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his powers and privileges, etc., * ♦ ♦ the sittings of the legis-
lature and its established and usual course of proceedings. * * *
In fine, courts will take notice of whatever ought to be generally
known within the limits of their jurisdiction. In all these and
the like cases, when the memory of the judge is at fault, he
resorts to such documents of reference as may be at hand; and

Digitized by


AUGUST TERM, 1880. 329

Prince v. Skillin.

he may deem worthy of confidence.* It is the duty of the court to
know county officers. Farley v. McCoiDiel, 7 Lans. 428; much more
the governor and legislature. State v. Minnick, 15 Iowa, 123."

After a careful consideration of the gnive and importan t questions
proposed by the governor, the rightful legislatui-e Jind a body of
gentlemen claiming, but without right, to bo a legislature, this
court in its several answers of January last, announced the result
to which it had arrived ; that the legislature, by which the act under
discussion was passed, was the legislature to whose acts the obedience
of the people is due. In the correctness of the conclusions which
were then reached, and in the principles and reasons upon which
those conclusions are based, we rest in perfect confidence.

To the same general effect are the cases of Woods v. Wilder, 43 N.
Y. iC4 ; Cuylery. Ferrill, 1 Abb. (U. S.) 169 ; Riccw SJiook, 27 Ark.
137 ; s. c, 11 Am. Rep. 783 ; KiUebrew v. Murphy y 3 Heisk. 546 ;
Division of Howard Co.y 15 Kans. 194; Turner v. Patton, 49 Ala.
40G ; Ashley v. MarliUy 50 id. 537; Smith v. Speed, id. 276; Andrews
v. Knox Co,, 70 111. 65 ; Douthitt v. Sinson, 63 Mo. 268 ; Foscue v.
Lyon, 00 Ala. 440.

The body of men which 'the counsel for the defendant terras by
courtesy a de facto legislature, though its house was composed of
men who were and who were not elected, both classes not constitut-
ing :i quorum, and of a senate a part of whom, less than a quorum,
were duly elected, and a part were not elected, could not legally
act as legislative bodies. While this condition of affairs remained
there was no legal legislature. The greater portion of the members
of the bodies thus illegally constituted subsequently took their seats
respectively in the rightful house and senate — a house and senate
composed of members unquestionably elected. They participated
in its legislative action until its final adjournment They received
and acknowledged the receipt of the compensation to which by law
they were entitled as members of the legislature. There was no
other body claiming to exercise legislative functions. What the
counsel calls the de facto legislature became merged into the rightful
legislature, by which a governor was chosen in the accustomed
manner, who entered upon and is now discharging, without inter-
ference or obstruction, the duties of that office. All this is well
known as matter of current history, as well as by the legislative

The offered proof was properly excluded. It is immaterial whether
Vol. XXXVI— 42

Digitized by



Prince v. Skillin.

or not at some past time there was a de f ado hgislatm-G or a rlcfado
•governor — iinisniuch as neither was such de jure — and as the
rightful legislature was not interfered with in the exercise of its
legitimate powers, and the rightful governor is not disturbed in (lie
discharge of his ofheial duties. The acting legislature ami the
iieting governor are both de facto and dejurc the legislature nnd
governor of the State and to be recognized a8 such.

:2. It is claimed that the decision of the governor and couiicil
acted as a final canvassing board, and that their final action con-
stitutes an estoppel upon all other branches of the government,
except the houses of the legislature in regard to the membership ^>f
those bodies.

This is not so. The object of all investigations is to arrive at
true results. The canvassing board, so far as relates to county com-
missioners, are limited and restricted to what appears by the returns,
except that by Revised Statutes, chapter TS, § 5, and chapter 2\'^ of
the acts of 1ST7, *• they may receive testimony on oath to prove tbat
the return from any town does not agree with the record of the
votes of such town or the number of votes or the names of the per-
sons voted for and to prove which of them is correct ; and the
return when found to be erroneous may be corrected by the record,
and the governor and council are required to " count and declare
for any person all votes intentionally cast for such person, although
his name upon the ballot is misspelled or written with only the initial
or initials of his christian name or names; and they may hear testi-
mony upon oath in relation to such votes in order to get at the inti n-
tion of the electors and decide accordingly." But they are nowhere
authorized to extend their inquiries l>eyond these limits — to inquire
into the validity of meetings — whether or not votes were cast by
aliens or minors or any of various questions involving the validity of
the result Their judgment is not made conclusive. In cjuse of
senators and representatives, the final determination rests with tl..'
senate and house. So in reference to county officers, the courts in the
last resort, must determine the rights of the parties. If it were n^ft
so, if the canvassing board erred in their computations, — if they
should willfully or ignorantly disregard the law — rejecting Icga^
and valid returns and receiving and acting upon illegal and invalid
returns, there would be no remedy for the party duly elected. "K,"
say the court, in their opinion (25 Me. 570), "the legislature had
deemed it expedient, and had actually intended to constitatc the


by Google

AUGUST TEEM, 1880. 331

Prince v. Skillln.

