a trial justice in favor of the institution of a criminal prosecution, given upon a full, fair, and truthful statement of the facts by the compainant, would exonerate a complainant from responsibility to the same extent and with the same effect as would follow had the advice been given by a counselor at law under the same circumstances, then, too, the ruling was right. Magistrates are not counselors. It is not a privileged duty of magistrates to advise. We know that trial justices are not learned in the law, nor safe advisers on important legal qustions. Of this there can be no better evidence than these very complaints and warrants which are the foundation of this case, and still the persons who acted as magistrates in these proceedings are known to the court as intelligent and influential men in the community where they live.

Two things are to be investigated preliminarily to the commencement of a criminal prosecution,-the facts and the law. Probable cause depends upon both. A complainant may know the facts, but not the law. He may obtain advice upon the latter of one learned in the law, and be protected though a mistake be made by the legal adviser. If a complainant sees fit to proceed without advice from such a source, he assumes the responsibility himself. We think it would be injudicious to allow any extension of the doctrine that legal advice, under certain condi tions, may constitute probable cause or excuse the want of it. The tendency is rather in the opposite direction. See Olmstead v. Partridge, 16 Gray, 381.

Exceptions overruled.

WALTON, VIRGIN, EMERY, FOSTER, and HASKELL, JJ., concurred.

(84 Me. 271)

STATE V. CRAM et al. (Supreme Judicial Court of Maine. Feb. 4, 1892.)

--

ASSAULT AND BATTERY CONSTITUTIONAL LAWINFAMOUS CRIME JURISDICTION OF MUNICIPAL COURTS.

1. A complaint before a municipal court, charging an assault and battery, does not necessarily imply that an infamous crime is alleged because such an offense may be punished by imprisonment for a term of years. As the statute also allows the sentence to be no more than a nominal fine, the grade of the offense must be determined by the evidence adduced rather than by the fact alleged.

2. The legislature is not prevented by any constitutional provision from conferring jurisdiction upon trial justices and police or municipal courts to sentence a person to confinement in jail for a period exceeding 30 days, nor from conferring a greater jurisdiction upon municipal or police courts than upon trial justices.

(Official.)

Exceptions from supreme judicial court, Cumberland county.

Prosecution of Linwood E. Cram and another for assault and battery. Defendants' motion to dismiss the complaint, and their demurrer thereto, were overruled, and they except. Exceptions overruled.

Frank W. Robinson, Co. Atty., for the State. Frank & Larrabee, for defendants.

PETERS, C. J. This complaint alleges, in common form, an assault and battery. Upon trial in the municipal court for the city of Portland, the respondents were found guilty, and sentenced to an imprisonment in jail for 60 days, from which sentence an appeal was taken to the superior court. In the latter court a motion was filed to dismiss the proceedings, because an infamous crime is charged by the complaint, the prosecution for which should have been initiated through an indictment by the grand jury. The respondents also demurred to the complaint.

While this may be an irregular way to reach the point aimed at in behalf of the respondents by their counsel, we prefer to consider the question now, rather than to postpone it to a later period of the proceedings, thereby saving time and expense for all parties.

The real contention of the defense is that the municipal court cannot sentence an offender to an imprisonment for over 30 days, and that the constitution forbids it. We are unable to assent to the proposition.

It is argued that, inasmuch as the act of assault and battery may be punishable so severely as by imprisonment for five years in the state prison, any complaint for an offense of the kind legally charges an infamous crime.

It is true that the usual test of the magnitude of an offense has been considered to be the nature of the charge preferred, rather than the amount of punishment to be inflicted therefor. The crime, and not the punishment, renders the offender infamous, according to the common law. But the innovation in the practice caused by the legislature in the punishment lately prescribed by it for the offense of assault and assault and battery necessarily cre ates an exception to the rule. While by our statute an assault may be punished by five years' imprisonment, or by one day's confinement in jail, or by the merest nominal fine, still the offense is now usually charged in the same terms, whatever the punishment may be. And so it has been decided that the degree of the offense in any particular case must depend upon the proof adduced, and not upon the facts alleged. The proof may constitute it a felony, or only a petty misdemeanor. State v. Jones, 73 Me. 280. It cannot, therefore, be anticipated that these respondents would, if sentenced by the superior court, be punished by more than a fine without imprisonment. Upon the proof would depend the measure of the punishment.

It has been recently decided in this state that any sentence to imprisonment for a period of one year or more conclusively implies that an infamous crime was intended to be charged, and that the offender could be so punished only upon indictinent and conviction, and not by conviction upon merely a complaint against him. Butler v. Wentworth, 84 Me. 25, 24 Atl. Rep. 456. The implication of that decision is that any sentence to punish

ment by confinement in jail for any time less than one year would not indicate that an infamous crime had been charged or committed.

