the jury in this trial, the county attorney proceeded to say that in his judgment these defendants were all guilty of the offense charged against them in the indictment; and that, if the jury so found by their verdict, he should not put Pollard on trial on the indictment against him, because he should regard a conviction of these defendants as equivalent to an acquittal of Pollard on the indictment against him, while he should regard an acquittal of these defendants as equivalent to a conviction of Pollard on the indictment against him. When the county attorney was making this statement, the counsel for the defendants broke in upon him by way of protest against such a statement by the county attorney, when the presiding judge told said counsel not to interrupt the county attorney, and allowed the county attorney to proceed, whereupon the county attorney repeated the statement."

An exception was taken to the judge allowing the county attorney to make the above statement, and to repeat it after objection made by the counsel for the defense.

Courts have of late been more particular than formerly in their efforts to require counsel, especially counsel who have the closing argument, to conduct the trial of causes within the rules; and in several recent instances new trials have been granted by this court where counsel have in their arguments indulged in immaterial, but prejudicial, statements of law or fact, in spite of the disapproval of the presiding judge.

We think the judge should have yielded to the objection of respondents' counsel, and corrected any false impression which the jury might have obtained from the objectionable statements. All the parties implicated, both respondents and complainant, may have been guilty of the offenses charged against them, or some or all may have been innocent; and still there was danger that the jury, or some of them, might feel inclined to exonerate the complainant of the aggravated offense charged against him by their consenting to a conviction of the respondents for the minor offense charged against them. But, inasmuch as the judge in his charge stated the consequences of a verdict either way with great clearness, we apprehend that the prejudicial influence so strongly deprecated by the counsel for the respondents was prevented in the end. The judge said:

"Now, this being clearly and purely a question of fact, it is of course for you, on your responsibilities as jurors, to determine where lies the truth. It has been put in evidence here by the defendants that Mr. Pollard, this complainant, is under indictment for shooting one of these parties indicted here for this assault. The purpose, and the only purpose, for which that indictment was allowed to be read to you, was to show the circumstances under which

Pollard testified before you, because it is proper that the jury should know whether or not there are any influences which might or might not bias him in the giving of his testimony, and therefore I permitted the fact of his being under indictment to go before you. You are not trying Pollard upon that indictment, and you are not by your verdict here to determine his guilt or innocence in the use of his pistol under the circumstances detailed here, and it is not for me to instruct you in this case with regard to the responsibility which he assumed when he undertook to fire his pistol upon that occasion. The question alone which you are to determine here is whether or not he himself was assaulted,-whether an assault and battery was committed upon him on that occasion."

TAXATION-REALTY - PIPES OF WATER COMPANY.

The water pipes, hydrants, and conduits of a water company, laid through the streets of a city or town, are taxable as real estate to the company in possession of them, under our statute, in the city or town where they are laid. (Official.)

Action by the inhabitants of Paris against the Norway Water Company to recover taxes. Heard on an agreed statement of facts. Defendant defaulted.

This was an action of debt, brought in the name of the inhabitants of Paris, for the collection of a tax assessed by the assessors of said town against the Norway Water Company, as a nonresident, on its property in the town of Paris, viz. on its aqueducts, pipes, conduits, hydrants, and franchises within said town, as real estate. The assessors of said town were duly elected and qualified at the annual meeting in March, 1890, duly called. The assessors gave notice in writing as required by Rev. St. c. 6, § 92, and said corporation did not make or present any list to said assessors. In the apportionment of taxes for state, county, and town purposes for the year 1890, said assessors assessed against said corporation the sum of $73.50, and thereafterwards, on the 8th day of July, 1890, committed the said tax, with the other taxes assessed for that year, to the collector, who was duly elected and qualified, under a warrant in due form of law. Said collector duly and properly returned the tax so assessed against said corporation, within the time required, to the treasurer of said town, who was duly elected and qualified. The acts and duties of

said treasurer in receiving and recording said tax were in due form. Demand for the payment of said tax was seasonably made before commencement of this suit. The suit was properly authorized by the selectmen. The defendant is a legally organized corporation, having its place of business at Norway, in the county of Oxford, and owning therein a pumping station, reservoir, and certain pipes and hydrants, with rights, as defined by its charter, to take water from Pennesseewassee lake, in Norway. Its pipes and hydrants extend into Paris, and through the village of South Paris, for the use of which water the said corporation is paid. Said corporation owns no property in said town of Paris, except its aqueducts, conduits, pipes, and hydrants, as described in the assessment of said tax; and its pipes and hydrants in Paris are supplied from the pumping station and reservoir in Norway.

