defendant would not be an innocent purchaser of the horse, and could not hold title to it, although he was ignorant of the fraudulent title of Gross, his vendor.

The horse was used to pay a pre-existing debt of Gross. The payment of that debt by his own note after he purchased the horse did not change the relation of the defendant to him from prior to subsequent creditor. The same debt existed all the time. The note was but a new evidence of it. The time of payment may have been extended, but no new debt was created, no new credit given; simply further credit for the payment of an old debt.

The doctrine in favor of innocent purchasers is that they have a right to rely upon the apparent title of their debtors to chattels in their possession, and deal with them as if the property were really their own. So it was held in Gilbert v. Hudson, 4 Me. 345, that chattels fraudulently purchased by a debtor might be held on attachment, by his creditor, to the extent of an indebtedness contracted between them subsequent to the fraudulent purchase, but not for a debt contracted prior to that time. Gilbert v. Hudson, supra; Buffington v. Gerrish, 15 Mass. 156. This distinction between the rights of prior and subsequent creditors does not seem to have been always recognized. Jordan v. Parker, 56 Me. 557; Wiggin v. Day, 9 Gray, 97; Atwood v. Dearborn, 1 Allen, 483; Thaxter v. Foster, 153 Mass. 151, 26 N. E. Rep. 434; Donaldson v. Farwell, 93 U. S. 631. But property so purchased, and sold for a valuable consideration to a bona fide purchaser not conusant of the fraud, cannot be reclaimed. Trott v. Warren, 11 Me. 227; Neal v. Williams, 18 Me. 391; Sparrow v. Chesley, 19 Me. 79; Tourtellott v. Pollard, 74 Me. 418.

The discharge of an antecedent debt has always been held in our state a valuable consideration for the transfer of negotiable paper not due, so as to shut out equitable defenses. Homes v. Smyth, 16 Me. 177; Norton v. Waite, 20 Me. 175; Railroad v. National Bank, 102 U. S. 14. In many jurisdictions, such transfer, in good faith, as security merely, has also been held to so operate. Goodwin v. Trust Co., 152 Mass. 199, 25 N. E. Rep. 100; Swift v. Tyson, 16 Pet. 1; Railroad v. National Bank, 102 U. S. 14. Our decisions are to the contrary. Smith v. Bibber, 82 Me. 34, 19 Atl. Rep. 89. Does the same rule apply to the sale or pledge of chattels? In Titcomb v. Wood, 38 Me. 561, the court declares that it does not, but suggests a quaere, whether it should not, and decides the case upon a doctrine quite as questionable, viz. that the discharge of a thief from liability for things stolen is a present consideration, and not equivalent to the payment of an antecedent debt.

The case of Lee v. Kimball, 45 Me. 172, cited by the defendant, upon casual reading, might seem an authority in the defendant's

favor, and it has been sometimes cited as such; but, on examination, it will be found not to be. A cargo of coal, purchased to arrive, was sold by indorsement of the bill of lading in payment of the consignee's debt The consignor attempted to exercise his right of stoppage in transitu, and the court held he could not, remarking that, as a pre-existing debt is held a valuable consideration in the transfer of negotiable paper, on principle it would so operate in the sale of the cargo. That may be so, but the consignor did not hold the same relation to the cargo that a vendor does to merchandise sold by reason of frauds practiced upon him by the vendee. In such case, the title passes subject to the vendor's right of rescission, that, once exercised, revests the title in him. Such sale is not void, but only voidable. The consignor sold his cargo, without fraud practiced upon him. His sale, once made, irrevocably passed the title to the consignee. The sole was neither void nor voidable, and therefore he could transfer the cargo to a bona fide purchaser by indorsement and delivery of the bill of lading as effectually as by an actual delivery of the cargo. The delivery of the muniment of title was a delivery of the property, and worked an executed sale, whereby the right of stoppage became barred. Leask v. Scott, 2 Q. B. Div. 376; Clementson v. Railway Co., 42 U. C. Q. B. 273.

