance consists not in the business itself, but in the unsuitable
place in which it is carried on, its abatement must be by the judg-
ment of the court, and by the officers of the law carrying into effect
such judgment. lb.
8. Only so much must be abated as constitutes the nuisance. If it
consists in the use of such building, such use must be prohibited and
punished. If the location is what constitutes the nuisance it must be
9. A smith's forge, a tobacco mill, a manufactory for spirits of sul-
phur, a distillery, a slaughter house, a livery stable, a melting house,
a gaming house or grog shop, a powder magazine, a tallow factory, a
tannery, a blacksmith shop and a tomb, have been delared nuisances,
because of their unsuitable location ; but this will not justify a riotous
mob in destroying them. lb.
10. In an action against a town to recover three-fourths of the value
of a porgy oil factory destroyed by a mob (R. 8., 1871, c. 123, Â§ 8),
the persons causing its destruction being unknown, evidence that
strong and offensive odors arose from the factory, and that it was a
public nuisance is not admissible. lb. .
11. A STATIONERY STEAM ENGINE, usod without a liceusc from the
municipal officers of the town is declared by statute (R. S., 1871, c.
17, Â§ 19,) to be a nuisance, but this does not justify a riotous mob in
destroying it, nor is it a defense to an action against the town in
which it is situated for three-fourths of the damage caused by its
destruction by such mob. lb.
II. LIQUOR NUISANCE, ETC.
12. Under the statute making "places used as houses of ill fame,"
"resorted to for the illegal sale or keeping of intoxicating liquors,"
nuisances, an indictment setting out only one of the causes constitut-
ing the nuisance is valid. State v. Lang^ 63 â 215.
13. An allegation that the place was "used for" the Olegal sale of
liquors, instead of "was resorted to," is sufficient. Ih.
14. In such an indictment it is not necessary that the place should
be particularly described. Ih.
15. Teial Justices have no jurisdiction in case of a nuisance, where
the punishment may be by fine of one thousand dollars, except to
bind over the defendant. State v. Pierre, 65 â 293.
16. CiDBE AND WiNB. Under the act of 1873, c. 152, one may be
indicted for a nuisance for selling cider and wine, made from fruit
grown in this State, for tippling purposes, if the jury find they are
intoxicating liquors. State v. Page, 66 â 418.
17. Owner of Building. Under the statute providing that if any
person "knowingly permits" any building owned by him, or under
his control to be used for the illegal sale or keeping of intoxicating
liquors, he shall be deemed guilty of keeping a nuisance, it is neces-
sary to constitute the offense that the owner shall not only have
knowledge of such illegal sale or keeping, but must also consent to or
permit, the same. State v. Stafford, 67 â 125.
18. Locality. Upon an indictment charging the respondent with
keeping a nuisance on ,the "plains," a well-known locality in a town,
evidence that the respondent kept a nuisance on a street in the same
town, one-third of a mile distant from the "plains," is not admissible.
State V. Lashus, 67 â 564.
19. Locality is an essential element of the offence denominated a
common nuisance. Ih.
See House op III Fame, p. 284.
20. An injunction will not be granted to stay or prevent a nuisance
under R. S., c. 17, unless an indictment, complaint, or action for the
nuisance be pending in court. Varney v. Pope, 60 â 192.
21. An injunction will not be granted, under the general equity
powers of the court, to restrain a nuisance, unless the complainant's
rights have been settled in a suit at law, or long enjoyed without in-
terruption, or unless there is imminent danger that the threatened
injury will result in irreparable damage. lb.
22. The plaintiff had contracted and was ready to carry sand by
boats down a navigable stream, but was prevented from doing so by
the erection, by the defendant, of a boom across the river. Held,
that he could maintain an action for this public nuisance, for which
he suffered special injury. Dudley v. Kennedy, 63 â 465.
23. If a mill owner casts saw dust, edgings, or other waste stuff
from his mill into the stream, leaving the same to be floated away,
without care or oversight, and if such drift stuff is carried by the ac-
tion of the water upon the plaintiff's land, and deposited there, it is a
private and special nuisance, for the consequences of which the plain-
tiff may maintain an action. Washburn v. Oilman, 64 â 163.
24. The fact that the drift stuff was cast upon the plaintiff's land
NUISANCE â ODD PBLLOWS' LODGE â OPPICEE. 397
by a great freshet, does not exonerate the defendant from liability
for the consequences of his own negligence ; nor does the fact that
part of the drift cast upon the plaintiff's land was thrown into the
stream by other mill owners. Jb.
25. It is well settled that one who creates a nuisance upon another's
land, is under a legal obligation to remove it, and successive actions
may be maintained until he is compelled to do so. Cumberland cfc
Oxford Canal Co. v. Hitchinga, 65 â 140.
