exceptions, investigate the whole record, make itself familiar with a complicated or involved system of bookkeeping, and determine the existing facts, in order to see whether the result complained of be sustained by the rules of law. Such considerations can only be reached by appeal, and that relief is not given in cases of this sort. The law, in these cases, makes the court below the final arbiter on questions of fact, and the law court has no power to revise or reverse such decision.

In this case, a large box of books is sent to the law court, for it to determine on inspection whether the books contain such entries as give a truthful and complete history of the tradesman's business,--purely a question of fact. It is not so material to know what the system of bookkeeping is as to know the substance of it. That can be known only by a careful examination of the accounts, giving results and conditions of fact that, as matter of law, either do or do not establish the statute requirement of proper books of account. Such results and conditions must be determined at nisi prius. It is unlike the case of Morey v. Milliken, S6 Me. 464, 30 Atl. 102, where the vital facts were undisputed, and the inference showing the resultant fact became a question of law. Exceptions overruled.

HOBBS v. MOORE et al. (Supreme Judicial Court of Maine. Aug. 11, 1894.)

NOTE-MONTHLY PAYMENTS-ACTION For PastDUE INSTALLMENTS-WHEN MAINTAINED. 1. The legal construction of a note payable 24 months after date, in monthly payments, without interest, payable in trucking, is that the monthly payments are to be made in the consec utive months immediately following the date of the note, so that the whole amount will be paid in 24 months after its date.

2. Held, that if the payee furnished the trucking to be done in such months, and the defendants neglected or refused to do it, an ac tion may be maintained upon the note for such monthly payments before the expiration of 24 months from its date.

(Official.)

Report from supreme judicial court, Waldo county.

Action by John W. Hobbs against Elijah L. Moore and another on a promissory note. Heard on report. Judgment for plaintiff.

W. P. Thompson, for plaintiff. Jos. Williamson, for defendants.

STROUT, J. Action upon the following

note:

"West Winterport, Jan. 14, 1893. Twentyfour months after date, for value received, we jointly and severally promise to pay to John W. Hobbs or order two hundred and fifty dollars, in monthly payments, without interest, to be paid in trucking."

The writ is dated October 28, 1893.

The legal construction of the note must be had from the note itself. By its terms the amount of $250 was to be wholly paid in 24 months after its date, and it was to be paid in monthly payments. To give effect to all the terms of the note, the monthly payments must be construed as the consecutive months immediately following the date of the note; so that, if payments in trucking were in each month following the date, the whole amount of the note would be paid at the expiration of 24 months. Any other construction would require no payment till the expiration of 24 months, and, if the monthly payments commenced after that time, the note furnishes no means of determining how much each monthly payment should be, nor how many months defendants might claim within which to make payment, and the absolute promise to pay the whole in 24 months would be inoperauve. The parties could never have contemplated such a result, and the terms of the note do not require it. It will be noticed that the note is without interest. We think the legal construction must be the same as if the note read, "Within twenty-four months after date," etc. Ewer v. Myrick, 1 Cush. 16.

The plaintiff was bound to furnish trucking to be done by the defendant monthly, and in such amounts as would enable him to fulfill his contract. The evidence is that plaintiff did have, continually, for months before the suit, trucking for defendant to do, and requested him to do it, but he refused.

The action is maintainabie, and, according to the terms of the report, the case is to be remanded to the court at nisi prius for assessment of damages, and it is so ordered. Action to stand for trial.

SKOWHEGAN SAV. BANK v. PARSONS et al.

(Supreme Judicial Court of Maine. Aug. 10, 1894.)

TAX SALE-VALIDITY-Deed-SufficiENCY OF DESCRIPTION.

1. To obtain a forfeiture of land for unpaid taxes, the provisions of the statute to that end must be strictly complied with.

2. In a sale of land for the nonpayment of taxes, the following defects held fatally defective: (1) Want of copy of record of the state treasurer's doings; (2) failure in the deed to show for what year the taxes were assessed; (3) failure to show whether the taxes were assessed by the county commissioners, as provided by Rev. St. c. 6, § 70, or by the legislature, as provided in section 71; (4) failure to prove that the notice of sale was published in a newspaper printed in the county in which the land lies, as required in section 73, nor when or in what paper it was published.

3. The following description held imperfect: "9.098 acres in 2 R. 2 W. K. R. Highland;" "12.093 acres in 2 R. 2 W. K. R."

(Official.)

Exceptions from supreme judicial court, Somerset county.

Action quare clausum by the Skowhegan Savings Bank against Samuel A. Parsons

Walton & Walton, for plaintiff. J. J. Parlin and S. S. Brown, for defendants.

