Volume 102 — Maine Reports

On exceptions by plaintiff. Overruled. Trespass quare clausum fregit alleging that the defendant broke and entered the plaintiff’s close in Jonesport and picked and carried away and converted to his own use 200 quarts of blueberries growing in said close. Plea, the general issue. Heard at the January term, 1906, of the Supreme Judicial Court, Washington County, by the presiding Justice, without the intervention of a jury, with the right to except.

<p> Public Officers. Superintendent of Streets. Compensation. Quantum Meruit. R. S., chapter S3, section 7S. </p> <p>1. A public officer for the performance of his official duties is entitled to such compensation only as is fixed by law for that office. If no compensation has been thus fixed he is not entitled to any.</p> <p>2. A public officer appointed by a municipality, though subject in some respects to the orders of the municipality, cannot recover of the municipality any compensation for his official services unless a compensation thereof has been fixed by law for the municipality to pay, and then only to the extent so fixed. He cannot recoyer anything upon a cjuantum meruit count.</p> <p>3. The Superintendent of Streets in Old Town in 1904-5 was not an employee or agent of the city entitled to damages for breach of contract for employment, but was a public officer possessing official powers and charged with public duties.</p> <p>4. The Street Board of Old Town though authorized bylaw to “make all contract for labor ” on the streets was not authorized to iix the compensation of the Superintendent of Streets.</p> <p>5. The action of the City Council of Old Town in allowing from time to time as presented, bills of the Superintendent of Streets for services in the care of the streets did not fix any salary or compensation for that office.</p> <p>O. Though the plaintiff may have been de jure Superintendent of Streets in Old Town from April, 1904, to 3an’y 26, 1905, it does not appear that any salary was fixed by law for that office to be paid by the city, hence ho cannot recover any salary for that time.</p> <p>7. The statute li. S., chapter 28, section 72, provides a per diem compensation “for every day of actual service” only. The plaintiff rendered no service during the time named and hence cannot recover under that statute, even though he was prepared and desired to perform all the duties of the office, but was prevented by the action of the City Council.</p> <p>8. The plaintiff has included in his claim, however, an item of three dollars for services performed the preceding year, for which the defendant city consents that he may have judgment, and therefore the plaintiff may have judgment for that sum.</p>

On report. Report discharged and action remitted to nisi prius. Real action to recover possession of certain real estate in the town of Marion, Washington County. Tried at the January term, 1906, of the Supreme Judicial Court, Washington County. The plaintiffs introduced in evidence a mortgage of the demanded premises, given by the defendants to the plaintiffs dated December 11, 1902|~oi the following tenor, to wit: “Know all men by these presents, That we, Benj.

<p>On motion by defendant'. Overruled.</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 in allowing its semaphore wire across a public street to sag down into the street thereby causing the horse which was drawing the carriage in which the plaintiff was riding, to stumble and fall down, in consequence of which the plaintiff was thrown into the street and injured.</p> <p>Tried at the October term, 1905, of the Supreme Judicial Court, Cumberland County. Plea, the general issue. Verdict for plaintiff for $3000. - The defendant then filed a general motion for a new trial.</p> <p>The matei’ial facts appear in the opinion.</p>

On motion by defendant. Sustained unless plaintiff files remittitur within thirty days. Action to recover for pauper supplies furnished by the plaintiff town to one Osgood Nason and his family, whose pauper settlement was alleged to be in the defendant town. Tried at the October term, 1905, of the Supreme Judicial Court, Cumberland County. Plea, the general issue. Verdict for plaintiff town for $600. The defendant then filed a general motion for a new trial.

On exceptions both by plaintiffs and by defendant. Sustained. Action of covenant broken upon a contract under seal for the purchase of a quantity of clapboards of certain specified kinds and dimensions. Tried at the April term, 1906 of the Supreme Judicial Court, Androscoggin County.

In Equity. In equity. On appeal by plaintiff. Bill dismissed.

In Equity. In equity. On appeal by defendants. Appeal sustained. Decree according to opinion.

On agreed statement of facts. Remanded for assessment of damages according to opinion. Assumpsit to recover damages for the breach of a contract whereby the defendants agreed to sell and deliver to theplaintiff 5000 cases of sweet corn during the year 1908. The defendants failed to sell and deliver any sweet corn to the plaintiff under this contract, thereupon the plaintiff brought this action for the recovery of damages.

On report. Appeal dismissed. Decree of Probate Court affirmed in part. Case remanded for further proceedings in accordance with opinion. Appeal by the American Board of Commissioners for Foreign Missions from the decree of the Judge of Probate, Cumberland County, approving and allowing certain instruments as the last will and testament and codicils thereto, of Solomon H. Chandler late of New Gloucester, Cumberland County, deceased.

On exceptions by plaintiff. Sustained. Action on the case brought by the plaintiff, a judgment creditor oí one Harry L. Smith, against the defendant, sheriff of Washington county, to recover damages caused by the alleged failure of one of the defendant’s deputies to make demand, within thirty days after judgment, on an execution, for certain personal property attached by the former sheriff of said county on the original writ in the action in which the plaintiff recovered…

On report. Judgment for defendant. Assumpsit on a contract made November 24, 1897, by the plaintiff corporation, a collection agency, and the defendant in relation to the collection of claims placed in the hands of the plaintiff by the defendant. The plaintiff alleged that the defendant had failed to perform his part of the contract and that in consequence of this failure the defendant owed the plaintiff $75.00 for subscriptions.

On report. Judgment for plaintiffs. Peal action to recover two lots of land situate in the town of Detroit. Writ dated August 31, 1903. Plea, the general issue with a brief statement claiming title to the demanded premises under certain tax deeds and also by adverse possession.

On report. Petition denied. Petition by plaintiff company for a writ of mandamus to compel the Assessors of the City of Augusta to take action upon its application to them for an abatement on the taxes assessed against the plaintiff company, for the year 1904.

On exceptions by defendant. Overruled. Assumpsit on a written instrument of the following tenor: “$112.85 Springvale, Me., Feb. 17, 1896.

On report. Report discharged. Case dismissed from the law docket. Assumpsit upon four separate employers’ liability insurance policies, the first policy running from the 19th day of March, 1900, to the 19th day of March, 1901 ; the second from the 19th day of March, 1901, to the 19th day of March, 1902; the third running from the 19th day of March, 1902, to the 19th day of March, 1903; the fourth running from the 19th day of March, 1903, to the 19th day of March, 1904.

In Equity. In equity. On report. Bill dismissed. Bill in ecpiity praying that the defendant, its servants, agents or attorneys be enjoined and restrained by temporary and perpetual injunction from taking its supply of water from China lake in Kennebec County until certain condemnation proceedings, which the plaintiff alleges are required by law, shall have been bad, and for such other and further relief as the nature of the case may require.

