Volume 101 — Maine Reports

<p>On exceptions by plaintiff.</p> <p>Money had and received to recover back money paid by the plaintiffs to the defendant. Previous to this action, the plaintiffs were sureties on a “poor debtor’s” bond, dated August 30, 1902, given ,by one George JR. Robinson, a judgment debtor, who had been arrested on execution, and on the 20th day of June, 1903, they, as sureties on said bond, paid to the defendant, who was then the legal owner of the judgment on which the execution was issued, Si90 in settlement of bond and execution, September 29th, 1903, the plain-' tiffs demanded of the defendant the return of the $190, so paid to him, and upon his refusal to return the money, this action was brought to recover it back. The action was heard at the October term, 1903, of the Supreme Judicial Court, Hancock County, before the presiding Justice with the right to except. The presiding Justice ruled that the defendant was entitled to judgment and ordered judgment accordingly. Thereupon the plaintiffs excepted.</p> <p>The case is fully stated in the opinion.</p> <p>Memorandum. One of the Justices sitting at the term of- the I jaw Court when this case was argued, did not sit in this case, being disqualified under the statute by reason of having ruled’ therein at nisi prius.</p>

<p> Written Contract. Waiver. Assumpsit. Evidence. </p> <p>A written contract may be waived either directly or inferentially and such waiver may be proved by express direction or by acts and directions manifesting an intent not to claim the supposed advantages; or by a course of acts and conduct, or by so neglecting and failing to act as to induce a belief that it was the intention and purpose to waive.</p> <p>Parol evidence of a subsequent waiver of any of the stipulations in a written contract, or of a right under such contract, is admissible even when such contract is under seal.</p> <p>When a written contract has been waived, an action of quantum meruit will lie for work and labor done. In the case at bar, the jury found and it is held that the written contract had been waived, and that the plaintiff's verdict must stand.</p>

<p>In equity. On report.</p> <p>Bill in equity to obtain the construction of the last will and testament of the Right Reverend George Burgess, D. D., late of Gardiner, deceased, who was the first (Episcopal) Bishop of the Diocese of Maine. This cause came on for a hearing on bill and answer at the April term, 1905, of the Supreme Judicial Court, Cumberland County, and the presiding Justice, with the consent of the parties, ordered the same to be reported to the Law Court for determination.</p> <p>The case appears in the opinion.</p> <p>WILL OF GEORGE BURGESS.</p> <p>“In the name of God. Amen. I, George Burgess, of Gardiner, in the County of Kennebec, in the State of Maine, being in health and in the possession, through God’s mercy, of all my, powers, but deeply conscious of my own frailty, and mindful of my liability to sudden removal, do make this my last will and testament, revoking, and intending to destroy, all previous instruments of the same kind, though substantially identical herewith.</p> <p>I commend my soul to the precious mercies of Almighty God, my heavenly Father, through our Lord Jesus Christ; beseeching him that, all my sins being washed away by the blood of the Lamb, and my whole spirit sanctified by the Holy Ghost, I may, unworthy as I am, be admitted by grace to the society of just men made perfect.</p> <p>Of my worldly estate, I give and bequeath the sum of Seven Thousand Dollars, being nearly that part of it which was not inherited from my father, to the Trustees of the Fund for the support of the Episcopate of the Diocese of Maine; to be duly invested, and the income thereof to be applied to the support of future Bishops of the said Diocese; and in the event of its division, to the support of that Bishop within whose Diocese the City of Gardiner may fall.</p> <p>The remainder of my property, real and personal, I give and bequeath as follows.</p> <p>I desire my dear brothers, Frederick Burgess and Alexander Burgess, to act as Trustees under my will; and it is my wish that no bonds should be required of them for the faithful execution of their trust.</p> <p>I appoint my dear brother, Alexander Burgess, Executor of this my will, and desire that no bonds may be required of him; and I give and bequeath unto, him all my theological books, except any which my dear wife may desire to retain.</p> <p>I give and bequeath to my dear wife, Sophia Kip Burgess, all other tilings in my house.</p> <p>I give the residue of my estate, real and personal, in trust, to my said brothers, Frederick Burgess and Alexander Burgess, with authority to sell, change and reinvest the same at their discretion ; and I hereby appoint that they shall hold the same in trust for my dear wife, and for my beloved daughter, Mary Georgiana Burgess, as follows;</p> <p>The whole income to be paid' to my dear wife, if she should survive and remain unmarried, till my daughter shall attain the age of twenty-five; and should my daughter be removed by death before that age-and without being married; then the whole income to be paid to my dear wife throughout her own lifetime:</p> <p>When my daughter shall attain the age of.twenty-five, the half of the income to be paid to her; and also to be held in trust for her and used for her benefit, should my dear wife at any time previous to her attainment of that age, be herself married a second time;</p> <p>Should my dear wife die before my daughter attains the age of twenty-five, the whole income to be held in trust for my daughter, and used in her behalf, till she attains that age; and then, to be «transferred to hér with the whole estate, and the Trust to cease;</p> <p>Should my dear daughter be married and depart this life before the age of twenty-five, leaving issue, then at her death the half of the estate hereby bequeathed to the said Trustees to become vested in such issue, if my dear wife should still be living; and if not, the whole to pass to such issue and the trust to cease;</p> <p>Should my dear daughter, married or unmarried, attain the age of twenty-five, half the income to be paid to her, and half to her mother, till the death of the one or the other; and then, and thereupon ;</p> <p>Should my daughter survive her mother, the whole estate to vest in her, and the Trust to cease; and</p> <p>Should my dear wife survive our daughter, she dying without-issue, the whole income to be paid to -my dear wife during her lifetime, and at her death, the estate to be divided into two equal parts;</p> <p>George Burgess, [l.s.]</p> <p>one of which shall be transferred to such charitable or religious purposes as she may direct, or, if she make no direction, then to the Trustees aforesaid of the Fund for the support of the Episcopate of tin; Diocese of Maine, to constitute a fund for the assistance of missionaries and other clergymen of the said Diocese, and to be applied under the direction of the Bishop and Standing Committee, especially for the relief of sick, infirm or aged clergymen in the said State, without regard to any division of the Diocese; and the other half to be divided equally amongst the grandchildren of my deceased father;</p> <p>Should my dear wife survive our daughter, she leaving issue, then at the death of my wife, the remaining half of the estate to pass to such issue, and the Trust to cease.</p> <p>In witness .whereof, I have hereunto set my hand and seal, this eighth day of January in the year of our Lord one thousand eight hundred and sixty-one; and also to another sheet, prefixed hereto, and forming a part of the same will and testament. Signed, sealed and published and declared as his last will and testament, by George Burgess, in our presence, who, in his presence, and in the presence of one another, have subscribed our names.</p> <p>George Burgess [l.s.]</p> <p>Robert Wireiamson</p> <p>WES Whitman</p> <p>Cus Daneorth</p> <p>I hereby append the following provision as a codicil to my last will and testament.</p> <p>It is my will that the house and land which I occupy at Gardiner should be a part of the legacy of Seven Thousand Dollars which I have bequeathed for the benefit of the Diocese, and should be estimated at not less than Four Thousand Dollars in making up the same; but that it should not be transferred, but should be the property of my wife, and, in the event of her decease, of my daughter, so long as either of them shall continue to occupy it as a residence. It is also my will that the mortgage to me from Emma J. Lord, if unpaid at the time of my decease, should be included in the said legacy, as a part of the payment of the same.</p> <p>In witness whereof, I have hereunto set my hand and seal, this twelfth day of March, in the year of our Lord one thousand eight hundred and sixty four</p> <p>Signed and sealed, and declared to be a codicil to his last will and testament, by George Burgess, in presence of us, who at his request, in his presence and in the presence' of each other, have subscribed our names as witnesses thereto”</p> <p>George Burgess (l.s.)</p> <p>Daniel Nutting</p> <p>William Cooper</p> <p>Nathan B. Norton.</p>

