quently depends upon the context. Royce v. Maloney, 58 Vt. 445, 5 Atl. 395. The language relied upon by the orator,-"instituting legal proceedings,"-when read in connection with the context, fairly imports criminal, as well as civil, proceedings. It is not contended that if part of the consideration for the agreement which the orator asks to have enforced was the suppression of criminal prosecution, equity will aid the orator in enforcing it. The decree of the court of chancery, sustaining the demurrer, and adjudging the bill insufficient, is affirmed, and cause remanded.

1. Counsel for assignee should not be paid out of the assigned estate, where he was also attorney for the assignor and for certain creditors, one of whom was the assignee, to whom the assignor confessed judgments on which, before the assignment, executions were levied on part of the assignor's property.

2. As against an assignor and persons claiming through him, the assignment for benefit of creditors takes effect from the time the assignor delivers it to his attorney for recording.

3. General creditors who would benefit by having a judgment against the assignor defeated, may attack it, before the auditor, as having been paid, or as confessed for more than was due, to cheat and defraud them.

4. An assignee who, without order of court, pays money that belongs prima facie to the assigned estate to one who, under the assignment, has no right to it, does so at his own risk, and assumes the burden of showing every fact necessary to establish title of the one to whom it is paid.

Appeal from court of common pleas, Philadelphia county.

In the matter of the assigned estate of Joseph S. Wright and another, trading as Wright & Schmid. From a decree dismissing exceptions to and confirming the report of the auditor, appointed to audit the account of William H. Schmid, assignee for the benefit of creditors, Frederick Vietor and another, creditors, appeal.

Reversed.

John Sparhawk, Jr., George P. Rich, Henry C. Boyer, and William A. Manderson, for appellants.

Alexander Simpson, Jr., for appellee.

WILLIAMS, J. It is matter for congratulation that the assignments of error do not make it necessary for us to consider the facts in this case at any length. Their flavor is not pleasant. Still a brief outline of them seems necessary to a proper understanding of the legal questions presented on the record. Wright & Schmid were merchants in the city of Philadelphia. In June, 1891, and for some time prior thereto, they were hopelessly bankrupt. Their assets consisted of some $12,000 in bank, some $10,000 or $12,000 worth of stock, and bills re

The lia

ceivable for a somewhat larger sum. bilities were not far from $50,000. On the 4th day of June, 1891, the firm called its legal adviser to its assistance for the purpose of closing up its affairs. The first thing done was to confess judgments in favor of several relatives and favorite creditors for about $10,000. Then the money on hand was disposed of. In the next place, after writs of fi. fa. had issued on the judgments, and the sheriff had seized the stock of goods, a general assignment was made in favor of creditors which could be operative only on the bills receivable. This was made to a son of one of the partners who had been the bookkeeper of the firm, and was one of the judgment creditors who had a levy on the goods. This assignment was executed on the 4th day of June, and left with the attorney for the purpose of having it recorded, which was actually done on the next day. It is now alleged that on the same day a secret assignment of the most available of the bills receivable was made by the firm to the judgment creditors as collateral security, and that, inasmuch as the judgments were not fully paid out of the stock, they should now be paid out of the funds in the hands of the assignee because of this secret assignment. Mr. Carr, the attorney who prepared all these papers, says as a witness: "I placed it [the assignment as collateral] among the papers of Wright & Schmid, and I have it yet." It seems never to have been delivered to the judgment creditors, or to any one for them, but to have remained under the control of Wright & Schmid from the beginning to the end of these proceedings. The judgment creditors did not know of its execution. The assignee did not. No one seems to have had any knowledge of its execution but Wright & Schmid and their legal adviser, and the reason the latter gives for this is, in his own words, "I have never been accustomed to make a display of my client's papers, and I did not in this case." He evidently regarded the papers as belonging to Wright & Schmid.

It appears that it was the confident expectation that all the judgments would be paid out of the proceeds of the sheriff's sale, and this was not even doubted for some time after these papers were executed. The secret assignment might, therefore, have been intended by the assignors as a provision against a contingency not then looked for, and not to be delivered until the necessity became apparent for withdrawing money from the assignee for the payment of the judgments. Upon these facts several questions are raised which may be very briefly disposed of. First. Should the assignee be entitled to withhold the money paid by him for counsel fees? Mr. Carr appears to have been the attorney for the plaintiffs and the defendants in all the judgments. He was the attorney of the assignors. The assignee alleges that he also employed him as his adviser. The antagonism between the judgment and the unsecured creditors was apparent. It was impossible for a man to serve both sides with equal fidelity. As a consequence, all doubts

CITY OF BANGOR v. INHABITANTS OF ORNEVILLE.

(Supreme Judicial Court of Maine. April 24, 1897.)

