337, 8, then under consideration, provided that "the notice of sale required to be published in the public newspapers three weeks successively, shall be so published three weeks prior to the time of sale." The court said: "We understand the provision to mean that the notice, by advertising three weeks successively, shall be completed three months prior to the sale." The only difference is that in the case at bar the notice is required to be published three weeks successively after a certain date, and the act of 1826 three weeks successively prior.

So in New Hampshire, where the statute required the sale to be advertised by "publication for three successive weeks, at least six weeks before sale," the court held that "the last publication shall be at least six weeks before the sale." Mowry v. Blandin, 64 N. H. 3, 4 Atl. Rep. 882.

Application: The collector's return was made on February 25, 1890. The three weeks' publication should have been completed "within three months" after that date, -on or before May 25, 1890,-bút it was first published on May 22, and last on June 5, 1890. McLaughlin, therefore, at the time of the alleged trespass, had no legal title to any of the property of the three mining corporations named.

The plaintiff's title to the Stewart property is not sound. One link in its chain of title is derived from one Laughton, who recovered a judgment against that corporation at the January term, 1887, in Penobscot county. On the execution issued on such judgment the sheriff sold the debtor's property at auction to the creditor who was the highest bidder, and undertook to convey it by deed of April 9, 1887. But the deed conveyed no title, for it was not a sealed instrument. McLaughlin v. Randall, 66 Me. 226.

Did the plaintiff have such a possession of the Stewart property as would entitle it to maintain trespass against the defendant, who was not a mere stranger and wrongdoer, but claimed title to the property under a tax deed for which he had paid $700 cash?

As seen, the plaintiff had purchased in, as it supposed, all the outstanding record title and claims, and had worked the property for one year, when its operations ceased. One Dunn had been its manager and superintendent, at least during the operation. He retained the keys thereafter; but the locks were taken off, some of the windows broken, the buildings became out of repair, the roofs leaky, so that the storms had reached and rusted some of the valuable machinery, some of the less valuable of which, with sundry tools and implements, had been carried away. In fine, the whole property, inside and outside, seems to have had the appearance of gross neglect and final abandonment to the tax gatherer, who had sold it at auction a year or two before.

Dunn did not seem to consider himself as the plaintiff's agent, in charge of its proper

ty, during any portion of the seven weeks while the defendant was severing the engines, boilers, and other heavy machinery, and taking down sides of buildings necessary for their removal, for, while he was a witness to these proceedings, he made no complaint or protest. To be sure, the plaintiff's directors, on April 21, 1892, formally voted that he was its local agent, and had been such ever since the company's ownership, though no formal recorded vote to that effect was in existence, but "recognized, approved, and adopted Dunn's acts as those of the corporation, and his possession that of the corporation." The difficulty is, he had performed no acts indicating that he was in possession for the purpose of caring for the property; but he seemed to look upon what was going on as the acts of one whose principal had purchased the property at a tax sale for $700, and that it was a matter which did not concern the plaintiff. We are of opinion, therefɔre, that so far as the Stewart property is concerned the action at law cannot be maintained.

On recurring to the declaration, it is found that the only trespass sued for is that committed upon the Douglass and Stewart properties, which were adjoining. The action is trespass quare clausum, and the gist is the breaking and entering. Sawyer v. Good win, 34 Me. 419. The defendant is responsible for such breaking, and for all other injuries done to the property, real or personal, known as the "Douglass," after such breaking.

The bill covers all three of the properties, and must be sustained as to the Douglass and Bluehill, the plaintiff's title to which is not questioned. The injunction to be made permanent as to both of them, with costs.

If the Bluehill property was injured, no damages can be recovered therefor in this action, for none are claimed in the declaration.

The plaintiff is therefore entitled to judgment as above indicated, damages to be assessed at nisi prius as stipulated in the report.

The deposit made by the plaintiff pursuant to Rev. St. c. 6, § 205, should be returned to him. Dunn v. Snell, 74 Me. 28. Judgment for plaintiff.

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

voluntarily performs a service without express or implied promise of payment.

3. Where the plaintiff loaned his tools for a few minutes, and rendered the trifling service of receiving from the foreman's hand a board which might otherwise have been allowed to fall without danger of injury, held, that they were only spontaneous acts of friendly accommodation, performed under circumstances which distinctly repel any implication of a promise to make payment. They were not labor which creates the obligation of debt, and which draws after it the security of a lien. (Official.)

