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been ordered to be shipped from another, were in York for the purpose of delivery state, and having been so shipped and de- only. The statute means that, whenever a livered by the defendant.

stock of goods is moved into a town for the Second. The sale and delivery to the three purpose of being put upon sale and sold in persons above mamed, who purchased the the town, the owner or person having them goods ordered by parties who did not call for in possession for that purpose must obtain them.

the licenses specified by chapter 45 before [1] First. The acts of the defendant in so- he engages in the business of selling them. liciting orders for the goods, and delivering The goods were not in stock for sale. They them from the car to the parties ordering were not taken to York for sale, but were them, were not unlawful. The facts upon

The facts upon there to be delivered to the parties who had this branch of the case are practically the ordered them, and for whom they had been same as in Stewart v. Michigan, 232 U. s. shipped from another state, and the sale of 665, 34 Sup. Ct. 476, 58 L. Ed. 786, in which them, when the persons, on whose orders case the defendant was convicted in the state they had been shipped from another state, court under a statute for doing, without a did not come for them, was a mere incident license, similar acts to the acts done by the of the lawful business of the defendant; defendant in this case, without a license, and that is, the delivery of goods brought into it was held on a writ of error that the convic- the state by interstate commerce, and not tion was error. By the rules of law declared the business of an itinerant vendor. in that case and in Crenshaw v. Arkansas, occupies the time, attention, the labor of men

“Business, in a legislative sense, is that which 227 U. S. 389, 33 Sup. Ct. 294, 57 L. Ed. 565, for the purposes of livelihood or for profit, a the acts of the defendant were not unlawful. calling for the purpose of a livelihood.' State The soliciting of orders for goods to be ship- v. Boston Club, 45 La. Ann. 585, 12 South. ped from another state, their shipment from 895, 20 L. R. A. 186.

Webster: “Business, that which busies, or another state to this state, and the delivery that which occupies the time, attention, or of the goods to the persons who ordered labor of one as his principal concern, whether them was interstate commerce, and the state for a longer or shorter time; employment;

occupation. cannot burden interstate commerce by com- Business is the word that signifies and "depelling persons engaged in that commerce to notes the employment or occupation in which a pay a special tax for the privilege of engag- person is engaged to procure a living.” Goding in such commerce.

dard v. Chaffee, 2 Allen (Mass.) 395, 79 Am.

Dec. 796. [2] Second. Did the sale, to the three per- It is a "synonym of employment, signifying sons above named, of goods that had been that which occupies the time, attention, and ordered by other parties from the defendant or profit." Martin v. State, 59 Ala. 36.

labor of men for the purposes of a livelihood to be shipped them from another state, which they did not receive by reason of not having s. W. 425, the respondent was prosecuted

In Hays v. Commonwealth, 107 Ky. 658, 55 called for them, render the defendant an under a statute which prohibited all itinerant itinerant vendor, within the provisions of chapter 45? The allegations of the.complaint names, among other goods, wares and mer

persons from vending various articles, and and warrant are in substance that the de-chandise. The defendant was a driver of an fendant did engage in a temporary or tran- oil wagon owned by the Standard Oil Comsient business in York, and did, for the pur- pany, and the general agent of said company pose of carrying on such business, sell goods, at Lexington had arranged, with customers etc., at retail from a car. The goods were sold from a car, and we must determine what their places of business and to deliver them

, oil tank wagon to the statute means by the words “temporary oil in wholesale quantities and at wholesale or transient business." Section 4 of said chap- prices fixed by said company from time to ter provides that every itinerant vendor, desiring to do business in this state, shall make time; that said oil tank should come as often a deposit with the secretary of state and take plied for their retail trade; and that the

as was necessary to keep said customers supout a state license. Section 6 provides that every application for a local license shall be company sent its oil tanks regularly to Nich.

olsville for said purpose about every five signed by the holder of the accompanying days. The defendant sold and delivered to state license, and shall specify the kind and one Hendron oil, who was not one of the line of goods then in stock in such town, regular customers of said company, and he with the name of the town in which said also sold and delivered to one Klein, at the goods were last exposed or offered for sale. request of his clerk, who told defendant that Such local license fee shall be computed and his house sold oil; that said arrangement collected in each town, respectively, in which I was made with said oil dealers in Nicholssaid goods shall be successively offered or ville, because it was more convenient for exposed for sale.

