Volume 100 — Maine Reports

<p>On appeal in equity by defendant.</p> <p>The facts sufficiently appear in the opinion.</p>

On exceptions by plaintiff. Action of trespass under the statute to recover damages of the defendant as the alleged keeper of a dog by which the plaintiff was bitten. The case is stated in the opinion.

<p>On motion and exceptions by plaintiff.</p> <p>Real action. Plea, nul disseizin.</p> <p>Verdict for defendant.</p> <p>The case sufficiently appears in the opinion.</p>

Equity. On report. Bill in equity brought by fourteen taxable inhabitants of the city of Bangor, under the provisions of R. S., chapter 79, section 6, paragraph XI, asking that F. O. Beal, as mayor, and H. O. Pierce, as treasurer, be restrained from paying out any money, and that a special committee appointed for the purpose, be restrained from making a contract, for the purchase of two steel spans for the Bangor and Brewer bridge, under the authority of a certain order…

<p> Street Railways. Negligence. Duty of Traveler at .Crossings. Evidence. </p> <p>In an action on the case for negligence on account of a collision between a team and an electriccar, it is held:</p> <p>1. That between street crossings, the car, from the fact that it must pursue one course, and cannot turn out, necessarily has a paramount right to be exercised in a reasonable and prudent manner.</p> <p>2. That when approaching a public street junction, the rule is that the ■ motorman shall be held to anticipate that any person approaching such junction from either side may turn.his team into it, and shall then exercise all due care to have his car under such control as to be able to stop it at the crossing, if necessary, to avoid an accident.</p> <p>3. At such crossings the car has no right superior to that of other vehicles. The car and vehicle are on an equality.</p> <p>4. The rule of caution required in approaching the crossing of a steam road does not fully apply to the crossing of an electric road.</p> <p>5. In approaching such crossings, it is not incumbent upon the traveler upon foot or with a team, as a matter of law, to look and listen. He must however, be in the exercise of reasonable care.</p> <p>6. Whether a traveler, as above, is in the exercise of reasonable care, is a question of fact for the jury, depending upon the circumstances of each particular case.</p> <p>7. The speed of a car is a fact from which an inference of negligence may be drawn.</p> <p>8. In crossing a. car track at the junction of a street, the traveler is not required to look the whole length, of the visible track to see if a car is coming, but along the track far enough to warrant an ordinarily prudent man having in mind his own safety, under like circumstances, to conclude that no car was in such proximity as to endanger his safety in crossing.</p>

On motion by defendant. Action on the case for personal injuries sustained by the plaintiff while in the employ of the defendant. Plea the general issue. Verdict for plaintiff for $808.00. Defendant filed a general motion for a new trial. The case is stated in the opinion.

<p>On exceptions by defendant.</p> <p>Action of scire facias on a judgment for $482.22 debt or damage and $29.08 costs, recovered by the plaintiff against the defendant in the Superior Court for Kennebec County. No execution was issued within one year after judgment. This action of scire facias was then brought in the same court to obtain execution on said judgment, and the defendant seasonably filed a motion to dismiss the action alleging it was not within the jurisdiction of said Superior Court. The presiding Justice of that court ruled that the action was within the jurisdiction of said court, to which ruling the defendant excepted.</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiff. Action on the case to recover damages for personal injuries sustained by the plaintiff alleged to have been caused by the negligence of the defendant. After the evidence for the plaintiff was in, and on motion of the defendant, the court ordered a nonsuit. To this ruling the plaintiff excepted. • ■ The case is stated in the opinion.

<p>On motion and exceptions by defendants.</p> <p>The case is stated in the opinion.</p>

<p>On report. Title of claimant sustained with costs.</p> <p>Assumpsit upon account' annexed against the principal defendant and Whitcomb Haynes & Co., trustees. The trustees duly appeared and filed a disclosure setting forth that there was due Richardson, the principal defendant, from them, at the time of the service of the writ upon them, for wages earned $97.85, and that this sum was claimed by one W. J. Johnston under a written assignment to him from said Richardson, and that under said assignment demand had been made upon said trustees by said Johnston for payment of the aforesaid sum to him.</p> <p>Said W. J. Johnston filed a written request to be allowed to appear as claimant of the funds disclosed by the aforesaid trustees by virtue of the aforesaid assignment, and therefore he was admitted as a party to the suit for that purpose.</p> <p>At the hearing upon the question of the liability of the alleged trustees, after the evidence was taken out, by agreement of parties, the case was reported to the Law Court to decide all questions of law and fact involved.</p> <p>Further facts appear in the opinion.</p>

<p>Lien on Spool Timber. Place of Destination. R. S., c. 93, § 53.</p> <p>Chapter 93, section 53, R. S., gives a lien for certain services upon spool timber and spool bars manufactured therefrom which continues for sixty days after such timber or spool bars arrive at the place of destination for sale or manufacture.</p> <p>Held: that in the case of spool bars, the place of destination .for sale or manufacture, is the place where such spool bars are actually intended to be sold or manufactured into spools.</p>

<p>On exceptions by defendants.</p> <p>■ Scire facias brought in behalf of the state in the Superior- Court for Cumberland County against the principal and sureties upon a recognizance taken by the Municipal Court for the city of Portland, in'the penal sum of $1500 for the appearance ■ of the principal at the May term, 1903, of said Superior Court. The defendants filed a general demurrer ■ to the writ. The demurrer was overruled. Thereupon the defendants took exceptions.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>On motion by defendant.</p> <p>Action on the' case for personal injuries sustained by the plaintiff by slipping on the platform at Newhall Station, on the mountain division of the defendant’s railroad, as she was walking from the station door for the purpose of taking a train. At the trial in the court of the first instance, the plaintiff recovered a verdict for $1158.35. Thereupon the defendant filed a general motion for a new trial.</p> <p>The case is fully stated in the opinion.</p>