STROUT, J. By the alternative award in this case, the referees submit to the court the question whether the two tax deeds from George L. Beal, state treasurer, to Oliver Moulton, one of defendants, conveyed to Moulton title to the land described in plaintiff's writ. To obtain forfeiture of land for unpaid taxes, the provisions of the statute to that end must be strictly complied with.

The Revised Statutes (chapter 6, § 76) provide that the treasurer of state shall record his doings in every sale of land forfeited for nonpayment of taxes, "and a certified copy of such record shall be prima facie evidence in any court of the facts therein set forth." The case does not show any such copy of the record. The recitals in the deeds are not evidence of the facts. Phillips v. Sherman, 61 Me. 551; Libby v. Mayberry, 80 Me. 138, 13 Atl. 577. If they were, there is nothing in the deeds to show for what year the taxes were assessed, nor whether the taxes were assessed by the county commissioners, as provided in section 70 of the same chapter, or by the legislature, as provided in section 71, nor that the notice of sale was published in a newspaper "printed" in the county in which the lands lie, as required by section 73, nor when or in what paper it was published. These are fatal defects. Ladd v. Dickey, 84 Me. 194, 24 Atl. 813.

The description in one one of the deeds is "9,098 acres in 2 R. 2 W. K. R. Highland;" and in the other, "12,093 acres in 2 R. 2 W. K. R." Where is this land? What do these figures and initials mean? There is nothing in the case to explain their meaning. Such description is insufficient to convey title. Griffin v. Creppen, 60 Me. 270.

The declaration in the writ describes the land on which the trespass is alleged to have been committed as "a certain parcel of land situated in township numbered two in the second range west of Kennebec river, in Bingham's Kennebec Purchase;" and then follows a description by metes and bounds. "containing about five thousand acres." If the land described in the treasurer's deeds to Moulton were conceded to be in township 2, it by no means can be assumed, without evidence, that the plaintiff's 5,000 acres are included in the 9,098 acres in one deed, or the 12,093 acres in the other deed. For aught that appears in the case, plaintiff's land may be a part of said township, and the lands described in the treasurer's deeds another and a different part. As the defendants jus

den of proof was on them to show title under their deeds to the land described in plaintiff's writ. This they have failed to do. It follows that the award of the referees in favor of the plaintiff must stand. Exceptions overruled.

SAWYER v. LONG.

(Supreme Judicial Court of Maine. Aug. 17, 1894.)

CHATTEL MORTGAGE-VALIDITY-STOCK OF GOODS -AFTER-ACQUIRED PROPERTY-STORE FIXTURES -EQUITABLE ESTOPPEL.

1. A chattel mortgage does not pass the legal title in after-acquired property to the mortgagee without some new act sufficient to accomplish the purpose, like a delivery to and retention of the same by the mortgagee, or a confirmatory writing, properly recorded, and the like. Things that have a potential existence are an exception to the rule. Equity, however, creates a lien upon the res when produced or acquired, leaving the legal title still in the mortgagor, who, by some act, may ratify the grant, as by delivery of the property, when the legal title becomes complete in the mortgagee: and, without such confirmatory act, equity will sometimes enforce the mortgage, when the balancing of equities requires it.

2. If a mortgage of chattels stipulates that the mortgaged property may be put on sale by the mortgagor, who is required to keep the security good by applying the proceeds of sale to the purchase of new articles of like kind to those sold, the chattels so purchased become substituted for those sold at the instance and under authority of the mortgagee; so that the legal title to them may be said to pass to him as effectually as if he had himself made the sale by assent of the mortgagor, and with his own hand replenished the res. The mortgagor, by doing so, simply executes a power, performs a trust created by the mortgage, and thereby neither depletes the security nor defrauds his other creditors.

3. The doctrine of equitable estoppel, upon which chattel mortgages have been held to cover after-acquired property mentioned in the mortgage, stops with the mortgagor and his assignee in insolvency or bankruptcy, and does not apply to attaching creditors or bona fide purchas

ers.

4. A mortgage was given to secure $275 on the debtor's stock and fixtures then in his store, and he covenanted to keep said stock and fixtures up to a value of not less than $500. The mortgage also provided that the mortgagor might, in the usual course of trade, sell said stock, but not the fixtures, and with the proceeds of said sale replace said stock with other stock of like kind, which new stock should be subject to the mortgage. The mortgage was recorded, and possession retained by the mortga

Held, that the defendant being a bona fide purchaser. and no estoppel arising as to him, the plaintiff mortgagee may recover so much of the stock replevied as he has shown was in existence at the date of the mortgage and that purchased with the proceeds of articles sold and substituted therefor, and no more.

