is seized. Dockray v. Milliken, 76 Me. 517. If the cause assigned for the relief prayed could have been interposed in defense of the action at law the orators can have no relief in equity. Bachelder v. Bean, 76 Me. 370. The findings of the court below show that the title was acquired by Milliken, for the benefit of himself and the other orators, at the request of the respondent and for her benefit; and the court held that her conduct acted upon by Milliken created an equitable estoppel on account of which the orators are entitled to relief. Equitable estoppels are favored and may be interposed in an action at law. Stanwood v. McLellan, 48 Me. 275; Piper v. Gilmore, 49 Me. 149; Wood v. Pennell, 51 Me. 52; Caswell v. Fuller, 77 Me. 105; Fountain v. Whelpley, 77 Me. 132; Briggs v. Hodgdon, 78 Me. 514, 7 Atl. Rep. 387; Davis v. Callahan, 78 Me. 313, 5 Atl. Rep. 73; McClure v. Livermore, 78 Me. 390, 6 Atl. Rep. 11. The grounds for relief in this case either were or might have been interposed to defeat the respondent's action of dower, and cannot be again invoked for relief in equity. In this particular the court below erred in granting the relief prayed, and the decree must be reversed. Bill dismissed, without costs. PETERS, C. J., WALTON, VIRGIN, LIBBEY, and FOSTER, JJ., concurred. STATE v. DEVINE.1 (Supreme Judicial Court of Maine. January 27, 1888.) 1. INTOXICATING LIQUORS-SEARCH AND Seizure-CompLAINT OATH. A complaint for search and seizure of intoxicating liquors, under Rev. St. Me. c. 27, § 40, may be made on affirmation by one who is conscientiously scrupulous of taking an oath. 2. SAME-AFFIRMATION-Magistrate'S CERTIFICATE. The certificate of the magistrate before whom such a complaint is made, reciting the fact that the complainant made solemn affirmation to the complaint, is conclusive not only that the complainant was "conscientiously scrupulous of taking an oath," but that he "formally affirmed under the pains and penalties of perjury." 3. SAME ALLEGATION OF BELIEF. Such a complaint need not allege that the complainant has "probable cause to believe;" it is sufficient for the complainant to allege that he does in fact believe that intoxicating liquors are kept in violation of law. Motion in arrest of judgment, from superior court, Cumberland county. Complaint for search and seizure of intoxicating liquors, brought originally in the municipal court of Portland, and on appeal to the superior court, Cumberland county. The complaint was as follows: "State of Maine, Cumberland-ss.: To the recorder (the judge being absent from the court-room) of our municipal court for the city of Portland, in the county of Cumberland. Ezra Hawkes, of Portland, in said county, competent to be a witness in civil suits, on the 7th day of August, A. D. 1886, in behalf of said state, on solemn affirmation, complains that he believes that on the 7th day of August in said year, at said Portland, intoxicating liquors were and still are kept and deposited by Bernard Devine of Portland, in said county, in the dwelling-house and its appurtenances, situated on the southerly side of Adams street, in said Portland, and numbered six on said street, and occupied by said Devine, a part of said dwelling-house being used for purposes of traffic by said Devine, said Devine not being then and thereauthorized by law to sell said liquors within said state, and that said liquors then and there were, and now are, intended by said Devine for sale in the state in violation of law, against the peace of the state, and contrary to the form of the statute in such case made and provided. And the said complainant, on his solemn affirmation aforesaid, further alleges and complains that 1Reported by Leslie C. Cornish, Esq., of the Augusta bar. the said Bernard Devine has been before convicted in the municipal court, for the city of Portland, to-wit, on the 29th day of October, A. D. 1880, of unlawfully keeping and depositing in this state, in said county of Cumber-. land, intoxicating liquors, with the intent that said liquors should be sold in this state in violation of law, against the peace of the state, and contrary to the form of the statute in such case made and provided. He therefore prays that due process be issued to search the premises herein before mentioned, where said liquors are believed to be deposited, and, if there found, that the said liquors and vessels be seized and safely kept until final action and decision be had thereon, and that said Devine be forth with apprehended and held to answer to said complaint, and to do and receive such sentence as may be awarded against him. EZRA HAWKES. "Cumberland-ss.: On this 7th day of