show that this was error so prejudicial to the defendant as to require a new trial. Exceptions sustained. New trial granted.

(97 Me. 283)

LOOK v. HORN et al. (Supreme Judicial Court of Maine. Jan. 21, 1903.)

MORTGAGE-RENTS AND PROFITS-PAYMENT BY ONE JOINT MORTGAGOR-REIMBURSEMENT-EQUITABLE LIEN.

1. Where a mortgage is discharged on payment made by one of the joint mortgagors, or his successor in interest, it may be treated in equity as still subsisting for the protection of the party making payment, or the delinquent's share in the mortgaged premises may be regarded as subject to a lien for the amount paid on the mortgage for his benefit.

2. In no event can the grantee of the delinquent recover rents and profits until the parties making payment of the mortgage have been reimbursed the amount paid for the delinquent, either from the rents and profits of the delinquent's interest in the premises, or in some other manner; and the net profits received may be held towards reimbursement.

(Official.)

Report from Supreme Judicial Court, Somerset County.

Action by Charles V. Look against Martin Horn and others. Case reported, and judgment for defendants.

Assumpsit for rents and profits of one-half of a farm in Fairfield formerly occupied by Benjamin Horn as a homestead, for the six years immediately preceding January 26, 1901.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

F. L. Ames, for plaintiff. S. J. and L. L Walton, for defendants.

STROUT, J. On March 31, 1876, Benjamin Horn and Oliver R. Horn received conveyance of a farm in Fairfield from Samuel Kimball, and on the same day the Horns mortgaged the farm to Kimball to secure the payment of $534.50 of the purchase money. Benjamin occupied the farm thereafter, except a piece conveyed to his son Calvin, till his conveyance to his son Martin, one of the defendants, on May 12, 1898, since which time Martin his been in possession. Benjamin and his son paid the mortgage to Kimball, and had it discharged of record on January 23, 1895. Oliver never paid anything and never occupied the farm. Oliver R. Horn, by deed of January 27, 1881, undertook to convey one-half of the farm to the plaintiff; but, the mortgage to Kimball being then in force, Oliver's deed conveyed only his one-half of the equity of redemption from that mortgage.

The plaintiff seeks in this action to recover one-half of the rents and profits of the farm from January 26, 1895, to January 26, 1901. Benjamin Horn and his sons, having paid that portion of the Kimball mortgage which

should have been paid by Oliver, are entitled, in equity, to have Oliver's one-half of the farm subjected to its payment. This right is unaffected by the discharge of record of the mortgage. It may be treated in equity as still subsisting for the protection of Benjamin and Martin, or Oliver's one-half may be regarded as subject to a lien for the amount paid on the mortgage for Oliver's benefit. In no event can the plaintiff, as Oliver's grantee, recover rents and profits until Benjamin and Martin have been reimbursed their payment for Oliver, either from the rents and profits of Oliver's one-half, or in some other manner.

It is very clear from the evidence that the net profits from the farm for the time covered by plaintiff's claim have been little, if anything, in excess of necessary repairs and taxes-certainly wholly insufficient to reimburse the payment for Oliver on the mortgage. Whatever net profits defendants may have received from one-half of the farm, they are entitled to hold towards their reimbursement. Until that is accomplished, plaintiff can have no claim upon the rents and profits.

Judgment for defendants.

STATE V. NADEAU.

(97 Me. 375)

(Supreme Judicial Court of Maine. Jan. 7, 1903.)

INTOXICATING LIQUORS-ILLEGAL TRANSPORTATION-ARREST.

1. Intoxicating liquors were seized while being illegally transported on September 17, 1901, and a complaint was made against the defendant therefor six days later, when a warrant was issued for his arrest. The defendant was arrested on October 16th-29 days after the seizure, and 23 days after the warrant for his arrest was issued.

Held, that the warrant was served within a reasonable time.

2. The provisions of the statute (Rev. St. c. 27) known as the "Search and Seizure Process," and requiring an immediate arrest, do not apply to a case like this. (Official.)

Report from Supreme Judicial Court, Androscoggin County.

Alphonse Nadeau was indicted for illegal transportation of intoxicating liquors. Case reported. Judgment for the state.