5. The term "fixtures" may include chattels permanent in character, as not being the object of sale, of trade or manufacture, but subjects to facilitate those purposes, and aid in the convenience of business. Held, that those fixtures only that were in the store when the mortgage was made passed by it.

6. The mortgagor had bargained for and received a soda fountain under a writing dated at

L

Boston, Mass., that was in effect a conditional sale. Held that, if it was a Massachusetts contract, it is subject to redemption under the laws of that state; also, if it was a Maine contract, that as notes were given for the price of it, the agreement not being made and signed as part of the notes, it is void altogether, under Rev. St. c. 111, § 5. Allen v. Goodnow, 71 Me. 424, approved.

(Official.)

Report from supreme judicial court, Androscoggin county.

Action of replevin by John A. Sawyer against Daniel F. Long to recover a stock of goods and store fixtures. Heard on report. Judgment for plaintiff for part of the property.

Tascus Atwood, for plaintiff. Savage & Oakes, for defendant.

HASKELL, J. Replevin. The plaintiff claims as mortgagee, and the defendant as purchaser from the assignee for the benefit of creditors of the mortgagor. The case must be decided at law, not in equity. The mortgage was given to secure $275 on "my stock and fixtures in the store now occupied by me," etc., "and I covenant to keep said stock and fixtures up to a value not less than $500. It is agreed It is agreed that [the mortgagor] may, in the usual course of trade, sell said stock, but not the fixtures, and with the proceeds of said sale replace said stock with other stock of like kind, which new stock shall be subject to this mortgage." The mortgage was recorded. Possession was not taken by the mortgagee, but retained by the mortgagor, and went to his assignee, who transferred the same to the defendant, as purchaser of the assignee's interest in the property.

1. As to the stock. In this state it has uniformly been held that a chattel mortgage does not pass the legal title of after-acquired property to the mortgagee without some new act sufficient to accomplish the purpose, like a delivery to and retention of the same by the mortgagee, or a confirmatory writing, properly recorded, and the like. Griffith v. Douglass, 73 Me. 532; Pratt v. Chase, 40 Me. 269; Morrill v. Noyes, 56 Me. 458; Hamlin v. Jerrard, 72 Me. 77. The reason is that, as the after-acquired property is not in existence to be conveyed by the mortgage, title to it cannot be transferred in advance, for "a man cannot grant or charge that which he hath not." Things that have a potential existence are an exception to the rule. Morrill v. Noyes, supra, and cases cited. Equity, however, creates "a lien upon the res when produced or acquired, leaving the legal title still in the grantor, who may by some act ratify the grant, as by delivery of the property, and then the legal title is complete in the vendee" (Edwards v. Peterson, 80 Me. 372, 14 Atl. 936; Everman v. Robb, 52 Miss. 653); and, without such confirmatory act, equity will sometimes enforce the mortgage, when the balancing of equities shows that it

should be done (Mitchell v. Winslow, 2 Story, 630, Fed. Cas. No. 9,673; Holroyd v. Marshall, 10 H. L. Cas. 223).

If a mortgage of chattels stipulates that the mortgaged property may be put on sale by the mortgagor, who is required to keep the security good by applying the proceeds to the purchase of new articles of like kind to those sold, the chattels so purchased become substituted for those sold at the instance and under authority from the mortgagee, so that the legal title to them may be said to pass to him as effectually as if he had himself made the sale, by assent of the mortgagor, and with his own hand replenished the res. The mortgagor, by doing so, simply executes a power, performs a trust created by the mortgage, and thereby neither depletes the security nor defrauds his other creditors. Abbott v. Goodwin, 20 Me. 408.

Allen v. Goodnow, 71 Me. 424, was decided upon this ground, although the controversy was between the parties to the mortgage, and the dictum of the court limits the doctrine to them. But, if the doctrine be sound, -and we think it is,-it cannot logically be so limited; for, when the title has passed to the mortgagee, it becomes paramount to any claim under the mortgagor, either of attaching creditor or purchaser. Having no legal title, he can neither impart, nor convey one. Goss v. Coffin, 66 Me. 432.

The doctrine of equitable estoppel, upon which these cases have usually been decided, does not go beyond the mortgagor and his assignee in insolvency or bankruptcy, but as to these parties remains in full vigor, to preclude them from disputing that the newlyacquired property was not purchased and paid for with the proceeds of sales, instead of on credit or otherwise. Deering v. Cobb, 74 Me. 332; Williamson v. Nealey, 81 Me. 447, 17 Atl. 404.

