the Atlantic & St. Lawrence Railroad Company, or the value thereof, and one share of the stock of the Lewiston Falls Manufacturing Company, or the value thereof, together with any and all sums of money received by him, as income or dividends on said stocks or either of them, since his appointment as executor; also the income received by him, as aforesaid, from the real estate described in "item 10" of the will of said Daniel Briggs.

safely, and upon gaining possession of it might | himself therein with two shares of the stock of assert it as equitable assignee thereof, and no demand upon the attaching officer would be required (Shepherd v. Hall, 1 New Eng. Rep. 359, 77 Me. 569); but this she did not do. The receipt was allowed to remain with the attaching officer to whom the debtor engaged to be accountable; and the creditor, having procured a special judgment and execution against the property attached,-the debtor meanwhile having been discharged as an insolvent debtor,caused another officer, not holding the receipt, to demand the property attached, that he might seize it on the execution. This officer could make no legal demand for the property, because he did not hold the receipt (Gilmore v. McNeil, 45 Me. 599; Hinckley v. Bridgham, 46 Me. 450); nor did he pretend to demand the property by virtue of the receipt, but rather required the debtor to produce certain property, that he was not compelled to produce that it might be taken on the execution.

True, the debtor, supposing the officer authorized to demand the property by virtue of the receipt, produced it and demanded his receipt, which being refused him, he forbade the officer from taking away a part of the property that he had produced, viz., the books; but the officer, in disregard of the debtor's protest, took all the property produced and sold it on the execution. By the terms of his execution he could only take property upon which the attachment created a lien, that he might perfect the same, and he could only do this by gaining possession of the property by demand upon the receipt; so that the seizure made by him on the execution was not a continuation of and perfection of any lien created by the attachment, but was an independent seizure of property that had either passed to the debtor's assignee in insolvency or was exempt from seizure upon execution; and as the debtor had lawful possession of the property that he forbade the officer to take, whether it belonged to him or to his assignee in insolvency is immaterial, and he should recover the value of the same. Defendant defaulted for $165 with interest from December 3, 1885.

Peters, Ch. J., Walton, Danforth, Emery, and Foster, JJ., concurred.

The will of the testator in items 10 and 12 read as follows:

"Item 10. I give and bequeath to the Baptist Church at East Auburn, of which I am now a member, the use and improvement of the following-described real estate. *** And, should said church refuse or neglect to occupy said premises for the above-named purposes for the space of thirty days, I hereby direct my executor, hereinafter named, to take possession thereof and rent said premises and appropriate the proceeds thereof, for repairs on the building and fence of said premises, or for erecting on said lot a stable or wood house, as he may deem proper, until said church shall desire to occupy said parsonage for the purposes aforesaid, which said church may again occupy and improve by giving said executor thirty days' notice of its intention so to do," etc.

"Item 12. I give and bequeath the income of two shares in the Atlantic & St. Lawrence Railroad Company, and one share in the Lewiston Falls Manufacturing Company, for the use and support of preaching in the meeting-house hereinbefore mentioned; and my executor is hereby directed to take charge of said railroad and manufacturing shares, and appropriate the income thereof for the support of a Calvinist Baptist minister who may be settled by the church at this place," etc.

Mr. C. Record, for appellant:

The property, of the income of which the petitioner claims an exhibit, is a trust fund, and before the executor can lawfully be called on to charge himself with its "value," he should be required to give bond as testamentary trustee under the will. Rev. Stat. chap. 68, § 1, provides for giving bond by the trustee, and the following sections direct the course to be pursued by him in administering the trust. tion 14 provides that "the foregoing provisions are applicable to executors" who, by the provisions of the will, become trustees "by operation of law without express appointment."

Sec

In Deering v. Adams, 37 Me. 275, the court says "that trustees before entering upon the duties of their trust shall give a bond with certain prescribed conditions. The duties of executors and trustees are separate and distinct, and separate and distinct bonds must be given." The same doctrine is held in Groton v. Ruggles, 17 Me. 141; Elder v. Elder, 50 Me. 548; and in Wyman v. Hubbard, 13 Mass. 234.

We have already spoken of the difference between the Massachusetts decisions and those of our own State, in reference to this point under consideration, and that the difference arises by reason of the statute (chap. 68, § 14) already cited. A further reason is given in Dorr v. Wainwright, 13 Pick. 328.

Messrs. George C. & Charles E. Wing, for appellee:

exceptions by the appellees to the ruling

It seems to us that the court here will adopt of the court in accepting the report of a

the exact course taken in Prior v. Talbot, 10 Cush. 1.