<p> Equitable Estoppel. Assignment of Claim. Trover. </p> <p>The doctrine of equitable estoppel is founded upon the principles of equity and justice, and is applied so as to conclude a party, who by his acts and admissions intended to influence the conduct of another, when, in good conscience and honest dealings, he ought not to be permitted to gainsay them.</p> <p>This doctrine of equitable estoppel should be applied with great care in each case, so that a person may not be debarred from the maintenance of a suit based upon his legal rights, unless the conduct relied upon as creating an estoppel has been of such a character, and has resulted in such injury to the person relying upon such conduct, that, in equity and good conscience, he should be thereby prohibited from enforcing the legal rights which he otherwise would have, nor unless in any given case all the elements exist which have been universally held to be essential for the purpose of creating an estoppel.</p> <p>The conduct, declarations or silence relied upon to create an estoppel, must be made to or in the presence of a person known to have an interest in the subject matter, and must be of such a character as would naturally have the effect of influencing the conduct of the person to whom it is addressed.</p> <p>It is not necessary, in accordance with the prevailing rule, that the conduct creating an estoppel should be characterized by an actual intention to mislead and deceive. Neither would ignorance upon the part of the plaintiff of his legal rights, provided he had a full knowledge of the facts, be an answer to the estoppel relied upon.</p> <p>In order to create an estoppel, the conduct, misrepresentations or silence of the person claimed to be estopped must be made to or in the presence of a person who had no knowledge of the true state of facts, and who did not have the same means of ascertaining the truth as did the other party. A person will not be estopped merely by his silence and failure to disclose facts that may be ascertained by an examination of public records, when the situation is not such as to place upon him the duty of making known the truth. In such a case he may rely upon the notice given to all by the public records. But where the situation is such that it is his duty to speak, as where inquiries are made of him, or where, instead of merely remaining silent, he does some positive affirmative act, which would naturally have the effect of misleading'and deceiving one, then the mere fact that the truth can be ascertained by an examination of the records, does not prevent the operation of the estoppel against him.</p> <p>The law distinguishes between silence and encouragement. While silence may be innocent and lawful, to encourage and mislead another into expenditures on a bad and doubtful title would be a positive fraud that should bar and estop the party.</p>

<p>On report.</p> <p>Assumpsit on account annexed and promissory note, brought in the Superior Court for Kennebec County.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>Neal action.</p> <p>The case is stated in the opinion.</p>

<p>Guardian’s Bonds. Discharge of Surely. Action. R. 8., c. 74, ? 3.</p> <p>A second bond, for twice the amount of the ward’s estate, given by a guardian to meet requirements to entitle him to receive funds in another state, will not, when filed and accepted by the Judge of Probate, supersede the original bond in the absence bf statutory proceedings for the discharge of the sureties from liability; and both bonds are valid, constituting cumulative, concurrent security for the entire management of the estate.</p> <p>A citation to the guardian to settle an account of his guardianship, is generally a necessary preliminary to a right of action against the sureties on a guardian’s bond, because it is the proper mode of instituting judicial inquiry to ascertain their liability; but it is not indispensable when special circumstances make the citation impossible or unnecessary.</p> <p>Where the guardian has absconded to parts unknown, and has converted to his own use the entire property of the ward, consisting of a single item of money, and an accounting could not change the liability of the sureties, a suit may be brought and maintained against them without citing the principal.</p> <p>Failure to faithfully discharge the trust, and neglect to return an inventory as required by law, are breaches of the condition of the bond, and give a right of action thereon to the Judge of Probate, and upon judgment, the right to have execution issued in his name, for so much of the penalty as may be adjudged on trial to be just.</p>

On motion by defendant. Action on tlie case to recover damages for personal injuries sustained by the. plaintiff from an accidental explosion of dynamite in the slate quarry of the defendant where the plaintiff was engaged in operating a steam drill in drilling holes for the purpose of blasting out slate. . The plaintiff recovered a verdict for $4000. Thereupon the defendant filed a general motion for a new trial. The case is stated in the opinion. ■

On motion and exceptions by defendants. Assumpsit upon fire insurance policies. The two actions were tried together. Plaintiff recovered a verdict for $526.50 in the first action, and for $1,053.00 in the second action. Defendants filed geueral motions for a new trial and also filed certain exceptions. The exceptions were not considered. The material facts are sufficiently stated in the opinon.

On report. Action to recover damages for an injury sustained by the plaintiff by reason of the defective condition of a platform on the defendants’ premises, one tenement of which was occupied by the plaintiff as a tenant at will. The case is stated in the opinion.

On exceptions by petitioner. Petition for habeas corpus. The material facts, as found by the Justice of the first instance, are stated in the opinion.

On motion and exceptions by plaintiff. Debt on a probate bond, brought in the interest of Magloire Cote who as plaintiff in interest sought to recover the amount of the distributive share of the estate of Caroline Cote, deceased, decreed to him. as the husband of said deceased.

In equity. On report. Bill in equity praying that a certain dam on Orange Stream in Whiting, Washington County, be adjudged a nuisance, and that the defendants, the owners thereof, be enjoined from further obstructing the natural flow of said stream to th.e injury of the plaintiffs who are the owners of a mill and dam on the same stream, below the defendants’ dam. The case is sufficiently stated in the opinion.

On motion by defendant. Assümpsit on account annexed. The action was tried at the April term, 1904, of the Supreme Judicial Court, Knox County, where the plaintiffs recovered a verdict for $1,333.42. Thereupon the defendant filed a general motion for a new trial. The case is sufficiently stated in the opinion.