The defendant being a bona fide purchaser, and no estoppel arising as to him, the plaintiff may recover so much of the stock replevied as he has shown a title to under the doctrines of this opinion, viz. that in existence at the date of mortgage, and that substituted for articles sold by purchase from the proceeds of sales, and no more.

2. As to the fixtures. Those articles only that were in the store when the mortgage was made passed by it. The word "fixtures," in the sense used by the parties, means chattels of a permanent nature, in contradistinction from those kept for sale, such as were incident to the convenient use of the store. As said by Lord Mansfield: "Accessories necessary for the enjoyment of the principal." 1 H. Bl. 260. In other other words, chattels known as "fixtures of trade," when placed for use, partake of the realty, because used with it. They may be attached to it or placed upon it. If removed by the tenant during his term, they remain chattels, but, if left, belong with the freehold, as permanent

ly fixed to it. Chattels of this sort, while in use, in position, have always been spoken of as "fixtures." Some were removable, others were not. "The right between landlord and tenant does not altogether depend upon this principle that the articles continue in the state of chattels. Many of these articles, though originally goods and chattels, yet, when affixed by a tenant to the freehold, cease to be goods and chattels by becoming part of the freehold; and, though it is in his power to reduce them to the state of goods and chattels again by severing them during his term, yet until they are severed they are part of the freehold." Lee v. Risdon, 7 Taunt. 191. Lord Holt speaks of "vats set up in relation to trade" (Poole's Case, 1 Salk. 368); and Lord Kenyon "of erections for the benefit of trade or manufacture" (Dean v. Allalley, 3 Esp. 11). These decisions recognize a class of chattels known as "trade fixtures." They are what Lord Hardwicke calls "mixed cases," "between enjoying the profits of land and carrying on a species of trade." Lawton v. Lawton, 3 Atk. 13.

Strictly, the word "fixture" relates to a freehold. It refers to a chattel transformed into land by assimilation. Commonly it refers to a chattel used with land, that may be or become a part of the freehold or not, as conditions may require. Sometimes it is used to indicate articles of furnishing or furniture necessary or convenient for the carrying on of business, trade, or manufacture, in contrasts and to distinguish them from merchandise dealt in or goods manufactured. These uses have naturally enough grown from the expression "fixtures of trade or manufac ture," that came into use to distinguish erections of that description that might be removed by the tenant of land during his term. and not become irretrievably fixed to the freehold. As Lord Kenyon said: "The law will make the most favorable construction for the tenant where he has made necessary and useful erections for the benefit of his trade or manufacture, and which enable him to carry it on with more advantage." Dean v. Allalley, supra.

It is easy to see, therefore, how the meaning of the word "fixtures" has come to include chattels permanent in character, as not being the objects of sale, of trade or manufacture, but subjects to facilitate those purposes, and aid in the convenience of business. The meaning of the word must be considered in relation to the subject-matter referred to by the parties using it. When used in the sale of chattels, it would naturally apply to chattels. When in relation to land or a freehold, it would naturally apply to those things that were, or were to be or become, a part of the freehold.

In the case at bar the mortgagor wished to v.30A.no.3--8

secure a debt upon the goods and chattels in his store. He conveyed them as "stock and fixtures," manifestly meaning to include goods on sale and the shop appliances used in the business. He had some meaning for the word "fixtures." He could not have meant articles that had become fixed to the building, that he could not remove. He must have meant articles that he could remove, and we know of no other rule by which to determine this case than to consider the meaning intended by the parties to the mortgage. The authorities are so numerous and conflicting that it would be useless to try and extract from them any hard and fast rule that shall govern all cases. It must be noticed that the issue here is not between an owner of land and the tenant, or between parties that hold that relation. It is between vendor and vendee of chattels; and the question is. what chattels, if any, were sold? Like all contracts, that intention of the parties must govern that is permissible from the language expressed in the document of sale. Chattels that had become fixed and a part of the freehold were sold as chattels by the tenant who affixed them, as against his assignee in bankruptcy, although the owner of the freehold might well have held them as a part of the realty. In re McKay, 1 Low. 566.

3. The mortgagor had bargained for and received a soda fountain, under a writing dated "Boston, Mass." That, in effect, was a conditional sale. If a Massachusetts contract, it was subject to redemption under the laws of that state. Gross v. Jordan, 83 Me. 380, 22 Atl. 250. If a Maine contract, not having been made and signed as a part of the notes given for the price, it is void altogether. Rev. St. c. 111. § 5; Holt v. Knowlton, 86 Me. 456, 29 Atl. 1113. The writing of sale had been assigned to the defendant, and the amount due thereunder was tendered him by the plaintiff before action brought. The tender was paid into court with the entry of the writ, and became payment. The defendant could have taken it at any time, and can still take it. It is his money, and has paid his claim upon the soda fountain from the vendor of it.

