51. An ofiicer may amend his returns so as to state his fees at four
cents a mile each way instead of eight cents one way. Carville v.
Additon, 62—459.
52. In scire facias against a trustee the officer may be allowed to
amend his return on the execution by certifying that he kept it to a
date later than the date named in his first return. Storer v. Haynes,
67—420.
53. Amendments of an officer's return are permissible, when the
party to be affected, who has no rights to be affected resembling those
of a stranger thereto, on looking at the return as it was, must have
understood that the proceedings of the officer had been substan-
tially what the amended return shows them to have been. Knight v.
Taylor, 67—591.
54. While an amendment by an officer can not affect the intervening
rights of third parties, such parties can not make use of the officer's
mistake to cause a forfeiture of another's rights, which can be pro-
tected by the amendment. Millihen v. Bailey, 61 — 316.
55. An intervening assignee of a mortgage can not complain that an
amendment of an officer's return of a sale of the equity of redemption
makes it good so that it relates to the date of the original attachment,
when the return as unamended would not convey to the purchaser
any right to redeem, because it can make no difference to the assignee
who redeems the mortgage. Ih.
56. If an officer returns an execution with a certificate of a de-
mand upon the trustee, but without any statement of a search for
goods of the principal debtor, he may, after the return day, amend
his return by stating that he made such search. "Woods v. Cooke,
61—215.
V. EFFECT.
57. An amendment of the officer's return upon a replevin writ,
made after final judgment in the suit, can not affect that judgment,
as long as it is unreversed. Tuck v. Moses, 58 — 461.
See Pleading, 95.
Practice, 10.
Peobate Cotjet, 28, 85.
Vbedict, 10.
24 ANIMALS AT LARGE.
ANIMALS AT LARGE.
1. It is sufficient to constitute the o-vmer of animals their keeper,
in a given case, that he possesses the means upon which a person in
the exercise of ordinary care, judgment, and intelligence, would rely-
to control their actions. Jennings v. Wayne, 63 — 468.
2. Whether or not the animals are thus in charge, is a question of
fact to be determined by the jury, under proper directions. Ih.
3. Such charge does not in all cases imply direct physical power to
control the actions of the animals. Ih.
4. The plaintiff's bull broke and entered the barn of the defend-
ant, who immediately, not knowing who was the owner, posted no-
tices thereof in three public places, and advertised the same in a daily
paper. Within ten days afterward, the plaintiff saw the bull, and
after ten days, the defendant offered to deliver the buU to plaintiff on
proof of property, payment of five dollars for keeping, and indemni-
ty against the claim of any other owner ; but plaintiff did hot comply
with the conditions. In thirty days, plaintiff demanded the bull. In
replevin, held, that defendant had no right to possession of the bull,
or any lien upon him, which would authorize a judgment in his favor
for expense of keeping, or for his damages. Mosher v. Jewett,
59^53.
5. In a town in which there is no pound, or pound keeper, a person
may legally detain in his custody, an animal taken upon his premises
damage feasant, and has a lien upon such animal for expenses neces-
sarily incurred in taking suitable care of it. Mosher v. Jewett, 63 — 84.
ANNUITY.
1. An annuity to continue "during the natural lives of" the person
to whom it is to be paid "and his present wife," does not cease upon
the death of one of them. Merrill v. Bickford, 65 — 118.
2. An annuity payable to a husband during the natural lives of
himself and wife, does not, upon the death of the husband, become
payable to the wife, but becomes assets in the hands of the husband's
administrator, and can be given to the widow, only by a decree of the
judge of probate. Ih.
See Devise and Legacy, 48.
APPEAL.
1. Fbom Teial Justices. No appeal lies from the judgment of a
trial justice, rendered against a defendant by his express consent.
Thompson v. Perkins, 57 — 290.
2. In a criminal case, within the jurisdiction of a municipal court,
the respondent, by going to trial, solely upon a plea of misnomer,
waives his right to plead anew in the appellate court, and have a trial
upon the merits. State v. Corkrey, 64—521.
APPEAL. 25
3. Upon a plea in abatement, alleging interest in tlie magistrate
before whom an action is returned, and a traverse by the plaintiff, i£
the magistrate decides the issue in favor of the plaintiff, and an
appeal taken, the burden is upon the defendant in the appellate court,
to show the existence of the alleged interest. Bellows v. Murray,
66—199.
See Rbcognizancb.