It should be noticed that a merchant, by the exercise of stoppage in transitu, never regains title to the property sold, but only the possession, that he may enforce a lien for the unpaid purchase money. The title all the while remains in the vendee. If the rendor converts the property, the vendee can maintain trover for it; and the value in excess of the price agreed to be paid will be the measure of damages. It is a proper subject of equity jurisdiction, where the vendor's lien can best be enforced. Phelps v. Comber, 29 Ch. Div. 821; Wentworth v. Outhwaite, 10 Mees. & W. 436; Valpy v. Oakeley, 16 Q. B. 941; Griffiths v. Perry, 1 El. & El 680; Schotsmans v. Railway Co., 2 Ch. App. 332; Ludlow v. Bowne, 1 Johns. 15; Babcock v. Bonnell, 80 N. Y. 244; Stanton v. Eager, 16 Pick. 467; Mohr v. Railroad, 106 Mass. 67; Newhall v. Vargas, 15 Me. 314.

The right of a vendee depends upon whether the resale was made to a purchaser ignorant of the fraud, and for a valuable consideration. Tourtellott v. Pollard, supra. And a valuable consideration, in such cases, means something more than the discharge of a debt that revives when the consideration for its discharge fails; it means the parting with some value that cannot be actually restored by operation of law, leaving the purchaser in a changed condition, so that he may lose something besides his bargain. Barnard v. Campbell, 58 N. Y. 73; Stevens v. Brennan, 79 N. Y. 258; Hyde v. Ellery, 18 Md. 496, 501; McGraw v. Solomon, 83 Mich. 442, 47 N. W. Rep. 345; George v. Kimball,

21 Pick. 234-240. The same rule applies to chattels pledged. Goodwin v. Trust Co., supra.

True, the discharge of an antecedent debt, in one sense, is a valuable consideration; but, if the title of the vendee fails, the discharge of his debt fails also, and he has lost nothing by the transaction. It is said that the vendor might pay his debt, and the vendee purchase the property with the proceeds. That is true if the vendor have the means to do so, but all vendors are not solvent. If they were, there would be no occasion of reclaiming property fraudulently purchased by them, no occasion to rescind the sale. Other remedies would afford adequate redress. Or, if the property be reclaimed after they had sold it in payment of their existing debts, those debts could be easily collected, and no one would suffer from the transaction; whereas, if, perchance, they are insolvent, and can, by fraud, purchase property, and apply it to their old debts, so as to leave their vendors without the power of reclaiming it, they, by defrauding one man can thereby pay the debts of another, manifestly to the shame of honest dealing and even and exact justice among men. The authorities sustain the ruling at nisi prius.

HASKELL, J. The defendant is a corporation chartered (chapter 229, Laws 1883; chapter 383, Laws 1885) to drive all logs and timber seasonably in the Passadumkeag river during the driving season, between the dam at the foot of Nicatous lake and Saponac pond, to the boom at the mouth of the river, some 20 miles below the lake. When the logs and timber arrive in the boom, a lien for the cost of driving attaches to it, and is to be paid by the owners of it.

In the spring of 1890 the company let, by contract, to plaintiff, the drive below the

foot of Grand falls, known as the "first drive," and the drive above it, and below the mouth of Nicatous stream, known as the "second drive;" to one Page, the drive between Nicatous lake and Grand falls, known as the "third drive," but not to include any logs that "may have been taken by the first or second drives." The limits of the third drive include the Passadumkeag above the falls that is also within the limits of the second, manifestly, for the purpose of taking those logs that come down the Passadumkeag above Nicatous stream, or into it from the Madagascal after the second drive shall have started. All the contracts required the drives to start when the company shall direct.

The first drive was seasonably driven in. The second drive was ordered to start May 10th. The third drive was started by Page without orders from defendant, and on the same day some of the logs began running out of the Nicatous stream into the Passadumkeag, and into the rear of the plaintiff's second drive, the body of it being over Grand falls. The second and third drives thus became mixed, and the plaintiff claimed the contract price for driving both. The cause of the mixture may have been the fault of either plaintiff or Page, or of both of them.

Exception is taken to the ruling that in either case the defendant would not be liable. This was not error. The defendant did not engage by contract to be responsible for the torts or negligence of either plaintiff or Page. On performance of their respective contract labor, the defendant became liable to pay the contract price. Suppose each of two contractors agree to haul lumber for the same owner, over the same highway. On what principle is he liable for their torts upon each other, or upon strangers? If they are mere fellow servants, certainly he is not liable for injuries between them. If not, then he is not responsible for their conduct towards any one. Had the mischief arisen from the defendant's fault in ordering the respective drives, or either of them, to start at an improper time, the case might be different, for then it might have been the necessary result of the defendant's contract duty towards each. Page started without orders, on his own account, and at his own risk. If the plaintiff has any remedy, it is against Page.

