ests in his property, is ineffectual, and a covenant to release her rights in his after-acquired property would not form the basis of an action at law between them, nor will a court of equity enforce it unless upon equitable grounds and equity will thereby be done.

2. Husband and wife 278(4)—Separation agreement not valid, in absence of intervention of trustees.

3. Husband and wife 278(5)—Separation agreement releasing husband of care and maintenance of children renders entire agree'ment invalid.

sition to render assistance when his son lost control of the truck, at a time when, as shown by the tracks on the bridge, slight assistance promptly given would have averted the accident. The testimony of Harry F. Blanchard shows that the firm had owned the truck for about four years; that he had driven the truck first owned by the firm, a Reo machine, on at least two occasions when requested to do so by his father; that he had An agreement of separation and division driven the truck to which the accident hap- of property between husband and wife withpened on at least one occasion alone, carry-out the intervention of a trustee could not be upheld. ing his father's license; that he had driven it several times with his father; that he was not licensed to operate either truck; the only particular in which he claims that he was not qualified to drive the truck was that he had trouble with the gears, but whether that trouble arose from inexperience or from defects in a secondhand truck is not clear. The testimony of the son is convincing that the father and son changed places and the father surrendered the wheel, not to enable the son to learn to operate, but because the father was not feeling well; they changed just as any two persons accustomed to operate a motor truck would change under similar circumstances. The intention to take out a license, entertained in January, as the young man claims, cannot be recognized as continuing unaccomplished and unrealized for six months to serve as a shield against the consequences of violating the law by operating the firm's truck when inclination or convenience dictated. Such intention must be pursued toward its fulfillment with reasonable diligence.

To hold that these persons at the time of the accident were occupying the positions, the one of a licensed operator riding with or accompanying an unlicensed person to exercise supervision and render assistance, the other of a person driving for the purpose of becoming, familiar with the use and handling of the truck preparatory to taking out a license for driving, would, in effect, nullify the statute prohibiting, in the interest of public safety, the operation of motor vehicles by unlicensed persons.

For these reasons the requested ruling that a verdict be directed for the defendant should have been given; and for the same reasons the motions for new trials must be granted.

Exceptions sustained.

Motions for new trials granted.

COOMBS v. COOMBS et al. (Supreme Judicial Court of Maine.

1921.)

An agreement on the part of the wife to relieve her husband of all obligations for the children, without sanction of the court, is viewed with disfavor and is of doubtful validity, and if such a covenant forms an inseparable part of the consideration for an agreement containing other covenants, a court of equity may well refuse to enforce any part of the agreement.

future care and maintenance of their minor

4. Descent and distribution

62-Dower

46(1)-Sale of land for distribution of proceeds binding on wife.

A sale of land for a distribution of proceeds of the sale by a court of equity bars the rights of a wife whether of dower or of descent, and title passes to the purchaser free of any claims therefor, leaving her to her rights, if any, in the proceeds of the sale, at least where the wife is made a party.

5. Dower 46(4)-Wife entitled to share in distribution on sale of land by equity court.

Where a court of equity sells land held in common in a suit for sale and distribution, wife of one of the tenants in common is entitled, under her rights of dower, to partake in the distribution of the proceeds, in view of Rev. St. c. 80, § 19, and Laws 1895, c. 157.

Appeal from Supreme Judicial Court, Androscoggin County, in Equity.

Bill by Harry S. Coombs against Fred H. Coombs and another. From a decree, an appeal is taken. Appeal dismissed, and decree affirmed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, and WILSON, JJ.

George C. Webber, of Auburn, for plaintiff. Ralph W. Crockett, of Lewiston, and Pulsifer & Ludden, of Auburn, for defendants.

WILSON, J. A bill in equity, praying for March 26, a sale of real estate held in common by the plaintiff and the defendant Fred H. Coombs, and for a distribution of the proceeds of the sale. The defendant Deborah Coombs is the wife of Fred H. Coombs. In February, 1913, Fred H. Coombs and Deborah Coombs

1. Husband and wife 51-Release by wife of interest in husband's property ineffectual. A release by a wife to her husband, or a covenant to release to him her present inter

(113 A.)

having become estranged, as it appears (may well refuse to enforce any part of the through the fault of the husband, an agree agreement.

ment for separation was entered into be- The covenant to maintain herself and chiltween them, which provided that in consid- | dren cannot be separated from the covenant eration of the payment of the sum of $2,000 and the giving to her of certain personal property, of no great value, she agreed to release all claims of every nature in any property owned by the husband and thereafter acquired by him; and also further agreed to maintain both herself and the two minor children born of their marriage without any further claim against the husband therefor, "forever releasing him from all obligations as her husband and father of said children."

