purchase delivered to Walter S. Gardner an agreement under seal, in which, among other things, the said Clarence T. Gardner declared that he had purchased said estates at the request of Walter S. Gardner and for the purpose of aiding said Walter S. Gardner in recovering the same or the value thereof, and said Clarence T. Gardner therein agreed to appropriate the rents and income of said estates to the payment of taxes, insurance, repairs, premiums upon a life insurance policy on the life of Walter S. Gardner held by said Clarence T. Gardner and interest upon the purchase money, and to appropriate the balance of said rents and income towards the repayment of said purchase money to him the said Clarence T. Gardner, and, upon a full repayment of said purchase money, to convey said estates to Walter S. Gardner, or to such person as he might then designate or to his heirs, and said Clarence T. Gardner in said agreement reserves the right to sell said estates at public auction upon the failure upon the part of said Walter S. Gardner to comply with certain conditions therein set out.

"I find that this transaction between Walter S. Gardner and Clarence T. Gardner was entirely for the purpose of enabling Walter S. Gardner to redeem said property; but that, although said Clarence T. Gardner held said estates from 1882 until 1890, the said Walter S. Gardner did not redeem, and that there had not been a repayment to said Clarence T. Gardner of any part of said purchase money, but that there was unpaid to said Clarence T. Gardner on the 18th day of February, 1890, the sum of $3,344.59; that on the 18th day of February, 1890, at the request of or with the consent of Walter S. Gardner, said Clarence T. Gardner conveyed said estates to Louis L. Angell, Esq., and that on the same day the said Louis L. Angell conveyed said estates to the respondent Ellen M. Gardner, at that time the wife of said Walter S. Gardner; that said Ellen M. Gardner paid to Clarence T. Gardner as consideration for said conveyance the sum of $3,344.59; that the said Ellen M. Gardner borrowed the money to make said payment from the City Savings Bank, giving to said City Savings Bank as security for said loan a mortgage on said estates, which mortgage and mortgage note were signed by both Ellen M. Gardner and Walter S. Gardner, and giving to said City Savings Bank as further security a pledge of a policy of insurance upon the life of Walter S. Gardner; that from the rents and income of said estates said Ellen M. Gardner was able to pay said mortgage note and also to purchase the estate on Warren avenue described in said bill.

"I do not find from this testimony that the conveyance of said estates on High street by Clarence T. Gardner to Louis L. Angell and by Louis L. Angell to the respondent

fraud of the complainant and the other creditors of Walter S. Gardner in order to postpone the complainant and said other creditors, and to prevent them from receiving their just debts. From a consideration of the testimony and all the circumstances, I do not find that Ellen M. Gardner paid less than a fair price for said estates. Walter S. Gardner was then a man 50 years of age, nearly blind, and the market value of his life estate would be very small, as a purchaser would not depend at all upon the expectation of life contained in the life tables, but would naturally consider the purchase of such an estate as purely a speculative transaction. Walter S. Gardner did live for a number of years and Ellen M. Gardner was enabled to pay off said indebtedness, but for over 11 years, while the estates were in the hands of the Pawtucket Institution for Savings and of Clarence T. Gardner, the attempt to reduce the indebtedness by means of the rents and income had failed. Walter S. Gardner did either permit or request his brother to convey said estates to Ellen M. Gardner, but I find that she paid a fair market price therefor, and that none of the purchase money was supplied by Walter S. Gardner. The most that can fairly be said in regard to the connection of Walter S. Gardner with the transaction is that he failed to avail himself of this further opportunity to redeem the estates, if, indeed, it would have been possible for him to have done so, which is not clear from the testimony. The loan to Ellen M. Gardner must have been based to a considerable extent upon the security of the policy of insurance on the life of Walter S. Gardner pledged to said City This Savings Bank by Ellen M. Gardner. policy of insurance was issued in 1882, and it does not appear in the testimony that in 1890 a new policy of insurance could have been procured upon the life of Walter S. Gardner to be used as further security to the City Savings Bank if Walter S. Gardner had desired to procure a loan from said bank and to have undertaken himself the redemption of said estates.

"The failure of Walter S. Gardner to undertake the redemption of said estates for his own benefit, even if it had been possible for him to do so, which does not appear, does not constitute fraud in the transaction by which the estates were conveyed to Ellen M. Gardner under which she undertook the redemption of said estates for her own benefit. I am also of the opinion that the conduct of the complainant in permitting the respondent Ellen M. Gardner to go on treating the estates in question as her own from 1890 to 1903, and striving to pay the indebtedness upon them, constitutes laches, and is a reason for refusing to grant the relief sought.