<p>On exceptions by defendant.</p> <p>Tlie defendant was indicted in the Superior Court, Cumberland County, May term, 1905, for keeping and maintaining a liquor nuisance. The agreed statement of facts shows that the defendant “ during the period covered by the indictment, was a citizen of the United States and a licensed victualer and kept a restaurant on India Street in Portland in said County of Cumberland, and was accustomed to keep in his restaurant, cider with intent to sell the same as a beverage, and that frequently during that period he there sold cider to be drank on the premises, and the same was so there sold and drank, but said cider was unfermented and non-intoxicating in fact. ”</p> <p>At the trial on this indictment, the defendant requested the presiding Justice to give the following rulings as matter of law :</p> <p>1. “If the respondent kept and maintained a place used for the sale, or keeping for sale for tippling purposes, or as a beverage, of cider, and where cider was kept’ and deposited with intent to sell the same for tippling purposes or as a beverage, he would not be guilty of maintaining a nuisance under the provisions of section one and two, chapter twenty-two of the Revised Statutes, unless such cider was in fact intoxicating, and the keeping and maintaining of such place used for the sale or for selling of unfermented, nonintoxicating cider only, would not constitute the crime of keeping and maintaining a nuisance.</p> <p>2. “If the provision of section one and two of-chapter twenty-two of the Revised Statutes are construed to apply to places or tenements where unfermented, non-intoxicating cider only is kept or deposited with intent to sell the same for tippling purposes or as a beverage they are to that extent null and void, because they are in violation of section one, article one of the Declaration of Rights in the Constitution of Maine.</p> <p>3. “If the provisions of section one and two of the Revised Statutes are intended to apply to places or tenements used for the sale or keeping for sale of unfermented, non-intoxicating cider only, for tippling purposes or as a beverage, or 'in which unfermented nonintoxicating cider only is kept and deposited with intent to sell the same for tippling purposes or as a beverage, such provisions are in violation of the provisions of the fourteenth amendment to the Constitution of the United States and are therefore to that extent null and void.”</p> <p>These requested rulings were refused, and a verdict of guilty was returned, and thereupon the defendant excepted.</p> <p>Also on the tenth day of April, 1905, the defendant was arrested on a warrant issued by the Portland Municipal Court which alleged that the defendant “on the ninth day of April, A. I). 1905, at said Portland, unlawfully did have in his possession a certain quantity of intoxicating liquor, to wit: two hundred and forty-six quarts of cider, kept and deposited with intent to sell the same for tippling purposes and as a beverage, with intent that the same be sold in this state in violation of law/’ etc. The defendant was found guilty by the Municipal Court as alleged in the warrant, and thereupon he appealed to the Superior Court. The material facts in this case are the same as in the above stated nuisance case. At the trial .in the Superior Court substantially the same instructions varied to suit the form of the proceeding were requested and refused as in the nuisance case, and the defendant was found guilty, and the defendant excepted.</p> <p>The case also appears in the opinion.</p>

<p>On exceptions by defendant.</p> <p>Search and seizure warrant issued by a trial justice in Hancock County for the search of a dwelling house for intoxicating liquors. Liquors were found, and the defendant was arrested and brought before the Hancock Municipal Court at Deer Isle for trial. The defendant was found guilty and appealed to the Supreme Judicial Court. A general demurrer was filed to the complaint and warrant which was overruled and the defendant took exceptions.</p> <p>The case appears in the opinion.</p>

<p>On exceptions by plaintiffs.</p> <p>Assumpsit on a written contract made by the plaintiffs and one I. C. Libby with the defendant, Elias Milliken. Libby died before the commencement of the suit, and the action was brought by the plaintiffs who are the surviving joint contractors. The defendant died after the action was brought, and his administrators duly appeared as parties defendant. Tried at the September term, 1903, of. the Supreme Judicial Court, Waldo County. Plea, the general issue. During the progress of the trial, the plaintiffs offered certain evidence which was excluded by the presiding Justice, and at the conclusion of the testimony the plaintiffs were nonsuited. Thereupon the plaintiffs excepted to the rulings of the presiding Justice n excluding the evidence offered by them and also to tb§ Older of nonsuit,</p> <p>The case sufficiently appears in the opinion.</p>

In equity. On exceptions by plaintiff. Bill in equity wherein the plaintiff prayed that a certain deed of warranty made, executed and delivered by him to the defendant might be cancelled, alleging that by a mistake on bis part, arising from bis ignorance of certain facts, he had included in such deed certain land to which he had no title at the time he gave the deed.

<p>On motion and exceptions by plaintiff.</p> <p>Assumpsit. Plaintiff alleged that she placed in the hands of the defendant, a real estate broker and investor of money on real estate security, $2,000 to be loaned to one McDonnell on a first mortgage of certain real estate in Portland, and that the contract made by the defendant with her was broken by the defendant and that she had suffered damage thereby. Plea, the general issue with a brief statement of accord and satisfaction. Tried at the April term, 1905, of the Supreme Judicial Court, Cumberland County. Verdict for defendant. Plaintiff then filed a motion for a new trial and also took exceptions to certain rulings made by the presiding Justice during the trial.</p> <p>The case is sufficiently stated in the opinion.</p>

<p> Amendment After Demurrer Sustained. Waiver. No Action by Corporation Stockholder, When. Stockholder may Proceed in Equity, When. Torts by Corporation Officers. </p> <p>When a plaintiff amends his writ, after a demurrer to it has been sustained, he waives the right to except to the ruling sustaining the demurrer.</p> <p>A shareholder cannot sue individually for damages caused by wrongful acts impairing the value of his shares through the invasion of the corporate or collective rights.</p> <p>In such cases, if the regular officers of the corporation are unable or unwilling to take the necessary steps to protect the corporate property and interests, a shareholder may proceed in equity on behalf of himself and other shareholders and the company.</p> <p>When the direct injury is not to the shares but to the corporate rights and interests, the right to share in the compensation which the corporation may recover passes to the transferee of the shares. A stockholder who, after such an injury, assigns his stock is in no better position to sue at law than if he had retained it.</p> <p>Notwithstanding the wrongful acts were done with the specific design and malicious and fraudulent intent of injuring the plaintiff, he can maintain ao actio a when lie lias sustained no loss in addition to that suffered by the corporation.</p>

<p>On exceptions by appellant.</p> <p>Appeal from the decree of Judge of Probate, Knox County,, refusing “ to grant letters testamentary as on the last will and testament ” of Harrington Osgood, late of Rockland, deceased, to the Supreme Judicial Court, sitting as the Supreme Court of Probate. The appeal was duly entered in the Supreme Court of Probate, and the appellees appeared and “ moved to dismiss the appeal because of the insufficiency of the reasons of appeal.” The appellant then moved to amend his appeal. “The presiding Justice held as matter of law the reasons of appeal insufficient and refused to allow the amendment, holding as matter of law the amendment could not be allowed.” To these rulings the appellant excepted.</p> <p>The case appears in the opinion.</p>

<p> Bill in Equity. Multifariousness. Enforcible Trust. Corporations. Fiduciary Relations of Promoters. Secret Profits. Treasury Stock. Interested Directors. Salaries. Authority of Corporation President. Unauthorized Issue of Slock. Accounting for Sale of Stock. Ratification. Trust Funds Changed Into Real Estate. </p> <p>1. A bill in equity which charges (1) that certain real estate was bought for the plaintiff corporation by its president, and was paid for in whole or in part with its funds, or with the proceeds of its stock unlawfully issued and sold, and not properly accounted for, and that its president fraudulently caused the real estate to be conveyed to his son, one of the defendants through whom several other defendants, but not all the defendants, have legal or equitable titles, which they should convey to the plaintiff, (2) that a part of the above defendants, and two other defendants, have unlawfully received'stock in the plaintiff corporation, which they should account for to it, and (3) that still another defendant has unlawfully received and sold the stock of the plaintiff, in part, at least, other than that mentioned in the preceding class, for the proceeds of which he should account to it, is bad for multifariousness.</p> <p>2. An enforcible trust in lands purchased by the president of a corporation with his own money, Or with money which he supposed belonged to him, was not created in this case for the benefit of the corporation, though it had authorized him to act for it in the purchase of real estate, and though he may have intended ultimately to sell the land to the corporation.</p> <p>3. Promoters of a corporation stand in a fiduciary relation to the corporation and to its subscribers for stock, and to those who it is expected will afterwards buy stock from the corporation. If they undertake to sell their own property to the corporation they are bound to disclose the whole truth respecting it. If they fail to do this, or if they receive secret profits out of the transaction, the corporation may elect to avoid the purchase, or it may hold the promoters accountable for the secret profits.</p> <p>4. Treasury stock in a corporation which is issued to trustees whose duty is immediately to return if.to the corporation is still treasury stock.</p> <p>5. Directors of a corporation have no authority to act for the corporation in matters in which they themselves are interested.</p> <p>(5. Directors of a corporation cannot vote salaries to themselves. Nor can they vote a salary to one of their number as president at a meeting where his presence is necessary to a quoruni. . ¡ ; »</p> <p>7. The president of a corporation has no implied authority to sell its treasury stock. Nor, in the absence of a valid vote of a quorum of disinterested directors can he cause treasury stock to be issued to himself in payment of the corporation’s debt to him. ' *</p> <p>8. The unauthorized issue of 'treasury stoclc to the president in such a case conveys no rights to him as against the corporation. He is regarded as holding the stock in trust for the corporation, and if he sells it, the proceeds in his hands .are impressed with the same trust, and may be followed into Ms-estate, so long as distinguishable.</p> <p>9. An officer of a corporation’, employed on a salary, to sell its stock for the benefit of the corporation, cannot charge it to himself, or account for it at an arbitrary price, when sold, and pocket the surplus, if any. He must truly account for the whole price received. The whole amount received belongs to the corporation and in his hands is trust money, which the corporation may follow.</p> <p>10. A vote of stockholders “ that all acts of the directors and officers be hereby ratified and approved ” is held not to be effective in this case, to ratify the unauthorized and illegal voting of salaries by directors to themselves, or the unauthorized and illegal issue of treasury stock by the president himself, when it does not appear that the stockholders generally had any knowledge of the transactions. Knowledge by stockholders of such transactions is not to be presumed.</p> <p>11. When trust funds of a personal character have been changed into real estate they can be followed, and the rights of the cestui que trust can be maintained, if the rights of third parties have not intervened.</p> <p>32. In this case it is held that the proceeds of treasury stock unlawfully issued to the president of the plaintiff corporation and sold by him, and the proceeds of treasury stock lawfully issued and sold by him so far as not accounted for, are traced $3,000 info the Sagamore farm, and $1,000 into the Sherman farm, mentioned in the bills, and are charges upon those farms respectively, so far as concerns the interests of such defendants as have no other or greater rights than William D. Lewis would have had, had he purchased those farms in his own name.</p>