Upon the foregoing statement of facts and evidence introduced, the court were to render such judgment as the rights of the parties require, and, if for plaintiff, the amount due shall be assessed at nisi prius, as a petition for abatement, before the county commissioners, is now pending.

J. S. Wright, for plaintiff. Bearce & Stearns, for defendant.

HASKELL, J. Debt for a tax laid upon defendant's aqueducts, conduits, pipes, and hydrants, as real estate, within the town of Paris. These appliances are used to distribute water among the citizens of Paris, supplied by a pumping station and reservoir in Norway, where the defendant corporation has its place of business. By charter, (Acts 1885, c. 369; Acts 1887, c. 46,) defendant is authorized to supply the inhabitants of Paris and Norway with water, and to lay pipes necessary for the purpose through the streets of both towns. The charter does not locate the corporation in either town.

*

Taxes on real estate are to be assessed "in the town where the estate lies, to the owner or person in possession thereof," (Rev. St. c. 6, § 9;) and real estate, for the purposes of taxation, includes "all lands * and all buildings erected on or affixed to the same," (Id. § 3;) and the word "lands" includes "all tenements and hereditaments connected therewith and all rights thereto and interests therein," (Id. c. 1, § 6, rule 10.) Under these provisions, a boom across the Kennebec river, fastened to permanent piers in the river and to the shores by chains, was held to be real estate, for the purposes of taxation. Hall v. Benton, 69 Me. 346. So was that part within the state of a toll bridge across a river that marks the boundary line. Kittery v. Portsmouth Bridge, 78 Me. 93, 2 Atl. Rep. 847. Water pipes were assessed in solido with personal property in Rockland v. Water Co., 82 Me. 188, 19 Atl. Rep. 163, and in a suit for the tax it was contend

ed that they were real estate, and improperly included in an assessment with chattels; but the court, without deciding the question, held it immaterial, as the controversy was one of overvaluation, merely.

It will be seen from these authorities that the court gives very wide scope to the definition of "real estate," for the purposes of taxation, and it is best that it should be so. Subjects of public revenue should contribute to the public burdens so that they may lie as equally as possible among all the people; and, in these days, when capital accumulates in commercial centers, many times representing contrivances, local and permanent in character, that contribute an income, it is just that such source of profit pay its tax where its location may be.

Aqueducts above or under ground are but conditions suited for carrying water, undefiled, through or over the soil. They are fixtures, permanent in character, and part of the land that sustains them. Size, capacity, and the material used in their construction, do not change their nature. They are a constituent part of the freehold, and, so long as they remain the property of the owner of the fee, their character as real estate will not be questioned. It is only when they are constructed and occupied by persons or companies having no title in the soil that their classification as property becomes doubtful; that is, the interest of such persons or companies in them becomes of doubtful classification, rather than their generic character, regardless of ownership. The owner of a fee may, by sale of some structure upon it, and by granting license for it to remain, as between himself and the vendee, make it a chattel, while as a whole, in a generic sense, it would be classified as real estate.

The proper classification, under the rules of the common law, of this species of property, is not a new question. It has been many times considered in England during the last century; and water mains and underground conduits have there been considered as fixed to, included in, and a part of, the soil. They have been considered real estate, and have uniformly been held locally taxable as such to the "occupiers of lands," under the statute of 43 Eliz., or, as our statute puts it, "to the person in possession thereof." King v. Mayor, etc., of Bath, 14 East, 610; King v. Waterworks, 1 Maule & S. 634; King v. Gaslight & Coke Co., 5 Barn. & C. 466.

