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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.

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[1] First. The acts of the defendant in soliciting orders for the goods, and delivering them from the car to the parties ordering them, were not unlawful. The facts upon this branch of the case are practically the same as in Stewart v. Michigan, 232 U. S. 665, 34 Sup. Ct. 476, 58 L. Ed. 786, in which case the defendant was convicted in the state court under a statute for doing, without a license, similar acts to the acts done by the defendant in this case, without a license, and it was held on a writ of error that the conviction was error. By the rules of law declared in that case and in Crenshaw v. Arkansas, 227 U. S. 389, 33 Sup. Ct. 294, 57 L. Ed. 565, the acts of the defendant were not unlawful. The soliciting of orders for goods to be shipped from another state, their shipment from another state to this state, and the delivery of the goods to the persons who ordered them was interstate commerce, and the state cannot burden interstate commerce by compelling persons engaged in that commerce to pay a special tax for the privilege of engaging in such commerce.

stock of goods is moved into a town for the
purpose of being put upon sale and sold in
the town, the owner or person having them
in possession for that purpose must obtain
the licenses specified by chapter 45 before
he engages in the business of selling them.
The goods were not in stock for sale. They
were not taken to York for sale, but were
there to be delivered to the parties who had
ordered them, and for whom they had been
shipped from another state, and the sale of
them, when the persons, on whose orders
they had been shipped from another state,
did not come for them, was a mere incident
of the lawful business of the defendant;
that is, the delivery of goods brought into
the state by interstate commerce, and not
the business of an itinerant vendor.
occupies the time, attention, the labor of men
"Business, in a legislative sense, is that which
for the purposes of livelihood or for profit, a
calling for the purpose of a livelihood." State
v. Boston Club, 45 La. Ann. 585, 12 South.
895, 20 L. R. A. 186.

Webster: "Business, that which busies, or that which occupies the time, attention, or labor of one as his principal concern, whether for a longer or shorter time; employment; occupation.'

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Business is the word that signifies and "denotes the employment or occupation in which a Godperson is engaged to procure a living. dard v. Chaffee, 2 Allen (Mass.) 395, 79 Am. Dec. 796.

It is a "synonym of employment, signifying that which occupies the time, attention, and labor of men for the purposes of a livelihood or profit." Martin v. State, 59 Ala. 36.

[2] Second. Did the sale, to the three persons above named, of goods that had been ordered by other parties from the defendant to be shipped them from another state, which In Hays v. Commonwealth, 107 Ky. 658, 55 they did not receive by reason of not having S. W. 425, the respondent was prosecuted called for them, render the defendant an under a statute which prohibited all itinerant itinerant vendor, within the provisions of persons from vending various articles, and chapter 45? The allegations of the complaint and warrant are in substance that the de-chandise. The defendant was a driver of an names, among other goods, wares and merfendant 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 at Nicholsville, to send an oil tank wagon to sold from a car, and we must determine what their places of business and to deliver them the statute means by the words "temporary oil in wholesale quantities and at wholesale or transient business." Section 4 of said chapter provides that every itinerant vendor, desiring to do business in this state, shall make a deposit with the secretary of state and take out a state license. Section 6 provides that every application for a local license shall be signed by the holder of the accompanying state license, and shall specify the kind and line of goods then in stock in such town, with the name of the town in which said goods were last exposed or offered for sale. Such local license fee shall be computed and collected in each town, respectively, in which said goods shall be successively offered or exposed for sale.

The defendant had no line of goods in stock in the town of York. The words "in stock," as used in the statute, mean on hand for sale. All the goods he had on hand in York had been bargained for and sold. They

prices fixed by said company from time to time; that said oil tank should come as often as was necessary to keep said customers supplied for their retail trade; and that the company sent its oil tanks regularly to Nicholsville for said purpose about every five days. The defendant sold and delivered to one Hendron oil, who was not one of the regular customers of said company, and he also sold and delivered to one Klein, at the request of his clerk, who told defendant that his house sold oil; that said arrangement was made with said oil dealers in Nicholsville, because it was more convenient for them to get their oil in this way than to let it come from Lexington from time to time and have it shipped by rail. The above testimony was excluded, and the court said:

"We are clearly of opinion that the court erred in refusing to admit the testimony of

fered. Such testimony was competent, and, if [ believed by the jury, would have entitled the appellant to a verdict of not guilty, for the reason that, if true, it clearly showed that the defendant was not an itinerant person engaged in the selling of oil as a business or occupation. It would hardly be contended that a merchant of Nicholsville, having in charge a load of goods being hauled or shipped from Lexington to Nicholsville, might not on one occasion sell a few articles of goods on the road between the two points without violating the statute under con

sideration."