"The bill should be dismissed.

Decree

James C. Collins, Jr., George L. Wentworth, and Percy W. Gardner, for appellant. Cyrus M. Van Slyck and Frederick A. Jones, for respondents.

PER CURIAM. A careful consideration of the record in the above cause convinces this court that there is no error in the decision of the superior court, and that the same is in accord with the rights of the parties.

The appeal is dismissed, the decree of the superior court is affirmed, and the cause is remanded to the superior court for further proceedings.

HOLLEY v. JAMESTOWN & NEWPORT FERRY CO.

(Supreme Court of Rhode Island. Nov. 27, 1908.)

Exceptions from Superior Court, Newport County; Darius Baker, Judge.

Action by Charles Holley against the Jamestown & Newport Ferry Company. From a verdict for plaintiff, defendant brings exceptions. Exceptions overruled, and case remitted for judgment.

Gardner, Pirce & Thornley (William W. Moss, of counsel), for plaintiff. Clark Burdick, for defendant.

PER CURIAM. There is nothing to take this case out of the general rule laid down in Wilcox v. Rhode Island Company, 29 R. I. 292, 70 Atl. 913.

The defendant's exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict.

(104 Me. 62)

BERLAIWSKY v. ROSENTHAL. (Supreme Judicial Court of Maine. March 4, 1908.)

SALES (§§ 201, 332*) TERMS OF PAYMENT PRESUMPTIONS VESTING TITLE-DEFAULT IN PAYMENT "CASH SALE."

In the absence of agreement or understanding between the parties as to terms of payment, the law presumes a sale to be a cash sale-that is, a sale conditioned on payment concurrent with delivery-and not a sale on credit, and a delivery in such case, f. o. b. car, as agreed, made in expectation of immediate payment, will not vest the title in the purchaser, and, if payment is not made, the vendor may repossess himself of the goods sold, and sell them to another. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 535, 536, 916; Dec. Dig. § 201, 332.*] (Official.)

Exceptions from Superior Court, Kennebec County.

Action by Nathan Berlaiwsky against Hyman Rosenthal to replevy certain junk. The plea, general issue with statement, alleged that the title to the property at the time of the alleged taking and at the time of the replevy was in defendant, and not in plaintiff. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

-Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

Fred W. Clair, for plaintiff. Brown & Brown, for defendant.

SAVAGE, J. Action of replevin of three tons of iron. The plaintiff bought the iron

of one Weiner on a certain Wednesday at an agreed price to be delivered f. o. b. car at Anson, to be shipped to Waterville. Weiner loaded the iron on the car, and on the Monday following, while the car was still at Anson, he sold and delivered the iron to the defendant, who then shipped it to Waterville, where it was replevied by the plaintiff. The question tried was, Which party had title?

At the trial there was evidence from which the jury might have found properly, if they believed it, that the sale by Weiner to the plaintiff was understood as a cash sale, that the plaintiff was to send a check for it, and that Weiner held the iron at Anson until the check should be received. If so, the sale was conditional on payment, and, if no payment, unless payment was waived for the time being, the title to the iron did not pass to the plaintiff. Stone v. Perry, 60 Me. 48; Seed v. Lord, 66 Me. 580. And in such case the vendor, after a reasonable time, if payment was not made, might lawfully sell to another. But the verdict of the jury for the plaintiff negatived necessarily this proposition.

There was also evidence coming from the plaintiff himself tending to show that nothing whatever was said between the plaintiff and Weiner as to when the iron was to be paid for, and that there was no understanding as to the terms of payment. Upon this phase of the case the presiding judge instructed the jury, in substance, that if the iron was sold by Weiner to the plaintiff without any understanding as to the terms of payment, and if it was delivered on the car directed to the plaintiff in pursuance of their agreement, the iron belonged to the plaintiff, that the contract between them was completed, and that, if nothing more was said as to the terms of payment, the plaintiff had the right to the possession of the iron under the agreement, whether he sent his check for it or not. To these instructions the defendant has excepted.

The exceptions must be sustained. The court below seems to have proceeded upon the theory that, when a sale is made without any agreement or understanding as to terms of payment, it is to be deemed as sale on credit, in which case a delivery f. o. b. car, as agreed, would completely vest the title in the purchaser. But this is directly opposed to the doctrine declared in Furniture Co. v. Hill, 87 Me. 17, 32 Atl. 712, where

it was said that, under such circumstances, "the law presumes that the parties intended to make the payment of the price and the delivery of the possession concurrent conditions. The plaintiffs [who were the vendors in that case] would have had the right to retain possession until the purchaser had been ready to perform his part of the contract; or, if the goods had been delivered with expectation of immediate payment, and this had not been done, the plaintiffs had the right to retake possession of the goods."