them to get their oil in this way than to let The defendant had no line of goods in it come from Lexington from time to time stock in the town of York. The words “in and have it shipped by rail. The above tesstock," as used in the statute, mean on hand timony was excluded, and the court said: for sale. All the goods he had on hand in

“We are clearly of opinion that the court Yark had been bargained for and sold. They erred in refusing to admit the testimony offered. Such testimony was competent, and, if Philip Howard, Co. Atty., of Rockland, for believed by the jury, would have entitled the the State. M. A. Johnson, of Rockland, for appellant to a verdict of not guilty, for the reason that, if true, it clearly showed that the de respondent. fendant was not an itinerant person engaged in the selling of oil as a business or occupa- HANSON, J. These cases are before the tion. It would hardly be contended that a mercourt on report, and are to be considered tochant of Nicholsville, having in charge a load of goods being hauled or shipped from Lexington gether. The first is an appeal from the orto Nicholsville, might not on one occasion sell a der of the police court of the city of Rockfew articles of goods on the road between the two land condemning certain liquors described points without violating the statute under con- in the libel, in which the claimant attacks sideration.” And the judgment appealed from was re

the validity of the warrant, libel and moni

tion, and the jurisdiction of the court. versed.

The second case is based upon errors The court in the above case said :

claimed to exist in the record below, and "It is undoubtedly true that, in order to constitute a person a peddler, he must not only be the writ was issued upon the assumption an itinerant person, but must be engaged in that the errors assigned in the petition exvending or selling the articles mentioned in the isted in fact, and that the petitioner was prohibitory statute as a business or occupation. It is not, however, necessary that it should be entitled to relief. his sole business, or even his principal business, The record presents two alleged records of but it must, nevertheless, be a considerable part the Rockland police court in a search and of his occupation, business, or vocation."

seizure process, and a libel and monition The acts of the defendant upon this branch growing out of the same. The first record of the case, when judged by the above defini- is that of the recorder of that court, who istions and authorities, do not show that he sued the warrant and libel, assuming to act was engaged in business as an itinerant ven- under authority of the act creating that dor, within the meaning of chapter 45, R. S.

court. Without deciding whether the sales were at

The other record is furnished by the judge retail or not, it is clear that the acts com- of that court, and is inconsistent with, and plained of do not show that he was engaged in some respects a denial of, the truth of the in the selling of the goods as a business, oc record made by the recorder, and counsel for cupation, or vocation, and the defendant is the claimant relies to a great extent on the entitled to judgment, and the mandate must record and statements of the judge to susbe:

tain his contentions in both cases. Judgment for defendant.

While it is the stated purpose of the re

port to determine all matters in dispute in (112 Me. 220)

these cases, and the desire of the court as STATE v. INTOXICATING LIQUORS.

well to end litigation, we are confronted at DONDIS v. HURLEY, Judge, et al.

the outset by a serious challenge of the truth (Supreme Judicial Court of Maine. Oct. 6,

of the original record, and the claimant pre1914.) INTOXICATING LIQUORS ($ 251*)—SEIZURE, claimed to have been made by the judge of

sents, as a true record, copies of a record CLAIMS TO SEIZED LIQUORS.

The statute authorizing the owner to make the same court, which are at variance with claim for liquors under seizure and secure their the record of his own recorder, and which, release contemplates an appearance by the real owner personally or by a properly authorized we must say, are not without fault, however representative, and hence the manager of bot- erroneous the acts or records of the recorder ling works, in which liquors, when seized, were may have been. We are not able, with the in storage awaiting the time when, augmented report before us, to determine which is the by further orders and collections, they should

An inbe shipped to their real owners outside the state, correct record, or if either is valid. was not entitled to claim the liquors, as he spection of the original papers, and an exwas not such a party in interest as the law amination of the witnesses involved, would contemplated nor a properly authorized agent be necessary to a complete understanding of such a party.

