allowed in Massachusetts and the great fluctuations of American securities, it would be undesirable to accept that principle at present and still more so to adopt the simple device of the tables as the means of working out that principle.

I

express no opinion upon the question of jurisdiction which I have not thought it necessary to examine, as both parties desire to have the case dealt with upon its merits now. I am authorized to state that the chief justice and Mr. Justice CHARLES ALLEN concur in the views which I have expressed.

SUPREME JUDICIAL COURT OF MAINE.

STATE V. GERRISH.

December 16, 1885.

CRIMINAL LAW-INDICTMENT — DESCRIPTION OF STOLEN GOODS.

An indictment for receiving stolen goods is not rendered void because the goods are collectively instead of separately valued.

SAME-SAME TRIAL-PROOF OF VALUE.

At the trial on such an indictment, it must affirmatively appear that the goods bad some value; the jury, however, may infer the fact of value from an inspection of the goods, or from a description of them by witnesses.

SAME PRACTICE.

Where there is a want of proof of material allegations in an indictment, the remedy is to request rulings appropriate to the facts proved, or a motion to set aside the verdict as being against evidence; the point cannot be presented on exceptions to a refusal to sustain a motion in arrest.

Frank M. Higgins, county attorney, for State. Copeland & Edgerly, for defendant.

PETERS, Ch. J. The indictment charges the concealing of stolen goods, described in this manner: "One box containing about twenty pounds of tobacco, one chest of tea, thirty pairs of shoes, and ten pairs of boots, all of great value, to-wit, of the value of $75."

Several matters are presented, under the motion in arrest, which we cannot consider, because they arise outside of the indictment. The only point, presented under the motion, that may be seen upon the indictment itself, is that the goods are collectively instead of separately valued. But this does not render the indictment void. It may have made it difficult to maintain. The point relied on by the defense is, that inasmuch as all the alleged goods were not stolen and concealed, the entire value of the property may have attached to the goods which were not stolen, the others being valueless. But the indictment itself discloses no such weakness. The presumption arising from a general and unqualified verdict is, that all the goods were stolen and secreted. The verdict saves the indictment; rendering the whole record good. State v. Hood, 51 Me. 363; Commonwealth v. Lavery, 101 Mass. 207; 2 Bish. Proc., 3d ed., § 714.

The counsel for the respondent asserts that, as a matter of fact, all the creditor's articles were not stolen, and produces a copy of the evi

dence for our examination, that we may see that they were not. But that is a matter of proof and not of pleading. To meet any defect of proof, the remedy would have been to request rulings appropriate to the facts, if not given without request. Or a motion to set the ver dict aside as being against the proof would have reached the alleged difficulty. The point is presented to us only upon exceptions to a refusal to sustain a motion in arrest.

In the bill of exceptions a point is made upon the ruling of the judge in another question. It is inferable from the exceptions that there was no evidence introduced to show what the goods, or any of them, were worth, or whether worth any thing or not. That is, no witness testified specifically upon the question of value. The judge was requested to tell the jury that the prosecution must prove that the articles named in the indictment were of value, and that the fact should be proved by evidence, and was not to be merely inferred. The jury were instructed that the fact of value must be proved by evidence, but that they might infer from all of the evidence in the case whether the articles were of some value or not. This was correct.

It was not required that the fact of value should be established by any separate proof. The jury may infer it from an inspection of the articles, or from having heard them described by witnesses. The jury need not necessarily be informed of what they can see for themselves. Many things speak their own value. Res ipsa loquitur. Suppose the stolen goods had been government gold pieces, would it have occurred to any one that a witness should be called to swear that they were valuable? Bish. Cr. Proc., § 751, and cases; Commonwealth v. Burke, 12 Allen, 182; Commonwealth v. McKenny, 9 Gray, 114; Commonwealth v. Lawless, 103 Mass. 431.

Exceptions overruled.

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

PERKINS v. MORSE.

December 16, 1885.

MARRIAGE MARRIED WOMAN MAY LEASE REAL ESTATE.