Heard Personal

Action by Ernest L. Cole against John E. Clark to enforce a mechanic's lien. on an agreed statement of facts. judgment for plaintiff.

Deasy & Higgins, for plaintiff. J. A. Peters, Jr., for owners.

WHITEHOUSE, J. The defendant, Clark, built the "King Cottage" under a contract with the owners. The plaintiff worked in his employment in erecting it, and brings this suit to enforce a lien on the building to secure the payment of a balance of $123.27 for labor performed between February 15th and August 4th, and "one-half hour's labor" alleged to have been performed on or about August 24, 1891. The statute provides that the lien shall be dissolved unless the claimant files in the office of the town clerk a true statement of the amount due within 30 days after he ceases to labor. The plaintiff claims that he complied with this requirement, and preserved his lien by filing such statement on the 12th day of September, 1891. The owners, who appear in defense, claim that he "ceased to labor" on their cottage on the 4th day of August. They therefore contend that his statement was not seasonably filed in the clerk's office, and that his lien was accordingly dissolved. This is the only question presented for the determination of the court. It is not in controversy that the plaintiff ceased to labor on the King cottage August 4th, unless the incident of August 24th, hereafter described, can reasonably be deemed labor on that day, within the meaning of the statute.

The plaintiff was discharged from the work on the cottage and removed his chest of tools August 4th, and a few days after, prior to August 24th, a bill of his time on the cottage was rendered to Clark by the foreman with the plaintiff's knowledge. The plaintiff was never engaged in or about the cottage at work again, but remained in Clark's employment in the workshop, threefourths of a mile distant, and performed such work as was there assigned him. the 24th of August, the foreman, Mr. Lawrence, had occasion to place some moulding between two piers at the cottage, a piece of extra work not called for by the contract. The labor alleged to have been performed at that time is thereupon described as follows in the agreed statement:

On

"Not having the necessary material on the ground, Lawrence went to Clark's shop to

prepare it. At the time he arrived there, Cole was around the stable, doing nothing, it being the noon hour. Cole's tool chest was in the shop over the stable. When Lawrence went up to the shop over the stable at about 1 o'clock, Cole followed of his own accord. In the shop Lawrence asked Cole for the loan of his tools, with which to prepare a moulding. Cole complied with that request, and took his 'hollows' and 'rounds' from his chest, near which was the bench. Some lumber being stored on the rafters overhead in the shop, Lawrence swung himself onto the rafters and lumber thereon, and selected a board, and, instead of dropping it, he passed the board down between the rafters, and Cole, who was underneath, took the end nearest him, and laid the board on two wooden horses or benches near by. Lawrence lowered himself down, and began work on the board, and made of it a moulding, which was used as aforesaid. Cole did nothing further, except to receive back his tools when Lawrence was through. When Lawrence began his work on the board, Cole began filing a saw for himself. He worked the rest of the half day for Mr. Clark on another job. Nothing was said by either Cole or Lawrence about any charge being made for the above by Cole. Cole himself keeps a book in which he enters his labor by date, person, time, or otherwise. But in doing several small jobs on the same day or half day it has been his practice to make one charge to Mr. Clark, without designating the place where the work was done; and in this case, for the afternoon in question, he charged Mr. Clark with a half-day's work, but made no special charge for the work above mentioned."

The mechanic's lien, though arising by virtue of express statute, is obviously dependent upon the existence of contract and the obligation of debt. The contract is the principal thing, and the lien the incident, following the legal liability to pay. Whenever this obligation fails to arise, the security ceases to exist. Farnham v. Davis, 79 Me. 282, 9 Atl. Rep. 725; Wescott v. Bunker, 83 Me. 499, 22 Atl. Rep. 388; Phil. Mech. Liens, 112; Overt. Liens, § 564; 2 Jones, Liens, 1235. "There can be no lien," says Judge Thurman in Choteau v. Thompson, 2 Ohio St. 114, "unless there is a debt, and it would be idle to presume an intention to guard against liens that could never exist for want of a debt to support them." Hence there can be no lien in favor of a party who voluntarily performs a service without express or implied promise of payment. It is a familiar principle that, when services are rendered with the knowledge and consent of another, under circumstances consistent with contract relations between the parties, a promise to pay is ordinarily implied by law on the part of him who knowingly receives the benefit of them, and is enforced on grounds of justice in order to compel the

It is plain that the appeal was prematurely entered, and should have been dismissed. Clark v. Railroad Co., 81 Me. 477, 17 Atl. Rep. 497. But it is urged that appellees agreed, in writing, that the appeal might be entered at the April term. Be it so. They saw fit to repudiate their agreement, and seasonably, the next day after their appeal was entered, moved to dismiss it. The jurisdiction of the supreme judicial court in such matters is purely appellate, and only exists by force of statute. Consent of parties never gives a court jurisdiction. State v. Bonney, 34 Me. 223; Powers v. Mitchell, 75 Me. 372.

