Volume 103 — Maine Reports

<p>On report.</p> <p>Real action brought to recover a certain lot of land in Orrington, containing about five acres, and being the former homestead of Nathan P. Marston, deceased testate, and of which he died, seized and possessed. Plea the general issue with brief statement alleging the title to the demanded premises to be in the defendant and not in the plaintiff.</p> <p>Tried at the April term, 1907, of the Supreme Judicial Court, Penobscot County. At the conclusion of the evidence, on both sides, it was agreed to report the same to the Law Court," and that court "upon so much thereof as is legally admissible,” "to render such judgment as the law and the evidence require.”</p> <p>The action involved a construction of the last will and testament of the said deceased testate, Nathan P. Marston, father of the plaintiff. Said last will and testament is as follows :</p> <p>"Be it remembered that I, Nathan P. Marston of Orrington in the County of Penobscot in the State of Maine being of sound and disposing mind and memory, but mindful of the uncertainty of this life, do make, publish and declare this my last will and testament, hereby revoking all former wills by me made.</p> <p>"After the payment of my just debts, funeral charges and expenses of administration, I dispose of my estate, as follows :</p> <p>"Item. I give, devise and bequeath to my wife, Elizabeth A. Marston, all my estate both real and personal wherever found and however situate for her use during life.</p> <p>"Item. At the death of my said wife Elizabeth, whatever may remain of said estates, I give, devise and bequeath to my daughter Elizabeth A. Young.</p> <p>"Item. I nominate and appoint J. Wyman Phillips of said Orrington sole executor of this my last will & testament.</p> <p>"In Testimony Whereof, I hereunto set my hand and seal, and declare this to be my last will and testament, this tenth day of August in the year one thousand eight hundred and ninety-five.”</p> <p>„ "Nathan P. Marston (L. S.)”</p> <p>The testator died shortly after making the aforesaid' will, and the same was duly approved and allowed by the Probate Court, Penobscot County.</p> <p>All the material facts are stated in the opinion.</p>

On exceptions by plaintiff. Trover for the conversion of four cords of wood alleged to have been taken and carried away by the defendant. The action was brought in the Portland Municipal Court. Plea, the general issue. After trial had, said court rendered judgment for the plaintiff, and thereupon the defendant appealed to the Cumberland County Superior Court.

<p>In Equity.</p> <p>In equity. On report.</p> <p>Petition for the appointment of appraisers under the provisions of chapter 424, Special Laws, 1907, incorporating the plaintiff Water District and authorizing-it to acquire by purchase or by the exercise of the right of eminent domain the entire plant, property and franchises, rights and privileges of the defendant company. Petition dated and filed June 1, 1907. Answer and pleadings filed June 18, 1907. Heard June 18, and June 28, 1907, and decree made appointing three appraisers. The parties consenting thereto, the cause was then "reported to the Law Court for the Western District now in session, the cause to stand for further hearing in the court below or to be dismissed as the Law Court may determine. ”</p> <p>The case sufficiently appears in the opinion.</p>

<p> Reference■ Equity. Appeal. </p> <p>Where a bill in equity is referred by rule of court, without conditions or limitations, and the referee, having heard the parties, reports the facts found by him, and his conclusions thereon to the court, and his report is accepted, an appeal from a final decree, made in accordance with the terms of the report, cannot be sustained.</p> <p>Savings Bank v. Herrick, 100 Maine, 494, affirmed.</p>

On exceptions by plaintiff. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. Tried at the December term, 1903, of the Supreme Judicial Court, Somerset County. Plea, the general issue. Ver-diet for plaintiff for $2500. The defendant then filed a general motion for a new trial and the verdict was set aside. See 100 Maine, 171.

On report. Action on the case brought by the plaintiff against the defendant company to recover damages for obstructing, with logs and lumber, the Presque Isle Stream, which was alleged to be a navigable stream flowing through the towns of Mapleton and Presque Isle in the County of Aroostook, and thereby preventing the plaintiff from passing up and down said stream with a boat or canoe between Presque Isle Village and a summer residence or camp on a lot of land owned by him…

On agreed statement. Assumpsit on account annexed brought by the plaintiff against the defendant, R. A. Copp, to recover the sum of $210 for six months labor at $35.00.”' The plaintiff is the wife of the said defendant, R. A'. Copp.

On exceptions both by plaintiff and by defendants. Plaintiff’s exceptions sustained. Real action to recover certain real estate situate in the town of Cushing. Entered and first tried at the April term, 1904, of the Supreme Judicial Court, Knox County. Verdict fgr plaintiff. On the defendants’ exceptions the verdict was set aside.

On general motion and special motion by defendant. Action on the case to recover damages for alleged personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant company. Tried to a jury at the January term, 1907, of the Supreme Judicial Court, Cumberland County. Plea the general issue. Verdict for plaintiff for $3641.66. The defendant then filed two motions to have the verdict set aside.

<p>On report.</p> <p>Real action to recover a certain lot or parcel of land situate in Monroe. Plea, the general issue with a brief statement alleging that the title was not in the plaintiff but was in one Sidney Webber.</p> <p>Tried at the January term, 1906, of the Supreme Judicial Court, Waldo County. At the conclusion of the evidence, it was agreed to report the cause to the Law Court for decision.</p> <p>The case fully appears in the opinion.</p>

<p> Criminal Law. Trial. Exceptions. Misconduct of Counsel. Evidence. Intoxicating Liquors. B. S., chapter S9, section 49. </p> <p>The right of exception under the practice in this State is conferred by statute, and is based upon some opinion, direction or judgment on the part of the court which is erroneous, and adverse and prejudicial to the party excepting.</p> <p>Counsel may employ wit, satire, invective and imaginative illustration in his arguments before the jury, both in civil and criminal trials, but in this the license is strictly confined to the domain of facts in evidence.</p> <p>A violation of the rule that counsel in his argument is strictly confined to the domain of facts in evidence, may be ground for a new trial on motion of the party whose rights are prejudiced, or exceptions may lie to the action of the court in omitting or declining to interfere with the misconduct of counsel when objections are interposed.</p> <p>But when counsel violates the rule that his argument must be strictly confined to the domain of facts in evidence, and objections are interposed, and the court does interfere and does what is proper to prevent any unjust influence being left on the minds of the jury from anything said by counsel not warranted by the evidence, then a new trial on the ground of misconduct of counsel must be sought by motion and not by exceptions.</p> <p>In the case at bar and under the facts as shown by the case, Held: That exceptions to the alleged misconduct of counsel did not lie.</p> <p>The defendant was indicted at the January term, 1906, of the Supreme Judicial Court, Androscoggin County, as a common seller of intoxicating liquors. At the trial of the defendant at the same term on said indictment, and against his objection, an examined copy of the record of special liquor taxes in the Internal Revenue Office at Portsmouth, ÍT. H., showing payment of a retail liquor dealer’s tax by the Tingwick Bottling Company, from July 1, 1904, to July 1,1905, at 127 Lincoln Street, Lewiston, Maine, and further showing payment by .the same company of a tax as wholesale dealers in malt liquors, for the same period, at 84 Lincoln Alley, in said Lewiston, was offered by the State and admitted in evidence. The defendant himself testified that from July 1, 1904, to February 1, 1905, he was the owner and sole occupant of the building at 127 Lincoln Street, and the owner of the building at 84 Lincoln Alley from July 1, 1904, to the date of the trial. It also appeared from the testimony of one Hudson, a witness for the State, that the defendant gave orders and exercised control in relation to large quantities of intoxicating liquors consigned to the Ting-wick Bottling Company, and that the defendant was the only person with whom the-witness had any talk in regard to the Bottling Company liquors. The defendant also objected to this last mentioned testimony. Reid: (1) That the testimony of the aforesaid witness was admissible. (2) That the circumstances as shown by the case make the relevancy of the Internal Revenue records clearly apparent as evidence competent to show that the defendant if not the owner of the liquors assisted the common seller in the business.</p>

<p> Equity. Decrees. Liens on Buildings. Repairs. “Consent” of Owner. Corporations. Authority of Directors. R. S., chapter 93, sections 29, 30, 31, S3, 36. </p> <p>The statute gives a lien to persons performing labor or furnishing materials in erecting or repairing any building “ by virtue of a contract with or by consent of the owner,” and provides that “if the labor or materials were not furnished by a contract with the owner,” he may prevent such lien by giving written notice that he will not. be responsible therefor.</p> <p>A building known as the Auditorium owned by the Eastern Maine Musical Association was occupied by the defendant Mathis under a written lease providing that the premises were “ to be used as a skating rink,” and the plaintiffs by virtue of a contract with the tenant Mathis furnished mate* rials and performed labor in relaying a portion of the floor which was found to be in an unsuitable condition for skating.</p> <p>In a proceeding in equity to enforce their lien on the building, in which the plaintiffs contended that the work was done by them by consent of the corporation known as the Eastern Maine Musical Association, the owner of the building, it appeared that the new section of floor was laid with the intention of making it a permanent improvement to the building as well as a convenience to the tenant; that it would have been of no value for removal by Mathis during his tenancy, and was not in fact removed by him, and that-the building with the floor thus repaired, continued to be used as a skating rink after he surrendered possession. It also appeared that Mr. Beal, the president of the Association, was present in the building the next day after the plaintiffs commenced the repairs, and had knowledge of the undertaking before the old boards had all been taken up and before any part of the new floor had been laid or the materials therefor had been furnished ; that he made comments upon the work, but expressed no dissent or dissatisfacfion, and gave no notice to the plaintiffs that the Association would not be responsible for the repairs. It further appears that in a suit brought in the name of the Association against Mathis to recover arrears of rent, Mr. Beal gave credit for §>L50 as an “ allowance on floor.”</p> <p>HELD:</p> <p>1. That the decree entered by a single Justice, in accordance with the advisory verdict of the jury, sustaining the plaintiffs’ lien, was not shown by the appellants to be clearly erroneous, and must be affirmed.</p> <p>2. That while the consent required by the statute to constitute the foundation of a lien must be something more than a mere acquiescence in the act of a tenant who for his own convenience makes temporary erections and additions which he has a right to remove during his tenancy, yet if the owner of the building has knowledge that certain repairs are necessary and makes no provision for them, but is present when they are being made by his tenant and gives no notice that he will not be responsible therefor, his consent may be inferred from his conduct considered in connection with all the circumstances of the case.</p> <p>3. That it is competent for a board of directors to establish a mutual understanding that one of their number shall be the active agent of the board in the management of the property and the conduct of the business affairs of the corporation ; and that it is not indispensable that such an understanding should be created by a formal vote or proved by a formal record, but that it may be inferred from the situation and conduct of the parties.</p> <p>4. That it was not error on the part of the jury and the presiding Justice to draw the inference that Mr. Beal had acquired the authority to ‘‘ bind the corporation by the habit of acting with the assent and acquiescence of the board of directors, and to find that the repairs were made “ by consent of the owner,” given through Mr, Beal its authorised agent, within thp meaning of the statute.</p>

<p>On motion by defendant.</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.</p> <p>Tried at the December term, 1906, of the Supreme Judicial Court, Somerset County. Plea, the general issue. Verdict for plaintiff for $825. The defendant then filed a general motion for a new trial.</p> <p>All the material facts appear in the opinion.</p>

<p>On exceptions and motion by defendant.</p> <p>Action of assumpsit brought in the Superior Court, Cumberland County. The declaration in the plaintiff’s writ, is as follows :</p> <p>“In a plea of the case, for that the said defendant, at said Portland on the thirteenth day of July 1903, agreed with the plaintiff, that if he, the said plaintiff, would put one hundred dollars (100) into a certain investment, he Ames, would give or make him a suit of clothes for his first years profits, or he would guarantee him the value of said suit of clothes at the end of the first year as a profit; that said defendant on said date, promised to account for or return said one hundred dollars at the end of one year, if so requested; and the said Lancaster relying upon said representations, promises and guarantee of the defendant, did then and there let the said Ames have said sum to invest; that said Ames though requested has never paid said profit to the plaintiff, nor any part thereof, neither has he accounted to said plaintiff for said one hundred dollars or any part thereof though also requested so to do.” Also under the money counts in the writ the plaintiff made the following specification : “The plaintiff will prove the defendant accepted 100 on July 13th 1903 for the use of plaintiff; and that he agreed to repay on (or) account for said sum at the end of one year but has neglected so to do upon request, and that said money was accepted by the defendant to invest.”</p> <p>Tried at the February term, 1907, of the aforesaid Superior Court. Plea, the general issue. Verdict for plaintiff for $116. During the trial the defendant excepted to certain rulings made by the presiding Justice and also after verdict filed a general motion for a new trial.</p> <p>All the material facts appear in the opinion.</p>

<p>Parent and Child. Advancement. Estoppel. Executed Contract. Consideration Illegal in Part. R. 8., chapter 77, sections 4, 5, 6.</p> <p>1. By Revised Statutes, chapter 77, sections 4, 5 and 6, when a parent and child (of age) agree in writing that the transfer of certain property and property rights from the parent to the child shall be deemed an advancement equivalent to the whole amount of the child’s share as heir in the parent’s estate such agreement will bar the child from any share in such estate.</p> <p>2. An acknowledgment by a child in writing that he receives the transfer of certain property rights and certain releases of causes of action from his parent in full of all demands he “claiming as heir or otherwise has or may have against the estate of” the parent, is an acknowledgment that he receives them as an advancement of his whole share as heir of his parent, and bars his claim to any share after 'the'parent’s death.</p> <p>3. That, after the death of the parent, the other heirs for a time admitted to some extent the claims of such child to a share in the estate does not estop them from afterward denying his right to further share.</p> <p>4. That among the releases to the child by the parent of causes of action was a promise not to institute criminal proceedings, does not invalidate the advancement. While illegality of part of the consideration may prevent the enforcement of an executory contract, it does not undo an executed contract.</p>