[Ed. Note.-For other cases, see Intoxicating of the cases, and meet the ends of justice, if Liquors, Cent. Dig. 88 389, 390; Dec. Dig. $ injustice has been done. 251.*]

Without passing further upon the validity Report from Supreme Judicial Court, of the proceedings, we do find, however, a Knox County, at Law.

grave objection to the maintenance of the Libel by the State against Intoxicating appeal or the writ of certiorari. The claimLiquors claimed by Joseph Dondis, appealed ant urges his right to maintain both in the from the police court of the city of Rock following language: land, and also a writ of certiorari by Joseph “And now comes Joseph Dondis, of RockDondis against William P. Hurley, judge of land, in said county, who says that he is the

agent and general manager of the Knox County such court, and another. On report. Ap- Bottling Works, whose business is that of botpeal dismissed, and writ quashed.

tlers of soda, uno beer, and what is known as Argued before SAVAGE, C. J., and COR- small beers, all nonintoxicating, at said RockNISH, BIRD, HALEY, HANSON, and PHIL- and general manager, the right, title, and posing, as said agent and general manager, a On Motion from Supreme Judicial Court, right to the possession thereof at the time when Aroostook County, at Law. the same were seized. And the foundation of said claim is that they were collected in from

land, and specifically claims, as said agent BROOK, JJ.

session in the items hereinafter named as hav

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key -No. Series & Rep’r Indexes

Action by Theodore R. Southard against various sources and places in the building of the Bangor & Aroostook Railroad Company. said Knox County Bottling Works for storage, Verdict for plaintiff, and defendant moves from which they were seized, and that they for a new trial. New trial granted on the were to be shipped, when further orders were obtained out of the state, to their real owners question of damages only. thereof, and that in said capacity he had the Argued before SAVAGE, C. J., and BIRD, right to the possession thereof at the time HALEY, HANSON, and PHILBROOK, JJ. when the same were seized, and that they were taken from his lawful possession on the 29th

F. W. Halliday, of Newport, for plaintiff. day of March, 1912, from the frame building, additions thereto, outbuildings and appurtenanc- Stearns & Stearns, of Bangor, Powers & es thereof occupied by said Knox County Bot- Guild, of Fort Fairfield, and Joseph F. Gould, tling Works as a manufactory and storehouse; of Bangor, for defendant. stated in the libel as a store, and situate on the north side of Sea street, in said Rockland, by one Frank F. Harding, city marshal of said Rockland, and this claimant declares that they SAVAGE, C. J. The plaintiff recovered a were not so kept or deposited for unlawful sale verdict of $8,500 against the defendant for as is alleged in the libel of said Frank F. Hard-personal injuries. The only question submiting and in the monition issued thereon.”

ted to the jury was that of damages, for the The claimant discloses no direct personal defendant admitted liability. The defendant interest in the liquors in question. He says filed a general motion for a new trial, also a he is the manager of the Knox County Bot-motion based on newly discovered evidence. tling Works, and as such manager had the

As to the general motion, we think it only right to possession of the liquors; that the liquors were in storage awaiting the time necessary to say that the verdict seems ex

cessive. But we will not undertake now to when, augmented by further orders and col- discuss the question, for we think the motion lections, they should be shipped to their real based on newly discovered evidence should owners outside the state.

be sustained. The statute establishing the right of an

At the trial the vital question was: What owner to make claim for liquors under sei

was then the plaintiff's physical condition, so zure, and secure their release, contemplated far as it had been affected by the acts for a case where the "real owner" should appear, which the defendant was responsible? Knoweither personally or by properly authorized ing this, the jury could determine past damrepresentative, and make claim and produce ages and draw reasonable inferences as to proof sufficient to satisfy the court having future damages. The claim of the plaintiff, jurisdiction of the justice of his claim, and which his testimony tended to support, was of his lawful possession and ownership in that, as a result of his injuries, he was suffact.

fering from an incurable disease, that he was The claimant in this case does not measure physically wrecked, and able to do but little, up to the requirements of the statute. State if any, manual labor. v. Intoxicating Liquors, 69 Me. 524. He is