26. In such case the plaintiff can recover such damages only as he
has sustained when the suit was commenced. lb.
27. An individual can not maintain a civil action for a public nuis-
ance, by reason of an injury which he suffers in common with the
public. Franklin Wharf Co. v. Portland, 67 â 46.
28. But if by reason of a public nuisance, an individual sustains
an injury, differing in kind and not in degree from that which the
â general public sustains from the same cause, he may recover damages
in a private suit for such peculiar injury. lb.
29. When a sewer is laid out and constructed, opening into the
public docks of a city, it is the duty of the city to cause such docks
to be cleared of the refuse matter deposited therein, and if it neglects
to do this within a reasonable time, and if such deposits cause dam-
age to the owners of the wharves, by diminishing the depth of the
water about them, and thereby impairing their use for the purposes
for which they were constructed and have been used, causing incon-
venience and injury not common to the public, they become a nuis-
ance and the city is liable therefor to the wharf owners. lb.
30. But if the injuiy to the wharf owners is merely an injury to
the right of navigation, in common with the public, the city will not
be liable to a civil suit. lb.
See Ante, 6, 7, 8, 9 and 10.
Case, p. 83.
ODD FELLOWS' LODGE.
1. Neither an odd fellows' lodge nor its trustee acting for it, will
be allowed to convey its property, receive and retain the considera-
tion, and then repudiate the conveyance upon the sole ground, that
in making it, they acted in violation of their own constitution and by-
laws. Sawyer v. Skowhegan, 57 â 500.
II. OATH OF OFFICE,
ni. AUTHORITY AND DUTY.
(a) Sebvice of precepts.
(b) In othek eespbcts.
(b) As TBESPASSEB AB INITIO.
1. De Facto. The question of the validity of the election of select-
men who issued a warrant for a town meeting, during their official
term, is not open to the town when it appears that they were officers
de facto, and that the meeting was otherwise legal. flushing v.
2. Where the charter of a city vested the powers of selectmen in
the mayor and aldermen, and provided that all elections of officers
should be by ballot by the aldermen and common council in joint con-
vention, it was held, that a concurrent vote of the two boards that the
mayor and aldermen and city clerk be overseers of the poor, followed
by their action in that capacity was sufficient to constitute them, includ-
ing the clerk, overseers, de facto. Belfast v. Morrill, 65-^581.
3. Where one of a boaid of officers is not legally elected or quali-
fied, but is an officer de facto, he may legally join in the action of the
board, with those who are officers, de jure. lb. See Post, 25.
4. Compatibility of Offices. An office holder by accepting and
qualifying for an office incompatible with one then held by him,
thereby vacates it. Stubbs v. Lee, 64 â 195.
5. One who is appointed and sworn as deputy sheriff vacates the
office of trial justice previously held by him. Ih.
6. What is not an Office. An agent for the sale of intoxicat-
ing liquors in a town or city is not an officer. His "situation" is an
employment not an office. State v. Weeks, 67 â 60.
7. Compensation. When the salary of a public officer is dimin-
ished during his term of office, the diminution is prospective only.
Farwell v. Rockland, 62 â 296.
8. Public offices, established by the legislature, are mere agencies
for the benefit of the people, not contracts on their part with the
office holder for his benefit. lb.
9. Where the ordinances of a city provide for an annual salary for
the city physician, to be determined by the city council, and also that
in cases of infectious diseases he shall receive such additional com-
pensation as the city council shall deem just, the last provision refers
not only to infectious diseases among the paupers of the city, but for
attendance upon all oases of infectious diseases for the city. Preble
V. Bangor, 64 â 115.
10. The representative of a city in the legislature, or the city solic-
itor, is under no official obligation to aid in the adjustment of the
claims of the city against the State. For services in this behalf he is
entitled to just compensation. Calais v. Whidden, 64 â 249.
11. The town treasurer as such has no authority to agree upon the
rate of compensation for extra official services. lb.
12. The provision of statute (R. S., 1871, c. 80, Â§ 52) that no officer
shall "draw any writ, plaint, declaration, citation, process or plea for
any other person," relates to civil proceedings, and does not prohibit
sheriffs or their deputies from di-awing complaints under the liquor
law to be sworn to by other persons. State v. Mc Cann, 67 â 372.
II. OATH OF OFFICE.
13. Assessors, auditors and referees, appointed by the court, are
not required to be sworn ; nor is a commissioner to take evidence.
Penobscot Bar v. Kimball, 64 â 140.
14. Where the court, jury, or commissioners, or any other body or
persons are authorized to act judicially, and their appointment or
selection is without the assent of the parties whose rights they are to
determine, the law usually requires an oath. Lewis v. Foster, 65 â
15. A commissioner appointed by the court to take the disclosure of
a defendant, need not be sworn. lb.