August aforesaid, personally appeared the said Hawkes, and made solemn affirmation that the above complaint, by him signed, is true. "Before me, EDWIN L. DYER, Said Recorder," The jury returned a verdict of guilty, and the defendant filed a motion in arrest of judgment; alleging the following reasons: (1) Said complaint being a complaint praying for a search-warrant, does not, on the face thereof, exhibit probable cause. (2) It is not a sworn complaint. (3) It does not appear that the complainant was required to make oath thereto. (4) It does not appear that the complainant was a person allowed by law to affirm. (5) Because said complaint is uncertain and insufficient. (6) Because the allegation of a former conviction is not legally sufficient. (7) Because said complaint is otherwise uncertain and repugnant. Geo. M. Seiders, Co. Atty., for the State. Wm. H. Looney and W. F. Lunt, for defendant. PER CURIAM. This complaint is sufficient. State v. Welch, 79 Me. 99, 8 Atl. Rep. 348. STATE v. CRAIG.1 (Supreme Judicial Court of Maine. January 27, 1888.) 1. FISHERIES-ILLEGAL DESTRUCTION OF LOBSTERS. The Maine act of 1885, c. 275, prohibits the destruction of lobsters within this state, even though taken or caught more than a marine league from the shore. 2. SAME-CONSTITUTIONALITY OF ACT-PENALTY. Said act is not unconstitutional by reason of the penalty thereby imposed of one dollar for each lobster illegally taken. 3. SAME CONSTITUTIONALITY-TRIAL BY JURY. The act of 1885, c. 258, is not unconstitutional by reason of the enlarged jurisdiction given to magistrates under it. The defendant is entitled to a trial by jury on appeal from the magistrate, and, as the offenses are neither "capital nor infamous crimes," an indictment by a grand jury is not required. 4. SAME MAGISTRATE-DISQUALIFICATION. A magistrate is not disqualified by reason of interest in cases where a part of the penalty goes to the municipality in which he is a resident and tax-payer. On exceptions from superior court, Cumberland county. Complaint for possessing certain lobsters, in violation of chapter 275, Pub. Laws 1885. The verdict was in favor of the state, and the defendant alleged exceptions. Geo. M. Seiders, Co. Atty., for the State. C. W. Goddard, for defendant. HASKELL, J. Complaint for possessing certain lobsters, in violation of the act of 1885, c. 275, § 3. The complaint is not made a part of the case, and, as no objection to it is presented by the learned counsel for the defendant in 'Reported by Leslie C. Cornish, Esq., of the Augusta bar. v.13A.no.2-9 his brief, the court may well assume that it is sufficient, both in form and in substance. 1. The court was requested to instruct the jury that, if the lobsters possessed by the defendant were taken more than a marine league from the shores of Maine, he would not be guilty. The request was properly denied. The statute prohibits the destruction of certain lobsters. State v. Bennett, 79 Me. 55, 7 Atl. Rep. 903. It is immaterial where the lobsters were taken, if the defendant possessed them within the jurisdiction of the court for the purpose of not liberating them alive, or for destroying them. The cases cited by defendant are authorities against him. In State v. Beal, 75 Me. 289, the indictment was for having trout, not alive, in possession during close time, with intent to sell the same in violation of the statute. Although the trout may have been lawfully taken from waters exempt from the operation of the statute, it was held that the possession of such trout, with intent to sell them, was illegal; and the court says: "The taking, the possession, the purpose, would all be lawful; the act of carrying, if, in common phrase or in a legal sense, it could be properly described as a transportation from place to place, would manifestly be wanting in that element of illegality against which it is clear, when all the provisions of the act are examined together, the penalties of that section were directed." So in Allen v. Young, 76 Me. 80, it was held that transportation of deer in violation of the letter of the statute, killed before close time, was not illegal, inasmuch as the court says: "We fail to see any motive for making the mere transportation of the hide or carcass of a deer from one place to another a crime, when the deer has been lawfully killed, and is lawfully in the possession of the one who transports it. * * * It has been repeatedly asserted, in both ancient and modern times, that judges may in some cases decide upon a statute even in direct contravention of its terms; that they may depart from the letter, in order to reach the spirit and intent. of the act." Holmes v. Paris, 75 Me. 559. The intent of the act in question is to protect lobsters, and to prevent their unreasonable destruction. The act charged is the very thing that the purpose of the act seeks to prevent. 