On exceptions by plaintiff. Assumpsit to recover payment for a year’s salary as teacher of the high school in defendant town. At the trial of the action, after the plaintiffs evidence was all in, a nonsuit was ordered and thereupon the plaintiff took exceptions. The case is sufficiently-stated in the opinión.

On motions and exceptions by plaintiff. Neal action to recover land on Seven Hundred Acre Island in Islesboro. Plea, general issue with brief statement claiming title to the demanded premises by adverse possession. Verdict for defendant. Plaintiff took exceptions to the admission of certain testimony, and filed a general motion for a new trial, and also filed a motion for a new trial on the ground of newly discovered evidence. The case is sufficiently stated in the opinion.

On motion by plaintiff. Forcible entry and detainer. The action was brought originally in the Ellsworth Municipal Court where judgment was rendered for the plaintiff. The defendant appealed. Under the provisions of R. S., chapter 96, section 9, a writ of possession was issued and the plaintiff took possession of the premises.

<p>Executors and Administrators. Decree of Probate Court. Appeal. ' Jurisdiction. Wills. Specific and Demonstrative Legacies. Descent and Distribution. How. Ann. Stat. {Mich.), § § 599, 6760. Code of Civil Proc. (iV. 7.), § 2743. R.S., c. 65, § § 7, 28, 34; c. 67, § 20.</p> <p>An administrator has no pecuniary or personal interests which can be affected by a decree of distribution of funds shown by his account to be in his hands. He has no property rights which can be established or divested by such a decree. It is immaterial to him to whom he is required to pay over such funds and he cannot be said to be aggrieved by a decree directing him to pay to a legatee rather than to an heir.</p> <p>But as assignee of the distributive share of one of the heirs at law, the appellant has pecuniary interests and property rights which may be directly affected by a decree of distribution, therefore under the provisions of section 34 of chapter 65, R. S., the appeal was properly taken and prosecuted by the appellant and in his name as assignee of an heir at law.</p> <p>It is not necessary that the question whether the legacy was specific or demonstrative, should have been determined as a preliminary question by a court of equity and not upon appeal by the Supreme Court of Probate. Jurisdiction of the Probate Court in such case is authorized by the plain terms of the statute and in accordance with the obvious intention of the legislature. The decree of the Probate Court is subject to revision on appeal to the Supreme Court of Probate, and a direct and convenient mode of procedure is thus provided for reaching a final decision of the question involved in the settlement of the estate.</p> <p>The distinction between a specific and a demonstrative legacy involves not merely a technical question depending for its solution solely upon the precise language of the bequest, but a substantial inquiry respecting the intention of the testator as shown by the terms of the particular legacy, examined in connection with all the other provisions of the will. A specific legacy is a bequest of a specific article or particular fund which can be distinguished from all the rest of the testator’s estate of the same kind, while a general legacy is' payable out of the general assets of the estate.</p> <p>While a demonstrative legacy partakes of the nature of a specific legacy by designating the fund from which the bequest is to be made, there is a vital distinction respecting the result in case of the failure of the particular fund mentioned. A specific legacy is adeemed or lost by the extinguishment of the specific thing or failure of the particular fund bequeathed, while a demonstrative legacy is still payable out of the general assets if the fund specifically mentioned fails. Two elements are necessary to constitute a demonstrative legacy, viz: It must appear first that the testator intended to make an unconditional gift in the nature of a general legacy, and secondly the bequest must indicate the fund out of which it is payable.</p> <p>In the case at bar, Held: that the .legacy must be considered a specific one which was adeemed by the failure of the fund. Also held that the balance remaining in the hands of the administrator had not been specifically bequeathed, and should be distributed among the heirs as intestate property.</p>

On motion by appellant. Appeal from the decree of the Judge of Probate, Knox County, admitting to Probate the will of Mary E. Campbell. In the appellate court a jury trial was had and the jury rendered a verdict in favor of the proponent of the will, and thereupon the contestant filed a general motion for a new trial. The facts, so far as material, are stated in the opinion.

On motion by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff in the defendant’s mill, at Madison, where he was employed. Verdict for plaintiff for $2500. Defendant then filed a general motion for a new trial. The case is sufficiently stated in the opinion.

On motion and exceptions by defendant. Assumpsit against the defendant as administrator of liis father’s estate to recover for services rendered to the intestate. The action was brought and tried in the Superior Court, Kennebec County. Verdict for plaintiff for $223.10. Defendant filed a general motion for a new trial and also took exceptions to certain rulings made by the presiding Justice. Case decided on the motion. Exceptions not considered.

On report. Real action to recover possession of certain land situated in Montville, Waldo County.

On agreed statement. This was a complaint made on the ninth of September, 1908, by the City Marshal of Portland against William F. Robb of South Portland, Cumberland County, Maine, alleging that he did on the ninth day of September, A. D. 1903, at Portland in said county, “ unlawfully go about collecting certain house offal consisting of animal and vegetable substances the said Robb not being then and there duly authorized and appointed thereto according to law nor then and…

On exceptions by defendant. Complaint for flowage brought under the provisions of section 4 of chapter 481 of the private and special laws of 1893, entitled “An Act to Incorporate the Sebago Improvement Company,” to recover damages sustained by the plaintiff by the alleged flowing of his land by means of the defendant’s dam. The defendant claimed a prescriptive right to flow the plaintiff’s land without compensation.