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The court in the above case said:

"It is undoubtedly true that, in order to constitute a person a peddler, he must not only be an itinerant person, but must be engaged in vending or selling the articles mentioned in the prohibitory statute as a business or occupation. It is not, however, necessary that it should be his sole business, or even his principal business, but it must, nevertheless, be a considerable part of his occupation, business, or vocation."

The acts of the defendant upon this branch of the case, when judged by the above definitions and authorities, do not show that he was engaged in business as an itinerant vendor, within the meaning of chapter 45, R. S. Without deciding whether the sales were at retail or not, it is clear that the acts complained of do not show that he was engaged in the selling of the goods as a business, occupation, or vocation, and the defendant is entitled to judgment, and the mandate must

be:

Judgment for defendant.

(112 Me. 220)

STATE v. INTOXICATING LIQUORS.
DONDIS v. HURLEY, Judge, et al.
(Supreme Judicial Court of Maine. Oct. 6,
1914.)

INTOXICATING LIQUORS (§ 251*)-SEIZURE-
CLAIMS TO SEIZED LIQUORS.

Philip Howard, Co. Atty., of Rockland, for the State. M. A. Johnson, of Rockland, for respondent.

HANSON, J. These cases are before the court on report, and are to be considered together. The first is an appeal from the order of the police court of the city of Rockland condemning certain liquors described in the libel, in which the claimant attacks tion, and the jurisdiction of the court. the validity of the warrant, libel and moni

The second second case is based upon errors claimed to exist in the record below, and the writ was issued upon the assumption that the errors assigned in the petition existed in fact, and that the petitioner was entitled to relief.

The record presents two alleged records of the Rockland police court in a search and seizure process, and a libel and monition growing out of the same. The first record is that of the recorder of that court, who issued the warrant and libel, assuming to act under authority of the act creating that court.

The other record is furnished by the judge of that court, and is inconsistent with, and in some respects a denial of, the truth of the record made by the recorder, and counsel for the claimant relies to a great extent on the record and statements of the judge to sustain his contentions in both cases.

While it is the stated purpose of the report to determine all matters in dispute in these cases, and the desire of the court as well to end litigation, we are confronted at the outset by a serious challenge of the truth of the original record, and the claimant preclaimed to have been made by the judge of sents, as a true record, copies of a record 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 in storage awaiting the time when, augmented by further orders and collections, they should be shipped to their real owners outside the state, was not entitled to claim the liquors, as he was not such a party in interest as the law contemplated nor a properly authorized agent of such a party.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 389, 390; Dec. Dig. § 251.*]

Report from Supreme Judicial Court, Knox County, at Law.

Libel by the State against Intoxicating Liquors claimed by Joseph Dondis, appealed from the police court of the city of Rockland, and also a writ of certiorari by Joseph Dondis against William P. Hurley, judge of such court, and another. On report. Appeal dismissed, and writ quashed.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

may have been. We are not able, with the
report before us, to determine which is the
An in-
correct record, or if either is valid.
spection of the original papers, and an ex-
amination of the witnesses involved, would
be necessary to a complete understanding
of the cases, and meet the ends of justice, if
injustice has been done.

Without passing further upon the validity of the proceedings, we do find, however, a grave objection to the maintenance of the appeal or the writ of certiorari. The claimant urges his right to maintain both in the following language:

land, in said county, who says that he is the "And now comes Joseph Dondis, of Rockagent and general manager of the Knox County land, in said county, who says that he is the Bottling Works, whose business is that of bottlers of soda, uno beer, and what is known as small beers, all nonintoxicating, at said Rockland, and specifically claims, as said agent and general manager, the right, title, and possession 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

On Motion from Supreme Judicial Court, Aroostook County, at Law.

Action by Theodore R. Southard against the Bangor & Aroostook Railroad Company. Verdict for plaintiff, and defendant moves for a new trial. New trial granted on the question of damages only.