2. The constitutionality of the act of 1885, c. 275, § 3, under which this prosecution is brought, is denied, because penalties are imposed not proportioned to the offense. The object and purpose of the act is to prevent the destruction of lobsters to such a degree as materially to diminish the supply, and preserve a necessary and valuable source of food. The penalty imposed is one dollar for each lobster unlawfully destroyed. Certainly, that penalty is neither excessive nor severe. That the unlawful destruction of many lobsters has created penalties aggregating a large sum signifies no more than a purpose to violate the statutes, regardless of the penalties affixed. It rather shows that the present forfeitures are insufficient to work obedience to the statute than that they are too severe. It can hardly be said that penalties which fail to prevent a violation of law by wholesale are disproportionate to the act prohibited. What good can come of a statute with penalties so mild as to allow its violation without loss to the offender? The purpose of a penal statute is to prevent conduct in violation of its terms; and the argument that, from a repeated violation of its provisions, the penalties aggregate large sums, rather shows the insufficiency of the penalty imposed than the reverse. The penalties imposed for a violation of the statute in question cannot be said to be excessive, or disproportionate to the offense created by it. 3. It is contended that the act of 1885, c. 258, giving magistrates jurisdiction of various offenses under the fish and game laws, is in violation of the constitution, as infringing the right of trial by jury. Article 1, § 6, of the constitution secures a "speedy, public, and impartial trial * * * by a jury of the vicinity;" and section 7 provides: "No person shall be held to answer for a capital or infamous crime, unless on 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, or in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger." The statutes accord a trial by jury on appeal to the proper court from the decisions or judgments of all magistrates rendered in a case under the act in question. No more bail would be required of the accused on his appeal from a decision of the magistrate against him than would be if the magistrate could only hold him to bail for appearance before the appellate court. Moreover, in the former case he would be accorded the benefit of reasonable doubt, while in the latter he must be held for probable cause. This act is rather a benefit to the accused than a burden or disadvantage to him. He must be confronted with the witnesses against him, and discharged if a reasonable doubt of his guilt be not removed. The offenses of which the act gives magistrates jurisdiction are neither capital nor infamous crimes, and need not be considered by a grand jury. Prosecutions may as well be instituted before magistrates as by indictment, and the former method cannot be considered in violation of any provision of the constitution. 4. The objection that the magistrate before whom the case at bar was originally heard was then a resident and tax-payer in the municipality to which a moiety of the penalty accrues, has been already considered and decided by this court. State v. Severance, 4 Atl. Rep. 560; State v. Intoxicating Liquors, 54 Me. 564; Fletcher v. Railroad Co., 74 Me. 434. 5. No exceptions to the charge have been pressed at the argument beyond the questions already considered. Exceptions overruled. PETERS, C. J., and WALTON, VIRGIN, LIBBEY, and FOSTER, JJ., concurred. PERKINS v. HIX.1 (Supreme Judicial Court of Maine. January 28, 1888.) EXECUTORS AND ADMINISTRATORS-ACTION AGAINST-PLEADING-AMENDMENT. Where the writ describes the defendant as administrator, but declares against him personally, and the verdict is that the defendant's intestate promised, a new trial will not be granted, if the evidence sustains the verdict, provided the plaintiff elects to amend his declaration so as to sustain the verdict. On motion from supreme judicial court, Knox county. Assumpsit. The writ directs the officer "to attach the goods and estate of Thomas W. Hix, Jr., of Rockland, Knox county, Maine, administrator of the goods and estate which were of M. Alvinzi Young, late of Rockland, deceased." The declaration was "that the said defendant, * * * on the day of the purchase of the writ, being indebted, * * *promised the plaintiff," etc. An account annexed to the