<p>On exceptions by plaintiff.</p> <p>Action on the case to recover damages for personal injuries suffered by the plaintiff and caused by the alleged negligence of the defendant. Plea, the general issue. After the completion of the plaintiff’s evidence at the trial, and upon the defendant’s motion, the presiding Justice ordered a nonsuit, and thereupon the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>The first suit was an action of assumpsit on account annexed, based upon a written contract, to recover the balance due and interest thereon for automatic water-wheel governors and other appliances sold and delivered by the plaintiff company to the defendant company. The writ also contained a count for “goods bargained and sold,” also a count for “ labor aud materials,” also an “ omnibus count ” of the common form, also a special count for interest, and also a count founded upon the written contract. Plea, the general issue.</p> <p>The second suit was an action on the case brought as a cross action for the recovery of damages alleged to have been sustained by the plaintiff company named therein from the alleged insufficiency of the appliances which were the subject of the contract in the first action, and the alleged negligence of the defendant company in attempting to install the same. Plea, the general issue.</p> <p>Both actions were tried together at the October term, 1903, of the Supreme Judicial Court, Cumberland County. After the evidence upon both sides in these two actions was concluded, it was agreed that both actions should be reported to the Law Court “ for that court to pass upon and determine all questions of law and fact involved, including all questions of damages, and to order such judgments in the two cases as the respective rights of the parties may require,”</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Assumpsit upon a fire insurance policy of the standard form issued to the plaintiff by the defendant company, to recover for loss of hay, sleighs and carriages by accidental fire. This policy was a renewal of the original policy issued by the defendant company through one of its agents, Col. Henry R. Millett, and this renewed policy was issued through Col. Millett’s successor as agent of the defendant company. Plea, the general issue. Tried at the April term, 1904, of the Supreme Judicial Court, Cumberland County. At the conclusion of the testimony “and in accordance with the written stipulations of the parties” the case was reported “for the determination of the Law Court.”</p> <p>In relation to the “compulsory arbitration” clause contained in the policy, the averments in the plaintiff’s writ and declaration are as follows: “And the plaintiff further avers that there is a provision in said policy which is as follows, to wit: ‘ In case of loss under this policy and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be-referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected by the two so chosen; the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference unless waived by the parties shall be a condition precedent to any right of action in law or equity to recover for such loss; but no person shall be chosen or act as referee, against the objection of either party, who has acted in a like capacity within four months.’</p> <p>“And the plaintiff further avers that, pursuant to said provision, he endeavored to have his loss determined by three disinterested men, and for that purpose, on the twenty-fourth day of December, A. D. 1903, submitted to said defendant company the names of three persons, all living in said Gorham, to wit, Harry W. Wilshire, Harry Day and Frank F. Johnson, one of whom said company could choose as one of the referees, and requested said company to submit to him the names of three persons, one of whom he would choose, and the two so chosen to choose the third, and that said defendant company utterly refused so to do and thereby prevented the plaintiff from having his loss or damage determined in accordance with said provision.”</p> <p>The case is stated in the opinion.</p>

On motion for new trial by plaintiff. Assumpsit for money bad and received to recover money alleged to have been paid under a mistake. Tried at May term, 1904, of the Supreme Judicial Court, York County. Plea, the general issue. Verdict for defendant. Plaintiff then filed a general motion for a new trial. The case is stated in the opinion.

<p>Real Action. Recorded Deeds. Title. Directed Verdict. No Exceptions. Adverse Possession. Constructive Disseisin.' R. S., c. 106, § 38.</p> <p>1. As between two titles by recorded deeds of real estate, the older is' the better title.</p> <p>2. When in a real action a verdict is directed for one party as to part of the land demanded in the action and the other party does not except, the verdict as to that part of the land will be assumed to be required by the •evidence.</p> <p>3. When an entry is made upon a specific lot of land (not being a wood lot pertaining to a farm under E. S., chapter 106, section 38) and a part is occupied without any recorded claim of title, a title gained by such occupation is limited to the part actually occupied ; but when such entry and occupation are under a recorded deed of the whole lot showing- a claim of title by record to the whole lot, a title gained by such occupation extends over the whole lot described in the deed, in the absence of controlling circumstances to the contrary.</p> <p>i. The above rule of constructive disseisin was in force prior to the enactment of the statute It. 8., chapter 106, section 38, and is not limited by statute. It is not limited to farms and wood lots attached to farms.</p> <p>5. In this case a lot of 110 acres was entered upon and a part occupied under a line of recorded deeds of the whole lot. The occupation of the part was found by the jury to be of sufficient character and duration to constitute a title by disseisin to that part. There were no fences or other boundaries between that part and the rest of the lot. Held: that the title acquired by disseisin covered the whole lot.</p>

On report. Action of debt brought by the plain till to recover certain sums alleged to be due him under a written contract under seal for the building of an electric railway, the work under which contract had been abandoned by the plaintiff before its completion. The plaintiff declared in debt by two counts, one based on the items of an account annexed, and the other for goods bargained and sold, money lent, money paid, money received and money due upon an account stated.

On report. Action of debt to' recover taxes assessed against the defendant by the City of Augusta' for the municipal years of 1904 and 1905. The facts Were agreed upon by the parties and the case reported to the Law Court.' The case is stated in the opinion. '

In equity. On exceptions by defendants. Exceptions to the ruling of a single justice affirming, on appeal therefrom, a clerk’s taxation of costs in an equity proceeding. The case is fully stated in the opinion.

On exceptions by defendant. Indictment against the defendant, Ardenis Shuman, as treasurer of the town of Union, for the crime of embezzlement. To this indictment the defendant demurred, with leave to plead over. The demurrer was overruled, and the defendant excepted.

On report. Search and seizure process. On the ninth day of August, A. D. 1905, one of tlie deputy sheriffs of Cumberland County made complaint before the Municipal Court for the city of Portland in accordance with the provisions of section 49 of chapter 29, JR. 8., that he had reason to believe that Charles C. Douglass, who was the then duly appointed and qualified liquor agent of the city of Portland under section 26 of said chapter, had in his possession certain…

On exceptions by plaintiff. Action on the ease to recover damages alleged to have been sustained by the construction and operation of the defendant’s street railway on Church street- in Oakland. The plaintiff was a regular practising physician in said Oakland and whose residence and place of business was on said Church street. At nisi prius the plaintiff moved to amend his declaration and his amendment was allowed.

On motion and exceptions by defendant. Trespass for a personal assault alleged to have been committed by the defendant upon the plaintiff. Plea, the general issue with a brief statement that whatever the defendant did “ he did in self defense.” Verdict for plaintiff for $205.00. Defendant filed a general motion to have the verdict set aside, and also excepted to certain rulings made by the presiding Justice during the trial. The case is stated in the opinion.

<p>On report.</p> <p>Assumpsit on account annexed to recover assessments and tolls made by the plaintiff company on the defendant’s logs for driving the same in the spring of 1900, from Jellerson boom, so called, on the Mattawamkeag Biver to their places of destination.</p> <p>The main contention, was whether or not the defendant’s logs were driven in the first Mattawamkeag drive, so called, or in the second Mattawamkeag drive, so called. In the year 1900, the assessments for driving logs in the first drive, together with the tolls thereon, amounted to 42 cents per thousand feet boom scale, while the assessment and tolls for logs in the second Mattawamkeag drive of that year amounted to 47 cents per thousand feet boom scale.</p> <p>The case was reported to the Law Court on an agreed statement of facts.</p> <p>The case fully appears in the opinion.</p>

In equity. On report. .Bill of interpleader brought by the Bath Savings Institution against the defendants to determine the ownership of a deposit of $1019.33 in that bank wliioli deposit bad been made by Jane Cruiksliank, the deceased testate of the defendant Fogg who as executor of the last will and testament of the deceased claimed the deposit. Elizabeth Hilliard, a sister of the deceased, also claimed the deposit.

In equity. On report. Bill in equity praying for a determination of the respective rights of the owners of a water power developed by the Coombs Mills dam on the Messalonskee stream in Oakland, Kennebec county, and for an injunction. Heard at the October term, 1904, of the Supreme Judicial Court, Kennebec county.

Ou exceptions by plaintiff. Trover brought to recover the value of a piano belonging to the plaintiff and alleged to have been converted by the defendant to her use. Plea, not guilty.

