Volume 104 — Maine Reports

On agreed statement of facts. Actions of trespass for false imprisonment.

On exceptions by defendant. Assumpsit by plaintiff, a real estate broker doing business as C. L. Hutchins Real Estate Company, to recover a commission of •f 100 for sale of defendant’s real estate under a written contract. Tried at the September term, 1906, Supreme Judicial Court, Androscoggin County. Verdict for plaintiff for $103.27. The defendant excepted to certain rulings made by the presiding Justice during the trial. The case appears in the opinion-.

On motion by defendants. Special action on the case brought under the provisions of Revised Statutes, chapter 23, section 76, to recover damages for injuries alleged to have been received by the plaintiff through a defect in a public way which the defendant town was obliged by law to keep in repair. Plea, the general issue. Tried at the January term, 1907, Supreme Judicial Court, York County. Verdict for plaintiff for $1,210.08.

On exceptions by defendant. Real action brought by the plaintiff to recover one-half part in common and undivided of certain real estate in New Vineyard, Franklin County, from the defendant, who was the cotenant thereof, together with the sum of $300 for rents and profits during the six years preceding the date of the writ.

On motions by defendant. Two actions on the case to recover damages for personal and property injuries sustained by the plaintiff Joseph Denis and for personal injuries sustained by the plaintiff Josephine Denis, caused by a collision of their team, in which they were riding, with a street car of the defendant company at the junction of Main and Pettengill streets in Lewiston. The plaintiffs are husband and wife.

On exceptions by defendants. Two real actions, one against the administrator of the estate of Gilman Jordan and the other against the heirs of the said Gilman Jordan, brought for the recovery of certain land. Both actions were referred with the right to except regarding matters of law. The referee found for the plaintiff in each action and with his report filed a rescript presenting the questions of law reserved by the defendants.

<p>On exceptions and motion by plaintiff.</p> <p>Action of trespass quare clausum for an alleged breaking and entering of the plaintiff’s dwelling house in Lewiston. The defendants were deputy enforcement commissioners duly appointed under the provisions of chapter 92, Public Laws, 1905, known as the "Sturgis Law,” and at the time of alleged trespass, by virtue of a warrant therefor duly issued by the Municipal Court of Lewiston, were engaged in searching the plaintiff’s dwelling house for intoxicating liquors alleged to be concealed therein. The plaintiff is a resident of New York City and the dwelling house, at the time of the alleged trespass, was occupied by his brother Timothy F. Buckley as a tenant at will.</p> <p>The declaration in the plaintiff’s writ is as follows:</p> <p>"In a plea of trespass for that the said defendants at Lewiston, on the fifth day of August, 1906, with force and arms broke and entered the plaintiff’s close in said Lewiston and then and there with pick-axe, bars, and other instruments ruined and destroyed to a large extent the plaintiff’s building, tore down the walls of the house, cut, destroyed and defaced the walls, floors and other portions of the plaintiff’s house against the law of the land and against the will of the plaintiff and the plaintiff further alleges that these acts were done by the defendants willfully, and wantonly, to the damage of the said plaintiff, (as he says) the sum of one thousand dollars.”</p> <p>Plea, the general issue, with a brief statement as follows :</p> <p>"That at the time of doing the acts complained of in plaintiff’s writ, to wit, on August 5th, A. D. 1906, the defendants and one A. B. Howard of Auburn in this County, were duly and legally appointed and qualified deputy enforcement commissioners of the State of Maine, and were acting as such; that the said A. B. Howard was then armed with a warrant legally issued from the . Municipal Court of the City of Lewiston, in said County of Androscoggin, a court having general jurisdiction over the subject matter, directed to the Sheriff of our said County of Androscoggin, his Deputies, the Constables of the City of Lewiston, and of the several towns in said County, and the enforcement commissioners and deputy enforcement commissioners of the State of Maine, commanding them, or either of them, to enter the dwelling house and its appurtenances occupied by Timothy Buckley, and situated on the west side of Grove street in said Lewiston, being the same premises described in plaintiff’s writ and declaration and therein to search for intoxicating liquors alleged in said warrant to be then on the said fifth day of August aforesaid, there unlawfully kept and deposited by said Buckley for illegal sale in the State of Maine; that said warrant was duly issued from said court on and bearing the date of said fifth day of August, aforesaid, bearing its seal and the teste of the judge thereof, and over the signature of A. K. P. Knowlton, its then duly appointed and qualified acting clerk; that said Howard was present and armed with and acting under said warrant, and directing said search ih. said capacity as deputy enforcement commissioner, during all of the acts complained of in plaintiff’s writ and declaration; that said Beaulieu and said Stevens, in their said capacity as deputy enforcement commissioners, assisted in said search as aids of said Howard, and under the directions contained in said warrant; that all of the acts complained of in plaintiff’s said writ and declaration, which these defendants did at all were done in the execution of said warrant, in the presence and under the direction of the person, to wit, of said Howard, who was then and all of the time there personally present and armed with the same, and that neither of said defendants did any act which was not reasonable and necessary in the execution of said warrant; and that .the said Howard and the said Beaulieu and Stevens, acting in their said several capacities did all things required of them by said warrant according to the tenor thereof.</p> <p>Tried at the January term, 1907, Supreme Judicial Court, Androscoggin County. Verdicts for defendants. The plaintiff then filed a general motion for a new trial, and also during the trial excepted to certain rulings made by the presiding Justice. The exceptions were not considered by the Law Court.</p> <p>The material facts are stated in the opinion.</p>

On exceptions by defendant. Replevin for three tons of old iron junk, brought in the Superior Court, Kennebec County. Plea, the general issue with brief statement alleging that the title to the property at the time of the alleged taking and at the time of replevying the same was in the defendant and not in the plaintiff.” Tried at the June term, 1907, of said Superior Court. Verdict for plaintiff.

On motion by plaintiff. Assumpsit to recover a broker’s commission on the sale of real estate, based upon a written contract.

In Equity. In equity. On report. Bill in equity brought by the plaintiff bank against Harry Manser, trustee in bankruptcy of the partnership estate of Charles D. White and Howard C. White, late copartners in business as C. D. White & Son, Thomas H. Boothby, Ralph K. Lothrop and the Livermore Falls Trust & Banking Company. The bill was taken pro confesso as to Thomas H. Boothby, and the Livermore Falls Trust & Banking Company. The other defendants answered.

<p>On motions by defendant.</p> <p>Assumpsit to recover $300, the purchase price paid by the plaintiff to the defendant for a pair of horses, the trade having been rescinded by the plaintiff because of a breach of warranty by the defendant.</p> <p>The first and principal count in the plaintiff’s declaration was as follows:</p> <p>“In a plea of the case, for that, the plaintiff, at said Kennebunk, heretofore, to wit, upon the tenth day of May, A. D. 1906, paid to the defendant a certain sum of money, to wit, three hundred dollars, and received into his possession a certain pair of horses. That previous to the payment of the said money and the receipt of said horses, said defendant claimed to be the owner of said horses to have worked them upon his farm doing all sorts of work, such as hauling and backing loads, plowing, and other farm work ; and previous to said sale of said horses to the plaintiff the defendant represented and warranted to the plaintiff that said horses were sound and all right in every respect, that they would work in any spot or place, that they had done all kinds of ordinary work for the defendant, and that they were indeed and truly worth a much larger sum, to wit, four hundred dollars, than defendant required plaintiff to pay therefor. That the plaintiff, expressly relying upon the aforesaid statements and warranties concerning said horses made by the defendant, took said horses into his possession and paid the defendant therefor said sum of three hundred dollars, and then and there believed, on account of the said statements and warranties of the defendant that said horses were well worth three hundred dollars, that they were sound in every respect, would ordinarily work in any spot or place and do and perform the ordinary labor and services that work horses usually perform. The plaintiff says that the statements and warranties of the defendant were false and fraudulent and false misstatements, inasmuch as one of said horses was balky and would not pull, would not work at all, although the plaintiff many times and in every way possible tried to cause said horse to work and perform ordinary services such as a work horse usually performs. And the plaintiff alleges that thereafterward, to wit, upon the twenty-ninth day of May, A. D. 1906, after negotiations and conversations with the defendant, he, said plaintiff, rescinded said sale and offered to return ánd deliver to the defendant at his barn in Kennebtmk said horses, and at the same time demanded the return of said three hundred dollars, but that said defendant refused to accept said horses or to return to the plaintiff said sum of three hundred dollars. And the plaintiff alleges that by reason of all of the foregoing an action has accrued to him to have and recover of said defendant said sum of three hundred dollars and interest thereof from the said twenty-ninth day of May, A. D. 1906.”</p> <p>The declaration also contained an omnibus count of the common form together with a statement of what the plaintiff would offer to prove thereunder which in substance was the facts alleged in the first count.</p> <p>Plea the general issue with brief statement as follows :</p> <p>"That he the defendant never represented and warranted to the plaintiff that said horses were sound and all right in every respect or that they would work in any spot or place.</p> <p>"And the defendant further says that when said plaintiff received said horses at the home of the defendant in Kennebunk, said horses would work in any spot or place, were in good working condition, except being tired from-a hard day’s work, and had done all kinds of ordinary work for the defendant; and if said horses will not work now it is the result of the plaintiff’s treatment of said horses or from some other cause for which the defendant is in no way to blame or responsible.”</p> <p>Tried at the January term, 1907, Supreme Judicial Court, York County. Verdict for plaintiff. The defendant then filed a general motion to have the verdict set aside. Afterwards, to wit, October 16, 1907, the defendant also filed a motion for a new trial on the ground of newly discovered evidence, and October 19, 1907, a Justice of the Supreme Judicial Court, in vacation, issued the following order thereon:</p> <p>"It is ordered that the above motion be allowed and filed and that testimony be taken not later than November 9th, A. D., 1907, before Bessie M. Harmon at the office of Judge Cleaves, Biddeford, Maine.”</p> <p>The case appears in the opinion.</p>

On exceptions by defendant. Scire facias founded upon an original trustee process brought by the plaintiffs against one Minnie A. Dyer as principal defendant and Frank L. Shaw, trustee. The question of the trustee’s liability upon his attempted disclosures in the original suit was before the Law Court in-Thompson et al. v. Dyer, 100 Maine, 421, in which he was charged generally as trustee. In the scire facias proceedings the defendant was allowed to disclose anew.

On report. Real action to recover a certain lot or parcel of land at Rising Sun or Log Landing” in the town of Phippsburg.

In Equity. In equity. On report. Bill in equity brought by the plaintiff corporation against the defendant water company for specific performance of article 10 of a certain written contract entered into between the plaintiff corporation and the defendant water company September 15, 1896, whereby the plaintiff corporation sought to compel the defendant water company to select an appraiser as provided in said article 10.