But the defense contends that, irrespective of forms of allegation or any inferences deducible therefrom, municipal courts are or should be of the same grade as that of justices of the peace or trial justices, and that they cannot exercise a greater criminal jurisdiction than that exercisable by justices of the peace when our state constitution was adopted, which jurisdiction at that date did not empower justices of the peace to impose sentences of confinement in jail for a longer period than 30 days. In support of this position, appeal is made to section 7 of the declaration of rights, a part of our state constitution, which provides that "no person shall be held for a capital or infamous crime, unless on a presentment or indictment of a grand jury, except in cases of impeachment, or in such cases of offenses as are usually cognizable by a justice of the peace. The defense contends that, by force of the above exceptive clause, what justices of the peace did in 1820 they and all kindred courts can now do, and no more; and that all offenses not then usually cognizable by such justices are to be denominated "felonies" or "infamous crimes."

"

It will be noticed that the above qualifying clause cannot be read literally and be sensible. The literal construction would

be that persons shall not be held for an infamous crime unless upon indictment, excepting such infamous crimes as are usually cognizable by justices of the peace. No such exception is contained in the corresponding declaration in the fifth amendment to the constitution of the United States, of which ours, as far as that goes, is a copy.

But the meaning is evident enough. The principal provision was not to trench upon or in any way abridge the jurisdiction of justices of the peace, as usually exercised by them. There is, however, no assertion or implication that justices of the peace may not possess an enlarged jurisdiction at a future time, according to the growing requirements of the administrative law, provided always that they be not allowed to assume jurisdiction to punish infamous crimes or felonies. And an assault punished by a sentence to jail for 60 days or 6 months is by no means to be regarded as a felony. Can it be reasonably supposed, because the maximum ju- | risdiction of justices of the peace when our constitution was adopted was in civil cases $20, and in criminal cases the power to sentence for 30 days, that the legislature is prohibited from ever raising that jurisdiction to the extent of a dollar or a day? If it be so, there has been a multiplicity of infringements upon such constitutional inhibition. The clause in question was intended, not to restrict the jurisdiction of justices of the peace, but to prevent what might otherwise be a supposable restriction. And the words "usually cognizable" meant such as at any time might be usually so cognizable. It was a provision for the future. It is

the language of the past speaking in the present. Construed to-day, it means, "as are [now] usually cognizable by justices of the peace.

The counsel for respondents queries whether it is not unconstitutional legislation to endow municipal courts with criminal jurisdiction exceeding that allowed to justices of the peace. We think that question is settled in the negative by the principle established in the case of Missouri v. Lewis, 101 U. S. 22. A discrimination of the kind objected to may be found in different forms of legislation. There are two classes of justices of the peace, one being of the peace and quorum. Thirty years ago a grade was established between justices of the peace with ordinary powers and trial justices. We can see no constitutional or other objection against establishing grades between inferior courts, so long as excessive jurisdiction is conferred upon none of them. See In re Claasen, 140 Ú. S. 200, 11 Sup. Ct. Rep. 735.

Exceptions overruled.

WALTON, VIRGIN, EMERY, FOSTER, and HASKELL, JJ., concurred.

(84 Me. 266)

PONCE V. SMITH et al. (Supreme Judicial Court of Maine. Feb. 4, 1892.)

CONTRACTS-CONSTRUCTION-PARTIAL PERFORMANCE-QUANTUM VALEBAT.

1. An agreement by a caterer with a committee of Masonic societies to furnish, for $1,500, dinners on a public occasion for 2,000 Masons, and also to furnish free of charge dinners to as many musicians as might accompany the Masons on such occasion, is in effect an agreement that the caterer shall receive that sun for all the dinners to be so furnished, including those partaken by the musicians.

2. The caterer failing to furnish as good an entertainment as he agreed to, although acting in good faith, he may recover upon the contract the stipulated price, less a sum equal to what it would have cost to supply the deficiency.

3. If, however, the parties in an action for the price of the dinners assent to the rule (not strictly legal) that the caterer may recover for the value of the food actually consumed on the occasion, it should be the value of the food consumed by both Masons and musicians.

4. The contract is the guide by which the differences of the parties are to be adjusted. (Official.)

Exceptions from superior court, Cumberland county.

Assumpsit by Ernesto Ponce against Augustine D. Smith and others. There was a judgment for plaintiff, and defendants except. Exceptions sustained.

John J. Perry and D. A. Meaher, for plaintiff. N. & H. B. Cleaves and Stephen C. Perry, for defendants.

PETERS, C. J. The rights of the parties to this suit depend upon the rule of damages that should be applied for plaintiff's partial failure to perform his part of the following contract executed by them:

"Portland, May 23rd, 1890. "Memorandum of agreement between A. D. Smith, C. J. Farrington, Israel Hicks, M. A. Dillingham, and G. E. Raymond, all of Portland, of the first part, and E.