<p>Real Estate. Execution Sale. Not Invalidated, When. Unauthorized Fees of Officer. Errors of Clerk Issuing Execution. Final Process Amendable. Power of Court, Suo Motu, to Order Amendments. Amendments Treated as Made, When. R. S., 1883, c. 82, , ' § U2. R. S. c. 78, § 32.</p> <p>An execution sale of the whole of a parcel of real estate conveys all the right, title and interest, of every nature, that the debtor has, and is not invalidated by the fact that he owns only an undivided interest in the land.</p> <p>Such sale is not avoided by the fact that the officer making it taxed, and caused to be satisfied by the sale, fees not authorized by law.</p> <p>When through an error of the clerk an execution commanded the officer to collect interest from the time of judgment, instead of from thirty days thereafter, the time fixed for payment in the decree, it will not be avoided, and the proceedings based upon it invalidated, if there is sufficient in the execution, taken in connection with other facts, to identify it with the judgment offered in evidence to support it.</p> <p>Final as well as mesne process may be amended in the furtherance of justice, when no rights of innocent third parties have intervened except those « which will be protected by the amendment.</p> <p>The court suo motu may order such amendments to be made ; and in collateral proceedings where such amendments are allowable, they will be treated as actually made.</p>

Oil report. Real action to recover parts of two lots of land in an unincorporated township, No. 3, R. 2, B. K. P., known as Jerusalem Township, in Franklin County, and sent to the Law Court on report. The land sued for had been sold for non-payment of a tax assessed for repairing county roads in the unincorporated townships and tracts of land in Franklin County, and the defendant was the purchaser at the tax sale.

On exceptions by plaintiff. Real action to recover part of a lot of land in the town of Winthrop, upon which a former school district had built its schoolhouse and which was afterwards taken over by the town. The ease was heard by the presiding Justice without a jury, each party having reserved the right of exception. The presiding Justice found for the defendant and the plaintiff excepted.

On motion by defendants. Assumpsit to recover a balance of $418.88 alleged to be due on a quantity of logs sold by the plaintiff to the defendants June 1, 1898. Plea, the general issue. Tried at the April term, 1904, of the Supreme Judicial Court, Washington County. The defendants admitted that they owed the amount sued for, $418.88 with interest from June 1, 1898, unless they could prove payment.

On exceptions by plaintiff. Action on the case brought by the plaintiff, as assignee of 'the estate of Clarence E. Lombard, to recover damages for the alleged interference of the defendants with the plaintiff’s management of the trust property passing to him by virtue of the assignment made to him by said Lombard, by attachment and subsequent seizure of the assigned property.

On exceptions by plaintiff. Libel for divorce beard by the Justice of the Superior CourtKennebec County, in vacation witli the understanding and agreement that eacli party should have all the rights of exception as if the ease had been heard in term time. The charge in the libel was failure to support and cruel and abusive treatment.

On report. Action brought by the plaintiff town to recover the expenses incurred by it in committing to the Insane Hospital at Augusta one Grace E. Farnham, an insane person, whose pauper settlement was alleged to be in the defendant town, and also to recover the sums paid by the plaintiff town for the support of the said Grace E. Farnham in said Hospital. The said Grace E. Farnham was twice committed to said Hospital.

On motion and exceptions by defendant. Assumpsit on a promissory note given by the defendant to the plaintiff in payment of a pair of oxen sold by the plaintiff to the defendant, brought in the Superior Court, Kennebec County.

<p>In Equity. On appeal by plaintiff. Sustained.</p> <p>Bill in equity brought by Edwin O. Clark as administrator of Joseph Clark nto restrain and enjoin the prosecution of an action at law brought in name of Chas. K. Miller, Judge of Probate for Knox County, for the benefit of Chas. E. B. Chase and Ashur H. Chase, on guardian’s bond of John C. Weston against said Clark as administrator of estate of Joseph Clark one of the sureties on Weston’s said bond. The defendants filed a general demurrer to the bill.</p> <p>Hearing had on bill and demurrer at the April term, 1905, of the Supreme Judicial Court, Uuoolti County, The Justice of the first instance, after the hearing, entered the following order: “Demurrer sustained pro forma for the purpose of having the Law Court determine the legal questions involved. Bill dismissed.” Thereupon a decree according to the order was filed. The plaintiff seasonably appealed, and the appeal was brought to the Law Court “to have legal questions first settled, and for this purpose by agreement.”</p> <p>All the material facts are stated in the opinion.</p>

On exceptions by plaintiff; Action on the case to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant company, and alleged to have been caused by the negligence of the defendant company. Plea, the general issue. Verdict for defendant. At the trial, the plaintiff offered certain evidence which was excluded, and thereupon the plaintiff excepted. The case is stated in the opinion.

On motion by defendants. Assumpsit on a joint promissory note given by the defendants to the plaintiff. The note reads as follows : “$8000 Feb. 11, 1902. . On demand after date we promise to pay to the order of Mary H. D. Tuttle three thousand dollars at — with interest at 6 per cent, per ánnum payable every three months. Value received. George Á. Tuttle Company By George A. Tuttle, President.” Written on the back of the note is the following: “George A. Tuttle.

On report. Assumpsit in which the plaintiff sought to recover of the defendant company, under a policy of insurance of the standard form, the sum of $1400 as insurance on his frame building with , brick boiler-house addition, situated in Calais, Me., and used for storage of non hazardous, merchandise and $300 as insurance on machinery, belting, shafting, gearing and tools, boilers, engine and connections, pipes and piping, contained in said frame building and boiler-house,…

On exceptions by defendant. The defendant was indicted for libel at the April term, 1905, of the Supreme Judicial Court, Lincoln County.

On report. Three actions of assumpsit to recover damages for an alleged breach of a contract made by the defendants’ intestate, Isaac C. Libby, with the plaintiffs in each of the first two cases and with the plaintiff’s intestate in the third case. These three actions were hoard together at the April term, 1905, of the Supreme Judicial Court, Waldo County. The plea in each of these actions was the general issue with the following brief statement : “ 1.

On motion and exceptions by defendant. Action on the case brought by the plaintiff to recover damages for inju’ries sustained by her by reason of the flowing back into the cellar of her house of the water and sewage in a certain public sewer in the defendant city, known as the Davis Brook sewer, with which the premises occupied by the plaintiff were properly connected. The verdict was for the plaintiff for $192.60, and the defendant filed a.motion fqr a new trial.

On exceptions by defendant. Two actions tried at the same term of the Supreme Judicial Court, Kennebec County, and heard together at the Law Court. The first suit was an action of debt on a judgment recovered by one A. A. Robbins at the March term, 1899, of the Supreme Judicial Court, Kennebec County. The plaintiff sued under an assignment from said Robbins.

<p>Judgments. Set-Off. R. 8., c. 84, § 77; c. 86, § «7. .</p> <p>An administrator cannot offset against a judgment rendered upon a liability of the decedent another judgment on a claim with which the decedent has no connection in his lifetime purchased by the administrator with the funds of the estate for that purpose after the death of his intestate.</p> <p>It is an established rule in courts of law if executors sue for a debt created to' them since the testator’s death, the defendant cannot set off a debt due to him from the testator. If the defendant could not set off in such a case neither could the executor, if he was the defendant, for the rule must be mutual.</p> <p>It is provided by section 77 of chapter 84 of the Revised Statutes as follows : “In actions against executors, administrators, trustees or others in a representative capacity, they may set off such demands' as those whom they represent' might have set off in actions against them; but no demands, due to or from them in their own right, can be set off in such actions.” The judgments which the defendant asks to have set off against the judgment in the case at bar were awarded to the defendant in his individual capacity, and by the express terms of the statute these judgments could not have been get off against the plaintiff’s note in suit before judgment and neither can the executions on these judgments be set off under the provisions of section 27 of chapter 86 of the Revised Statutes since the creditor in one is not the debtor in the other, “ in the same capacity and trust.”</p> <p>See Hayes, Admr., v. Rich, ante.</p>

On exceptions' transmitted to the Chief Justice. Cases ordered to be returned to the Clerk of Courts, Waldo County, to be certified by him to the Law Court. The defendant was convicted in thirteen criminal cases against him, at' the same term of the Supreme Judicial Court, Waldo County. In each of these cases the defendant filed a motion in arrest of judgment.

On motion and exceptions by defendant. Action on the case to recover damages for personal injuries suffered by the plaintiff July 22, 1903, at Oakland, Maine, by having his left hand crushed beneath the wheels of one of the defendant’s street cars, and which injury was caused by the alleged negligence of the defendant. The injury to the hand was such that it had to be amputated.

On exceptions by plaintiff. Petition under Eevised Statutes, chapter 106, section 47, asking that the defendants, Albert H. Libby, Ann G. Kimball, Henry Adamson, Clara E. Anderson, Arthur S. Anderson, Robert H. Anderson, Wilbur A. Anderson, the Town of Falmouth and persons unknown, “ claiming either individually or as citizens or. residents of said Town of Falmouth, or as members of the public,” be summoned to show cause why they should not bring an action to try their claim…

On exceptions by defendant. Writ returnable to and entered at the April term, 1904, of the Supreme Judicial Court, Knox County. Defendant’s real estate had been attached upon this writ, but no service of the writ was made upon the defendant before entry at the return term.

On exceptions by defendant. Complaint made by Charles JB. Sherman, a private person, to C. H. Fisher, a Lincoln County Trial Justice, against the defendant for having in his possession fourteen cooked lobsters each less than ten and one half inches in length measured in the manner prescribed by statute.