16. The record, "Oxford, ss., March 3, 1862, personally appeared
William Woodsum, and took the oath necessary to qualify him to
discharge the duties of clerk of the town of Peru for the ensuing
year, according to law, before me, Samuel Holmes, moderator. A
true copy of certificate, William Woodsum, town clerk," is sufficient
evidence of a compliance with R. S., c. 3, Â§ 17 ; and that the oath
prescribed in Â§ 14 was administered. Greene v. Lunt, 58 â 518.
17. If the persons chosen selectmen make oath that they will faith-
fully and impartially discharge the duties of selectmen and assessors
to the best of their abilities and according to law, it is a compliance
with the statute. Gould v. Monroe, 61 â 544.
18. In the absence of record evidence, the fact that a tovsm officer
was legally sworn may be shown by parol. Farnsworth Go. v. Rand,
19. The clear and distinct testimony of the person administering, or
of the person taking the oath, appearing to proceed from a distinct
recollection of the fact, can not be said to be insufficient to establish
III. AUTHORITY AND DUTY.
(a) Service of phbcepts.
(b) lU OTHEB RESPECTS.
(a) Service of precepts.
20. The word party, as used in R. S., 1871, c. 80, Â§ 42, providing
that coroners shall serve all writs in which a sheriff or deputy is a
party, means the person whose name is expressly mentioned in the
record. Douglass v. Gardiner, 63 â 463.
21. Therefore, a replevin writ may be served by a deputy sheriff
upon one in whose custody another deputy of the same sheriff has
placed the goods replevied for safe keeping, after having attached
them as the goods of a person other than the plaintiff in replevin. lb.
22. In the statute authorizing truant officers to make complaints in
certain cases, and execute the judgments of the court (R. S., 1871, c.
11, Â§ 14), the word judgments is not limited to the sentence, or final
judgment, and the officer may serve the warrant for the arrest of the
accused, as -well as the mittimus after his conviction. O'Malia v.
23. Money collected by an officer on legal process, while it remains
in his hands, is to be regarded as in custodia legis, and not the sub-
ject of levy or attachment in any form. Hardy v. Tilton, 68 â 195.
24. An officer, who has collected money on an execution, can not
apply it in satisfaction of another execution against the party for
whom it was collected, both executions being in the officer's hands for
collection at the same time. lb.
25. It is not a valid objection to the service of a citation in a poor
debtor's disclosure that the constable who made the service had not
given bond if he was an officer de facto, the acts of an officer de facto,
so far as third persons are concerned, being as valid as the acts of an
officer de jure. JBKss v. Day, 68 â 201'.
26. An officer can not sell property against which an execution in
his hands does not run. As to such property he has no execution.
Mayford v. Everett, 68â505.
See PooE Debtor, 1.
(b) In other respects.
27. If a deputy sheriff, after receiving a bond of indemnity,
attaches, as the property of the . debtor, goods which are claimed by
another and sells them upon the writ, and the claimant recovers judg-
ment against the sheriff for the value of the goods in an action in
which he alleges himself to be their owner, the deputy may maintain
an action upon the agreement given him, although in the sale of the
goods he does not strictly conform to the requirements of the statute,
unless it is expressly shown that his irregularity in the sale was the
ground for the recovery of the judgment by the claimant against the
sheriff. Grossman v. Owen, 62 â 528.
28. If property seized by an officer is taken from him by a writ of
replevin, and no further service is made upon him, nor is the writ
returned, his remedy is in trespass or trover. Adams v. Mc Olinchy,
29. Ordinarily, a special action on the case, setting forth the par-
ticulars which constitute the default or misfeasance, or in some cases
an action of debt, is the proper remedy against a public officer for
neglect or misbehavior in office. School District in Sanford v.
30. If an officer, after attaching personal property, delivers the
same to a third party upon his own responsibility, and for his own
convenience, and takes a receipt therefor, such receipt can be dis-
charged by the officer alone, so long as his liability for the property
attached continues, either to creditor or debtor. Torrey v. Otis, 67
31. In an action by the officer upon such receipt, evidence that a
full discharge had been given the receiptor by the judgment creditor
is not admissible in evidence, and does not constitute a defense. lb.
32. It is not necessary that an officer's return of a sale of an equity
of redeeming land from a mortgage should state the day or hour, or
particular place of sale which was mentioned in the notice, if it appear
that the time required by law to intervene between the notice and
sale did intervene ; if it states the fact that he gave notice of the
time and place of the sale. Townsend v. Meader, 58 â 288.
33. The return of the oiEcer as to the time of serving the writ upon
a trustee, can not be contradicted by the disclosure of such trustee.