The Portland daily press., 1900-05-12

These two decisions havs been handed
down from the Law court:
Androscogsin. O..
Frank W. Ahits vs.. l.. W.Savnge. ct al
Rescript.
The dsfsndapt recovered judgment
against the plaintff II In the Bangor Nun
icipal court upon writ containing an
| account annexed for Items OF meEchan-
disc. and also o count for money had ana
rscsived. The plaintiff brings this suis
aainst the defendants for an elleged
breach Of contract Of baiiment, claim
| Ing that the merchanuise. the price OF
which was sued for and recovered In for
mer action, was left with him on sala By
the defendants. he agresinR to account
for such portions OF the merchandtsie as
should be sold by him. and to return to
the defendants such portion thereof "a
he should not cell.
Held. That the Judgment IN ths former
suit 10 a bar to this and that. therefore,
this action 10 not insintainabie.
II the msrcLandiss was lsfs with the
plaintiff on sale, he could have proved
that fact in defence OF the former action.
II the merch sndise or any portion OF IT.
had bsen sold By the plaintiff. the de-
PENDANTS Wer> entitled to recover therefor
In the former suit under their count
for money had and received.
Exceptions overruled. Judgment for
the defe1dants.
Knox, ss.
L. X. Campbell. county treasurer, vs..
James Il. Burns. ResciiDt.
Section 80 Of Chapter 265 OF the Public
Laws OF 1897, imposing penalty or tive
dollars FOR each lobster less than t,n and
one-half iuches in length found In the
| possession of any person, Is not reDugnant
| to Section 8, Article / OF the constitution
of this stats. which prohibits ths imnrst-
| tion Of excesGivs huss and psnaltiss.
State vs.. Lubec, S8 Me-, AIS affirmed.
In an action TO recover the penalty
provided by thu section OF statute above
| referred to, 1t is no ground OF defens3 ,
| that the offiuer who sesrchsd for and
seissd Holsters Of less than legal length
| did s, without warrant or authority; nor
| Is it any ground cf 5efenss to such action
that the officer making seizure OF any
| lobsters under the act above referred to.
omitted TO cause the Holsters which are
| not required by law TO hberate. TO be ep-
praised and sold and to file libel for this
forfeiture OF the property so sstzsd and
sold. and the procseds OF the ssis thereof
as authorized by Ssction AZ OF said act.
The declaration alleged that at the
time and place named therein, the de-
| fendant had In his posse ssion one b hundrsu
and three Holsters, each lsss than ten
an ons-half inches In length The plain
| tiff introduoe testimony to tho steot
L LDht L0db Vi AoobbeAst 1hA pAtH8Sa
| with wood, and each lees than ten and
| one-half inches In length. were found In
the 6sfenaant's car, and that they were
seized by . fish warden, and o portion ei
| them, II not all, were liberated alive By
him In Georges river. between Gays Is
land and Cald wells island, the distances
be tween said islands being about hall q
mile. The defense contended that said
Icbstsrs were not properly and fairly
measured. The defendant introduced q
| witness who testified that within u day
| or two after said Holsters were liberated.
he caught numper OF lobsters "out
| sround the point of Gays islard " and
offered to prove by him that the Holsters
so caught by him were Of legal length.
This testimony was properly excluded by
the presiding justice.
| The HOLSTERS for which the penalty II
susd were all found In the upper com part
ment of ths defendants car, which car
contained i've compartments, one above
| the other.
The defense 6ffsrsd to prove that ths
/ Holsters vsmaining in the defendants Gal
| were, within fsw days after the seizure
| sold in Portland and examined by nse
| warden, and all found TO be At least tar
| and cne-hah inches in length. Held,
that such testimony was properly ex
clnded By the presiding Justice.
| The pref ling iustios Instructed the
jury 10 to the degree OF proof as follows;
II Instruct you that In order 70 hoid toe
defendant responsible you must be fully
| satisfied that he had In his possession
at ne time and place referred to. SONS
lobatsrs at least less than ten and one
half inches In length. You puAt he FULLY
satisfied a. rsasonahle men. Not unrea
sonable In your Judgment, not frivolous
in your jldg ment, not partial or biased.
but as reasonable men, looking at ths
matter aud the ssidsncs In . reasonable
manner. you must bs fully satisiisd Of
the faot."
Held, that the instruotien was sum
eiently favorable to the defendant.
| The presiding justice instruetsd tks
Jury, as to the method Of measuring lob
| stsrs, as follows: 'I Instruct y,l tha
| in consemplztIon Of that statute (Ssctioz
~, Chapter q 5, p. l.. 1Sg7) the lobster
sheuld be iaia upon Its back and sxtsndee
upan the measure to the end Of the
TAFT. that any other way. %
81 lifting the end Of the dippsF. is not ID
eontsm plation Of the law.
Held, that the instsustion thus givsz