<p>Statutes. Construction. Railroads. Taxation. Apportionment. Mileage Basis. Franchise Tax. Stai. 1901, c. 145. R. S. (1883), c. 6, § 42. {R. S., c.$f§ 25.)</p> <p>Words in a statute are to be construed in reference to the subject to which they relate and the connection in which they are used, and where in such connection their meaning is ambiguous the consequences of an interpretation made according to their ordinary and popular definition may be considered in determining their legal signification.</p> <p>As used in sec. 42, chap. 6, R. S. 1883, amended by chap. 145 Public Laws 1901, the word “railroad” comprehends the equipment, roadbed, sites of depots and warehouses, and other real estate incidentally used in its business, and from it the words “ line or system ” cannot be disconnected. There is meant in this connection a railroad “ operated as a part of a line or system extending beyond this state.”</p> <p>The mileage basis of apportionment in taxing railroads and other public service companies is eminently just, but there are exceptional cases where deductions should be made to prevent manifest inequality of value per mile.</p> <p>A railroad may be in a legal sense considered a unit capable of proportionate subdivisions measured by miles, but where it is especially chartered to own and operate, in connection with its transportation -business, lines of steamboats across navigable waters beyond its termini the length of such lines should be excluded from the computation in determining the franchise tax.</p> <p>The spirit and intention of the statute are evidently to include only the miles of single track of actual railroad lines.</p>

In Equity. On appeal by plaintiff. Bill in equity brought under the provisions of section 19 of chapter 87 of the Revised Statutes of 1883, now section 21 of chapter 89 of the Revised Statutes of 1903. The case is sufficiently stated in the opinion.

<p>On report.</p> <p>Action on the case under the provisions of section 6 of chapter 20 of the Revised Statutes of 1883 — now section 6 of chapter 25 of the Revised Statutes of 1903 — brought by the plaintiff towns as proprietors of a ferry across the Androscoggin River at Peru Center, Oxford County, against the defendants to recover damages caused by the interference of the defendants with the rights of the plaintiff towns in ferrying passengers and property.</p> <p>After the evidence had all been taken out, it was agreed to report the same to the Law Court with the stipulation that “upon so much of the evidence as is legally admissible the Law Court is to render such judgment as the rights of the parties require. If the plaintiffs are entitled to recover, damages to be assessed at nisi prius.”</p> <p>The case is sufficiently stated in the opinion.</p>

In Equity. On exceptions by both plaintiff and defendant, to master’s report. The case is sufficiently stated in the opinion.

On report. Action on the case to recover damages for wrongful injuries causing the immediate death of John McTaggart, the plaintiff’s intestate. After the evidence had been taken out, it was agreed that the case should be reported to the Law Court, with the following stipulations : “ The case is to be heard as if a verdict had been rendered for the plaintiff and a motion had been filed by the defendant,for a new trial.

On appeal in equity by plaintiffs. Bill in equity brought in the Supreme Judieial Court, Cumberland County, by four hundred and fifty plaintiffs, all of Colorado,, as creditors of the State Bank of Monte Vista, a corporation organized under the laws of and located in Colorado, on behalf of themselves and such other creditors of said Bank as might join, to enforce the Colorado statutory liability of the defendants, citizens of Maine, as stockholders in said Bank.

On motion and exceptions by defendant. Action on the case to recover damages whieli plaintiff town claimed to have sustained by reason of the defendant’s dam across the Androscoggin River deflecting the current or flow of said river towards the Durham shore thereby causing injury to the highway along said shore. Plaintifl recovered a verdict for $1,489.15. Defendant filed a general motion for a new trial, and also excepted to certain instructions and refusals to instruct.

On exceptions by plaintiffs. Assumpsit on account annexed, brought in the Superior Court, Kennebec County, to recover a balance of $256.85, and interest thereon, alleged to be due for- intoxicating liquors sold March 19, 1896, by the plaintiffs, then residents of Cincinnati, Ohio, to the defendant, then residing in Gardiner, Maine, and shipped the same day by the plaintiffs from their place of business in Cincinnati by rail with continuous waybill to the defendant at…

On report. Action on the case, brought in the Superior Court, Cumberland County, to recover damages caused by the alleged negligent construction and maintenance of a sewer by the defendant, whereby water and sewage flowed back into the plaintiff’s cellar.

<p>On exceptions by defendant.</p> <p>The case is fully stated in the opinion.</p>

The first four of the above entitled eases are actions at law which were tried before juries and brought to the Law Court by the parties against whom the verdicts were rendered, on motions for new trials. The last two cases are equity causes and brought to the Law Court on appeals by the parties against whom the decrees were made.

On agreed statement. Action of debt brought by the state of Maine to recover from the defendant company two taxes assessed against the defendant company by the State Board of Assessors, one for the year ending April 1, 1898, and one for the year ending April 1, 1899. The facts, so far as material, are stated in the opinion.

On exceptions by plaintiff. Trover against the defendant as sheriff to recover the value of a quantity of tea attached by him on a writ in favor of M. M. Gallert and against Melvin M. Davis and Effie E. Davis, copartners under the name and style of M. M. & E. E. Davis. The case is fully stated in the opinion.

On motion by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. At the trial in the court of the first instance, the plaintiff recovered a verdict of $990.00, and thereupon the defendant filed a general motion to have the verdict set aside. The facts, so far as material, are stated in the opinion.

On motion and exceptions by defendant. Assumpsit brought under R. S. 1883, chapter 90, section 22,— now R. S. 1903, chapter 92, section 23, — to recover money alleged to have been paid by the plaintiffs to redeem from a certain real estate mortgage, held by the defendant, in excess of the amount actually due on said mortgage. The verdict was for the plaintiffs, arid the defendant filed a general motion for a new trial.

On report. In the first suit, judgment for plaintiff against defendants, Edward Bryant and Edward B. Kent, and. judgment for the other defendant, John W. Shibles. In the second suit, judgment for the defendants. Two actions based upon precisely the same facts.