Argued before SAVAGE, C. J., and BIRD, HALEY, HANSON, and PHILBROOK, JJ.

ing, as said agent and general manager, a right to the possession thereof at the time when the same were seized. And the foundation of said claim is that they were collected in from various sources and places in the building of said Knox County Bottling Works for storage, from which they were seized, and that they were to be shipped, when further orders were obtained out of the state, to their real owners thereof, and that in said capacity he had the right to the possession thereof at the time when the same were seized, and that they were taken from his lawful possession on the 29th day of March, 1912, from the frame building, additions thereto, outbuildings and appurtenances thereof occupied by said Knox County Bottling Works as a manufactory and storehouse, 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."

The claimant discloses no direct personal interest in the liquors in question. He says he is the manager of the Knox County Bottling Works, and as such manager had the right to possession of the liquors; that the liquors were in storage awaiting the time when, augmented by further orders and collections, they should be shipped to their real owners outside the state.

The statute establishing the right of an owner to make claim for liquors under seizure, and secure their release, contemplated a case where the "real owner" should appear, either personally or by properly authorized representative, and make claim and produce proof sufficient to satisfy the court having jurisdiction of the justice of his claim, and of his lawful possession and ownership in

fact.

The claimant in this case does not measure up to the requirements of the statute. State v. Intoxicating Liquors, 69 Me. 524. He is not such a party in interest as the law contemplates, nor does he show agency. He cannot prevail in either contention. Levant v. County Commissioners, 67 Me. 429; State v. Intoxicating Liquors (Eastern Steamship Co., Claimant) 91 Atl. 175 (July 9, 1914). The entry will therefore be: Appeal dismissed. Writ quashed.

(112 Me. 227)

SOUTHARD v. BANGOR & A. R. CO. (Supreme Judicial Court of Maine. Oct. 8, 1914.)

NEW TRIAL (§ 108*)-NEWLY DISCOVERED EVIDENCE-ACTION FOR PERSONAL INJURIES. Where plaintiff recovered a verdict on testimony that, as a result of his injuries, he was suffering from an incurable disease, was physically wrecked, and was able to do but little, if any, manual labor, newly discovered evidence that soon after the trial he went on a hunting trip, and later engaged in heavy work, and in dancing, being sufficient to render it probable that the verdict would be different on another trial, required the granting of a new trial.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*]

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F. W. Halliday, of Newport, for plaintiff. Stearns & Stearns, of Bangor, Powers & Guild, of Fort Fairfield, and Joseph F. Gould, of Bangor, for defendant.

ted to the jury was that of damages, for the defendant admitted liability. The defendant filed a general motion for a new trial, also a motion based on newly discovered evidence. As to the general motion, we think it only necessary to say that the verdict seems excessive. But we will not undertake now to discuss the question, for we think the motion based on newly discovered evidence should

be sustained.

What

At the trial the vital question was: was then the plaintiff's physical condition, so far as it had been affected by the acts for which the defendant was responsible? Knowing this, the jury could determine past damages and draw reasonable inferences as to future damages. The claim of the plaintiff, which his testimony tended to support, was that, as a result of his injuries, he was suffering from an incurable disease, that he was physically wrecked, and able to do but little, if any, manual labor.

The newly discovered evidence comes from several witnesses and relates to the acts and doings of the plaintiff after the trial, but nearly related to the time of the trial of such a character that, if this testimony is true, the plaintiff at that time could not have been suffering as he claimed, and could not have been in the physical condition he said he was. Since the evidence must be submitted to a jury, we do not analyze it, but it tends to show that in the very next month after the trial he went into the woods on a hunting trip; that within three or four months after the trial he engaged in heavy work, went to dances, and danced, and did other things indicating that his physical condition was good, and it is strongly contradictory of what the plaintiff claimed at the trial.

That evidence of things happening after the trial may be regarded in some cases as newly discovered is settled in Mitchell v. Emmons, 104 Me. 76, 71 Atl. 321. We think the evidence in this case should be regarded as newly discovered. Though it is evidence of acts which did not occur until after the trial,

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 defendant should have an opportunity to submit this evidence to a jury to be considered by them, together with any evidence the plaintiff may have to rebut it, and with such other relevant evidence as may be offered by either party on the question of damages. The evidence brings the case within the condition applicable to the granting of new trials on the ground of newly discovered evidence, namely, that it seems "probable to the court that the verdict will be different

when the case is submitted anew with the additional evidence." Parsons v. Railway, 96 Me. 503, 52 Atl. 1006. Motions sustained.