On motion and exceptions by defendant. Action on the case brought under Revised Statutes, chapter 89, section 9, by the plaintiff as administrator of the estate of Arthur N. Perkins, deceased intestate, for the benefit of the widow of said Arthur N. Perkins, and against the defendant corporation to recover damages for the death of the said Arthur N. Perkins, such death having been caused by the alleged negligence of the defendant corporation.

On motion by plaintiff. Action on the case brought by the plaintiff in the Superior Court, Kennebec County, to recover damages for an alleged private nuisance maintained by the defendant, consisting of a tight board fence, twelve feet in height, erected on land of the defendant and near the dividing line between the plaintiff’s lot and the defendant’s lot.

On exceptions by defendant and also on report. Action of replevin brought by the plaintiffs as receivers of the Rockland, South .Thomaston and Owls Head Street Railway, for one reel- of copper trolley wire alleged to have been taken and detained by the defendant. The plaintiffs’ writ and declaration were as follows: State of Maine. Knox, ss.

On motion by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff while operating a swinging circular saw in the defendant’s employ, resulting in the loss of the second and third fingers of the left'hand and the mutilation of the fourth finger so as to render it useless, and caused by the alleged negligence of the defendant in that the saw table was not provided with any standards or upright pieces sufficiently near the path of…

In Equity. In equity. On exceptions by certain defendants. Bill in equity brought by the plaintiff, a creditor of the defendant corporation, The American Banking and Trust Company, in behalf of all the creditors of the defendant corporation and against sundry of the shareholders of the defendant corporation to enforce the liability of its shareholders imposed by the provisions of chapter 349, Special Laws, 1889, amendatory of its original charter, whereby its shareholders…

On motion and exceptions by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff February 1, 1907, and caused by the alleged negligence of the defendant.

On exceptions by plaintiff. Action of trover for the alleged conversion of $51.13 in lawful current money of the United States,” brought in the Superior Court, Cumberland County. For pleadings, the defendant filed the general issue together with a special plea” interposing his discharge in bankruptcy as a defense. The case was heard before the Justice of said Superior Court without the intervention of a jury.

On agreed statement. Writ of entry brought for the purpose of foreclosing a real estate mortgage given by the defendant Morin to the plaintiff to secure the payment of $900.

<p>On exceptions by plaintiff.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendants, and caused by the alleged negligence of the defendants, and which injuries resulted in the loss of both of the plaintiff’s eyes. Plea, the general issue.</p> <p>Tried at the May term, 1907, Supreme Judicial Court, York County. At the conclusion of the testimony offered by the plaintiff, the presiding Justice ordered a nonsuit and the plaintiff excepted.</p> <p>The case appears in the opinion.</p>

On motion and exceptions by plaintiff. Action of trespass with a count in trover, brought in the Superior Court, Cumberland County. This case was formerly tried at the February term, 1906, of said Superior Court, and at the conclusion of the plaintiff’s testimony the presiding Justice ordered a verdict for the defendant and the plaintiff excepted. The Law Court sustained the exceptions, set the verdict aside, and ordered a new trial. The case is reported in 102 Maine, 251.

On motion by defendants. Action of assumpsit to recover damages for breach of an alleged oral contract to furnish the plaintiff employment at $65.00 per month so long as he could work.

On report. Trespass quare clausum fregit. Writ dated September 10, 1907.

On exceptions by defendant. Trover brought by the plaintiffs against the defendant to recover the value of 9,555 spruce logs containing 869,470 board feet, alleged to have been converted by the defendant. These logs were cut by one Charles W.’ Mullen on the plaintiffs’ land, under a written permit, and by him were sold to the defendant. The defendant seasonably notified Mullen to come in and defend the action and he appeared and assumed the defense.

On motion and exceptions by defendants. Special action on the case brought under the provisions of Revised Statutes, chapter 23, section 76, to recover damages for personal injuries received by the plaintiff by reason of an alleged defect in a highway which the defendants were obliged by law to maintain and keep in repair.» Plea, the general issue. Tried at the September term, 1907, of the Supreme Judicial Court, Waldo County. Verdict for plaintiff for $1000.

On exceptions by plaintiffs. Action on tbe case brought by the plaintiffs against the defendant water company to recover damages for the loss of certain buildings owned by them and destroyed by fire, on the ground that the loss resulted from the negligent failure of the defendant water company to keep a certain hydrant in proper repair and condition for use.

On report. Action on the case brought by the inhabitants of the town of Milford against the defendant corporation to recover the value of the town hall and certain sidewalks and hose, which were the property of the municipality and were destroyed by fire in April 1905.

<p>On exceptions by defendants.</p> <p>Action of assumpsit brought against the defendant town to recover the expense incurred by the plaintiff town for pauper supplies furnished to one Frank M. Moody, his wife and four minor children, and whose pauper settlement was alleged to be in the defendant town. Writ dated August 17,1905. Plea, the general issue, with brief statement as follows:</p> <p>"That the woman called Jane Moody is not the legal wife of Frank M. Moody.</p> <p>"That the children called Jennie Moody, Harry Moody, Herbert Moody and Benney Moody are not the legal children of Frank M. Moody.</p> <p>"That Frank M. Moody had no legal wife and no legal children at the date of this writ’in this action.</p> <p>"That Frank M. Moody had no legal wife and no legal children at the time of the alleged furnishing of supplies, as set out in this writ in this action.”</p> <p>Tried at the February term, 1907, Supreme Judicial Court, Piscataquis County. At the conclusion of the evidence, the presiding Justice directed the jury to- return a verdict for the plaintiff town for the amount claimed in the writ with interest from the date of the writ, and thereupon the jury returned a verdict for the plaintiff town for $218.83. To this ruling the defendant town excepted and also took exceptions to the admission of certain evidence during the trial.</p> <p>The case appears in the opinion.</p>

On exceptions and motions by defendant. Actions of trover, one by each plaintiff, brought to recover one-third in value of a certain quantity of coins of the United States and of certain foreign coins, alleged to have been found by each plaintiff jointly with the other plaintiff and with the defendant in three metallic cans buried and concealed in the soil and underneath the surface of land owned by one Leonard J. Hackett in the town of New Vineyard.

On report. Action of debt brought by the plaintiff town against the defendant corporation to recover a tax assessed by the plaintiff town in 1906 on six thousand cords of pulp wood belonging to the defendant corporation. Plea, the general issue. Tried at the October term, 1907, Supreme Judicial Court, Penobscot County.

On exceptions by defendant. Indictment against the defendant for the offense of unlawful assembly and riot, under the provisions of Revised Statutes, chapter 124, section 2, found by the grand jury at the April term, 1907, Supreme Judicial Court, Hancock County, charging that the defendant on April 5, 1907, at Eden in said county, with certain other persons to the number of three and upwards, to wit: with Joe Emery, Charles Conners, Frank Leighton and certain other wicked…

<p>On exceptions by plaintiffs.</p> <p>Trespass quare clausum fregit brought by the plaintiff against the defendant, alleging that the defendant on February 12, 1908, with force and arms broke and entered the plaintiffs’ close situate in Plantation No. 8, Hancock County, and then and there cut down and carried away certain wood and lumber then and there growing. Plea, the general issue with brief statement alleging as follows:</p> <p>"1. If he was cutting or doing other acts on said premises, described in plaintiffs’ writ at any time, he was so acting by authority of and under permission from Lynwood F. Giles.</p> <p>" 2. That said Lynwood F. Giles is vested with legal title to the premises described in the writ of plaintiffs, and was so vested at and before the time alleged, that the trespass was committed.”</p> <p>The action came on for trial at the April term, 1908, Supreme Judicial Court, Hancock County. At the conclusion of the plaintiff’s evidence the presiding Justice, upon motion of the defendant, made the following order :</p> <p>" Nonsuit for the defendant is ordered with stipulation on his part that if the Law Court overrules this order, then the defendant agrees that judgment may be entered for the plaintiffs in the sum of ten dollars and costs.” To this order the plaintiffs excepted.</p> <p>The case appears in the opinion.</p>

On agreed statement. Complaint to the Bangor Municipal Court in the City of Bangor, for an alleged violation of the provisions of Revised Statutes, chapter 29, section 45, and which said section reads as follows: Whoever advertises or gives notice of the sale or keeping for sale of intoxicating liquors, or knowingly publishes any newspaper in which such notices are given, shall be fined for such offense the sum of twenty dollars and costs, to be recovered by complaint.

In Equity. In equity. On report. Bill in equity asking for the construction of the will of Llewellyn Scott Wyman, late of Portland, deceased, brought by the plaintiff corporation against divers defendants.

On report. Action of trover brought by the plaintiffs against the defendant, .Sheriff of Somerset County, to recover the value of certain personal property attached December 18, 1906, by a deputy of the defendant on a writ of attachment in favor of one Margaret J. Armstrong and against one Martin J. A. Munster. The record does not disclose the plea, but presumably it was the general issue.

In Equity. In equity. On report. Two bills in equity asking for the construction of the will of Moses W. Webber, late of Biddeford, deceased, and the mode of executing the trust if one was created by the will.

On exceptions by plaintiff. An alleged appeal by the plaintiff from the taxation of costs in vacation by the Clerk of Courts, Sagadahoc County. The case appears in the opinion.