On report. Real action to recover two parcels of land in the town of Strong, Franklin County. The defendant seasonably disclaimed part of the first parcel and afterwards by an amendment to its pleadings added the following thereto by way of brief statement: “ 1.

On report. Action on the case by the plaintiffs who are husband and wife to recover damages against the defendants, William H. Douglass, Ida Douglass and Emerline Stafford, for enticing one Lettie M. Taber, a minor of the age of fifteen years, to leave the plaintiffs’ home and service. The minor is not the daughter of the plaintiffs by birth but it is alleged that she was legally adopted by them by virtue of a decree of the Probate Court, Kennebec County.

<p>Telephone Companies. Negligence. Guy Wires. Lightning. Evidence. Exercise of Due Care. R. S., c. 55, §§ 17, B3.</p> <p>The plaintiff recovered a verdict of 8804 for the destruction of her barn and its contents by fire alleged to have been caused by the negligence of the defendant company in the construction and maintenance of its telephone line past the plaintiff’s premises on the west side of the highway in the town of Avon. One of the defendant’s poles upon which its line wires were suspended, was erected within about five feet of the northeast corner of the plaintiff’s barn, and a guy wire consisting of a piece of ordinary telephone wire was stretched from the pole to the corner of the barn. There was no lightning arrester, or other appliance connected with this guy wire or with the telephone wires in that vicinity, to divert powerful currents to the earth at the time of thunder storms. Immediately before the fire, a thunder shower came up in the vicinity of the plaintiff’s buildings and there was a discharge of lightning of extraordinary violence. A board on the corner post of the northeast corner of the barn was newly split from a point a little above where the guy wire was attached downward nearly to the sill. When first seen the fire was in this corner of the barn directly beneath the point where the guy wire was connected with it, and there was no indication that the barn was struck by lightning at any other point. The plaintiff’s theory in substance was that a fragment of the lightning struck the telephone wires near by and that an electric current was eventually conducted by means of the guy wire to the corner of the barn which was thus ignited. The defendant’s theory was that the barn was destroyed by lightning which descended directly from the clouds and communicated the fire without the intervention of any of its telephone wires. Expert evidence in support of both theories was offered and admitted.</p> <p>In view of the admitted limitations of human knowledge respecting the laws of electricity and the immeasurable potential of a lightning discharge, the opinions of electricians in regard to its possibilities in a given case cannot be adopted with the same confidence as expert opinions based upon knowledge of the more exact sciences ; and in view of the manifest effects of the lightning upon the telephone poles and the corner board of the barn in the case at bar, Held: that the evidence warranted the jury in following the conclusion of those experts who believed that the destructive spark was conveyed to the corner of the barn by the telephone wires, in preference to those who testified that the barn was struck by a branch of a lightning bolt discharged directly from the clouds.</p> <p>If the plaintiff’s theory is correct that it was not safe or suitable construction to connect the guy wire with the barn without a lightning arrester or circuit-breaker, then the evidence warranted a finding by the jury that the defendant company did not exercise reasonable and ordinary care in establishing its line at the point in question.</p> <p>If the defendant’s theory is correct that it is utterly impracticable to divert lightning currents from such a wire to the earth by means or any insulators or circuit-breakers hitherto devised, it cannot be said to be manifest error on the part of the jury to find that such wire should not have been attached to the barn at all, and that in making such a connection, the defendant, if possessed of scientific knowledge to sustain its theory, did not act with proper regard for the rights of the plaintiff and the safety of her property.</p> <p>The defendant was not obliged by law to guarantee the safety of its system under all possible conditions and circumstances, but it was required to exercise that due and ordinary care which the present state of scientific knowledge, as well as common observation of the nature of electricity and the enormous power of lightning would suggest as reasonably necessary for the protection of life and property along its line.</p>

<p>In equity. On appeal by defendant.</p> <p>Bill in equity brought by the plaintiff, one of the beneficiaries of a trust created by the last will and testament of Mary N. Lord, late of Guilford, deceased, the mother of the plaintiff, against the defendant who is the trustee under said last will and testament, praying that the trustee might be directed to pay to her the sum of three hundred dollars which she had demanded of the trustee, and there- . after pay to her from time to time such other and further sums as the plaintiff in her judgment might deem necessary for her comfortable support and maintenance.</p> <p>The cause was heard on bill, answer and proofs at the September term, 1904, of the Supreme Judicial Court, Piscataquis County. After the hearing, the justice of the first instance “ordered adjudged and decreed® that the plaintiff’s bill be sustained without costs; and that said defendant be directed to pay to said plaintiff from the estate of Mary N. Lord, the sum of three hundred dollars within sixty days from the date thereof, and that thereafter, he pay her such further sums, from time to time, from said estate, as the plaintiff in her judgment may need for her comfortable support and maintenance.”</p> <p>From this decree, the defendant appealed to the Law Court as provided by section 22 of chapter 79 of the Revised Statutes.</p> <p>The case fully appears in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>Assumpsit on a promissory note given by the defendant to the firm of Clark, Gardner & Pattangall, and reading as follows:</p> <p>“'$400.00 ‘ ' Machias, Me., Aug. 19, 1899.</p> <p>“Six months after date, I promise to pay to the order of Clark, Gardner & Pattangall four hundred dollars at any Bank in Machias, value received.</p> <p>Wm. C. Holway.”</p> <p>The facts relating to this note and the proceedings in connection with the same, as shown by the bill of exceptions, are as follows:</p> <p>“The note is one of three notes of similar tenor, of same date, and for like amount, given by defendant to the payees in partial payment of logs and lumber purchased by him of them, the aggregate amount of the transaction being $6700.00. The three notes were, on the day of their date, distributed among the individual partners, each taking one of the notes as his individual property. The two notes transferred to Gardiner and Pattangall were paid at maturity, but Clark held his until his death and this is the note now in suit.</p> <p>“The actual quantity of the logs and lumber being undetermined at the time of the sale, an estimate was made by the parties and payment made based on said estimate, the vendor firm giving defendant a written guaranty that the quantity would hold out to the estimate so made, and agreeing to repay him for any deficit that might be found therein.</p> <p>“The writ is dated Sept. 20, A. D. 1901, and the action was entered at the ensuing October term of this court for Washington County; at the January 1902 term, William M. Nash was appointed auditor, and upon motion of plaintiff’s counsel, defendant was ordered to file his plea and specifications of defense by March 8, A. D. 1902. At said term, defendant filed a stipulation that he would not claim to recover of plaintiff under the aforesaid guaranty as set out in his specifications, more than one-third of the amount of any deficit that might be found in aforesaid estimate. The order of court was substantially complied with by defendant filing plea of the general issue and specifications of defense on March 18,,A. D. 1902. The case was thence continued from term to term until October 1905 term, when the auditor’s report was filed. The auditor found that defendant was indebted, to plaintiff for the full amount of the note and interest, the amount being $449.93, but found that the quantity of the logs and lumber purchased of the firm by defendant fell short of the estimate, the shortage amounting in value to $2039.40.</p> <p>“At said October 1905 term, hearing was had by the presiding Justice without the intervention of a jury, and the court ruled that plaintiff could not recover because of failure of consideration of the note in suit, and found for defendant on that ground. The question of failure of consideration was not raised by the defense, or suggested in any way in the trial of the ease. To the ruling of the presiding Justice, the plaintiff seasonably excepted.’’</p> <p>The brief statement filed by the defendant was as follows: “And for brief statement defendant further says that the plaintiff’s action is based upon a promissory note given by the defendant to the plaintiff’s intestate, as part payment for certain personal property which the plaintiff’s intestate sold to the defendant on August 18, 1899; that said property consisted in part of certain lots of logs which were estimated in said sale as follows: hemlock logs estimated in amount at 75 M feet, valued at six dollars per M feet; spruce logs estimated in amount at 227 M feet, valued at eight dollars per M feet; pine logs estimated in amount at 200 M feet, valued at 7.50 per M feet, making a total value of logs thus sold of $3766.00: That plaintiff’s intestate guaranteed that said estimates were correct, and by an indenture entered into by him, on the said 18th day of August A. D. 1899, agreed to pay to the defendant an amount sufficient to satisfy him for one-third of any deficiency that might exist if the.logs thus sold failed to equal in amount the aforesaid estimate: And the defendant further says that instead of receiving from the plaintiff 75 M feet of lumber, he in fact received 36,349 feet of hemlock, and that instead of receiving 227 M feet of spruce, he in fact received 74,146 feet of spruce, and that instead of receiving 200 M feet of pine, he in fact received 68,220 feet of pine, all of which logs thus received at the valuation fixed by the agreement aforesaid were of the total value of $1342.91, leaving a deficiency, to be accounted for of $2423.09, for one-third of which the plaintiff’s intestate became liable so that the defendant claims that there was due him from the plaintiff’s intestate at the time of bringing of the plaintiff’s action and is still due him, the sum of $807.69 which the defendant presents in set off to the claims of the plaintiff.”</p>

<p>Habeas Corpus. Prisoner Discharged. Exceptions Do Not Lie. Statute 1906, c. L31, Statute 1905, c. 134. P. S., c. 79, § 55\ c. 101.</p> <p>Exceptions do not lie to the discharge of a prisoner upon habeas corpus, whether the person discharged had been previously restrained of his liberty in civil or criminal proceedings.</p>