On exceptions by plaintiff. Tort. The declaration in the plaintiff’s writ is as follows :■ • In a plea of the case for that the said plaintiff on the 3rd inst. was rightfully passing along from Mechanic Row to Main Street in a passageway legally opened and subject to the rights of travellers to pass upon, in the rear of the store and place of business maintained by the defendants,, and while so passing along in the rear of the store of said defendants, without any notice,…

<p> Sales. Misrepresentation. Rescission. Redelivery. </p> <p>1. Material misrepresentation as to its qualities by the vendor of a chattel, made to induce the vendee to purchase, gives the vendee a right to rescind the sale within a reasonable time after the misrepresentation is discovered.</p> <p>2. Such misrepresentation by a person selling the chattel for the owner also gives a right to rescind the sale.</p> <p>3. To effect a rescission of a sale it is not necessary actually to redeliver the property to the vendor at the place where delivered by him, if he declares he will not accept redelivery. In such case it is enough for the vendee to offer a redelivery, and, if refused, to hold the property subject to the vendor’s order.</p> <p>4. To preserve a right to rescind a sale it is not necessary for the vendee to rescind immediately upon the first discovery of some material misrepresentation. He may waive that and yet rescind upon subsequent discovery of other material misrepresentations.</p> <p>5. When upon notice of some material representation the vendor suggests further investigation or trial, the vendee may take a further reasonable time therefor without waiving his right to rescind the sale.</p> <p>6. If the property sold is damaged while in the possession of the vendee without his fault, he is not obliged in order to rescind the sale, to repair the damage before redelivery or offer of redelivery to the vendor.</p>

<p>On motion by defendant.</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 company. The accident in which the plaintiff was injured, occurred in the Charlestown Yard, so called, of the defendant company in the City of Charlestown, Massachusetts, February 9, 1904. Writ dated August 10, 1905. Plea the general issue with brief statement as follows: "And for brief statement the defendant further says that before the purchase of the writ in the above entitled action, to wit: On the 9th day of February, 1904, at Boston, Massachusetts, the said plaintiff, by his certain writing of release, by him signed and sealed with his seal and in court reproduced, in consideration of the sum of fifteen dollars ($15) to the plaintiff in hand, paid by the Boston & Maine R. R. receipt whereof was thereby acknowledged and the further consideration of the payment of the bill of Dr. Sawin, the plaintiff did thereby release and forever discharge said Boston & Maine R. R., defendant in above entitled action, its officers, agents and servants, from any and all actions, causes of action, claims and demands for, upon, or by reason of any damage, loss, injury or cost which heretofore had been, or which thereafter might be sustained by said plaintiff on account of or in consequence of an accident at or near Boston, Massachusetts, on or about February 9th, 1904, whereby said plaintiff claimed to be injured on the Eastern Division train and the defendant avers that the accident therein referred to and from all consequences of which said plaintiff therein released the defendant is the same accident complained of in the plaintiff’s writ and the sole cause of action in the present suit.”</p> <p>Tried at the April term, 1906, of the Supreme Judicial Court, Aroostook County. Verdict for plaintiff for $1,416.66. The defendant company then filed a general motion to have the verdict set aside.</p> <p>The written release given by the plaintiff to the defendant company, mentioned in the defendant company’s brief statement and which was introduced in evidence during the trial, and is discussed and considered in the opinion, is in words and figures as follows:</p> <p>" Boston & Maine Railroad.</p> <p>" $15.00</p> <p>" I Abner Valley of Fort Fairfield, Maine, in consideration of the sum of fifteen and no-100 dollars to me in hand paid by the Boston & Maine Railroad, the receipt whereof is hereby acknowledged, do hereby release and forever discharge said Boston & Maine Railroad, its Officers, Agents and Servants, from any and all actions, causes of action, claims and demands for, upon, or by reason of any damage, loss, injury or cost which heretofore has been or which hereafter may be sustained by me on account of or in consequence of an accident at or near Boston, Mass., on or about Feb’y 9, 3904, whereby I was injured while a passenger on a Eastern Div. train. Said Railroad agreeing to pay Dr. Sawin.</p> <p>" I have read the above.</p> <p>" In Witness Whereof, I have hereunto set my hand and seal at Boston, Mass., this 9th day of Feb’y nineteen hundred and four.</p> <p>Abner Valley (seal)”</p> <p>" Signed and sealed in the presence of Lydia A. Carleton,</p> <p>R. T. Damon.”</p> <p>All the material facts are stated in the opinion.</p>

<p>On report.</p> <p>Action of assumpsit to recover damages for an alleged breach on the part of the defendants of a contract for the sale and delivery of one thousand bushels of potatoes. Plea, the general issue.</p> <p>Tried at the October term, 1906, of the Supreme Judicial Court, Penobscot County. At the conclusion of the testimony, it was agreed to report the case to the Law Court, " to settle the whole question of law and fact upon so much of the testimony as is legally admissible. ”</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Action on the case to recover damages sustained by the plaintiff and caused by the alleged failure of the defendant city to maintain and keep in repair a certain public drain in the defendant city. (See Revised Statutes, chapter 21, section 18.) Plea, the general issue.</p> <p>Tried at the January term, 1907, of the Supreme Judicial Court, Androscoggin County. At the conclusion of the testimony, and by agreement of the parties, the case was reported to the Law Court for determination upon the legally admissible evidence.</p> <p>The case fully appears in the opinion.</p>

<p>On exceptions by plaintiffs.</p> <p>Action against the defendant, a deputy sheriff, for failure to serve an execution running against the body by arrest of the judgment debtor.</p> <p>The action was brought in the Supreme Judicial Court, Somerset County, and by agreement of the parties and by rule of court duly issued, was referred "to the determination of Judge Lucilius A. Emery to be heard on legal principles; the report of whom to be made as soon as may be; judgment thereon to be final. And if either party neglect to appear before the Referee, after due notice given, then the said Referee to proceed exparte.”</p> <p>A hearing was had before the referee who duly filed his report. (The report is stated in full in the opinion.) Upon this report, at the March Term, 1907, of said Supreme Judicial Court, the presiding Justice ordered judgment for the defendant. Thereupon the plaintiffs took exceptions.</p> <p>The case appears in the opinion.</p>

<p> Replevin. Plaintiff. Amendments. R. 8., chapter 84, section 11; chapter 98, section 8. </p> <p>A person who has neither title to the property, general or special, nor the right to possession, cannot maintain replevin.</p> <p>The statutes of this State providing for amendments as to plaintiffs do not allow an amendment the effect of which would be to strike out the sole plaintiff in the writ and substitute in his place a new plaintiff.</p> <p>In the case at bar, which is an action of replevin, the defendant was summoned “ to answer unto Herbert C. Clark, Treasurer of said City of Rockland, for said City of Rockland, and duly authorized and empowered thereto by a vote of the City Council of said City of Rockland,” and the principal in the replevin bond was described therein as, “I, Herbert C. Clark, Treasurer of the City of Rockland as principal.”</p> <p>Held: That Herbert 0. Clark, Treasurer of the City of Rockland, is the plaintiff in the action and that the writ cannot be amended by making the City of Rockland the plaintiff in name.</p> <p>That part of Revised Statutes, chapter 84, section 11, providing that “in all civil actions the writ may be amended by inserting additional plaintiffs” applies only where a party is to be added to, joined with, the existing plaintiff, or plaintiffs, with a bona fide intention that the action is to be prosecuted by all the plaintiffs, the original as well as the additional ones. It does not apply where the bringing in of a new party plaintiff would make a misjoinder.</p>

<p>On exceptions by plaintiff.</p> <p>Assumpsit on account annexed to recover for building materials furnished by the plaintiff to the defendant, for the erection of a dwelling house built by the defendant, under a contract with one Edgar A. Sherburne, and for which said materials the plaintiff alleged and claimed a lien on said house and the land on which it stands.</p> <p>Heard at the September term, 1906, of the Supreme Judicial Court, Piscataquis County, at which hearing the presiding Justice ruled as hereinafter stated and the plaintiff excepted as hereinafter stated and his exceptions were allowed.</p> <p>The case, as stated by the bill of exceptions, is as follows :</p> <p>"Plaintiff in his writ directed the officer to attach goods or estate of the defendant and also to attach the dwelling house and land , on which it stands; owned by Edgar A. Sherburne of said Milo, situated in said Milo Village on the Westerly side of a Street running southerly from Spring Street (so called) being on the next lot south of the lot owned by C. F. Stanchfield in Milo Village and on which said Stanchfield has built a dwelling house.</p> <p>"The officer returned on said writ</p> <p>" ‘Piscataquis ss: February 8, A. D. 1906. By virtue of this writ, I have attached as the property of the within named defendant, Herbert E. Knapp, all the real estate he owns also all the right title and interest he has to all real estate in said county of Piscata-quis and" also to attach the dwelling house and land on which it stands, owned by Edgar A. Sherburne of said Milo, situated in said Milo Village on the westerly side of a street running southerly from Spring Street (so called) being on the next lot south of the lot owned by C. F. Stanchfield, in Milo Village, and on which said Stanchfield has built a dwelling house ; and within five days thereafter have filed an attested copy of my return on this writ so far as relates to the attachment, in the office of the Register of Deeds, for this county, together with the names of the parties in this writ, with the value of the defendants property, which I am hereby commanded to attach, the date of said writ, and the court to which the same is returnable.</p> <p>‘Abial' E. Leonard, Deputy Sheriff.’</p> <p>"The officer also returned</p> <p>" ‘ County of Piscataquis Feb. 8, 1906 10 o’clock A. M.</p> <p>‘ By virtue of the within writ, I attached the dwelling house, built by Edgar A. Sherburne of said Milo; situated in said Milo Village, on the westerly side of a Street running southerly from Spring Street (so called) being on the next lot south of the lot owned by C. F. Stanchfield, in Milo Village and on which said Stanchfield has built a dwelling house, same house in which said Sherburne now resides ; to the value of three hundred dollars ($300) under a lien for material furnished in the erection of said house; by Bryant & Co., under a contract with Herbert E. Knapp within named.</p> <p>" ‘And within five days of said attachment, to wit on the 8th day of Feb. A. D. 1906, I filed in the office of the Clerk of the town of Milo an attested copy of so much of my return on this writ as relates to the above named attachment, with the value of the defendant’s property, which I am within commanded to attach, the names of the parties, the date of the writ, that this attachment is for a lien for materials furnished in the erection of said house, and the court to which the same is returnable.</p> <p>‘Abial E. Leonard, Deputy Sheriff.’</p> <p>"The owner of said house and land at the time of the attachment, Edgar A. Sherburne, voluntarily appeared at the return term and became a party to the suit. At the second term he claimed no valid attachment of said building and land was made within ninety days after the last of the materials sued for were furnished as set forth in the writ. The presiding Justice held that the officer’s return on the writ showed no valid attachment of the house and the land on which said house stands as real estate, to which ruling plaintiff excepts and prays that his exceptions may be allowed.”</p>

<p> Criminal Law. Pleas. Nolo Contendere. Withdrawal of Plea. Discretion of Presiding Justice. </p> <p>The plea of nolo contendere when accepted by the court is, in its effect upon the case, equivalent to the plea of guilty. The judgment of conviction • follows upon such a plea as well as upon a plea of guilty, and such a plea if accepted, cannot be withdrawn and a plea of not guilty entered except by leave of court.</p> <p>When a respondent has pleaded nolo contendere and the plea has been accepted by the court, and the respondent afterwards desires to withdraw such plea and have a plea of not guilty entered, the whole matter is in the sound discretion of the presiding Justice and the Law Court will not interfere except in a case of abuse of that discretion.</p> <p>In the case at bar, Held: That no such abuse has been shown.</p>

On exceptions by the defendant Libby. Five indictments, Numbers 264, 265, 266, 279 and 280, found by the grand jury at the September term, 1905, of the Superior Court, Kennebec County, all against the defendant Libby, and presumably all against both defendants, for the alleged illegal sale of intoxicating liquors. One of these indictments, as shown by the case as sent to the Law Court, is as follows : State of Maine. Kennebec, ss. At the Superior.

On exceptions by defendant. Assumpsit to recover the price of certain merchandise “in the nature of necessaries of life” furnished by the plaintiff to the wife of the defendant. The wife has not been living with her husband for some months prior to the purchase, and the plaintiff did not know at the time he furnished the merchandise to the wife that she and her husband had separated.

On exceptions and motion by defendants. Four actions on the case for obstructing the plaintiff’s right of way. Dwight Braman, the defendant in the first above entitled action, is the real defendant in all the other actions, the acts com-plainéd of in those actions having been committed under his direction and by his orders. By agreement the four actions were tried together.