<p>On report.</p> <p>Appeal from the decree of the Judge of Probate, Penobscot County, ordering distribution of the residue of the estate of Lydia H. Ruggles, deceased testate, as follows : one-eighth thereof to each of the two sisters of the testatrix ; one twenty-fourth thereof to each of her six nieces and nephews; one twenty-second thereof to each of the eleven nieces and nephews of Hiram Ruggles, the deceased husband of the testatrix. The case came on for hearing at the April term 1908, Supreme Judicial Court, Penobscot County, at which time and by agreement of the parties it was reported to the Law Court, that court "to render such judgment as the law and the evidence require.”</p> <p>The case appears in the opinion.</p>

<p>On motion by plaintiff.</p> <p>Action of assumpsit, upon a special contract, to recover the sum of $325 as the purchase price of an acetylene gas light machine which by the defendant’s order, had been set up in his lumber mill, on 30 days’ trial. Plea the general issue. The verdict was for the defendant. The plaintiff then filed a general motion for a new trial.</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Trespass quare clausum to recover damages for cutting and trampling down grass on a lot of land in Northport, known as "Bay View Park.” Plea, the general issue, with brief statement as follows:</p> <p>"That the land described in plaintiff’s writ, on which it is alleged that the trespass was committed by the defendant, was dedicated to the use of the public and the adjoining lot owners by the plaintiff as a park long before the date of the alleged trespass and had been improved, graded, fertilized and sown to grass by the adjoining lot owners ; and that the defendant, as one of the adjoining lot owners, had.a legal right to enter upon said land and cut the grass thereon for the purpose of improving and beautifying said park and keeping it in proper condition for use for the purposes for which it was designed and had been dedicated; and that the defendant, in the exercise of his legal right and by request of other adjoining lot owners, entered upon said land at the time alleged in the writ, and mowed the grass thereon, for the purpose only of benefiting and improving said park, and did not injure said park or damage the plaintiff.”</p> <p>Tried at the April term, 1908, 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 for determination upon the legally admissible evidence.</p> <p>The case appears in the opinion.</p>

<p> Criminal Law. Might of Appeal. Jury Trial. Private and Special Laws, 1891, chapter 132, section 12; Statute 1905, chapter 123, section 6; 1907, chapter 42. Mevised Statutes, chapter 133, sections 2, 3, 4,5, 6,17. </p> <p>1. Chapter 42 of the Laws of 1907, providing that a husband who, without lawful excuse deserts his wife, or neglects to support her when in need may be fined and imprisoned, and that the proceeds of his labor while in jail estimated as the statute provides, shall be paid to his wife, is not unconstitutional on the ground that the respondent is deprived of a jury trial.</p> <p>2. The proceeding being a criminal one, the accused convicted by a municipal court has necessarily the same right of appeal under the general statute, E. 8., chapter 133, section 17, that he would have if convicted of any other oífense ; and having the right to appeal, he is not deprived of a trial by jury in the appellate court.</p> <p>3. Inasmuch as this case comes up on report, and the only question argued is that of the constitutionality of the statute, the court does not consider the question whether the form of remedy adopted is appropriate, or could be sustained, if objected to.</p>

<p>On report.</p> <p>Action of assumpsit by the plaintiff to recover the sum of $500, the same being the amount of certain life insurance for which Hollis L. Patterson, a son of the plaintiff, had made application in the defendant Order, the plaintiff being the beneficiary named in the application. The said Hollis L. Patterson was accidentally killed before his medical examination had been approved by the Supreme Medical Director, and before any certificate of insurance had been issued to him. Plea, the general issue.</p> <p>When the action came on for trial, an agreed statement of facts was filed and the case was then reported to the Law Court to determine, upon the agreed statement, "the legal rights of the parties and all questions of law arising therefrom, and to render final judgment in accordance therewith.”</p> <p>The case fully appears in the opinion,</p>

<p> Way. Terminus at High Water Mark When Laid Out. High Water Mark Extended Seaward by Accretions, lerminus Tollows Changed High Water Mark. Public Easem.ent. Land Made by Accretion. Fee of Same. Constitution of Maine, Article 1, section SI. </p> <p>The terminus of a street laid out at Old Orchard in 1871 was “high water mark.” Since 1871 high water mark at this pQi.nt in Old Orchard has been moved by accretions about eighty-eight feet seaward.</p> <p>Held: (1) That when high water mark changed, and the land above high water mark gradually extended seaward by accretion, the public easement which was attached to it originally at high water mark, went with it, and the street had ended at all times at high water mark, where-ever it has been.</p> <p>(2) That although the fee of the land made by accretion belongs to the defendants, they are not deprived of their property in it, and of a just compensation, by this extension of the street. The original compensation awarded is presumed to have been full and just. It covered all damages to the defendants’ estate, and for all time, including such damages as might be occasioned later than the taking, by an extension of the easement by operation of law.</p>

<p> Beal Estate Brokers. Contracts. Customers. Sale by Owner of Land. Liability for Commissions. Evidence. Instructions. </p> <p>The defendant placed his farm in the plaintiff’s agency, for sale, and agreed that if it was sold to any party through the plaintiff’s influence, by an advertisement or otherwise, he would paya commission of all that-was obtained in excess of eighteen hundred dollars. He further agreed that in case he should sell the property to the plaintiff’s customer for less than two thousand dollars, he would pay a commission of two hundred dollars. In case the defendant withdrew the farm from plaintiff’s 'agency before sale, the defendant agreed to pay twenty dollars, and if the farm should be sold, either before or after withdrawal, to a customer to whom the plaintiff recommended it, or who had learned that it was for sale, directly or indirectly, through the plaintiff, he would pay a commission of two hundred dollars. The defendant withdrew his farm from the plaintiff’s agency, and afterwards sold it.</p> <p>Held: (1) That it would have been competent for the jury to find from the evidence that the purchaser was the plaintiff’s customer, and that the farm was sold to a customer to whom the plaintiff or its agents had recommended it, or who had learned that it was for sale, indirectly at least, through the plaintiff’s advertisements.</p> <p>(2) That a requested instruction to the effect that “ if the listed place was sold, either before or after withdrawal, to a customer to whom the plaintiff or its agents in good faith recommended it, then the defendant is liable for a commission of two hundred dollars, whether such sale was effected in whole or in part by reason of such recommendation or not ” was correct and should have been given.</p> <p>(3) That an instruction to the jury to the effect that it was for the plaintiff to satisfy them that the same was by reason of the plaintiff’s influence in some way and in some degree, and without which it would not have been sold to the purchaser, injected into the contract an element which the parties did not put into it. It was not necessary for the plaintiff to show that the purchaser was influenced by the plaintiff or its agents in making the purchase, if in fact he was the plaintiff’s customer.</p>

<p>On exceptions by defendant.</p> <p>Action on two fire insurance policies issued by the defendant in the standard form prescribed by Revised Statutes, chapter 49, section 4, paragraph VII. The record does not disclose the defendant’s plea. Tried at the March term, 1908, Supreme Judicial Court, Somerset County. At the conclusion of the testimony, the presiding Justice ordered a verdict for the plaintiff for $1246.71. To this order the defendant excepted and also excepted to certain other rulings made during the trial.</p> <p>The case is stated in the opinion.</p>

<p> Negligence. Master and Servant. Defective Leather Belt. </p> <p>When a person is employed in a mill to tend and operate a machine and the relation of master and servant exists between him and his employer, it is the primary duty of the master to use all ordinary care to provide a reasonably safe place in which the servant is required to work, and to provide and maintain reasonably safe and suitable machinery for the servant to operate, so that by the exercise of ordinary care on his part the servant can perform the service required of him without liability to other injuries than those resulting from simple and unavoidable accidents.</p> <p>The plaintiff was employed as an operative in the picker room of the defendant’s cotton mill, and while so engaged he received a severe personal injury causing a fracture of his right arm at three different points and resulting in the amputation of the arm near the shoulder. The plaintiff contended that the injury was caused by the breaking of a defective leather belt connecting two of the pulleys of the machine called an “opener” which he was employed to tend and operate, and that there was a failure of duty on the part of the defendant towards him in allowing a defective belt to be used and thus exposing him to unnecessary peril while he was himself in the exercise of ordinary care and without knowledge of the unsuitable condition of the belt. The plaintiff recovered a verdict for S3083.81. Under the facts and circumstances, which are stated in the opinion, Held: That the verdict cannot be deemed unmistakably wrong and that the court would not be warranted in setting it aside.</p> <p>It is an axiom in mechanics that the fact that a belt breaks at a particular point is sufficient evidence that such point is the weakest' place in the belt.</p>

<p> Intoxicating Liquors. Complaint and Warrant. Alleged Duplicity. Motion in Arrest of Judgment. Same not Sustained. “Impossible Date.” Devised Statutes, chapter 29, sections 48, 49. </p> <p>1. A complaint for keeping and depositing intoxicating liquors intended for unlawful sale, in which it is alleged that they had been first seized by the complainant without a warrant, and in which there is the further averment respecting the complainant, “being then and there an officer, to wit, a deputy sheriff, within and for said county, duly qualified and authorized by law to seize intoxicating liquors kept and deposited for unlawful sale and the vessels containing them, by virtue of a warrant therefor issued in con" formity with the provisions of law” is not bad for duplicity, or uncertainty* This language is not descriptive of the offense. It is merely the necessary averment of the officer’s authority to seize without a warrant.</p> <p>2. A motion for arrest of judgment on the ground that the alleged date, namely, the year, of the commission of the offense is an impossible date, will not be sustained, w'hen upon an examination of the certified copies furnished to the Law* Court it appears that the date should be read either as “19Ü8” or “1980,” but it is not made to appear which is correct, as when some of the copies may properly be read “1908” and others “1980.” It is incumbent upon the defendant to make it appear to the court that the date was “1980,” and not “1908,” which he has failed to do.</p>

<p>On exceptions by defendant.</p> <p>The defendant was indicted for the larceny of "one horse of the value of two hundred dollars, one wagon of the value of one hundred dollars and one harness of the value of ten dollars.”</p> <p>Tried at the January term, 1908, Superior Court, Cumberland County. The jury found the defendant guilty. The defendant excepted to several rulings made by the presiding Justice during the trial and also excepted to an alleged expression of opinion by the presiding Justice. It appears from the bill of exceptions that "the notes of the official stenographer taken at the trial of this indictment were lost in the fire which destroyed City Hall (Portland) on January 24, 1908, so that it is impossible to make exact quotations either from the evidence or the charge.”</p> <p>The case is stated in the opinion.</p>

On motion and exceptions by defendant. Assumpsit on account annexed to recover the sum of $750 for an automobile alleged to have been sold and delivered by the plaintiff to the defendant.

<p> Loan and Building Associations. Borrowing Members. Mortgage Contracts. Interest. Premiums. Dues. Pines. Shares. “Loan." “Lent." Lapse. Forfeiture- Accounting. Revised Statutes, chapter 48, sections 60, 68, 64, 65, 66, 68'. </p> <p>1. A borrowing member of a loan and building association has assumed more obligations to the association than those of a mere borrower to a lender of money. He is bound to make such payments of dues, interest and fines as are imposed by the statutes and by-laws and his contract made in pursuance thereof.</p> <p>2. If such member contracts with the association for a specific loan and executes a note and mortgage therefor in which he stipulates in accordance with the statutes and by-laws, to pay specific sums as interest, premiums and fines at specific times, he must make such payments and does not perform his obligations by merely paying interest and premiums on the different installments advanced him on the loan from the time he received them.</p> <p>3. The fact that the association does not advance to the borrowing member the whole amount of the agreed loan at the time of making the contract therefor, but only advances it in installments from time to time as the security justifies in the opinion of the directors, does not excuse the borrowing member from paying interest and premiums on the whole loan according to the terms of the contract; nor does the further fact that the association did not set apart as a special fund thé amount of the loan.</p> <p>4. The words “loan” and “ lent ” in sections 64 and 65 of Revised Statutes, chapter 48, relative to loan and building associations, do not mean the sum or sums of money actually drawn out, but mean the whole sum contracted for.</p> <p>6. When a borrowing member increases his loan and gives a new note and mortgage of like tenor as the first for the whole amount thus increased, the first note and mortgage being cancelled, the new note and mortgage become security for the payment of all previous overdue installments of dues, interest and premiums.</p> <p>6. In case of such increase of the loan and new note and mortgage being given for the whole loan thus increased, the limitation in section 68, Revised Statutes, chapter 48 that “ no fines shall be charged after six months from the first lapse,” begins to run from the first lapse under the new note and mortgage.</p> <p>7. When the shares of a borrowing member pledged for a loan have been duly forfeited to the association, then by section 69, Revised Statutes, chapter 18, an account is to be stated in which the borrowing member is to be debited with arrears of premiums, interest and fines to date, and credited with the withdrawal value of his shares at that date. The balance against the borrowing member constitutes a new principal which bears interest from that date to the day of payment. This balance and interest thereon must also be paid in order to redeem the mortgage given for the loan.</p>

On exceptions by defendant. The defendant was indicted at the January term, 1908, Superior Court, Cumberland County, for maintaining a liquor nuisance.

