of the judge of probate. Any person who has such an interest in the subjectmatter that he may be and is aggrieved by any decision of the judge of probate, with some exceptions not material here, may appeal therefrom. This petitioner is the absolute owner of the land, which in this case is the matter acted upon and directly affected, subject only to the contingency that it may be wanted for the payment of prior debts. The sale, if carried into effect, would divest him of that land. He has therefore the same interest that an heir or devisee would have in cases where the deceased died seized; the same right and interest to be heard as to the prior debts, as to the propriety or necessity of the sale, and to give bonds for the payment of the debts, if he deemed it expedient to do so, as the heir would have. He must therefore be deemed to have sufficient interest to authorize him to enter an appeal, but whether he shall have leave to do so must be decided upon a hearing at nisi prius. Exceptions sustained. PETERS, C. J., and WALTON, VIRGIN, LIBBEY, and FOSTER, JJ., concurred. (80 Me. 509) GOULD v. GRAVES.1 (Supreme Judicial Court of Maine. August 7, 1888.) EXECUTORS AND ADMINISTRATORS-POWERS AND DUTIES-PROPERTY HELD IN TRUSTΤΑΧΑΤΙΟΝ. * Under Rev. St. Me. c. 6, § 14, cl. 6, providing that "personal property held in trust by an executor, administrator, or trustee, the income of which is to be paid to a married woman, ** shall be assessed to the husband of such married woman, an executor cannot withhold from such married woman enough of the interest to pay the taxes on bonds so held in trust by him. * * Bill in equity from supreme judicial court, Cumberland county. Bill in equity to ascertain plaintiff's right as executor to retain from the interest due the defendant (married woman) on bonds held in trust for her a sufficient amount to pay the taxes thereon. Thomas L. Talbot, for plaintiff. John J. Perry, for defendant. WALTON, J. The plaintiff, as executor, is possessed of certain bonds, the interest on which is payable to the defendant during her life. The bonds themselves, at her decease, are given to other parties. The question is whether the plaintiff has a right to withhold from the defendant enough of the interest to pay the taxes on the bonds. Clearly not. The bonds are not taxable to him. The defendant is a resident of Portland, in this state. The bill so states. If she is a married woman, (and we understand she is, although the case does not distinctly show such to be the fact,) the bonds are taxable to her husband. If she is not a married woman, then they are taxable to her. In neither case are they taxable to the plaintiff. Rev. St. c. 6, § 14, cl. 6. The clause cited declares that "personal property held in trust by an executor, administrator, or trustee, the income of which is to be paid to a married woman or other person, shall be assessed to the husband of such married woman, or to such other person, in the place of which he is an inhabitant," if such husband or other person is an inhabitant of the state; and it is only when the beneficiary, or her husband, if she has one, resides out of the state that such property can be taxed to an executor, administrator, or trustee. The tax laws of this state expressly so declare. The statute referred to does not apply to real estate. It applies only to personal estate, and it does not apply to personal estate when held for the ordinary purposes of administration. It applies only to personal property held in trust, and the income of which is payable to another person. But when personal property is so held, it applies to 'Reported by Leslie C. Cornish, Esq., of the Augusta bar. executors and administrators as well as to trustees. The statute expressly so declares. Such being the law, it is not important to inquire what the intentions of the testatrix were with respect to the taxation of these bonds. The law must govern, not her supposed or real intentions, if she had any. The will is silent upon the subject, and probably she had no intentions one way or the other. But if she had, and it were possible to ascertain what they in fact were, still it is the law, and not her intentions, that must govern. We therefore decline to make the inquiry. Clearly the bonds are not legally taxable to the plaintiff, and he has no right to withhold from the defendant any portion of the interest with which to pay the taxes. Whether he can be allowed to charge the taxes already paid by him to the estate, and thus make them a burden upon the residuary legacies, is a question which he must settle with the judge of probate. Bill dismissed, with costs. PETERS, C. J., and VIRGIN, LIEBEY, FOSTER, and HASKELL, JJ., concurred. (S0 Me. 503) TRAFTON et al. v. HILL.1 (Supreme