On report. Two actions for false imprisonment heard together. Each writ dated Jan. 15, 1904. Plea, in each case, the general issue.

Mr. Justice Emery being disqualified by reason of interest did not sit. On motion by plaintiff. Real action to obtain possession of certain parcels of land situate in Bucksport in the County of Hancock, included within the bounds of which was a strip of land that in 1873 was legally laid out for a railroad location for all railroad purposes. Also the land described in the writ covered a strip of land two rods in width to which the defendant claimed title by prescription.

In Equity. On report. Bill in equity praying for an injunction to restrain the defendants from erecting a line of poles and wires across the plaintiff’s farm in Benton, Kennebec County.

In Equity. On report. Casé remanded for decree in accordance with opinion.

<p> Guardian. Appointment. Welfare of Child. Power of Probate Court. Appeal. Justice of Supreme Judicial Court. Exceptions. </p> <p>When the appointment of a guardian for a minor child is asked for, the welfare of the child is the main and controlling consideration.</p> <p>The determination of this question is in the first instance submitted to the Probate Court, and ultimately, if an appeal be taken, to the determination of a Justice of the Supreme Judicial Court sitting as a Judge of the Supreme Court of Probate.</p> <p>It is the duty of such Justice to hear and decide the fact whether the welfare of the child requires such guardianship.</p> <p>The decision of such Justice is not a ruling of law, but is his judgment of the facts and of the necessity and propriety of his conclusions, and is not subject to exception.</p>

On exceptions by defendants. Assumpsit on account annexed to recover the price of awnings and a sash curtain- sold and delivered by the plaintiffs to the defendants. The action was brought in the Bangor Municipal Court and was submitted on an agreed statement of facts. Upon this agreed statement of facts, the Judge of that court ruled, pro forma, that the plaintiffs were entitled to recover, and to this ruling the defendants excepted.

On report. Indictment against the defendant town for failing to erect and maintain guide-posts as required by Revised Statutes, chapter 23, section 91. After the evidence had been taken out in the court of tlie first instance, the presiding Justice ordered the case to be reported to the Law Court for determination “upon so much of the evidence as is legally admissible.” The facts are fully stated in the opinion.

On exceptions. The respondents were indicted at the January term, 1905, of the Supreme Judicial Court, Washington County, for breaking and entering a sardine factory at Eastport and stealing therefrom sardine coppers to the value of ten dollars. The respondent, Call, was not apprehended but Gilligan and McMasters were arrested and held for trial jointly.

On motion by defendant. Action on the case to recover the value of a horse killed by the defendant company’s freight train. Plea, the general issue. Tried at the April term, 1905, of the Supreme Judicial Court, Androscoggin County. Verdict for plaintiff for $157.29. Defendant then filed a general motion to have the verdict set aside. The case is stated in the opinion.

On report. Two real actions to recover certain tide lands or flats in Gil patrick’s Cove on Mt. Desert Island, adjacent to the parcels of upland owned severally by the plaintiffs.

Ou motion by defendant. Action on the case brought to recover damages for personal injuries sustained by the plaintiff by reason of being run over by one of the cars of the defendant, in Brunswick village. At the time of the injury, the plaintiff was of the age of ten years and seven months. As one of the results of the injuries sustained by the plaintiff, she lost an arm. The action was tried at the January term, 1905, Supreme Judicial Court, Cumberland County.

On exceptions by plaintiff. Assumpsit on account annexed for merchandise sold and delivered by plaintiffs to principal defendant previous to October 6, 1899, amounting to $276.11 and interest thereon to date of writ, amounting to $6.43, the total amount of the account annexed being $282.54. Frank L. Shaw of Machias, was alleged in the writ to be trustee of the goods, effects and credits of the principal defendant. Service was duly made on the trustee on February 9, 1900.

On exceptions by plaintiff. Appeal from the decree of the Railroad Commissioners determining that a certain public highway within the city of Auburn, Androscoggin County, located by the County Commissioners of said county over the land and right of way of the appellants, should cross the railroad track of the appellants by an underpass, and apportioning the expense of the construction and maintenance of the crossing.

On motion and exceptions by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. Tried at the December term, 1904, of the Supreme Judicial Court, Aroostook County. Plea, the general issue. Verdict for plaintiff for $2500.00. Defendant filed a general motion for a new trial, and also excepted to certain rulings-made by the presiding Justice. Case decided on the motion.

On motion and exceptions by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff January 25th, 1904, caused by the alleged carelessness of the defendant in having water improperly drawn off and conducted from the roof of her house or bay window on said house and discharged upon the sidewalk in front of said house, and which froze and rendered the sidewalk dangerous, and upon which the plaintiff slipped and was injured.

On exceptions by defendant, Assumpsit on two promissory notes, each of the amount of twenty-two dollars and thirteen cents, each dated August 7th, 1903, payable in two and four months from date, respectively, signed by defendant under name of Johnson & Co., and payable to plaintiffs. The action was heard by the presiding Justice, with the right of exception. Plea, the general issue.

On exceptions by plaintiff'. Petition for a writ of certiorari against County Commissioners of Franklin County. Heard by the presiding Justice without intervention of a jury, at the February term, 1905, of the Supreme Judicial Court, Franklin County, with the right of exception by each party to rulings of law. Under this stipulation, the plaintiff petitioner excepted to certain rulings made by the presiding Justice.

On exceptions by defendant. Under the provisions of section 49 of chapter 29 of the Revised Statutes, on a complaint made by W.. R. Walter, a Lincoln County trial justice, issued a search and seizure warrant commanding the officer to search the premises therein designated, for intoxicating liquors alleged to be kept therein and intended for unlawful sale by the defendant, Duane, and, if any such liquors were found, to seize the same and arrest the defendant.