<p>On exceptions by principal defendants.</p> <p>Action of assumpsit on a promissory note, commenced by trustee process and entered at the January term, 1906, Supreme Judicial Court, Knox County. After the trustee had filed his disclosure as to the defendant Alden, the action was marked "Law on report as to liability of trustee” and the case was then reported to the Law Court under the title "Rockland Savings Bank v. William G. Alden, and Joseph E. Moore, Trustee." See 103 Maine, 230. In November, 1907, a certificate was received from'the I.aw Court with an order to enter "trustee discharged.” At the following January term of said court in said county, to wit, January term, 1908, the principal defendants Alden and Kimball filed the following motion :</p> <p>"And now come the defendants in the above entitled case, and move that the same be dismissed from the docket of this court because the same is a cloud upon their title to real estate purporting to be attached in said suit, and because for other reasons they have a right to have said action against them removed from the docket of this court; and it should be so dismissed.</p> <p>"Because both of said defendants were defaulted in said action at the April term of this court in the year 1906, and the said action was last continued for judgment at the September term, 1906, and it should have gone to judgment and been removed from this docket at the next succeeding January term, to wit, January, 1907.</p> <p>"Wherefore they pray that said action may be dismissed and judgment may be ordered to be entered therein as of the January term, 1906.”</p> <p>The presiding Justice ruled as a matter of law that the motion could not be granted and the defendants excepted.</p> <p>The docket entries in the case now at bar as shown by the record are as follows:</p> <p>"Tr. to disclose next term as of this. Jan. T., 1906. Tr. to disclose next term as of first. Prin. Deft’s def. and c. f. j. April T., 1906. Disclosure of Moore, Tr., as to Alden, filed and c. f. j. Law on report as to liability of Tr. Sept. T. 1906. Order from Law Court. ‘Trustee discharged,’ rec’d and filed Nov. 29, 1907. Mo. for judgment filed. Tr. disclosure as to Kimball filed. Mo. for judgment denied. Exceptions allowed and filed. Jan. T., 1908. Law.”</p> <p>The case is fully stated in the opinion.</p>

<p> Wills. Construction. Intention of Testator. Devise. Repugnant Limitation. Estate in Fee. </p> <p>The intention of a testator is to have a controlling influence in the interpretation of the language used in his will, but if he would have that intention, when discovered, fully carried out, he must be expected to conform to the reasonable rules for the regulation of the practical affairs of life, and to the fundamental laws which establish and secure the rights of property, and'when an intention is discovered to accomplish two purposes so inconsistent that both cannot be accomplished in accordance with those rules and laws, there must be a failure as to one of them.</p> <p>It is a well settled rule that a devise absolute and entire in its terms, presumptively conveys an estate in fee without words of inheritance and that any limitation over afterwards is repugnant and void.</p> <p>The third clause of the will of a testator, Joseph B. Bradley, reads as follows : “Third : The residue of my estate, real personal and mixed, I give devise and bequeath in equal shares to wit. One moiety thereof, to my said wife. One moiety thereof to my daughter Alice'Buck now wife of Luman Warren, provided however that if my said daughter shall before this will take effect die without issue, said share shall descend to and be distributed among my heirs at law, and if at her decease this will shall have taken effect, and she shall have entered into possession of said estate so much thereof as may remain at her decease shall so descend and be distributed to and among my heirs at law, meaning those who would be my heirs at her decease according to the laws of this State.” The said Alice Buck Warren died intestate leaving a husband but no issue living at the time of her death. The will had taken effect, however, and she had taken possession of her half of the estate before her decease.</p> <p>Held: (1) That the said Alice Buck Warren took an absolute estate in fee in a moiety of the residue of the testator’s estate.</p> <p>(2) That even upon the assumption that she did not obtain a fee but only a life estate by implication the same result must follow for the reason that an unqualified power of disposal was annexed to the gift.</p>

<p>Deeds. Certificate of Acknowledgment. Venue. Recorded Deed. Unsealed Deed. Records. Erasures. Presumptions. Judicial Notice. Township. Quarters. Acreage Shrinkage. Partition Proceedings. Evidence. Statute, 1881, chapter 36. Revised, Statutes, chapter 75, section 26; chapter 84, section 125; chapter 106, section 10.</p> <p>1. An office copy of a deed, the original of which was unacknowledged, or without proper acknowledgment, is invalid and inadmissible against third parties; and whether the original deed was properly acknowledged, not only in form, but before a magistrate having jurisdiction, must appear upon the copy itself, when offered as evidence.</p> <p>2. A certificate of acknowledgment is insufficient when the place or venue where it was taken is not disclosed.</p> <p>3. It is not indispensable that the place of acknowledgment should appear from the certificate alone. It will suffice if it can be discovered with reasonable certainty by inspection of the whole instrument.</p> <p>4. Where the venue was laid in the certificate of acknowledgment as, “ Suffolk ss. Boston,” and the grantor was described in the deed as residing in “Waltham, in the County of Middlesex and Commonwealth of Massachusetts,” and the grantee as of “ Boston in the County of Suffolk and commonwealth aforesaid,” it sufficiently appears that the acknowledgment was taken in the County of Suffolk and Commonwealth of Massachusetts.</p> <p>5. Where the venue in a certificate of acknowledgment was laid merely as “ Suffolk ss.” and one of the parties was described as living in Waltham, .Massachusetts, it was held that the court may properly hold that the acknowledgment was taken in the County of Suffolk in Massachusetts.</p> <p>6. This court takes judicial notice of the fact that there is a Suffolk County in Massachusetts, because it was created by laws which were in force in the District of Maine as well as in the mother commonwealth.</p> <p>7. When a deed and its record have stood unchallenged for more than seventy years, and many conveyances have been based upon them, it may bejTpresumed from thellapse of time that the magistrate/'taking the acknowledgment acted within his jurisdiction, and that the deed was properlyfacknowledged, and hence that it^was properly recorded. And an office copyjof it is_admissible in evidence.</p> <p>8. A [deed recorded [does'jnot take priority over another deed of the same premises,¡earlier in date, but recorded later, unless it appears by the record to have been a [sealed instrument. The record is evidence only of what appears upon it.</p> <p>9. It is to be presumed that all entries or erasures in a book of official records are made by the proper recording officer, at the time of making the record,;in[the absence of evidence to the contrary.</p> <p>10. In the case at bar, the record of the deed from Hohbs to Bascomb does not disclose affirmatively that the original deed was[[sealed, notwithstanding the statement in the testimonium clause that it was sealed. But whether it was sealed or not, it was not recorded as a sealed instrument, and did not take priority over a sealed instrument recorded later.</p> <p>11. When lines established by partition proceedings are referred to in the declaration in a real action as the boundaries of one or more sides of the demanded premises, the returns of the partition commissioners are admissible, as against the plaintiff, to show the length of the lines, and the consequent dimensions] of ^the land divided,] and of the separate parcels bounded by these lines.</p> <p>12. When the owner of a tract of land conveyed definite numbers of acres in common and undivided to] several grantees successively, and it now appears that the entire acreage.of the tract was not sufficient to satisfy all the grants;in full, the^shrinkage falls upon the last grantee.</p> <p>13. The predecessors in title to the parties in the case at bar owned one quarler of a township in common and undivided. They owned it, not in fractional parts, but by acreages varying in amount. As the result of partition proceedings, and presumably in consequence of the unequal values of different sections of the township, their quarter as set off was smaller territorially than the other [quarters, and smaller than their combined acreages, based upon the size of a full quarter. Held: That the shrinkage caused by the partitions must be borne by the owners of that quarter in proportion of their holdings at the time of the partitions.</p> <p>14. In the case at bar, the court finds that the actual area of the entire township was 21,716 5-8 acres, of which after deducting the public lots, one quarter was 5,189 5-32 acres, a.nd that the actual area of the quarter set off to the predecessors of these parties was 5,002 2-5 acres. Upon the basis of a full quarter, the plaintiff would be entitled to 1,829 5-32 acres. But in consequence of the shrinkage caused by the partition proceedings, the-plaintiff’s acreage must be reduced by the ratio that 5,189 3-32 bears to 5,002 2-5.</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 an alleged obstruction consisting of a large reel containing "new bright telephone cable,” placed by the defendant in Main street, Madison Village, and thereby constituting an alleged nuisance, whereby the plaintiff’s horse became frightened and ran away and the plaintiff was thrown out of his wagon and injured. Plea, the general issue. The plaintiff recovered a verdict for $695.25, and the defendant then filed a general motion for a new trial.</p> <p>The case appears in the opinion.</p>