On agreed statement of facts. Judgment for defendant. Action of trespass quare clausum fregit for breaking and entering the plaintiffs close, the same being a lot on the south side of the Kennebec River in the village of Skowhegan. The defendant was the duly qualified road commissioner for the town of Skowhegan on the day of the entry.

On exceptions by plaintiS. Overruled. Petition brought under the provisions of R. S., chapter 106, sections 47 and 48, to quiet title to real estate, to wit “certain undivided portions of Cross Island in the town of Cutler,” Washington County. This petition was duly filed in the Supreme Judicial Court, Washington County, and notice thereon was ordered and service thereof was made as provided by R. S., chapter 106, section 47.

In Equity. In equity. On report. Decree according to opinion. Bill in equity brought by the plaintiff as trustee under the last will and testament of Mary M. Stewart, late of Bangor, deceased, asking the court to determine whether or not a certain trust created under the last will and testament of said deceased had been terminated, and if so to determine to whom the property held by the plaintiff as trustee under said last will and testament should be paid and turned over.

2. That the evidence show» clearly that the plaintiffs failed to order out the potatoes in season for the defendant to obtain cars, fit them, load them and deliver the potatoes in New York in March, it being practically impossible to do so in the time after March 24. 3.

On motion by defendant. Sustained. New trial granted. Action on the case to recover damages for injury to the plaintiff’s horse, pung and harness caused by the alleged negligence of the defendant.

On motion and exceptions by defendant. Exceptions overruled. Motion sustained unless remittitur made within thirty days. • Action of trespass, quare clausum.

<p> Rales. Fraud. False and fraudulent representations. Rescission. Trover. </p> <p>Any vendor induced by false and fraudulent representations to sell goods upon credit, upon discovering the fraud, may rescind the sale and maintain trover for the goods so obtained.</p> <p>When at the time of the purchase of the goods there is an intent never to pay for them, the sale may be avoided for fraud, although no false and fraudulent representations are made. When such representations are made, the vendor, who relying upon them parts with his property, may equally rescind, although there was at the time of the sale a bona fide intention to pay at some future time.</p> <p>If a person states of his own knowledge material facts which are susceptible of knowledge, and the statement is made with an intent that another party shall act upon it, or in such a manner as would naturally induce him to act upon it, the statement so made, if false, is fraudulent both in morals and law.</p> <p>In the sale and delivery of merchandise procured by fraud, it is generally the intention of the parties that the title pass to the vendee ; but because of the fraud the vendee can, if he chooses, on discovering the fraud, avoid tlie sale and delivery and revest the title in himself notwithstanding this intention,</p> <p>A vendee, for the purpose of obtaining a line of credit, made a written statement of his assets and liabilities, and agreed that it might be considered as a continuing and new and original statement upon each and every purchase of goods thereafter until he advised the vendor in writing to the contrary. The statement, though true when first made, afterwards became false and its falsity was or ought to have been within the knowledge of the vendee. No notice ivas given to the vendor and he, relying upon the statement as true, sold goods to the vendee after such statement had become materially and essentially false.</p> <p>Held: That the vendor might rescind such sales and maintain trover against the vendee’s common law assignee for such of the goods so sold as the assignee had in his possession and refused to deliver to the vendor.</p>

On report. Judgment for claimant. Libel for the condemnation of intoxicating liquors seized and alleged to be intended for unlawful sale in this state, said liquors consisting of six barrels each containing thirty-two gallons of whiskey, three barrels each containing thirty-two gallons of rum, two barrels each containing thirty-two gallons of gin, one keg containing twenty gallons of whiskey, and ninety-six bottles each containing one quart of whiskey.

On motion by defendant. Sustained. New trial granted. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant.

On exceptions by plaintiffs. Overruled. Assumpsit on account annexed to recover the purchase price for intoxicating liquors sold by the plaintiffs, to the defendant, in the State of New York, with intent, upon the part of the defendant, to sell such liquors in Maine in violation of law. The plaintiffs were citizens of the City and State of New York at the time of the sale while the defendant was a citizen of Maine.

On report. Judgment for defendants. Real action. Writ dated September 6, 1905.

On agreed statement of facts. Complaint dismissed. Complaint for taking clams within the limits of .the town of Cushing, Knox County, contrary to the regulations of the municipal officers of Cushing assuming to act under Public Laws, 1905, chapter 61.

On motion and exceptions by plaintiffs. Overruled. Assumpsit on a certain promissory note against Jordan White as administrator of the estate of Melinda P. Tarbox, late of Lewiston, deceased intestate. This note was for the sum of $500 and was given by Mrs. Tarbox on the 29th day of October, 1902, to one Jason Russell, and was payable after her death. After the death of Mrs. Tarbox the payee, Mr. Russell, sold and transferred this note to the plaintiffs.

On motion and exceptions by defendant. Exceptions sustained. Action to recover damages for an alleged breach on the part of the defendant, of an oral contract wherein the plaintiff was to cut and saw into suitable lengths all the stave wood on a certain lot of land belonging to the defendant. The alleged breach was the refusal on the part of the defendant to allow the plaintiff to continue to cut and saw said stave wood after he had been operating a few weeks.

On exceptions by plaintiff. Sustained. Action of trespass. The writ contained three counts. The first count alleged the detaining with force and arms, by the defendant, of certain goods and chattels consisting of greenhouse frames, plants, loam and compost, property of the plaintiff, from the plaintiff’s possession. The second count alleged the conversion by the defendant of the goods and chattels described in the first count.

On report. Judgment for plaintiff. Assumpsit on account annexed brought by the plaintiff, a corporation organized under the provisions of chapter 316 of the Private and Special Laws of 1903, against the -defendant, also a corporation, to recover tolls on two million feet of poplar and spruce logs at fifteen cents per thousand feet. Tried at the January term, 1906, of the Supreme Judicial Court, Penobscot County.

In Equity. In equity. On exceptions and appeal by plaintiff. Exceptions not considered. Decree below reserved. Decree in accordance with opinion. Bill in equity tlie substance of which appears in the opinion. Heard before the Justice of the first instance on bill, answers and evidence.

In Equity. In equity. On report on agreed statement of facts. Decree in accordance with opinion.

