Rogers and W. Paine, for the defendants.

A. G. Jewett, for the plaintiff.

By Court, SHEPLEY, J. This case is presented to the consideration of the court to have the verdict set aside: 1. On account of the instructions given, and those withheld; 2. Because the verdict is against the weight of evidence; and, 3. Because the damages are excessive. Whether the instruction requested should have been given, will depend upon the duties of the parties under the circumstances proved in this case. The city was making the necessary repairs upon the street, and for that purpose was obliged to permit it to be in some degree incumbered, and in a less safe condition for travelers than is ordinarily to be expected. And it is contended, that while the street was thus necessarily under repair, the defendants are not liable, unless they have been guilty of some neglect or want of due diligence in the business of repairing.

When a highway is defective, it becomes the duty of the town immediately to repair it. And if the repairs are of such a character as to require it to be wholly obstructed, as in building or repairing a bridge may be the case, it would be justified in closing it until the repairs can be made. When the town concludes that the repairs can be made without interrupting the travel, and proceeds to repair without making known that the way is not in a condition to be used, or that there is danger in using it, its liability for injuries, as in other cases, must be regarded as continuing; although it may not have been guilty of any other neglect than that of permitting the way to be out of repair. Its general liability under the statute is not in such cases suspended. And it can not reasonably claim, that it should be, unless there is a necessity for it; and then travelers should have notice of such necessity, that they may avoid the danger. If the way is not closed, and no notice is given, travelers may expect that it is practicable to pass it safely, and that they will have the usual protection which the law affords.

The traveler can not, however, when he perceives that a way is under repair and much incumbered for that purpose, and that but a narrow and difficult passage is open for him, claim to drive with the same rapidity, and to exercise only the same attention, which would be allowable in a smooth and unincumbered way. He is bound to exercise that degree of watchfulness and caution which men of ordinary prudence would under such circumstances. If he does that, the town will be responsible, whether

it has or not unnecessarily obstructed the way. If this be a correct exposition of the duties of the parties, the instruction requested should not have been given without qualification. That annexed required of the plaintiff ordinary care, and that the injury should have been occasioned without his fault.

It is insisted, that the jury might not and probably did not understand, that the care required was to be in proportion to the difficulties to be encountered. It is so apparent to the mind of every man of business, that different degrees of attention and care are expected in circumstances exhibiting very different degrees of risk and danger, that the presumption that the charge to the jury was misunderstood, can not reasonably arise. It can not be supposed, that a jury would consider the plaintiff as without fault, if he used no more care than would be required on a way in good repair and not incumbered. If the counsel perceived, that there was doubt, whether the jury would correctly understand the charge, they should have made a request for such a charge as would have removed it.

The evidence is in some degree contradictory, as to the situation of the timber upon the narrow passage left. According to the statement of the witness Day, the injury was occasioned by the carriage wheel striking against the end of a stick of timber, which projected further than the others into the passageway. His statement respecting the conduct of the plaintiff does not appear to be entirely consistent. It is, that he and the plaintiff were probably talking, that he was looking at the men digging a trench, and plaintiff was looking another way; and yet he says. the plaintiff was using all the care any one could. It is now objected, that this is matter of opinion; and so it is, and so appears to have been his statement respecting their talking; and whether, when he was looking at the men digging in the road below, he could see what other way the plaintiff was looking, may admit of doubt. It all appears to have been received without objection; and when so received it affords no just cause for a new trial, that it was considered by the jury. The whole circumstances were peculiarly within the province of the jury. There are no facts so certainly proved and so important and decisive, that a court can with confidence decide, that the verdict is unauthorized by the testimony, and it is in such cases only, that it should be set aside.

Are the damages so excessive as to make it court to set aside the verdict for that cause? where there is no certain measure of damages.

the duty of the

This is a case

The fractured

limb is shortened. One joint is permanently injured. Whether it will ever be sound in other respects, is by the surgeons regarded as doubtful. It is supposed in such a case, that a sum equal in value to the annuity paid by the government for the loss of a limb would have been a full compensation. And if the court had assessed the damages it is not improbable, that it would not have given a larger sum. But in cases of this description their verdict is not to be set aside unless there is reason to believe, that the jury were actuated by passion, or by some undue influence, perverting the judgment. The court can not substitute its own sense of what would be proper for the verdict of the jury. There is no sufficient reason for concluding, that the jury were under any such influence as should destroy their verdict. and deprive the party of the right of having that verdict regarded as the measure of his compensation. It is said that the damages were probably made up partly by allowing for the loss of time, and for the expense of medical attendance and nursing, which losses are not alleged in the declaration. If so, the evidence was not objected to, and being in the cause it might be properly considered. As it is not unjust, that it should constitute an item of the amount of damages, it affords no reason for granting a new trial.

Judgment on the verdict.

NEW TRIAL WILL NOT BE GRANTED, where there is evidence to sustain the verdict, unless the great preponderance of evidence is against it: Perry v. Smith, 26 Am. Dec. 236.

LIABILITY OF TOWN FOR INJURY TO TRAVELER PASSING OVER HIGHWAY OUT OF REPAIR: See Reed v. Northfield, 23 Am. Dec. 662, note 669; also Bartlett v. Crozier, 8 Id. 428, and note 442.