INSANE PAUPERS-COMMITMENT-NOTICE-RECORD -OFFICERS.

1. In an action of assumpsit, under Rev. St. c. 143, to recover for sums paid by plaintiff town for the support of an insane pauper at the insane hospital, it was admitted that the insane person had a pauper settlement in the defendant town. Two points were urged in defense, viz. want of proper notice, and failure to keep a proper record of the proceedings respecting the examination and commitment of the pauper.

Held, that a notice sent to the overseers of the poor of the defendant town, containing proper facts, from the "office of the overseers of the poor" of Bangor, by "L. C. Davis, overseer of the poor, and secretary," is sufficient; and thereby the defendant town becomes charged for all sums paid by the plaintiff town within three months prior, and two years after, the cause of action accrued.

2. The record of the proceedings attending the examination and commitment will be held valid. although not extended for nearly two years after the commitment, it appearing that it was made during the municipal year immediately succeeding the commitment and by the clerk, who continued to hold his office by re-election.

3. It is established in New England that a clerk who has made an erroneous or incomplete record while in office, or after re-election, may complete such records; and where he continues in office for several years he may amend former records notwithstanding intervening re-elections.

4. A record of such proceedings that omits to state, according to the statute, that the two practicing physicians who made the medical examination were also "respectable," will be held sufficient when it appears to contain a statement of all facts requisite to establish the regularity of the proceedings and a legal commitment; no evidence being adduced that the two physicians, who signed the certificate, were not in fact respectable. In such cases the court is aided by the presumption in regard to public officers, expressed by the maxim, "Omnia præsumuntur rite esse acta."

(Official.)

Report from supreme judicial court, Penobscot county.

Assumpsit by the city of Bangor against the inhabitants of Orneville. Submitted on report. Judgment for plaintiff.

E. C. Ryder, City Sol., for plaintiff. J. B. Peaks, for defendant.

WHITEHOUSE, J. This is an action of assumpsit to recover the sums paid by the plaintiff city for the support of Maurice Foley in the insane hospital, including the expenses of his examination and commitment, amounting in the aggregate to $101.02.

It is admitted that Foley had a legal settlement in the defendant town, that he was adjudged insane by the "board of examiners" of Bangor, and by their authority committed to the insane hospital, and that the expenses sued for were incurred and paid by the plaintiff city. But it is strongly urged that the city is precluded from recovering in this action by reason of its failure to give the requisite notice of the facts to the overseers of the defendant town; and, secondly, by its

omission to keep a proper record of the proceedings of the municipal officers respecting the examination and commitment of the insane person.

It is provided by section 13 of chapter 143, Rev. St., that "the municipal officers of towns shall constitute a board of examiners, and on complaint in writing of any relative, or of any justice of the peace in their town, they shall immediately inquire into the condition of any person in said town alleged to be insane; shall call before them all testimony necessary for a full understanding of the case; and if they think such person insane, and that his comfort and safety, or that of others interested, will thereby be promoted, they shall forthwith send him to the hospital, with a certificate stating the facts of his insanity, and the town in which he resided or was found at the time of examination"; and that "they shall keep a record of their doings and furnish a copy to any interested person requesting and paying for it."

It is further provided by section 19 of the same chapter that "the certificate of commitment to the hospital after a legal examination is sufficient evidence, in the first instance, to charge the town where the insane resided, or was found at the time of his arrest, for the expenses of his examination, commitment and support in the hospital"; and by section 21 that "any town thus made chargeable, in the first instance, and paying for the commitment and support of the insane at the hospital may recover the amount paid from the insane, if able, *** or from the town where his legal settlement is, as if incurred for the expense of a pauper." Section 34 declares that "in all cases of preliminary proceedings for the commitment of any person to the hospital, the evidence and certificate of at least two respectable physicians, based upon due inquiry and personal examination

*

** shall be required to establish the fact of insanity, and a certified copy of the physicians' certificate shall accompany the person to be committed."

The evidence reported discloses a copy of the certificate of commitment, issued by the municipal officers of Bangor, April 7, 1894, duly attested by the city clerk, stating the facts according to the directions of the statutes, with an attested copy of the certificate of two "practicing" physicians, reciting the facts required by the statute; and it is not in controversy that on the 7th day of April, 1894, Maurice Foley was committed to the insane hospital. The report also discloses a copy of what purports to be a true "record of the commitment" of Maurice Foley to the hospital, dated April 7, 1894, duly attested by the city clerk of Bangor. And it is not questioned that, barring the omission of this record to state that the two practicing physicians were also "respectable" physicians, it contains a statement of all the facts requisite to establish the regularity of the proceedings and a legal commitment of Foley to the hospital.

But it appears from the testimony of the | city clerk of Bangor that this record in its present form was not extended on the book entitled "Record of Commitments to the Insane Hospital," introduced at the trial, for nearly two years after the commitment of Foley.