writ was headed "Estate of M. Alvinzi Young. To Medora C. Perkins, Dr." The verdict was: "The jury find that the defendant's intestate, M. Alvinzi Young, did promise the plaintiff in manner and form as the plaintiff has declared, and assess damages for the plaintiff in the sum of $778.38, (seven hundred seventy-eight dollars and thirty-eight cents.)" C. E. Littlefield, for plaintiff. Robinson & Rowell, for defendant. PER CURIAM. The issue raised by the pleadings is whether the defendant individually promised to pay the plaintiff's claim. The verdict finds a promise by the defendant's intestate, and the evidence supports the verdict, and not the declaration. The cause has been fully tried as though the promise laid was by the defendant's intestate. We think the evidence sustains the verdict, and that substantial justice does not require a new trial. We therefore ad 'Reported by Leslie C. Cornish, Esq., of the Augusta bar. vise the court below to grant suitable amendments of the writ to sustain the verdict. Neither party to recover costs. Doherty v. Dolan, 65 Me. 87. This being done, motion and exceptions overruled; otherwise sustained. JOHNSON et al. v. MERITHEW.1 (Supreme Judicial Court of Maine. January 28, 1888.) 1. WITNESS-COMPETENCY. The plaintiff in a real action may be a witness in her own behalf, if she demands inherited property in her own right, and is not made a party as "heir of a deceased party," under Rev. St. c. 82, § 98. 2. DEATH-PRESUMPTION Of-SurvivorSHIP. When several lives are lost in the same disaster, there is no presumption from age or sex that either survived the other, nor is it presumed that all died at the same moment; but the fact of survivorship, like every other fact, must be proved by the party asserting it. 3. SAME. In the absence of evidence from which the contrary may be inferred, all may be considered to have perished at the same moment; not because that fact is presumed, but because, from a failure of those asserting it to prove to the contrary, property rights must necessarily be settled on that theory. On report from supreme judicial court, Waldo county. Real action. Plea, nul disseizin. The opinion states the facts. Wm. H. Fogler, for defendant. HASKELL, J. Writ of entry. Plea, nul disseizin. Both parties claim title under Margaret P. Nickerson. The tenant claims that Margaret conveyed the premises to her son, Aaron W. Nickerson, in 1875; bùt demandants say that such deed is void for fraud, and inoperative for want of her capacity to make the grant, and for want of delivery. Upon this issue, the tenant objects to the competency of Mrs. Heath, one of the demandants, because she claims to have inherited a share of the property as heir to her mother, Margaret P. Nickerson. This objection is not well taken, for Mrs. Heath demands in her own right that which she inherited from her mother, and is not made a party as "heir of a deceased party." Rev. St. c. 82, § 98; Higgins v. Butler, 78 Me. 520, 7 Atl. Rep. 276. It appears that in January, 1875, while on a visit to her daughter, Mrs. Heath, in Boston, Mrs. Margaret P. Nickerson was stricken with paralysis or some kindred malady, that prostrated her bodily, and confused and unsettled her mind; that in the following March, being somewhat restored, she was taken to her home in Belfast, where she and her husband resided with their son, Aaron W. Nickerson, until her death in the following October; that ever after her illness in January she at times could not recognize her children and friends, and persisted in calling one of the daughters Aaron. An office copy of a deed of the demanded premises from Margaret P. to her son, Aaron W., dated and recorded April 15, 1875, is set up as evidence of a conveyance of the property to him. The original is not produced, nor is any reason given for withholding it; nor is the subscribing witness who took the acknowledgment of the deed as a magistrate called to testify. A mortgage of the same property is also in evidence, dated the same day, and recorded December 21, 1875, after the death of Margaret P., in the preceding October, from Aaron W. to her husband, Aaron, conditioned to secure the payment of $1,200 in installments, the last falling due in four years, and a discharge of the same is shown by the record, August 26, 1876, but no other evidence is adduced upon that subject. From a careful consideration of all the evidence, without reviewing it in detail, the court is of opinion that the supposed deed from Margaret P. Nickerson to her son, Aaron W., did not operate as a conveyance of the property to him. It has become a 1Reported by Leslie C. Cornish, Esq., of the Augusta bar. |