<p>On exceptions by defendant.</p> <p>Assumpsit on an agreement alleged to have been made by the defendant’s intestate, Samuel Haines, late of Saco, with the plaintiff, and brought at the September term, 1904, of the Supreme Judicial Court, York County.</p> <p>On the 25th of January, 1905, while the action was pending, the plaintiffs attorneys, Cleaves, Waterhouse & Emery, wrote the defendant’s attorneys, Symonds, Snow, Cook & Hutchinson, a letter which letter the defendants’ attorneys claimed and contended was in substance a statement that the plaintiff’s claim upon which this action was brought, had been assigned by the plaintiff. Thereupon at the May term, 1905, of said court, the defendant filed a motion “that the name and place of residence of such assignee be endorsed on the writ in said action, or that further proceedings therein shall be stayed under and in pursuance of the provisions of section 144 of chapter 84 of the Revised Statutes.” After the hearing on this motion, the presiding Justice overruled the same “and refused to direct either that the name and place of residence of an assignee be endorsed on the writ or process in said action, or that further proceedings thereon be stayed,” and thereupon the defendant excepted.</p> <p>The case sufficiently appears in the opinion.</p>

<p> Negligence. Contributory Negligence. Assumption of Risk. </p> <p>1. Where the evidence does not show that the thing which caused the injury to the plaintiff was under the management or exclusive control of the defendant corporation, negligence is not to be presumed from the accident itself.</p> <p>2 The fact that a plaintiff is zealous in the performance of his duty does not excuse him from taking precautions for his own safety.</p> <p>3. The owners of a caisson contracted with a towboat company to tow it from the Kennebec River to the Portsmouth Navy Yard, and provided it with a chock at the bow with which to fasten and adjust a hawser for towing, approved by the plaintiff who was an experienced rigger and seaman and who was directed by them to take charge of the tow, held, that the owners of the tugs were not responsible for an injury caused by the insufficiency of the appliance, or ¡the management of that end of the hawser.</p> <p>4. The plaintiff by taking charge of the caisson while it was being towed assumed the risks incident to his employment.</p> <p>5. It was negligence for the plaintiff to stand unnecessarily within the bight of the line attached to the tow.</p> <p>6. It was not negligence for those in charge of the tugs to do what was ndcessary to regulate the course of the tow in the channel, even if it subjected the appliance to which the hawser was attached to unusual strain ; and the captain had a right to exercise his judgment in adopting the method of proceeding with one tug before the other, with the hawser attached to the bow of the caisson.</p>

<p>On exceptions by principal defendant.</p> <p>Assumpsit on account annexed to recover the sum of $16.80. The action was commenced by a trustee writ issued by the Dover Municipal Court, in Piscataquis County, dated Sept. 22, 1904. On the return day of the writ the principal defendant filed a plea in abatement to the writ, the material part of which said plea is stated in the opinion. The plaintiff demurred to the plea and the demurrer was sustained and the plea adjudged bad.</p> <p>Also on the return day of the writ the trustee filed its disclosure making general denial that it had in its hands and possession goods, effects or credits of the principal defendant, and in answer to interrogatories made further disclosure in the nature of a plea in abatement affecting the jurisdiction of the court, the material part of which said disclosure appears in the opinion. To this disclosure the plaintiff filed an answer in the nature of a demurrer, the material part of which also appears in the opinion. At the time of the service of the writ upon the trustee there was due from it to the principal defendant $31.50 as wages. The judge of the Municipal Court ruled that the trustee must raise the question of jurisdiction by plea in abatement, and not by way of answer in its disclosure, and charged the trustee for the amount disclosed less its costs.</p> <p>To the aforesaid rulings sustaining the demurrer to the plea in abatement, and that the trustee must raise the question of jurisdiction by plea in abatement and not by way of answer in its disclosure, the principal defendant excepted, and in accordance with the provisions of section 17 of chapter 507 of the Private and Special Laws of 1899, these exceptions were duly entered in the Law Court for determination.</p> <p>All the material facts appear in the opinion.</p>

<p> Skowhegan and Bloomfield. Phrase “As Now Constituted” in P. & L. Lates, 1861, o. 24, Construed. Town Meetings. Same and Votes Passed, held Legal. Privóle and Special Laws, 1861, c. 24. </p> <p>The present town of Skowhegan was incorporated in 1861, by the Private and Special Laws of 1861, chap. 24, by the union of the old towns of Skowhegan and Bloomfield, the former comprising what is now the north side of the'river, the latter the south side, including an island.</p> <p>The Act of 1861 provided that “ whenever the new town of Skowhegan shall vote to build a town house, it shall be located on Skowhegan Island unless a majority of each town, as now constituted, shall otherwise decide.”</p> <p>Held: that the phrase “as now constituted ” was intended to apply not to the inhabitants, but to the geographical limits of the two old towns.</p> <p>In 1866, five years after the passage of said Act, the two old towns in town meeting legally called, acting separately in accordance with said Act, voted as follows: “Voted by those that constituted the town of Bloomfield at the time the town was united with the town of Skowhegan, that we consent to have a Town Hall in a place other than on Skowhegan Island.” “Voted by those constituting the town of Skowhegan at the time it was united to Bloomfield that we consent to have a Town Hall in a place other than on Skowhegan Island.”</p> <p>Held: that under the warrant calling the town meeting of 1866 and the • aforesaid votes in pursuance thereof, the town meeting of 1866 and the votes taken in pursuance of the warrants issued therefor were legal, that the statute of 1861 under which they acted, then became a dead letter, and that the old towns are forever barred from having any voice as separate towns, upon the location of any future Town House to be erected in the town of Skowhegan, that the town of Skowhegan, as constituted in August, 1905, when their special town meeting was held, had then and has now full authority to act in the matter of locating and erecting a Town House or Town Hall under any special or general statute then or now existing, with entire independence of chapter 24 of the Private and Special Laws of 1861.</p>

<p>In equity. On report.</p> <p>Bill in equity brought by the plaintiffs Sumner S. llichards and James O. Bradbury, trustees under the last will and testament of Horace Woodman, late of Saco, deceased, against George E. Morrison as administrator of the estate of Henrietta E. Woodman, — wife of said Horace Woodman, — late of Saco, deceased, and Joseph Alton Woodman, Louisa M. Tinkham, both of Saco, and Arthur. W. Andrews and Simon B. Adams, both of Biddeford, and James H. Miles guardian of Caroline P. Adams of Saco, and Caroline P. Adams of Saco, asking for the construction of the sixth and ninth items or clauses of the last will and testament of the said Horace Woodman..</p> <p>At the hearing in the court of the first instance, an agreed statement of facts was submitted, and it was then agreed that the cause should be reported to the Law Court and that upon bill, answers, and the agreed statement of facts, the Law Court “is to construe the will of Horace Woodman with especial reference to the 6th and 9th clauses, and is to advise the parties in regard to their rights thereunder.”</p> <p>All the material facts appear in the opinion.</p>

<p>On report.</p> <p>Search and seizure process under the provisions of section 49 of chapter 29 of the Revised Statutes, begun in the Rumford Falls Municipal Court, Oxford County. The complaint, omitting tlie formal parts, was as follows :</p> <p>“Harris L. Elliot, of Rumford, in the County of Oxford, competent to be a witness in civil suits, on the 23rd day of January A. D. 1904, in behalf of said state, on oath complains that he believes that on the 23rd day of January, in said year at said Rumford intoxicating liquors were, and still are kept and deposited by Lawrence Pembroke, of Rumford, in said County, in a box marked Lawrence Pembroke, Rumford Falls, Me., — C. O. D. $15, now in the American Express Office and its appurtenances, situated in said Rumford, tlie said Pembroke not being then and there authorized by law to sell intoxicating liquors within said state, and that said liquors then and there were and now are intended for sale by the said Pembroke within said state in violation of law, against the peace of said state, and contrary to the form of the statute in such case made and provided.</p> <p>“Wherefore, the said complainant prays, that due process be issued to search the premises and the person herein-before mentioned, where said intoxicating liquors are believed to be deposited, and if there found, that said liquors and vessels be seized and safely kept until final action and decision be had thereon, and that the said Pembroke be forthwith apprehended and held to answer to this complaint and to do and receive such sentence as may be awarded against him.</p> <p>Upon this complaint a search and seizure warrant of the same date as the complaint was issued by said court and placed in the hands of the complainant who was a deputy sheriff, for service. By virtue of this warrant, the deputy sheriff, on the same day, searched the American Express office at Bumford Falls, “and there found and seized the following described intoxicating liquors, to wit: One box marked Lawrence Pembroke, Bumford Falls, Me., C. O. D. $15, containing 20 quart bottles full of whiskey” and “five half pint bottles full of whiskey.”</p> <p>Under the provisions of section 50 of chapter 49 of the Bevised Statutes, the officer then filed a libel against these liquors and the vessels in which they were contained, in the aforesaid court, and a time for a hearing thereon was fixed by said court and notice thereof given as provided by the aforesaid section 50.</p> <p>On the return day of the libel, the consignee, Lawrence Pembroke, filed in said court a claim for these liquors in accordance with the provisions of section 51 of chapter 49 of the Bevised Statutes, alleging “ that they were not so kept and deposited for unlawful sale as alleged in the libel.” Thereupon a hearing was. had and the judge of said court found that the liquors were intended for illegal sale and were liable to seizure and accordingly condemned the same and ordered them to “ be turned over to the sheriff of Oxford County, they being found to contain more than twenty per cent of alcohol-.”</p> <p>From this judgment condemning these liquors the claimant appealed to the Supreme Judicial Court to be held at Paris on the second Tuesday of March, 1904. At said March term of the Supreme Judicial Court an agreed statement of facts was filed and the case was then reported to the Law Court for decision.</p> <p>The agreed statement of facts fully appears in the opinion.</p>