<p> 1leal Actions. Mortgages. Assignments. Estoppel. Foreclosure. Conditional Judgment. R. S., chapter 92, sections 5,9. </p> <p>In a writ of entry brought by the assignee of a first mortgage to recover possession of certain premises, it appeared that both parties derived title from one Oscar E. Perry, who on Jan. 9, 1897, gave a first mortgage thereof to Charles E. Sherman, to secure the payment of $250. Eight months later, he gave a second mortgage to his father Isaac-B. Perry conditioned for the latter’s support during his life. June 16, 1900, he gave a third mortgage of the same premises to the plaintiff Mitchell, and Dec. 20, 1906, the plaintiff obtained from Charles E. Sherman, an assignment to himself of the first mortgage given to Sherman. Prior to this assignment of the Sherman mortgage to the plaintiff, however, the defendant had obtained from Sherman a written agreement to assign the mortgage to him, the defendant, in consideration of $250, $175 of which the defendant paid to Sherman. But before the assignment to the plaintiff, this agreement between Sherman and the defendant was rescinded and cancelled by a written agreement signed by the parties, and the sum of $175 paid by defendant was refunded to him by Sherman. Held:</p> <p>(1) That Sherman was fully authorized to execute the assignment in question to the plaintiff; that the defendant is now precluded by his conduct from asserting any claim to the premises by virtue of the Sherman mortgage, and that all of the rights set up by the defendant in the premises, are subject to the plaintiff’s claim as assignee of the first mortgage.</p> <p>(2) That inasmuch as there had been a breach of the condition of the mortgage for non-payment of the debt and the plaintiff had begun foreclosure thereof by publication before the commencement of this action, the court was not required to award a conditional judgment on motion of the defendant, but that the plaintiff was entitled to judgment for possession as at common law.</p>

<p> Equity Pleadings. Bill and Answers, trusts. Trustee. Beneficiary. Chancery Rule XXVII. </p> <p>1. When a cause in equity is heard on bill and answers, the court is limited to the consideration of such facts as are properly charged, and are admitted.</p> <p>2. When a complainant in a bill in equity merely states that he “is informed and believes” that certain facts are true, the form of charging is fatally defective.</p> <p>3. When a defendant answering says that “ he has no information as to the correctness of the complainant’s statements,” and makes no other denial, it is not a sufficient traverse of an allegation well charged.</p> <p>4. Statements of facts in a bill, under information and belief merely are not to be taken as true under Chancery Rule XXVII, though not traversed by a sufficient answer.</p> <p>5. Although the court will, under proper circumstances, execute a trust which the trustee has neglected or improperly failed to execute it will not interfere to execute a trust which could have been executed in the lifetime of the beneficiary, but which was not so executed, and which under the circumstances it was not then the duty of the trustee to execute.</p> <p>6. When it appears that the trustee was ready and willing to do his duty, but that the beneficiary objected and prevented his doing so, the court will not execute the trust after the death of the beneficiary.</p> <p>7. A trustee cannot compel a beneficiary to receive the benefits of the trust, and it is not his duty to execute it against the will of a beneficiary, who is sui juris.</p> <p>8. In the case at bar the trustee is advised that he has no authority to sell the trust estate for the purpose of paying the claims of the defendants, Witham and Williams, or any other similar claims.</p>

<p> Assumpsit. Express Contracts. Actions. Board. Boarder. Table Board. </p> <p>Where a plaintiff in an action on an alleged express contract to pay room rent, recovers a verdict and it appears that the action arose in temper and not in contract, the verdict will be set aside.</p> <p>Where a plaintiff alleges that the defendant made an express contract to pay room rent and it appears that no charge for room rent would have been made if harmonious relations between the plaintiff and the defendant had continued, such alleged contract will be closely scrutinized as claims of this kind are not viewed with favor by the court.</p> <p>The word board in the ordinary acceptation of the term, covers both room rent and table board. A boarder is ordinarily one who has food and lodging in another’s house or family for a stipulated price. If it has the narrower meaning, it is usually designated table board.</p>

<p>On exceptions and motion by defendant.</p> <p>Assumpsit on account annexed brought by the plaintiff to recover against the estate of Samuel Haines, late of Saco, York County, deceased intestate, the sum of $13,720 for services alleged to have been performed by the plaintiff for the decedent' in his lifetime, and also to recover the sum of $20,000 upon an alleged special contract on the part of said decedent in his lifetime to pay the plaintiff said sum of $20,000.</p> <p>The alleged special contract to pay the aforesaid sum of $20,000 was not in writing.</p> <p>The account annexed was as follows :</p> <p>“ Estate of Samuel Haines to Perxede Liberty, Dr. "To 698 weeks’ services as housekeeper and assistant, and for care of clothing, washing, ironing, mending, food furnished to be taken away, and meals furnished said Haines during his lifetime, all between Oct. 1 1899 and Feb. 22, 1903, at $20 per week,</p> <p>$13,960.00</p> <p>Credit.</p> <p>“By divers small payments each year, not exceeding</p> <p>$20. in any year, $240.00</p> <p>"Balance, $13,720.00”</p> <p>The writ also contained counts as follows :</p> <p>"Also for that the said plaintiff, heretofore to wit, on the first day of October, A. D., 1889, began to perform certain valuable services for the said Samuel Haines, to wit, acted as his housekeeper and assistant in a house furnished by and belonging to said Samuel Haines, cared for his clothing, did his washing, ironing, mending, performed the same services last named for various of his employees, furnished cooked food for said Samuel Haines to take away from said house, furnished meals for said Samuel Haines at said house, and from that time continuously each day until the twenty-second day of February A. D. 1903, this plaintiff continued to perform said services for said Samuel Haines, with his knowledge, at his special instance and request, and with an expectation upon the part of this plaintiff to be paid and upon the part of said Samuel Haines to pay for said services. And the plaintiff avers that during each of said years, said Samuel Haines paid as part payment for said services a sum not exceeding twenty dollars in any year; that upon said twenty-second day of February, A. D. 1903, said Samuel Haines died; that thereafterwards, to wit, upon the first Tuesday of April A. D. 1903, this defendant was appointed the administrator of the goods and estate that were of said Samuel Haines. And the plaintiff avers that on the twenty-ninth day of June, A. D. 1904, she filed in Probate Court for said County of York her said claim in writing against the estate of said Samuel Haines, supported by her affidavit, and that the same was done before or within eighteen months after affidavit was filed in the Probate Court that notice had been given by said Howard P. Haines, as administrator, of his appointment as such, and that the same was done at least thirty days before the commencement of this suit, and that payment thereof was at the same time demanded of said Howard P. Haines in his said capacity; ‘ By reason of all which said Samuel Haines, in his lifetime, promised the plaintiff to pay her so much as her said services were fairly and reasonably worth, yet neither the said deceased, in his lifetime, nor since his decease has the said administrator ever paid the same, to the damage of the plaintiff, as she says, in the sum of forty thousand dollars.</p> <p>"Also for that the said plaintiff, heretofore, to wit, upon the first day of October, A. D. 1889, at the special instance and request of said Samuel Haines, in his lifetime, promised and agreed with said Samuel Haines that she would come to said Saco, and in the house to be furnished by said Samuel Haines, would act as his housekeeper and assistant, care for his personal needs and comfort, attend to his washing, ironing, mending, furnish him with food to be eaten by him at said home and in her company, and also furnish him with food to be taken from said home elsewhere, would allow him to have his office for the transaction of business and as a repository for his valuable and private papers and documents at said house, would assist him in the care of his business and contribute to his personal happiness and comfort, all during such time as said Samuel Haines might live or until such time as he saw fit to make other arrangements. And the said Samuel Haines then and there in consideration of all the foregoing, promised the plaintiff that at the termination of said services upon her part he would pay to her the sum of twenty thousand dollars in money, and in addition thereto would convey to her by warranty deed the aforementioned house or home. And the plaintiff avers that in accordance with said contract and agreement, she did, heretofore to wit, upon the first day of October, A. D. 1889, come to Saco, go to the house furnished by said Samuel Haines, and there begun to perform and continued to perform all the services before mentioned, and so performed said services from said time up to the twenty-second day of February, A. D. 1903, when said Samuel Haines died. And this plaintiff avers that she has performed all and singular the stipulations and agreements in her said contract with said Samuel Haines, but that said Samuel Haines in his lifetime never paid said money or made conveyance to her of said real estate, and that this defendant in his said administrative capacity, since the decease of said Samuel Haines, though requested, has never paid the same, but refuses and neglects so to do. And the plaintiff avers that on the twenty-ninth day of June, A. D. 1904, she filed in Probate Court for said County of York, her said claim in writing against the estate of said Samuel Haines, supported by her affidavit, and that the same was done before or within eighteen months after affidavit was filed in the Probate Court that notice had been given by said Howard P. Haines, as administrator, of his appointment as such, and that the same was done at least thirty days before the commencement of this suit and that payment thereof was at the same time demanded of said Howard P. Haines in his said capacity; yet neither the said deceased, in his lifetime, nor since his decease has the said administrator ever paid the same; by reason of all which, an action has accrued to the plaintiff to have and recover, as she says, the sum of forty thousand dollars.”</p> <p>The next and last count was the usual omnibus count with the following specifications:</p> <p>"The plaintiff gives notice that under the foregoing omnibus count she will offer evidence tending to prove the performance of services for said Samuel Haines in his lifetime during the period of time between October 1, 1889, and Feb. 22, 1903, said services consisting of care of his house, washing, ironing, mending, cooking food for him to be eaten upon the premises and to be taken elsewhere, assistance to him in the carrying on of his business, and administering to his personal happiness and physical comfort, being for services and claims made in the previous counts in this writ, and which claims have been filed in the Probate Court for said County of York in writing against the estate of Samuel Haines, supported by her affidavit, which was done before or within eighteen months after affidavit was filed in the Probate Court that notice had been given by said Howard P. Haines, as administrator of his appointment as such, and that the same was done at least thirty days before the commencement of this suit and that payment thereof was at the same time demanded of said Howard P. Haines, in his said capacity; yet neither the said deceased, in his lifetime, nor since his decease has the said administrator ever paid the same.”</p> <p>Plea, the general issue with, a brief statement interposing the statute of frauds and the statute of. limitations.</p> <p>The plaintiff’s claim as filed by her in the Probate Court, previous to bringing suit thereon, was as follows :</p> <p>"Estate of Samuel Haines to Perxede Liberty, Dr.</p> <p>"To 698 weeks services as housekeeper and assistant and for care of clothing, washing, ironing, mending, food furnished to be taken away, and meals furnished said Haines during said time, all between Oct. 1, 1889, and Feb. 22, 1903, at $20. per week. $13,960.00</p> <p>"Also to amount due by contract with said Haines in his lifetime to deed to said Liberty house and lot in Saco, and to pay her $20,000.00 in consideration of said Liberty moving into said house and caring for his clothing, doing his mending, washing, preparing food, and taking care of the rooms used by said Haines as an office, as per agreement, but land never so deeded nor amount paid and still due 20,000.00</p> <p>$33,960.00</p> <p>" Credit.</p> <p>"By divers small payments each year not exceeding $20. in any year 240.00</p> <p>"Balance $33,720.00</p> <p>"This is to give notice to the administrator of the estate of Samuel Haines, late of Saco, deceased, of the above claim, in accordance with section 14 of chapter 89 of the Revised Statutes of Maine, and I hereby demand payment of the same.</p> <p>"Dated at Saco this 29th day of June, A. D. 1904.</p> <p>"Perxede Liberty.”</p> <p>This claim was supported by the affidavit of the claimant as required by the statute.</p> <p>Tried at the September term, 1906, of the Supreme Judicial Court, York County. Counsel for the defense waived any objection to the plaintiff as a party, and consented that she might testify which she did. Verdict for plaintiff for $26,266.17.</p> <p>During the trial the defendant took exceptions to the refusal of the presiding Justice to give certain requested instructions and to the admission of certain testimony admitted against the defendant’s objection, and also after verdict filed a general motion for a new trial. The exceptions were not considered by the Law Court.</p> <p>The case appears in the opinion.</p>

<p> Logs and Lumber. Labor Liens. “Marks” on Logs. '“Name” of Mark. Assignment of LAen Claims. Non-Lien Items. Officer’s Return to Town Clerk. Immaterial Evidence. </p> <p>Where in an action to enforce a lien for labor on logs marked with a certain mark and a fac-simile of that mark is given in the command in the writ directing the officer to attach such logs, it is not necessary to give the mark a name, and the addition of a name is surplusage.</p> <p>When the true and actual mark upon logs is correctly given in a writ in an action to enforce a lien for labor on such logs and the logs with that mark are attached and are the logs upon which the lien is claimed, the mark itself identifies the logs, and the name given to that mark is wholly immaterial.</p> <p>Where an order for the amount due him has been given to a laborer who has worked on logs and has a lien thereon for his services and such laborer assigns such order, the assignee thereof becomes the assignee of the claim for wages due such laborer and also of the lien upon the logs for the labor done upon them by such laborer, and may maintain an action in the name of such laborer to enforce the lien. ,></p> <p>It is immaterial whether or not an order given to a laborer for the amount due him for his services on logs contains non-lien items when in a suit to enforce the lien of such laborer the action is brought upon the account for labor, and not upon the order, and before trial all non-lien items are eliminated from the account and the verdict is for lien items only.</p> <p>When an officer has attached personal property which by reason of its bulk cannot be immediately removed, he is not required to file in the office of the clerk of the town in which the attachment was made, a full copy of his return upon the writ but only “ so much of his return on the writ, as relates to the attachment, with the value of the defendant’s property which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable.” The statute, R. S., chapter 83, section 27, does not require the copy filed with the town clerk to contain a statement that the property attached could not be removed by reason of bulk.</p> <p>When evidence has been admitted in the trial of a cause and it appears that such evidence was absolutely immaterial' and without weight upon the issue on trial and that the party excepting thereto was not aggrieved by its admission, exceptions to the admission of such evidence will not be sustained even if the evidence was inadmissible.</p>

On exceptions by defendant. Action of covenant broken. Plea, the general issue with brief statement as follows : ■ And by way of brief statement, by leave of court pleaded, the defendant says that the plaintiffs have not on their part observed and performed the contract in said writ declared on particularly in that said clapboards were not manufactured, dressed and bundled in accordance therewith and were not merchantable ; that said contract was in June, 1904, mutually…

<p> Order to contribute to support of wife. Statute allows no appeal to Defendant. Private & Special Laws, 1891, chapter 152. Statute 1895, chapter 136. Statute 1897, chapter 175. Statute 1899, chapter 25. ' Statute 1905, chapter 123, section 6. R. S., chapter 63, section 7. </p> <p>In the case at bar, the defendant appealed from an order of the Municipal Court of Auburn requiring him to contribute to the support of his wife in accordance with the provisions of Revised Statutes, chapter 63, section 7, as amended by the Public Laws of 1905, chapter 123, section 6. Held: That the statute does not give the defendant the right of appeal from the Municipal Court in such case.</p>

On report. The appellant, Ella Johnson Woodcock, is the alleged daughter by adoption of Horatio H. Johnson, late of Belfast, deceased intestate. The alleged adoption was in 1882. The mother of said Horatio H. Johnson, Ann F. Johnson, died July 24, 1891, leaving a will dated Feb. 6, 1890, containing, among other things, two items reading as follows: 2nd.