Under the statute of 38 Geo. III., laying taxes upon the owners of "lands and hereditaments," the pipes of a water company in a street were held to be not taxable as land to the owners of them. Lord Campbell says: "The right in question, where exercised, appears to us to be in the nature of an ease ment, and neither land nor hereditament. The right is to convey water through the land of another; and whether the water is to be conveyed upon the surface of the ground, or in covered drains, or in pipes,

* *

appears to us, for this purpose, to be immaterial. The mere power to lay the pipes in land cannot be considered land or hereditaments; nor do we think that the pipes, when laid, can be so considered, within the meaning of the land-tax acts. The company are not the owners of the land where the pipes lie, nor are they the tenants of the land. * The moment the company take up their pipes which had been laid under the streets of any particular parish, all pretense for saying that they have or held land in the parish would be gone; but, after the pipes are removed, all the land in the parish would remain, and it would be had and be held as before. * * * But 'land,' like the word 'inhabitant,' which likewise occurs in 43 Eliz. c. 2, has various meanings; and it may, in that statute, passed to throw a charge upon the occupier, mean the ground on which a chattel is deposited in the exercise of an easement, although, in other acts of parliament, it means a legal interest in the soil. This is the meaning which we think it bears in the land-tax acts." Waterworks v. Bowley, 17 Q. B. 358.

The city of Providence laid a tax on the pipes of the gas company in the streets, as real estate, under a statute authorizing such a tax against those "who hold or occupy the same," and it was held a valid tax, like those laid under the statute of Elizabeth. Gas Co. v. Thurber, 2 R. I. 15.

So a pipe line laid through the soil of New Jersey, under grants from the owners of the fee, is not only real estate, when considered as a part of the fee, but is held, for the purposes of taxation, to be real estate of the company owning it, under a statute defining "real estate" as including all lands, and all buildings or erections thereon or affixed thereto. Pipe Line Co. v. Berry, 52 N. J. Law, 308, 19 Atl. Rep. 665.

Com. v.

Gas mains and pipes are sometimes distinguished from the class of property now under consideration, as apparatus for the delivery of the manufactured article, and are considered machines or chattels, Gaslight Co., 12 Allen, 75; Memphis Gaslight Co. v. State, 6 Cold. 310. Water pipes, etc., are not machinery. Dudley v. Aqueduct Corp., 100 Mass. 183.

The public has an easement in land, over which streets and roads are laid, coextensive with the necessities of public use. No title in the soil is acquired thereby, and when the ways are discontinued the easement is extinguished. Private corporations, like gas companies, water companies, and street-railway companies, by legislative authority, are sometimes allowed the use of the public easement to serve the necessary demands of society, and without any additional compensation to the owner of the soil. Such companies, therefore, by the public license accorded them, take no title in the land. They are simply allowed to use it for the public convenience as a counterbalancing considv.27A.no.3-10

eration for their expenditures, giving oppor tunities to gather tolls from its use. In using the street or road, they place their pipes or rails in or upon the ground, there permanently to remain. They occupy land with appliances that become valuable for the revenue they yield. These appliances are fixed, permanent, used in connection with the soil that supports and sustains them. When considered as the property of their respective companies, they are not land, within the common-law rule. But, when considered as if owned by the same person who has title to the soil, they may properly enough be so considered. Suppose the street, with these appliances in it, be discontinued, and they be abandoned, without removal, and pass to the owner of the soil, who should then lease them, in gross or singly, to tenants or persons desiring to operate them. Would they not be real estate, when considered with the property as a whole? Would they not pass by a deed of the land? Why, then, may they not properly enough be assessed as real estate, and to the person in posession of them? Their value as chattels would be nominal. Water pipes buried in the ground as chattels would be of little or no value. It is the use that gives them value, and that use is strictly of a fixture,-a permanent appliance. bearing upon this view, see Water Co. v. Lynn, 147 Mass. 31, 16 N. E. Rep. 742; City of Fall River v. Bristol, 125 Mass. 567; People v. Cassity, 46 N. Y. 46.

As

In the last case cited, in considering the validity of a tax upon a street railway as land, under a statute very similar to ours, Folger, J., said: "The statute means, for its purpose, to make two general divisions of property,-one, all lands; another, all personal estates, and then, to be more definite, it declares that by 'land' is meant the earth itself, and also all buildings and all other articles erected upon or affixed to the same. We do not think that, when buildings or other articles are erected upon or affixed to the earth, they are not, in the view of the statute, land, unless held and owned in connection with the ownership of a fee in the soil.. We are of the opinion that the statute means such an interest in real estate as will protect the erection or affixing thereon, and the possession, of buildings and fixtures, which will bring those buildings and fixtures within the term 'land,' and hold them to assessment as the lands of whomsoever has that interest in the real estate, and owns and possesses the buildings and fixtures. The defendants are right, then, in considering the track of the relators as land, and liable to assessment as such."

