negligence of a fellow servant is one of the risks assumed by the servant. Blake v. Railroad Co., 70 Me. 60.

Nason, the sawyer, testified that it was his duty not to start or run the carriage unless the lumber on the rolls was clear from the path of the carriage, and that such was his duty is self-evident. It was the duty of the man at the rolls, Loroux, to take away the lumber from the carriage, and leave it on the rolls, clear of the carriage, and in such a manner that neither the carriage nor the stick upon it could come in contact with it. If the sawyer ran the carriage while its path was not clear, or if Loroux failed to clear the plank from the carriage, and keep it clear (and one or both of these things did happen), such conduct was negligent; and by means of that negligence the plaintiff was crowded over onto the trimming saw. Nason and Loroux were fellow servants of the plaintiff, and for injuries received through the negligence of either of them the plaintiff cannot recover. Even the rule laid down by some courts, and to support which the plaintiff's counsel has cited authorities, that, when the master has been negligent, the servant may not be debarred from recovery, even if the negligence of a fellow servant contributed to the injury, would not avail the plaintiff in this case. That rule is nowhere applied in cases where the plaintiff himself was in fault. It is unnecessary to discuss that rule further.

We are of the opinion, therefore, that the verdict for the plaintiff was clearly wrong. We are led to the conclusion that the jury must have been influenced by bias or sympathy, or acted under a misapprehension of the facts, or of the legal rules which should have controlled a decision based upon those facts.

Verdict set aside.

Motion for a new trial sustained.

RINES et al. v. CITY OF PORTLAND. (Supreme Judicial Court of Maine. Nov. 23, 1899.)

ALTERATION OF STREET-DAMAGES-PARTIES

ENTITLED.

1. The charter of the city of Portland (Priv. & Sp. Laws 1863, c. 275) gives a claim for damages to the owner at the time the land was taken in the laying out or alteration of streets in that city. No other person except the owner at the time of the taking is damaged or aggrieved by the estimate and award of damages, and he is the only person who has a right to appeal, as far as relates to damages.

2. The city of Portland laid out or altered Portland street, and damages were awarded to the owner thereof for land taken. On the following day the complainants purchased the land, which was conveyed to them by the owner, "together with all damages allowed or recovered for the taking by the city of Portland" of the land in question. The complainants seasonably appealed from the award of damages. At a term of court later than the one at which the appeal was entered, the appellee filed a motion to dismiss.

Held, that the motion to dismiss was seasonably filed; also, held, that the complainants can

SAVAGE, J. This is an appeal by the complainants, or appellants, from an estimate and award of damages made by the city council of Portland for land taken in the laying out or alteration of Portland street. The appellee has filed a motion to dismiss, and, by the stipulations of the report, we are to determine whether the appeal shall be dismissed, or shall stand for trial.

The allegations in the appeal itself are to the effect that the legal title to the land, at the time of the taking, was in one George D. Clark, in trust for the benefit of himself and others. It appears from the case that Portland street was laid out or altered by the city council July 7, 1896, and on the same day damages to the amount of $1,378 were awarded to Clark, as owner. On the day following, by virtue of a decree of court in certain proceedings in equity, to which Clark was a party, the entire parcel of land, of which a portion had been taken, was sold at public vendue to these appellants. Subsequently the sale was confirmed by the court, and on July 28, 1896, the land was conveyed to the appellants by Clark, "together with all damages allowed or recovered for the taking by the city of Portland" of the land in question. It does not appear whether Clark appealed from the award of damages. But the appellants, within the time limited for appeals, filed this appeal to the supreme judicial court in Cumberland county at its October term, 1896. The appellee's motion to dismiss was filed at the April term, 1898. The ground taken in the motion to dismiss is that it appears by the appeal itself that at the time the land was taken by the city the appellants did not own it, nor any portion of it, nor any right, title, or interest in it, and therefore that they were not "aggrieved" by the award of the city council.

The first contention of the appellants is that the motion to dismiss was not seasonably filed. Their learned counsel take the ground that this motion is in the nature of a plea in abatement, and should have been filed within the time limited for pleas in abatement. This ground is not tenable. This motion does not go to such things as are properly matters in abatement, but rather to the merits of the appeal, and is based upon the allegations in the

like this, serves the purpose of a demurrer. The question raised by it is whether, assuming all the allegations in the appeal to be true, the appellants are, as a matter of law, entitled to maintain it. It is a convenient and proper method of attacking the sufficiency of the allegations in the appeal, or, as in this case, of denying that the appellants, upon their own showing, have any ground for an appeal.