Prosecution under Rev. St. c. 27, § 31, for the illegal transportation of intoxicating liquors. The defendant was convicted of the offense in the Lewiston municipal court, and took an appeal to this court at nisi prius, sitting January, 1902. After the evidence was taken out in the court below, it was agreed to report the case to the law court for determination of the question as to whether the arrest of the defendant was not unreasonably delayed.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

W. B. Skelton, Co. Atty., for the State. J. G. Chabot, for defendant.

SPEAR, J. his case comes to the law court on report, and grows out of a complaint for the illegal transportation of liquors, and the proceedings following therefrom. It is admitted that the respondent, at the time alleged in the complaint, was engaged in the illegal transportation of liquors. The liquors described in the warrant were seized on the 17th day of September, 1901. The complaint charging the respondent with the illegal transportation of the liquors seized was made on the 23d day of September, 1901, six days after the seizure, and the warrant for his arrest was issued on the same day. The respondent was arrested on the 16th day of October, 29 days after the seizure, and 23 days after the warrant for his arrest was issued.

The stipulation of the parties is: "If the law court are of opinion that the warrant was served within a reasonable time, judgment is to be rendered for the state, no other question being in issue; otherwise, complaint quashed."

The state must prevail.

The report of the evidence does not warrant the finding that the officer was either dilatory or negligent in obtaining or serving the warrant. The case shows that the offense with which the respondent was charged comes within the general principles of law applying to criminal offenses. The respondent had violated the criminal law of the state. His offense was not barred by the statute of limitations. He was properly apprehended, tried, convicted, and fined. The cases cited in the defendant's brief do not apply to the case at bar. The warrant in each case was issued under the statute relating to search and seizure. The search and seizure process is in a class by itself. The Constitution of the state has so placed it. The Bill of Rights, 5, provides that the people shall be secure in their persons, houses, papers, and possessions from all unreasonable search and seizure; and that no search warrant shall issue without a special designation of the place to be searched and the thing to be seized. In alluding to the constitutional prohibition, our court, in State v. Guthrie, 90 Me. 448, 38 Atl. 368, say: "The danger of its abuse has been so clearly apprehended in this country that constitutional barriers have been erected against it. * Nothing in the complaint or warrant or in law concerning them indicates that, after complaint is made, the warrant is to be held by the magistrate or officer as a weapon to be used at his discretion. The very nature of the search warrant indicates that when complaint is made the warrant (if issued at all) should be promptly issued and executed. The purpose is to seize the thing alleged to be at that time in the place to be searched, to prevent its removal or further concealment. Especially is this so when complaint is made for a war

rant to issue to search for intoxicating liquors. The complaint is against the particular liquors or deposits at the date of the complaint, and the warrant, under the Declaration of Rights, 85, can be issued against these liquors only." Weston v. Carr, 71 Me. 356; State v. Riley, 86 Me. 144, 29 Atl. 920. "The officer is expressly directed by the warrant and the statute to 'make immediate return of said warrant' and to have the respondent 'forthwith' before the magistrate for trial.” State v. Guthrie, supra.

The reason that underlies the prohibition of unreasonable search and seizure, the protection of the people against oppression, is the very reason that urges the issue of a warrant for the apprehension of a person charged with the commission of a criminal offense. Judgment for the state.

1. The provisions of Rev. St. c. 81, § 100, do not prevent the admission, in accordance with established rules, of evidence of payments to take actions on bills and notes or other writings out of the statute of limitations, but merely exclude indorsements or memoranda made thereon by or in behalf of the party to whom the partial payments purport to have been made.

2. Entries in account books of a deceased testator of payments received by him on bills or notes, supported by the executor's suppletory oath, but made after the statute of limitations has run, are not entries against testator's interest; it being to his advantage to show a part payment on the note. Such entries are not admissible to prove the fact of payment. (Official.)

Exceptions from Superior Court, Cumberland County.

Action by Henry M. Small against Albert H. Rose. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Assumpsit on a promissory note given by defendant to plaintiff's testator. Defendant plead the general issue and the statute of limitations, by way of brief statement. At the trial the plaintiff introduced, supported by the suppletory oath of the executor, a small account book, found among the effects of the deceased, which contained, among other entries in his handwriting, under the head of money received, an item of $25 from A. H. Rose, March 25, 1897. To the introduction of this evidence the defendant seasonably objected, but the same was admitted, and the defendant alleged exceptions. Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, PEABODY, and SPEAR, JJ.

F. H. Haskell and A. F. Moulton, for plaintiff. F. W. Brown, Jr., for defendant.

PEABODY, J. This case is on exceptions of defendant to the admission of evidence. It was an action on a promissory note, bearing date December 21, 1882, given by the defendant to one U. W. Small, plaintiff's testator.

The defense is the statute of limitations. There were certain indorsements on the note, but not in the handwriting of the defendant, and it does not appear that evidence was introduced tending to show any payment on the note prior to March 25, 1897. As evidence of a payment made by the defendant on that date, the plaintiff introduced, supported by his suppletory oath, the small account book found among the effects of the deceased, in which was written in the handwriting of the deceased, under the heading of money received, and under the date of March 25, 1897, the following words: "A. H. Rose, $25.00." This corresponded in date and amount to one of the indorsements on the back of the note. To the admission of this evidence the defendant seasonably objected and excepted.

Rev. St. c. 81, § 100, provides that "no indorsement or memorandum of such payment made on a promissory note, bill of exchange. or other writing, by or on behalf of the party to whom such payment is made or purports to be made, is sufficient proof of payment to take the case out of the statute of limitations." This statute does not affect the admissibility of other evidence tending to show such payment, where the admission of such evidence does not conflict with the established rules. Sibley v. Lumbert, 30 Me. 253.

The entry in question was part of a private cash account in the back of a small diary. The account was kept with apparent regularity, and the entry would have probative force to remove the statute bar if it was apparently made by the testator against his interest.

So far as appears from the case as presented, there was no evidence to overcome the presumption which arises from the date of the note that it had become outlawed long prior to the date of the memorandum of March 25, 1897; so that, in considering the effect of a cash entry of that date, we I must have in mind that at the time a payment on account of the note would have the effect not merely of reducing the indebtedness, but also of reviving the note and making it enforceable against the defendant.

Had the entry in the cashbook been made a reasonable time before the note became outlawed, its effect being an admission of the reduction of the debt, it might have been admissible if offered in evidence by the plaintiff as an entry made by a person since deceased, apparently against his interest. Taylor v. Witham, 3 Ch. D. 605; 1 Greenl. Evidence, § 147. But after the statutory bar had become complete, it was clearly not against his interest. but, on the contrary, to his great advantage, to show a part pay

(Supreme Judicial Court of Maine. Jan. 10, 1903.)

DOWER-VESTED RIGHTS-EQUITY.

1. While before assignment a widow's right of dower is a mere right, to be enforced in such manner as the law should prescribe, after assignment in any legal mode, whatever is lawfully assigned to her as her dower becomes a vested estate, vested in form as well as in substance, which she cannot be compelled to sell or commute.

2. Where there is lawfully assigned "in a special manner" to a widow, as her dower, out of a parcel of real estate, "the sum of two hundred dollars, to be paid annually from the rents and profits of that parcel," as a third part of the rents and profits, under Rev. St., c. 65, 3, she thereby acquires a vested right to an annuity of $200 from that real estate, which she cannot be compelled to release for any consideration.

3. The owner of the real estate out of which dower has been so assigned cannot maintain a bill in equity to have the real estate sold free of the widow's dower, and the present worth of the widow's annuity appraised, and paid to her out of the proceeds. (Official.)

Report from Supreme Judicial Court, Equity Term, Waldo County.

Bill by Thomas Haugh against Carrie E. Peirce. Case reported, and bill dismissed.

Bill in equity, praying to have real estate sold free of the widow's dower, to have the present worth of the dower appraised and paid to her out of the proceeds. The dower was assigned in a special manner, to wit, the sum of $200 annually from the rents and profits, under Rev. St. c. 65, § 3.

The defendant, besides her answer, filed a demurrer, and the case was reported to the law court.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

J. S. Harriman and Peregrine White, for plaintiff. W. P. Thompson, for defendant.

EMERY, J. The case is this: Robert F. Peirce died in 1892 seised of a parcel of real estate in Belfast upon which was a brick block. It appearing to the commissioners appointed by the probate court in November. 1892, to assign the widow's dower that a division of said parcel by metes and bounds could not be conveniently made, they assigned to the widow (the defendant in this case) her dower therein "in a special manner as of a third part of the rents and profits," and fixed as such third part "the sum of two

hundred dollars, to be paid annually from the rents and profits of said brick block." Rev. St. c. 65, § 3. This action of the commissioners, we assume, was confirmed by the probate court.

The plaintiff afterward, in 1896, acquired title to this parcel of real estate by purchase, "subject [in the language of the deed to him] to an annuity of two hundred dollars to the widow of Robert F. Peirce deceased, during her life." Later still (in 1899) the brick block on the lot was destroyed by fire, since which time the lot has remained vacant, and incapable, in its present condition, of yielding any income. The plaintiff, the owner, has now brought this bill in equity against the defendant, the widow, praying (1) that the said real estate be appraised, and the interest of the defendant therein be ascertained; (2) that the real estate be sold, and the proceeds be divided between the plaintiff and the defendant according to their rights in the premises. The defendant demurred, and also answered, saying, among other things, that she did not wish to part with her rights as assigned to her.

The bill cannot be sustained. Its plain purpose is to compel the defendant to commute her annuity for a present specific suin, and release the land from the charge thus imposed upon it. There is no law in this state requiring her to do so. Before assignment her dower was a mere right, to be enforced in such reasonable manner as the law might prescribe. After assignment in any statutory manner, whatever was lawfully assigned to her as her dower, whether one-third of the land or one-third of the rents and profits, or, as in this case, a special sum per year, payable out of the land as one-third of the rents and profits, became hers absolutely for her life, her vested estate for life, vested in form as well as in substance. She cannot be compelled to sell it or change its form against her will. It must remain in its present form a charge upon the land until extinguished by her death, or by her voluntary release, whatever the inconvenience to the landowner. This the plaintiff should have known when he bought the land. Any legislation since this dower was assigned cannot affect her estate which then vested.

Bill dismissed, with costs.

2. The negligence of the plaintiff cannot be considered as proximately contributing to the injury, if it is independent of and precedes the negligence of the defendant, and when the defendant, by the exercise of ordinary care, might have avoided the injury.

3. A requested instruction, which withdraws that question from the jury, or which is not applicable to the facts of the case on trial, may properly be refused.

4. When the jury have been instructed in full and appropriate language as to what constitutes due care and contributory negligence, it is not error to decline to instruct them further upon those subjects.

5. It is not an expression of opinion upon an issue of fact arising in the trial of a case for the presiding justice to state his recollection of the testimony. He has the same right to call the attention of the jury to the existence and nonexistence of testimony. If he is wrong in his recollection, his attention should be called to it, and the error corrected at the time. (Official.)

Exceptions from Supreme Judicial Court, Sagadahoc County.

Action by Fred N. Coombs against William W. Mason. Verdict for plaintiff. Motion for new trial and exceptions by defendant. Overruled.

Action on the case to recover damages of defendant for injuries received by plaintiff while he was riding upon the forward step of a street car in the city of Bath on the evening of the 29th day of December, 1900. The plaintiff claimed that as he was so riding, his left foot resting upon the forward platform, his right foot resting upon the lower step leading to that platform, the hub of the hind wheel of a jigger belonging to the defendant, and under the care of a servant of the defendant, caught a portion of the calf of plaintiff's right leg which was then and there exposed by reason of its resting upon said lower and projecting step, and crushed a portion of the muscles of his leg against the end of the projecting horn or end of cross-beam which forms the extreme end of said platform and projects beyond the car fender which it supports, thereby causing an injury to the exposed limb.

The defense was twofold: First, it was not the defendant's cart which caused the injury; second, the plaintiff, by voluntarily riding in such an exposed position, and remaining there when he knew, or should have known, of the proximity of the cart and the natural dangers of his position, was guilty of such contributory negligence as to bar his recovery.