The newly discovered evidence comes from not such a party in interest as the law con- several witnesses and relates to the acts and templates, nor does he show agency. He

doings of the plaintiff after the trial, but cannot prevail in either contention. Levant nearly related to the time of the trial of such V. County Commissioners, 67 Me. 429 ; State a character that, if this testimony is true, V. Intoxicating Liquors (Eastern Steamship the plaintiff at that time could not have been Co., Claimant) 91 Atl. 175 (July 9, 1914).

suffering as he claimed, and could not have The entry will therefore be:

been in the physical condition he said he Appeal dismissed.

was. Since the evidence must be submitted Writ quashed.

to a jury, we do not analyze it, but it tends

to show that in the very next month after (112 Me. 227)

the trial he went into the woods on a hunting SOUTHARD V. BANGOR & A. R. CO.

trip; that within three or four months after (Supreme Judicial Court of Maine.

Oct. 8, the trial he engaged in heavy work, went 1914.)

to dances, and danced, and did other things NEW TRIAL (8 108*)-NEWLY DISCOVERED Ev-indicating that his physical condition was IDENCE-ACTION FOR PERSONAL INJURIES.

Where plaintiff recovered a verdict on tes good, and it is strongly contradictory of timony that, as a result of his injuries, he was what the plaintiff claimed at the trial. suffering from an incurable disease, was phys- That evidence of things happening after the ically wrecked, and was able to do but little, trial may be regarded in some cases as newly if ar manual labor, newly discovered evidence that soon after the trial he went on a hunting discovered is settled in Mitchell v. Emmons, trip, and later engaged in heavy work, and in 104 Me. 76, 71 Atl. 321. We think the evidancing, being sufficient to render it probable dence in this case should be regarded as that the verdict would be different on another newly discovered. Though it is evidence of trial, required the granting of a new trial.

[Ed. Note. --For other cases, see New Trial, acts which did not occur until after the trial, Cent. Dig. $$ 226, 227; Dec. Dig. 8 108.*] it is evidence of a condition which existed at

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the trial, and throws newly discovered light matter of discretion, to the exercise of which on that condition.

exceptions do not lie. We think that justice requires that the de

[Ed. Note. For other cases, see Appeal and fendant should have an opportunity to sub- Error, Cent. Dig. $8 559-569, 577–596; Dec. mit this evidence to a jury to be considered 5. TENANCY IN COMMON (8 38*)—ACTIONS BE

Dig. S. 87.*] by them, together with any evidence the

TWEEN COTENANTS ADMISSION OF Eviplaintiff may have to rebut it, and with such

DENCE. other relevant evidence as may be offered by In an action by a tenant in common to reeither party on the question of damages. cover for the cutting of timber by a cotenant,

testimony by the defendant that he and the The evidence brings the case within the con- plaintiff had hired money for the benefit of the dition applicable to the granting of new place was properly excluded as irrelevant and trials on the ground of newly discovered immaterial. evidence, namely, that it seems "probable to [Ed. Note. For other cases, see Tenancy in the court that the verdict will be different Common. Cent. Dig. $$ 100-104, 107–118; Dec.

Dig. § 38.*] when the case is submitted anew with the additional evidence.” Parsons v. Railway, Exceptions from Supreme Judicial Court, 96 Me. 503, 52 Atl. 1006.

Knox County, at Law. Motions sustained.

Action by Fred F. Hall and Newton A. New trial granted on the question of dam- Hall against Albert W. Hall. Verdict for ages only.

plaintiffs, and

and defendant excepts. Excep

tions overruled. (112 Me. 234)

Argued before SAVAGE, C. J., and BIRD, HALL et al. v. HALL.

HALEY, HANSON, and PHILBROOK, JJ. (Supreme Judicial Court of Maine. Oct. 8, E. B. Burpee, of Rockland, for plaintiffs. 1914.)

Rodney I. Thompson, of Rockland, for de1. LIMITATION OF ACTIONS (8 35*) – ACTIONS fendant. FOR PENALTIES.