This was a case where the executor was also appointed trustee in a will, but gave bond only as executor, and the court determined that he was chargeable for the property in his hands in his capacity of executor, until he had given bond as trustee and charged himself with the property as trustee. We cannot perceive any hardship in such a requirement, and we submit that no other course can be adopted with prudence or safety.

The same practice was adopted by the court in Massachusetts as long ago as 1830, and has never been departed from; in Hall v. Cushing, 9 Pick. 397, the court says that an executor who is also trustee under the will cannot be considered as holding any part of the assets in the latter capacity until he has settled an account at the probate office, as executor, in which he is credited as executor with the amount which he holds as trustee, and that such an account ought not to be passed by the judge of probate without first requiring bonds from the party as trustee. Now the court will observe that the word "trust" or "trustee" does not occur at all in those items of the will, which are here shown; that certainly the appellant has never qualified as trustee; and that he has never accounted as executor for the property bequeathed for the benefit of the church, although more than twenty years have elapsed. He certainly cannot complain of undue haste on the part of the church, or that he has lacked for time.

The judge of probate had full jurisdiction
of the case, and the subject.
Rev. Stat. chap. 63 §§ 1, 6.
Per Curiam:

The court is of opinion that the exceptions should be overruled, and that the order and decree of the Judge of Probate be affirmed. Prior V. Talbot, 10 Cush. 1.

Charles D. BRYANT et al.

v.

majority of a committee on an appeal from the doings of the County Commissioners, and determining that the report reversed the decision of the commissioners. Sustained.

Messrs. Humphrey & Appleton, for appellees:

The commissioners are to be satisfied" that the petitioners are responsible and that an inquiry into the merits is expedient," and shall give a certain prescribed notice. But these requirements of the statute have been held in Cyr v. Dufour, 68 Me. 492, to be merely directory, and into these preliminary questions, in Moore's App. 68 Me. 407, it was decided, a committee has no authority to inquire.

The decision of the commissioners upon the preliminary questions "of the responsibility of the petitioners, and the expediency of an inquiry into the merits," is wholly shut out from the consideration of the committee, by the decisions in 68 Me. 407, 492, before cited; and in Irving v. County Comrs. 59 Me. 515, it was held to be no part of their duty to lay out the road or to assess land damages, so that the only judgment of the commissioners which the committee can report whether it should be in whole or in part affirmed or reversed, is the judgment the commissioners make, under Rev. Stat. chap. 18, § 4, after viewing the route and hearing the parties, that the way is or is not of common convenience and necessity. "If they judge the way to be of common convenience and necessity *** they shall proceed to perform the duties required" is the language of this statute. This is the only judgment they make, and the only judgment from which an appeal can be taken. "The only decision which is to be returned and placed on file," says which results from the hearing after notice Danforth, J., in Moore's App. supra, “is that given, and refers to the granting or refusal of the petition upon the merits after the view as well as the hearing. Hence an appeal is allowable only from the final decision of the commissioners, which they thus return and place on file, and not from the preliminary adjudica

COUNTY COMMISSIONERS of Penobscot tion" that the petitioners are responsible, and

that an inquiry into the merits is expedient. The committee," says the court in Irving v. County Comrs. 59 Me. 515, "had discharged their full duty when they had acted upon the affirmation or reversal of the judgment of the county commissioners." Their judgment that common convenience and necessity does or does not require the location of the road in question, is the judgment of the county commissioners, and the only judgment contemplated by the statute and submitted on appeal to the committee.

which was an appeal to a committee from the In Shattuck v. County Comrs. 76 Me. 171, judgment of county commissioners, the court, in an opinion drawn by Chief Justice Peters, recommitted to the committee its report with special instructions to them to determine whether the way would or would not be of common convenience and necessity; and also, under the peculiar facts of that case, whether the way would be of common convenience and necessity because of its convenience and necessity to the bridge company, and not otherwise.

"This single question of "common convenience | different, and nothing appeared to so show, and and necessity" is all that is included in the that the court could presume their substantial "judgment" of the commissioners, and is all identity. that is submitted to a committee on an appeal, and must therefore be the exclusive basis for their affirmation or reversal of such judgment. See Hodgdon v. County Comrs. 72 Me. 248. The committee solemnly proceed to reverse the acts of the commissioners, because in their judgment the proceedings in laying out said road were illegal and void. Whether they were so, or not so, was none of their business; for, as Judge Cutting tersely remarks in Inhabitants of Brunswick, Appts. 37 Me. 450, 'this act nowhere authorizes the committee to decide abstruse questions of law." As well might they pass upon the constitutional existence of the court of county commissioners, as they undertook to do in Inhabitants of Brunswick, Appts. supra, 447.

only the term of the court when the offense was committed.