The defendant Fred H. Coombs now contends: (1) That a sale by order of the court will convey the premises free of any claim of his wife in the property under section 8, c. 80, R. S.; that her right of descent being an inchoate right during the lifetime of the husband, and contingent upon her surviving him, she is not entitled to any part of the proceeds of the sale; (2) that in any event the agreement referred to is a valid existing agreement, voluntarily entered into for a pecuniary consideration after marriage, and is therefore binding on both parties, and by reason of the covenant therein to release all claims or rights in any property, whether then owned or after acquired by him, she is now precluded thereby from claiming any share in the proceeds of the proposed sale.

to release her interest in her husband's property. Together they form a joint and indivisible consideration for the money and property received by her, nor can the covenant for the maintenance of the children be separated from either of the others. There is nothing in the case from which the court may fairly infer that this agreement would have been entered into by the husband without the covenant on her part to relieve him of the future obligation of maintaining their children, or that it formed any lesser part of the consideration than the relief from future maintenance of the wife, or the release of her interest in his property.

As a "pecuniary provision," therefore, entered into after marriage, by reason of its doubtful validity and the consequent hardship that, owing to the financial and physical conditions of the wife, will now flow from its enforcement, we think this court, sitting as a court of equity, should not lend its aid in that behalf, or permit it to be set up as a bar to any rights she may have in the proceeds of the sale.

[4, 5] As to the effect of a sale by a court of equity in proceedings of this nature, we are of the opinion that the weight of authority holds that at least where the wife is made a party, her rights, whether of dower or of descent, are barred, and the title passes to the purchaser free of any claims therefor, leaving her to her rights, if any, in the pro

[1] To dispose of the second contention first. A release by the wife to her husband or a covenant to release to him her present interests in his property is ineffectual. Pink-ceeds of the sale. ham v. Pinkham, 95 Me. 71, 49 Atl. 48, 85 The authorities, however, are not in enAm. St. Rep. 392. A covenant to release her rights in his after-acquired property would not form the basis of an action at law between them. Hobbs v. Hobbs, 70 Me. 381; Haggett v. Hurley, 91 Me. 542, 40 Atl. 561, 41 L. R. A. 362. Neither will a court of equity enforce it unless upon equitable grounds and equity will thereby be done. National Bank v. Tyndale, 176 Mass. 547, 57 N. E. 1022, 51 L. R. A. 447; Fowle v. Torrey, 135 Mass. 90.

tire accord as to her rights to any share of
the proceeds of such sale. When her inter-
est was only that of dower, her rights were
ever jealously guarded by the courts, and
in Littlefield v. Paul, 69 Me. 527, 533, the
court held that only by the methods pro-
vided in the statutes could she be barred of
her rights. "She was entitled to dower unless
she was barred in one of the modes named in
the statutes." Since the enactment of chapter
157 of the Laws of 1895, her rights have been
viewed by this court as something more
substantial than under her rights of dower
at common law. As the court said in Whit-
ing v. Whiting, 114 Me. 382, 96 Atl. 500:
"A larger and more valuable right is given
to the wife. * * It is an interest that
she cannot be deprived of without her consent,
without compensation. It is an interest which
can be valued. If she refuses to release her
interest by joinder in a deed with her husband,
thereof ordered paid to her."
her interest may be determined, and the value

*

[2, 3] Neither can the agreement between these parties, without the intervention of a trustee, be upheld as a valid agreement of separation. Story, Equity Juris. vol. 2, § 1428; Walker v. Walker, 9 Wall. 743, 19 L. Ed. 814. So, too, an agreement on the part of a wife to relieve her husband of all obligation for the future care and maintenance of their minor children, without sanction of the court, is viewed with disfavor, and is of doubtful validity. Greenwood v. Greenwood, 113 Me. 226, 229, 93 Atl. 360. If as in this case such a covenant forms an inseparable By the same statute which gave her this part of the consideration for an agreement | larger right, provision was made for detercontaining other covenants, a court of equity mining its value in case of a sale against

her consent and her refusal to join in the enforcement of law, preservation of order, and deed. Section 19, c. 80, R. S. protection of public rights.