<p> Insurance. Accident Policy. Illness Indemnity. “Rheumatism.” </p> <p>The plaintiff was insured by a policy of accident insurance issued by the defendant, in which the latter, upon the conditions named in the policy, promised to pay the insured “ an illness indemnity of thirty dollars per month, or at that rate for any proportionate part of a month for the time, after' the first week, the insured is necessarily and continuously confined strictly in the house, and being regularly visited by a legally qualified physician, by reason of acute illness that is contracted and begins after this policy has been in full force and effect, without delinquency, for thirty consecutive days immediately preceding the commencement of such illness.” The policy also contained this clause : “ or in case of illness resulting from tuberculosis, rheumatism, paralysis, lumbago, or lame back sciatica, varicose veins, venereal diseases, dementia or insanity ; then, in all such cases referred to in this paragraph, the limit of the company’s liability shall be one-tenth of the amount which would otherwise be payable under this policy, anything to the contrary herein notwithstanding.”</p> <p>During the period covered by the policy, the plaintiff was sick with rheumatic fever and was entitled, under the contract of insurance, to recover the sum of forty dollars unless that amount should be reduced to one-tenth thereof by reason of the provision in the policy above quoted. Held: that the disease with which the plaintiff suffered although acute, was one form of rheumatism and must be considered to have been included within the meaning of the word “rheumatism” as it was used in the policy.</p>

On exceptions by defendant. Sustained. Indictment against the defendant for keeping and niain taming a liquor nuisance at Biddeford. Tried at the May term, 1906, of the Supreme Judicial Court, York County. Verdict, guilty. During the trial, the State proved that in January, 1905, during the period covered by the indictment, the defendant paid a United States special tax as a retail liquor dealer.

On exceptions by defendant. Overruled. Indictment against the defendant for violation of the “ short lobster statute,” It. S., chapter 41, section 17.

In Equity. In equity. On report. Decree according to opinion. Bill in equity asking for the construction, of the will of James R. Farnsworth, late of Rockland, deceased. Heard on bill, answer and evidence at the April term, 1906, of the Supreme Judicial Court, Knox County.

On exceptions by defendants. Overruled. Appeal from the decree of the Probate Court, Knox County, appointing an administrator with the will annexed, of the estate of James R. Farnsworth. This case is an outgrowth of the controversy involved in the preceding equity case, Mary C. Farnsworth et als. v. George F. Whiting et al. The ca.se fully appears in the opinion.

On report. Judgment for plaintiff. Assumpsit upon account annexed in which the plaintiff sought to recover for water furnished by it to the defendant for municipal purposes at its school houses and its pest house, upon an implied promise. Tried at the January term, 1906, oi' the Supreme Judicial Court, Penobscot County. Plea, the general issue. At conclusion of the testimony, the case was “ reported to the Law Court for determination.” The case appears in the opinion.

On exceptions by defendant. Overruled. Search and seizure process on a complaint and warrant under R. S., chapter 29, section 49, issued out of the Ellsworth Municipal Court. On this warrant search was made and certain liquors were seized in a certain building at Bar Harbor, and the defendant was arrested and arraigned before the Ellsworth Municipal Court where he was tried and found guilty and sentenced to pay a line of $100 and costs and to be imprisoned sixty days.

<p> Waters and Water Courses. Freshets. Dam. Lost Bridge. Injuries. Liability. Evidence. </p> <p>This is an action originally brought for the recovery of damages for the loss of a bridge erected and maintained by the plaintiffs across Sebasticook River in the town of Palmyra, alleged to have been destroyed by reason of a dam built by the defendant across the river, below the bridge. By amendment it was converted into an action for the recovery of the money expended in erecting a new bridge to take the place of the one carried away. After the plaintiffs had presented all their evidence, the presiding Justice ordered a nonsuit, to which the plaintiffs excepted.</p> <p>The case has once been before the Law Court and is reported in 99 Maine, 134. In the first trial the plaintiffs recovered a verdict and upon motion by the defendant the court set the verdict aside. The ground upon which the court proceeded in concluding to set the verdict aside was that the freshet which carried the bridge away- was very unusual although not unprecedented. In the opinion in that case the court said : “In the freshet in 1903, the water of the river rose suddenly and so high that at the bridge it reached the bottom of the structure, and the cakes of ice floating down struck the bridge and threw it down into the river. There was no evidence that the defendant company did not exercise all due diligence to give the freshet free vent through the gates and waste ways of the dam. The only complaint was that the dam was too high.” .... “The bridge was not injured by the highest water of any freshet for a decade. The freshet, in which it was carried away by the ice brought down by the current, was a very extraordinary one, caused by unusually heavy rains at the season of melting snows. This was to human ken a fortuitous and very infrequent combination of powerful natural causes, unusual and unexpected. The resulting loss must, therefore, remain where it fell.”</p> <p>Held: that the court is unable to discover in the testimony in the second trial any new evidence which sufficiently changes the aspect of the case with reference to the duty of the defendant or the severity of the freshef which carried away the bridge, so as to warrant the court in sustaining the exceptions to the ruling of the presiding Justice ordering a nonsuit.</p> <p>See Same v. Same, 99 Maine, 134.</p>

<p> Contraéis. Substantial Performance■ Rquitable Relief. Actions. Recoupment. Da,mages. Burden of Proof. Water Contracts. </p> <p>By the strict rules of the common law ill cases .where services have been rendered or materials furnished in an honest endeavor to perform a contract, but are found to be at variance with the requirements of its express terms, and yet in some degree beneficial to the party to whom the services have been rendered or for whom the materials have been furnished, full performance was undoubtedly required as a condition precedent to the right of recovery. But in most jurisdictions the rigor of this common law rule has been relaxed, even in courts of law, especially in building contracts and other like agreements, where the defendant is practically forced to accept the result of the work and relief is granted to the plaintiff by applying the equitable doctrine of substantial performance.</p> <p>Although a plaintiff cannot recover upon a contract from which he has departed, yet he may recover upon the common counts for the reasonable value of the benefit which upon the whole the defendant has derived from what the plaintiff has done. If a plaintiff endeavors in good faith to perform, and does substantially perform an agreement be is entitled to recover the fair value of his services having regard to and not exceeding the contract price after deducting the damages sustained by the defendant on account of the breach of the stipulations in the contract.</p> <p>In some of the decided cases, reference is made to the “deduction” “recoupment” or “ set off” of the defendant’s damages for the obvious purpose of indicating a convenient process or method of ascertaining what the services rendered by the plaintiff were reasonably worth, and not with the intention of casting upon the defendant the burden of proving the value of a plaintiff’s services. It is incumbent upon the plaintiff in such cases to prove the value of the work done or materials furnished by him. The question of recoupment, properly so termed is not involved. But if the plaintiff’s breach of contract be such as to subject the defendant to consequential damage, such damage may be the foundation for a legitimate claim in recoupment and the burden of proving such damage would be upon the defendant.</p> <p>Whether a given stipulation is to be deemed a condition precedent, a condition subsequent or an independent agreement is purely a question of intent. And the intention must be determined by considering not only the words of the particular clause, but also the language of the whole contract as well as the nature of the act required and the subject matter to which it relates.</p> <p>In view of the pecularities which necessarily characterize the sale and delivery of water through a system of water pipes under a contract where a water company has agreed to furnish, for a term of years, through its hydrants, to a municipal corporation, a constant and ample supply of potable water, under sufficient pressure for the extinguishment of fires, unavoidable accidents excepted, it is manifest that the mere receipt and consumption of water under such contract would not conclusively show an acceptance of the service as a performance of the contract. Considerable time might be required to determine whether or not an imperfect service was caused by the “unavoidable accidents” excepted in the contract, and under such circumstances a due regard for the necessities of the people would render a discontinuance of the use of the water unreasonable and impracticable.</p> <p>In the case at bar, the plaintiff took exceptions to certain instructions given by the presiding Justice and which are stated in the opinion. Held: that these instructions as a whole as applied to the facts in this case were substantially correct and not prejudicial to the plaintiff.</p>

On report on agreed statement of facts. Judgment for plaintiff for $1.00. Action of covenant broken to recover damages for a breach of the covenant against incumbrances brought by the original covenantee against the original covenantor after conveyance of the land by the former. The land to which this action relates is situate in the town of Jay. Plea, the general issue, and a brief statement alleging as follows : “1.