In the absence then of agreement or understanding, as to terms of payment, the law presumes a sale to be a cash sale-that is, a sale conditioned on payment concurrent with delivery and not a sale on credit, and a delivery in such case f. o. b. car, as agreed, made in expectation of immediate payment, will not vest the title in the purchaser, and, if payment is not made, the vendor may repossess himself of the goods sold.

By this rule, under the evidence in this case, which is made a part of the bill of exceptions, if the jury had found, as they well might have found from the testimony of the plaintiff himself, that nothing whatever was said or understood between him and Weiner in regard to terms of payment, the jury would have been warranted in finding that the title to the iron was in the defendant, and not, in effect, necessarily in the plaintiff, as they were instructed. The instructions were therefore erroneous and prejudicial.

Exceptions sustained.

(104 Me. 56)

BUCKLEY v. BEAULIEU et al. (Supreme Judicial Court of Maine. March 3, 1908.)

1. SEARCHES AND SEIZURES (§ 7*)-CONSTITUTIONAL GUARANTY-UNREASONABLE SEARCHES.

The constitutional guaranty that "the people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures" is a restraint upon officers executing a search warrant, as well as upon magistrates issuing it.

[Ed. Note. For other cases, see Searches and Seizures, Cent. Dig. § 5; Dec. Dig. § 7.*]

2. SEARCHES AND SEIZURES (§ 7*)—UNREASONABLE SEARCHES-SEARCH WARRANTS - -EXECUTION.

While officers in executing a warrant to search a dwelling house occupied by a family may, and should, search thoroughly in every part of the house where there is reason to believe the object searched for may be found, they should also be considerate of the comfort and convenience of the occupants, and be careful to injure the house or furniture no more than reasonably necessary.

[Ed. Note. For other cases, see Searches and Seizures, Cent. Dig. § 5; Dec. Dig. § 7.*] 3. SEARCHES AND SEIZURES (§ 7*)--UNREASONABLE SEARCHES-CARE REQUIRED.

Where officers searching a dwelling house for intoxicating liquors have no reason to believe

that such liquors are concealed within the walls and partitions of the house, but desire to ascertain whether any pipes leading to some receptacle for liquors are concealed there, their sounding and even probing of the walls and partitions for that purpose should be done with as little damage as possible.

[Ed. Note.-For other cases, see Searches and Seizures, Dec. Dig. § 7.*]

4. SEARCHES AND SEIZURES (§ 8*)-ACTIONS FOR WRONGFUL SEARCH.

Where officers, for the purpose only of ascertaining whether such pipes are concealed within the walls and partitions of a dwelling, make use of an axe, a pickaxe, and crowbar, and tear out the paper, plaster, and laths entirely round the walls of every room on the first floor of a dwelling house for a width generally of from two to four feet, leaving the débris on the floors and carpets of the rooms, they act unreasonably, do unnecessary damage, and thereby exceed their authority and become liable to the owner therefor.

[Ed. Note.-For other cases, see Searches and Seizures, Dec. Dig. § 8.*1

(Official.)

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by E. W. Buckley against Maxine Beaulieu and others. Verdict for defendants. Motion by plaintiff for a new trial and exceptions to certain rulings. Exceptions not considered. Motion for new trial sustained.

Action of trespass quare clausum for an alleged breaking and entering of the plaintiff's dwelling house in Lewiston. The defendants were deputy enforcement commissioners duly appointed under the provisions of chapter 92, p. 94, Pub. Laws 1905, known as the "Sturgis Law," and at the time of alleged trespass, by virtue of a warrant therefor duly issued by the municipal court of Lewiston, were engaged in searching the plaintiff's dwelling house for intoxicating liquors alleged to be concealed therein. The plaintiff is a resident of New York city, and the dwelling house, at the time of the alleged trespass, was occupied by his brother, Timothy F. Buckley, as a tenant at will.

The declaration in the plaintiff's writ is as follows:

"In a plea of trespass, for that the said defendants at Lewiston, on the 5th day of August, 1906, with force and arms, broke and entered the plaintiff's close in said Lewiston, and then and there with a pickaxe, bars, and other instruments ruined and destroyed to a large extent the plaintiff's building, tore down the walls of the house, cut, destroyed and defaced the walls, floors, and other portions of the plaintiff's house, against the law of the land and against the will of the plaintiff, and the plaintiff further alleges that these acts were done by the defendants willfully and wantonly, to the damage of the said plaintiff (as he says) the sum of $1,000."