Ponce, of the second part, made and entered into this twenty-third day of May, A. D. 1890, witnesseth:

"The party of the second part hereby promise and agree with the party of the first part to provide and furnish a dinner at Long Island at the Masonic celebration on the twenty-fourth day of June, A. D. 1890, for not less than two thousand persons, and the members of such bands of music as may be present in addition, at two o'clock in the afternoon, and furnish all necessary tables, seats, dishes, and waiters to serve the dinner promptly and satisfactorily. The dinner to consist of a clam bake, with the usual accompaniments of lobsters, eggs, sweet and Irish potatoes, brown bread, white bread, pilot bread, baked beans and pork, and coffee, sufficient supply of milk, sugar, butter, pepper, and vinegar, salt in the cooking, to be done and the whole dinner to be got up to the satisfaction of the party of the first part. Bananas and a plenty of ice water to be furnished by the party of the second part.

"And the party of the first part hereby promise and agree with the said party of the second part to pay him therefor the sum of fifteen hundred dollars for two thousand dinners; for all over two thousand the party of the first part agrees to pay for each person seventy-five cents, (.75,) except mutually agreed that all members of bands of music present shall be entitled to their dinners at the expense of the party of the second part, and without charge to the party of the first part.

99

The contract was partially performed by the plaintiff, acting in good faith, but, owing to certain difficulties and disappointments encountered by him, he failed to furnish, either in quality or quantity, such an entertainment as he promised he would. The defendants partook of the dinner provided, but expressed at the time their dissatisfaction with it. The declaration contains a special count on the agreement, and also the common counts.

The learned judge ruled, in effect, that, if the plaintiff failed to fully perform his contract, he could not recover at all on the special count, but might recover on the common counts for the reasonable value of the food actually furnished and partaken. This was not strictly correct. The plaintiff was entitled to recover, upon the contract, the price that was to be paid for the dinners, less the amount of the deficiency. The jury should have allowed the contract price, less what it would have required to make the dinners what it was agreed they should be. The deduction would be the difference between agreed value and actual value. If the plaintiff were allowed to recover actual value, he might possibly get under that rule even more than the contract price. The contract is the guide by which the differences of the parties are to be adjusted. The same rule is to be observed as in the warranty of personal property. The plaintiff warranted the entertainment to be what it professed to be. Smith v. Berry, 18 Me. 122; Furlong v. Polleys, 30 Me. 491; Tufts v. Grewer, 83 Me. 407, 22

Atl. Rep. 382; Morse v. Moore, 83 Me. 473, 22 Atl. Rep. 362.

But the theory of damages upon which the trial was conducted by the court was not objected to by either party, and no exceptions are alleged to the rulings on this point. The plaintiff, however, contended that, upon the rule of damages adopted by the court, be should be allowed for the value of the food furnished to the musicians as well as for that partaken by the Masons, and the following colloquy occurred between the plaintiff's counsel and the court:

"Mr. Meaher: Would not the plaintiff be entitled to recover also what the band ate?

"The Court: I think not, cnly for what the Masons ate. He agreed to furnish the dinners free for the band, anyway.

"Mr. Meaber: If any of the food was wantonly destroyed, would he not be entitled to recover for that?

"The Court: I think he would, if it was wantonly destroyed.

We think this was a misinterpretation of the contract by the court. It could not have been intended that the plaintiff would furnish any dinners for nothing. Although awkwardly expressed, the meaning is plain enough that there should be no additional charge for dinners furnished the musicians. The general consideration of $1,500 covered payment for 2,000 Masons and all the musicians. Caterers rarely give away dinners on such occasions, and more rarely covenant in written agreements that they will do so. The ruling on this point was excepted to.

We think the theory of the trial, as adopted by the court, with the acquiescence of the parties, should have been enforced to its logical consequences, and that if any food consumed on the occasion was to be paid for, then all food so furnished should be. If the case is to be tried upon a wrong rule, then that rule should be observed, and not broken. It should not be the rule for a part of the case only. The plaintiff seems to have been fairly entitled to the instruction claimed by him.

We are satisfied that there is enough in the exceptions to authorize us to award a new trial.

Exceptions sustained.

WALTON, VIRGIN, EMERY, FOSTER, and HASKELL, JJ., concurred.

(84 Me. 295)

STANWOOD V. TREFETHEN. (Supreme Judicial Court of Maine. Feb. 4, 1892.)

PAYMENT TO AGENT-NOTICE.

The owner of a cargo of fish, permitting the master of the vessel on which the fish were laden to sell the same, wrote the purchaser as follows: "Should the schr. Midnight, now on Georges, sell fresh fish in Portland, will you please see that the check is made payable to my order, as the Capt. is a stranger to me? By so doing, you will confer a favor." Held, that the notice was sufficient to entitle the owner to recover the price of the fish of the purchaser, who, notwithstanding the notice, paid the master, who absconded with the funds.