Petition for writ of certiorari. On report. Writ denied. Petition for a writ of certiorari to quash a record of the municipal officers of the city of Bangor wherein are contained the proceedings of the city in taking certain real estate of the plaintiff, in said city, by right of eminent domain for a public library building, under the provisions of R. S., chapter 4, section 89. Heard at the October term, 1906, of the Supreme Judicial Court, Penobscot County.

On motion by plaintiff. Overruled. Assumpsit upon a promissory note of the following tenor: “ $344.44. , July 5, 1905. “ Three months after date, we promise to pay to the order of— Biddeford National Bank— —Three hundred forty-four 44-100 Dollars — at said Bank. Value received. Etta O. Hill. D. O’Connor & Co.” Tried at the January term, 1906, of the Supreme Judicial Court, York County.

<p> Deeds. Fraud. False Statements. Estoppel. Evidence. </p> <p>The general rule that a party will bo estopped to question his own deed does not apply where the deed has been procured by fraud, as the doctrine is now well established that a conveyance obtained by fraud will not operate by way of estoppel against the grantor.</p> <p>A bond or deed procured by fraud will not operate as an estoppel upon the party defrauded ; relief may be granted under the circumstances at law, not only when fraud enters into it and vitiates the execution of the instrument, but when it consists in the misrepresentation of the nature and value of the consideration.</p> <p>If a person states to another person that which he knows to be false or recklessly states that which he does not know to be true concerning a material matter, and the person to whom such statement is made is justified by the circumstances connected with the matter concerning which such statement is made, in relying upon such statement without further investigation or inquiry, then such statement is characterized in law as a fraudulent representation. It is classified among the wrongs inflicted by one person upon another by means of deception, and in contemplation of law an intention to deceive is always involved.</p> <p>A fraudulent purpose may be inferred from a wilfully false statement in relation to a material fact; and it is not always necessary to prove that the person making such statement knew that the facts stated by him were false. If he recklessly states as of his own knowledge material facts susceptible o'f knowledge which are false, it is in effect, a fraud upon the party who relies and acts upon the statement as true.</p> <p>Ill the case at bar, the original plaintiff, Newell Goodwin, died after the commencement of the suit and before trial, and the action was prosecuted by his executor. Mr. Goodwin by deed had conveyed to the defendant a certain parcel of land, also “all the growth” standing on a certain other lot of land bounded on the north “by the above described lot this day deeded to said Charles W. Fall, running easterly to a certain spotted yellow birch tree standing by an elm.” The defendant cut and removed certain growth standing on the last described land and Mr. Goodwin brought an action of trespass quare clausum against the defendant, claiming that the defendant had committed a trespass although the defendant had only operated within the limits of the last described land. At the trial, the plaintiff claimed that another yellow birch tree standing within one or two rods from a “scraggy maple” about thirty rods westerly from the “spotted yellow birch by the elm,” was the monument for the northeasterly corner of the. last described land intended and agreed upon by the parties before the deed was executed, and that Mr. Goodwin was induced to assent to the bound described in the deed by means of the defendant’s positive assurance that it was only “ between one and two rods” from the “scraggy maple.” The testimony of the magistrate who wrote the deed was offered in behalf of the plaintiff to show that the defendant made fraudulent representation to the grantor, Mr. Goodwin, respecting the location of the “ spotted yellow birch near the elm,” for the purpose, as it was claimed, of inducing Mr. Goodwin to accept that monument as the northeast corner to be mentioned in the deed, and that Mr. Goodwin was thereby induced to execute the deed as it was written with calls embracing the growth on six acres more than he intended to sell to the defendant. The plaintiff claimed that this evidence considered in connection with the other evidence, was sufficient to create an estoppel against the defendant and preclude him from claiming the growth on land embraced in the deed thus obtained by means of a false representation, and that the plaintiff was not estopped by a deed thus obtained by fraud. The presiding Justice excluded the evidence of the magistrate and ordered a verdict for the defendant.</p> <p>Held: that the evidence of the magistrate respecting the representation made by the defendant to Mr. Goodwin, the grantor, should have been admitted and the case submitted to the jury upon the question of estoppel.</p> <p>At the time of the commencement of the action in the case at bar, the right to cut and remove the growth from the disputed section had been fully exercised by the defendant and he had no further interest in that part of the permitted lot from which the growth had been removed, hence there was no necessity or occasion for a proceeding in equity to reform the deed.</p>

On exceptions by plaintiff. Overruled. Action of assumpsit to recover damages for an alleged breach of a contract to purchase the' plaintiff’s steam laundry business in Camden, and the property connected therewith. Tided at the September term, 1906, of the Supreme Judicial Court, Knox County. Plea, the general issue.

In Equity. On exceptions by Georges National Bank, Petitioner to dismiss proceedings appointing receiver, etc. Sustained. The Port Clyde Development Company is a corporation organized in 1902, under the laws of Maine, and located at Portland. On February 14, 1904, the Georges National Bank of Thomaston, Knox County, commenced an action at law against the defendant corporation.

On exceptions by claimant. Sustained. Three cases of search and seizure under the provisions of lievised Statutes, chapter 29, section 49, originating in the Lewiston Municipal Court, Androscoggin County. In each of these cases, certain intoxicating liquors wore seized and taken from the possession of the Tarbox Express Company, a common carrier, while alleged to be still in transit.

On report. Complaint dismissed. Complaint under Revised Statutes, chapter 23, section 68, to have the damages determined alleged to have been caused by the raising of Hellier Street adjoining the complainant’s land in the City of Bangor. Heard at the January term, 1906, of the Supreme Judicial Court, Penobscot County.

On exceptions by defendants. Overruled. The defendants after conviction and sentence in a trial justice court on search and seizure process, appealed to the Supreme Judicial Court where they were again convicted.