<p>On exceptions by defendant.</p> <p>Action of debt to recover certain taxes assessed in 1905 against the defendant as an inhabitant of the plaintiff town. Plea, the general issue and also a brief statement as follows :</p> <p>"And for brief statement, defendant further says no tax was ever legally assessed by the assessors of the town of Greenville for the year 1905 against said Lyman Blair. The defendant did not have three thousand dollars at interest for which he was liable to be assessed in the town of Greenville, as of the first day of April 1905.”</p> <p>Tried at the September term, 1907, Supreme Judicial Court, Piscataquis County. At the conclusion of the evidence the presiding Justice directed the jury to return a verdict for the plaintiff town for the amount of the tax with interest from the date of the writ, and the jury thereupon returned such verdict for $193.01.</p> <p>The defendant excepted to the order directing the verdict and also excepted to several rulings made during the trial.</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Assumpsit upon a written guaranty dated October 22, 1901, whereby the defendant’s intestate, Donald G. Ferguson, guaranteed the prompt payment, at maturity, of all sums of money and debts for merchandize to be subsequently sold by Spitz Bros, and Mork, to his son-in-law V. C. Bowman, not exceeding seven hundred and fifty dollars, "whether such debts be on book account, by note, draft or otherwise and also any and all renewals of such 'debt.” Plea, the general issue with brief statement alleging in substance that the acceptance by the plaintiffs of certain promissory notes, signed by said V. C. Bowman and his wife Lela E, Bowman, aggregating the balance due the plaintiff from said V. C. Bowman when the notes were given, was a discharge of the original debt owed by said V. C. Bowman to the plaintiffs and therefore of the guaranty.</p> <p>By agreement the case was reported to the Law Court upon an agreed statement of facts supplemented by certain testimony taken out before a commissioner duly appointed for that purpose, with the stipulation that the case should be decided upon so much of the agreed statement and testimony as was legally admissible.</p> <p>The case is stated in the opinion.</p> <p>The written guaranty given by the defendant’s intestate, Donald G. Ferguson, is as follows:</p> <p>"For Value Received, the receipt whereof is hereby acknowledged, I do hereby guarantee to Spitz Bros. & Mork, the prompt payment, by V. C. Bowman to Spitz Bros. & Mork, at maturity, of all sums of money and debts which said V. C. Bowman may hereafter owe Spitz Bros. & Mork, for merchandise which they may from time to time sell him whether such debts be on book account, by note, draft or otherwise, and also any and all renewals of any such debt.</p> <p>"The undersigned shall not be compelled to pay, on this guaranty, a sum exceeding seven hundred & fifty dollars; but this guaranty shall be a continuing guaranty, and apply to, and be available to said Spitz Bros. & Mork, for all sales of merchandise they may make to said V. C. Bowman, until written notice shall have been given by the undersigned to said Spitz Bros. & Mork, and received by them, that it shall not apply to future purchases ; and it shall not be terminated by the death of the guarantor without such written notice.</p> <p>"Notice of the acceptance of this guaranty, and of sales under the same, and demand upon said V. C. Bowman for payment, and notice to D. G. Ferguson of nonpayment is hereby waived.</p> <p>"In Witness Whereof, the undersigned I hereunto set my hand and seal, this twenty-fourth day of October, A. D. nineteen hundred and one.</p> <p>"In presence of</p> <p>V. C. Bowman, D. G. Ferguson.”</p>

<p>On report.</p> <p>Trespass quare clausum. The declaration in the plaintiff’s writ is as follows: "In a plea of trespass, for that the said George M. Goding and the said John O. Legroo on the first day of December, A. D. 1906, and on divers other days and times between that date and the day of the purchase of this writ, with force and arms, broke and entered the plaintiff’s close, situate in Wilton, in said County of Franklin, to wit, a certain piece or parcel of land situated in Wilton aforesaid, bounded and described as follows, to wit: (Description omitted in this report.) "And being so entered as aforesaid, felled, cut down and carried away fifty certain pine trees of great value, to wit, of the value of four dollars each and all of the value of two hundred dollars ; also twenty-five hemlock trees each of the value of two dollars and all of the value of fifty dollars ; also twenty-five maple trees each of the value of one dollar and all of the value of twenty-five dollars; also certain other trees of different and mixed kinds, to wit, twenty-five trees of the value of twenty-five dollars; also broke down, tore up and injured the soil of said premises particularly great damage to the orchard on said premises to the value of two hundred dollars, then and there did; and all of the above damage then and there done as aforesaid is to the damage of the said plaintiff (as he says) the sum of five hundred dollars.” Writ dated December 21, 1907. Plea, the general issue with brief statement as follows:</p> <p>"1. That the pine trees were the property of the defendants, and that they had the right to cut and haul them from the ground, and that they had the permission and oral agreement of the said plaintiff to cut and haul off said logs from the premises described in plaintiff’s said writ.</p> <p>"2. That said pine logs were not the property of the plaintiff, but were the property of the defendants and that they had a legal right to said pine trees and logs, and the permission and license and right to enter said premises for the purposes aforesaid.</p> <p>"3. That in cutting and hauling said logs they did no more damage than was absolutely necessary for the purposes of cutting and removing said logs and lumber from the premises aforesaid.”</p> <p>The premises on which the alleged trespasses were committed and previous to said alleged trespass, had been conveyed to the plaintiff by the defendants by deed of warranty dated May 2, 1904. Said deed contained the following clause: "Excepting and reserving, however, from the above described, premises all the pine trees now growing on the same, with the right for the same to remain for a period of two years from date of this deed and not longer.”</p> <p>When the action came on-for trial, it was agreed "that the timber cut on the premises was cut in December, 1907, against the objection of the plaintiff,” and that "if the defendants were entitled to the trees and the right to cut and remove them at the time they did, the damages are to be assessed at $15; if they were not so entitled the damages are to be assessed at $87,” and that on these agreements together with the writ and plaintiff’s deed as a part of the case, the action should be reported to the Law Court "to render such judgment as the law and the facts requires.”</p> <p>The pith of the case is stated in the opinion.</p>

On exceptions by defendant. Action of assumpsit on account annexed. Plea, the general issue and brief statement. Cause heard before the presiding Justice with the right of exception. The following admission was made as a part of the record. The defendant admits that the bill sued for in the writ was contracted for by the Mt. Battie Mfg. Company with the plaintiffs and is unpaid.” No other evidence was offered.

<p> Judge of Probate. Unsigned Decrees. Revised Statutes, chapter 65, section 16. </p> <p>A Judge of Probate has authority under the provisions of Revised Statutes, chapter 65, section 16, to sign and authenticate decrees which, through inadvertence his predecessor left unsigned or unauthenticated.</p> <p>The plaintiff filed in the Supreme Judicial Court, Androscoggin County, a petition for partition of certain real estate. It was admitted the plaintiff at the time of filing the petition was the owner of one undivided eighth part of the premises described in the petition unless he has been divested of title by the action of the Probate Court in said county. In 1902 at a Probate Court held in said county, upon proper petition and notice and the filing of a legal bond, the guardian of the plaintiff was granted license to sell said eighth part of said real estate and a guardian’s deed of conveyance of said eighth part was executed and delivered to one Parker Carson • who had previously acquired title to the remaining seven-eighths. Carson then conveyed the whole of the real estate to the defendant. The Judge of Probate then in office through inadvertence failed to sign the decree granting the license or to approve the bond. After the expiration of his term of office, his successor, some three years later, signed the decree and approved the bond, upon the ground that the decree was not signed and the bond approved through the inadvertence of his predecessor. But before the Judge of Probate signed the decree and approved the bond, a petition was filed for the removal of the guardian and a decree of removal was signed by the Judge upon the back of which was entered the minute, “Do not docket.” Nothing further was done with the decree of removal.</p> <p>Held: (1) That the action of the Judge of Probate in signing the decree left unsigned and in approving the bond left uuapproved by his predecessor, was authorized by the statute, R. S., chapter 65, section 16. (2) That the action of the Judge of Probate under the statute, independent of any question affecting the guardianship of the plaintiff, related back to the act of his predecessor in office and is to be determined solely with reference to what his predecessor had done. (3) That it was unnecessary to decide whether the decree for the removal of the guardian was effective or not.</p>

<p> Intoxicating Liquors. Common Carrier. Constructive Delivery. Interstate Commerce. “ Wilson Act." </p> <p>The rule is well established that a constructive delivery of goods by a carrier cau be effected only by an agreement between the carrier or middle man and the buyer or person claiming under him whereby the former agrees to hold the goods for the latter for some purpose other than that of carriage to and delivery at their original destination. In the absence of an agreement with the buyer to the contrary, the carrier will be presumed to hold the goods in his original capacity. The carrier cannot constitute himself the buyer’s agent for the custody of the goods, nor can the buyer make the carrier his agent for custody without the carrier’s consent.</p> <p>The relation of carrier to the shipper, the consignee and the goods is originally fixed by law and by a contract between the parties, which is that the carrier shall safely carry the goods to their place of destination and there deliver them to the consignee. This contract once existing can be changed only by the operation of law or by an agreement between the parties. When the goods arrive at their journey’s end, it is the duty of the carrier to store them. This duty is imposed by law. When stored they are still in the possession and custody of the carrier and the only change in his relation to the goods is the extent of his liability. The goods are still in transit. The contract is still binding upon the carrier to deliver the goods to the consignee, and this obligation can be terminated only by actual or constructive delivery or by a new contract with the consignee in the place of the contract of carriage.</p> <p>Certain intoxicating liquors were shipped from different points without the State, arriving at different times by way of the Maine Central Railroad at its freight station in the city of Lewiston. All the liquors were shipped in the names of local firms who did not order nor claim them, or to fictitious names, persons to t'he railroad company unknown. The various liquors upon their arrival were placed in the freight shed of the railroad company and from time to time thereafter were seized upon proper warrants charging the liquors to be deposited within the State for the purpose of illegal sale. The longest time any package was in the custody of the railroad company after its arrival at Lewiston, before seizure, was a period of 24 days.</p> <p>Held: (1) That the evidence was not adequate to establish proof of constructive delivery. (2) That the liquors at the time of their seizure were in transit as interstate commerce in the hands of the carrier.</p>

On exceptions by plaintiff. Action of assumpsit on a quantum meruit count, brought in the Superior Court, Cumberland County, by the plaintiff, Ruth F. Fuller, an infant under the age of twenty-one who brings this action by William D. Fuller of said Portland her next friend,” to recover compensation for her services as a singer in a certain place of amusement in Portland, conducted by the defendants, J. K. Blair and J. E. McGuiness, copartners doing business under the name…

<p> Trespass. Railroad Location. Record Proof Lost. Secondaip Evidence. Presumptions. Oral Agreement. Estoppel. Nonpayment of Damages. Waiver. Statute, 1876, chapter ISO, sections 6, 8. </p> <p>1. When the record proof of a railroad location, under the statute, has been lost or destroyed, secondary evidence of compliance with the statutory requirements may be introduced.</p> <p>2. Where, after the lapse of more than twenty-five years during which a railroad had been maintained and operated over the premises of a land owner without objection, held that every presumption should be given in favor of the regularity of the proceedings whereby the railroad was located.</p> <p>3. Where there was an oral agreement between a land owner and a railroad company under which the railroad was to cross the premises of the land owner, held that such owner was estopped from setting up, as against the validity of the location, the failure of the railroad company to file a plan in the registry of deeds.</p> <p>4. Where there was an oral agreement between a land owner and a railroad company under which the railroad was to cross the premises of the land owner, held that the nonpayment of compensation to the land owner could not defeat the validity of the location if the claim for damages was waived by the land owner at the time, and that the existence of such oral agreement together with the subsequent occupation of the land by the railroad company were convincing evidence of such waiver.</p> <p>5. Where there was an oral agreement between a land owner and a railroad company under which the railroad company was to cross the premises of the land owner, held that the railroad company was not entitled to a full four rod location across the premises but was to have as much land as was needed for a road bed and road purposes or “ whatever was needed for a road to go across.”</p> <p>6. In the case at bar, Held: That the evidence coupled with the surveys and plans leads to the conclusion that the defendant in relaying its tracks in 1902, did not trespass beyond the limits of its right of way.</p>