(Official.)

Report from superior court, Cumberland county.

Assumpsit by Frank Stanwood against John W. Trefethen. On report. Judgment for plaintiff.

F. V. Chase, for plaintiff. N. & H. B. Cleaves and S. C. Perry, for defendant.

PETERS, C. J. The plaintiff, a resident of Gloucester, Mass., and owner of a fishing vessel, allowed the master of the vessel to take her on a voyage for the purpose of procuring a fare of fresh fish for the market. The master, after procuring the fish, sailed the vessel to Portland, sold the fare there to the defendant, a principal dealer in fish at that place, receiving full price for the same, immediately abandoned the vessel, and absconded with the funds to parts unknown, and has not been heard of by any of the parties since. It was admitted at the argument that the plaintiff was the owner of the fish. He sues to recover the price for the same, and the only question is whether the defendant had such notice from the plaintiff as should have prevented his paying the money to the master.

Shortly before the vessel arrived in Portland the plaintiff wrote the defendant's house the following communication:

"Office of Frank Stanwood, Wholesale Dealer in Dry and Pickled Fish and Smoked Halibut.

"Gloucester, Mass.,

189-.

"Messrs. J. W. Trefethen & Co., Portland, Me.-Gentlemen: Should the sch. Midnight, now on Georges, sell fresh fish and hal. in Portland, will you please see that the check is made payable to my or der, as the Capt. is a stranger to me? By so doing, you will confer a favor.

"Truly yours, FRANK STANWOOD." We think this was a sufficient notice, and that the defendant should have heeded it. The letter makes a request, giving the writer's reason for making it. It is none the less positive, because couched in courteous terms. Mercantile fairness required that the defendant should consult the owner before making payment, and he could easily have done so in a few moments' time by using the telegraphic wire. But the temptation to deal with the mas ter rather than the owner proved too great. The defendant admits as much by his subsequent acts. The following correspondence between the parties shows it: "Feb. 17, 1890.

"To J. W. Trefethen, Portland, Me.. Is the schooner Midnight still in Portland, and is everything right?

"FRANK STANWOOD." "Portland, Me., Feb. 17, 1890. "To Frank Stanwood: Schooner here. Captain missing, with money. See letter by mail."

"Portland, Me., Feb. 15, 1890. "Mr. Frank Stanwood-Dear Sir: Your favor came to hand and your vessel arrived yesterday. I bought the fish. The trip amounted to $609.46. I showed the captain your letter and he insisted upon having the bills, and, as I had uo power to do different than to pay him the same, I paid him the bills. He said he was going right home, and that he wanted to show

you that he could do the business for you. That was all I could do. "Yours, respectfully,

“J. W. TREFETHEN, C. N. T." "Portland, Me., Feb. 17, 1890. "Mr. Frank Stanwood-Dear Sir: You will please find inclosed a bill of the fish sold by your schooner Midnight to me Feb. 14. I understand the captain has cleared out this morning, and your crew has telegraphed you what they shall do with the vessel.

He

"I want to explain to you more fully why I paid the captain in bills. Of course I had no direct orders from you to not pay the captain. You only stated that I would confer a favor by sending a check payable to your order, as you were not acquainted with the captain. I showed the captain your letter, and told him that I would rather send the check as you wished. said that he wanted to show you that he was capable of doing your business for you, and wanted the bills. There was a man here who I am well acquainted with, and who knew the captain well, said he was all right, and that he had been fishing with him a year. So on the strength of his recommendation, as you only stated he was a stranger to you, I paid him the bills, not knowing how I could do differently. I went to the customhouse with the captain to get a permit to get home with, as his papers had run out, and he told the crew to get aboard, as he was going out in twenty minutes.

Am very sorry this thing has happened, and hope you will see the position in which I was placed, and not blame me.

"Yours, resp'y, J. W. TREFETHEN." There is a good deal of unconscious ad. mission in the last letter. If the defendant was induced to pay the money because a man he knew recommended it, as he says, then it was not because he had not notice from the owner. It is manifest that his own judgment was averse to his act, and that he concluded to take the risk of it, induced by the importunity of the master and the influence of his friend. His prudence was overcome too easily. The counsel for defendant calls attention to the fact that the master sent a telegraphic dispatch to the owner, inquiring the price of fresh fish in Gloucester, and exhibited the reply to the defendant. That afforded no excuse for defendant's conduct. The master could sell, but the defendant was not permitted to make payment to him. As the master could send a message, so could the defendant have sent. Much that is said in the opinion in Knapp v. Bailey, 79 Me. 195, 9 Atl. Rep. 122, is pertinent here. Defendant defaulted.