But the appellants further contend that they are entitled to maintain this appeal upon its merits. They say that, although they were not the owners of the land when it was taken by the city, still they were aggrieved by the award, within the meaning of the laws relating to appeals in such cases, (1) because they became the owners of the land taken within the period allowed for appeals as to damages; and (2) because, as the purchasers and assignees of the claim of their grantor, in whose favor the award appealed from was made, they were at the time of their appeal the owners of the claim which is the subject-matter of the appeal.

We will consider these positions in their order, only premising that the right of appeal from an award of damages is limited to those who are "aggrieved" by the estimate and award. City Charter of Portland (Priv. & Sp. Laws 1863, c. 275, § 9).

Were the appellants, as subsequent owners of the land, within the time for taking an appeal, "aggrieved" by the action of the city council? Certainly not. If aggrieved at all, it must have been at the time the city council acted. If they were not aggrieved then, they could not be aggrieved afterwards. But they were not aggrieved then. They were not the owners of the land then. They had no interest in it then. They were in no way affected by the action of the city council. They could not be aggrieved by an action which did not concern them. Subsequently they bought the land and the grievance. In buying the land, they took it subject to the easement created by the city council. They bought the interest which was left after the land for the street had been taken,-nothing more; and, so far as the land is concerned, they paid for this interest, and no more. They lost nothing by reason of the fact that land had been taken for the street. They got what they purchased and paid for. And it follows that, as subsequent purchasers of the land, they were in no sense "aggrieved" by the estimate of damages. Sargent v. Machias, 65 Me. 591.

Nor do the appellants stand in any better position as purchasers and assignees of the "damages allowed or recovered," as it is expressed in the deed from Clark to them. It is undoubtedly competent for the owner of land, to whom damages have been awarded for a strip of land taken for a highway, to assign the right to recover the damages to the same person to whom he conveys his remaining interest in the land; or he may convey the land, and himself retain the right to recover

recover the damages to another than the grantee of the land. The interests are separable and distinct. Neal v. Railroad Co., 61 Me. 298; Sargent v. Machias, supra. By the provisions of the deed in this case, the appellants obtained the right to receive such damages as had been allowed, or as might be recovered for the taking of the land for Portland street. But it does not follow that an appeal for increase of damages will lie in their own names. At common law, assignees of choses in action, not negotiable, could bring suit to recover them only in the names of their assignors. By statute, however, such assignees may bring and maintain actions in their own names. Rev. St. c. 82, § 30. But this proceeding is not an "action," within the meaning of this statute. Webster v. Commissioners, 63 Me. 27; Belfast v. Fogler, 71 Me. 403; Stetson v. Commissioners, 72 Me. 17; Counce v. Persons Unknown, 76 Me. 548; Grand Trunk Railway of Canada v. County Com'rs of Cumberland Co., 88 Me. 225, 33 Atl. 988. The distinction may be illustrated in this way: If the city of Portland neglects to pay the damages awarded in this case, then an "action" will lie to recover the same. Id. c. 18, § 40. This, on the other hand, is merely a statutory appeal. The right to take an appeal is limited by statute to "any person aggrieved by the decision or judgment of the city council." City Charter of Portland, supra. We cannot extend the right. No other person can appeal. But, as we have already pointed out, these appellants were not, and could not have been, "aggrieved" by the decision complained of, because at the time it was made they had no interest whatever in the land taken.

We hold, therefore, that the appellants, as assignees of the claim for damages, are not entitled to maintain an appeal in their own

names.

Appeal dismissed, with costs.

SAVAGE et al. v. ROBINSON et al. (Supreme Judicial Court of Maine. Nov. 28, 1899.)

CONTRACT - CONSIDERATION

GUARANTY — CONSTRUCTION-STATUTE OF FRAUDS.

1. The delivery of goods under an attachment by an officer is a sufficient consideration for the contract of a receiptor making himself responsible thereby for the amount of debt and damages claimed in the writ.

2. The defendants were sued for breach of the following agreement in writing: "Farmington, February 11, 1897. Fred C. Robinson and Clarence M. Eaton hold ourselves responsible for the amount of debt and damage contained in a writ in favor of Savage. Flanders & Co., and served upon Peter Degree by Deputy Sheriff C. E. Dyer on the above date."

In consideration of this agreement, the deputy sheriff released an attachment of goods.

Held, that the agreement is a guaranty; that the terms are made sufficiently certain, either in the writing or by reference to the writ, to sat

isfy the statute of frauds; that the consideration was lawful; and that the defendants are holden.

(Official.)

Report from supreme judicial court, Franklin county.

Action by Llewellyn W. Savage and others against Frederick C. Robinson and another. Heard on report, and defendants defaulted.