governor and council judges generally of the election of county
officers, it would have hecn easy for them to have been explicit to
that effect ; not having done so, it must be presumed that nothing
of the kind was intended." It is abundantly obvious this must be
so, since the right of full investigation is withheld from them.

County commissioners hold their office by popular election. If
one not legally elected is erroneously declared to be elected, the
will of the people is disregarded. An usurper holds an office to
which he has no right '-The usurpation of an office is not an in-
vasion of executive prerogative," observes Nott, J., in State v. De-
lieaseliney 1 MeCord, 52, "but of the rights of the people; and the
only method by which these rights can be protected, is through the
instrumentality of the courts of justice."

In accordance with these views it has been uniformly held by this
and all other courts where the question has arisen, that the decision
of the canvassing board is ov\\)^ prima Jacie evidence, that the real
title to an office depends upon the votes cast, and that the tribunal
before which: the question arises will investigate the facts of tho
election, the votes cast, and the legality of the action of the can-
vassing board. People v. Cook, 8 X. Y. 07; People v. Vaily 20
Wend. 12; State x. Governor, 1 Dutch. 348; People v. TJiatcher, 55
X. Y. 525. The series of opinions of this court from that of 25
Me. 568, to the present time, concur in the conclusion that the
action of the governor and council, so far as relates to all matters
I)ertaining to the case under consideration, in canvassing the re-
turns, is ptirely ministerial, and is to be confined strictly within the
bounds of the Constitution and the statutes enacted in furthenince
of the Constitution.

The underlying principle is that the election and not the return
is the foundation of the right to an elective office, and hence it h:is
been hehl competent to go behind the ballot box, and purge t!ie
returns by proof tliat votes were received and counted, which were
cast by persons not qualified to vote. People v. Pease, 27 N. Y. 45.
•' Freedom of inquiry in investigating the title to office," observes
Akduews. J., in Pcoph v. TJiatcher^hT^ N. Y. 531, *• tends to secure
fairness in the conduct of elections, faithfulness and integrity on
tlie part of returning officers, and it weakens the motive to fraud
)r N iolenoe by diminishing tlio chances that they may prove success-
ful ill effecting the objects for which they are usually employed."

n. Tlie ground is taken *•' that the vote of the city of Portlam^ was

Digitized by


332 MAINE,

Priuco V. Skillin.

rightly rejected as illegal by the governor and council, the return
thereof not being in accordance with the statute, in that it did not
contain the names of all the candidates voted for with the number
of votes set against them."

It is conceded that if the vote of Portland is to be counted, the
plaintiff was duly elected. The whole number of votes cast was six
thousand three hundred and thirteen, of which two were returned
as scattering.

None of the votes of the city of Portland werxj counted. They
were all thrown out. Why ? Because the ward meetings were not
regularly notified ? Because the ward meetings were not legally
organized ? Because those not qualified electora were permitted to
vote? Because there was fraud or intimidation at the meeting?
Because the votes of qualified voters were rejected ? Because the
votes were not received, sorted, counted and declared in open ward
meeting? Because a fair record of the result was not seasonably
made? Because the returns duly sealed and attested were not
transmitted to the secretary of State within the time required ?
Because of any informality, great or small ? No. None of these
causes were pretended, much less proved, but because of the num-
her of votes cast two were returned as scattering, that is, because
two wrote "scattering" on their ballots, or because two voted for
candidates not voted for by anybody else, and the clerk returned
them as scattering instead of giving the names of persons for whom
the votes were cast. Thus, and for such cause, 6,311 voters, being
over a third of the voters of the county of Cumberland, were dis-
franchised — for they were equally disfranchised whether they voted
for one candidate or the other. This disfranchisement war for no
neglect or omission of theirs.