(Washington-Decided February 17, 1887.)

N report of the presiding justice.
ments quashed.

Indict

Mr. Edward E. Livermore, County Attorney, for the State.

Messrs. George M. Hanson and Edgar Whidden, for respondent:

The time laid should be the day of the month and year upon which the act is supposed to have been committed.

Archb. Cr. Pl. 10th ed. §§ 37, 38.

In an indictment for perjury the day on which the perjury was committed must be truly laid.

Whart. Cr. Ev. § 103 a.

The day on which the offense occurred must be correctly laid.

New Eng. Rep. 688, 78 Me. 153, conflict with
this view. In that case one terminus was not
fixed within 10 miles. The petition in this case
is sufficient. Nor is the location made by the
commissioners invalid. It need only substan-
tially conform to the route described in the
petition. It appears to have been so laid; but
it is said that neither end reaches the terminus
fixed in the petition, but that both ends stop
short of these points. That is no legal objec-
tion. It amounts to a location between the
points fixed by the commissioners on the route
petitioned for and a refusal to lay out the resi-
due. Winslow v. County Comrs. 31 Me. 444;
Harkness v. County Comrs. 26 Me. 353. It
does not invalidate the location, but it may be a
good ground for appeal to be considered by
the committee in determining whether common
convenience and necessity requires a location
of the road prayed for. The committee may
reverse the action of the commissioners in re-
fusing to lay out a part of the way prayed
for, and affirm the residue of their judgment.
Common convenience and necessity is a fact
for the committee to decide in determining
whether the doings of the commissioners shall
be affirmed or reversed, in whole or in part.
In determining this fact the committee must
consider the location as actually made by the
commissioners; and if the way located by them
has not proper connections, termini so as to
make it convenient for public use,-and the
fault cannot be corrected by the committee un-
der the petition,-that may be a good reason for
reversing the location. The committee, as
they find "the convenience and necessity to be set out.
be, must either affirm or reverse the doings of
the commissioners in whole or in part; and that
is their whole duty. Brunswick v. County
Comrs. 37 Me. 446; Hodgdon v. County Comrs.
72 Me. 246; Shattuck v. County Comrs. 76 Me.
167.

2 Whart. Cr. L. 8th ed. § 1314.

When, as in case of perjury, the time of the alleged false oath enters into the essence of the offense, and is to be shown by the records of the court where the oath was taken, a variance in the day is fatal.

Whart. Cr. Pl. 8th ed. § 135.

When a person is charged with having committed the crime of perjury on a particular day, the day must be proved.

State v. Corson, 59 Me. 141.

The statute prescribing a form of an indictment for perjury requires that the particular day on which the crime was committed should

Rev. Stat. chap. 122, § 4.

Designating the term of the court on which the offense charged occurred, is not a sufficient averment of the time required to be stated. State v. Hanson, 39 Me. 337.

"The indictment is fatally defective in not The report of the committee can only be ac- alleging with precision the day upon which cepted, rejected, or recommitted for the cor- the State claims that the offense was commitrection of some manifest error of the committed. It is essential that the time of the alleged tee. The majority report in this case plainly commission of an offense should be stated in shows that the committee based their action the indictment or complaint with precision and upon their own view of the law, which was certainty." erroneous, and did not determine these questions with which the law charged them.

That the committee may determine whether common convenience and necessity required the location of the way prayed for, and, as their judgment may be, report whether the judgment of the commissioners shall be affirmed or reversed, in whole or in part,-the report must be recommitted. Shattuck v. County Comrs.

supra.

Exceptions sustained; report recommitted, with instructions to follow this opinion.

Peters, Ch. J., Walton, Danforth, Emery, and Foster, JJ., concurred.

STATE of Maine

v.

Devereaux N. FENLASON.

An indictment for perjury should set forth with precision some particular day as the time when the offense was committed; it is not sufficient to allege

State v. Day, 74 Me. 220; State v. Baker, 34 Me. 52.

Foster, J,, delivered the opinion of the court:

It unnecessary to reiterate the well-estab lished rue in criminal pleadings, which has se often been the subject of judicial decision, that the day upon which the State claims that the offense was committed should be stated in the indictment with certainty and precision. State v. Day, 74 Me. 221.

No indictment can be sustained which fails to set forth with precision some particular day as the time when the offense charged against the accused was committed, although it is not essential that the offense charged be proved to have been committed on the day alleged, except in cases where time is material, or an essential element in the constitution of the offense. State v. Hanson, 39 Me. 340; State v. Baker, 34 Me. 52; State v. Thurstin, 35 Me. 206; Commonwealth v. Adams, 1 Gray, 483; 1 Bish. Cr. Proc. §§ 237, 251.