Plea, the general issue, with a brief statement as follows:

"That at the time of doing the acts com

plained of in plaintiff's writ, to wit, on August 5, A. D. 1906, the defendants and one A. B. Howard, of Auburn, in this county, were duly and legally appointed and qualified deputy enforcement commissioners of the state of Maine, and were acting as such; that the said A. B. Howard was then armed with a warrant legally issued from the municipal court of the city of Lewiston, in said county of Androscogġin, a court having general jurisdiction over the subject-matter, directed to the sheriff of our said county of Androscoggin, his deputies, the constables of the city of Lewiston, and of the several towns in said county, and the enforcement commissioners and deputy enforcement commissioners of the state of Maine, commanding them, or either of them, to enter the dwelling house and its appurtenances occupied by Timothy Buckley, and situated on the west side of Grove street in said Lewiston, being the same premises described in plaintiff's writ and declaration, and therein to search for intoxicating liquors alleged in said warrant to be then, on the said 5th day of August aforesaid, there unlawfully kept and deposited by said Buckley for illegal sale in the state of Maine; that said warrant was duly issued from said court on and bearing the date of said 5th day of August, aforesaid, bearing its seal and the teste of the judge thereof, and over the signature of A. K. P. Knowlton, its then duly appointed and qualified acting clerk; that said Howard was present and armed with and acting under said warrant, and directing said search in said capacity as deputy enforcement commissioner, during all of the acts complained of in plaintiff's writ and declaration; that said Beaulieu and said Stevens, in their said capacity as deputy enforcement commissioners, assisted in said search as aids of said Howard, and under the directions contained in said warrant; that all of the acts complained of in plaintiff's said writ and declaration which these defendants I did at all were done in the execution of said warrant, in the presence and under the direction of the person, to wit, of said Howard, who was then and all of the time there personally present and armed with the same, and that neither of said defendants did any act which was not reasonable and necessary in the execution of said warrant; and that the said Howard and the said Beaulieu and Stevens, acting in their said several capacities, did all things required of them by said warrant according to the tenor thereof."

Argued before EMERY, C. J., and WHITEHOUSE, STROUT, and KING, JJ.

McGillicuddy & Morey, for plaintiff. Newell & Skelton and J. G. Chabot, for defendants.

EMERY, C. J. The decisive question in this case is whether the defendants in their execution of a warrant to search the plain

uors went so far as to violate the constitutional guaranty that "the people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures." This court in State v. Guthrie, 90 Me. 448, 38 Atl. 368, in considering the duty of an officer entrusted with a search warrant used the following language, viz.: "It is a sharp and heavy police weapon to be used most carefully lest it wound the security or liberty of the citizen. It was unknown to the early common law and came into use almost unnoticed in the troublous times of English history. Lord Coke denied its legality, but finally the courts and Parliament, recognizing its great efficiency, contented themselves with carefully restricting and controlling its use. Entick v. Carrington, 19 Howell's State Trials, 1030. The danger of its abuse has been so clearly apprehended in this country that constitutional barriers have been erected against it." This constitutional limitation upon its use is to be observed by the officer executing the warrant, as well as by the magistrate issuing it.

Whether the conduct of the officer in a given case was reasonable or unreasonable must be determined by all the circumstances of that case. No definite line can be drawn. The division is rather by a zone within which reasoning men might reasonably differ, but outside of which there would be a general concurrence of reasoning, thinking men. The general principle, however, is that, while the officers should search thoroughly in every part of the described premises where there is any likelihood that the object searched for may be found, they should also be considerate of the comfort and convenience of the occupants, should mar the premises themselves as little as possible, and should carefully replace so far as practicable anything they find it necessary to remove. As said in 2 Tiedeman on the Police Power, p. 787: "Under a constitutional government, of which the liberty of the citizen is the cornerstone, the privacy of one's dwelling is rarely ever invaded, and then only in extreme cases of public necessity and under such limitations as will serve to protect the citizen from any unusual disturbance of his home life."

In the case at bar the following facts appear from the testimony of the defendant officers themselves: They had a warrant to search the plaintiff's dwelling house for intoxicating liquors alleged to be unlawfully kept therein by the tenant. From the prior and contemporaneous conduct of the tenant and his wife the officers believed, and had reason to believe, that intoxicating liquors were somewhere in the house. They searched the house "thoroughly," and without hindrance, from attic to cellar inclusive, and even dug into the floor of the cellar. They examined the walls and floor of the cellar