Argued before WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

F. E. Southard, for plaintiff. C. W. Lar rabee and E. C. Plummer, for defendant.

forms of the car were full of passengers. The plaintiff secured a position at the forward end of the car, and stood with his left foot on the platform, and his right foot upon the single step of the car, facing the motorman. A few minutes later, while the car was standing upon the straight part of a siding opposite the Phoenix Hotel, waiting to pass another car, a heavily loaded team of the defendant, consisting of a span of horses and double jigger, driven by his employé, passed, going in the same direction as the car, and between it and the sidewalk.

The hub of the left hind wheel of the jigger scraped along the side of the car, and, the plaintiff still remaining in the same position, caught the calf of the plaintiff's right leg, pushing it against the fender of the car, and inflicting serious injuries. The car was a cut-under, and the step on which the plaintiff's foot rested was about 3 inches inside the extreme outside edge of the car, but projected about 54 inches beyond the outside of the car at the sills. The extreme width of the hind wheels of the jigger was 8 feet from nut to nut, and the driver was seated 12 feet forward of the rear axle. From the outer edge of the step upon which the plaintiff was standing to the edge of the sidewalk there was over 11 feet of the wrought and traveled way, unobstructed, and in good condition.

Exceptions. The defendant requested the following instructions:

(1) "The objective point of the horses and jigger was to pass the car, then standing on the siding; and if, while they were passing the car, plaintiff exposed his person or his limbs beyond the lines of the body of the car, he was guilty of contributory negligence, and cannot recover."

The presiding justice said: "I give you that, but the testimony does not sustain the proposition. If he put himself in a position of danger as the horses were passing, so that it became a part of the act of collision, and it was impossible to tell whether the collision was caused by the act of the plaintiff or the defendant's servant, and the plaintiff's change of position was a negligent act, that would be contributory negligence. But the evidence here, as I understand it, and you will remember it, was that he kept the same position that he occupied from the time he got on the car, and that there was no sudden change -but that is for you to say-just as the horses were passing." The requested instruction might well have been refused, as the question whether the plaintiff was guilty of contributory negligence was to be determined by the jury, and not by the court. It is urged, however, that by giving the instruction, and then stating that "the testimony does not sustain the proposition," the presiding justice invaded the province of the jury, and expressed an opinion upon an issue of fact arising in the case. This language was qualified, however, by that which immediately follow

ed. The presiding justice, after defining what would constitute contributory negligence, and stating his recollection of the evidence in regard to any change of position on the part of the plaintiff, expressly told the jury "you will remember it, but that is for you to say." The jury must have understood from the entire language of the charge that all questions as to the plaintiff's position and movements at the time of the injury were submitted to their determination, and that the presiding justice was not expressing any opinion upon an issue of fact, but simply stating his recollection of the evidence. If he was wrong in this, it was the duty of defendant to call his attention to it at the time, and have the error rectified then and there. A party cannot sit by in silence, and afterwards avail himself of such a misstatement of the evidence as ground for exception. An examination of the case, however, shows that the presiding justice was right in uis recollection. There is not in the case either testimony, or circumstance from which it can be inferred, that the plaintiff changed his position as the team was passing. The uncontroverted evidence is that he was, at the time of the injury, in the same position as when he originally boarded the car. There was, therefore, no issue of fact arising in the case in regard to it. The statement that the evidence did not support the proposition did not require the qualification of it which the presiding justice immediately gave. He had the same right and duty to call the attention of the jury to the existence and nonexistence of evidence. If a party request instructions not applicable to the facts of the case, he cannot complain that the jury is told that there is no evidence upon which to base them.

(2) "A passenger who rides upon the platform of a car necessarily takes upon himself the duty of looking out for and protecting himself against the obvious and usual perils of his position; while a person standing upon the steps of a car is obligated to a still greater degree of care, since in such a position he is subject not only to the same dangers as when standing upon the platform of a car, but is liable also to injury from collision with vehicles." This instruction was properly refused. Whatever may be thought of it in an action against a street railway company who, when its cars are full, permits, and in legal effect invites, passengers to ride upon its platforms, it would have been misleading in the present case. That a team, with ample and unobstructed room to pass, and three feet to spare, going at a walk, would be driven against the plaintiff's person, was not an obvious and usual peril. Wherever he was riding, the plaintiff was bound to prove affirmatively that he was in the exercise of due care at the time, such care as persons of ordinary prudence exercise under similar circumstances, and that no negligence on his part proximately con.