VERDICT WILL NOT BE SET ASIDE AS AGAINST EVIDENCE, unless it be clearly and manifestly so: Culver v. Avery, 22 Am. Dec. 586; Douglass v. Tousey, 20 Id. 616, note 620.

PENOBSCOT BOOM CORPORATION V. LAMSON.

[16 MAINE, 224.]

WARRANTS OF ATTORNEY ARE NOT REQUIRED to be produced by persons ad mitted to practice as attorneys and recognized by law as officers of the court. And a statement by such attorney that he represents a person or a corporation is sufficient.

WHEN CORPORATION IS CREATED BY ACT OF LEGISLATURE, its existence and powers, and the mode of exercising them, depend on the law of its creation.

LEGISLATURE MAY CREATE CORPORATION WITHOUT REQUIRING CONFORMITY to the usual mode of organization known to the common law.

GRANT OF CORPORATE POWERS TO ONE PERSON, with power to associate others with him, or to have succession without doing so, empowers him, or his successor, to exercise all the corporate powers; and his acts, when acting upon the subject-matter of the corporation, and within its sphere of action and grant of power, are the acts of the corporation. ACCEPTANCE OF CHARTER OF INCORPORATION IS PRESUMED from the exercise of the corporate powers.

CORPORATION CAN BE DISSOLVED ONLY: 1. By an act of the legislature, where power is reserved for that purpose; 2. By a surrender of its charter, and the acceptance of such surrender; 3. By a loss of all its members, or of an integral part by reason of which its functions can not be restored; 4. By a forfeiture, which must be declared by a judgment of court.

DEFENDANT, IN ACTION BY CORPORATION, CAN NOT TAKE ADVANTAGE of any abuse or misuser of corporate powers, or object that no mode of service, or of attachment, or means of redress or relief, is provided. DEFENDANT, IN SUCH ACTION, CAN NOT CALL FOR PROOF OF EXISTENCE of the corporation, where he has failed to plead its non-existence in abate

ment.

MONEY EXPENDED IN ERECTING A BOOм, by the owner of the charter authorizing him to erect it, is presumed to have been expended under such charter. The law infers that it became corporate property, and parol evidence is admissible to show that it was erected by the corporation. SLIGHT DIFFERENCE BETWEEN THE NAME OF AN OFFICER named in a charter of incorporation, granted before the legislature had created such office, and that of the officer provided by a subsequent statute, is not material, where the powers and duties of the officer appointed and those of the officer mentioned in the charter are virtually the same.

MERE NOTICE TO PRODUCE A BOOK OR RECORD does not make it evidence, when produced; but if the party who gave the notice takes and inspects it, he takes it as testimony, and it may, if material, be used by either party.

ASSUMPSIT for boomage of logs. The defendants called for the right of the attorneys for the corporation to appear therefor. The judge ruled that it was unnecessary. The defendants pleaded the general issue, and filed a brief statement denying the existence of the corporation plaintiff; alleging that its charter had been forfeited by non-user; that there had been no organization thereunder; and that it had been dissolved by a total loss of all its members. To support the action the act incorporating the plaintiff was introduced in evidence; also bills of sale from Rufus Dwinal, named in the act, to Samuel Veazie; and a book called and offered as the records of the corporation. To the sufficiency of this book to prove the organization, the defendants objected. The objection was overruled, and part of the book was read to the jury, the defendants' counsel having called for the records. The plaintiff then proved that the logs

AM. DEC. VOL. XXXIII-42

were surveyed in the boom by scalers appointed by the surveyorgeneral of Penobscot county. The jury found for the plaintiff; and also found that the boom had been erected and continued under the authority of the Penobscot boom corporation. The defendants excepted. The other facts sufficiently appear from the opinion.

Rogers and J. Appleton, for the defendants.

A. G. Jewett, for the plaintiff.

By Court, SHEPLEY, J. When one person professes to represent another, or a body corporate, he should exhibit his authority; and attorneys, according to the practice of many courts, appear by warrant of attorney; but in our practice, where the law recognizes certain persons as officers of the court, and entitled as such to represent others, as an official duty, no such warrants have been required; and the statement of the attorney, that he does represent a person, or body corporate, has been deemed sufficient. Should he abuse such power, he may be deprived of his privilege, and be subjected to an action for damages by the party injured. The sixth rule of the court of common pleas requires no more than such a statement by the attorney, and it would seem, that by the rule, the court may give him leave to appear without requiring such statement. The objection having been overruled, the court must be regarded as having granted such leave, if it were necessary. No such rule exists in this court. The supreme court of the United States appears to entertain this opinion respecting the rights of attorneys to represent others, according to our practice. Marshall, C. J., says: "Certain gentlemen, first licensed by government, are admitted, by order of court, to stand at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause, has always been received as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any state, or of the union. This universal and familiar practice, then, of permitting gentlemen of the profession to appear, without producing a warrant of attorney, forms a rule, which is as applicable in reason to their appearance for a corporation as for a natural person:" Osborn v. United States Bank, 9 Wheat. 738.

The existence of such corporate body is denied, and it is said