4. Peobate. Upon an appeal from a decree of a judge of probate
allowing a will, only those questions are open for consideration which
are assigned in the reasons for appeal. Barnes v. Barnes, 66 — 286.
See Pkactice, 85.
Peobate Cotjet.
5. School Disteict. At a legal meeting of a school district, for
the purpose of locating a school house, the clerk cannot prevent an
appeal to the municipal officers of the town, by refusing to record the
application, if proof of the fact and subsequent legal proceedings can
be made aliunde. Marhle v. McKenney, 60 — 332.
6. If the location made by the municipal officers, from any cause,
is not valid, the location made by the district from which the appeal
was taken, and which was vacated by the appeal, is not revived.
Norton v. Perry, 65 — 183.
See School House, 1, 14.
7. Wat. An appeal lies from the decision of the county commis-
sioners, rendered on a petition setting out an unreasonable refusal of
a town to accept a town- way, duly laid out from land under improve-
ment therein to a town-way, by its selectmen on the petition of an
owner of such land. Byron appt., 57 — 340.
8. The city council of Portland, under § 9 of their charter, laid
out a street across petitioner's land, for which they awarded no dam-
ages, and from their adjudication as to damages, an appeal was taken.
After the appeal a portion of the street was discontinued. Held, That
the petitioner may abandon the appeal with costs, or pursue it and
have the damages assessed for so much of the street as is not discon-
tinued. Curtis V. Portland, 60 — 55.
9. When the statute provides for an appeal from the decision of
county commissioners, to be taken before the next session of the
appellate court, an appeal taken on the first day of the session, and
after it has commenced, is too late. "Webster v. County Commission-
ers, 64—436.
10. On an appeal from a decision of county commissioners, laying
out a highway, when a committee has been appointed, one of whom
resigns, it is the duty of the appellant to apply to the court to fill the
vacancy at the term when it occurs. Bdfast v. County Commis-
sioners, 67 — 530.
See Statute, 21.
Waives, 26.
Way.
26 AltBITEATION.
APPURTEITAlsrCE.
The plaintiffs were tenants at will, under the defendants, of a lot
of land, with a store upon it. They were themselves, owners of an-
other building (personal property), situated on the same land, affixed
to the rear of the store in such a manner that the two buildings could
be used as one. They mortgaged their own building to the defend-
ant, describing it as personal property, and as a "building and appur-
tenances." Held, That the word appurtenances did not carry with
the title of the building, what rights the plaintiffs had as tenants at
wLU of the store adjoining. Goodenow v. Allen, 68 — 308.
See Easement, 4.
Wareant, 5.
ARBITRATION.
I. SUBMISSION.
(a) Under the Statute.
(b) At Common Law.
(c) Pakol.
(d) Effect.
II. POWERS AND DUTIES OF AEBITRATOES. ,
III. AWARD.
IV. RETURN OP THE AWARD TO COURT AND PROCEEDINGS
THEREON.
V. REMEDIES.
I. SUBMISSION.
(a) Under the Statute.
1. The plaintiff claimed to be a member of a firm, consisting of
himself, the defendant, and others ; that the profits earned had from
time to time been apportioned and paid over by the defendant, as
agent and business manager of the firm, to all the members except
himself ; and that the dividend belonging to him was retained by the
defendant. The defendant contended that by the articles of copart-
nership, members were entitled to the profits only in proportion to
the assessments paid ; that the plaintiff did not pay his assessments
for the last year, but that the defendant did pay what the plaintiff
should have paid, and claimed the earnings accordingly. The matter
in controversy between the parties was submitted to referees, who
found that the plaintiff was a member of the firm ; that he did not
pay, but that the defendant paid for him his assessment for the past
year ; and awarded that the defendant pay to the plaintiff the balance
of the dividend earned by his share, after deducting the money paid
by the defendant for the plaintiff and certain interest and bonus. On
motion to accept the report of the referees, held, That the report be
accepted. Stanwood v. Mitchell, 59 — 121.
2. A. agreed to furnish to B., lumber necessary to build a vessel,
and B. to build the vessel and pay for the lumber with an interest in
the vessel at cost. A controversy arose between the parties, and B.,
AEBITEATION. 27
after the completion of the vessel, caused her to be enrolled in the
names of himself and others, not including A., as part owner. Held,
That A. was not limited for his remedy, to a bill in equity for a specific
performance, that he might maintain a personal action for the breach
of the contract, and that the claim was a proper one for submission to
arbitration under the statute. Gerry v. Eppes, 62 — 49.