The rule should be complied with. It must

not be left to inference or conjecture. A departure from the well-settled doctrine of the necessity of certainty and precision in the allegations as to time and place in criminal pleadings would be dangerous in the extreme. However severe and unnecessarily strict these rules may sometimes appear, they have been too long established for their propriety to be questioned or the necessity of the reason for their establishment to be stated.

While these rules are recognized by all the authorities, and are being constantly sustained by judicial decisions, the question that has

most frequently arisen has been in reference to ON report of facts agreed. Judgment for

the absence of these rules, and whether certain averments have fulfilled their requirements.

In the cases now before us the indictments contained no sufficient averment of the time when the offense of perjury is alleged to have been committed. No particular day is set forth. All that could reasonably be understood in relation to time is that it was during the particular term of court named in the indictments. The only allegation in relation to time is that it was "heretofore, to wit, at the supreme judicial court begun and holden at Machias, within and for the county of Washington aforesaid, on the first Tuesday of January in the year of our Lord 1886, by Charles Danforth," etc. That the time referred to relates particularly to the session of the court is apparent not only from the language used, but also from the fact that the indefinite statement of time contained first in the term "heretofore," is immediately thereafter particularized under the videlicet "to wit, at the Supreme judicial court begun," etc.

Sci. fa. by the sheriff on a judgment for a
breach of the bond of his deputy.
Messrs. George D. Bisbee and Oscar H.
Hersey, for plaintiff:

We understand that the law in this State is well settled that the success or failure of the suit against the sheriff is not the true test of liability of the deputy and his sureties. "It must be ascertained whether the doings of the deputy, out of which the suit grew, were his official acts."

74 Me. 494.

"This right of indemnity does not depend upon the success of a suit against the sheriff for the wrongdoings or neglects of the deputy, or the right to maintain an action therefor; provided he is called upon to defend a suit instituted on account of his deputy's doings or omis sions."

37 Me. 302.

Messrs. R. A. Frye and A. E. Herrick, for defendants:

The defendants' discharge in bankruptcy operated as a discharge of the plaintiff's claim, if any he ever had.

Grover v. Clinton, 8 Nat. Bankr. Reg. 312; Amoskeag Mfg. Co. v. Barnes, 49 N. H. 312; Bump, Bankr. 7th ed. 639.

payment and satisfaction of said judgment by Blake, and the court so found, and gave judg ment for the plaintiff, then defendant in said action,-the plaintiff is estopped to deny that Blake did not pay the judgment as it was agreed between the plaintiff and Blake.

In State v. Hanson, supra, this court held that designating the term of the court at which the offense happened was not a sufficient averment of the time required to be stated in an indictment for perjury. Such indictment could not be sustained as giving the accused sufficient When the plaintiff, as defendant in action notice of the "nature and cause of the accusa-(Davis v. White) on the judgment sued, pleaded tion against him” required by the Constitution. Although the Legislature has seen fit in some particulars to simplify the common law requisites in indictments for perjury, which formerly required great care and nicety of statement, and to reduce the essential averments to the smallest possible compass consistent with constitutional requirements, yet, even according to the form prescribed by statute, the distinct allegations of time and place are among the requisites of the several particulars which go to make up the offense. Rev. Stat. chap. 122, §4; State v. Corson, 59 Me. 141.

Foss v. Stewart, 14 Me. 312; Bigelow, Estop. 512.

Sureties are by rules of law regarded with favor, which has been formulated into the maxim that the liability of sureties is strictissimi juris.

They are bound so far, only, as they distinctThe defendant is entitled to a more definitely by contract bind themselves; their liability allegation of time than that contained in these is not to be extended by construction. Hence, indictments. In accordance with the terms of when the plaintiff entered into the arrangement the report the entry must be— with Blake that Blake should settle the execution (Davis v. White), then White released and waived his claim upon the sureties; because the sureties were not parties to the new contract between Blake and White, the plaintiff.

Indictments quashed.

Peters, Ch. J., Walton, Danforth, Emery, and Haskell, JJ., concurred.

Albert D. WHITE

v.

Gilman L. BLAKE et al.

1. A sheriff may maintain an action on the bond of his deputy for expenses

United States v. Corwine, 1 Bond, 339; United States v. De Visser, 10 Fed. Rep. 642; Brown v. Mosely, 19 Miss. 354; Schloss v. White, 16 Cal. 65; Andrews v. Marrett, 58 Me. 539.

The neglect of Blake to see that the satisfaction of said judgment was indorsed upon the execution, was not among the official duties which the sureties agree to indemnify the plain