Error. Cent. Dig. §§ 559-569, 577-596; Dec.

[Ed. Note.-For other cases, see Appeal and

Dig. § 87.*]

5. TENANCY IN COMMON (§ 38*)-ACTIONS_BE

TWEEN COTENANTS

DENCE.

ADMISSION OF EVI

In an action by a tenant in common to recover for the cutting of timber by a cotenant, testimony by the defendant that he and the plaintiff had hired money for the benefit of the place was properly excluded as irrelevant and immaterial.

[Ed. Note.-For other cases, see Tenancy in Common. Cent. Dig. §§ 100-104, 107-118; Dec. Dig. § 38.*]

Exceptions from Supreme Judicial Court, Knox County, at Law.

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.

(112 Me. 234)

HALL et al. v. HALL.

(Supreme Judicial Court of Maine. Oct. 8, 1914.)

1. LIMITATION OF ACTIONS (§ 35*) — ACTIONS FOR PENALTIES.

An action under Rev. St. c. 97, § 5, providing that a tenant in common, who cuts timber without giving notice to his cotenants, shall forfeit three times the amount of damages, is not a penal action, within Rev. St. c. 83, § 97, limiting the commencement of actions for penalties or forfeitures by an individual to one year, and by the state to two years, since the right of action is given to the injured party only, and the increased damages are incidental to the general right of recovery, notwithstanding the fact that the statute uses the word "for

feit."

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 109, 158-167; Dec. Dig. $ 35.*]

2. ASSIGNMENTS (§ 120*)- ACTIONS-PLAINTIFFS STATUTORY PROVISIONS.

Rev. St. c. 84, § 146, permitting the assignee of a chose in action to sue in his own name, provided he files a copy of the assignment with the writ, does not prevent the assignee from bringing suit in the assignor's name, as he might do at common law, without filing a copy of the assignment.

[Ed. Note.-For other cases, see Assignments, Cent. Dig. §§ 206-209; Dec. Dig. § 120.*] 3. TENANCY IN COMMON (§ 38*)-ACTIONS BETWEEN COTENANTS - GENERAL ISSUE-LI

CENSE.

plaintiffs, and defendant excepts. Exceptions overruled.

Argued before SAVAGE, C. J., and BIRD, HALEY, HANSON, and PHILBROOK, JJ.

E. B. Burpee, of Rockland, for plaintiffs. Rodney I. Thompson, of Rockland, for defendant.

SAVAGE, C. J. This cause is brought under R. S. c. 97, § 5, which provides, so far as is necessary to state here, that if a tenant in common of undivided lands cuts down or carries away timber or wood, without first giving 30 days' written notice to his cotenants, he shall forfeit three times the amount of damages; also that any one or more of the cotenants, without naming the others, may sue for and recover their proportion of such damages. Joseph Hall, dying in 1895, left five sons, of whom the plaintiffs are two and the defendant is one. Fred F. Hall was then a minor, and by his father's will was to have a living on the place until he should become 21 years old, which would be on July 1, 1908. The land upon which the cutting was done came, we assume, from their father, and was undivided and owned by them in common. in common. The defendant cut wood and timber on the premises both before and after Fred F. Hall became 21 years old; the latest cutting being in 1910. He gave no written notice as the statute requires. In 1912 Newton A. Hall conveyed his interest in the land, and assigned his claim for the cutting, to his brother, Fred F. Hall. This suit was brought September 15, 1913, in the names of Fred and Newton jointly to recover twofifths of the damages. The defendant plead

An action under Rev. St. c. 97, § 5, to recover treble damages against a cotenant for cutting timber on the common property, is essentially in the nature of an action of trespass, and the defendant cannot, under plea of the general issue, show permission or license to cut the timber, since a defendant must plead justification or excuse for an act which would other-ed the general issue and the statute of limiwise be unlawful.

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tations, nothing else. The trial resulted in a verdict for the plaintiffs, and the case comes up on the defendant's exceptions.

[1] I. The first question presented relates to the statute of limitations. The defendant relies on the special statute (R. S. c. 83, § 97), which provides that:

"Actions and suits for any penalty or forfeiture 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 year after the commission of the offense; and, 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, and not afterwards."