Argued before PETERS, C. J., and HASKELL, WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

E. O. Greenleaf, for plaintiffs. H. L. Whitcomb, for defendants.

SAVAGE, J. C. E. Dyer, a deputy sheriff, holding a writ in favor of the plaintiffs and against one Peter Degree, attached certain goods belonging to Degree. While the goods were in the possession of the officer, Degree procured the defendants to sign the following agreement:

"Farmington, February 11, 1897. Fred C. Robinson and Clarence M. Eaton hold ourselves responsible for the amount of debt and damage contained in a writ in favor of Savage, Flanders & Co., and served upon Peter Degree by Deputy Sheriff C. E. Dyer on the above date. F. C. Robinson. C. M. Eaton."

Upon receipt of this agreement, Dyer released the attachment, and left the goods in the possession of Degree.

This action is brought upon the agreement. Is it enforceable? We think the agreement should be construed as a guaranty of payment to the plaintiffs of the debt described in their writ against Degree. The agreement was in writing. The names of the parties debtor and creditors, and the amount of the debt, are made certain, either in the writing itself or in the writ to which reference is made by the writing. This is sufficient, and the statute of frauds is satisfied. Kingsley v. Siebrecht, 92 Me. 23, 42 Atl. 249.

The release of the attachment was a sufficient consideration for the promise of the defendants, and we think it was a legal one. While undoubtedly it is the duty of an officer to attach and retain goods for the security of the attaching creditor, it has never been questioned but that the officer may take a receipt for the goods. He is primarily responsible. He takes the receipt at his peril. But if the creditor accepts the receipt, and ratifies the act of the officer, the latter is relieved of further liability. The delivery of the goods is a good consideration for the contract of the receiptor. So it has been held that a note given to an officer in consideration of the release of property attached is not void by reason of an illegal consideration. Foster v. Clark, 19 Pick. 329. The contract in suit is analogous. Instead of taking an agreement to be responsible for the goods attached, the officer took an agreement to be responsible for the debt. There is no substantial difference; one is as valid as the other.

The debt sued for in the original writ was $68.53.

Defendants defaulted.

TUCKER v. NEW HAMPSHIRE TRUST CO. (Supreme Court of New Hampshire. Hillsboro. July 30, 1897.)

TRUSTS-DEPRECIATION OF SECURITIESTRUSTEES' LIABILITY.

A trust company regularly appointed trustee of a certain sum, and having, by Laws 1887, c. 169, been made a legal depositary for the funds of trustees, deposited the sum in its own savings department, organized under Laws 1891, c. 23, requiring trust companies or banks receiving savings deposits to organize a separate department for such purpose. Subsequently the securities in which the funds of its savings department were invested depreciated, and a trustee appointed to succeed the company as trustee of the fund demanded payment of such sum in full. Held, that since all the funds in the savings department were trust funds, the owner of the particular fund shared the loss with other depositors, and hence the company was not liable.

Appeal from probate court, Carroll county. Proceeding by Nathaniel F. Tucker, trustee, against the New Hampshire Trust Company. From a decree in favor of defendant, plaintiff appeals. Case discharged.

Samuel C. Eastman, for appellant. Oliver E. Branch and Edwin F. Jones, for respondent.

CLARK, J. The plaintiff is the successor of the New Hampshire Trust Company, as trustee under the will of Isaac Adams, by appointment of the probate court for Carroll county. The trust company was appointed by the probate court May 28, 1888, received practically $41,600 as a trust fund, and continued to act as trustee until it resigned, in 1895. April 8, 1890, the trust funds, having previously been invested in United States bonds and mortgage notes, were deposited in the savings department of the trust company, where they have since remained, except that one-third of the deposit has been paid to, and is now held by, the plaintiff, who received it without objection. When the plaintiff was appointed trustee, the trust company assigned to him deposit book No. 219 in its savings department, showing a deposit of $30,974.66 to the credit of the "New Hampshire Trust Company, Trustee Adams Fund." The probate court allowed the account, and decreed that the trust company should be discharged from further liability as trustee. The plaintiff appeals from this decree, claims that he is a preferred creditor of the trust company for the full amount of the deposit, and asks that "the trust company be ordered and directed to pay over to your petitioner the amount deposited by it in its savings department in full, and that it be ordered to make immediate payment, out of such funds as may be available therefor, of a sum sufficient to make up for the deficiency in the assets in the savings department." The plaintiff claims that the deposit in the savings de

FELLOWS v. HOYT. (Supreme Court of New Hampshire. Merrimack, July 30, 1897.)