<p> Street Railroads. Defective Crossing over 1 rads. Common Law Liability. Special Limitations of Liability Unconstitutional, When. Private and Special Laws, 1891, section 8. R. S., chapter 58, section 27. </p> <p>1. Whenever a franchise or right coupled with a corresponding duty is conferred by the legislature upon a person or corporation and is accepted, such person or corporation is answerable by the common law to a- third person who sustains damage by the neglect of that duty.</p> <p>2. An acceptance by a street railway company of a franchise to occupy portions of the streets of a town with its railroad, coupled with the duty of keeping such portions of the streets in repair, gives a right of action against the company by a traveler injured by its neglect of that duty.</p> <p>3. The people of the State have not given the legislature power to exempt any particular person or corporation from the operation of the general law of the State or to impose special conditions or limitations upon rights of action against a particular person or corporation.</p> <p>4. An Act of the legislature that no action shall be maintained against a particular street railway company therein named, for injuries caused by its neglect of duty to keep in repair those parts of the street of a town oceu-' pied by its railway, unless one of its directors had twenty-four hours actual prior notice of the defect and subsequent notice of the injury within fourteen days, is to that extent unconstitutional and void.</p>

<p> Contracts of Agency. Duration of Same. Real Estate Brokers. Commissions. </p> <p>If a real estate broker procures and produces a purchaser ready and willing and able to complete the purchase on the authorized terms and through the fault of the owner, the sale is not consummated the commission is due.</p> <p>In the case at bar, the defendant, in 1896, placed in the hands of the plaintiff, a real estate agent, certain real estate to be sold at a given price and for selling the same the plaintiff was to have a commission. The defendant never withdrew the property from the hands of the plaintiff, and there was no express revocation of the contract by the defendant and no revocation by implication or by law. In 1906, after having made several unsuccessful efforts to sell the same, the plaintiff effected the sale of the property on the authorized terms but the defendant refused to make the conveyance. The plaintiff then brought suit to recover his commission. The verdict was'for the plaintiff.</p> <p>Held: (1) That the relation between the parties was that of principal and agent, and while no definite period of time was expressly agreed upon during which the agency was to continue yet the agency being established for a particular purpose, to wit, to sell the real estate, it was presumed to continue until the sale was effected, and the burden was on the defendant to rebut this presumption. Cases involving the question of reasonable time within which an offer of reward is held to continue, are not analogous. (2) That the special findings by the jury that the defendant in 1896 authorized the plaintiff to sell the land in question for §2800 and that he procured a purchaser for the land ab-that price, as well as the general verdict, are sustained by the evidence. (8) That the fact that a partner of the would be purchaser had attempted to buy direct of the owner and the owner had refused to sell, should not deprive the plaintiff of his commission as he had no knowledge of that fact and acted in good faith.</p> <p>Contracts of agency may be terminated by operation of law but such cases fall within one of three classes, a change in the law making the required acts illegal, a change in the subject matter of the contract as the destruction of the property by fire, or a change in the condition of the parties, as by death or insanity. But the case at bar falls within none of these classes.</p>

<p>On report.</p> <p>Trustee process in which the plaintiff sought to hold certain dividends declared by the referee in bankruptcy in favor of the principal defendant, William G. Alden. The said principal defendant, was duly defaulted.</p> <p>The facts appear in the trustee’s disclosure which, omitting caption, is as follows :</p> <p>"And now the said Joseph E. Moore comes and defends and says that he ought not to be adjudged the trustee of said defendant in this action because he says that at the time of the service of the writ in this case upon him, to wit, on the nineteenth day of September A. D. 190/), he had not in his hands and possession any goods, effects or credits of the said defendant, unless it shall appear from the following statement of facts which the trustee hereby submits:</p> <p>"On September 3, 1904, the Megunticook Woolen Co. of Camden, Knox County, Maine* was petitioned into bankruptcy and on September 20, 1904 was adjudged a bankrupt and at the first meeting of the creditors October 19, 1904, I was appointed trustee in bankruptcy of said Woolen Co. under the U. S. bankruptcy law, and duly qualified and proceeded to act in closing up said Woolen Co.’s affairs under the provision of that law and converted the assets of the company into cash by due proceedings had under the direction of the U. S. Dist. Court.</p> <p>"Lewis F. Starrett of Rockland, Maine, was a referee in bankruptcy to whom said case in bankruptcy was referred and he acted in the proceedings.</p> <p>"A large number of claims were proved before, and allowed by, said referee and among them a general claim on notes in favor of the defendant W. G. Alden for the sum of seven thousand dollars ($7000) and a preferred claim in his favor for three hundred dollars ($300) as certified to me by said referee.</p> <p>"The property of said Woolen Co. was sold and turned into cash, December 29, 1904, out of which I paid the bills, incurred by me in running said plant under orders of court, and the balance I retained for expenses and fees to be allowed the trustee and parties, and for distribution among creditors whose claims had been allowed ; and all of which was cash in my hands.</p> <p>"After due proceedings, said referee on the 18th day of July, A. D. 1905, declared the first dividend or distribution of twenty per cent, on claims proved and allowed against said company and certified the same to me on that day. He declared a dividend or distribution amounting to fourteen hundred dollars ($1400) on the said claim of seven thousand dollars of W. G. Alden. He made no declaration of dividend or order of payment on the said three hundred dollars ($300) preferred claim of said Alden.</p> <p>"On July 26, 1905, the Rockland Savings Bank brought suit and on same day served a trustee process upon me. On July 28, 1905, I drew checks in payment of said dividends and distribution which were countersigned by Lewis F. Starrett, referee, and sent them out, except I retained the one payable to said Alden, on account of said trustee process.</p> <p>"On Sept. 19, 1905, I was notified-that the said suit of Rockland Savings Bank against said Alden had been discontinued and not entered in court on that day, and at eight o’clock and forty-five minutes in the afternoon on said Sept. 19, 1905, a trustee process of said Rockland Savings Bank against W. G. Alden was served upon me, said amount due said Alden from me as trustee of said Megunticook Woolen Co. then being in my hands.</p> <p>"That on Dec. 16, 1905, I made a report to the court that after paying said first dividend and fees and expenses as allowed by the court, there was still in my hands for distribution among creditors the sum of $7,196.27.</p> <p>"On January 20, 1906, at ten o’clock in the forenoon there was a meeting of creditors and a dividend and decree of distribution of the whole of said balance, being 7 per cent on the indebtedness proved and allowed. The amount of the dividend or distribution to W. G. Alden was four hundred and ninety dollars ($490) on the general claim of seven thousand dollars ($7000), and also the preferred claim of three hundred dollars for which I drew checks January 29, 1906, which were countersigned by Lewis F. Starrett, referee, one check for four hundred and ninety dollars, and a separate check for three hundred dollars, but I did not deliver said checks to said Alden.</p> <p>"On January 20, 1906, at ten o’clock and thirty minutes in the forenoon ; January 29, 1906, at nine o’clock and thirty minutes in the forenoon, and February 10, 1906, at nine o’clock and thirty minutes in the forenoon-, a trustee writ of Rockland National Bank against W. G. Alden was served on me as trustee of said Alden, at the three several dates named.</p> <p>"I then and still hold the funds as named, not having delivered any check to said Alden. No other trustee process has been served on me.</p> <p>"The Camden National Bank was not named by the U. S. Court as a Bank of deposit for funds in hands of Trustees of Estates in bankruptcy, nor was there any bank so named in the jurisdiction of L. F. Starrett, referee, during the time I was trustee and held the funds as named in this disclosure. The Megunticook Woolen Company had kept its deposit in the Camden National Bank and I continued in the same bank on my own motion. The amount in my hands retained from first dividend made no part of the $7,196.27 reported by me as the amount in my hands for final distribution. The first dividend was treated as paid.</p> <p>"I annex copies of the checks issued by me payable to said Alden named in the disclosure.</p> <p>"I respectfully submit whether I am liable to be charged for any sum in either suit and if so for how much ?</p> <p>"Joseph E. Moore.”</p> <p>This disclosure was duly sworn to by the said Joseph E. Moore before a justice of the peace. The copies of the checks mentioned in the disclosure are omitted in this report.</p> <p>The cause came on for hearing at the September term, 1906, of the Supreme Judicial Court, Knox County, and by agreement of the parties, the case was "reported to the Law Court, for the Law Court to decide the question of the liability of the trustee upon the trustee’s disclosure.”</p>

<p>On agreed statement.</p> <p>Action of debt brought in the Superior Court, Cumberland County, to recover the sum of $1484 for taxes assessed by the plaintiff city against the defendant company, a corporation, for the year 1906. Said tax was assessed on the conduits of the defendant company in the plaintiff city, as real estate, and was in addition to the excise tax assessed upon the defendant company by the State Assessors under the provisions of Revised Statutes, chapter 8, sections 35, 36, 37, 38, 39, 40 and 41.</p> <p>The cause came on for hearing at the April term, 1907, of said Superior Court, at which time an agreed statement of facts was filed and the case was sent to the Law Court with the following stipulations : “Upon the foregoing statement of facts the court is to render such judgment as the rights of the parties require, and if the court decides that said conduits were real estate and were taxable as such by said plaintiff city, judgment is to be rendered for the plaintiff city for the sum of fourteen hundred and eighty four dollars, with interest from the date of the writ. If said conduits were not real estate and were not taxable as such by said plaintiff city, judgment shall be rendered for defendant corporation,”</p> <p>The only question presented to the Law Court was whether or not the conduits of the defendant company were legally taxable as real estate by the plaintiff city.</p> <p>All the material facts are stated in the opinion.</p>

<p>On motion by defendant.</p> <p>Action on the case brought by the plaintiff to recover damages for personal injuries received by him as the result of the alleged failure of duty on the part of the defendant toward him in the use and management of his automobile on the public highway between Pittsfield and Palmyra. Plea, the general issue.</p> <p>Tried at the March term, 1907, of the Supreme Judicial Court, Somerset County. Verdict for plaintiff for $225. The defendant then filed a general motion to have the verdict set aside.</p> <p>The case appears in the opinion.</p>