Certain Passadumkeag logs came into the company's limits, below the mouth of the Nicatous, after the first and second drives had been driven in. Plaintiff claims the contract price for driving them, because, had Page not prematurely sent the lake water down the Nicatous, and caused back water in the Passadumkeag above, these logs would have seasonably come within his limits, and have been subject to his contract. But they were not there when he was ordered, under the terms of his contract, to start his drive. When that order was given,-and there is no

evidence to show that it was improperly given, his rights became fixed. He must move, not wait. Here, again, is no injury from any improper act of defendant. If plaintiff was unlawfully deprived of any part of his drive, it was the act of Page, not of defendant, that did it. The instruction, relieving the defendant on this score, was manifestly correct. No other exceptions are pressed.

Exceptions overruled.

PETERS, C. J., and VIRGIN, LIBBEY, FOSTER, and WHITEHOUSE, JJ., concurred.

son who in his lifetime had been guilty under the bastardy statute. The incongruities that would beset such a proceeding are obvious enough. It would be a strange sight to see an administrator arrested, required to give a bond, be put on trial, and perhaps imprisoned, for an act of bastardy committed by the party officially represented by him. Besides, it would be an extremely severe and very questionable policy that would allow a living woman to swear the paternity of her illegitimate offspring upon a dead man. Exceptions overruled.

VIRGIN, LIBBEY, EMERY, FOSTER, and WHITEHOUSE, JJ., concurred.

MCKENZIE v. LOMBARD. (Supreme Judicial Court of Maine. Dec. 26, 1892.)

BASTARDY-ABATEMENT ON DEATH OF DEFENDANT. Proceedings in bastardy abate by the death of the respondent during the pendency of such proceeding in court before trial. (Official.)

Exceptions from superior court, Aroostook county.

Proceedings in bastardy by Amanda McKenzie against William Lombard. Defendant having died before the case was reached for trial, a motion to dismiss was sustained, on the ground that the action did not survive, and from such dismissal complainant brings exceptions. Exceptions overruled.

Frank L. White and Ira G. Hersey, for complainant. George H. Smith, for respond

ent.

PETERS, C. J. The question here is whether a bastardy proceeding survives against the personal representatives of a respondent who has died during the pendency of the proceeding in court before a trial has been had. We feel strongly assured that it cannot survive. The proposition finds no favor in the common law, and there is no statutory provision authorizing it. The legislature, (Rev. St. c. 97, § 11,) in 1879, passed an act allowing a proceeding of the kind to be prosecuted to final judgment by the executors or administrators of a complainant who has deceased before trial of the prosecution. Beyond this exceptional limit no statute or decision that we are aware of

has ever gone. No judgment is sought for or is obtainable against property. The process, though held to be a civil proceeding, is criminal in form, and is an extraordinary means to compel a father to assist in the support of his illegitimate child, or suffer imprisonment as a penalty for his neglect to do so. There is no fitness in the proceeding that would adapt itself to the principle of survivorship.

If the pending action survives, then the cause of action would survive as well, and the process could be originally instituted against the administrator of a deceased per

LITTLEFIELD, Attorney General, ex rel. CALLAHAN et al. v. NEWELL et al. (Supreme Judicial Court of Maine. Jan. 2, 1893.)

MANDAMUS TO MUNICIPAL BOARDS - ELECTION OF SUBORDINATE OFFICERS-PARTIES. 1. Mandamus extends to all cases of neglect to perform an official duty clearly imposed by law when there is no other adequate remedy.

2. While the court may not control their official discretion, it may compel the recusant officers to exercise it; and, while it cannot direct them in what manner to decide, it may set them in motion, and require them to act in obedience to law.

3. Where a minority of a board has shown a uniform desire to do the act required, it is the better practice to join, as parties defendant in mandamus, all the members of the board, which, by a vote of the majority, has been placed in the position of a recusant body.

4. The members of a co-ordinate branch of the city government (in this case the common council) who are not recusant should not be made parties.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Petition by Charles E. Littlefield, attorney general, at the relation of John H. Callahan and others, against William H. Newell and others, mayor and aldermen of the city of Lewiston, to compel defendants to convene in joint session for the election of subordinate officers pursuant to city ordinances. To the order granting a peremptory writ, defendants bring exceptions. Exceptions overruled.

White & Carter and Savage & Oakes, for plaintiffs. George C. Wing, for defendants.