Judicial Court of Maine. August 7, 1888.) LIMITATION OF ACTIONS-RUNNING OF THE STATUTE-INSOLVENCY. Prior to the enactment of chapter 118, Pub. Laws Me. 1887, when the period of limitation had commenced to run on a claim provable in insolvency, the subsequent insolvency of the defendant, under Rev. St. Me. c. 70, did not interrupt the running of the limitation, and the right of action on such claim was barred by the general limitation of six years. On agreed statement of facts from superior court, Cumberland county. Assumpsit on promissory notes. Plea, statute of limitations. Chapter 118, Pub. Laws Me. 1887, provides that "if a person is adjudged an insolvent debtor, after a cause of action has accrued against him, and such cause of action is one provable in insolvency, the time of the pendency of his insolvency proceedings shall not be taken as a part of the time limited for the commencement of the action." Holmes & Payson, for plaintiffs. Augustus F. Moulton, for defendant. LIBBEY, J. On the 2d day of April, 1880, the defendant was duly declared an insolvent debtor, and his estate was settled in insolvency; but no dividend was made, and no discharge granted to him. All the notes and the check in suit had been overdue nearly three months at the date of the defendant's insolvency, and the period of limitation had commenced to run. By the facts agreed it appears that the plaintiffs proved the claims in suit in insolvency, but it does not appear when they were proved. The action was commenced May 12, 1886. The defendant relies on the statute of limitations, and the only question is whether the action is barred. We think it is. Nearly six years and four months had elapsed between the maturity of the last note and the commencement of the action, but it is claimed by the plaintiffs that there must be deducted from that period a reasonable time for the defendant, in the exercise of due diligence, to procure a decree of the court of insolvency on the question of his right to a discharge, and that would reduce the time to less than six years. The statute relied on by the plaintiffs to support their contention is as follows: "No creditor shall commence or maintain any suit against the insolvent debtor upon a claim or demand which he has proved against such debtor in insolvency until after a discharge has been refused such debtor: provided, that such debtor proceeds with reasonable diligence to obtain such discharge.' Rev. St. c. 70, § 51. Prior to the act of 1887, c. 118, there was no statute which, in terms, suspended the running of the limitation 'Reported by Leslie C. Cornish, Esq., of the Augusta bar. by reason of insolvency. It is a general rule that when the statute of limitations has commenced to run no subsequent disability will interrupt it, unless within some exception created by the statute. Eager v. Com., 4 Mass. 182; Mercer's Lessee v. Selden, 1 How. 37; 2 Greenl. Ev. § 439. It may well be doubted if, in an action at law, the court has the power to suspend the running of the limitation, after it has commenced, on account of a disability not within an exception named in the statute. Eager v. Com. and Mercer's Lessee v. Selden, supra; Phillips v. Sinclair, 20 Me. 269; Baker v. Bean, 74 Me. 17; Rowell v. Patterson, 76 Me. 196. But we do not deem it necessary to so decide in this case. If it has such power it must be for some disability created by law which interrupts and suspends the right of the plaintiff to commence his action. Swan v. Littlefield, 6 Cush. 417; Collester v. Hailey, 6 Gray, 517; Stoddard v. Doane, 7 Gray, 387; Richardson v. Thomas, 13 Gray, 381. No such disability is created by the statute. The creditor is disabled from commencing or maintaining an action "upon a claim or demand which he has proved against such debtor in insolvency." He is not required to prove his claim. If he does not, he may commence or maintain his action subject to the power of the court, in its discretion, to continue it pending proceedings in insolvency. Schwartz v. Drinkwater, 70 Me. 409. He has a right to prove it, and if, in exercising that right, he deprives himself of his other right to commence an action against his debtor, it is the result of his own act. A contract made before the insolvency statute was enacted is not subject to its provisions. Still, if a creditor, holding such a contract, proves it against his debtor in insolvency, and takes a dividend, he subjects his contract to all the provisions of the act. Fogler v. Clark, 80 Me. 14 Atl. Rep. 9. The same principle applies to the point under consideration. But the case is here on an agreement of facts by the parties. This court cannot assume nor infer a fact not agreed upon by the parties. By the facts agreed it does not appear when the plaintiffs proved their claims. Under the statute they had a right to prove them any time before final dividend. No dividend was made. They may not have proved them till long after the lapse of a reasonable time in which the debtor should have proceeded to obtain his discharge, so that there may not have been any time when the plaintiffs could not have commenced their action. Judgment for defendant. PETERS, C. J., and WALTON, VIRGIN, FOSTER, and HASKELL, JJ., concurred. (80 Me. 500) ULMER et al. v. FARNSWORTH.1 (Supreme Judicial Court of Maine. August 3, 1888.) 