This 'is a government of the people. Their will as expressed by
the ballot is what is to be ascertained and declared. To disfran-
chise six thousand three hundred and eleven voters because two
ballots were returned as scattering, is a novel mode of giving ex-
pression to the popular will. If the citizens voting can have their
votes nullified for such cause, any voter by writing " scattering " on
his ballot or any clerk by returning a vote or votes under this head,
may annihilate a majority however large. No man can be sure hii
vote will be effective.

The word " scattering " written on a ballot indicates the name
of an individual or i t does not If a name, then it should be counted.

Digitized by


AUGUST TERM, 1880. 335

Prince V. Sklllin.

If it is not the name of an individual, then perhaps it may be re-
garded as a blank vote. It is, at any rate, a ballot It is provided
by Revised Statutes, chapter 4, § 32, as amended by chapter 212 of
the acts of 1877, that " in oixler to determine the result of any elec-
tion by ballot, the number of persons who voted at such election
shall first be ascertained by counting the wliolc number of ballots
given in, which shall be distinctly stilted and recorded.'' The whole
number of ballots counted, including the votes returned " scatter-
ing,^' the petitioner was most assuredly elected; for in the case Un-
der consideration these votes however added or subtracted, would
not have changed the result

The oflSce of county commissioner is one created by the statute?
not by the Constitution. As a canvassing board, the governor and
council act in i*elation to this oflSce under Revised Statutes, chapter
78, § 5, as amended by chapter 213 of the acts of 1877, and by
that act the whole number of ballots given should have been counted.
Had they been so counted the plaintiffs election was assured.

The rule obtains in every State, that an election is not to be set
aside and declared void, merely because certain illegal votes were
received, which do not change the result of the election. People v.
Tuihilly 31 N. Y. 650; Judkins v. Hill, 50 N. H. 140; School /)/.s-
trici V. Oibbs, 2 Gush. 39. In Ex parte JfurpJiy, 7 Cow. 153, two
ballots were put in the box on the names of two persons who weit)
formerly voters, but who had died some weeks before the election.
'•To warrant the setting aside the election," the court observes,
" it must appear aflBrmatively, that the successful ticket received a
number of improper votes, which, if rejected, would have brought
it down to a minority. The mere circumstance that improper votes
were received, will not vitiate an election.** The extra vote should
never be rejected, when it is possible to ascertain the fraudulent
vote. Mann v. Cassidy, 1 Brewst (Penn.) 32. In an action to
determine the right to an oflBce, the court may look beyond the re-
turns and even the ballot boxes, if necessary, to ascertain the truth.
People v. Cook, 14 Barb. 259.

Now there is no allegation whatever that illegal or fraudulent
votes were cast Whether the votes returned as scattering were
cast by persons not authorized to vote, or fraudulently cast, or for
a candidate ineligible, or erroneously returned as scattering by mis-
take or fraud, is immaterial, inasmuch as they did not change th«

Digitized by


.'534 MAINE,

First National Bauk of Saleni v. Graut.

result, the petitioner luiviiiga plurality of over six hutidred votes
should have been declared elected.

It is proper to add that the amended return shows the names fo^
whom the votes counted as scattering were given — to wit : Wil-
liam B. Skillings. So that in truth, there remains no conceivable
groun<l upon which the i*espondent can claim to hold over.

The decision of the canvassing board was at war with the law of
the land, the rights of parties, the will of the people and the prin-
ciples npon which alone a republican government can rest.

Judgment for the petitioners.

VV ALTON, Barrows, I^anforth, Peters, Libbey and Symonds,
JJ., concurred.

First National Bank op Salem v. Grant.

<71 Mft. 374.)

NegotiaJblA inMrumrnts — arcommodation note — transfer after maturity.

The maker of nn accomiuodatioii note, l^t without restriction, in liable to a
third person who acquires it for value after maturity. {See note, p, 385.)

A (/TION on a ]u-omifl8ory note. The opinion states the case,

Wm, //. Fnlrjer, for plaintiff.
Joseph William so fif for defendant.

Appleton, C. J. This is an action hi*oiighfc under Revised Stat-
ute, chapter 06, § 13, upon an appeal by the plain tiff from the decision
of commissioners of insolvency upon the estate of the defendant's
intestate, William McGilvery, to recover the amount of two notes
of hand signed by said McGilvery as maker.

The facts in relation to these notes differ and they will be sepa-
rately considered.

L The note for $900, dated January 12, 1876, on four months,
payable to the order of Gilmore, Kingsbury & Co., at any bank in
Boston, was an accommodation note of McGilvery, and was indorsed
by the payees in June, 1876, as collateral secunty for their note of
12,000 renewed at that time.