In our opinion, water mains, pipes, etc., may be considered real estate, and taxable, where they are located, to the person or company owning them. The idea that they may be considered appurtenances to the place of supply and taxable there is untenable. There is no principle upon which it

can rest. King v. Bath, supra, and King v. Gaslight & Coke Co., 5 Barn. & C. 466. See Manufacturing Co. v. Newton, 22 Pick. 22. The Iowa doctrine, that waterworks are real estate, and taxable as an entirety at the place of supply, is not supported by authority. Oskaloosa Water Co. v. Board of Equalization, (Iowa,) 51 N. W. Rep. 18.

Defendant defaulted.

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

WESCOTT v. STEVENS.

(Supreme Judicial Court of Maine. Feb. 25,

1893.)

ACTION ON NOTE-RIGHTS OF ACCOMMODATION INDORSER.

One who indorses a note at the request of and for the accommodation of the maker may elect in what capacity to become bound, and, if the payee has already indorsed the note, and he signs as second indorser, in the absence of any agreement with the payee to the contrary, may look to him for the payment of the note.

(Official.)

Action on a note by George L. Wescott against Churchill L. Stevens. Defendant had judgment, and plaintiff brings exceptions, and moves for a new trial. Motion and exceptions sustained.

This was an action of assumpsit on a promissory note, which was admitted to be a renewal by several intermediate renewals of a note dated November 7, 1888, viz:

"$300. Bar Harbor, Nov. 7, 1888. Three months after date, I promise to pay to the order of C. L. Stevens three hundred dollars, at any bank or banking house in Maine. G. A. Barron. Indorsed: C. L. Stevens. G. L. Wescott."

It appeared that the maker, Barron, owed Stevens, and gave him this note, and that Wescott, the plaintiff, owed neither Barron nor Stevens, but became an accommodation party to the note; that the note, with Wescott's name on it under Stevens', was discounted by Stevens at a bank; that at its maturity this note was renewed by the same parties, signing in the same respective places, and successively renewed; that the bank finally refused any further renewal, and called upon the plaintiff, Wescott, as last indorser, to pay the amount due, with protest fees; that the plaintiff paid the amount to the bank, took up the note, and brought this suit against Stevens as prior indorser. The defendant admitted that this is prima facie the relation of the parties, but contended that, by the circumstances of the signing, the plaintiff became, as between the original parties, a surety for the maker, and consequently a joint promisor with him; and the defendant introduced evidence tending to show that the plaintiff indorsed the note at the request and for the accom

modation and benefit of Barron, whereupon the plaintiff introduced evidence to the contrary, tending to show that he indorsed sole ly at the request of Stevens, and after the note had been delivered to and indorsed by Stevens, and not even in Barron's presence. The defendant introduced evidence to show that, at the time the original note was given, Barron, the maker, was indebted to him for labor performed on certain buildings erected by Barron, and endeavored to effect a settlement in part by giving this note, with the understanding that defendant should try to get the note discounted at bank, and, if this could not be done, that it should be returned to Barron, and he would procure an indorser in order to make the note acceptable to defendant. The note was not taken by Stevens at this time as a final settlement, but simply for the purpose of ascertaining if it could be discounted.

The note was refused at the banks, and Stevens thereupon returned with it to Barron, who then, in pursuance of his agree ment, requested and obtained the indorse ment of Wescott. The defendant contended that this indorsement was solely for the benefit and at the request of Barron, and that it was before the final and complete delivery of the note to the defendant and its acceptance by him.

Stevens was entitled to a lien for his work for which Barron was anxious to effect a settlement. There was evidence showing that Wescott had indorsed many notes for Barron, and had extensive business relations with him, but he had never indorsed a note for Stevens, nor had there ever been any business relations between them.

The plaintiff contended that the sole point was not at whose request and for whose benefit he indorsed the note, but at what time he indorsed,-whether before or after delivery to the payee or indorsement by the payee; and he requested the presiding justice to rule as matter of law that the liability of the plaintiff would be either that of second indorser or original promisor; that, to be an original promisor, he must have indorsed the note before delivery to the payee, (or afterwards, in pursuance of a prior agreement to do so,) and before indorsement by the payee; that it is immaterial at whose request the plaintiff indorsed the note if he indorsed after delivery or after a prior indorsement by the payee; that, if the plaintiff indorsed after the prior indorsement of the payee, the plaintiff would be treated as a second indorser, and parol evidence that he indorsed for the accommodation of the maker would be inadmissible.