ASSIGNMENT FOR BENEFIT OF CREDITORS— EXECUTIONS-PRIORITIES-APPRAISERS. 1. An assignment in insolvency does not avoid a levy made by a judgment creditor upon the property of the assignor prior to his assignment.

2. Where the assignee of an insolvent, after notice, does not appoint an appraiser for the property of his assignor, which was seized upon execution prior to the assignment, the officer making the levy may appoint one for him, under Pub. St. c. 233, §§ 2, 3, providing that where the debtor neglects to appoint an appraiser the officer shall appoint one for him.

Bill by James G. Fellows, assignee, against Amos Hoyt. Submitted on agreed facts. Bill dismissed.

Bill in equity, brought by the assignee in insolvency of John H. Sullivan to set aside a levy made by the defendant upon Sullivan's real estate. Facts agreed: September 10, 1895, the defendant brought his action against Sullivan, and caused the premises to be attached. He recovered judgment November 18, 1895, sued out execution thereon, and November 20, 1895, placed it in the hands of the sheriff, who on the same day swore in an appraiser. December 7, 1895, Sullivan made a voluntary assignment in insolvency. April 4, 1896, the sheriff notified the plaintiff to appoint an appraiser, and, upon his refusal to do so, appointed one for him, and completed the levy.

John N. Mitchell, for plaintiff. Almon F. Burbank, for defendant.

*

CARPENTER, C. J. The levy was not avoided by the assignment in insolvency. Hurlbutt v. Currier, 68 N. H., 38 Atl. 502; Beardsley v. Beecher, 47 Conn. 408. "The officer levying the execution shall cause three appraisers to be appointed, one by the creditor, one by the debtor, and one by himself. * * * If the debtor, on due notice, neglects to appoint an appraiser, * * the officer shall appoint an appraiser for him." Pub. St. c. 233, §§ 2, 3. Although the creditor intended by the statute is, in general, the plaintiff in the execution, yet if it appears on the record that he is merely a nominal plaintiff, or that the judgment has been assigned to another, the appraiser is to be appointed by the real plaintiff in the one case, and by the assignee in the other. Lyford v. Dunn, 32 N. H. 81. If the plaintiff is a spendthrift, insane, or an infant, the appraiser is to be appointed by his guardian. Bond v. Bond, 2 Pick. 382. An execution may in some cases be levied upon the lands of a deceased party, and in such a case the executor or administrator, though he has no interest, and the heirs at law are alone interested in the land, must be notified to choose an appraiser. Mead v. Harvey, 2 N. H. 341; Daniels v. Ellison, 3 N. H. 279.

By the assignment in insolvency all the 44 A.-59

debtor's property not by law exempt from attachment became vested in the assignee. Pub. St. c. 201, § 6. He could, if he thought fit, satisfy the execution and prevent a levy. He could redeem the land from the levy at any time within a year. Pub. St. c. 233, § 14. He could defend any pending actions against the insolvent, and it might be his duty to do so, if there were good reason to believe that the claims therein made were

unfounded, in order to defeat attachments not dissolved by the commencement of the insolvency proceedings. Though the insolvent "has an interest, notwithstanding his insolvency, in seeing that no larger amount of his estate is set off than is sufficient to pay his debt,"-Hall v. Hoxie, 3 Metc. (Mass.) 251, 254,-yet his interest is comparatively remote. The assignee, as the representative of the creditors, has a greater and more immediate interest in obtaining that result. His authority over the property is not less than that of an administrator, and the interest of the insolvent in a just appraisement is no greater than that of the heir at law. Under the statute, the entire disposal and settlement of the estate is placed in the hands of the assignee. Bank v. Waite's Estate, 57 Vt. 608, 610. With the property itself, he takes all the authority over it, and all the rights and obligations relating to its management and disposition, that the debtor had before the assignment. Bill dismissed. All concurred.

1. Where persons have a common interest in the prevention of the diversion of water of a stream from their mill privileges, they may join in the bill to enjoin it, though they claim under distinct titles, and possess independent interests.

2. Where an injury complained of is a continuing one, to redress which numerous suits would have to be brought from time to time, injunction will lie.

3. Where complainants frequently protested to defendant against the continued use of their dams and pipes, and urged defendant to abate the nuisance caused by their continued use, so as to prevent further injury to complainants, and demanded compensation for such injuries, the doctrine of laches will not apply, though many years have elapsed since the first diversion.

Suit by the Lonsdale Company and others against Samuel P. Cook, city treasurer, and others. Demurrer to complaint overruled.

James M. Ripley and Henry W. Hayes, for complainants. Erwin J. France, for respondents.

MATTESON, C. J. We think the complainants, though claiming under distinct titles and possessing independent interests, have properly joined in the bill, because they have