[2] II. In the next place, the defendant contended that a recovery could not be had of Newton A. Hall's one-fifth. This contention was overruled, and properly. Newton A. Hall, before suit was brought, assigned his claim to the other plaintiff, and the contention is that a copy of the assignment should have been filed with the writ under the provisions of R. S. c. 84, § 146, which was not done. At common law an assignee of a chose in action was obliged to sue in the name of the assignor. The statute in

The contention is that the statute (R. S. c. 97, § 5), under which this action is brought, allowing, as it does, treble damages to the injured cotenants, is a "penal statute," within the meaning of chapter 83, § 97, and that actions under it, if not brought within one year after the doing of the damage, are not maintainable. The presiding justice overruled the contention. We think the ruling was right. This question has been several times ad-question permits an assignee to sue in his judicated by this court, in construing statutes essentially like this one, in that they authorized the recovery of double, treble, or quadruple damages for acts forbidden by statute. In Palmer v. York Bank, 18 Me. 166, 36 Am. Dec. 710, the court said:

"As it (the statute then under consideration) gives four times as much damage as is allowed by law for the detention of the other debts, it is certainly penal in its character. But as it is given to the party injured, who seeks the recovery of a just debt, to which these increased damages are made an incident, we are not satisfied that it is to be regarded properly as a penal action."

In Frohock v. Pattee, 38 Me. 103, an action under a statute to recover double damages for knowingly aiding a debtor in the fraudulent transfer or concealment of his property, the same special statute of limitations was set up in defense as has been in this case. The court, holding the double damage statute to be remedial and not penal, said that under R. S. 1841, c. 146, §§ 15 and 16, which are now R. S. 1903, c. 83, § 97, being the special statute of limitations invoked in this case, only such statutes were to be considered penal statutes as would authorize the commencement of a suit, indictment, or information in the name and for the use of the state, and that the double damage statute was not such a statute. In Black v. Mace, 66 Me. 49, it was held that a statute (R. S. c. 97, § 11) giving treble damages for trespassing upon grass lands was remedial and not penal. Quimby v. Carter, 20 Me. 218; Philbrook v. Handley, 27 Me. 53; Thacher v. Jones, 31 Me. 528; Reed v. Northfield, 13 Pick. (Mass.) 94, 23 Am. Dec. 662. A statute giving a right to recover multiplied damages may be remedial or it may be penal, within the meaning of this statute of limitations. If the right of action be given to the injured party, and the increased damages are only incidental to the general right to recover, the statute and action are remedial. And it is immaterial whether the statute says that the injured party may recover, or that the offending party shall forfeit to the injured party; the meaning is the same. But, if the right of action be given to others than the injured party, the statute and action are penal. See

own name, but provides that in such case he must file with the writ the assignment or a copy thereof. Notwithstanding the statute, an assignee, if he chooses, may still sue in the assignor's name, and, if he does so, he is not required to file a copy of the assignment. Rogers v. Brown, 103 Me. 478, 70 Atl. 206.

The

[3] III. The defendant did not plead justification or license, but he offered to show in evidence that his operations had been in accordance with a mutual understanding between him and the plaintiffs, which would be of course by license or permission. evidence was excluded on the ground that this defense had not been pleaded. The exclusion was right. The rule is without exception, we think, that when a defendant would justify or excuse an act which is unlawful, unless justified or excused, he must plead the justification. Daggett v. Adams, 1 Greenl. 198; Rawson v. Morse, 4 Pick. (Mass.) 127; Ruggles v. Lesure, 24 Pick. (Mass.) 187; 38 Cyc. 1092. In an action of trespass quare clausum fregit, the defendant may show, under the general issue, that he is tenant in common with the plaintiff, because presumably in such case he would have good right of entry. But in the case at bar, which is essentially in the nature of an action of trespass, the statute has limited the rights of tenants in common, and presumably one has not the right to cut wood or timber upon the common land without giving written notice to the others. The act is presumably unlawful. Hence justification must be pleaded.

[4] IV. The defendant at the trial asked leave to amend his pleadings so as to set up a justification by license. The presiding justice declined to allow the amendment. The allowance by the trial court is a matter of discretion, to the exercise of which exceptions do not bie. Appeal of Clark, 111 Me. 399, 89 Atl. 245.

[5] V. The defendant was asked by his counsel whether he and his brother Fred, the plaintiff, had hired money for the benefit of the place. The answer was properly excluded as irrelevant and immaterial.

We have examined the other suggestions

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