1 ASSUMPSIT-WHEN LIES-WORK AND LABOR-IMPLIED CONTRACT. Assumpsit cannot be maintained by the owner of a lime quarry against the owner of another quarry adjacent, but not adjoining, to recover compensation for pumping out water that accumulated in the latter, and ran through the intervening quarry into the former, no express promise of payment therefor being proved 2. SAME-CUSTOM AND USAGE-LOCAL CUSTOM. Nor can the plaintiff recover upon an implied promise on the ground of usage or custom, when it appears that the alleged custom is local, recent in origin, and not uniform. & SAME. Evidence of a local usage may be received to modify a contract or explain the intention of the parties, in case of ambiguity, but not of itself to create a liability or establish a contract. On report from supreme judicial court, Knox county. Assumpsit to recover compensation for services alleged to have been rendered for defendant's benefit. Plea, general issue. 1 Reported by Leslie C. Cornish, Esq., of the Augusta bar. 15 ATL.-5 O. G. Hall, for plaintiffs. Robinson & Rowell, for defendant. DANFORTH, J The plaintiffs are the owners of a lime quarry, in which they have a pump used for the purpose of draining their quarry from such water as may accumulate therein, whether coming from sources within its own limits or outside. The defendant owns another quarry adjacent to, but not adjoining, the plaintiffs', there being one quarry between them. It is al-` leged that water accumulates in the defendant's quarry, and, running through the one intervening, comes upon that of the plaintiffs', and is pumped up by them. It is to recover compensation for this service that this action is brought, the plaintiffs alleging that the defendant receives benefit from it, as it prevents the injurious accumulation of water in his own quarry. The action is assumpsit, and must therefore be maintained, if at all, upon proof of a promise, express or implied. The case shows no sufficient proof of an express promise. Nor will the facts proved, independent of the alleged custom or usage relied upon by the plaintiffs, raise an implied promise. The pump by which the service was performed was situated in the plaintiffs' quarry, put there primarily for the purpose of draining their own premises. The running of the water from the defendant's quarry to the plaintiffs' was the result of the plaintiffs' own act in digging theirs deeper than the other. The benefit accruing to the defendant, if any, was merely incidental, with no legal right to interfere with the operation of the pump, and hence under no obligation to give notice of a denial of liability. These circumstances could not raise an implied promise on the part of the defendant,-certainly not if he was guilty of no wrong in permitting the water to run as it did, and if he was guilty the remedy would be in another form of action; and, when we add to this the unqualified and uncontradicted denial of the defendant that any contract was made, we must come to the conclusion that the testimony not only fails to sustain a promise, but that in fact none, either express or implied, ever existed. But the plaintiffs rely upon an alleged custom or usage in that neighborhood by which, under like circumstances, the parties receiving this incidental benefit have recognized a liability to pay a certain specified sum (one cent) for each cask of lime burned from the rock taken out of the quarry thus drained. It is claimed that this usage of itself raises an implied promise on the part of the defendant. It requires the citation of no authorities to show that, to give a custom the force of law, among other things, it must be universal, and its. origin in point of time so far back "that the memory of man runneth not to the contrary." This custom is at best but a local one, and is confined to "a particular business or employment," and so recent in its origin that its beginning is within the memory of some of the witnesses. But as a local and limited usage the evidence fails to show its uniformity or certainty. On the other hand it appears that the price paid was not the same in all cases, and in many instances both the price paid and the liability was the