3. A complaint for flowage may be submitted to referees, under the
statute authorizing the submission of "all controversies which may be
the subject of a personal action," when it does not appear that the
title to real estate is necessarily involved, and their judgment is valid
unless it appears that they attempted to pass upon such title. Quinn
V. Besse, 64—366.
4. A submission signed by the parties, recited that they "do hereby
submit all demands, claims and accounts which the said W. H. Deer-
ing (plaintiff), has against the city of Saco, on account of the con-
struction of said Gooch street bridge, or growing out of, or resulting
from the same in any way," etc. Held, That the claim was sufficient-
ly specified and signed and being incorporated into the submission,
was "annexed," in compliance with R. S., c. 108, § 2. Deering v.
Saco, 68—322.
5. If the plaintiff does not annex a specific demand to the submis-
sion, the defendant, being aware of the fact, must raise the question
before the referees, or it will be considered as waived. lb.
(b) At Common Law.
6. The claim to be investigated by arbitrators, need not be stated
and annexed to a submission at common law. Bodge v. Hull,
59—225.
7. On submission of all mutual accounts between an agent and his
principal relating to the business of the agency, an agreement that a
statement of his disbursements and collections, made by the agent,
and annexed to the submission, shall be taken to be correct, does not
preclude the arbitrator from allowing the agent for other disburse-
ments by him in the business, and not included in the statement.
Adams v. Macfarlane, 65 — 143.
8. Correct in such case does not mean complete. lb.
See Post, 17, 18.
(c) Parol.
9. In order to make an award upon a parol submission binding, and
a bar to an action upon the original claim, it must be proved that the
parties mutually and concurrently agreed to abide by it. Patterson
V. Triumph Ins. Co., 64 — 500.
(d) Effect.
10. When it is plain from the terms of the agreement to refer an
action pending, that it was the intention of the parties that the cause
should remain upon the docket of the court, and that the award should
be returned to court and judgment then entered in accordance with
the award, there is no discontinuance of the action. Hearne v.
Brown, 67 — 156.
28 AUBITEATION.
11. In such case, if either of the referees declines to act, the cause
will stand for trial. Ih.
II. POWERS AND DUTIES OF ARBITKATOES.
12. There seems to be no reason why arbitrators under the statute,
may not make a valid award for the transfer of the title and posses-
eion of any chattels, which are the subject of a contract, when the
mutual claims and rights of the parties under that contract are sub-
mitted to them, provided the award makes certain what it is which is
to be transferred. Gerry v. Mppes, 62 — 49.
13. "When a claim for a breach of a contract to make a payment in
specific articles is submitted to arbitration, it is competent for the
arbitrators to order the payment of their award, to be made in the
particular mode mentioned in the original contract of the parties. lb.
14. A. agreed to furnish to B. lumber necessary to build a vessel,
and B. to pay for it with an interest in the vessel at oost. After the
completion of the vessel, B. caused her to be enrolled in the names of
himself and others, not including A., as part owner. All claims of the
parties against each other, growing out of the contract, were referred
to arbitrators. Seld^ That the arbitrators did not exceed their au-
thority in awarding that B. should convey to A. a specified part of the
vessel in part payment for the lumber furnished by him, and should
pay for the balance a small sum in cash. lb.
15. CoNCLTJSivB Judges of the Law. If an action be referred by
a rule of court, which contains no restriction upon the powers of the
referee, his award upon the law, as well as upon the facts, is conclusive.
Satch V. Hatch, 57 — 283. Morse v. Morse, 62—443. Mitchell v.
Dochray, 68—82.
16. On the submission of a claim against a city, the fact that the
contract submitted was void, because in contravention of R. S., 1871,
c. 3, § 29, was raised before the referees. The submission was uncon-
ditional. Held, That in the absence of any suggestion tending to
impugn the integrity of the tribunal selected by the parties, their
decision in favor of the plaintiff was final. Deering v. S<xco, 68 — 322.
17. In a rule of court, the clause "the rights of parties under offer
to be defaulted to be preserved," is simply directory, and leaves those
rights to the determination of the referees. Hatch v. Hatch,
57—288.
18. The submission of a controversy, by rule, 'â– Ho be decided accord-
ing to the principles of law" does not require the referees to report
the facts and their conclusions upon them to the court ; but they are
equally the judges of the law and the facts. Plummer v. Stone,
65—410.