In equity. On report. Bill sustained. Bill in equity brought by the plaintiff as trustee in bankruptcy of the estate of John W. Hussey of Milo, against the said John W. Hussey, Nettie Hussey, wife, and Bertram Hussey, son, of said John W. Hussey, attacking the title of said Nettie Hussey and Bertram Hussey in certain real estate in Milo, on the alleged ground that said John W. Hussey, while insolvent, purchased the property and paid the- consideration, but caused the title…

<p>On motion and exceptions by defendants.</p> <p>Assumpsit brought by the plaintiff against the defendants, Sarah C. Jones and Alice Maud Shaw in their capacity as executrices of the'last will and testament of Silas D. Jones, late of Bangor, deceased.</p> <p>There were four counts in the declaration, one upon a promissory note for $1500, dated Bangor, February 17, 1896, payable on demand, and purporting to be signed on the face by Silas I>. Jones & Sons and on the back by Silas D. Jones. The second count was on a promissory note for $500, dated Bangor, February 8, 1902, payable on demand, purporting to be signed on the face by Silas D. Jones & Sons and on the back by Silas D. Jones. The third count was on a promissory note for $500, dated Bangor, April 14, 1900, payable on demand, purporting to be signed on the face by Silas D. Jones’ Sons and on the back by Silas D. Jones. The fourth count was for money had and received.</p> <p>Plea, the general issue with the following brief statement:</p> <p>“ And for a brief statement of special matter of defense to be used under the general issue pleaded the said defendants further say as to the first count in the plaintiff’s declaration, it being the account upon the. alleged note for fifteen hundred ($1500) dollars, .the defendants plead the statute of limitations and aver that their intestate did not at any time within six years next before his death promise in manner and form as the plaintiff in said first count in said writ has alleged against him.</p> <p>“The defendants further say, that after the making of the said several alleged promises and after the accruing of the several alleged causes of action in the plaintiff’s declaration mentioned, but before the commencement of said action to wit: on the eighth day of July, A. I). 1904; the plaintiff suggested to and agreed with and promised the defendant, Sarah C. Jones, that if she, the said Sarah C. Jones, would not change her last will and testament by the terms of which Storer W. Jones, the plaintiff’s husband was to share equally with the remaining children of the said Sarah C. Jones, it being then and there the intention of the said Sarah C. Jones, to change her will, that in consideration thereof she, the said plaintiff, would accept her said promise in full satisfaction and discharge of said promises referred to, and of all claims and demands which she had against the estate of said Silas D. Jones, and that she would destroy or cause to be destroyed said alleged notes declared on in the plaintiff’s declaration; and the defendants aver that said Sarah C. Jones then and there did promise the said plaintiff that she would hot change her last will and testament, which promise she has ever since kept inviolate, and that thereafterwards, on the 11th day of July, A. D. 1904, the plaintiff did cause said alleged notes declared upon in the plaintiff’s declaration to be destroyed in pursuance of her said promise and the terms of her said agreement entered into with the said Sarah C. Jones on the eighth day of July, A. I). 1904, as aforesaid.”</p> <p>The defendants also seasonably made affidavit denying the signatures of the notes and execution of the same, and gave reasonable notice to the plaintiff of their denial or intended denial of such signatures and execution in accordance with Rule X of “Rules of the Supreme Judicial Court.”</p> <p>The action was tried at the October term, 1905, of the Supreme Judicial Court, Penobscot County. Verdict for plaintiff for $2689.14. Defendants then filed a general motion for a new trial, and also took exceptions to rulings admitting certain testimony during the trial, and to certain instructions given to the jury.</p> <p>The case sufficiently appears in the opinion.</p>

<p>In addition to the “account annexed,” the plaintiff’s writ contained the general money counts with the following specification: “Under the money counts the plaintiff will claim to recover the sums named in the first count of his writ being money earned by said plaintiff for labor performed by said plaintiff at White Oak Spring Hotel at Poland, Maine.” Held: that the claim of the plaintiff is restricted and his right to recover limited by his specification, and under the pleadings he cannot avail himself of evidence of money had and received.</p> <p>Ou exceptions by plaintiff.</p> <p>Assumpsit on account annexed to recover the sum of fifteen dollars for labor as a plumber performed by the plaintiff for the defendant, and which said labor was performed on the Lord’s Day, and was not a work of “necessity or charity.” -The writ also contained the common money counts added as an amendment, with the following specification: “Under the money counts the plaintiff will claim to recover the sums named in the first count of his writ being money earned by said plaintiff for labor performed by said plaintiff at White Oak Spring Hotel at Poland, Maine.” Plea, the general issue.</p> <p>The action originated in the Municipal Court of Portland, and from thence was taken on appeal to the Superior Court, Cumberland County. Tried at the December term, 1904, of said Superior Court. After the plaintiff’s evidence was all in, the defendant moved for a nonsuit on the ground that the plaintiff had failed to make out a case in law, and the motion was granted, and thereupon the plaintiff excepted.</p> <p>The case fully appears in the opinion.</p>

<p>Adverse Possession. No Continuous Occupation for Twenty Years. No Written Claim for Improvements Piled. Same Deemed Waived, When. Compensation Allowed for Beneficial Improvements Only. Increased Valúe of Land by Reason of Improvements. Value of Land Without Improvements. R. 8., c. 106, §§ 24, 26, 27,28, 29, SO, 31.</p> <p>1. The tenant haying set up a claim of title by adverse possession against the demandant’s record title, the court is of opinion that, assuming that all the other essentials of adverse occupation have been proved, the tenant has failed to show occupation for any continuous period of twenty years. Accordingly the defense fails and the demandant is entitled to judgment.</p> <p>2. Although the record before the court does not disclose whether the tenant filed in the court below a written claim for compensation for improvements, or w'hether the demandant filed a request in writing for an estimation for what would have been the value of the premises, at the time of the trial, if no improvements had been made, yet the parties had the right to waive these provisions of statute. And when both parties introduced evidence on the subject and the question was argued, the court, when the case comes upon report, will assume that they were waived, nothing to the contrary appearing.</p> <p>3. Slothing can be deemed an “ improvement ” for which compensation may be allowed, which does not benefit the land, and increase its value to the true owner. Under this rule the tenant’s claim in this case for ties, rails and equipment must be disregarded.</p> <p>4. The court is of opinion that the filling on the demandant’s flats by the tenant, did add somewhat to the value of the flats, and that the tenant is entitled to be allowed for the increased value.</p> <p>5. Taking all the conditions into account the court is of opinion that the increased value of the premises by reason of the embankment built by the tenant should be estimated at four hundred dollars, and that the value of the premises, at the present time, without the embankment should be estimated at two hundred dollars.</p> <p>6. The demandant will have judgment for so much of the demanded premises as consists of flats which wore embraced in the Deborah Mills grant, the boundaries to be determined from the plan used at the trial. But the issuing of a writ of possession will be governed by the provisions of B. S., ch. 106, sects. 26-31 inclusive.</p>

<p>Deed. Exception Therein. Construction of-Same with Reference to Unrecorded Deed. R. S., c. 75, § 11.</p> <p>The plaintiff’s deed contained, among other things, the following clause: “Also excepting any and all other portions of said premises which may have been conveyed by the Capejellison LandTmprovement Company, 'the Penobscot Bay Land Improvement Company, Dustin Lancey and Jeremiah Nelson.”</p> <p>At the time of the delivery of this deed the plaintiff had notice by record of . a deed of certain lots from Jeremiah Nelson to the defendant, but after the plaintiff’s deed was placed on record the defendant caused to be recorded another deed from Jeremiah Nelson bearing the same date as the one previously recorded but purporting to convey not only the same several lots but also one half the area of the private ways adjoining and the shore and flats in front of these lots.'</p> <p>Held; that the exception in the plaintiff’s deed included by reference the land conveyed to the defendant under the unrecorded deed.</p>

<p>Railroad Crossing. Negligence. Care on Part of Passengers for Hire a Question of Pact. R. S., c. 52, §§ 70, 86.</p> <p>When passengers for hire, riding in a public carriage, are about to cross a railroad track it cannot be said as a matter of law that it is negligence on their part if they are not as alert as the driver of the team over which they have no direct control, in looking and listening for an approaching train before attempting to cross the track, but it is a question of fact for a jury, under all the circumstances, to determine whether or not such passengers were in the exercise of ordinary care.</p> <p>In the cases at bar, an instruction was given which was clearly within the rule of law, and the fact, if such be the fact, “that the language of the judge unduly emphasized the defendant’s legal responsibility and unduly minimized its legal privileges and rights,” is not deemed sufficient to sustain the exception to the instruction.</p> <p>In the three above entitled actions, there was a verdict for the. plaintiff in each action. Held: that the motions for new trials must be overruled on the question of liability, and also that the-verdict in favor of the plaintiff husband must be sustained, but that the verdicts in the other two actions are excessive and that therefore on the question of the assessment of d'amages these two verdicts must be set aside unless the respective plaintiffs file remittiturs as stated in the opinion.</p>