<p>On exceptions by defendant.</p> <p>Action on the case brought by the plaintiff in her capacity as administratrix of the estate of August Anderson, late of Rockland, deceased, and against the defendant as receiver of William J. Gray . and others, owners and operators of a granite quarry, for negligently causing the death of the said August Anderson.</p> <p>The writ was returnable to and entered at the September term, 1906, of the Supreme Judicial Court, Knox County, and at the same term the defendant demurred to the plaintiif’s declaration. Hearing was had on the demurrer at the following January term of said Supreme Judicial Court. The demurrer was sustained and the plaintiff was given leave to amend. The amendment when filed was objected to by the defendant but was allowed by the presiding Justice and thereupon the defendant excepted.</p> <p>The original declaration in the plaintiff’s writ is as follows :</p> <p>"In a plea of the case; for that the said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray at south Thomaston in the county of Knox on the 24th day of May A. D. 1905, were and for a long time prior thereto had been the owners, operators and occupants of a granite quarry called the High Island Granite Quarry, situated within the limits of South Thomaston and were then and there engaged in quarrying granite in which they employed a large number of men, and it was the duty of the said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray to, provide suitable tools, machinery, rigging, derricks, ropes and appli-. anees for carrying on said operation of quarrying and hoisting granite and also a safe and secure place for all their workmen therein employed by them or their superintendent or agents, and the plaintiff avers that on the twenty-fourth day of May A. D. 1905 and for a long time prior thereto the said August Anderson, husband of said plaintiff was in the employ of said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray and on said day aforesaid was legally at work there doing such work about said quarry as ordered by said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray or their superintendent and on the said twenty-fourth day of May A. D. 1905 was ordered by said Wm. Gray, Peter Gray, Alexander Gray and Margaret Gray dr their superintendent to take down a derrick and cause it to be moved to another location. And the said August Anderson was on said 24th day of May working at the top of said derrick when the main guy rope parted at the bight of the block causing the derrick to fall throwing the said August Anderson about forty-five feet striking upon his head from which injury occasioned as aforesaid the said August Anderson died in about three and one-half hours after being thrown, as aforesaid and striking upon his head.</p> <p>"And the plaintiff avers that the rope which parted was not a suitable and sufficient rope to be used upon said derrick and was worn, old and rotten, unfit and unsafe to be used upon said derrick of which fact and knowledge the said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray had notice, and it was the legal duty of said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray to provide strong and suitable ropes to be used upon said derrick and the plaintiff further avers that on the said 24th day of May aforesaid the said August Anderson was in the exercise of due care in all work performed by him. And the plaintiff avers that the death of said August Anderson was caused by the negligence, fault and wrongful act of said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray in furnishing an insufficient rope which broke because it was worn, old and rotten and unfit for use which fact was known or could have been known had Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray exercised proper care and caution in furnishing proper, strong and safe rope instead of the rotten one used and furnished by the said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray upon said derrick. Whereby an action hath accrued to have and recover as ad-ministratrix of the estate of said August Anderson for the death caused as aforesaid the sum of ten thousand dollars for the benefit of said estate.</p> <p>"And the plaintilf avers that Charles G. Wetter of Philadelphia in State of Pennsylvania was at the January term of the Supreme Judicial Court held at Rockland on the first Tuesday of January A. D. 1906, duly appointed receiver of the property of said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray in Knox county. And the plaintiff further says that on the second day of February 1906 that leave was granted by Hon. A. M. Spear one of the Justices of the Supreme Judicial Court to prosecute this suit against Charles G. Wetter, Receiver of the estate of the parties aforesaid, to the damage of the said plaintiff (as she says), the sum of twenty thousand dollars.”</p> <p>The amendment filed and allowed, is as follows:</p> <p>"In a plea of the case, for that the said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray, at South Thomaston in said county of Knox, on the twenty-fourth day of May A. D. 1905, were and for a long time prior thereto had been and were the owners, occupants and in the control, management and operation of a certain granite quarry called the High Island Granite Quarry, situated on High Island and within the limits of said South Thomaston, and were then and there engaged in quarrying granite, in which employment they employed a large number of men; that as incidental to their said operations of their said quarry and for the purposes thereof, to wit, for the purpose of hoisting out blocks of stone from said quarry and moving and changing said blocks of stone when necessary in the operation of said quarry plant, the said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray long prior to said twenty-fourth day of May 1905, had erected and owned, controlled, maintained and managed and on said twenty-fourth day of May 1905 continued to own, control, maintain and manage* on said quarry plant, a certain wooden derrick of great height, to wit: of the height of eighty feet, which said derrick was held in place by several wire guys attached to the top of said derrick, thence extending in various directions to the ground, where they were attached; that there was attached at the bottom of said derrick a boom, so called, of great length, to wit: of the length of seventy-five feet; that said boom and derrick were operated by guy ropes, so called, furnished and put in place by said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray, which said wooden derrick, boom, guys and guy ropes were on said twenty-fourth day of May 1905, defective, decayed, out of repair, unsafe and unsuitable in construction and material for* the purposes for which they had been erected and for which they were then maintained and operated by said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray, all of which the said Wm. J“. Gray, Peter Gray, Alexander Gray and Margaret Gray then well knew or ought to have known by the exercise of reasonable care and diligence.</p> <p>"And the plaintiff avers that on the said twenty-fourth day of May 1905, it was the duty of the said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray, being then as aforesaid the owners of and in control and management of said wooden derrick, booms, guys and guy ropes, to have, keep and maintain the same in a reasonably safe and suitable condition for the protection and safety of all persons rightfully and lawfully using the same for the purposes for which the same were then and there maintained and operated by said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray.</p> <p>"And the plaintiff further avers that on said twenty-fourth day of May 3905, the said August Anderson was in the employ of said William J. Gray, Peter Gray, Alexander Gray and Margaret Gray, as a laborer at day wages and had been for a long time prior thereto, doing such work about said quarry plant as said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray or their superintendent and agents ordered him to do; that on said twenty-fourth day of May 1905 said August Anderson was ordered by said William J. Gray, Peter Gray, Alexander Gray and Margaret Gray or their superintendent and agents, to take down said derrick and move it to</p> <p>another location that said August Anderson, in obedience to said orders, was on said twenty-fourth day of May 1905, lawfully at work at the top of said derrick and in the exercise of due care ; that while said August Anderson was so at work and while in the exercise of due care, the main guy rope so furnished and maintained as aforesaid by said Wm. J. Gray, Peter Gray, Alexander Gray, and Margaret Gray, because of its decayed and unsuitable condition as aforesaid, which decayed and unsuitable condition was well known to said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray, or ought to have been known by the exercise of reasonable care and diligence, suddenly broke and parted at the bight of 'the rope at the block, causing the derrick to fall, and throwing the said August Anderson, while so at work and while in the exercise of due care and diligence and without any fault of said August Anderson, to the ground, eighty feet, where he struck upon his head; and by reason thereof, he was then and there instantly killed.</p> <p>"And the plaintifF avers that the death of said August Anderson was caused by the negligence, fault and wrongful act of said William Gray, Peter Gray, Alexander Gray and Margaret Gray, as aforesaid, and not by any fault or negligence of August Anderson.</p> <p>"Whereby and by reason whereof, an action has accrued to the plaintiff as administratrix, aforesaid, to recover damages to the amount of five thousand dollars, for the benefit of the widow and Elsa M. Anderson, aged four years and Augustus A. Anderson, aged one year, the two children of said August Anderson, by virtue of the statutes in such case made and provided.</p> <p>"And the plaintiff avers that she is the widow, and that said Elsa M. Anderson and Augustus A. Anderson are the children of said August Anderson; that she is unable to perform much manual labor on account of sickness and the tender ages of said children; that she and said children were at the time of the death of said August Anderson and for a long time prior thereto, had been entirely dependent upon said August Anderson for their maintenance and support, and have otherwise sufFered great pecuniary damages by reason of and resulting from the death of said August Anderson as aforesaid.</p> <p>"And the plaintiff avers and says that she is the administratrix of the estate of said August Anderson, and that letters of administration have been duly issued to her, the plaintiff, by the Judge of Probate for the said county of Knox and State of Maine; that she is therefore the personal representative of the estate of said August Anderson deceased.</p> <p>"And the plaintiff further avers that said Charles G. Wetter of Philadelphia in the State of Pennsylvania, was at the January term of the Supreme Judicial Court held at Rockland in said county of Knox, duly appointed Receiver of the property of said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray, within and for the State of Maine, and that he has duly qualified as said Receiver and is in control and management of the said property of said Wm. J. Gray, Peter Gray, Alexander Gray and Margaret Gray.</p> <p>"And the plaintiff further avers and says that on the second day of February 1906 on a petition therefor, leave was granted to her the plaintiff, by Hon. A. M. Spear, one of the Justices of the Supreme Judicial Court for said State of Maine, to prosecute this suit against said Charles G. Wetter, Receiver of the estate as aforesaid.”</p> <p>Sections 9 and 10 of chapter 89 of the Revised Statutes, read as follows:</p> <p>"Sec. 9. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default, is such as would, if death had'not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as shall amount to a felony.”</p> <p>"Sec. 10. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of his widow, if no children, and of the children, if no widow, and if both, then of her and them equally, and, if neither, of his heirs. The jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death to the persons for whose benefit such action is brought, provided, that such action shall be commenced within two years after the death of such person.”</p> <p>The gist of the case appears in the opinion.</p>

<p> Railroad Mortgages. After-Acquired Property. Receivers. Actions against, not maintainable, when. U. S. Bankruptcy Act, 1898, section 4b, Statute 1905, chapter 85. R. S., chapter 52, sections 32, 59; chapter 53, sections 18, 24; chapter 83, section 27. </p> <p>Where, after a street railway corporation with a franchise for a street railway had been duly organized and a copy of the survey and location of its route had been filed with the railroad commissioners, it proceeded to purchase land for a power house and to make arrangements for rights of way over private property wherever the location was outside of the highway, and subsequently executed a mortgage of its franchise and all its property, real and personal, then existing and thereafter to be acquired, including roadbed and materials and equipment of every kind, to secure an issue of bonds which were afterwards issued, and the mortgage contained a description of the route of the road as located, by courses and distances, and which said mortgage had been duly recorded both in the registry of deeds in the county and in the town where the railway was wholly located, Held: That it was not necessary that the corporation should have been actually possessed of tangible property, at the time the mortgage was given approximating in value the amount of the bonds which the mortgage was given to secure in order that an express provision therefor in the mortgage might be legally operative to include subsequently acquired property. Such a requirement would defeat the principal purpose for which such a mortgage is given, which is for the purpose of procuring the necessary funds for the construction and equipment of such railway, and it would be a self-destructive provision that would require such railway fully constructed and equipped as the only legal basis of such a mortgage.</p> <p>In the case at bar, the defendants were the receivers of the Rockland, South Thomaston & Owl’s Head Railway, a corporation. The plaintiff brought an action of trover against the defendants for the alleged conversion of certain steel rails which were a part of a quantity purchased by the corporation for use in the construction of its street railway. The defendants were appointed receivers of the corporation prior to the alleged conversion and these steel rails had come into their possession as a part of the property of the corporation and had been used by them in completing the railway. Previous to the appointment of the defendants as receivers, the plaintiff in an action of assumpsit against the corporation had attached the steel rails alleged to have been converted by the defendants, and on a judgment obtained after the appointment of the defendants as receivers, and without leave of court, the attached rails were seized and sold on the execution issued on the judgment the plaintiff being the purchaser of the rails at the execution sale. The action of trover also was brought against the defendants without permission of the court. Prior to the plaintiff's attachment of the rails in his action of assumpsit, the corporation had executed a mortgage of its franchise and all its property, real and persona], then existing and thereafter to be acquired, including roadbed and material and equipment of every kind, to secure an issue of bonds, which were afterwards issued, and which said mortgage was duly recorded. Also prior to the plaintiff’s judgment and the sale on execution in his action of assumpsit, equity proceedings were instituted praying for a foreclosure of the mortgage and the appointment of a receiver and thereupon the defendants were appointed receivers of the corporation and took possession of all the property of the corporation including the rails which, as aforesaid, were used by them in completing the railway.</p> <p>Held: (1) That the defendants were legally appointed receivers of the corporation.</p> <p>(2) That while 'the action of trover was brought against the defendants as individuals, yet whatever was done by them in using .the rails in completing the street railway, was done by them in their capacity as receivers and not as individuals.</p> <p>(3) That the mortgage was a valid mortgage and included the after-acquired property.</p> <p>(4) That the rails alleged to have been converted by the defendants, were included in the description of after-acquired property in the mortgage.</p> <p>(5) That the rails alleged to have been converted by the defendants legally passed into the custody of the defendants as receivers and were thus in the custody of the law.</p> <p>(6) That the plaintiff without leave of court had no authority to seize and sell the rails on execution issued on the judgment, in Ms action of assump-sit, which was taken after the receivers were appointed and such a sale has no validity and passes no title. Property in custodia legis is not thus subject to seizure and sale on execution.</p> <p>(7) That when property is lawfully in the hands of a receiver, a suit therefor cannot be brought against the receiver except by leave of court.</p>