result of a contract; nor does it clearly appear that this was not true in all cases, while in the constantly varying circumstances attending each case the application must be difficult and uncertain. But assuming the evidence to be plenary, and to establish all that is claimed for it, still, as a local and limited usage,-and it can be no other,--while it may be received to modify a contract, to explain the intention of the parties to it in case of an ambiguity, or the meaning of certain words used, or control to some extent the modes of dealing between parties in like business, as well as the manner of performing their contracts, many illustrations of which may be found in the usages of banks and merchants, but "it cannot be received to establish a liability, or to prove the origin of the relation by which the parties became responsible to each other." Such a usage may have an application to a contract previously existing, but cannot of itself create one. Nor can it be received to change an express contract, or in vio lation of an established principle of law. Leach v. Perkins, 17 Me. 462; Randall v. Smith, 63 Me. 105; Bodfish v. Fox, 23 Me. 90; Adams v. Morse, 51 Me. 497; Dickinson v. Gay, 7 Allen, 29; Waters v. Lilley, 4 Pick. 145. If this alleged usage is allowed to prevail in this case, it imposes a contract liability upon this defendant in direct opposition to the established principle of law requiring assent to a binding contract. This action must therefore fail, whatever remedy may be open to the plaintiffs in a process of a different form. Judgment for defendant. PETERS, C. J., and WALTON, VIRGIN, LIBBEY, and FOSTER, JJ., concurred. WHEELER v. SAWYER.' (Supreme Judicial Court of Maine. August 7, 1888.) PHYSICIANS AND SURGEONS-RIGHT TO COMPENSATION-CHRISTIAN SCIENTIST. Assumpsit may be maintained to recover upon an express promise to pay, for services rendered by one practicing the healing art according to the principles and methods of those calling themselves "Christian Scientists, "plaintiff having complied with Rev. St. Me. c. 13, § 9, requiring persons not licensed by medical associations to obtain a certificate of good moral character from the officers of the towD where they then reside. On agreed statement of facts from supreme judicial court, Franklin county. Assumpsit to recover compensation for medical services rendered by a Christian scientist. The agreed statement of facts is as follows: This is an action of assumpsit, for treatment as a Christian scientist rendered defendant's intestate, in his life-time, as per writ. The writ is dated January 31, 1888, and is to make a part of the case. It is admitted and agreed that at time of rendering the services sued for plaintiff was a resident of Wilton, Me.; that he is and was a regular practicing Christian scientist; that he is graduate of the Massachusetts Metaphysical College, of Boston, Mass.; and that prior to rendering the services sued for he had obtained from the selectmen of the town of Wilton, where he resided, a certificate of good moral character. It is further admitted and agreed that plaintiff attended and treated said Oliver 10 weeks, at the price agreed upon of $3 per week, and that this was plaintiff's regular price. Said Oliver expressed himself as improved under said treatment. All irregularities, if any, in proceedings are hereby waived, and if plaintiff is entitled to recover under the law as a Christian scientist, judgment is to be entered for full amount of claim; otherwise a nonsuit is to be entered. Plaintiff did not prescribe nor furnish any medicines, nor does he use any medicines, in his treatment of patients, but depends altogether upon socalled "Christian Science." Rev. St. Me. c. 13, § 9, is as follows: "No person who has not received a medical degree at a public medical institution in the United States, or a license from the Maine Medical Association, shall recover compensation for medical or surgical services, unless, prior to such service, he had obtained a certificate of good moral character from the municipal officers of the town where he then resided." E. O. Greenleaf, for plaintiff. P. A. Sawyer, for defendant. PER CURIAM. The plaintiff professed to practice the healing art according to the principles and methods of those calling themselves "Christian Scientists." He attended upon and treated the defendant's intestate according to those principles and methods for 10 weeks, at an agreed price of $3 per week. Previous to such service he had obtained a certificate of good moral character from the municipal officers of the town in which he then resided, as required by Rev. St. c. 13, § 9. He did not prescribe nor furnish any medicines, but 1 Reported by Leslie C. Cornish, Esq., of the Augusta bar. |