19. Costs. A referee under rule of court, may award costs as he
sees fit. Hatch v. Hatch, bl — 283. Morse v. Morse, 62 — 443.
20. When a suit upon a mortgage is unconditionally referred by rule
of court, it is the duty of the referee to determine the amount for
which the conditional judgment should be rendered. Fales v. Herrv-
enway, 64 — 373.
21. Rbheakinq. "While it is the duty of referees to make their
report in the first instance, within the time specified in the submis-
sion, they may, even against the protest of one of the parties, give
ARBITEATION. 29
the parties a new hearing, and make a new report after that time,
when authorized by a recommitment of the report first made. Hickey
V. Veazie, 59—282.
22. Admissiok of Testimontt. If the submission contains no
provision in relation to the rules of evidence that shall govern the
referees, they are not governed by the rules of the common law, but
may receive the statements of parties, without requiring them to be
first sworn. Sanborn v. Paul, 60 — 325.
23. Where the subject of the dispute was a written contract, it mat-
ters not that the signatures were not proved, if the referees had the
right one. lb.
24. Referees may receive testimony which by the rules of the com-
mon law, would be inadmissible. Smith v. Gorman, 41 — 405.
Hagar v. N. M. Insurance Co., 63 — 502.
III. THE AWARD.
25. The delivery to the parties by arbitrators of a paper, contain-
ing a detailed statement of their conclusions, but not designed to be
their formal award, will not prevent them from making and publish-
ing a formal award. Bodge v. Hull, 59 — 225.
26. Surplusage. In a real action, referred by rule of court, the
referee decided that the plaintiff was entitled to the land described
in his writ, and further stated where he found the true line between
the parties to be, and this last statement was held not to vitiate the
award. Smith v. Folsom,, 62 — 432.
27. A loose memorandum, containing certain legal propositions, re-
turned by the referee with the papers in the case, but not made a part
of his report (which is peremptory), will not avail to impose on the
court the duty of revising his decision, and is properly excluded.
Morse v. Morse, 62 — 443.
28. Statement oe Items. Upon a submission providing that the
arbitrator may make a statement and adjustment of certain accounts
between the parties, an omission by the arbitrator to include in his
award a detailed statement of all the items does not render it invalid,
neither party requesting it, and he having the means of furnishing it
at any time when requested. Adams v. Macfarlane, 65 — 143.
29. Construction. When an action is referred by an unrestricted
rule of court, and the referee makes an award and reports that his
award is absolute unless he has authority to submit to the court a
question of law therein stated, his decision as to the law is conclusive.
Mitchell V. Dochray, 63 — 82.
IV. THE KETURN" OP THE AWARD INTO COURT AND PRO-
CEEDINGS THEREON.
30. WTiile it is the duty of referees to make their report in the first
instance within the time specified in the submission, they may, even
against the written protest of one of the parties, give them a new
hearing and make a new report after the specified time, when author-
ized so to do by a recommitment of the former report. Hickey v.
Veazie, 59—282.
31. A report of referees made under a statute submission stipulat-
ing that the report shall be made to the January term, 1871, can not
30 AUBITEATION.
be made to and accepted at the January term, 1872, although the par-
ties, on Jan. 26, 1871, indorsed upon the submission that "in case the
court should adjourn before the referees should make up their report,
when it is made up, it is to be entered on the docket at the term at
which it is made returnable." Berry v. Sands, 60 — 99.
32. When a written submission stipulates that the arbitrator shall
make his award within a specified time, the parties may waive the
provision, and extend the time by a subsequent verbal agreement.
Adams v. Macfarlane, 65 — 143.
33. Objections to. When the report of referees itself presents a
question of law upon the determination of which the result is made
to depend, the 21st rule of the supreme court, requiring parties ob-
jecting to the acceptance of the report to file their objections in writ-
ing, does not apply. Curtis v. Portland, 59 — 483.
84. Exceptions. That a presiding judge accepts or rejects a re-
port of referees, appointed under a rule of court, being a matter
within his discretion, affords no ground for exceptions. Furbish v.
Ponsardin, 66 — 430.
35. If a presiding judge allows a motion to recommit the report of
a referee, "as a matter of law," the legal power of the court to exer-
cise the discretion to recommit may be presented by exceptions.
Pitman v. Thornton, 65 — 95.