Judgment for plaintiff for one dollar damages, with costs, and for eight bottles of tamarinds, and for all the fixtures replevied, except one ice chest, one easy chair, and one circular wooden stand.

Judgment for defendant for the ice chest, easy chair, and wooden stand, and for all the stock replevied, except the tamarinds, with costs.

It is impracticable to assess damages for defendant. As to costs, see McLarren v. Thompson, 40 Me. 284.

Mandate accordingly.

VIRGIN and LIBBEY, JJ., died before the decision of this case.

EMERY, J. The plaintiff, in an action at law, in Lincoln county, against the Waldoboro Packing Company, claims to have effectually attached the property of the defendant company. This company was indebted to her and to the Medomak National Bank and others. Pending the action at law, and within four months after the attachment, a petition in the usual form, purporting to be by the Medomak National Bank, as creditor, and signed by its president, was filed in the court of insolvency for Lincoln county, praying the court to adjudge the Waldoboro Packing Company insolvent. The plaintiff thereupon moved in the same court for the dismissal of the petition upon the ground that it was never authorized or ratified by the Medomak National Bank, in whose name it purported to be made. The court of insolvency overruled her motion to dismiss, and proceeded upon the petition to issue the usual warrant, and call the first meeting of creditors. plaintiff thereupon brought this bill in equity against the judge of the court of insolvency, to compel him to dismiss the petition, and discontinue all proceedings under it.

The

Her argument is that she has a valid attachment, which will be dissolved by the insolvency proceedings, if they are allowed to go on; that these proceedings were never properly begun, and should be dismissed, for the reason that the party purporting to be the petitioning creditor never authorized or ratified the petition; that she has no remedy by appeal, none being authorized by statute in such cases; that she has no remedy at law; and that, therefore, she is entitled to the interposition of the court in equity to save her attachment.

The plaintiff's plain purpose is to obtain, not an equality with, but an advantage over, the other creditors of the insolvent company. Such a purpose is abhorrent to the very na

ture of equity, which was born of the principle of equality. According to Sir Henry Maine (Ancient Law, 55, 56), the primal meaning of the term "equitas," in the Roman law, was either the idea of equal, proportionate distribution, or the idea of leveling, in the sense of removing inequalities. The term "equity," in English and American law, is derived from the Roman "equitas," and in the long history of equity jurisprudence, from the Roman praetors to this day, its original meaning has never been obscured. The maxim, "Equality is equity," has long been familiar as a potent principle, and has lost none of its force.

Equity jurisdiction is often and repeatedly exercised to secure equality, but is never exercised to produce, or even protect, an inequality among creditors. This court was granted this jurisdiction, in cases of insolven cy, to facilitate the proportionate distribution of the insolvent's assets, not to prevent it. The plaintiff's vantage ground, if such she occupy, was won with weapons drawn from the armory of the strict law. For its defense she must rely upon those same weap Equity's armory is not open to her. Bill dismissed, with costs.

ons.

WATSON v. DELANO.

(Supreme Judicial Court of Maine. July 31, 1894.)

COSTS-WHO ENTITLED TO RECOVER.

In a suit brought against a party as executrix de son tort, to which the general issuehad been pleaded, and pending the action, at a term subsequent to the entry, a plea puis darrein continuance was filed, alleging that the de fendant had been duly appointed administratrix of the decedent after the action brought, which plea was held bad on demurrer, and by leave of court the same defense had been interposed by brief statement, and then the plaintiff discontinued his suit without any ruling upon the matter set up in the brief statement, or any adjudication upon the claim in suit, the defendant is the prevailing party, under Rev. St. c. 82, § 117, and entitled to costs.

(Official.)

Exceptions from supreme judicial court, Somerset county.

Action by Nelson Watson against Lucy Delano, as administratrix of the estate of Moses L. Hamilton, deceased. By amendment the action was changed to one against defendant as executrix de son tort, after which plaintiff discontinued it. There was an order allowing plaintiff costs to the time of the discontinuance, and defendant excepts. Exceptions sustained.

Walton & Walton, for plaintiff. Merrill & Gower and Powers & Powers, for defendant.

STROUT, J. This suit was originally brought against the defendant as administratrix of Moses L. Hamilton, and entered at the December term, 1890. By amendment