ing the attic, but found no liquors, nor any indications of any receptacles, secret panels or openings, or communications with receptacles, nor any other indications as to where liquors might be hid. They sounded the walls "pretty thoroughly" with hammers, but no such indications were thereby discovered. The officers nevertheless insisted to the tenant and his wife that intoxicating liquors were somewhere in the house, and that, unless the location was revealed, they should break into the walls of the various rooms. The tenant and his wife declared there were no liquors then in the house; the officers having already by a prior search of the stable taken all they had. The officers thereupon, using an axe, pickaxe, and crowbar, broke into and tore out a strip from the interior walls of all the rooms below stairs from kitchen to front hall, inclusive, entirely round each room, tearing off the paper, plastering and lathing, and dropping the débris upon the floors and carpets. This strip was of varying width, mainly from two to four feet, and was so wide as to require an entire repapering of the rooms, besides the repairs of lathing and plastering. They did all this in the hope of finding, not the liquors, but some pipe or other clue leading to the liquors. The officers then departed, leaving the occupants to remove the torn paper, plaster, and broken laths and dust from the carpets and floors of their dwelling, and leaving the plaintiff, the owner, to restore his house, and make it again habitable.

Upon these facts we think it clear that the manner and extent of the search in this case were unreasonable and in excess of the officers' authority. Even if, under all the circumstances, not believing any liquors to be concealed there, they could lawfully have probed the walls in the hope of finding a pipe or other clue of the existence of which they had found no indications, such probing could have been sufficiently made with some slender probe with comparatively little injury. The destructive use of axe, pickaxe, and crowbar for that purpose was unnecessary and unreasonable, and hence unlawful.

It may be conceded that the defendants acted in good faith in the full belief, and with reason to believe, that the occupant was keeping liquors in the house in violation of law, but that is not a defense. In this civil action against them they are to be judged by their conduct, not by their motives except as to the assessment of damages. Officers must not allow their zeal and beliefs to blind them to the rights of the owners and occupants of the dwelling house they search. Those rights, as well as the interests of the prosecutor, are to be regarded and protected by officers. In this case the tenant was not convicted, but only accused, and only of a misdemeanor. The owner was not even accused. However confident the officers were

of the guilt of the occupant, the house and its owner were not thereby outlawed.

Motion sustained. Verdict set aside.

(81 Vt. 428)

TAPLIN & ROWELL v. MARCY. (Supreme Court of Vermont. Orleans. Oct. 14, 1908.)

1. WITNESSES (§ 199*)-COMPETENCY-PRIVILEGED COMMUNICATIONS COMMUNICATION FROM CLIENT TO ATTORNEY.

Where defendant received a deed of premises from another and a chattel mortgage on his stock of goods, which were delivered to defendant, together with the account books, and the books were left with a lawyer who had been the mortgagor's attorney, a letter from defendant to the attorney, stating that defendant had written the mortgagor that he did not think there was any objection to the mortgagor's examining the books, and that he thought best to tell the mortgagor that defendant claimed anything that was due on the accounts, did not contain such a confidential statement as would render it a privileged communication between client and attor ney, in the absence of any further showing of the relations between defendant and the attor ney, and it was admissible, in an action for goods alleged to have been sold to defendant through the mortgagor as his agent, to show the relations between defendant and the mortgagor, and that defendant was claiming the books and what was due upon them.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 749, 750; Dec. Dig. § 199.*] 2. WITNESSES (§ 269*)-CROSS-EXAMINATION— SCOPE.

Where plaintiffs introduced the heading of a page in one of defendant's account books, the purpose of the evidence being expressly limited to show that the relation between defendant and another person was that of principal and agent, and not debtor and creditor, it was not error to confine cross-examination to that issue, and to exclude questions calling for explanation of items appearing under the heading.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 945-954; Dec. Dig. § 269.*]

3. PRINCIPAL AND AGENT (§ 21*)-EVIDENCE OF RELATION COMPETENCY NATURE OF TRANSACTION.

Where plaintiffs claimed to have sold goods to defendant through a third person as defendant's agent, who afterwards transferred his prop erty to defendant, testimony of the third person that at the time of the transfer defendant had promised to pay for the goods was admissible, as showing the relation between defendant and the third person in their transaction, and that defendant had assumed the indebtedness to plaintiff contracted by the third person.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 39; Dec. Dig. § 21.*]

4. EVIDENCE (§ 241*)-ADMISSIONS OF AGENT -TIME OF MAKING.

Evidence of a person through whom, as defendant's agent, plaintiff claimed to have sold goods to defendant, that he had informed defendant's bookkeeper that defendant had agreed to pay witness' notes to plaintiffs was not competent as an admission of an agent, where at the time nothing was being done in respect to the transaction in which it was claimed he was acting for defendant, since to make such admissions competent, they must have been made while the agent was performing some act within