36. The general rule is that the court will not inquire into an al-
leged mistake of referees in law or fact, not apparent upon their
award, unless upon suggestion of misconduct on the part of the
referees, or some fraud or imposition on the part of the party at-
tempting to set up the award, by means of which the referees were
misled. Hagar v. New England Ins. Co., 63 — 502.
37. If misconduct of referees, sufficient to justify the setting aside
their report is known when their report is presented for acceptance,
the party thereby aggrieved has a remedy by exceptions, if the report
is accepted. Dennison v. Portland Co., 60 — 519.
38. If the facts are not known when the report is accepted, but are
subsequently discovered, the case will stand like any other case of
newly discovered evidence. The remedy of the party will be by
petition for review. lb.
39. The neglect of the counsel for the aggrieved party to be pres-
ent at the acceptance of the report, of itself affords no ground for
relief. lb.
40. Amendment. A referee under a rule of court may, with the
permission of the presiding judge, amend his report after it has been
returned to court, so as to make it more intelligible, without a formal
order to recommit. Fales v. Semenway, 64 — 373.
V. REMEDIES.
41. If an award is in part for the payment of money and in part
for the performance of some particular act, as to deliver a certain
chattel, assumpsit is the proper remedy for the failure or refusal of
the party to perform the act directed. Gerry v. Eppes, 62 — 49.
See EsTOPPBi, 24.
Pleading, 79. ,
Review, 3.
ABEBST. 31
ARREST.
1. Mesne Process. On a writ against two defendants the body of
one may be arrested and the property of the other attached. Connor
V. Madden, 57 — 410.
2. The oath required to authorize the arrest on mesne process of a
defendant, in an action on a contract, may be administered by the
plaintiff's attorney. McLean v. 'Weeks, 61 — 277.
3. The arrest of a debtor on mesne process upon an affidavit that
he is about to depart and take with him "property or means of own;"
omitting the word his, is illegal, and an action based on such certifi-
cate will be dismissed on motion seasonably made. Bailey v. Car-
mile, 62—524.
4. An affidavit that the property about to be taken by the debtor
is more than is required for "immediate support" is not sufficient. It
should state that it is more than is required for "his immediate sup-
port." Proctor V. Lothrup, 68 — 256.
5. To justify the affidavit necessary to procure the arrest on mesne
process of a debtor, the affiant must not only believe that the debtor
is about to leave the State, but must have good reason for so believ-
ing. Gee V. Patterson, 63 — 49.
6. The service of a writ by arrest of the defendant is not illegal, or
sufficient ground for abatement, simply because he was not a resi-
dent of, nor within the State, at the time the oath that he was about
to depart, necessary to authorize his arrest, was taken. Adams v.
Macfarlane, 65 — 143.
7. It seems that the arrest, upon a writ, of either a resident or non-
resident of the State is legal, if the certificate endorsed on the writ
shows that the plaintiff has made the requisite oath, unless the plain-
tiff's good faith in so doing is impeached. lb.
8. Execution. An execution issued on a judgment founded on a
prior judgment on a contract, when the original debt remaining due,
exclusive of interest, is less than ten dollars, does not run against the
body. Kelley v. Morris, 63 — 57.
9. Criminal. A mail carrier, who is engaged in carrying the
United States mail, is liable to arrest by an officer holding a warrant
for his arrest for a violation of the liquor law. Penny v. Walker,
64—430.
See Abatement, 16.
Presumption, 25.
Practice, 8.
ARSON.
1. On the trial of an indictment under R. S., 1857, c. 119, § 3, for
setting fire to a meeting house, proof that the building was occupied
as a house for public worship is sufficient. State v. Kingsbury, 58 •
JiOO,
2. The owner of a dwelling house, who burns it in the night time,
is not liable to an indictment for arson. State v. Saynes, 66 307.
32 ASSAULT.
3. Nor, when the house is insured, is one, who, at the request of
the owner, sets fire to it, for the purpose of defrauding the insurance
company, guilty of arson. lb.
4. An indictment under R. S., 1857, c. 119, § 1, need not expressly
allege the intent when the arson is committed by setting fire directly
to the dwelling house of another. State v. Watson, 63 — 128.
5. Aliter, when the fire was set to an adjoining building. lb.
6. In an indictment charging the defendant with setting fire to a
barn with intent to burn a dwelling house, which was thus burned, it
is not necessary to allege that any one was lawfully in the dwelling
house. lb.