On report. Trover for the conversion of a quantity of household goods deposited with the defendant for storage. The storage being unpaid, the defendant, by virtue of. process issued by the Municipal Court of Portland, sold these goods for the purpose of enforcing his storage . lien thereon as a warehouseman. Thereupon the plaintiff brought .this action of trover in the Superior Court, Cumberland County. Plea, the general issue.

On report. Trespass quare clausum fregit wherein the plaintiff sought to recover damages of the defendant for cutting and removing certain wood and timber from a portion- of the plaintiff’s premises in Scarborough. The defendant admitted the taking but justified under claim that the premises upon which the alleged trespass was committed were a part of a tract of land on which the trees and wood growth had been conveyed to him by the plaintiff.

In Equity. On appeal by defendants and on exceptions by plaintiff. Appeal dismissed. Exceptions sustained.

On report. Assumpsit upon a policy of fire insurance in the standard form, issued by the defendant company upon the buildings of the plaintiff, situated in Montville.

<p>In Equity. On appeal by defendants.</p> <p>The case is sufficiently stated in the opinion.</p>

On report. Petition for a writ of mandamus to require the defendant company to furnish water to the petitioner at a house owned by him in Old Town, and .occupied by a tenant.

<p>Pleading. Administrator Proper Party to Sue, When. Husband and Wife. Gifts. Husband no Vested Interest in Wife’s Estate. Wife’s Right to 'Dispose of her Personal Property in her Lifetime. P. L., 1896, e. 167; 1903, c. 160. R. 8., c. 63, § 1; R. 8., c. 77.</p> <p>1. An administrator is the. proper party to sue for the goods which once belonged to his intestate, but which were disposed of by the latter, by a fraudulent and void transfer or gift.</p> <p>2. In this state, prior to June 1, 1903, when chap. 160 of the Public Laws of that year took effect, a married woman might make such disposition by gift, voluntary conveyance or otherwise, of her personal property during her lifetime, as she wished, even though her husband was thereby deprived of the distributive share therein, which would otherwise fall to him upon her death; and even though such disposition was made with intent to prevent his receiving such a distributive share.</p> <p>3. Whether this rule will apply as to gifts causa mortis, since chapter 160 of the Public Laws of 1903, permitting a widower to waive the provisions of his wife’s will, and take his distributive share in her personal estate, as if she had died intestate, is not decided.</p>

<p>On exceptions by defendant.</p> <p>Bastardy complaint, under the provisions of chapter 99 of the Revised Statutes. Tried to a jury in the Superior Court, Kennebec County. Plea, not guilty. Verdict, guilty. During the trial, the plaintiff offered in evidence her original accusation and examination before the magistrate, and also the magistrate’s record in the matter, which were admitted against the objection of the defendant, and thereupon the defendant excepted.</p> <p>The case sufficiently appears in the opinion.</p>

On motion and exceptions by plaintiffs. Action on the case to recover compensation for damage to sixty-one cans of cream alleged to have been frozen by reason of the negligence of the defendant while the defendant was transporting same from Belfast, Maine, to Boston. The case is sufficiently stated in the opinion.

On exceptions by defendant. Assumpsit on a policy of life insurance for 1500 issued by defendant on the life of Robert Hewey, now deceased, brought by the plaintiff, the wife of said deceased and the beneficiary named in said policy. Tried at the January term, 1905, Supreme Judicial Court, Androscoggin County. Verdict for plaintiff. Defendant filed a motion for a new trial which was afterwards abandoned.

<p>On exceptions and motion by defendant.</p> <p>Action on the case for negligence to recover for personal injuries to the plaintiff while a passenger on one of the cars of the defendant, a street railway corporation. Tried at the October term, 1904, Supreme Judicial Court, Cumberland County. Verdict for plaintiff for $969. Defendant excepted to a certain instruction given by the presiding Justice at the request of the plaintiff’s counsel, and also filed a general motion for a new trial. Exceptions sustained. Motion not considered.</p> <p>The case appears in the opinion.</p> <p>Memorandum. This case was argued at the June term, 1905, of the Daw Court at Portland, One of the Justices sitting at said term did not sit in this case being disqualified under the statute by reason of having ruled therein at nisi prius.</p>

On exceptions by defendant. Petition for partition. At the hearing before the court at nisi prius, judgment for partition was ordered and commissioners were appointed. Defendant excepted to certain rulings made by the presiding‘Justice. Exceptions overruled. PETITION FOE PARTITION. To the Honorable Justice of the Supreme Judicial Court next to be held at Caribou, in and for the County of Aroostook, on the first Tuesday of December next.

On motion by defendants. Assumpsit on account annexed to recover $770 for “Paragon Malt Extract” sold and delivered by the plaintiffs, residents of the State of New York, to the defendants, residents of Maine, October 2lst, November 5th, and December 19th, 1903, the entire quantity being 6Ó barrels containing 800 dozen or 9600 bottles. Tried at January term, 1905, Supreme Judicial Court, Penobscot County.

On report. Complaint for flowage of land in Mayfield, Somerset County. On the second day of the term, to which the complaint was made returnable, the defendant appeared specially and filed a motion to dismiss the complaint for want of legal service. Hearing on motion had at December term, 1904, of the Supreme Judicial Court, Somerset County.

On exceptions by plaintiff. Action to recover the sum of 118.50 paid by the plaintiff’s father to the Higgins Classical Institute as tuition for the plaintiff, a minor residing with his father, as a pupil in said Institute during the fall and winter terms, 1908 and 1904. The case is fully stated in the opinion.