<p> Taxation. Money (it Interest. Debts. Statutory Construction. Punctuation. Statute 1845, chapter 159, section 4. Ji. S., chapter 9, sections 5, 79, 80, 81. </p> <p>In the assessment of personal property for taxation under Revised Statutes, chapter 0, section 5, the amount which the person to be taxed is owing is to be deducted from the money which he has at interest and the debts duo him.</p> <p>The statute makes no distinction between money at interest and debts due the person to be taxed as to his right to have the same reduced in the assessment by the amount of debts which he is owing.</p> <p>It is a principle of statutory construction that, when the meaning of a statute is in doubt, it is well to resort to the original statute and there search for the legislative will as first expressed.</p> <p>While punctuation is subordinate to the text and can never control its plain meaning, yet in cases of doubt it may aid in its construction. Whatever may have been the case formerly in England, when statutes were enrolled upon parchment and enacted without punctuation, in this State, where such a practice has never obtained, there is no reason why punctuation, which is intended to and does assist in making clear and plain the meaning of all things else in the English language, should be rejected in the interpretation of statutes.</p>

<p> Waters and Water Courses. “Mill Act.” Dams. Rights and duties of dam, owner. Overflowing land below dam. Damnum Absque Injuria. </p> <p>The case at bar was an action on the case in which the plaintiff sought to recover compensation for the loss and damage sustained by him, because, as he alleged, the defendant opened the gates of his mill dam across Kenduskeag Stream, and wrongfully discharged upon the plaintfF’s meadow below, an unnatural and largely increased body of water which he had collected in his mill pond by means of the dam and flush boards. The iffaintiff excepted to all the rulings made by the presiding Justice in his charge to the jury.</p> <p>There was no averment in the plaintiff’s declaration and no suggestion of evidence tending to prove that the defendant’s mill dam and mills were not adapted in magnitude to the size and capacity of the stream and the quantify of water usually flowing in it. The instructions to the jury must therefore be presumed to have been given upon ihe assumption that the defendant’s works were adapted in size to the usual flow of the stream.</p> <p>With reference to the issue raised by the pleadings, the instruction was, that the defendant “could only maintain a head of-water for the use of his mill, only let it out at such times and in such quantities as were proper and reasonable for the use of his mill. He could not hold water back when he had no use for it and there was no need of it ... . and if he had occasion to use his mill, he could not turn out m'ore water than was reasonably necessary and proper for the reasonable use of his mill. He must so far have regard for the rights and interest of those below him but within his right to operate his mill, he could exercise his rights and if those below were injured that was their misfortune in owning land below the mill.” Held: that there was no error in the instructions.</p> <p>The mill act of Maine does not authorize a complaint for flowing lands below a dam, and hence in an action at common law to recover damages alleged to have been caused by a defendant wrongfully increasing the volume of a stream so as to overflow a plaintiff’s land below a dam, the question whether or not there was an unreasonable exercise of such defendant’s rights is a question of fact for the determination of a jury under proper instructions.</p>

<p> luxation. Assessment. lax Sales. Forfeitures. Tax Title. Amendment of Records. Revised Statutes, chapter 4, section 10 ; chapter 9, section 87. </p> <p>When a forfeiture of land is sought for non-payment of taxes assessed thereon, it must appear that there has been strict compliance with the essential provisions of the statute upon which the alleged tax title is founded. “To prevent forfeiture strict constructions are not unreasonable.” '</p> <p>When a forfeiture of land is claimed for non-payment of taxes assessed thereon it must appear that the assessors made a proper record of the assessment of the tax or committed to the collector a list of assessments comprising an assessment of a tax upon the land.</p> <p>Without statutory authority one who was formerly a town clerk, but who is no longer in office, cannot amend a town record made by him when clerk.</p> <p>Revised Statutes, chapter 4, section 10, providing that “ when omissions or errors exist in the records or tax lists of a town or school district, or in returns of warrants for meetings thereof, they shall be" amended, on oath, according to the fact, while in or after he ceases to be in office, by the officer whose duty it was to make them correctly,” is limited to amendments made under the sanction of an oath.</p> <p>It is indispensible to the validity of a sale of real estate made by a tax collector for non-payment of taxes, that the collector be shown to have been legally elected and qualified to act in that capacity.</p> <p>The case at bar was a real action to recover part of a township of land to which the plaintiff claimed title by virtue of a quitclaim deed from one who acquired his interest by deed from the inhabitants of the plantation, in which the land is situate, to whom the land was sold for non-payment of taxes assessed for the year 1897. Field.: (1) that there was no legal evidence to show that any person was legally elected to the office of collector by the inhabitants or appointed thereto by the assessors of the plantation for the year 1897 or that any person was duly qualified to act as collector of taxes for that year; (2) that it does not appear that the assessors made any proper record of the assessment or that they committed to the collector any such list of assessments comprising the tax in question.</p>

On exceptions by defendant. Sustained. Petition for review entered and heard at the September term, 1906, of the Supreme Judicial Court, Androscoggin County.

<p> Trespass Quare Clausum. Denver. Rights before assignment. Title to maintain. Evidence. Admissions and Declarations. Harmless error. </p> <p>The gist of the action of trespass quare clausum is the disturbance of the possession.</p> <p>Until dower has been lawfully assigned the right thereto is a mere chose in action, and confers no title to or seizin of the land itself.</p> <p>A widow entitled to dower in land cannot maintain trespass quare clausum for an injury done to the land when her dower has not been lawfully assigned to her.</p> <p>Admissions and declarations in disparagment of title are limited to those cases where the subject matter is capable of parol proof,</p> <p>When admissions and declarations do not relate to the declarant’s possession, which is provable by parol, but to his legal title, which such evidence is not competent to defeat, then such admissions and declarations are not admissible.</p> <p>When in an action of trespass quare clausum testimony which has no bearing except upon the question of damages, is offered by the plaintiff and excluded such exclusion is not error unless the plaintiff shows a right to maintain such action.</p>

<p> Collateral Evidence. Sams open to explanation, when. Implied Admissions of Liability. Intention. </p> <p>In an action brought by the plaintiff to recover for services alleged to have been rendered on the defendant’s farm at her request and for her benefit, the defendant admitted on cross examination that after the plaintiff’s claim had been made known to her, she mortgaged the farm for §900 for the purpose of taking up a mortgage given by her husband on property belonging to him, but on re-direct examination, the inquiry whether in giving this mortgage she had any purpose to defeat the collection of the plaintiff’s claim, was excluded by the court.</p> <p>Held: (1) That if the testimony be called purely collateral, it was not for the plaintiff to call out collateral facts which might prejudice and then object to an explanation of them.</p> <p>(2) That the testimony that the defendant had given the mortgage under such circumstances might operate as an implied admission of liability on her part and was therefore material and not purely collateral evidence.</p> <p>(3) That'it was the legal right of the defendant to state distinctly on redirect examination that in giving the mortgage she had no motive or design to hinder the collection of any claim which the plaintiff might have against her, and that she was not precluded from testifying in regard 'to her own intention by the fact that she was a party to the suit or otherwise, and that the exclusion of the testimony offered was therefore erroneous.</p>