<p> Accord and Satisfaction. Settlements. Written Release. </p> <p>The plaintiff was a passenger on a street car of the defendant company and by reason of a partial derailment of the car, his right leg was fractured so that eventually it became necessary to amputate the leg above the ankle and later to amputate it above the knee. The liability of the defendant company for the damages sustained by plaintiff was not denied, and twenty-live days before the first amputation a settlement of the plaintiff’s claim was effected and a release under seal was executed by the plaintiff and delivered to the defendant in consideration of the payment of $500 in cash and the assumption by the defendant company of all the hospital expense and surgeon’s bills. Afterwards the plaintiff brought suit against the defendant company to recover damages for the injuries sustained. The execution of the aforesaid release on the part of the plaintiff and the full payment by the defendant company of the full consideration aforesaid, were not controverted by the plaintiff but the settlement was repudiated by him and its validity denied on the ground that as a result of the injury he was in such feeble condition of body and mind at the time of the alleged settlement that he “had neither the memory or the power of connected thought, nor the will to make a legal contract.” The jury returned a special finding that at the time the plaintiff signed the release he did not have “ sufficient mental capacity to understand that he had a claim against the railway company for compensation for .the injury to his leg, and that by accepting the $500 and signing the release he was discharging the company from that claim.” A general verdict was also returned for the plaintiff for $1612.50.</p> <p>Reid: That there was not sufficient evidence to warrant the special finding of the jury that the plaintiff did not have sufficient mental capacity to comprehend the questions involved in his negotiations for a settlement of his claim and that, therefore, the general verdict must be set aside.</p>

<p>In Equity.</p> <p>In equity. On report.</p> <p>Two bills in equity brought by the plaintiff, Lucy C. Farnsworth, in her capacity as administratrix, with the will annexed, of the estate of James R. Farnsworth, deceased testate. In the first entitled cause the bill was brought to compel the defendants, George F. Whiting, Isabella A. Martin and David N. Mortland, to return to her as administratrix aforesaid certain notes, bonds, checks and stock certificates belonging to the said James R. Farnsworth and alleged to have been taken and carried away from his house by the defendants, George F. Whiting and Isabella A. Martin, and by them deposited with the defendant David N. Mortland. In the second entitled cause the bill was brought to compel the defendants, George F. Whiting, Isabella A. Martin, David N. Mortland, and the Security Trust Company, to deliver to the plaintiff as administratrix aforesaid all the keys to a certain safe-deposit box rented by the said Security Trust Company to the said James R. Farnsworth and containing at the time of his death, certain bonds, certificates of stock and other valuable papers belonging to him, also to prevent the said Security Trust Company affording either of the other defendants access to the box, and also to compel the said Security Trust Company to afford the plaintiff access to the box. A demurrer, general and special, was filed in each case. After the filing of the demurrers, motions to amend the bills were filed-</p> <p>When these causes came on to be heard on bills and demurrei-s, it was' agreed that each case should be reported to the Law Court "upon bill and demurrer, together with the complainant’s motion to amend,” and with the following stipulation .in each case: "If, in the opinion of the Law Court, as matter of law, the amendments are not allowable, the court is to decide the demurrer on the bill as it stands ; but if allowable, the bill is to be taken as amended ; and the demurrer is to be decided as if filed to the amended bill.”</p> <p>The cases are stated in the opinion.</p>

<p> Way. Defect. Notice. Revised Statutes, chapter S3, section 76. </p> <p>In relation to the written notice to be given to a town by a person who has received bodily injury through any defect or want of repair in a way which the town is by law obliged to repair, as a condition precedent to his maintaining a suit against the town to recover for such injury, Revised Statutes, chapter 23, section 76, provides that such person or some person in his behalf, shalljwithin fourteen days after the injury notify one of the municipal officers of such town, “ by letter or otherwise, in writing, setting forth his claim for damages and specifying the nature of his injuries and the nature and location of the defect which caused such injury.” This statutory requirement of the fourteen days notice has never been construed to impose upon the sufferer any unreasonable or burdensome duty. He is only required to give a defendant town the benefit of all the information he possesses relating to the bodily injuries for which he claims damages. He is not compelled to specify or predict the effects and consequences which may or may not flow from such injuries. The results may be neither known nor anticipated the time of preparing the notice. But he may reasonably be required to describe the physical conditions caused by his injuries fully and frankly according to the best of his knowledge and information.</p> <p>The plaintiff having received a bodily injury through an alleged defect or want of repair in a certain sidewalk iu the defendant city, seasonably gave to the mayor and aldermen of the defendant city the following written notice signed by her: “You are hereby notified that on Monday, the fifth day of August nineteen hundred and seven, while walking along Seavey Street in said City, on the sidewalk on the easterly side of the street, and myself being in the exercise of due care, I sustained an injury to my person by falling into a hole in the sidewalk nearly opposite the premises of Albion Senter, badly bruising myself and sustaining other bodily injury of a serious nature. I hereby give notice that it is my intention to hold the city of Westbrook responsible for the injury I have sustained, in damages.”</p> <p>Held: That this notice fails to specify upon what part of the body Jhe bruises were received, whether upon the head or back, the arms or legs or to state in what manner and to what extent the bruises affected the plaintiff and therefore fails to specify the nature of her injuries and consequently is fatally defective.</p> <p>When a person has been injured through any defect or want of repair in a way which a town is obliged to repair, such person can recover damages arising from such injuries as are specified in his notice and for the results actually flowing from such injuries, although those results may not be anticipated or described in the notice. A sufficient specification of the nature of the injuries themselves is a sufficient notice of the results which actually flow from them.</p> <p>Blacldnglon v. Rockland, 6(> Maine, 332, in effect overruled in Lord v. Saco, 87 Maine, 231.</p>

On exceptions by claimant. Search and seizure process issued by the Municipal Court of Dover, Piscataquis County, whereby certain intoxicating liquors, shipped from Boston, Massachusetts, and consigned to Henry N. Bartley, Greenville Junction, Piscataquis County, Maine, were seized at Foxcroft, in said county, while in the possession of the Maine Central Railroad Company, a common carrier.

<p>On report.</p> <p>Trespass quare clausum alleging that the defendant with force and arms broke and entered a certain close belonging to the plaintiff city. Plea, the general issue with a brief statement alleging in substance that during the time mentioned in the writ the defendant was legally in possession of the premises described in the writ, under and by virtue of a certain lease of the premises given to the defendant by the plaintiff city, and that under said lease the defendant had a legal right to do all the things which he did do.</p> <p>When this action came on for trial, an agreed statement of facts was filed and the case was then reported to the Law Court with the stipulation that "upon so much of the evidence as is legally admissible the court is to enter such judgment as the legal rights of the parties require.”</p> <p>The case is stated in the opinion.</p>

On report. Two' cases involving a consideration of the same facts and circumstances. The first named case is an appeal by Eben K. Whittaker, surviving partner of the late firm of Jordan & Whittaker of Bar Harbor and who had given bond to settle the partnership affairs, from the decree of the Judge of Probate declining to allow his second account as surviving partner and directing an amendment of the same.

<p> Assault and Battery. Civil Action. Intoxication. Damages. Instructions. </p> <p>In order to avail himself of an error in the instructions given by a presiding Justice, the excepting party must show that the error was prejudicial to him.</p> <p>When in a civil action of assault and battery'it appears that the assault was provoked by insulting language used by the plaintiff to the defendant, and it also appears that the insulting language used by the plaintiff was in consequence of his intoxication by liquors furnished him by the defendant, the defendant cannot shield himself by such provocation in mitigation of damages.</p> <p>During the trial of a civil action of assault and battery, the presiding Justice, among other things, instructed the jury as follows: “ If the defendant, by selling or giving to the plaintiff intoxicating liquors and getting him drunk put him in a condition so that he would be insulting or might be insulting, so that in his drunken condition he would be likely to make the talk he did make,” and “if the defendant caused the condition which made the plaintiff talk as the defendant says he did, then the defendant cannot make complaint of the condition which he caused himself.” Held : That these instructions were correct.</p> <p>In the case at bar Held : That there was no prejudicial error in the charge and that the damages awarded by the jury were not excessive.</p>