By the statute of Maine, real estate directly or indirectly conveyed to a married woman by her husband, or paid for by him, or given or devised to her by his relatives, cannot be conveyed by her without the joinder of her husband. Held, that this statute does not prevent her from leasing such real estate for a term of years in her own name alone.

H. L. Whitcomb, for plaintiff. J. C. Holman, for defendant.

PETERS, Ch. J. Real estate directly or indirectly conveyed to a married woman by her husband, or paid for by him, or given or devised to her by his relatives, cannot be conveyed by her without the joinder of her husband; except real estate conveyed to her as security or in payment of a bona fide debt actually due to her from her husband. R. S., chap. 61, §. 1.

In the case before us it appears that a farm, with buildings thereon, was purchased in the name of a wife and paid for fully by her

husband. They afterward separated, now living apart. After the separation, he remaining upon the place, she let it under a sealed lease, in usual form, for two years, on a rent payable annually to the complainant, who seeks to remove her husband from the possession. The only question presented by the case is, whether the lease is a conveyance within the meaning of the statute above quoted. It is the opinion of the court that it is not. There is much to sustain such a conclusion.

The word "convey" or "conveyance" must refer to an alienation of the estate a transference of the title. It is "real estate" that cannot be conveyed. A lease is personal property. It bargains away a temporary possession does not dispose of any fee or title. inhibition against a sale of personal property by the although given to her by the husband.

There is no wife alone,

Real estate "conveyed to" a married woman is the property described. "Cannot be conveyed by her" are the words to be interpreted. A lease may be in a sense a conveyance, but such is not the commonly accepted nor the accurate meaning of the term. When we say premises are leased we generally mean that the use of them is transferred; and by the term "conveyed" that the title is deeded. It is a significant fact that the word "convey" is many times used in the Revised Statutes, and especially in chapter 73 relating to conveyances, and generally, if not at all times, in the sense of an alienation of the title to real estate. The distinction is clearly observed in section 8, which provides that "no conveyance of an estate, etc., or lease for more than seven years" shall be effectual against third persons unless the deed be recorded.

If the legislature intended that the wife should not lease property acquired by her through her husband, it would have been easy to declare its intention in explicit terms. It is hardly to be supposed that it was left to be implied. A married woman is not limited in the management of her property, however obtained by her. She may control its income, unless she releases it to her husband. How can she manage this property or control its income, when not occupying it, unless she can rent it? The counsel for the defendant argues that if the wife could lease at all, she can lease the farm for ninety-nine years; a lease practically equivalent to a conveyance of title. This argument is quite plausible, but not, in our judgment, sound. If the wife cannot make a lease for two years, it must be because she cannot lease at all. If the lease is for ninety-nine years, a rent will be presumed to be reserved. It would be different from an absolute conveyance, which might result in a waste or loss of the property. If the statute needs amendment the legislature can amend it. We construe it as it stands. An appeal to the authorities sustains the view advocated by the complainant. Jacob's Law Dictionary gives this as the old common-law definition of the word, which is the key to the dispute: "Conveyance is a deed which passes land from one man to another." In Abendroth V. Greenwich, 29 Conn. 356, a party was to convey a bridge to a town. The court said: "To convey real estate is, by an appropriate instrument, to transfer the legal title to it from the present owner to another."

In Mayor v. Mabie, 13 N. Y. 151, a question arose as to the meaning of the word "conveyance" in a statute which provides that "no covenants shall be implied in any conveyance of real estate;" and it was held that a grant of wharfage for one year was not a conveyance of real estate. In Tone v. Brace, 11 Paige, 566, it was decided that a lease for a term of years was not, in the ordinary sense of the term, a conveyance of land. In the case of In re Hunter, 1 Edw. Ch. 1, it was decided that, where a person was to convey an estate, he must transfer "the whole title." Mott v. Ruckman, 3 Blatchf. 71, decides that a charter-party is not a conveyance of a vessel - that it goes to the use and not the title. In Livermore v. Bagley, 3 Mass. 487, it was determined, upon a very learned discussion of the question by both bar and court, that the word "conveyance" in the bankrupt law of 1800 referred to a deed of land, and not to a bill of sale of personal property.