As said by the supreme court of Massachusetts: "The consent of parties to the entry of this appeal at a term of court which was not the time fixed by law for such entry could not give the court jurisdiction of the appeal, and it is accordingly dismissed." Eddy's Case, 6 Cush. 28; Palmer v. Dayton, 4 Cush. 270; Clark v. Railroad Co., 81 Me. 477, 17 Atl. Rep. 497. Want of jurisdiction may be taken advantage of at any time before judgment. Custy v. Lowell, 117 Mass.

78.

A valid appeal vacates a valid decree or judgment, and, until affirmed in the appellate court, there is neither. Knox v. Lermond, 3 Me. 377; Winslow v. Commissioners, 31 Me. 444; Atkins v. Wyman, 45 Me. 399; Tarbox v. Fisher, 50 Me. 236; Hunter v. Cole, 49 Me. 556. Not so with insolvency appeals, by reason of the peculiar provisions of Rev. St. c. 70, § 12, nor with void appeals from valid judgments, for they give the court no jurisdiction of the cause, (Cleveland v. Quilty, 128 Mass. 578, and cases cited,) nor with valid appeals from void judgments, (White v. Riggs, 27 Me. 114; Bank v. Young, 53 Me. 555.)

It may be said that the appellees should not be allowed to repudiate their agreement, and thereby deprive the appellants of their appeal, and leave them bound by a decree that cannot now be appealed from, and especially as that decree was pro forma only, leaving a determination of the cause without any judicial consideration. Certainly not.

The decree does not purport to be a decision upon the merits of the question. It can be no bar to a new petition. Moreover, the statute requires the insolvent court, on objections in writing to the allowance of a claim that has been filed, "to admit the claim to be proved," or "disallow the same in whole or in part." Rev. St. c. 70, § 25. This decree did neither. It simply dismissed

the petition, without passing any judgment upon the claim, and without intending to do so. An appeal is given, not from a dismissal of a petition of this sort, but "from the decision of the judge, allowing or disallowing, in whole or in part, any debt, claim or demand against the debtor or his estate." The filing of a claim, under oath, is prima facie only. When objections are filed, the validity of the claim is to be inquired into, and its status determined by a decision upon the claim. Until this is done the validity of the claim has not been determined, and it is open to objections by any party interested. Exceptions sustained. Appeal dismissed.

1. A charter was granted to the Proprietors of the Machias Boom by the commonwealth of Massachusetts, by act passed February 13, 1808, for the purpose of laying and maintaining a boom across the west branch of Machias river; and therein specified fees and tolls were allowed for "rafting and securing" logs and timber. The legislature, however, reserved the right, at all times, to revise and alter said fees and tolls. By special act of the legislature of this state, passed in 1891, (chapter 174,) the fees and tolls were changed, and a rule established by which to fix the price for "sorting and rafting" logs and timber so rafted and secured at said boom, and also for "boomage" of logs and timber. Held, that the powers reserved to the state had not been transcended, and there had been no impairment of the obligation of contract, within the meaning of the contract clause of the constitution.

2. Legislation oftentimes may be such as to injuriously affect the interests of those with whom the contract exists, and yet impair no obligation of contract.

3. No additional duty, independent of that contemplated by the charter, is imposed upon the corporation by the insertion of the word "sorting" in the amendatory act.

4. The duty of sorting and rafting according to ownership is imposed by the charter, under the term "rafted."

(Official.)

Action by the Proprietors of Machias Boom against Cornelius Sullivan and others. Heard on agreed statement of facts. Judg. ment for plaintiff.

Charles Sargent, for plaintiff. Heath & Tuell, for defendants.

FOSTER, J. By the provisions of chapter 55 of the Special Laws of the Commonwealth of Massachusetts, passed February 13, 1808, certain persons therein named, and their successors, were constituted a corporation by the name of the Proprietors of Machias Boom, for the purpose of laying and

maintaining a boom across the west branch of Machias river.