<p>On report.</p> <p>Writ of entry brought to recover certain land and flowage rights upon the St. Croix River in Calais. Plea, the general issue. The declaration in the plaintiff’s writ is as follows :</p> <p>"In a plea of land, wherein said plaintiff demands of said defendant certain real estate with its appurtenances in said Calais, to wit: the following described real estate situated in said Calais at Salmon Falls, so called, viz : all that part of shore lots numbers One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten (1, 2, 3, 4, 5, 6, 7, 8, 9, & 10) according to B. R. Jones survey and plan of said Calais, which lies between the River St. Croix and a line drawn eight feet from the shore rail of the main track of the Washington County Railroad towards said river, and parallel with said Shore rail. Also all rights of flowage at said Salmon Falls, — -whereof the said defendant unjustly disseized the plaintiff within twenty years last past, whereupon the plaintiff says, it was seized of the premises as of fee within twenty years ; and said defendant disseized it thereof and unjustly withheld the same.”</p> <p>The action came on for trial at the April term, 1908, Supreme Judicial Court, Washington County and was heard before the presiding Justice without a jury. At the conclusion of the testimony, it was agreed as follows:</p> <p>"Under the pleading in this case and upon the foregoing report of evidence, documentary and otherwise, with the exhibits and legislative acts therein mentioned, the case is reported to the Law Court, said court to determine the rights of the parties to this writ of entry, and to render judgment therefor.”</p> <p>The cáse is stated in the opinion.</p> <p>That portion of the mortgage deed of trust dated July 1, 1852, given by the Calais & Baring Railroad Company, containing the description of the property thereby conveyed and the terms and conditions of the conveyance, is as follows :</p> <p>"Now therefore be it remembered, that the Calais and Baring Railroad Company in consideration of the premises and of one dollar paid to them by the said John Wright, William Fiske and George Downes do hereby give, grant, sell, convey and mortgage to said John Wright, William Fiske and George Downes Trustees as aforesaid, and to their successors when appointed as hereinafter provided forever, the railroad and franchise of said Company in the City of Calais and Town of Baring in the county of Washington and State of Maine, as the same is now legally established, constructed and improved, or, as the same may be at any time hereafter, legally established, constructed and improved within those places from 'its commencement in Calais aforesaid to its termination in Baring aforesaid, with all lands, buildings and fixtures of every kind, thereto belonging, together with all real estate to said Company belonging. Also all the locomotives, engines, passenger, freight, dirt and hand cars, tools, fixtures and machinery in the mechanic shops and all the personal property of said Company as the same is in use now, by said Company, or as the same may be hereafter changed or renewed by said Company. And furthermore, the said Company hereby transfer and assign to the aforesaid Trustees all the privileges, benefits, profits and emoluments accruing to them from a lease of the St. Stephen Railroad situated in the Parish of St. Stephen County of Charlotte and Province of New Brunswick made to them the said Calais and Baring Railroad Company. To have and to hold the said Railroad franchise, and estate aforesaid, whether real or personal with all the privileges and appurtenances, legislative grants, rights and privileges now granted or hereafter to be granted, and thereto in anyway pertaining to them the said John Wright, William Fiske and George Downes or their successors as Trustees, forever in Trust, for whomsoever, now are, or may hereafter become the lawful holder of said bonds or any of them.</p> <p>"Provided, Nevertheless, and the foregoing deed is made upon the following terms and conditions.</p> <p>"First. The said Railroad Company shall never issue or have secured under this deed of Trust and of mortgage a greater sum in bonds as aforesaid than one hundred thousand dollars, said bonds are to be dated July first, A. D. 1852 and payable in twelve years at the aforesaid bank, with interest payable semi-annually at the same place, and they shall be signed by the president and treasurer, of said Company and have the certificate of one or more of the Trustees, aforesaid, that the same is secured by this deed of trust, and of mortgage.</p> <p>"Second. It shall be the duty of the said Railroad Company to pay the interest and principal of said bonds issued as aforesaid as the .same shall become due and payable. And, so long as said Company shall make no default of such payment, said Company may retain the actual possession of all said property to be used in the proper business and management of said Road and the .Directors of said Company', notwithstanding this mortgage deed shall have the power and authority to change or renew from time to time any of the personal property hereby mortgaged, as they may deem necessary ; and the property so received in exchange or renewal shall be holden by said Trustees under this mortgage in the same manner, as if the same had been owned by said Company at the time of the execution hereof, and included specifically in this mortgage deed.</p> <p>"Third. In case said Company shall fail to fulfil all or any of the obligations in said bond, or shall commit any strip or waste of the property of the said Company or shall dispose of, or apply the same to any use or purpose inconsistent with its proper use in the operation of said Road, the Trustees aforesaid or their successors, or a majority of the same may take possession of all the property aforesaid, and manage the same for the purpose of said Road, at their discretion and apply the net avails thereof to the payment or satisfaction of such as said bonds or may be outstanding against said Company or the interest thereon in full, or in such equal proportions to all as said avails may enable them to do.</p> <p>"Fourth. And in case said Company shall fail for six months to pay the interest or principal of said bonds as the same become due it shall be the duty of said Trustees, or their successors on the written application of the lawful holders of a majority in amount of said bonds, then- outstanding, to take actual possession of said property and make sale of the same at- public auction on giving reasonable notice of such sale, in one newspaper at least published in Boston and one in said Calais, and after deducting all expenses of such sale and of this Trust, to pay over to the holders of said bonds, the whole or a ratable and equal proportion thereof, and the balance, if any, pay over to said Company and the said Trustees and their successors are hereby fully authorized and empowered irrevocably to make such sale, and make and execute conveyances passing all the rights, of this Company in the premises accordingly.</p> <p>"Fifth. In case a vacancy or vacancies shall happen in the Board of Trustees by death, resignation or otherwise, the Directors of said Company may fill all such vacancies by an appointment in writing to-be attached to this deed, and such person or persons so appointed and accepting, shall have all the powers and be subjected to all the duties required of the original Trustees.</p> <p>"Sixth. And on the full performance of all obligations, conditions and stipulations in this deed, and the bonds referred to in the same by said Railroad Company to be done and performed then this-deed tobe void, otherwise in force.”</p> <p>The deed dated August 1, 1898, given to Frank E. Randall, and referred to in the opinion, is as follows:</p> <p>"This Indenture, made this first day of August in the year one thousand eight hundred and ninety eight, - between George A. Curran James Murchie and George A. Lowell, Trustees, parties of the first part and Frank E. Randall, of the City of New York in the State of New York party of the second part: Whereas, the Calais and Baring Railroad Company, a corporation of the State of Maine, did, on or about the first day of July in the year one thousand eight hundred and fifty two, by its certain mortgage or deed of trust dated on that day and recorded in the Registry of Deeds for the County of Washington in the State of Maine, in volume 75 pages 6G to 70 inclusive, grant, bargain, sell convey and mortgage to John Wright, William Fiske and George Downes, their successors and assigns all the property, rights and franchises therein and hereafter described or mentioned, in trust, for the payment and security of whomsoever then were or might thereafter become the lawful holders of any of a series of bonds then issued, or about to be issued, by said Railroad Company, under authority of An Act of the Legislature of the State of Maine, approved January 30, 1852 entitled "An Act in relation to Bonds issued by Railroad Corporations,” each of said bonds being dated July 1, A. D. 1852 payable July 1, A. D. 1864, and bearing interest at the rate of six per cent, per annum, payable semi-annually; and Whereas pursuant to and in compliance with the provisions of said mortgage or deed of trust, the undersigned George A. Curran, James Murchie and George A. Lowell, thereafter became and now are the successors of said John Wright William Fiske and George Downes in the trusts created by said mortgage or deed of trust; and Whereas, default having been made in the payment of the principal of said bonds, and such default having continued more than six months, and the condition of said mortgage or deed of trust having been broken, and the lawful holders and owners of all said bonds now outstanding to wit, bonds for the principal sum, in the aggregate of thirty-three thousand dollars ($33,000) having made written application to the undersigned, as such trustees to take actual possession of said property, rights and franchises and make sale of the same, as provided in and by said mortgage or deed of trust, the said parties of the first part as such Trustees did take actual possession of said property, rights and franchises, and on the first day of August A. D. 1898, at ten o’clock in the forenoon at the Post Office in the City of Calais, in the State of Maine, did sell the same at public auction by W. H. Tyler a duly licensed auctioneer to the party hereto of the second part, he being the highest bidder for cash, for the sum of forty thousand dollars ($40,000) having first given reasonable notice of such sale and the terms thereof, by publishing such notice in the "Calais Times” a newspaper published in said City of Calais, Maine, on the seventh, fourteenth, twenty-first and twenty-eighth days of July A. D. 1898, and also in the "Boston Daily Journal” a newspaper published in the city of Boston, in the State of Massachusetts on the eighth, ninth, twelfth, fifteenth, nineteenth, twenty-second, twenty-sixth and twenty-ninth days of July A. D. 1898, and by mailing a copy of such notice to each stockholder of record in said Company and also to each stockholder of record in the St. Croix and Penobscot Railroad Company, on the 9th day of July A. D. 1898, postage prepaid; such notice being given and such sale being conducted in all respects in accordance with the provisions of said mortgage or deed of trust. Now, Therefore, This Indenture Witnesseth: that in consideration of the premises and of the sum of forty thousand dollars ($40,000) to said parties of the first part by said party of the second part paid, the receipt whereof is hereby acknowledged and in pursuance of the power and authority vested in them in and by said mortgage or deed of trust, the said parties of the first part, as Trustees aforesaid, have granted, bargained and sold and do by these presents grant, bargain and sell, remise, release, convey and confirm unto the said party of the second part his heirs and assigns forever, the railroad and other property rights and franchises described in and covered by the mortgage or deed of trust aforesaid, namely, the railroad and franchises now or formerly of the Calais and Baring Railroad Company in the City of Calais and town of Baring in the County of Washington, in the State of Maine, from its commencement at or near J. E. Eaton’s planing mill, in Calais aforesaid, to its termination at or near Vance’s Boom, in Baring aforesaid, with all lands buildings and fixtures of every kind thereto belonging, together with all real estate to said Company now or formerly belonging, and all locomotive engines, passenger,- dirt, freight and hand cars, tools, fixtures and machinery in the machine shops, and all personal property now or formerly of said Company ; and also all the privileges, benefits profits and emoluments accruing, or to accrue from a lease of the St. Stephen railroad situated in the Parish of St. Stephen, County of Charlotte and Province of New Brunswick, heretofore made to said Calais and Baring Railroad Company; meaning and intending hereby to convey all the property, rights and franchises of every description covered by said mortgage or deed of trust or by virtue thereof conveyed to or vested in said Trustees.</p> <p>To Have and to Hold the same unto the said Frank E. Randall, party hereto of the second part his heirs and assigns forever.</p> <p>In Witness Whereof, the said parties of the first part, as Trustees, as aforesaid, have hereto set their hands and seal's this fifteenth day of August in the year one thousand eight hundred and ninety-eight.</p> <p>Executed and delivered Geo. A. Curran (seal) Trustees</p> <p>in presence of James Murchie (seal) as</p> <p>George Downes for all. Geo. A. Lowell (seal) aforesaid.</p> <p>This deed was duly acknowledged by the grantors.</p> <p>The material parts of the deed dated August 16, 1881, given to St. Croix Cotton Mill, and' referred to in the opinion, are as follows:</p> <p>"Know All Men By These Presents, that the St. Croix • and Penobscot Railroad Company a corporation established by law and having its principal office or place of business at Calais Washington County State of Maine, Zachriah Chipman George M. Porter and Lemuel G. Downes trustees under a certain mortgage given by the Calais and Baring Railroad Company dated July 1st A. D. 1852, . . . . Zachriah Chipman, Edward A. Barnard and Ephraim C. Gates, Trustees under a certain mortgage given by the Calais and Baring Railroad Company dated July- 1st A. D. 1854, said St. Croix and Penobscot Railroad Company being the legal successors of said Calais and Baring Railroad Company. The City of Calais a Municipal Corporation in said Washington County mortgagees under certairf mortgages given by said St. Croix and Penobscot Railroad Company dated August 11, A. D. 1870 and December 2d A. D. 1875, . . . . In consideration of one dollar and other valuable considerations paid by the St. Croix Cotton Mill a corporation established by the laws of the Province of New Brunswick Dominion of Canada and doing business at Milltown Charlotte County in said Province of New Brunswick the receipt whereof is hereby acknowledged do hereby remise release and forever quitclaim with the- said St. Croix Cotton Mill their successors and assigns the following described real estate situate in said Calais at Salmon Falls so called viz: All that part of shore lots numbers One Two Three Four Five Six Seven Eight Nine and Ten (1, 2, 3, 4, 5, G, 7, 8, 9, & 10) according to B. R. Jones survey and plan of said Calais which lies between the St. Croix and a line drawn eight feet from the shore rail of the main track of said railroad towards said river and parallel with said shore rail. Also all rights of ño wage at said Salmon Falls reserving all side tracks switches wood sheds machine shops machinery and other buildings on the premises hereby conveyed and the bridge across said river and the right to maintain them as now maintained without any rent charge. It is intended by this conveyance only to convey the soil and the water rights, and the right to erect and maintain dam or dams without damage expense or inconvenience to said Railroad Company upon condition that said Cotton Mill shall maintain such dam or dams as may be necessary to furnish said Railway Company with all the water power it may need in connection with the machine shop force pump and other properties at Salmon Falls .... It being expressly understood and agreed between all the parties to this deed that the buildings and machinery and rights reserved in this conveyance or any newly acquired property' real or personal or mixed obtained by virtue of any of the provisions of this deed shall be held by said Railroad Company subject to the conditions of the existing mortgages on their property and the joining of the mortgagees in this conveyance shall not be construed to release from said mortgages any property other than the soil water rights and dam privileges hereby conveyed.....</p> <p>"To Have And To Hold the above released premises with all the privileges and appurtenances to the same belonging to the said St. Croix Cotton Mill their successors and assigns to their use and behoof forever upon the conditions above named.”</p> <p>This deed was duly signed, sealed and acknowledged by the grantors.</p>