<p>Criminal Law. Evidence Must Support the Allegations. E. 8., c. 29, § 45.</p> <p>When in a criminal proceeding, the facts are entirely insufficient to support the allegations in the com plaint judgment must be for defendant.</p> <p>It is true that in misdemeanors all who participate in the commission of an offense aro deemed principals and may be indicted and convicted either jointly or severally. But when a prohibited notice is printed in a newspaper 2>ublished by a newspaper corporation, and a complaint therefor is against individuals they cannot be held responsible for the publication of such notice when there is an entire absence of any evidence to show that at the time, of the alleged offense they had any interest whatever, either as stockholders or otherwise, in such corporation, or any participation in the conduct of its affairs.</p> <p>In the case at bar, the capital stock of the corporation was all owned by* the defendants at the time the com2>laint was made, which was six days after the publication of the prohibited notice, but the case fails to disclose that they had any interest in the corporation, either as stockholders or otherwise, on the 22nd day of April, 1905, the time of the commission of the alleged offense, or that they participated in the conduct of its affairs at that time.</p>

Ou agreed statement of facts. Action on the case to recover damages for the alleged unlawful ejectment of the plaintiff from the defendant’s train on which he was a passenger.

On report. Action on the case to recover damages caused by the alleged negligence and wilful acts of the defendant corporation in so misdriving and misdelivering the plaintiffs’ logs entrusted to it, in the spring and summer of 1901, to be driven, that the same went out to sea and and were lost.

In equity. On appeal by plaintiffs. Bill in equity by the plaintiffs, Edwin H. Williams, of Sherman, and James Atwood Taber of Corinna as executor of the last will and testament of Julia A. Dearborn, late of Corinna, deceased, originally brought against the defendants, Newland Dearborn and Fred T. Dearborn, both of Bangor, Charles Dearborn and Francis M. Holt, both of Corinna, and James M. Sanborn of Newport as administrator de bonis non with the will annexed of the estate…

On report. In this case, an agreed statement ” of the following tenor, was filed: “This is a prosecution for a violation of one of the revised ordinances of the City of Auburn, which is as follows: “ Section 38.

On exceptions by plaintiff. Petition for writ of habeas corpus. The plaintiff was indicted in the Superior Court, Cumberland County, for an attempt to commit suicide, and upon conviction he was sentenced to imprisonment, at hard labor, in the county jail for the term of eleven months, and was committed in execution of said sentence.

On exceptions by plaintiff. Petition for writ of habeas corpus, alleging that the plaintiff was illegally imprisoned. The writ was issued and a hearing had before a justice of the Supreme Judicial Court. The justice ruled, as matter of law, that the plaintiff was legally imprisoned and denied his discharge on habeas corpus. Thereupon the plaintiff took exceptions . ■ The case fully appears in the opinion.

On exceptions by plaintiff. Assumpsit to recover for professional services, disbursements and certain cash items, brought by the plaintiff against the defendant in the Superior Court, Cumberland County. Plea, the general issue and statute of limitations. The case was heard before the Justice of the Superior Court, without the intervention of a jury, with the right of exceptions on questions of law.

On exceptions by defendant. Assumpsit on account annexed for two cows. Writ dated March 15, 1906. Plea, the general issue and a brief statement.

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, who was driving an automobile. The writ originally contained two counts, but during the progress of the trial, the plaintiff, against the defendant’s objection, was. allowed to amend his writ by inserting a third count.

On exceptions by defendants. Complaint for the assessment of damages occasioned by raising the grade of the highway in South Thomaston in front of the plaintiff’s premises, brought under the provisions of sections 68, chapter 23, of the Revised Statutes. The municipal officers refused to assess any damages and refused to take j urisdiction of the complaint.

On report. Action of forcible entry and detainer brought by the plaintiff against the defendant to recover a certain dwelling house situated in Old Town, and standing on land of one Lucy A. Bachelder. The writ was sued out of the Old Town Municipal Court, under the; date of May 21, 1901.

On report. Beal action to recover certain lands in Thorndike. Writ dated December 16, 1904. Plea, the general issue. The plaintiff held by assignment a mortgage of the demanded premises given May 28, 1887, by Albert P. Bumps of Thorndike, Maine, to George Tyler of Boston, Massachusetts, to secure a certain judgment recovered by said Tyler against said Bumps in the Supreme Judicial Court, Waldo County.

On motion by plaintiff. Action under Revised Statutes, chapter 4, section 52, to recover damages for an injury resulting from bite of defendant’s dog. The plaintiff was eight years old at the time of the injury, and the dog was a St. Bernard weighing between seventy-five and eighty pounds. The pext morning after the plaintiff Was bitten, the dog was killed by order of the defendant.

On report. Action of assumpsit to recover tuition for three pupils living in the defendant town of Mapleton and attending Ricker Classical Institute, Hoülton. Said pupils were attending said institute in accordance with the provisions of chapter 15, section 63, of the Revised Statutes.

<p> Court Records Amendable. Amendment Within Judicial Discretion of Presiding Justice. Notice to Adverse Party Necessary, When. Practice. </p> <p>A court has power to allow its records to be amended in accordance with the fact.</p> <p>Whether the proposed amendment shall be allowed upon proof of the necessary facts, saving the rights of all persons theretofore acquired in good faith, is within the sound judicial discretion of the justice presiding at the hearing.</p> <p>Where the record itself does not furnish the data for the amendment, but it depends upon extrinsic evidence, notice should be given to the adverse party that he may have an opportunity to be heard.</p>

<p> Trustee Process. Foreign Plaintiff, Defendant and Trustee. No Service on Principal Defendant. Jurisdiction. Premature Exceptions. </p> <p>Ill the ease at bar, neither the plantiiF nor the defendant was a resident of Maine but both were residents of Frederickton in the Province of New Brunswick and Dominion of Canada and the personal services rendered by the principal defendant to the trustee were not rendered in the State of Maine but in the Province of New .Brunswick. The Canadian Pacific Railway Company, the alleged trustee, is a foreign corporation having its principal office and place of business in Montreal, where its treasury is located from which its debts are paid, although it operates aline of railway in Maine and has stations in connection with its railway business in this state, among which is one at Houlton in the county of Aroostook. Service was made on the trustee by leaving the summons with the station agent of the company at Houlton, but no service was ever made upon the principal defendant, although service upon him was ordered by the court. To the ruling of the presiding Justice that the court had jurisdiction in the case, and charging the trustee, the trustee filed exceptions and' the case comes to the Law Court on these exceptions.</p> <p>Held; that the exceptions are not regularly and properly before the Law Court and must be dismissed. No service of the writ had been made upon the principal defendant and he had no opportunity to be heard upon the question of jurisdiction or the liability of the trustee. Ylithout such notice and such opportunity to be heard, he could not be concluded by any decision adverse to him which might be made respecting either of these questions. The hearing at nisi prius was therefore premature and the exceptions were prematurely brought to the Law Court.</p>

On report. Action on the case against the defendant city to recover damages for diverting and drawing more water from the plaintiff company’s dam for power purposes than the defendant city is entitled to draw for such purposes.

On report. Assumpsit on account annexed to recover the sum of $1097.92 for merchandise sold and delivered to the defendant.

In equity. On report. Bill in equity. The facts upon which this bill was founded are fully stated in the opinion.

<p>On motions by plaintiff.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. Plea, the general issue. Tried at the January term, 1906, of the Supreme Judicial Court, Androscoggin County. "Verdict for defendant. The plaintiff then filed a general motion for a new trial, and also a special motion for a new trial, alleging- in this last named motion in support thereof as follows :</p> <p>“First: C. I. Barker the foreman of the jury which sat upon said case and rendered said verdict while sitting upon said case and deliberating thereon possessed and had a “blue book” so called in which were free tickets for passages on the defendant’s electric railroad which book had been given to said foreman by said defendant corporation which fact was without fault or collusion on the part of the. plaintiff and the information of the foreman’s possession of said blue book has come to the knowledge of the plaintiff and his counsel since the close of. the trial and that neither the plaintiff nor his counsel had any suspicion or knowledge of said fact prior to or during the progress of the trial.</p> <p>“Second: The treasurer of said defendant corporation by whom said blue book was issued was present when the jurors in said case were, about to enter upon the discharge of their duties and the presiding Justice stated that any stockholder in the defendant corporation would be disqualified to sit, thereby emphasing the court’s desire to have an absolutely impartial jury and yet said treasurer did not disclose to the court that the juror Barker possessed said book.”</p> <p>After the filing of the special motion, testimony relating to the matters alleged in the motion was. received by the court both from the plaintiff and the defendant.</p> <p>The case appears in the opinion.</p>