The presiding justice declined to make such ruling, but instructed the jury in his charge, in substance, as follows: "He [the plaintiff] accommodates some party by signing it. Now, the defense contends that the accommodation was for Barron's benefit, and the plaintiff contends that it was, as

the note reads, for the defendant's benefit. Now, the point is within rather a narrow compass, and it is for you to say whether the defendant satisfies you, by at least a greater weight of evidence on that side than on the other, that his signing was for the benefit of Barron, and not, as the note would indicate, for the benefit of Mr. Stevens."

Wiswell, King & Peters, for plaintiff. Hale & Hamlin, for defendant.

HASKELL, J. Assumpsit by the last indorser of a promissory note, who had paid it at maturity, against a prior indorser. The defense was that plaintiff indorsed the note at the request of and for the accommodation of the maker, and was therefore, qua the defendant, a joint promisor. The defendant was the payee, and had indorsed the note before the plaintiff indorsed it.

It is immaterial to inquire for whose accommodation the plaintiff made his contract, but material to know the terms of his contract. If the maker presented the note, already indorsed by the payee, to the plaintiff, with a request to become a party to the note, he had the choice in what capacity to become bound. He might have elected to sign as maker, but did not. In effect, he handed the maker the cash, and took the note. That was the result of his contract, and it is very plain that he intended, by his indorsement, to look to the note, as it was when he indorsed it, for his security; otherwise, he would have signed in a different capacity. By signing as he did, he accommodated the maker all the same, gave currency to the note, and looked to the note for his security. He be came bound as indorser. That was the contract made. Sometimes the order of indorsements may be shown to be different from what they appear to be. Such proof shows what the writing was when made, therefore what the written contract was.

Coolidge v. Wiggin, 62 Me. 568, is precisely in point. The defendant, as payee, and plaintiff successively indorsed the maker's note for his accommodation, and, in the absence of an agreement between them to be sureties merely, they were held bound to each other as successive indorsers. There the indorsements were both at the request of the maker. Here, if plaintiff's indorsement was at the request of the maker, without any agreement with defendant, whose name was already on the note, a fortiori the defendant should be held to a completed contract, on which plaintiff paid his money. Stevens v. Parsons, 80 Me. 351, 14 Atl. Rep. 741; Colburn v. Averill, 30 Me. 310; Dubois v. Mason, 127 Mass. 37; Bigelow v. Colton, 13 Gray, 309; Howe v. Merrill, 5 Cush. 80; Smith v. Morrill, 54 Me. 48; Williams v. Smith, 48 Me. 135.

Moreover, the weight of evidence is clearly

against the contention of the defendant that plaintiff indorsed at the request of and solely for the accommodation of the maker. That is his account of the transaction, but the maker and plaintiff squarely deny this. They both say that the indorsement was not procured at the maker's request, and the plaintiff says that it was made at the defendant's request. Their account is corroborated by the circumstances.

Motion and exceptions sustained.

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

CONANT v. LESLIE.

(Supreme Judicial Court of Maine. Jan. 12,

1893.)

SLANDER MALICE EVIDENCE.

1. In an action of slander, for the purpose of showing malice, the utterance of the slanderous charge on other occasions, either prior or subsequent to the time laid, is competent as showing that the words charged were spoken maliciously, and thus tended to aggravate the wrong and injury for which the plaintiff seeks to recover compensation.

2. But evidence of a charge of a different nature, or of a different and distinct calumny, at a different time from that alleged, is inadmissible to prove malice, or for any purpose.

FOSTER, J.

This is an action of slander, in which it is alleged that the defendant uttered of and concerning the plaintiff the following false, scandalous, and defamatory words: "He stole one thousand dollars from the M. and M. Lodge."

The plaintiff, in his evidence in chief, offered the testimony of one Arion C. Pierce to a conversation between the witness and defendant at Old Orchard, about two months prior to the slander complained of. It was not offered by counsel or admitted in support of a substantive charge upon which the plaintiff claimed to recover, but as showing the motive or malice of the defendant, and for such purpose only. But to its admission we think the defendant's objection must be sustained.

The slander relied upon, as appears from the evidence, related to the fact that the plaintiff had applied to the lodge of Odd Fellows of which he was a member, and one of the trustees, for a loan of money, and that he had received $2,500,-the defense claiming that the application made by the plaintiff was for $1,500 only.