<p>On exceptions by defendant.</p> <p>Action of debt on an alleged breach of covenant of warranty in a deed of land under seal. At the return term of the writ in this action, the defendant filed a general demurrer to the writ and declaration, which demurrer was joined by the plaintiffs, and heard at a subsequent term. The demurrer was overruled, and thereupon the defendant excepted.</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Assumpsit on certain negotiable promissory notes given by the defendant’s intestate, L. L. Kennedy, to the plaintiff bank. Tried at the April term, 1905, of the Supreme Judicial Court, Lincoln County. Plea, the general issue and general statute of limitations. At the conclusion of the evidence, it was agreed to report the same to the Law Court, “and that upon so much of the evidence as is legally admissible said court to render such judgment as the rights of the parties require.”</p> <p>The case is amply stated in the opinion.</p>

<p>On report.</p> <p>Neal action wherein the plaintiff demanded against the defendant eighty acres of land, with its appurtenances, from the south part of Dot 82, in Perham, Aroostook County, “whereof the plaintiff was seized in an estate for life within twenty years last past.” Writ dated November 14, 1903. Plea, nul disseizin. Evidence taken out at December term, 1904, of Supreme Judicial Court, Aroostook County, and by agreement case sent to the Law Court on report.</p> <p>The case appears in the opinion.</p>

<p> Agricultural Society. Fair. Negligence. Collision on Face Track. Active Duly. Safely of Patrons. </p> <p>1. An agricultural Society holding a fair, for admission to which a fee is charged, is bound to use reasonable care to keep all parts of its grounds, to which patrons are admitted, free from dangers to-them.</p> <p>2. When such Society invites patrons, even by implication only, to cross its racing track to reach the space enclosed by the track, it is bound to use reasonable care to keep the track clear of danger of collision during such crossing.</p> <p>3. A patron of such fair, while crossing the racing track by invitation of the Society, express or implied, is not bound to be as watchful for teams approaching along the track as he would be in crossing a public road. He may assume that the Society is using reasonable care to keep the track clear of such teams. Hence the mere fact that he is not watching for such teams does not constitute contributory negligence, on his part.</p> <p>4. In this case the evidence, though conflicting, warranted findings by the jury that the plaintiff was invited by the defendant Society to cross the track when he' did, that he was not guilty of contributory negligence in not seeing the team approaching along the track, and that the defendant was negligent in not preventing the. use of the track by the colliding team at that time.</p>

<p>Railroads. Negligence. Trespassers on Railroad Track. ' Locomotive Engineer not Guilty of Negligence, When. When and When not Bound to Stop. R. S., c. 52, l 77.</p> <p>1. That a railroad company does not prosecute persons walking upon its railroad track between crossings and stations in violation of R. S., c. 52, sec. 77, does not authorize persons to so use its tracks.</p> <p>2. Persons walking upon railroad tracks are bound to apprehend that locomotives may be swiftly approaching at any time and are bound to be continually on the watch for them and to leave the track in season to avoid collision with them.</p> <p>3. Engineers running locomotives are not bound to stop, or even decrease the speed of the locomotive, merely because they see persons walking upon the track. They may ordinarily assume that such persons have made themselves aware of the approach of the locom&tive and will seasonably leave the track for its free passage.</p> <p>4. If such engineer makes all possible effort to stop the locomotive as soon as he has reason to believe that a person walking upon the track is in fact not aware of the approach of the locomotive, he is not guilty of negligence.</p> <p>5. In this case the engineer besides the customary whistles at crossings, ■ blew sharp warning whistles as he approached the plaintiff who was walking on the outside of the left rail. He also shut off steam but let the locomotive drift expecting the plaintiff would, at the last, step off out of the way of the locomotive. As soon as it became evident to him that the plaintiff might not do so, he did all he could to avoid running upon her but without avail. He was not guilty of negligence in not sooner apprehending she would not leave the track.</p>

On motion by defendant. Deal action wherein the plaintiff demanded against the defendant the possession of certain real estate situate in Auburn, Maine. The plaintiff also claimed rents and profits for the use of the demanded premises while in the possession of the defendant.

On exceptions by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant whose vehicle collided with that in which the plaintiff was riding, on a public street in Auburn. The testimony showed that the plaintiff, sixty-eight years of age, was riding in a light carriage with her husband, and that the horse was his. The husband, who was seventy-two years of age, was driving.