<p>On motion and exceptions by defendant.</p> <p>Replevin brought in the Superior Court, Cumberland County, for certain household furniture alleged to have been delivered to the defendant by the Reliable Furniture Company of Portland, on' a so called lease which constituted a conditional sale. The Reliable Furniture Company was a firm composed of Louis Silverman and Max Levi. The plaintiff claimed as assignee from the vendors. Plea, the general issue with a brief statement to the effect that no lease of the furniture was given, that the sale was absolute and that the furniture was subsequently mortgaged by the defendant to one Julius Muskin whose mortgage was duly recorded.</p> <p>Tried at the April term, 1907, of said Superior Court. Verdict for plaintiff. The defendant then filed a general motion for a new trial, and also took exceptions to certain rulings made by the presiding Justice during the trial.</p> <p>The written assignment under which the plaintiff claimed, is as follows:</p> <p>“Know all men by these presents, that we, Louis Silverman and Max Levi, doing business under the name of Levi & Silverman, in consideration of nine hundred (900) dollars to us paid by Abraham Lazaerovitch the receipt whereof we do hereby acknowledge, do hereby assign and transfer to said Abraham Lazaerovitch all demands of every kind and description which we have against the persons whose names and addresses are given below with the amount of each claim stated, and we hereby make constitute and appoint said Abraham Lazaerovitch our lawful attorney to collect the same in our name or his own without expense to us.”</p> <p>(Attached to this was a list containing sixty-seven names with addresses, with the amount of each claim stated opposite the respective name and address. Among the list of names the following appears:</p> <p>"H. Tatilbum 51 Franklin St. 163.00”</p> <p>The total amount of the claims contained in the list is $2165.37)</p> <p>"All the above being of Portland except where otherwise specified. And we, Louis Silverman and Max Levi do hereby constitute and appoint the said Abraham Lazaerovitch and his assigns to be our attorney irrevocable in the premises, to do and perform all acts, matters and things touching the- premises in the like manner to all intents and purposes as we could if personally present.</p> <p>"In witness whereof, we have set our hands and seals this twentieth day of December, A. D. 1906.</p> <p>"Signed, Sealed and delivered (Signed) Loins Silverman”</p> <p>in presence of (seal)</p> <p>"Max Levi”</p> <p>(seal)</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Trespass quare clausum brought by the plaintiff against the defendants to recover damages for cutting and cai’rying away trees from the southwestern of the two Ensign Islands in West Penobscot Bay in Waldo County. Plea, the general issue with brief statement as follows:</p> <p>"1. That the title to the premises described in the writ is not in the plaintiff, but is in the defendant, Wendall Boardman.</p> <p>• "2. That the plaintiff had not any title to the real estate described in her writ, and was not in the lawful possession thereof, at the time of the alleged acts of trespass contained in her writ.”</p> <p>Tried at the September term, 1906, of the Supreme Judicial Court, Waldo County. At the conclusion of the evidence, and by agreement of the parties, the case was reported to the Law Court to render such judgment as the law and the legally admissible evidence required.</p> <p>All the material facts are stated iii the opinion.</p> <p>The "Muscongus Grant,” now known as the "Waldo Patent,” as printed in volume 10, folio 237, of the "York Deeds,” which said volume was published under the authority of chapter 181 of the Resolves of 1893, is as follows :</p> <p>"To all to whom these Presents Shall Come Greeting Know ye yt ye Counsell established at the Plimouth in ye County of Devon for ye planting Ruling Ordering and Governing of New England in America for Divers good Causes & Considerations them thereunto especially moving Have given granted Bargained Sold Enfieffed allotted and Sett over & by these presents do Clarly & absolutely give grant Bargaine Sell alliene enfiffe allott & assigne & Confirm unto John Beauchamp of London Gentlemen, & Thomas Leverett of Boston in ye County of Lincorn gent their heirs associates & assigns all & Singular those lands Tenement & Hereditments whatsoever with ye appurtenances thereof in New England aforesd which are Cittuate Lying & being within or between a place thence Commonly Called or known by ye name of Musrongruss towards ye South orr Southwest & a strait line Extending from thence directly ten Leaugs — up — into ye Maine land & Contains thence toward ye great Sea Commonly Called ye South Sea & ye utmost Limits of ye space ten Leauges-on ye North & North East — of a River in New England aforesd Commonly Called Penobscott Towards ye North & Northeast & ye great Sea Commonly Called ye westarn ocean, towards ye east & astait & direct line extending from ye most westeran part & Point of ye Sd Straight line which extends from Mecongoss aforesd towards ye South Sea to ye uttermose Northeram limmits of ye Sd ten leagues on ye North side of ye Sd River of, Penobscott towards ye west & all land & ground wood Soiles River waters Fishings Herredittments Profitts Commodityes Priviledges Fraimchises — & Emoliments whatsoever Situate Lying & being arising happening or Remaining or which Shall arise or Remain within ye Limmits & bounds aforesd or any of them together with all Sd land yt ly & be within ye Space of Three miles within ye Space of Sd land & pmisses or any of them to have & to hold all & Singulary ye Sd land Teniments & hereditments & pmisses whatsoever with ye appurtenances & every part & parcell thereof unto ye Sd John Beauchamp & Thomas Leverett their heirs associates & assigns forever to their only proper & absolute use & behoofe of ye sd Jno Beauchamp & Thos Leverett their heirs associates & assigns forevermore to be Holden of ye Kings most Excellent Majesty & Successors as of his manner of East Greenwich by ffealtie only & not in Capite nor by length of Service Yielding & paying unto his majesty his heirs & Successors ye fifth part of all Such Oare of Gold & Silver yt Shall be gotten & obtained in or upon ye pmisses or any part thereof In Witness whereof ye Sd Counsell established at Plymoth in ye County of Devon for ye Planting Ruling ordering and Governing of New England in America have hereunto putt ye Common Seal ye Thirteenth day of March in ye first year of ye Reign of Our Soveraign Lord Charts by ye Grace of God King of England Scotland France & Ireland Defender of ye Faith &c. Anno Domini 1629</p> <p>(Seal) "R. Warwick”</p>

<p> Fire Insurance. Verdict. Same mil be set aside, when. </p> <p>Where a plaintiff has recovered a verdict which is manifestly against the weight of evidence, it will not be permitted to stand but will be set aside. In the case at bar, the plaintiff’s hotel property and contents were destroyed by fire. At the time of the loss there was $3000 insurance upon the property, divided equally among three companies two of which were the defendants. One company adjusted its loss,"but the two defendants refused to pay and thereupon the plaintiff brought suits against them. The two actions were tried together, and a verdict for $600 against each defendant was returned. It was chiefly contended in defense that the property was very largely over insured and that the plaintiff procured one Reed to burn the same. Held: That the verdicts were so manifestly against the weight of evidence that they must be set aside.</p>

<p>On exceptions 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, a corporation, in discharging a cargo of coal from a schooner at the defendant’s wharf in Vinalhaven. Plea, the general issue.</p> <p>Tried at the January term, 1907, of the Supreme Judicial Court, Knox County. After the plaintiff’s evidence was closed, the defendant made a motion for a nonsuit. The presiding Justice granted the motion, withdrew the case from the jury, and made the following ruling and order: "Plaintiff nonsuit, with agreement on the part of the defendant that upon exceptions by the plaintiff the evidence shall be reported and printed ready for use before the Law Court at the expense of the defendant. It is also further stipulated on the part of the defendant, if the Law Court is of opinion that the order of nonsuit should be overruled and that the case should be sent back to a jury for trial, it will consent that the court may enter judgment against it for the sum of fourteen hundred dollars.”</p> <p>The plaintiff then excepted to the "withdrawal of the case from the jury, and the order of nonsuit and rulings.”</p> <p>The case appears in the opinion.</p>

<p>On exceptions by defendant.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff caused by the alleged negligence of the defendant company while transporting the plaintiff on one of its street railroad cars.</p> <p>The action was brought in the Supreme Judicial Court, Cumberland County, and was entered at the April term, 1906, of said court. At the same term, the defendant filed a special demurrer to the declaration. At a subsequent term, the demurrer was sustained and the plaintiff was allowed to file an amended declaration. The defendant then filed a special demurrer to the amended declaration. Upon hearing, the amended declaration was adjudged good and the demurrer thereto overruled. The defendant then excepted.</p> <p>The amended declaration was as follows :</p> <p>"In a plea of the case, for that for a long time prior to the twenty-eighth day of June A. D., 1905, and up to the date of this writ the defendant corporation was the owner of and operated a certain street railroad running from the city of Westbrook in said county to the city of Portland in said county, with numerous branches connecting with said railroad and running to other points in said county, and were and are a common carrier of passengers.</p> <p>"That one of defendant’s branch lines runs to Riverton in said county and connects with its line running between Westbrook and Portland at a place known as Highland Square in said Portland, that the plaintiff lived at said Westbrook and was employed by defendant as a laborer at said Portland; that on said twenty-eighth day of June he took one of defendant’s cars at said Westbrook to be transported to Woodfords, a point in said Portland upon defendant’s line beyond said Highland Square from said Westbrook. That he gave to the conductor in charge of said car a coupon ticket, which he had received from said defendant corporation and for which he had paid a valuable consideration to said defendant and which entitled him to a passage over said defendant road in said car from Westbrook to said Woodfords, whereby it became and was the duty of defendant to convey said plaintiff safely to his destination at said Woodfords without injury or damage to him.</p> <p>"That while on said car and while being so conveyed and while he was in the exercise of proper care and without fault on his part, when said car arrived at said Highland Square, because of the carelessness and negligence of said defendant corporation and because of the unsound condition of its tracks over which said car was operated said car in which said plaintiff was then traveling was suddenly and violently derailed and came to a very sudden stop, and said car was derailed as aforesaid by reason of a defect in the ways, works and machinery of defendant which arose from or had not been discovered or remedied owing to the neglect or want of care of some person in the employ of said defendant and entrusted by it with the duty of seeing that the ways, works and machinery were in proper condition, and that plaintiff had no knowledge of the dangerous conditon, of the ways, works and machinery of defendant. And-the plaintiff was thereby violently and with great force thrown from said car and was thereby seriously injured, receiving serious and dangerous bruises to his back, limbs and to other parts of his body: and was thereby severely wrenched strained and injured internally and received serious injuries to his spine.</p> <p>"That by reason of said injuries, plaintiff was wholly disabled from all manual labor and said disabilities have continued until the present time and said injuries are permanent; in consequence of said injuries plaintiff has suffered great pain both of body and mind and has been put to great expense for the necessary medical attendance and medicine.</p> <p>"And plaintiff avers that said injuries were caused wholly by the carelessness and negligence of said defendant and without fault on his part.</p> <p>"Second Count.</p> <p>"For a long time prior to the twenty-eighth day of June A. D. 1905, and up to the date of this writ the defendant corporation was the owner of and operated a certain street railroad, running from the city of Westbrook in said county to the city of Portland in said county with numerous branches connecting with said railroad and running to other points in said county, and were and are a common carrier of passengers, that plaintiff had for some years prior to the said twenty-eighth day of June been employed by said defendant as a greaser and that some months prior to said twenty-eighth day of June, his work being then on a branch of said defendant’s line running from Woodfords in said Portland through Morrill’s Corner in said Portland, he traveled over defendant’s line from said Westbrook to said Woodfords, paying his fare in cash, at which time he notified defendant that the expense of his transportation to his work was so great that he could not afford to work for said defendant at the wages he was then receiving, that thereupon defendant promised and agreed with plaintiff, if he would continue in its employ at the same place at the same rate of wages it would furnish him transportation from said West-brook to said Woodfords. And in consideration of said increase in pay by the addition of transportation, plaintiff entered into such agreement with defendant, whereupon and as a part consideration for his continuing in its employ, the defendant issued and delivered to plaintiff a book of coupons, each coupon entitling him to a passage on defendant’s cars between Westbrook and Woodfords, that pn said twenty-eighth day of June, A. D. 1905 plaintiff took defendant’s car at Westbrook to be transported on said car to Woodfords and on entering said car he gave to the conductor in charge of said car one of said coupons and which entitled him to a passage over defendant’s road in said car from said Westbrook to said Woodfords whereby it became and was the duty of said defendant to convey the plaintiff safely to his destination at said Woodfords without injury or damage to him.</p> <p>"That while on' said car and while being so conveyed • and while he was in the exercise of proper care and without fault on his part, when said car arrived at said Highland Square because of the carelessness and negligence of said defendant because of the unsound condition of the tracks over which said car was operated said car in which said plaintiff was traveling was suddenly and violently derailed and came to a very sudden stop and caused the plaintiff to be violently and with great force thrown from said car and he was thereby seriously injured receiving serious and dangerous bruises to his back, limbs and to other parts of his body and was thereby seriously wrenched, strained and injured internally and received serious injuries to his spine.</p> <p>"That by reason of ‘ said injuries plaintiff was wholly disabled from all manual labor and said disabilities have continued till the present time and said injuries are permanent in consequence of said injuries plaintiff has suffered great pain both of body and mind and has been put to great expense for necessary medical attendance and medicine.</p> <p>"Plaintiff avers that said injuries were caused wholly by the carelessness and negligence of said defendant and without fault on his part.”</p> <p>The special demurrer to the amended declaration alleged that the amended declaration was insufficient for the following reasons:</p> <p>"First. Because the plaintiff in the first count of said declaration alleges that he was employed by the defendant, but does not allege in said count whether or not he was acting in the employ of defendant at the time of the alleged accident.</p> <p>"Second. Because the first count of said declaration is uncertain, doubtful, ambiguous and repugnant, and does not apprise the defendant in what capacity the plaintiff was on the car of defendant at the time of the alleged accident, whether as a servant of defendant, or as a passenger for hire; in that the plaintiff alleges in said count that he was in the employ of the defendant and yet the plaintiff further alleges in said count that the defendant is a common carrier of passengers, that the plaintiff gave to the defendant’s conductor a ticket for which said plaintiff had paid a valuable consideration, that said ticket entitled him to a passage over defendant’s railroad for a specified distance, viz: from Westbrook to Wood-fords, and that it thereby became defendant’s duty to carry him safely to said Woodfords.</p> <p>"Third. Because in the first count of said declaration the plaintiff does not allege or set forth facts sufficient to apprise the defendant at the time of the alleged accident, whether as servant of the defendant or as passenger for hire, or in some other capacity.</p> <p>"Fourth. Because the legal duty of the defendant towards the plaintiff set forth in said first count is neither the duty of a common carrier to a passenger for hire nor that of a master to its servant; in that said count alleges that the plaintiff ,took passage upon the defendant’s car and that ‘ it became and was the duty of defendant to convey said plaintiff safely to his destination at said Woodfords without injury or damage to him.’</p> <p>"Fifth. Because in the first count of said declaration the plaintiff alleges that he was injured because of the carelessness and negligence of the defendant and because of the unsound condition of its tracks and by reason of a defect in its ways, works and machinery ; and yet the plaintiff does not set forth or allege how or in what particular the defendant was careless or negligent and how or in what particular said tracks were unsound or said ways, works and machinery were defective.</p> <p>"Sixth. Because the plaintiff in the second count of said declaration alleges that he was employed by the defendant, but does not allege in said count whether or not he was acting in the employ of defendant at the time of the alleged accident.</p> <p>"Seventh. Because the second count of said declaration is uncertain, doubtful, ambiguous and repugnant and does not apprise the defendant in what capacity the plaintiff was on the car of the defendant at the time of the alleged accident, whether as a servant of defendant, or as a passenger for hire ; in that the plaintiff alleges in said count that he was in the employ of the defendant and yet the plaintiff further alleges in said count that the defendant is a common carrier of passengers, that the plaintiff gave to the defendant’s conductor a ticket for which said defendant had paid a valuable consideration, that said ticket entitled him to a passage over defendant’s railroad for a specified distance, viz: from Westbrook to Woodfords, and that it thereby became defendant’s duty to carry him safely to said Woodfords.</p> <p>"Eighth. Because in the second count of said declaration the plaintiff does not allege or set forth facts sufficient to apprise the defendant in what capacity the plaintiff was on the car of the defendant at the time of the alleged accident, whether as servant of the defendant or as a passenger for hire, or in some other capacity.</p> <p>"Ninth. Because the legal duty of the defendant toward the plaintiff set forth in said second count is neither the duty of a common carrier to a passenger for hire nor that of a master to its servant ; in that said count alleges that the plaintiff took passage upon the defendant’s car and that ‘ it became and was the duty of defendant to convey said plaintiff safely to his destination at said Woodfords without injury or damage to him.’</p> <p>"Tenth. Because in the second count of said declaration the plaintiff alleges that he was injured because of the carelessness and negligence of said defendant and because of the unsound condition of its tracks; and yet the plaintiff does not set forth or allege how or in what particular the defendant was careless or negligent, and how or in what particular said tracks were unsound.”</p>