<p> Ways. Location,. Trespass. Estoppel. “ Official Acts.” Authorizing a Tort. Liability. Speculative Damages, li. S., chapter 6, section 91; chapter 23, section 76. </p> <p>No public way can be located across flats without authority therefor being first obtained from the legislature.</p> <p>The owner of flats has in them an estate in fee, subject only to the public rights of fishing, fowling and passing over them in boats, and may maintain trespass quare clausum for any injury done to his possession of the same.</p> <p>Petitioners for the laying out of a way are not thereby estopped to deny the legality of its subsequent location.</p> <p>A grantee is not estopped by any act or declaration, of which he has no notice, of a grantor in possession at the time of the conveyance. Statements not acted upon afford no ground for estoppel.</p> <p>All acts of officials are not official acts, but only such as are done under some authority derived from the law, or in pursuance of prescribed duties.</p> <p>One who directs or authorizes a trespass is equally and jointly liable with him who commits it.</p> <p>Damages which are purely theoretic and speculative are too indefinite and uncertain to be recovered.</p>

<p> Deeds. Reservation. Same Construed,. Waiver. </p> <p>In the case at bar in which equity proceedings were instituted for the purpose of obtaining a determination, among other things, of the number of hours in each day during which the Libbey & Dingley Company as owners of the Lincoln Mill, so-called, is authorized to use the amount of water to which it was found to be entitled, the following facts appear: The Libbey & Dingley Company acquired its rights in question by virtue of a reservation in a deed from the Franklin Company to the Union Water Power Company dated December 5, 1878. In this deed the description of the granted premises is separated and arranged under fifteen different captions comprising the several dams, canals, gate house lots and other items constituting the water power conveyed. The paragraphs containing the reser- • vation are found under the sixth head entitled “ Gate House Lot,” the material parts of which are as follows:</p> <p>“This conveyance is made subject to all the rights which the said City of Lewiston possesses in the street or passageway aforesaid from its said lot to Main Street,” (and several other rights therein enumerated.) “Excepting and reserving to said Franklin Company, its successors and assigns, the right forever to take from said Great Androscoggin River, where it now takes water for the Lincoln Mill, so-called, so much water as is necessary to furnish power for the machinery at present in said Lincoln Mill; said reservation being subject to all prior grants of water power made by the Lewiston Water Power Company or the Franklin Company to any corporations or persons.</p> <p>“Subject also to all the conditions, obligations, limitations and provisions, applicable, contained in a certain indenture of lease from said Franklin Company to the Hill Manufacturing Company, dated December 30, A. D., 1865, and recorded in the Androscoggin Registry of Deeds; to which said indenture and its record reference is hereby made for a particular enumeration of said conditions, obligations, limitations and provisions.”</p> <p>Also in the aforesaid deed from the Franklin Company to the Hill Manufacturing Company it is provided that the latter “ shall have the right to use and draw the amount of water hereby conveyed during the whole of the twenty-four hours of each and every day or any portion thereof, more than fourteen hours, provided such use and drawing more than fourteen hours per day shall not injure or interfere with any other use which the party of the first part, their successors and assigns, may desire to make of said water during the fourteen hours of each day ” together with the further proviso that the said Hill Manufacturing Company should cease to use the water more than fourteen hours a day whenever the said Franklin Company should determine that such use is injurious to it the said Franklin Company and give written notice thereof to the said Hill Manufacturing Company. In accordance with the last aforesaid proviso, the Union Water Power Company, by written notice dated February 16, 1904, notified the Libbey & Dingley Company to cease using water for more than fourteen hours per day.</p> <p>Held: 1. That the construction given by the presiding Justice to the deed of December 5, 1878 from the Franklin Company to the Union Water Power Company was correct, and that the reservation therein in favor of the Lincoln Mill, and not the conveyance itself, was made “subject to all conditions, obligations, limitations and provisions applicable ” contained in the Hill indenture.</p> <p>2. That the reservation in question must be held subject to the conditions, limitations and provisions of the Hill indenture as far as applicable, precisely the same as it would have been if all of such conditions/ limitations and provisions had been copied verbatim into the reservation. •</p> <p>3. That upon the findings of the presiding Justice that the use of the water, by the Libbey & Dingley Company in excess of fourteen hours a day was not shown to be injurious to the Union Water Power Company prior to the aforesaid notification, the latter cannot be deemed to have waived any rights by acquiescence in such excessive use prior to that time.</p> <p>4. That while this conclusion that the Lincoln Mill became subject to the provision of paragraph sixth of the Hill indenture, providing for a day run and a night run and prescribing the manner in which the right is to be exercised, is based upon a legal construction of the reservation to the Franklin Company in favor of the Lincoln Mill, it is also manifestly in general accord with all of the grants made by the Lewiston Water Power Company prior to 3878, as well as all of the indenture of the Union Water Power Company after that date, and in harmony with the entire history of the development of this water power as well as the general policy indicated by its management and control for a quarter of a century.</p>

<p> Wills. Trust. Sume not to fail, when. School District cannot act as trustee. Trustee can he appointed, when. </p> <p>It is a well established general rule of law that a trust shall not fail for want of a trustee.</p> <p>Trusts conferring discretionary powers are not to be defeated because the trustee fails to exercise the discretion imposed upon him, either from his inability, legal disability or refusal to act.</p> <p>A testator by the fourth item of his will provided as follows: “I give bequeath and devise all the rest, residue and remainder of my estate, real personal and mixed, wherever found and however situated unto School District No. 3 in the town of Canton, known as the Canton Point District, the same to be used and appropriated for the purpose of building a Universalist Church, at Canton Point between my residence and that of Gran, ville Child at Canton Point, (so called) in said School District, the balance if any remains after building such a church is to be used in supporting and maintaining preaching in the same, as said School District may designate by a majority vote, said district to use as much money in building the church as a majority of the same may desire.” Held: (1) that while it was intended by the testator that the school district should act as trustee in executing this provision of his will, yet the school district was legally incompetent to act as such trustee; (2) that the school district did not succeed to the title of the trust fund ; (3) that a trustee can be appointed to execute this provision of the will.</p>

<p> Evidence. Attorney and Client. Privileged Communications. Waiver of question of privilege. Who may waive, stated. </p> <p>It is a universal rule that the question of privilege, with respect to communications offered in evidence, can be invoked only by the author of the communication.</p> <p>.But in the case of persons deceased the general rule is that the right of waiver, when the character and reputation of the deceased is not involved, is lodged in the personal representative, that is, the executor or administrator or the heirs of the deceased.</p> <p>In the case at bar, testimony, material to the issue, with reference to a certain interview which the deceased had with an attorney at law and which did not involve the character or reputation of the deceased, was offered in evidence by the defendant, an heir at law. The plaintiff, beneficiary under the alleged will of the deceased, objected to this testimony on the ground that the interview was in the nature of a privileged communication of the deceased to the attorney, and the testimony was excluded. Held,: Assuming that the interview between the deceased and the attorney, were the deceased living, falls within the rule of privileged communications, yet the defendant as heir at law had a right to waive the question of privilege and did waive the same and that the testimony should have been admitted.</p>