<p>In Equity. On report.</p> <p>Bill of interpleader to determine whether the amount of a life insurance policy, issued by the plaintiff company to Ellison G. Collamore should be paid to his estate, he being deceased, or to his brother, Charles H. Collamore. After the death of the said Ellison C. Collamore, the said Charles H. Collamore claimed that payment of the insurance policy should be made to him alleging that the policy had been assigned to him by the deceased in his lifetime, Thereupon the said Josie Collamore, widow of said deceased, and who was after-wards appointed his administratrix, brought a bill in equity to have the plaintiff enjoined from paying said insurance policy to said Charles H. Collamore pending the determination of the bill and decree thereon. An injunction was granted as prayed for in said bill. The said Charles H. Collamore also brought an action at law against the plaintiff to recover from it the amount of said insurance policy. The said Josie Collamore, after her appointment as administratrix of the estate of said deceased, likewise brought an action of law against the plaintiff to recover from it the amount of said insurance policy. Thereupon this bill of interpleader was brought. At the hearing on the bill of interpleader in the court of the first instance, the facts were submitted in the form of an agreed statement, and the case was reported to the Law Court with the stipulation that “upon so much of the agreed statement as is legally admissible” the Law Court to determine the rights of the defendants and make decree in accordance therewith.</p> <p>AGREED STATEMENT.</p> <p>On September 22, 1899, Ellison C. Collamore took out with the Northwestern Mutual Life Insurance Co. a tontine policy of insurance upon his life for the sum of fifteen hundred (1500) dollars, payable to his estate.</p> <p>At the time of taking out such insurance and at the time of his death he had living a wife and one son.</p> <p>Clause six of the policy provides “If this policy shall be assigned, a duplicate of the assignment shall within thirty days be given to the company, and due proof of interest shall be produced on making claim.”</p> <p>On March 6th, 1900, he signed an assignment of said policy recited to be in consideration of love and affection, running to Charles H. Collamore, his brother; but therein reserving to himself the right to make choice of options contained in the policy, and to receive the whole benefit thereof himself without the consent of the assignee; and in event of the death of the assignee before the policy became payable on account of the death of the insured, the same was to be payable to his estate.</p> <p>This policy and assignment was in the possession of the insured on January 6th, 1904, on which date he delivered a sealed envelope to Charles H. Collamore, which it finally turned out contained the insurance policy and assignment with some other papers; but the contents of the envelope was unknown to Charles H. Collamore until after the death of the insured.</p> <p>The insured died by his own hand on March 16th, 1904. Just prior to committing suicide the insured sent a letter to Charles H. Collamore, which was received after his death, in an envelope post marked March 16, and which letter read as follows:</p> <p>Rockport, Feb. 9, 1904.</p> <p>Well, Charles, as I shall not see you again I will send you this receipt, you will have it, show, and Joe cannot make enny trouble about it. I told Geneva that I would fix my board bilPon that note; I have fixed it by making the interest four per sent, and I thought that would satisfy you for what trouble and my board, and the trouble while I was with you. You will have the money to pay this note when you collect the Insurance, but don’t pay it toó fast, for they will spend it if you do; and you can take the interest on some of the other money and pay them their interest. You will know what I about the other money when you open the envelope I gave you. Don’t wait too long before you attend to it either. It is no need of me telling you my troubles for it will do you no good or me either, but I think that I am tired of living, ánd have been for the past three years, I cannot stand and strain enny longer, so I hope you will do all you can for Harry. I have fixed my things as I thought best for you and Harry and our sister, and I hope you will do what I have asked you to do, for I have left it as I thought best. I shall take a dose of poison which I have had ready for a long time, and hoping I will meet you all in a world where trouble never comes, Good bye.</p> <p>From your brother,</p> <p>E. C. Collamore,</p> <p>Rockport, Maine.</p> <p>In the sealed envelope, which after receiving the above Charles H. Collamore opened, was contained the two following letters, one of them in a smaller envelope:</p> <p>Rockport, Oct. 13, 1903.</p> <p>To Charles H. Collamore from E. C. Collamore:</p> <p>Charles:</p> <p>If enny thing happens to me I want you to collect my Life Insurance and divide it between yourself and Harry and your sister. Take Five Hundred Dollars for yourself; Five Hundred Dollars for Harry P. Collamore and the reast for your sister, Syreno A. Andrews. I want you to take care of Harry’s until he is 17 years old before you give him enny of it; then I want you to give it to him, or put it where he can get it, to finish his schooling with; don’t give it to all at one time so Joe can get it and go through with it. I want you to help him all you can; he is not to blame for what he has done, his mother is to blame for it all. You will have to use your own judgment about Syreno’s money; you will have to let her have a little at a time when she needs it the most. You will have to get her plaster for her when I am gone. Be shure and keep enough of her money to bury her when she’dies, for they will not have enough in the family. If there is enny of her money left when she dies you divide it between yourself and Harry. I have fixed your note so it will be four per cent interest. This is the last favor I shall have to ask of you and I want you to have me buried with mother, at West Rocksport.</p> <p>E. C. Collamore.</p> <p>Rockport, Jan. 31, 1904.</p> <p>Charles:</p> <p>You will notify C. R. Dunton, of Bangor Exchange, of my death, for he is the Insurance Agent for the North Western, and will see that you get the money that will fall due there. You use it as I have asked you to in the other letter I have left you. Be shure and do the best you can for Harry, and God will bless you.</p> <p>Good bye, from your brother,</p> <p>E. C. Collamore.</p> <p>Instructions in relation to the envelope, as given orally to Charles H. Collamore, were at different times said by him to have been as follows:</p> <p>“You keep it and if anything happens to me you open it,” and “Keep that; don’t open it unless something happens to me.”</p> <p>This was all of the communication made at the time of the delivery of the envelope and nothing further was said about the envelope or in relation to property matters after the delivery.</p> <p>Other envelopes had previously been left in a similar way; but the contents of envelopes so left were never known to Charles H. Collamore and might or might not have contained the insurance policy and assignment Charles H. Collamore had received, but drew the inference that said packages did contain these papers among other things; but no direct statement to that effect was made, and the packages held previously were returned to the insured.</p> <p>Prior to the death of the insured’s mother in 1899 the insured had been in the habit of giving her similar matters to keep for him.</p> <p>The insured was not indebted to said Charles H. Collamore, but on the other hand Charles H. Collamore was indebted to his brother for borrowed money, and is still indebted to his estate, he having given his note therefor.</p> <p>The assignment had no relation to any business transaction between the brothers.</p> <p>Josie Collamore, the widow of Ellison C. Collamore, was appointed administrator of his estate. Charles H. Collamore claims the insurance under the assignment in question. Josie Collamore claims to collect the same, as administratrix to be disposed of as provided by statute.</p> <p>On the bill decree was made that the money should be paid into court and the defendants were ordered to interplead, decree was complied with and each of the defendants in the bill of interpleader makes answer setting up their respective claims upon the facts above stated.</p>