<p> Practice. Exceptions. Finding of Pacts by Presiding Justice. </p> <p>On an appeal from the decree of the Judge of Probate refusing to grant letters to the plaintiff as surviving partner to close up the partnership affairs of the firm of John H. Tighe, deceased, and the plaintiff, the question submitted to the determination of the presiding Justice was whether or not the partnership between the said Tighe and the plaintiff was dissolved during the lifetime of the said Tighe or continued until his death. The presiding Justice found that no partnership existed between the said Tighe and the plaintiff at the time of the death of said Tighe. The plaintiff then excepted.</p> <p>Held: (1) That the plaintiff’s exceptions only raised the question whether there was any evidence upon which the finding and ruling of the presiding Justice could be based. (2) That the question submitted to the decision of the presiding Justice involved an issue of fact, not simply an inference of law from facts admitted or proved. (3) That there was evidence to support the finding of the presiding Justice. (4) That the sufficiency of such evidence was a question of fact upon which the finding of the presiding Justice is conclusive.</p>

<p> Fish and Fisheries. Penal Statutes. Construction. Clams. Towns. Invalid Clam Regulations. Statute (Mass.) 1889, chapter 891. Public Statutes (Mass.) 1888, chapter 91, section 68. Statute 1901, chapter 884, section 37 ; 1905, chapter 161, section 1. R. S., chapter 41, section 34- </p> <p>It is a well settled principle of the common law that the fish in the waters of the State including the sea within its limits as well as the game in its forests belong to the people of the State in their collective sovereign capacity.</p> <p>It is also well settled that the legislature of each State representing the people possesses full power to regulate and control such fisheries by appropriate enactments designed to secure the benefits of this public right in property to all its inhabitants.</p> <p>It is a familiar principle of construction that the operation of a penal statute cannot be extended by implication so as to embrace cases which are not plainly included in the express terms and obvious import of the language of the enactment.</p> <p>Revised Statutes, chapter 41, section 34, as amended by chapter 161 of the Public Laws of 1905 contains no provision expressly prohibiting a person from digging clams within the limits of a town of which he is not a resident, nor does it contain any provision authorizing the inhabitants of a town to adopt any by-law or regulation excluding non-residents from the privilege of applying -to the municipal officers for a written permit to take clams in such town.</p> <p>The inhabitants of the town of Cushing at the annual meeting of said town held in March, 1906J under an article therefor in the warrant, voted as follows: “To haveaclam law as per chapter 161, Public Laws, 1905 and to issue 150 licenses to expire April 1, 1907, price for licenses to be $.25 and not to issue licenses to non-residents.” Held: That this regulation is invalid as to non-residents, and since it cannot be enforced against the inhabitants of the town without defeating the purpose of the voters in adopting it, the whole regulation is void.</p>

<p>In Equity.</p> <p>In equity. On report.</p> <p>Bill in equity. This cause has been before the Law Court once before and the decision and report of the same can be found in 100 Maine, 461, and reference to that report is made for a statement of the original contentions between the parties. After the opinion and decision in 100 Maine, 461, a decree for an injunction and an accounting was made, and the case committed to a master with instructions as stated in the present opinion. By the same decree the bill was dismissed without costs as to Ralph M.' Lunn and John L. Reed who originally were made parties defendant. The master heard the parties and then made and filed his report. Both parties took exceptions to the report.</p> <p>The cause then came on for hearing before a Justice of the Supreme Judicial Court "on the question of the acceptance of the report of the master, and the consideration of the exceptions of both parties thereto, and was argued by counsel. And thereupon, questions of law having arisen of sufficient importance to justify it, and the parties agreeing to it,” the cause was "reported to the Law Court for its determination,” with the following stipulations : "If the Law Court is of the opinion that the master’s report should be accepted as it stands, a final decree is to be directed for the plaintiff accordingly. Otherwise the Law Court is to direct such orders and decrees as the rights of the parties require.”</p> <p>The case appears in the opinion.</p>

<p>Deed. Construction. Estate. Fee. Amicus Curiae. Appeal. Statute (Mass.) 1811, chapter 6, section 8. R. 8., chapter 16, section 88.</p> <p>•True Lovett of Bridgton, by deed dated April 12, 1814, in consideration of the sum of nineteen dollars paid by Samuel Andrews and Jedediah Kim-ball “a committ of the Society cald Perticuler Baptist in said Town of Bridgton, or their successors in that office for the time being,” gave, granted, sold and conveyed “ Unto the said Samuel and Jedediah ” a certain tract of land in said town, “ to have and to hold, the aforegranted premises to the said Samuel and Jedediah and to their successors in office to their use and behoof forever,” the covenants being in the following terms : “And I do covenant with the said Samuel and Jedediah and their successors in office, that I am lawfully seized in fee of the afojgegranted premises; that I have good right to sell and convey the same to the said Samuel and Jedediah and to their successors ; and that I will warrant and defend the same premises to the said Samuel and Jedediah, their assigns forever, against the lawful claims and demands of all persons.”</p> <p>Held: (1) That it was the intention of the grantor to convey the property to the grantees, not in their individual right, but as trustees for the Per-ticuler Baptist Society, the word “committ” meaning committee, and being equivalent to trustees, and the words “ successors in office” providing for a continuance of the trust.</p> <p>(2) That the deed contains no words of qualification or limitation, nothing to indicate that under any circumstances the estate is to determine. There is no mention of any restricted purpose for which the property is to be used. It is a conveyance to the committee named and to their successors in office, to their use and behoof forever, and a fee simple in trust was granted, although no words of limitation to heirs were used.</p> <p>The term amicus curiae implies the friendly intervention of counsel to remind the court .of some matter of law which might otherwise escape its notice and in regard to which it might go wrong. Such an intervention is granted not as a matter of right but of privilege and the privilege ends when the suggestion has been made.</p> <p>An amicus curiae has no control over the suit, and has no right to bring the case from one court to another or from a single Justice to the Law Court by exceptions, appeal or writ of error.</p> <p>In the case at bar, Addie.E. Pingree, was not named as a party defendant in the bill and when, without title or interest, she voluntarily appeared to resist it, she could be regarded, at best, simply as amicus curiae, and in that capacity her privilege ended when through her counsel she called the attention of the court below to certain suggestions in matters of law. It is true-that as claimant of title she had a right to be heard on that single question and the appeal was properly entertained for the purpose of settling that question, but as that has been settled adversely to her rights, there is no longer any party in the Law Court to be heard. As amicus curiae she has had her hearing in the lower court. All the points raised in the Law Court were raised before the chancellor and from his decision she cannot as amicus curiae, appeal.</p>

<p>In Equity.</p> <p>Inequity. On report.</p> <p>Bill in equity brought by the plaintiff John L. Herrick of Charleston, in the County of Penobscot, against Clarence E. Low of Madison, Lake County, South Dakota, Cora V. Mitchell of Avoca, Murray County, Minnesota, Addie E. Ames of Bradford, and Nancy L. Lamson of Charleston both in said Penobscot County, asking for the construction of paragraph three, clause two of the will of Nancy L. Bridgham late of said Charleston.</p> <p>This cause came on to be heard on bill and answers at the April term, 1907, of the Supreme Judicial Court, Penobscot County, and it appearing to the Justice presiding that questions of law were involved of sufficient importance and doubt to justify the same, and by consent of the parties, the cause was reported to the Law Court, for hearing and decision.</p> <p>The case appears in the opinion.</p>

<p>Probate Appeal. Adverse Judgment‘ Same no Bar, when. Entry of Appeal. “ Accident or Mistake.” Judicial Discretion. Jurisdiction. Practice. Procedure. R. 8., chapter 65, section SO.</p> <p>1. When an appeal from the decree of the Probate Court refusing to issue letters testamentary is decided adversely to the appellant, on the ground that it did not appear in the appeal or in the reasons therefor that the will had been allowed or admitted to probate, that judgment is not in law a bar to a petition, filed during the pendency of the appeal proceedings, for leave to enter and prosecute an appeal from the decree refusing to admit the will to probate.</p> <p>2. On the hearing of a petition for leave to enter and prosecute an appeal from a decree of the Probate Court, the question whether previous appeal proceedings and the judgment thereon are a bar to the petition is a question of law, to the decision of which by a Justice of the Supreme Court of Probate exceptions will lie. If no exceptions are taken, the ruling is conclusive on the parties, if the court had jurisdiction.</p> <p>3. On the hearing of a petition for leave to enter and prosecute an appeal from a decree of the Probate Court, the questions whether the failure seasonably to claim or enter the appeal was through accident or mistake, whether it was without the fault of the petitioner, and whether justice requires a revision of the decree, present issues of fact. The determination of the Justice thereon and the exercise of the judicial discretion conferred on him are final and conclusive.</p> <p>4. When leave is granted to enter and prosecute such an appeal, by a Justice having jurisdiction, matters of fact or law which were heard and determined by him cannot be heard again upon a motion to dismiss the appeal which he granted.</p> <p>5. The only question which can be open on such a motion is whether the Justice had jurisdiction to grant leave.</p> <p>6. If a Justice hear such a petition in vacation by agreement of the parties, and enters his decision on the docket as of the last day of the preceding term which he held, the parties are concluded by the entry.</p> <p>7. The Supreme Court of Probate has jurisdiction to hear such a petition at a term later than the first one after the petition is filed. Whether the petitioner has used due diligence in prosecuting his appeal, and giving notice, and whether, for want of diligence, he should be refused relief, are questions addressed to the judicial discretion of the presiding Justice.</p> <p>8. A decree on such a petition that an appeal be allowed and prosecuted is equivalent to a decree that an appeal may be entered and prosecuted.</p> <p>9. If the decree granting leave to enter and prosecute an appeal fails to designate the term to which the appeal is to be entered, the entry of the appeal at the next term of court is seasonable and authorized.</p>

On report. The defendant conveyed his farm to the plaintiffs and assigned to them his interest in a policy of fire insurance to the extent of the buildings insured, reserving the insurance on the personal property covered by the policy. The defendant did not deliver the deed when it was signed but did so at his home later in the day when he received the purchase price.

<p> Probate Courts. Decrees. Conclusiveness when not Appealed From. R. &>., chapter 67, section SO. </p> <p>Decrees of the Probate Court upon matters within its jurisdiction when not appealed from are conclusive upon all persons.</p> <p>Decrees of the Probate Court upon matters within its jurisdiction when not appealed from are in the nature of'judgments and cannot be impeached collaterally.</p> <p>The right of appeal is given for the purpose of correcting errors and it is important for the security of judgments that this right of appeal should be subject to the reasonable limitations of the statute.</p> <p>In the case at bar, the Judge of Probate allowed the fourth account of the administrators of the estate of a deceased intestate. In this account the administrators were allowed for certain items paid under an order of distribution to the twenty-two nephews and nieces of the deceased. In accordance with this order and a. previous order-of distribution, personal estate amounting to $16,891.67 ivas distributed to the nephews and nieces per stirpes, whereas the orders should have provided for a distribution per capita. In both petitions for distribution the Probate Court had jurisdiction and all proceedings with reference to said petitions were regular and in accordance with the statute, and the time for appeal from both decrees of distribution has long since elapsed.</p> <p>Held: That these matters were within the jurisdiction of the Probate Court and its decrees not being appealed from were conclusive, and that a compliance with the orders of distribution releases the administrators from all further liability as to the assets distributed under the orders.</p>

On exceptions by defendants Hawkens and Chisolm. Action on the case for false imprisonment. The writ was entered at the January term, 1907, of the Supreme Judicial Court, Knox County. The defendants, Hawkens and Chisolm', appeared specially by counsel and filed motions to dismiss the action as to them.