Digitized by


AUGUST TERM, 1880. 3,%

First National Dank of Salem v. Grant.

This note was for the aeconimodjition of the payees, lastead of
a loan of money, McGilvery loaned his credit. When the note was
given there was no restriction as to its use, and no limitation as to
the time of such use. The i)ayee8 had full authority to dispose of it
for auy legitimate purpose. It was given to enahle the payees to
(>l)iain credit iherehy. Tlie holder for vahie would hold tlie note
hy as 111 in a title as if founded on a real business iransaction. That
it wa:^ indorsed after due, without some equity iu the maker, will
not defeat the rights of the Iiolder. The maker of an accommoda-
tion note holds himself out to the public to he absolutely bound to
every person who shall take the same for value. ** A party, who
lends his note without limitation as to the time of its use," observes
liOBERTSOX, V, J., in Harrington w Dorr yZ Rob. 275, ''cannot
therefore be presumed in law to have limited such time to that be-
before its maturity." The authorities are decisive on this question.
Story on Prom. Notes, § 104 ; Drum v. Wcnton^^A Me. 270; Brown
V. Mod, 7 Johns. 302 ; Sturtevant v. Ford, 4 M. & O. 101 \ Parr v.
Jewell, 81 E. C. L. G8-4. Maiiland v. Citizens' yational Baiik, 40
Md. 540; s. <^, 17 Am. Rep. C20. The plaintiff is a holder for
value, and is entitled to recover.

[Omitting a minor point.]

Judgment for plaintiff for both notes.

Waltox, Danfouth, Peters and Libbey, JJ., concurred.

NoTB BY TBK Reporter — This subject was examined, and a different condusion waA
reached in Carrol v Peters^ 1 McGloIn (La.), 88. The court said: *' There is conflict of au-
thority upon the question whether the taking of accommodation paper, after maturity, de-
feats the right of a holder to recover. Mr. Daniels, in his work on Negotiable Instruments,
M 78fi, 726, holds the opinion that the time a person receives such paper makes no difference.
This opinion is advanced upon the strength o^ certain English authorities, and he regrets
that the American vuthorities are not uniformly to the same effect. So far as we have
had access to them wo consider the weight of American authorities as being opposed to the
doctrine incorporated in his text. In i'ennsyWania the authority of Hoffman v. F^mter, 48
Penn. St. 137, and Fhtwer v. Hutchimsfm, 36 id. 886, is to this effect; and in the latter case
the following authorities from that State are cited in its support: 7 Watts, 130; 6 Barr. 164;
1 Harris. 222 ; 6 id. 361. The doctrine in Massachusetts is the same as in Pennsylvania.
Kellogu v. Barton^ 94 Mass. 527: aud also in Alabama, Battle v. Wfcnw, 44 Ala. 105. In
Xew York, as lat^ as 1868. ♦ the Court of Appeals has exhaustively considered this question
*nd held to the same effect, expressly overruling 7 Johns. 861. and 7 Wend. 227, the prind-
pal American cases holding the reverse upon this question, declaring that this issue wai
not involved in those cases. '

" And when we refer to the English precedents It is not certain that the weight of au-
thority upholds the text of Mr. Daniels. See cases of Tenmm v. .FVnnciit, 1 Camp. 19;
^irown r. Davig, 3 T. R. 80: 7 id. 429. As against these are cited, Charlm r. Mariden, t

• QhetUr ▼. Dorr, 41 N. Y. 3879.— Rkp.

Digitized by


Maddox v. Brown.

Taunt. JBM; Attnood v. Crowdie^ 1 Stark. 488; Sietn v. TglesUu, 1 C. Bf. & R. R65; StwUv^tni
V. Ford, 49 B. C. L. R. (M. & a.) 101; Carrutherg v. TTefft, 08 B. G. U R. (11 Q. B.) 143.

'* Of these, Steitiv. Yf/UaiaB, 1 C. M. & R. 60S, should be more properly ranked vpon th«
other side. There the quef^ion was as to the sufficiency of pleadings; and the court seid
to counsel : * Ytiu do mil state that the Mil was accepted before <t became due, A wi aceom-
nwdation acceptor mighty to cusiat hia friend, accept such a blU. There is nothing what-
ever to lead to a conclurion that the defendant intended to limit the negotiabllicj of the
bill to the time before It became due You had better amend and plead all the facts, m
exclude a right In the person acconunodated to negotiate the bill after it beca.ine due
This language justifies the inference that had the date of acceptance been properly k( t
out, it would have been suihclent, and the plea held good.