It is therefore contended by the learned counsel for the defendant that it is not a valid and authentic record which can be accepted as evidence legally importing the verity of the statements therein contained.

It appears, however, from the testimony of the city clerk, that he made the extended record in question during the municipal year immediately succeeding that when the warrant for Foley's commitment was issued, and he continued to hold the office of city clerk by re-election at the time the extended record was made.

It is an established rule in New England, respecting the amendment of the records of a city or town, that the clerk who has made an erroneous or incomplete record may, while in office, or after a re-election to the same office, amend or complete such record according to the truth, being liable like a sheriff who amends his return for any abuse of the right. 1 Dill. Mun. Corp. § 294; Chamberlain v. Dover, 13 Me. 466; Hartwell v. Littleton, 13 Pick. 229; Welles v. Battelle, 11 Mass. 477. In the last-named case it was distinctly determined that when a clerk continues in office several years by repeated annual elections he may amend the record of a former year, notwithstanding an election has intervened, and though he does not hold the office under the same appointment; and this case was cited with approbation in Chamberlain v. Dover, supra. In Hartwell v. Littleton, supra, Chief Justice Shaw, speaking of an amendment by a clerk after a re-election, says: "The clerk not only knows the fact in relation to which the amendment is to be made, *** but he still enjoys the confidence of the town, is by their vote intrusted with the custody of their records, and is held responsible for their purity and correctness under the sanction of an official oath, and all such other guards as the law has thought it necessary to prescribe in the case of a clerk actually in office. The intervening election is substantially a continuance of the clerk in the same office." in Mott v. Reynolds, 27 Vt. 206, Redfield, C. J., says: "We think in general it must be regarded as the right of the clerk of a town or other municipal corporation, while having the custody of the records, to make any record according to the facts. His having been out of office and restored again could not deprive him of that right." Again, in Turnpike Co. v. Pomfret, 20 Conn. 590, it was held that the clerk, still continuing in office, was competent to amend the record of a town meeting six years after it was held; that this power is derived solely from his official character, and does not depend on the permission of the court in which the record is offered as an instrument of evidence, nor on inquiry in

So,

to the truth of it as originally made or as amended, and that such a record is in such an action conclusive evidence of its own truth. See, also, Gibson v. Bailey, 9 N. H. 168.

In the case pending before us, it appears from the certificate of commitment that the city clerk was himself the justice of the peace who made the complaint to the municipal officers upon which the adjudication was made respecting Maurice Foley; and the city clerk testifies that he preserved a copy of the certificate of commitment and the original certificate of the two physicians as data from which to make a permanent record; that the delay in making this record was occasioned by the adoption about that time of a different book for a new form of record, and that the "record of the commitment" of Maurice Foley, introduced in this case, was the official record of the facts made by him as city clerk.

It thus appearing that in extending this record the city clerk acted in entire good faith in the discharge of an official duty, it is the opinion of the court that this "record of commitments" is a valid record, which should be received as conclusive evidence of the facts therein stated.

The statute requires the evidence and certificate of at least two "respectable" physicians to establish the fact of insanity, and it is objected that the record only shows that the evidence and certificate of two "practicing" physicians were before the board. But both the certificate of commitment signed by the municipal officers and the record signed by the city clerk state that the board had before them "all testimony necessary for a full understanding of the case," as required by the provision of section 13, c. 143, Rev. St.; and it has been seen that the evidence and certificate of two "respectable" physicians are declared by section 34 to be "necessary." It is not suggested that either the city physician, who signed the certificate, or the other eminent physician whose name appears on that instrument, was not in fact "respectable"; and it is the opinion of the court that, aided by the presumption in regard to public officers expressed by the maxim, "Omnia præsumuntur rite esse acta," the evidence is sufficient to justify the conclusion that there was a full compliance with the requirements of the statute in this respect.

The notice sent to the overseers of the poor of the defendant town from the "office of the overseers of the poor" of Bangor by "L. C. Davis, Overseer of the Poor and Sec'y," appears to be the inartificial result of an attempt to adapt the established formula employed in ordinary pauper cases to the modified conditions existing in this case; and, while it is not to be commended as a precedent, it states with reasonable clearness and precision all the essential facts involved in the case, and leaves no opportunity for a misunderstanding respecting its purpose and object. It must therefore be deemed a substantial compliance with the requirements of

the statute. It bears date April 9, 1894, and appears to have been sent after the expense of commitment, amounting to $13 05, had been actually paid by the city of Bangor; and, being the first and only notice sent, it was obviously received before any payments had been made by the defendant town on account of the expenses therein said to have been incurred. The notice is therefore sufficient to charge the defendant town for all sums paid by the plaintiff within three months prior to such notice, and all expenses subsequently accruing and paid by the plaintiff within two years after the cause of action accrued. Rev. St. c. 24, § 35; Veazie v. Howland, 53 Me. 39; Jay v. Carthage, 48 Me. 357; Bowdoinham v. Phippsburg, 63 Me. 497.