WHITEHOUSE, J. This is a petition for a writ of mandamus filed by Charles E. Littlefield, attorney general, on relation of John H. Callahan, John Ryan, and Edwin F. Scruton, three members of the common council of the city of Lewiston, against the mayor and seven aldermen, composing the board of mayor and aldermen of that city.

By the charter and ordinances of that city, it is made the duty of the two branches of the city government, styled, respectively,

the "Board of Mayor and Aldermen" and the "Common Council," to meet in joint convention annually on the third Monday in March, or as soon thereafter as may be convenient, for the purpose of electing all subordinate officers not chosen by the people. By the uniform practice of 29 years this convention has been held and such officers elected on the third Monday of March, and by the act of 1873 the time for the election of a water commissioner was expressly limited to the month of March.

On the third Monday of March, 1892, the common council were ready and willing to perform this duty on their part in accordance with their oaths and the established usage, and three times between that date and the 11th day of April, formally asked for a joint convention by passing and transmitting to the mayor and aldermen the customary order for that purpose; but the aldermen, by a vote of four to three, on each occasion refused to concur in giving the order a passage, and the four aldermen opposing it declared their purpose to persist in such refusal, and thus prevent the election of city officers.

Thereupon, on the 5th day of April, the common council passed an order appointing the relators a committee of that body authorized to employ appropriate measures to compel the aldermen to meet in joint convention. On the relation of the committee, the attorney general, on the 14th of April, filed a petition in the supreme judicial court, setting forth in detail the facts constituting the grounds of their claim, duly verified by the affidavit of the relators, and asking that a writ of mandamus be issued against the mayor and aldermen, commanding the mayor to call a meeting of the city council, and the aldermen to assemble with the common council in joint convention, and proceed to the election of city officers. On this petition an order for notice to the defendants was granted by the court, returnable on the 3d day of May, requiring the defendants to show cause why the prayer of the petitioner should not be granted. To this petition the mayor and the four aldermen who opposed a joint convention filed a written answer, which admitted all the material facts alleged in the petition, and failed to overcome the prima facie case made by the sworn statements of the relators.

The pe

tition was therefore granted, and an alternative writ of mandamus, carefully prepared by the relators' counsel, was issued by the court against the mayor and seven aldermen, composing the board of mayor and aldermen. As the petition upon which the writ issues is not deemed a part of the pleadings, the alternative writ, standing in the place of the declaration in an ordinary action at common law, was properly made sufficient in itself to show precisely what was claimed, and the circumstances under

which the claim was made. It fully and clearly recited all the facts deemed requisite to entitle the relators to the relief claimed, and commanded the mayor to call a meeting of the city council on the 6th day of May at 7.30 o'clock in the afternoon, and the seven aldermen to assemble with the common council in joint convention, and proceed to the election of the officers named in the petition, or show cause for their re fusal so to do. The joint convention was not called or held as required by the writ, but on the 9th day of May two returns were made to the writ, one signed by the three aldermen who favored a joint convention, and the other by the mayor and the four aldermen who opposed it. In the former the three aldermen assert their willingness to meet the council in joint convention, and their desire to obey the mandate of the court, but say they are opposed by a majority of the board, and are therefore powerless to act in the premises. The contesting defendants, in their return to the writ, as in their answer to the petition, admit all the material facts stated in behalf of the relators, and do not pretend that it has ever been impracticable or inconvenient for them to participate in a joint convention, or assign any reason whatever for their refusal to perform this important public duty on any of the occasions when invited so to do by the common council. To the petitioner's specific allegation that the defendants do not intend to meet the council in joint convention for the election of city officers, and that they have so declared, the defendants make the general reply that they have taken the prescribed oath to perform their duties, and intend so to do, and thereupon interpose the technical objection that the writ is not issued against the common council, as well as the board of mayor and aldermen.

This return is deemed by the court wholly unsatisfactory and insufficient.