On exceptions by defendant Samuel L. Haskell. Real action to recover Lot 21 in LaGrange, Penobscot County. Herbert J. Banton, Samuel L. Haskell and one Bean are the defendants. (The Christian name of the defendant Bean is not disclosed by the case as sent to the Law Court.) Tried at the January term, 1907, of the Supreme Judicial Court, Penobscot County.

On report. Debt on probate bond given to the Judge of Probate of Penob-scot County by John Grady as surviving partner of the firm of Davis & Grady, brought in the name of the Judge of Probate for the benefit of Marie Morton and Charlotte Davenport and Morse & Co., who claimed as judgment creditors.

<p>On report.</p> <p>Remanded to Probate Court for further proceedings.</p> <p>Appeal from the decision of the Judge of the Probate Court, Cumberland County, dismissing the petition of Fidelity & Deposit Company of Maryland, praying that the petitioner might be discharged as surety on a bond given by Jennie B. Pope as guardian of Jennie Barnes Pope, a minor.</p> <p>The appeal was duly entered at the January term, 1907, of the Supreme Judicial Court, Cumberland County, sitting as the Supreme Court of Probate, and at the following April term thereof the cause by agreement was reported to the Law Court with the stipulation that the Law Court should "render such judgment as the law and the fact? require,”</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Action of trespass de bonis asportatis brought in the Superior Court, Kennebec County. Writ dated August 10, 1906. The declaration in the writ is as follows :</p> <p>"In a plea of trespass, for that the said defendants, at said Augusta, on the thirteenth day of June, A. D., 1906, with force and arms took and carried away the goods and chattels, to wit, twelve bags containing cork stoppers of the value of twenty dollars, three boxes containing cork stoppers of the value of ten dollars, one pint copper funnel of the value of one dollar, one-half pint copper funnél of the value of seventy-five cents, one patent straining funnel of the value of one dollar and twenty-five cents, one gallon copper measure of the value" of three dollars, one quart copper-measure of the value of one dollar and fifty cents, one pint copper measure of the value of one dollar and twenty-five cents, one half-pint copper measure of the value of one dollar, fifty quart bottles of the value of one dollar and fifty cents, thirty pint bottles of the value of sixty cents, fifty half-pint bottles of the value of seventy-five cents, two baskets of the value of one dollar, and four glass mugs of the value of twenty cents, all then and there found and being the proper goods, chattels and property of the plaintiff and of great value, to wit, the value of forty-three dollars and eighty cents, and then and there unlawfully converted the same to the use of the said defendants, against the peace of the State and to the great damage of the plaintiff, as he says, the sum of five hundred dollars.</p> <p>"And also for that the said defendants, at said Augusta, there-afterwards on the said thirteenth day of June, A. D., 1906, wil-fully and maliciously intending and contriving to injure the plaintiff and to deprive him of his property and to hinder and prevent him from carrying on his drug business, then and there with force and arms took from the possession of the plaintiff and carried away twelve bags containing a large quantity of cork stoppers, three boxes containing another large quantity of cork stoppers, one pint funnel, one-half pint funnel, one straining funnel, one gallon measure, one quart measure, one pint measure, one half-pint measure, fifty quart bottles, thirty pint bottles, fifty half-pint bottles, two baskets and four glass mugs, all then and there found and being the proper goods, chattels and property of the plaintiif and of great value, to wit, the value of forty-three dollars and eighty cents, and thence hitherto have maliciously and unlawfully deprived the plaintiif of the possession of the same, against the peace of the State and to the damage of the said plaintiif (as he says) the sum of five hundred dollars, which shall then and there be made to appear, with other due damages.”</p> <p>Plea, the general issue with brief statement as follows:</p> <p>"And for a brief statement of special matter of defence to be used under the general issue pleaded, the said defendants further say: That in taking the goods and chattels described in the plaintiff’s writ they were acting under and by virtue of a warrant issued by the Municipal Court of the City of Augusta, and that in the execution of said warrant they were acting as Deputy Enforcement Commissioners and by virtue of the authority and power with which they were clothed as Deputy Enforcement Commissioners legally appointed, and that the taking of said goods and chattels was by virtue of said warrant and the authority conferred upon them as said Deputy Enforcement Commissioners.”</p> <p>Tried at the January term, 1907, of said Superior Court. At .the conclusion of the evidence the case was “reported to the Law Court for its determination on the facts and law applicable thereto.”</p> <p>The case is stated in the opinion.</p>

On motion by defendant. Action of special assumpsit based upon a written contract and brought by the plaintiff to recover for cutting and hauling certain logs for the defendant at $9.00 per thousand feet.

On exceptions by defendants. Action of replevin brought in the Rumford Falls Municipal Court in which the plaintiff recovered judgment. The defendants then appealed to the March term, 1907, of the Supreme Judicial Court, Oxford County, and recognized with a surety to prosecute their appeal.

On exceptions by plaintiff. Real action to recover certain land in East Machias! Plea, the general issue with disclaimer as to a part of the demanded premises. Tried at the October term, 1906, of the Supreme Judicial Court, Washington County. Verdict for defendants. The plaintiff excepted to certain rulings made by the presiding Justice during the trial excluding certain offered evidence. The case appears in the opinion.

<p>On exceptions by plaintiff.</p> <p>Assumpsit on account annexed to recover a balance of $169.45 alleged to be due from the defendant to the plaintiff, and also to recover an interest charge of $22.03. The account annexed contains 207 debit items, exclusive of item of interest charge, and 25 credit items.</p> <p>Plea, the general issue with brief statement alleging that the defendant "did not promise within six years next prior to the date of the writ in this case.”</p> <p>The case was first sent to an auditor who, after hearing, made and filed his report the material parts of which are as follows :</p> <p>"The account in question commenced January 13, 1894, and continued until December 17, 1898, at which time it appears there was a balance due the plaintiff of $169.45.</p> <p>"After this time there were only two entries made on the account. On November 15, 1902, there was a debit entry of twenty cents for tobacco and on December 15, 1902, a credit entry of cash twenty cents. The evidence shows that the credit entry of December 15, 1902, was made for the express purpose of paying the debit entry of November 15, 1902.</p> <p>"The writ in this action was dated December 19, 1905, and the plaintiff would be barred by the statute of limitations from recovering on the amount due on December 17, 1898, unless the account was renewed by the transactions of November 15 and December 15, 1902, as described above. If the account was, by the two items mentioned, renewed then I find that there is due the plaintiff from the defendant the sum of $169.45. If the said transactions did not renew the account then the action is barred by the statute, and nothing is due the plaintiff from the defendant.”</p> <p>A hearing was had on the auditor’s report before the presiding ' Justice at the February term, 1907, of the Supreme Judicial Court, Piscataquis County. The report was accepted and the presiding Justice ruled pro forma "that the claim was barred by the statute of limitations and gave judgment for the defendant,” to which ruling the plaintiff excepted.</p> <p>The bill of exceptions states that "the plaintiff claimed that the account, being an open, mutual account current, was not barred by the statute of limitations since the statute began to run anew from the debit item of Nov. 15, 1902, and that the credit item of Dec. 15, 1902, although expressly made for the purpose of paying the charge of Nov. 15, 1902, aforesaid could not outlaw the account which had been revived by said debit item of Nov. 15, 1902. The . - defendant claimed to the contrary and that the whole claim was barred by the statute of limitations.”</p> <p>The pith of the case appears in the opinion.</p>

<p> Equity. Parties. Demurrer. .Unforeclosed Mortgage. Descent of Same on Death of Mortgagee- foreclosed Mortgage. Lands Vest in Heirs or Devisees. Statute 1863, chapter SIS; 1870, chapter 113, section SB; 1907, chapter 163. R. S., 1857, chapter 65, section SS. R. S., chapter 67, sections S5, S6, S8; chapter 9S, sections 7,13. </p> <p>1. The objection of the want of necessary parties to a bill in equity may be raised by demurrer, either general or special, and when it is raised by special demurrer, it is proper that the demurrer should suggest the names of the persons omitted. Or the objection may be taken at the hearing, or suggested at any time by the court. But a demurrer is not available unless the bill on its face discloses the want of necessary parties.</p> <p>2. Under the statutes of this State, the mortgage title to lands held under an unforeelosed mortgage descends on the death of the mortgagee to his executor or administrator like all other personal estate, and not to his heirs or devisees. When such a mortgage afterwards becomes foreclosed the lands thereupon become vested in the heirs or devisees, subject to sale for the purposes of administration, and are to be distributed to the persons who are entitled to the personal estate. But until foreclosure is complete, the heirs or devisees have no title to the mortgaged estate, and they have no interest in the same except such as they have in personal estate generally.</p> <p>3. In litigation in equity concerning personal estate in the hands of executors or administrators for administration, including unforeclosed mortgages of real estate, ordinarily the heirs or devisees are not necessary parties. They are sufficiently represented by the executor or administrator. This rule applies to proceedings to redeem from such mortgages.</p> <p>4. But if the mortgage has in form become foreclosed, and the validity of the foreclosure is attacked by a bill in equity praying that the foreclosure proceedings be declared null and void, and for a redemption, the heirs or devisees have a direct interest, and a right to be heard on that question, and must be made parties. It is otherwise if the mortgage is unforeclosed.</p> <p>5. In the case at bar it does not appear on the face of the bill that the time for redemption had expired and that the mortgage had become completely foreclosed when the bill was brought. It therefore does not appear on the face of the bill that the devisees of the deceased mortgagee are necessary parties. The demurrer for want of necessary parties is not sustainable.</p> <p>6. Hilton v. Lothrop, 40 Maine, 297, is overruled in so far as it holds that heirs or devisees are necessary parties to a bill to redeem from an unfore-closed mortgage, after the death of the mortgagee.</p>

On agreed statement. Action of debt to recover a tax assessed against the defendant for the year 1905. This action was duly entered in the Supreme Judicial Court, Androscoggin County, and at the September term thereof, 1906, an agreed statement of facts was filed and the case was sent to the Law Court for determination.

On report. Real actions brought by the plaintiffs as trustees in bankruptcy of the estate of Henry Hudson of Guilford. The first named action was to recover Lot No. 15, Range 11, in the town of Foxcroft, Piscataquis County, and the second was to recover Lot No. 15, Range 10, in the same town, Plea, the general issue in each action.

On exceptions by defendant. Petition in the nature of an appeal, for an increase of damages awarded to the plaintiff by the municipal officers of the city of Bangor as compensation for land taken by said city under Revised Statutes, chapter 4, sections 89, 90, 91, for a public library lot. The petition was entered at the October term, 1906, of the Supreme Judicial Court, Penobscot County, and was continued to and past the January term, 1907, to the April term, 1907.

On exceptions by plaintiff. Replevin to'recover possession of a certain black mare described in a Holmes note given by one Charles P. Merrill to one H. M. Miller and which said note immediately after its execution was indorsed in blank by said Miller and by him delivered to the plaintiff as his property. After the delivery of the note to the plaintiff he had the same duly recorded in the town in which the maker, Merrill, then resided.

In Equity. In equity. ■ On appeal by defendant. Bill in equity brought by the plaintiff corporation to compel the specific performance of a contract signed by the defendant company. The defendant company filed its answer to the bill and the cause was then heard on bill, answer and proofs by the Justice of the first instance who sustained the bill and filed a decree in accordance with the prayer of the bill.

On report. Action on the case for deceit brought by the plaintiff .bank against the defendant in his individual capacity to recover a certain amount of money alleged to have been lost by the plaintiff bank on account of checks deposited in the plaintiff bank, drawn upon the Gardiner National Bank by the defendant in his capacity as treasurer of the Harmon Produce Company against a fund which, it was alleged, did not exist in the said Gardiner National Bank, with the alleged…

On exceptions by defendant. Search and seizure process under the provisions of Revised Statutes, chapter 29, section 49, based on a complaint addressed to'the Bangor Municipal Court and a warrant issued thereon by said court.

On exceptions by defendants. Real action to recover certain real estate in the town of Cushing. (See Poland v. Davis, et al., ante, 55) The case fully appears in the opinion.

On exceptions by plaintiff. Action of debt on the official bond given by the principal defendant John C. Stewart as treasurer of the town of York, York County, for the year beginning March 12, 190G. The defendants prayed oyer of the bond and the same was produced in court and read. The defendants then filed a special demurrer to the declaration which was sustained by the presiding Justice and thereupon the plaintiff excepted.

On agreed statement. Assumpsit on account annexed to recover for certain coupon books alleged to have been sold and delivered by the plaintiff to the defendant, to be paid for in money.” Plea, the general issue and statute of limitations. The action originated in the Dover Municipal Court, Piscataquis County, and probably reached the Supreme Judicial Court on appeal although the record is silent on that point.

On motion by defendant. Action on the case brought by the plaintiff as administratrix of the estate of her husband, Lewis Cameron, to recover damages sustained by her said husband while a passenger on one of the defendant’s street cars on lower Washington Street, Bath, caused by the alleged negligence of the defendant, and which said injuries subsequently resulted in the death of the plaintiff’s intestate. Plea, the general issue.

On exceptions by defendants. Writ dated March 2, 1905. Plea, the general issue.