"And in the later cose of Farr v. Jewell, 81 £. 0. L. R. (16 C. Bj GM, the court cattts
grave doubts upon the doctrine of Charles v. Maradefu, 1 Taunt. !^, if it in not almost ex-
pressly repudiated. The authorities followed seek to establish an exception unfavorable
to accommodation paper, to the rule that paper, after maturity, passes subject to defenses.
To Justify such an exception Its necessity and equity should be clearly established. The
general law of ti-ansfers is. that (he transferee stands In the shoes of the transferor. This
rule, however, is set aside, In favor of persons receiving commercial paper, but only when
Kuch paper Is free from suspicion. The moment It is dishonored by non-payment, it comeK
from under the exception and passes under the dominion of the general rule. Dan. on
Neg. Inst., % TX\. A person, therefore, taking accommodation paper, although orlginaUy
invested with the privileges of commerce after maturity, stands In the same position as
though the pa er had been originally restricted . He has the rights which the beneflciar)*
had intrinsically, to confer and no more

*• A person lending his name to another Ls, under the circumstances, entitled to everj-
safeguard and restriction, expressed or implied, by his agreement. In other words, the
paiK>r cannot bo used except In the manner contemplated. It Is well settled, that a perwm
soliciting such accommodation Impliedly obligates himself, either to personally honor the
instrument at maturit3*, or to put his friend in funds to enable the latter to meet it. Rcy-
noUU v. />r)y//r, 1 M. S: (i. 735, .% E. C. L, R. 6.38; Yaten v. Hop;>-, 67 E. C. L. R (9 C. B.) WI-
When therefore a paity applies to another for such assistance the maturity of the |>ape'
K; put at such time as the applicant considers sufficient to enable himself to meet or pro-
vide for it at maturity. The applicant impliedly declares that his necessities will tlWb be
at an end, and the other practically stipulates that his liability shall endure no longer.

" If the beneficiary otherwise surmounts the difficulties or meets the exigencies of the
nioment^frnd does not use the paper before the expiration of this period, he has no right,
without his friend's assent, to apply it to other, or subsequent purposes. So, where the
maker, or indorser lends his name for a stipulated period, he does not give an unrestricted
or unlimited cTcilIt, and to hold him bound beyond the period contemplated, is to bold
him beyond the terms of his contract."

To the same effect, Brttton ▼. Bishop, 11 Vt. 70 ; Odiome v. Howard, 10 N. H. 343^

Maddox v. Brown.

(71 Me. 482.)
Master and servant — infancy — neqligence of servant outside his emphptnent

A minor eon, who had been permitted to use his father's horse and wagon with-
out restriction, took them in the absence and without the knowledge of bifl
father, on business of his own, left the horse unfastened in the street, and
the horse ran away and injured the plaintiff's carriage. Held, that the
father was not liable.*

*SeeSton« v. HiUs (46 Conn. 44), 20 Am. Rep. 686 ; Evans t. Davidson, fWiC

Digitized by


NOVEMBER TEEM, 1880. 337

Haddox v. Brown,

ACTION of negligence. The opinion states .the case. The de-
fendant had judgment below.

M. T. Franks for plaintiff.

Strout d Holmes^ for defendant

Appletok, C. J. The defendant's son, a minor of the age of
seyenteen years, took his father's horse and carriage, which he had
been allowed to use without restriction, and drove to a store for the
purpose of depositing money, which, as treasurer of a Sabbath
school^ he had received the day before. Entering the store to
make the deposit, he left his horse unfastened and unattended,
and the horse so left started, and running away, the defendant's
carriage collided with the plaintiff's team and occasioned an injury,
to recover compensation for which this action is brought

The horse and carriage were taken by the son in the absence of
the defendant, and without his knowledge.

It is not pretended that the son was an unfit person to be in-
trosted with the use of the horse, or that the horse was unsafe or
unsuitable. The plaintiff claims to recover, not on the git)und of
the parental and filial relation, but because the son in the manage-
ment of the defendant's team was his servant, and engaged in his
business, and that the defendant was liable for his negligence.

The master is liable to third persons for all damages resulting
from the negligence of his servants, acting under his orders, or in
the course of his business. Specific directions are not required.
It is sufificient if the act was one within the range of the servant's
employment The general rule, as judicially declared in England,

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 38 of 123)