An action under Rev. St. c. 97, § 5, pro- SAVAGE, C. J. This cause is brought unviding that a tenant in common, who cuts tim der R. S. c. 97, § 5, which provides, so far as ber without giving notice to his cotenants, shall forfeit three times the amount of damages, is is necessary to state here, that if a tenant not a penal action, within Rev. St. c. 83, s in common of undivided lands cuts down or 97, limiting the commencement of actions for carries away timber or wood, without first penalties or forfeitures by an individual to one giving 30 days written notice to his cotenyear, and by the state to two years, since the right of action is given to the injured party ants, he shall forfeit three times the amount only, and the increased damages are incidental of damages; also that any one or more of to the general right of recovery, notwithstand- the cotenants, without naming the others, ing the fact that the statute uses the word “for

may sue for and recover their proportion of [Ed. Note. For other cases, see Limitation of such damages. Joseph Hall, dying in 1895, Aetions, Cent. Dig. $$ 109, 158-167; Dec. Dig. left five sons, of whom the plaintiffs are two $ 35.*]

and the defendant is one. Fred F. Hall was 2. ASSIGNMENTS ($ 120*) – ACTIONS - PLAIN- then a minor, and by his father's will was to TIFFS-STATUTORY PROVISIONS.

have a living on the place until he should Rev. St. c. 84, § 146, permitting the as- become 21 years old, which would be on July signee of a chose in action to sue in his own name, provided he files a copy of the assign- |1, 1908. The land upon which the cutting ment with the writ, does not prevent the assignee was done came, we assume, from their fafrom bringing suit in the assignor's name, as ther, and was undivided and owned by them he might do at common law, without filing a in common. The defendant cut wood and copy of the assignment.

[Ed. Note.- For other cases, see Assignments, timber on the premises both before and after Cent. Dig. 88 206-209; Dec. Dig. $ 120.*] Fred F. Hall became 21 years old; the latest 3. TENANCY IN COMMON (8 38*)—ACTIONS BE-cutting being in 1910. He gave no written

TWEEN COTENANTS – GENERAL ISSUE – LI. notice as the statute requires. In 1912 NewCENSE.

ton A. Hall conveyed his interest in the land, An action under Rev. St. c. 97, § 5, to and assigned his claim for the cutting, to his recover treble damages against a cotenant' for cutting timber on the common property, is es

brother, Fred F. Hall. This suit was sentially in the nature of an action of trespass, brought September 15, 1913, in the names of and the defendant cannot, under plea of the Fred and Newton jointly to recover twogeneral issue, show permission or license to cut fifths of the damages. The defendant pleadthe timber, since a defendant must plead justification or excuse for an act which would othered the general issue and the statute of limiwise be unlawful.

tations, nothing else. The trial resulted in [Ed. Note.-For other cases, see Tenancy in a verdict for the plaintiffs, and the case Common, Cent. Dig. 88 100-104, 107–118; Dec. comes up on the defendant's exceptions. Dig. § 38.*]

[1] I. The first question presented relates 4. APPEAL AND ERROR ($ 87*)-REVIEW-DIS- to the statute of limitations. The defendant

CRETION OF TRIAL COURT – AMENDMENT OF relies on the special statute (R. S. c. 83, § 97), PLEADING.

The granting, or refusal of leave to defend which provides that: ant to amend his pleadings at the trial, so "Actions and suits for any penalty or foras to set up a justification by license, is a feiture on a penal statute, brought by a person *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes



to whom the penalty or forfeiture is given in Cole v. Groves, 134 Mass. 471; In re Barker, whole or in part, shall be commenced within one 56 Vt. 14. R. S. c. 97, § 5, under which this

the , if no person so prosecutes, it may be recovered action was brought, clearly is a remedial by suit, indictment or information, in the name statute to which the one-year limitation and for the use of the state, at any time within pleaded does not apply. two years after the commission of the offense,

[2] II. In the next place, the defendant and not afterwards."

contended that a recovery could not be had The contention is that the statute (R. S. of Newton A. Hall's one-fifth. This contenc. 97, 8 5), under which this action is brought, tion was overruled, and properly. Newton allowing, as it does, treble damages to the A. Hall, before suit was brought, assigned injured cotenants, is a “penal statute,” with his claim to the other plaintiff, and the conin the meaning of chapter 83, § 97, and that tention is that a copy of the assignment actions under it, if not brought within one should have been filed with the writ under year after the doing of the damage, are not the provisions of R. S. c. 84, § 146, which maintainable. The presiding justice over

was not done. At common law an assignee ruled the contention. We think the ruling of a chose in action was obliged to sue in was right.