per

We think the statutory provision under review should not be very generously interpreted for the husband when the interests of third sons are likely to be imperiled thereby. The statute is very broad, and in many instances has been a stumbling block in the way of innocent purchasers. The expediency of the statute is doubted by many. It adds one more opportunity for a defect in titles which the public records cannot disclose. With what safety or certainty can a purchaser ascertain whether an intervening grantor was a married woman when she obtained the estate; or whether the estate was paid for by her husband or herself; or who the husband's "relatives" are or were; and whether any of them gave her the property? Complete protection is attained only by taking no real property from any married woman without the joinder of her husband; and this rule of caution would operate harshly against married women who may wish to sell property held strictly in their own right.

Defendant defaulted.

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

One partner agreed in writing to sell to a copartner his interest in the prop erty of the firm, consisting of a store, a stock of goods (furniture) therein and some other property, the whole worth about $25,000; the sale was to be at cost for most of the property and the rest at an appraisal if the parties failed to agree as to its value; and the terms were cash on delivery, and either party who should break the contract should forfeit to the other the sum of $500. Held, that the $500 was intended by the parties to be liquidated damages. *

N. & J. A. Morrill, for plaintiff. Savage & Oakes, for defendant. PETERS, Ch. J. One partner agreed in writing to sell to a copartner his interest in the company's property, consisting of a store, a stock of goods (furniture) therein, and other property, most of the same at cost and the balance at an appraisal if the parties could not agree upon value, cash to be paid therefor on delivery, either party who should

* See Burrill v. Daggett, ante, 30, 32, note.

the

break the contract to forfeit to the other the sum of $500. The purchaser, after binding himself to the bargain, refused to carry it into execution. The entire property was worth upwards of $25,000.

Is the sum of $500 recoverable by the would-be seller as liquidated damages? We think that must have been the intention of the parties. There are several reasons which have an influence in inducing us to think so. In no view was it a large or an unreasonable sum to pay for the seller's disappointment. It was the purchaser's proposition. It includes all which the purchaser was to pay for a total failure to perform. There would be more question about the meaning of the parties, had the non-performance been partial only. It would be a difficult and expensive task to ascertain what the real damages were. The good-will of the business was an element of value not easily measurable. The parties wisely concluded to have the damages assessable at an agreed sum. We think it would be the instinctive judgment of business men generally, that the parties used the word "forfeit" in a conversational sense, and not technically.

The case belongs to a class of difficult and often uncertain and shadowy questions, very few cases being much alike, and therefore an appeal to the authorities for support is not of much use further than to make an application of general principles. But the case of Lynde v. Thompson, 3 Allen, 456, relied on by the plaintiff, goes a good way toward establishing the position he contends for; and Holbrook v. Tobey, in our own State 66 Maine, 410-goes in the same direction. Defendant defaulted for $500 and interest from February 15, 1883. WALTON, VIRGIN, LIBBEY, FOSTER and HASKELL, JJ., concurred.

APPEAL-INSOLVENCY.

MORGAN V. BOOTHBY.

December 21, 1885.

There is no appeal from a decree of the court of insolvency granting a discharge to an insolvent who has made a composition with his creditors.

This is so though one ground claimed for an appeal be the refusal of the judge to require the insolvent to undergo an examination concerning his property at the request of creditors who were dissatisfied with the settlement.

N. & H. B. Cleaves, for plaintiff. H. Fairfield, for defendant. PETERS, C. J. It is here claimed that an appeal lies from the allowance of a discharge of an insolvent who made a composition set-· tlement with creditors. The case of In re Hoyt, 76 Me. 394, is an authority directly opposed to such claim. The appellant contends that an appeal should be open to him in the present case because he was denied the privilege of having the insolvent personally examined concerning his property. But that refusal by the judge gave no cause for an appeal. It was designed that a single creditor should not be enabled to block or delay such a settlement. The idea of the law is, rapid proceedings and speedy settlement. Delays have a tendency to lessen the amount of an insolvent estate. There are a great many matters in insolvency proceedings which must be finally settled by the