<p>On report.</p> <p>Petition by Edgar E. Ring, Land Agent of the State of Maine, for tbe appointment of a committee to locate public lots in the Plantation of Elliottsville, Piscataquis County.</p> <p>The following named owners of lands in Elliottsville appeared and "filed an answer to the petition: Cilla B. Hale, Ship Pond Company, J. G. Dunning, C. W. Coffin, Thomas Gilbert, A. S. Garland, Samuel Sterns, Ezi’a L. Sterns, S. & J. Adams, F. H. Drummond, William Engel, J. F. Sprague, Enos Sawyer, Jr., Sterns Lumber Company, R. A. Young, and R. A. Buxton. The answer, among other things, denied that the lands reserved for the public uses in Elliottsville had not been lawfully located in severalty, and also asserted that the petitioner as Land Agent had no authority under the laws of the State to maintain the petition.</p> <p>A hearing was had on the petition and at the conclusion of the evidence the case was reported to the Law Court for determination, with the stipulation that "if the petition is sustained, the Law Court to appoint commissioners.”</p> <p>The case appears in the opinion.</p>

<p> Pleading. Declarations. Disjunctive Allegations. Demurrer. </p> <p>It is a general rule of pleading that the declaration must allege the gravamen — 'the grievance complained of, with such precision, certainty and definiteness that the defendant may know what to answer by his pleading and proof.</p> <p>When material facts are stated in the alternative, so that it cannot be determined upon which of several equally substantial averments the pleader relies for the maintenance of his action, the pleading is bad for uncertainty.</p> <p>A disjunctive allegation as to the essence of the cause of action is as pure an example of uncertainty as can well be found, for it completely conceals from the defendant the ground upon which a recovery is claimed.</p> <p>The disjunctive form of allegation as to the essence of the cause of action has ■ been uniformly regarded as fatally defective.</p> <p>If from the declaration the cause of action does not sufficiently appear the pleading is defective in substance.</p> <p>When a declaration is defective because of the disjunctive form of allegation used, the defect can be reached by general demurrer.</p> <p>The plaintiff brought two actions against the defendant to recover damages for alleged libels. In one action the publication of the alleged libelous matter was stated as follows: “Said defendant did . . . falsely and maliciously compose, print, publish and circulate, or cause to be composed, printed, published and circulated in a certain public newspaper .... a certain scandalous and malicious libel of and concerning the plaintiff.’ In the other action the publication was stated as follows : “Said defendant did . . . falsely and maliciously compose and publish, or cause and prepare to be composed and published .... in a certain newspaper ... a certain malicious libel of and concerning the plaintiff.’’ The defendant filed a general demurrer in each action. Held: That the declaration in each case was defective because of the disjunctive form of allegation used.</p>

On exceptions by plaintiff. Action of trespass brought in the Superior Court, Cumberland County, against the defendant, a deputy sheriff, for taking and carrying away by virtue of a replevin writ sued out by one Abraham Lazarovitch against one H. Tatilbum, certain goods and chattels on which the plaintiff had a mortgage given to him by said Tatilbum. This mortgage was duly recorded.

On motion by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff while operating a spinning machine in the defendant’s mill, and which said machine the plaintiff alleged to be unsafe, unsuitable, inconvenient, out of repair and dangerous in that there projected from a shaft upon or connected with said machine a set-screw nut or bolt, the same projecting a certain distance, to wit one inch,” and that the set-screw caught in her…

<p>Oil l’eport.</p> <p>Appeal by Merrill Trust Company from decree of Judge of Probate, Hancock County.</p> <p>Mrs. Frankie M. Jordan, late of Orland in said county, died December 7, 1897, leaving an instrument purporting to be her last will and testament and in which her husband, Andrew J. Jordan, was named as sole executor, and also as the residuary legatee. This instrument was duly presented by the said Andrew J. Jordan for probate, and at the February term, 1898, of the Probate Court in said county, was allowed as the last will and testament of the deceased, and letters testamentary were issued to the said Andrew J. Jordan as executor thereof.</p> <p>The said Andrew J. Jordan died January 6, 1907, leaving a will in which the Merrill Trust Company, a corporation, was named as the executor and also creating a certain trust and naming the said Merrill Trust Company as the trustee. This will was duly probated and allowed at the March term, 1907, of the aforesaid Probate Court, and letters testamentary were issued to the said Merrill .Trust Company as executor thereof.</p> <p>At the December term, 1907, of the aforesaid Probate Court, Hattie M. Hartford, an heir at law of the aforesaid Frankie M. Jordan, presented to the aforesaid Probate Court a petition praying for annulment of the probate decree whereby the first aforesaid instrument purporting to be the last will and testament of the said Frankie M. Jordan was allowed as her last will and testament, alleging in her said petition as follows :</p> <p>"That said Frankie M. Jordan, at the time of the alleged making of said instrument, was of unsound mind.</p> <p>"That said alleged will was not signed by said Frankie M. Jordan or by any person for her at her request and in her presence.</p> <p>"That said alleged will was not subscribed in her presence by three credible attesting witnesses not beneficially interested under said alleged will.</p> <p>"That none of the witnesses to said alleged will signed the same in the presence of said Frankie M. Jordan.</p> <p>"That said Frankie M. Jordan never declared in the presence of said witnesses that said instrument was her will.</p> <p>"That it appears by said alleged will that there are four witnesses, One witness signed her name to said alleged will in two forms, to wit, Mrs. F. Marks and Louise F. Marks.</p> <p>"That one of said witnesses'to said alleged will was beneficially interested under said alleged will and was named in said alleged will as legatee, to wit, Louise F. Marks.</p> <p>"That at the time of the signing and witnessing said alleged will only that portion containing the signatures was present and signed.</p> <p>"That the witnessing of said alleged will was done down stairs in the sitting room of the house where said Frankie M. Jordan then lived and the said Frankie M. Jordan, at the time, was up stairs from said witnesses, in bed, and neither in the presence or hearing said witnesses; and the said Frankie M. Jordan had no knowledge of the witnessing of said instrument.</p> <p>"That the testimony before the Probate Court for said County of Hancock to prove said alleged will was that of Mrs. Lizzie Gott, one of the witnesses to said alleged will. Said evidence was taken before the Judge of Probate in vacation.</p> <p>"That said Judge of Probate says that the witness, Mrs. Lizzie Gott testified, that Mrs. F. Marks and Louise F. Marks were two separate and distinct persons and that said alleged will was signed in the presence of said Frankie M. Jordan by said witnesses and in the presence of each other; and the said Mrs. Lizzie Gott says she did not so testify and was not asked to so testify.</p> <p>"That your petitioner was a legatee under said alleged will: that all that your petitioner received under said will was two hundred dollars in money; that your petitioner now brings the same amount of money, to wit, two hundred dollars into this court.</p> <p>"That Andrew J. Jordan was the Executor named in said alleged will that Andrew J. Jordan was the husband of the said Frankie M. Jordan; that said alleged will was in the handwriting of the said Andrew J. Jordan and the said Andrew J. Jordan was the principal' legatee named in said alleged will; that undue influence was used upon the said Frankie M. Jordan to induce her to sign said instrument purporting to be a will; that the signing of said instrument purporting to be the last will and testament of said Frankie M. Jordan was obtained by fraud; that the execution and witnessing of said instrument purporting to be the last will and testament of said Frankie M. Jordan was obtained by fraud, collusion, accident, or mistake; that the probating of said instrument purporting to be the last will and testament of said Frankie M. Jordan was obtained by collusion, accident, mistake and fraud; that the decree admitting said instrument of said Frankie M. Jordan to probate was obtained by fraud ; that the said decree - admitting said instrument to probate was null and void; that the ground upon which this petitioner asks the Court to grant her prayer is that the evidence of the fraud, accident and mistake and other irregularities in this petition alleged as to the making, signing and probating of said instrument purporting to be the last will and testament of the said Frankie M. Jordan has recently been discovered by your petitioner and that said evidence could never have been known to her before.”</p> <p>A hearing was had on the aforesaid petition and the Judge of Probate made the following decree :</p> <p>"Upon the foregoing petition, notice thereon having been given to all persons interested, pursuant to law and the order of court, and a hearing having been had and the evidence presented at said hearing and the arguments of counsel there made having been fully considered and it appearing that the allegations of said petition are true, and that there was fraud in the making, signing, witnessing and probating the instrument mentioned in said petition and which the Probate Court for said Hancock County by its decree dated the first day of February, A. D. 1898, approved and allowed as the last will and testament of F. M. Jordan, and it further appearing that the petitioner has returned into this court two hundred dollars ($200) which by her testimony was all the money or property received by her as a legatee named in the instrument above referred to and it further appearing that said petitioner is not guilty of laches in presenting the foregoing petition.</p> <p>"It is Ordered Adjudged and Decreed, that said decree of this Court rendered on the first day of February, A. D. 1898, be and the same is hereby revoked, annulled, vacated and declared void and said instrument is declared not to be the will and testament of said F. M. Jordan, to wit, Frankie M. Jordan.”</p> <p>From this decree, the said Merrill Trust Company appealed to the Supreme Judicial Court in said county, sitting as the Supreme Court of Probate. A hearing was then had in the Supreme Court of Probate and at the conclusion of the evidence the case was withdrawn from the jury and reported to the Law Court for decision, with the stipulation that upon so much of the evidence as was legally admissible the Law Court should render such judgment as the rights of the parties required.</p> <p>The case is stated in the opinion.</p>

On report. Action of assumpsit upon an alleged written contract between the plaintiff and the defendant bank. The writ also contained a count for money had and received. Plea, the general issue. Also the defendant filed an account in set-off. Tried at the March term, 1906, Supreme Judicial Court, Somerset County.