<p> Master and Servant. Negligence. Fellow Servant. Semaphore. Danger Signals. “Law of Light.” </p> <p>It is the duty of a railroad company, with respect both to the original construction and subsequent maintenance of a semaphore, to exercise due care to have such a permanent adjustment of it that when the lantern is kept in suitable working order, and properly set by the operator, it will display the correct signal to the engineer of an approaching train.</p> <p>But when a locomotive fireman is injured by a collision between his engine and another, and such collision is caused by the negligence of the switch-tender in failing seasonably to change the semaphore signal from green to red, or by a want of due vigilance and attention on the part of the engineer of his train in failing to observe the red light, if seasonably displayed, it must in each instance be deemed the result of the negligence of a fellow servant and the railroad company is not liable for the fireman’s injury.</p> <p>In an action by a locomotive fireman against a railroad company to recover damages for an injury received in a collision alleged to have resulted from the failure of the defendant company to locate a semaphore in a suitable place and adjust it at a proper angle, it appeared in evidence that the semaphore was permanently set at such an angle that the signal light thrown down the road could be distinctly seen at a distance of 1350 feet from the semaphore by the engineer of an approaching train, that the light would remain in full view for a distance of about G50 feet; that the view was then obstructed by the forward portion of the engine running on an ascending grade for a distance of 350 feet when the signal was again plainly visible for the remaining distance of abopt 350 feet. It also appeared that the rays of light emitted through the double convex lens of the semaphore lantern were so converged that the angle of refraction was less than fifteen degrees from a parallel line, and that without this lens the rays would have been dispersed at an angle of GO degrees.</p> <p>Held: That in view of the immutable law that light must always traverse space in direct lines, and of the fact that the red and green lights of the semaphore lantern are at all times precisely at right angles to each other, it was impossible that the same light, adjusted at the same angle, should exhibit clear red to one observer, clear green to another and a confusion of red and green to a third, under precisely the same conditions, and that oral testimony in direct contravention of natural laws must be deemed incredible.</p> <p>Also held: That if the semaphore was seasonably set red it must have sent down the line the danger signal which the engineer in the exercise of proper vigilance could not have failed to distinguish; that the collision resulted either from the engineer’s failure of duty in this behalf, or from the failure of the semaphore tender to change the signal from green to red until a moment before the collision when it was too late for the engineer to stop the train in season to prevent it, and that in either event the grevious injury to the plaintiff was caused by the negligence of a fellow servant and the liability of the defendant company is not established.</p>

<p> Ways. Laying out town ways. Judicial duties of selectmen. Selectman cannot be •petitioner, when. Jurisdiction. Appeal to County Commissioners. Question of jurisdiction may be raised, when. R. S., chapter S3, section SI. </p> <p>It is a maxim of the law that “a person ought not to be judge in his own cause, because he cannot act both as judge and party,” and this maxim applies in all oases where judicial functions are to be exercised, whether in proceedings of inferior tribunals or in courts of last resort.</p> <p>The duties of municipal officers in laying out town ways are not ministerial merely but judicial.</p> <p>The laying out of a town way involves the taking of private property for public use, under statute authority, and all statute requirements must be fully and strictly complied with.</p> <p>Municipal officers in laying out a town way are to exercise their judgment as to the propriety of the way, and as to its location between the termini, and especially in determining whether the pre-requisite conditions exist which warrant the taking of private property for public use and awarding damages to owners of land so taken.</p> <p>When one of the selectmen of a town signs a petition for the laying out of a town way in his town and such selectman is one of the two selectmen who lay out the way and signs the return upon the petition for the way, the action of the selectmen in laying out such way is void, and would be void even if a sufficient number of the selectmen without him concurred in the result.</p> <p>When the owner of land over which a town way has been laid out by the selectmen and accepted by the town, presents a petition to the county commissioners praying for the discontinuance of such way and the county commissioners after hearing affirm the location of such way and the petitioner appeals to the Supreme Judicial Court and that Court as provided by statute appoints a committee to hear the parties and report whether the judgment of the County Commissioners should be in whole or in part affirmed or reversed, and such committee after hearing reports that the judgment of the County Commissioners “ be wholly affirmed and in no part reversed,” the question of jurisdiction of the County Commissioners, and any other questions affecting the legality of their proceedings, may be raised when the report of the committee is offered for acceptance.</p>

On exceptions. Same not considered. Case dismissed. Petition by plaintiff and two others formerly selectmen of Cape Elizabeth, presented to the Supreme Judicial Court, Cumberland County, praying for the amendment of certain town records. Frederick O. Conant, by consent of court, appeared and filed motions for the dismissal of the petition, which motions were overruled and thereupon Mr. Conant took exceptions. The case appears in the opinion.

On agreed statement. J udgment for defendant. Assumpsit on account annexed brought by the plaintiff for commissions for five years, alleged to be due him as agent or broker, for leasing property at Bar Harbor, September 6, 1902, then owned by the defendant. The account annexed is as follows: “ Bar Harbor, Maine. “ Mrs. May C. P. Jones, To Edward B. Mears, Dr. 1902. September 6th.

<p> Cases on Report. Evidence. Conditional sales. Title retained by vendor. Payment “in money.” Acceptance of note no waiver of condition, when. Replevin. Mortgage given by vendee no defense against vendor, when. R. 8., chapter US, section 5. </p> <p>1. In cases heard on report, the court will consider only such evidence as is competent, relevant and legally admissible, unless otherwise stipulated.</p> <p>2. When, a plaintiff in replevin claims title under the defendant’s written order for goods, by the terms of which the vendor is to retain the title until the price is paid, proof of the execution of the order is essential before it can be properly admitted in evidence.</p> <p>3. But when such an order is admitted, against objection, without proof of execution, and the case is thereafter reported to the Law Court for its determination, and it appears from the whole record that the order was executed by the defendant, the objection is no longer tenable.</p> <p>4. When a purchaser in his written order for goods stipulates that the title to them shall remain in the seller until payment of the price “iu money,” and it is therein also provided that a note may be given for the price, the acceptance by the seller of the purchaser’s negotiable note for the pfice, is not to be deemed a waiver of the condition of the sale, so as thereby to pass the title to the purchaser, unless it appears to have been so intended.</p> <p>5. If the purchaser of goods under a conditional sale mortgages them before the instrument of sale is recorded in the town clerk’s office, such mortgage is not a defense in an action of replevin by the seller against the purchaser. The rights of the mortgagee are not affected. But the' mortgager cannot set up the mortgage lien created by himself as a defense.</p>

On motion by defendant. Sustained unless remittitur be made. Action on the case to recover damages for personal injuries sustained by the plaintiff and alleged to have been caused by the negligence of the defendant while she was alighting from a railroad car at Sherman Station or Patten Junction, so called, on the line of the defendant’s railroad. Tried at the April term, 1905, of the Supreme Judicial Court, Aroostook County. Plea, the general issue.