The third section of that act provides: "That the said corporation shall be entitled to receive of the respective owner or owners of masts, logs and timber, which shall be rafted and secured at sald boom by any person or persons, the following respective fees or toll: For each mast six (6) cents, for each pine mill log of thirty feet in length or upwards four (4) cents, for each pine mill log under thirty feet in length three (3) cents, and for each spruce or hemlock mill log, or stick of timber, two (2) cents. Provided, however, that the fees or toll shall at all times hereafter be subject to the revision or alteration of the legislature."

A subsequent act of the legislature of this state, (chapter 174, Sp. Laws 1891,) entitled "An act to regulate the tolls of the Machias boom," is as follows:

"Section 1. The fees or tolls of the Proprietors of the Machias Boom are hereby revised and altered so that said corporation shall be entitled to receive of the respective owners of logs and timber which shall be rafted and secured at said boom by any person or persons the following respective fees or tolls: For sorting and rafting logs and lumber, so secured at said boom, a price per stick not to exceed such prices as the owners of such logs and lumber shall in writing agree to perform such sorting and rafting for, at their own expense, such agree ment by them signed to be filed with said corporation before each rafting season shall open, to be for the season then next ensuing and if accepted, to bind such owners to be responsible for the acts, default or negligence of all persons employed thereunder, | and also provide therein that if at any time the corporation is dissatisfied with the count of the logs, then it shall be authorized to employ a man to take account of them, and his count shall be final, his wages to be paid one half by the corporation and one half by the log owners, such wages to be in addition to the prices aforesaid; for the boomage of each pine, spruce or hemlock mill log or stick five-eighths of a cent; for the boomage of each cedar stick, one quarter of a cent; provided, however, that all the fees or toll of said corporation shall at al times hereafter be subject to the revision or alteration of the legislature."

While this action is brought by the plaintiff corporation ostensibly to recover the amount claimed in the account annexed, it is in reality to test the validity of this lastmentioned act.

The contention on the part of the plaintiff is that the grant of the franchise to this corporation, when accepted, became a contract executed, which cannot be summarily annulled, or its powers, rights, or privileges otherwise impaired, without the consent of the corporation, and that this subsequent legislation is an impairment of the obliga

tion of that contract, and brings it within the contract clause of the constitution of the United States and of this state.

It has long been the settled doctrine that a state, in the exercise of her sovereignty, may contract like an individual, and be bound accordingly, and that acts of incorporation, granted upon a valuable consideration, partake of the nature of contracts, within the meaning of that clause of the constitution which prohibits the enactment of any law impairing the obligation of contracts. Rockland Water Co. v. Camden & R. Water Co., 80 Me. 544, 15 Atl. Rep. 785.

The question, therefore, to be determined, in this class of cases, where legislative interference is claimed, is whether the act in question does in fact impair the obligation of contract. Oftentimes, legislation may be such as to injuriously affect the interests of those with whom the contract exists, and yet impair no obligation of contract.

To determine whether the legislature has transcended its powers in this particular case, we must examine, not only the act of which complaint is made, but also the language of the original charter granted to this plaintiff corporation.

The authority upon which this legislation is based comes from the charter itself. It can come from no other legitimate source. This authority was expressly reserved to the state, and became a part of the contract between the state and the plaintiff corporation, and is thus expressed: "Provided, however, that the fees or toll shall at all times hereafter be subject to the revision or alteration of the legislature." This reserved or delegated power, vested in the legislature, permits it to exercise the right of revising or changing the price or compensation to be received by the plaintiff for the acts required to be performed under its charter. Has the legislature done more than that? We think not.

The plaintiff, however, contends that by the act an additional duty is cast upon it, independent from that of rafting and securing, by introducing the work of "sorting,”-a term not found in the original charter. But the plaintiff admits that, by its charter, it was its duty to secure all logs coming into its boom, and subsequently to raft out the same; and the agreed facts show that, in the transaction of the business at the boom, it is necessary for logs to be pushed out and rafted according to their ownership. The amendatory act, evidently proceeding upon the idea that the duty of rafting was imposed upon the corporation by its charter, first establishes a rule by which to fix the price for rafting, and next establishes, in effect, an independent price for boomage, or securing the logs. Over this duty of se curing or boomage, there seems to be no controversy. For the performance of that, the act authorizes a specific price, according to the kind of lumber boomed or secured.