It is not in controversy that the petitioners have sought the appropriate remedy. It is a well-settled rule that mandamus extends to all cases of neglect to perform an official duty clearly imposed by law when there is no other adequate remedy. If the officers are required to act in a judicial or deliberative capacity, the court cannot, it is true, control their official discretion, but may by its mandate compel them to exercise it. It cannot direct them in what manner to decide, but may set them in motion, and require them to act in obedience to law. Williams v. County Com'rs, 35 Me. 346; Carpenter v. Commissioners, 21 Pick. 258; Mos. Mand. 104-147; High, Extr. Rem. § 323; Dill. Mun. Corp. 675; Attorney General v. City Council of Lawrence, 111 Mass. 90; Lyon v. Rice, 41 Conn. 248; Lamb v. Lynd, 44 Pa. St. 336. In Attorney General v. City Council of Lawrence the petitioner asked for a mandamus to compel the two branches of

the city council to meet in joint convention and elect a street commissioner. After referring to the provisions of the city charter, the court said: "The duty to proceed to this election in the manner pointed out is not a matter of discretion, nor dependent upon the judgment of either branch of the government, or of the members of either branch. If it were so, there could be no remedy by mandamus. The court does not attempt to control the judgment and discretion of the individual members when assembled in the choice then to be made. But it may properly by mandamus require the two branches to meet in convention as a required preliminary step to the election of some one to this office; otherwise, the anomaly would arise of a minority of those who must constitute the convention being able to defeat an election if they were only a majority of either branch."

In the case at bar it has been stated that all the subordinate officers not chosen by the people, with the exception of the water commissioner, are required to be chosen "on the third Monday of March, or as soon thereafter as may be convenient;" but it is not claimed that any such latitude of discretion is here accorded to the city council as would relieve them from the obligation to choose these officers either on the third Monday of March or within a reasonable time thereafter. What is a reasonable time, when the facts are all disclosed to the court, is a question of law, (Attorney General v. City Council of Lawrence, supra;) and, in the absence of any excuse whatever for not performing this duty prior to the 6th of May, it is not difficult to determine that a reasonable time had already elapsed.

The objection that the writ is not also issued against the members of the common council must be regarded as entirely without merit. The mandate of the court is required to compel the unwilling, and not the willing, body,-to compel those who refuse, and not those who consent,-to act. The common council have never refused, but have always consented, and diligently sought the opportunity, to act. They have caused these proceedings to be instituted by their committee duly appointed for that purpose, and are already in the position of parties plaintiff. It would be superfluous to make them also parties defendant. It would unjustly subject the innocent to the imputation of wrongdoing.

This is not a case where the writ is issued against a part only of the same board or body of men. The writ is here addressed to all the members of the board of aldermen, including the three who consented, as well as the four who refused, to act. No others need be joined as defendants. This is well settled both by reason and authority. It would undoubtedly have been a good re

turn to the alternative writ if the defendants had truthfully replied that a meeting of the city council was called, and a joint convention proposed by them, in obedience to the command in the writ, but that they were prevented from holding a joint convention by the refusal of the common council to join them. Nothing of this kind, however, is found in the return. It discloses no purpose on the part of the contesting defendants to perform the duty required of them. The objection is now wholly irrele vant and without force.

Lamb v. Lynd, supra, is a case precisely in point, and the rule of procedure which there appears to have received the sanction of the court goes one step further than that contended for in the case at bar. The petitioners were members of the common council of Philadelphia, and prayed for a mandamus, "requiring members of the select council, being a majority thereof, to assemble in joint meeting with the common council, and proceed to the election of certain municipal officers required by the charter." The select council consisted of 25 members, and the case not only shows that the common council were not joined as parties defendant, but it appears that the writ of mandamus was issued, as prayed for, against the 13 members only of the select council who had refused to meet in joint convention. The better practice, however, undoubtedly, is to join, as parties defendant, all the members of the board, which, by a vote of the majority, has been placed in the position of a recusant body, although a minority may have uniformly shown a desire to do the act required; and the great weight of authority will be found to support this rule. Lyon v. Rice, supra; State v. Jones, 1 Ired. 129; High, Extr. Rem. §§ 314-440; Tapp. Mand. 314; Mos. Mand. 199. Such, it has been seen, was the course pursued by the petitioners in this case. On the return made by the defendants, therefore, the ruling of the presiding judge that a peremptory writ of mandamus should issue was clearly and unquestionably correct. A minority of those who would constitute the joint convention should no longer be permitted to defy the law and obstruct the due administrations of public affairs. A peremptory mandate of this court, compelling the recusant defendants to perform an official duty, clearly defined by law, and well understood and acknowledged by them, is demanded by a just regard for the free voice of the people, and the orderly and decorous conduct of the government, as well as the dignity of the law and every consideration of public justice.

Exceptions overruled.

PETERS, C. J., and WALTON, VIRGIN, EMERY, and HASKELL, JJ., concurred.