On motion by plaintiff. Overruled. Assumpsit on seven promissory notes of one hundred dollars each, given by the defendant to the plaintiff.

<p> Statutory Construction. Statute not retroactive, when. Statute 1905, chapter 90. Revised Statutes, chapter 46, section 2. </p> <p>It is a sound rule of construction that a statute should have a prospective operation only unless' its terms show clearly a legislative intent that it should operate retrospectively.</p> <p>Revised Statutes, chapter 46, section 2, provided that “all loans . . . . for less than two hundred dollars, secured by mortgage or pledge of personal property, shall be dischargeable by the debtor upon payment or tender of the principal sum actually borrowed, and interest at the rate specified therein, which shall not exceed” certain specified rates, and further provides that “ all loans made in violation hereof shall bear interest at the legal rate of interest only.” By the provisions of the Public Laws, 1905, chapter 90, said section 2 of said chapter 46 of the Revised Statutes was amended, the amendment providing, among other things, that “all payments made in excess of six per cent interest on loans so made in violation hereof shall be applied to the discharge of the principal; and in case a greater sum has been paid by the borrower than the amount of the principal and interest at six per cent on loans so made in violation hereof, may be recovered from- holder of said security by the borrower, in an action on the case.” Held : That the amendment of 1905 is not retroactive and does not apply to payments voluntarily made before the enactment of the amendatory statute.</p>

<p> Mandamus, Jurisdiction of Justices. Petition. Filing. Notice. Service. Practice. Proceedings. Allegations. Alternative Writ. Return. Peremptory Writ. Pleadings. Hearing. Waiver. Questions of Bad. Irregularities. Errors. Statute of Anne, chapter 2, section 7. R- S., chapter 85, section 2; chapter 104, sections 17, 18. </p> <p>1. The authority of the court to issue writs of mandamus is vested in each Justice thereof, to be exercised by him, not as presiding Justice in a regular-term of court, but individually and in any county whether holding a term of court there or not.</p> <p>2. The petition for the writ of mandamus may be presented to any Justice in any county in term time or vacation, and such Justice may take cognizance of the petition whatever the county of its origin and although some other Justice may be then in that county.</p> <p>3. Upon receiving a petition for the writ of mandamus, the Justice may order notice of hearing thereon returnable before him in that or any other county at a time and place to be fixed by him.</p> <p>4. At the hearing upon- the petition, the only question to be determined is the sufficiency of its allegations. Their truth or falsity will not then be, considered unless under agreement of the parties that the whole question of the issuance of the peremptory writ be then determined.</p> <p>5. If the allegations in the petition are adjudged upon hearing- to be sufiicient, the Justice may issue the alternative writ of mandamus returnable before him in any county at a time and place to be fixed by him.</p> <p>6. The alternative writ of mandamus is not an original writ nor a final writ of execution, but is of the nature of an interlocutory rule to show cause, and is sufficiently authenticated by the signature of the Justice issuing it, without the seal of the court and without the signature of any clerk of the court.</p> <p>7. It is not necessary tlmt the petition or the alternative writ of mandamus bo filed or entered upon the docket of the court in the clerk’s office in any county prior to the making a final order after the return of the alternative writ. The case remains in the control of the single Justice in whatever part of the State he may be.</p> <p>8. When there are several respondents to a petition for the writ of mandamus, and one or more of them acknowledge service of the order of notice, the other respondents cannot require such order to bo actually served upon those acknowledging such service.</p> <p>9. The respondents are to make return to the alternative writ of mandamus at the time and place appointed therefor, but the Justice issuing the writ does not lose jurisdiction of the case by not being personally present at such time and place.</p> <p>30. Upon the return to the alternative writ, the petitioner may demur to or traverse such return, and then a' time and place in any county may be fixed by the Justice for hearing thereon.</p> <p>11. If upon such hearing the Justice orders the peremptory writ of mandamus to issue, he may direct from what county it shall issue from the clerk’s office of the court and be made returnable. The case may then be entered on the docket of the court in that county aud the papers be there filed.</p> <p>12. Upon the return to the alternative writ of mandamus, the petitioner may reply to the return, and the Justice has power to allow amendments of the allegations anil directions in the alternative writ which do not introduce any new ground for the writ, nor authorize a more stringent command in the peremptory writ.</p> <p>18. If at the hearing upon the return to the alternative writ the petitioner states that he waives some particular allegation in the alternative writ and offers no proof of it, the respondents have no need to disprove it.</p> <p>14. A petition for a writ of mandamus addressed “To the Hon. Justice of the Supreme Judicial Court now being holden at Bangor within and for the County of Penobscot ” is not necessarily addressed to the court then in session, and may be considered as addressed to the Justice individually.</p> <p>15. An order of notice upon such petition headed “Supreme Judicial Court, Penobscot County, April Term, 1907” and returnable “at the Supreme Judicial Court now in session at Bangor in and for said County of Penobscot,” but signed by the Justice individually, and not as presiding Justice, is amere irregularity in form and does not effect the jurisdiction of the Justice.</p> <p>ll>. That in the alternative writ the respondents were commanded to “make known in our Supreme Judicial Court before our undersigned Justice thereof,” &c., is mere error in form, if any error at all, and does not affect the jurisdiction of the Justice.</p> <p>17. The Attorney General of the State having signed and authorized the petition for the writ of mandamus in a matter affecting the public, it is immaterial what persons or counsel thereafter prosecute the case in his name and under his authority.</p> <p>18. In proceedings for the writ of mandamus before a single Justice ques- ■ tions of law only can be taken to and considered by the Law Court. All questions of fact, or of propriety or expediency, are to be determined finally by the Justice having original cognizance of the case.</p> <p>19. In this case, after the hearing upon the return to the alternative writ, the Justice ordered the case to be entered on the docket of the court and the papers filed in the clerk’s office in Kennebec County, and ordered the peremptory writ to be issued from the clerk’s office in that county and made returnable there. This was a sufficient compliance with the law, though the parties reside in Knox County.</p> <p>20. In this case it was not seriously questioned that the allegations in the petition and in the alternative writ justified the issuance of the peremptory writ, provided the proceedings were begun and carried on with sufficient regularity to give the Justice ordering the peremptory writ jurisdiction to do so. No error fatal to that jurisdiction has been pointed out.</p>