the name of the assignor. The statute in This question has been several times ad- question permits an assignee to sue in his judicated by this court, in construing stat- own name, but provides that in such case he utes essentially like this one, in that they must file with the writ the assignment or a authorized the recovery of double, treble, or copy thereof. Notwithstanding the statute, quadruple damages for acts forbidden by an assignee, if he chooses, may still sue in statute. In Palmer v. York Bank, 18 Me. the assignor's name, and, if he does so, he is 166, 36 Am. Dec. 710, the court said:

not required to file a copy of the assignment. “As it (the statute then under consideration) Rogers v. Brown, 103 Me. 478, 70 Atl. 206. gives four times as much damage as is allowed by law for the detention of the other debts, it

[3] III. The defendant did not plead justiis certainly penal in its character. But as it fication or license, but he offered to show in is given to the party injured, who seeks the re evidence that his operations had been in accovery of a just debt, to which these increased cordance with a mutual understanding bedamages are made an incident, we are not satisfied that it is to be regarded properly as a tween him and the plaintiffs, which would penal action."

be of course by license or permission. The In Frohock v. Pattee, 38 Me. 103, an action evidence was excluded on the ground that under a statute to recover double damages this defense had not been pleaded. The exfor knowingly aiding a debtor in the fraudu- clusion was right. The rule is without exlent transfer or concealment of his property, ception, we think, that when a defendant the same special statute of limitations was would justify or excuse an act which is unset up in defense as has been in this case. lawful, unless justified or excused, he must The court, holding the double damage statute plead the justification. Daggett v. Adams, to be remedial and not penal, said that under 1 Greenl. 198; Rawson v. Morse, 4 Pick. R. S. 1841, c. 146, $$ 15 and 16, which are (Mass.) 127; Ruggles V. Lesure, 24 Pick. now R. S. 1903, c. 83, § 97, being the special (Mass.) 187; 38 Cyc. 1092. In an action of statute of limitations invoked in this case, trespass quare clausum fregit, the defendant only such statutes were to be considered pe- may show, under the general issue, that he is nal statutes as would authorize the commence-tenant in common with the plaintiff, because ment of a suit, indictment, or information in presumably in such case he would have good the name and for the use of the state, and right of entry. But in the case at bar, that the double damage statute was not such which is essentially in the nature of an aca statute. In Black v. Mace, 66 Me. 49, it tion of trespass, the statute has limited the was held that a statute (R. S. c. 97, § 11) rights of tenants in common, and presumably giving treble damages for trespassing upon one has not the right to cut wood or timber grass lands was remedial and not penal. upon the common land without giving written Quimby v. Carter, 20 Me. 218; Philbrook v. notice to the others. The act is presumably Handley, 27 Me. 53; Thacher v. Jones, 31 unlawful. Hence justification must be pleadMe. 528; Reed v. Northfield, 13 Pick. (Mass.) ed. 94, 23 Am. Dec. 662. A statute giving a

[4] IV. The defendant at the trial asked right to recover multiplied damages may be leave to amend his pleadings so as to set up remedial or it may be penal, within the a justification by license. The presiding jusmeaning of this statute of limitations. If tice declined to allow the amendment. The the right of action be given to the injured allowance by the trial court is a matter of party, and the increased damages are only discretion, to the exercise of which excepincidental to the general right to recover, the tions do not die. Appeal of Clark, 111 Me. statute and action are remedial. And it is im- 399, 89 Atl. 245. material whether the statute says that the in- [5] V. The defendant was asked by his jured party may recover, or that the offend counsel whether he and his brother Fred, the ing party shall forfeit to the injured party; plaintiff, had hired money for the benefit of the meaning is the same. But, if the right the place. The answer was properly excludof action be given to others than the injured ed as irrelevant and immaterial. party, the statute and action are penal. See We have examined the other suggestions

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