The plaintiff's right to reimbursement for all the items of expense specified in the account annexed to the writ having been established, the entry must be, Judgment for plaintiff.

BOOTHBY v. BOSTON & M. R. R. (Supreme Judicial Court of Maine. May 29, 1897.)

RAILROAD-NEGLIGENCE-NOISE OF LOCOMOTIVE. 1. The plaintiff recovered a verdict upon the following undisputed facts: At the time of the accident the defendant railroad company had a train consisting of a locomotive and several flat cars standing on its track, near a crossing. The locomotive was headed towards the crossing, and was distant therefrom about 40 feet. The train was stationed there to load the flat cars with logs. The locomotive had steam up, as was necessary in order to quickly move the train from time to time; but no steam was escaping. Neither the engineer nor the fireman was on the locomotive, but both were seated on the bank, same 30 feet distant. The plaintiff's intestate, riding with her husband in a wagon behind a horse along a traveled road, came to this crossing, and stopped before passing over. At this moment steam suddenly escaped from some part of the locomotive, making a noise that frightened the horse, which ran away, throwing out the plaintiff, and inflicting injuries upon her from which she afterwards died.

Held, that whether whether the steam escaped through the safety valve on top of the locomotive. with a sudden, sharp, and loud noise that would frighten an ordinarily well-broken horse, or it escaped through the cylinder cocks, making only a slight, hissing noise, insufficient to frighten an ordinary horse, were questions of fact for the jury, who have found for the plaintiff under instructions not complained of. The court considers that the evidence is not untrue.

2. Under the instructions of the court, the jury rendered a special finding that the defendant was in fault in not sufficiently guarding against such an escape of steam at that time.

3. Upon this issue the jury found that the defendant's servants, the engineer and fireman, by the exercise of reasonable care, could have kept the steam up to the necessary working point while the locomotive was stationary, and yet prevented its sudden escape. The court considers that there is practically no evidence that this was impossible or improbable. It seems probable, and the engineer practically admits it.

4. Held, that the defendant was bound to anticipate that travelers with teams might, at any time, approach this crossing, and was bound to be mindful of the danger to them of steam suddenly

escaping at high pressure, although the fee in the crossing was in the defendant, who had been unable to prevent or limit travel over it, but finally gave it up, removed all bars and other obstructions, put up the usual sign of a railroad crossing, and suffered people to pass freely across the track without objection.

(Official.)

Action on the case by Joseph Boothby, administrator, against the Boston & Maine Railroad, to recover damages for the death of his wife at a railroad crossing of defendant. There was a verdict for plaintiff, and defendant moves for a new trial. Overruled.

H. Fairfield, L. R. Moore, and J. M. Stone, for plaintiff. G. C. Yeaton, for defendant.

EMERY, J. The undisputed facts are these: At the time of the accident the defendant railroad company had a train, consisting of a locomotive and several flat cars, standing on its track, near a crossing. The locomotive was headed towards the crossing, and was distant therefrom about 40 feet. The train was stationed there to load the flat cars with logs. The locomotive had steam up, as was necessary in order to quickly move the train from time to time; but no steam was escaping. Neither the engineer nor the fireman was on the locomotive, but both were seated on the bank, some 30 feet distant.

The plaintiff's intestate, riding with her husband in a wagon behind a horse along a traveled road, came to this crossing, and stopped before passing over. At this moment steam suddenly escaped from some part of the locomotive, making a noise that frightened the horse, which ran away, throwing out the plaintiff, and inflicting injuries upon her from which she afterwards died.

The plaintiff contended, and there was evidence tending to show, that the steam escaped through the safety valve on the top of the locomotive, and that the noise was sudden, sharp, and loud, and calculated to frighten ordinarily well-broken horses. The defendant stoutly contended that the steam escaped through the cylinder cocks, and made only a slight, hissing noise, insufficient to frighten an ordinary horse. These are pure questions of fact. As the jury found for the plaintiff under instructions not complained of, we may assume the facts to be as contended by him in this respect. The evidence for the plaintiff, if true, furnishes a sufficient basis for the verdict on these issues, and we do not feel clear that the evidence is untrue.

The jury further found (the plaintiff's intestate being in the exercise of due care) that the defendant was in fault in not suffi

ciently guarding against such an escape of steam at that time.

This finding is specially assailed, and is to be reviewed.

The defendant's locomotive, with all its machinery and appliances, was rightfully there. The steam necessary for its quick working under its load was rightfully kept up to an efficient working point. All noises