(113 A.)

namely: Is a county attorney authorized by the common law or by statute to bring a bill for the abatement of a nuisance in behalf of the state in his own name?

country."

"A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the Attorney General in England, and at the suit of the state, or the people, or municipality, or some proper To the bill the defendant demurred, and officer representing the commonwealth, in this after hearing upon the merits, the bill having been sustained, an injunction granted, and the demurrer overruled, the defendant filed exceptions to the decision of the court in overruling the demurrer and asserts the following objection to the maintenance of the bill: (1) That there is no proper plaintiff; (2) that the bill does not set out a cause for the intervention of the court in equity.

We need, however, to consider the first objection only. It is claimed that Henry L. Withee is not a proper plaintiff to the bill. While conceding, for the purpose of argument, that the bill might be sustained with the state of Maine as plaintiff, or by the Attorney General in his official capacity, as representing the public interests, as plaintiff, the defendant nevertheless claims that it does not follow therefrom that such a bill can be maintained in the public interest with the county attorney as plaintiff therein.

[1] We think this contention must prevail. The United States and the states composing it have inherited from the English common law the officer known as the Attorney General. In that common law the duties of the Attorney General, as chief officer of the realm, were numerous and varied. With reference to the duties of the Attorney General in the different states, it is said in 2 R. C. L. 916, par. 5:

The question here is, Who is the proper officer representing the commonwealth when the proceeding is not brought either in the name of the Attorney General or the commonwealth?

In dis

[3] By analogy, the argument might seem plausible that the county attorney, as he is called in this state, as well as the Attorney General, might represent the state. cussing the distinction between the prerogatives of the Attorney General and the county attorney with reference to representing the state, 2 R. C. L. 914, par. 2, under the caption "Distinctions between Prosecuting Attorneys and Attorney General," has the following:

"The office of prosecuting or district attorney unlike that of Attorney General is of modern creation, with its duties chiefly prescribed by statute."

Such is the distinction between the offices in this state. The county attorney is the sole creature of the statute. His duties are prescribed by the statute, enlarged only by the additional duties incidental and necessary to carrying out those prescribed.

We find no statute in this state which au

in equity in his own name for the abatement of a public nuisance, nor do we find any case or kindred case that has reached the courts for adjudication.

[4] On the contrary, our statute by implication, under the rule of exclusion, would seem to negative the contention of the plaintiff in this case. R. S. c. 23, § 1, defines certain places, acts, and conditions to be common nuisances. With respect to the abatement of these nuisances, the statute then proceeds to say:

"Although in a few jurisdictions the Attor-thorizes the county attorney to bring a bill ney General has only such powers as are expressly conferred upon him by law, it is generally held that he is clothed and charged with all the common-law powers and duties pertaining to his office as well, except in so far as they have been limited by statute. The latter view is favored by the great weight of authority, for the duties of the office are so numerous and varied that it has not been the policy of the state Legislatures to attempt specifically to enumerate them; and it cannot be presumed, therefore, in the absence of an express inhibition, that the Attorney General has not such authority as pertained to his office at common law. Accordingly, as the chief law officer of "The Supreme Judicial Court shall have juthe state, he may, in the absence of some exrisdiction in equity, upon information filed by press legislative restriction to the contrary, the county attorney or upon petition of not exercise all such power and authority as pub-less than twenty legal voters of such town or lic interests may from time to time require, and city, to restrain, enjoin or abate the may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the states, the preservation of order, and the protection of public rights."

In our state the Attorney General is a constitutional officer (see Const. art. 9, § 11), and exercises common-law powers.

[2] In Pomeroy's Equity Jurisprudence, § 1349, it is said:

1

same."

* *

The nuisances in the above section are all defined by statute, and the statutory right of the county attorney to proceed by information is confined to a process for the abatement of these particular forms of nuisance. The nuisance in the present case is not one of them.

It is obvious to the casual observer, if it

that the authority conferred by the above (Supreme Judicial Court of Maine. April 5, statute to abate the particular nuisances

therein named would merely be surplusage. 1. Courts 202 (5)—Appeal in suit in probate He is nowhere given authority by statute to thus proceed to the abatement of any common-law nuisance, nor of any other of the subsequently prescribed statutory nuisances, one of which embraces the very conditions which the present bill was brought to abate, namely: