Volume 105 — Maine Reports

On agreed statement of facts. Judgment for defendant. Action brought by the plaintiff as administratrix of John T. Gifford late of Lee, deceased intestate, to recover the sum of $1000 alleged to be due under a benefit certificate issued to the said deceased by the defendant association and of which said association the deceased was a member at the time the certificate was issued. Plea, the general issue.

On exceptions by plaintiff. Overruled. Action of trespass against the defendant, who was a Deputy Enforcement Commissioner duly appointed and qualified under chapter 92, Public Laws of 1905, for breaking and entering, on July 30, 1906, the plaintiff’s vessel lying at a wharf in Rockland harbor, and of which said vessel the plaintiff was then and there captain and in command, and taking and carrying away certain intoxicating liquors found in said vessel.

Action on the case to recover damages for personal injuries sustained by the plaintiff, who was an operative in the defendant’s woolen mill, and caused by the alleged negligence of the defendant in failing to keep in a reasonably safe and suitable condition a certain stairway connected with its mill, and habitually used by the plaintiff and other operatives for the purpose of entering and leaving the mill. Plea, the general issue. Verdict for plaintiff for $1475.

In equity. On report. Decree to be in accordance with opinion. Bill in equity brought by the executors of the last will and testament of William 0. Grady, deceased, against John C. Grady a brother of said deceased, Mary R. Grady widow of said deceased, Eliza P. Grady, a sister of said deceased, and several others interested in the estate of said deceased, asking for the construction of certain paragraphs of the will of said deceased.

In equity. On report. Bill dismissed. Bill in equity brought by the Board of Police of the City of Biddeford,.by Henry G. Hutchinson and James F. Tarr, a majority of the members thereof, in behalf of said Board, and also in behalf of Charles B. Harmon, James Mogan, Napoleon Ducharme, George E. Clark, Frank W. Dearing, John Hanson, George A. Bowie, Gideon A. Boutin, George W. Wormwood, William Fanning.

On motion by plaintiff. Sustained. Action of trespass to recover damages for an alleged assault and battery made by the defendant upon the plaintiff, brought in the Superior Court, Cumberland County. Plea, the general issue with brief'statement alleging that the injury if any to the plaintiff was inflicted by the defendant in self defense from the assault of the plaintiff.” The jury returned a verdict for the plaintiff, assessing the damages in the sum of one cent.

<p> Taxation. Personal Properly Employed, in Trade. “Mill.” Revised Statutes, chapter 9, sections IS, IS, paragraph I. </p> <p>Under Revised Statutes, chapter 9, section 13, paragraph I, which enacts that “all personal property employed in trade, in the erection of buildings or vessels, or the mechanic arts, shall be taxed in the town where so employed on the first day of each April; provided, that the owner, his servant, sub-contractor or agent, so employing it, occupies any store, shop, mill, wharf, landing place or shipyard therein for the purpose of such employment,” the personal property which may or may not be taxable is property wholly distinct from the store, shop, mill, etc., which by virtue of the proviso, must be occupied for the purpose of such employment.</p> <p>The personal property which may or may not be subject of taxation under Revised Statutes, chapter 9, section 13, paragraph I, is movable property wholly distinct from the “store, shop, mill, wharf, landing place or shipyard,” which, by virtue of the proviso, must be occupied “for the purpose of such employment” by the owner or other person under him, so employing it, in order to render it legally taxable in the town where it is employed. One and the same thing cannot at the same time serve as personal property employed and as the building or place in which it-is employed.</p>

In equity. On report. Bill dismissed. Bill in equity brought to set aside an award made by referees in a fire insurance matter. The defendant demurred and answered. The demurrer was overruled and the defendant excepted. The cause was then tried to a jury and a verdict rendered.

In equity. On report. Injunction to issue. Bill in equity brought by the executors of the last will and testament of John E. Chapman, late of Bangor, deceased testate, to restrain thé defendant, the widow of said deceased, from prosecuting in the Probate Court her claim for an allowance out of the personal estate of her deceased husband.

<p>In equity. On report. Decree according to opinion.</p> <p>Bill in equity brought by "Lydia M. B. Robinson, of Paoli, County of Chester, Commonwealth of Pennsylvania, Christine W. Biddle, of Philadelphia, said Commonwealth, Spencer F. B. Biddle, of Graham, State of Montana, and Henry J. Biddle, of Vancouver, State of Washington, as Executors and Trustees under the last will and testament of Mary D. Biddle, late of said Philadelphia,” against "Lydia M. B. Robinson,-Christine W. Biddle, Spencer F. B. Biddle, Henry J. Biddle as individuals, Lydia Spencer Moncure Robinson (daughter of Lydia M. B. Robinson,) Spencer Biddle and Rebecca Biddle both of said Vancouver (minor children of Henry J. Biddle,”) asking for the construction of the last will and testament of the said Mary D. Biddle.</p> <p>In lieu of a formal answer to the bill, the defendants filed the following agreement: "It is hereby agreed that the allegations of</p> <p>fact in complainants’ bill are true and the respondents join in the prayer of complainants for a construction of the will of Mary D. Biddle.”</p> <p>When the cause came on for hearing before the Justice of the first instance, it was agreed to report the case to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiff. Overruled. Action of assumpsit on a promissory note given by the defendant to the plaintiff. Plea, the general issue. Tried . at the January term, 1908, Supreme Judicial Court, Androscoggin County. At the conclusion of the evidence, the presiding Justice ruled that no consideration for the note had been shown and ordered a nonsuit and thereupon the plaintiff excepted. The case is stated in the opinion.

On exceptions by defendant. Overruled. Complaint against the defendant for digging clams on Scarboro flats, Cumberland County, in violation of the provisions of Private and Special Laws, 1903, chapter 317. On this complaint a warrant was duly issued by a trial justice in said county. Presumably the defendant was convicted in the trial justice court although the record is silent on that point.

<p>On exceptions by plaintiff. Sustained.</p> <p>Assumpsit on account annexed in which the plaintiff sought to recover, among other things, for boarding the defendant’s horse. Plea the general issue with brief statement of payment. Verdict for defendant.</p> <p>During the trial and on cross-examination the plaintiff testified as follows:</p> <p>Q. "Didn’t you try to get another horse before you got this? (Defts.)</p> <p>A. "No sir.</p> <p>Q. "Didn’t you try to get Percy Buker’s?</p> <p>A. "No sir.</p> <p>Q. “Didn’t you ever say anything to Percy Buker about taking his horse for his keep ?</p> <p>A. "No sir.</p> <p>Q. "You swear to that, don’t you?</p> <p>A. "Yes sir, sure.”</p> <p>The said Percy Buker, called by the defendant, in direct examination testified as follows:</p> <p>Q. "In 1905 or 1906 in the fall, did you have some talk with Maurice Provencher about his taking your horse ?</p> <p>A. "I did.</p> <p>Q. "What did he say?</p> <p>Mr. Gower : "I object, as a collateral issue.</p> <p>Mr. Goodwin : "I want to show that Mr. Provencher at this time was offering to take another horse for his keep as we say he did this.</p> <p>The Court : "He denied it on the stand?</p> <p>Mr. Goodwin: "Yes.</p> <p>The Court : "I admit it and you may have an exception.</p> <p>Witness : "He wanted to know if I would sell my horse and I said no. He says ‘I will take her for her keeping through the winter if you want me to.’”</p> <p>Q. "What did you say?</p> <p>A. "I said I had a place for her.”</p> <p>The plaintiff excepted to the rulings admitting the aforesaid testimony of the witness Buker.</p> <p>The case is stated in the opinion.</p>

On report. Judgment of ouster. An information in the nature of quo warranto filed by Hannibal E. Hamlin in his capacity as Attorney General of the State, for and in the name of the State but at and… Held: and now holds the office of said County Attorney except in so far as he may have been ousted in the performance of his duties thereof by the said Amos K. Butler as hereinafter set forth.

On report. Judgment for plaintiff. Action of assumpsit brought by the plaintiff in his capacity as administrator of the estate of William C. Marshall, late of Belfast, against the State of Maine to recover a balance of salary alleged to have been due the said late William C. Marshall, as State Assessor, for the period from February 1, 1901, to April 1, 1901. Plea, the general issue.

On motion and exceptions by defendant. Motion sustained. Exceptions not considered. Action of assumpsit on a written contract to recover the sum of fifty dollars, brought in the Superior Court, Kennebec County. Plea, the general issue. Verdict for plaintiff. The defendant filed a general motion for a new trial and also excepted to several rulings of the presiding Justice during the trial. The case is stated in the opinion.

In equity. On report. Decree according to opinion. Bill in equity for a mandatory injunction, brought by the selectmen of Aina against the Wiscasset & Quebec Railroad Company and its several successors, including the Wiscasset, Waterville & Farmington Railway Company which now owns and operates the railroad formerly constructed by the Wiscasset & Quebec Railroad Company, seeking to enforce the performance of a decree made by the Supreme Judicial Court sitting in Lincoln…

On report. Judgment for plaintiff. Action of assumpsit to recover damages for breach of a contract for the sale of a gasolene launch. Plea, the general issue. Tried at the September term, 1908, Supreme Judicial Court, Waldo County. At the conclusion of the testimony, and by agreement of the parties, the case was reported to the Law Court for decision upon so much of the evidence as was legally admissible. The case is stated in the opinion.

<p> Nuisances. Intoxicating Liquors. Places of Resort. Social Clubs. Indictment. Evidence. Mass. Statute, 1887, chapter 206, section 1. Revised Statutes, chapter 22, section 1. </p> <p>Section 1 of chapter 22 of the Revised Statutes, provides that “ all places used . . . for the illegal sale or keeping of intoxicating liquors, and all houses, shops, or places where intoxicating liquors are sold for tippling purposes, and all places of resort where intoxicating liquors are kept, sold, given away, drank or dispensed in any manner not provided for by law, are common nuisances.” Held: That it was the intention of the legislature by this enactment to declare all places to be common nuisances whenever^they should commonly and habitually bemused for the illegal sale or keeping of intoxicating liquors, and also whenever commonly and habitually used as places of resort where such liquors are “ given away, drank or dispensed in any manner not provided for by law.”</p> <p>Under the provisions of Revised Statutes, chapter 22, section 1, any place that is resorted to, that is, a place of resort for' the mere purpose of drinking intoxicating liquors, is a nuisance ; any place of resort where intoxicating liquors are illegally kept, is a nuisance; any place of resort where intoxicating liquors are given away, is a nuisance. And any person keeping or maintaining such a place may be punished therefore as provided by statute.</p> <p>Under the statute, a place of resort is a nuisance if used by a club either to sell intoxicating liquors to its members, or to distribute among its members intoxcating liquors owned by them in common, or to procure for and dispense to its members intoxicating liquors which are bought for and belong to them individually.</p> <p>If a club, by its agent, purchases and stores intoxicating liquors for its members, and deals out in portions to each member upon his order the liquors belonging to and kept for him, and keeps a place for that purpose, such place is a common nuisance under the statute.</p> <p>Where the defendant was indicted under Revised Statutes, chapter 22, section 1, for maintaining a common nuisance, to wit, keeping and maintaining a certain tenement as a place of resort where intoxicating liquors were unlawfully kept, sold, given away, etc., from the first day of May, 1908, to the day of the finding of the indictment at the September term, 1908, of the Supreme Judicial Court, Androscoggin county, Held: That it ' was not incumbent upon the State to show that the place was used for such unlawful purposes during the entire period named in the indictment. Proof that the defendant kept and maintained a tenement for any one of such purposes during any part of the time comprised within the days named in the indictment, would warrant a conviction. It is the nature of the acts done, not the length of time during which they are committed, that constitutes the offense. The case is made out, the offense is committed, if for a single day between those dates that place was so used. If for a single hour in the day it was so used, for that hour it was a common nuisance and whoever for that hour maintained the place was guilty of keeping and maintaining a common nuisance.</p>

On exceptions by defendants. Overruled. Action of assumpsit brought in the Municipal Court of Farming-ton, Franklin County, to recover the sum of $25 for services rendered by the plaintiff to the defendant town by virtue of an alleged contract with the overseers of the poor of the defendant town whereby the plaintiff took care of Samuel Kittridge and his family, residents of the defendant town, while sick with a contagious disease. Plea, the general issue.

On exceptions by plaintiff. Overruled. Action on an alleged guaranty by the defendants’ testator of the payment of some fifty overdue promissory notes transferred by him to the plaintiff. The notes were given,by the various promissors to Walter H. Foss, the husband of the plaintiff, and had been by him transferred to the defendants’ testator, and later transferred by him to the plaintiff in settlement of matters between them.

On exceptions by defendant. Sustained. Special action on the case under Revised Statutes, chapter 23, section 76, to recover damages for a personal injury alleged to have been received by the plaintiff through a defect in a public street which the defendant city was bound by law to maintain and keep in repair. It is assumed that the plea was the general issue and that the verdict was' for the plaintiff although the record is silent on both points.

On exceptions by plaintiff. Overruled. Special action on the case to recover damages for personal injuries sustained by reason of an alleged defect in the sidewalk on Lovejoy Street in the defendant city. Plea, the general issue. Tried at the January term, 1908, Supremé Judicial Court, Knox County.

On motion by defendant. Sustained unless remittitur be made. Civil action brought in the Superior Court, Cumberland County, to recover damages for an assault and battery alleged to have been committed by the defendant upon the plaintiff. Plea, the general issue. Verdict for plaintiff for $1000. The defendant then filed a general motion to have the verdict set aside. The case is stated in the opinion.

On exceptions by plaintiff. Overruled. Action of assumpsit to recover $409.33 for pauper supplies furnished by the plaintiff to a pauper whose pauper settlement was alleged to be in the defendant town. Plea, the general issue. Verdict for the defendant town. The plaintiff excepted to the ruling of the presiding Justice admitting certain evidence. The points in issue are stated in the opinion.

On report. Judgment for defendant. Trover for the alleged conversion of 377 spruce logs, 250 standard railroad ties, and 200 cedar electric ties. Plea, the general issue with brief statement alleging that the title to the logs and lumber was not in the plaintiff. Tried at the October term, 1907, Supreme Judicial Court, Penobscot County.

On exceptions by defendant. Overruled. Complaint against the defendant for having in his possession intoxicating liquors with intent to sell the same contrary to the provisions of Revised Statutes, chapter 29, section 47. The complaint is as follows: State of Maine. Washington, ss. To the Recorder of the Calais Municipal Court holden at the City of Calais within and for said County of Washington.

On motion and exceptions by defendants. Sustained. Special action on the case under Revised Statutes, chapter 23, section 76, against the inhabitants of the town of West Gardiner, to recover damages for personal injuries alleged to have been received by the plaintiff on a public way in said town known as the Pond Road,” and caused by the alleged defective condition of said way. Plea, the general issue. Verdict for plaintiff for $658.12.

In equity. On appeal by defendants. Sustained. Bill in equity brought to obtain a judicial construction of the last will and testament of Nymphas Bodfish late of Elliottsville. An answer was duly filed by the defendants. A hearing was then had on bill, answer and evidence before the Justice of the first instance who sustained the plaintiffs’ contentions and made and entered a decree to that effect.

In equity. On appeal by defendant. Dismissed. Bill in equity praying that it be decreed that the defendant held certain real estate in trust for the plaintiff and that he be ordered to convey the same to the plaintiff. The plaintiff’s bill, omitting formal parts, is as follows: Wilson C. Staples, of Stockton Springs, in the County of Waldo, and State of Maine, complains against Oliver R. Bowden of said Stockton Springs, and sáys : 1.

<p>On report. Petition for writ of certiorari. Writ to issue.</p> <p>Petition for a writ of certiorari in behalf of the town of Kingman, against the county commissioners of Penobscot county to quash their records and proceedings fon errors alleged to have been committed in laying out a highway located partly in the town of King-man and partly in Drew Plantation in said county. By agreement of the parties the certified Gopy of- the record of the doings of the county commissioners in the premises was taken as the answer of the defendants.</p> <p>The matter was heard before the Justice of the first instance without a jury and at the conclusion of the evidence, and by agreement of the parties, the cause was reported to the Law Court for determination upon so much of the evidence as was "legally competent and admissible.”</p> <p>The case is stated in the opinion.</p>

On motion by defendants. Overruled. Special action on the case to recover damages for personal injuries alleged to have been sustained by the plaintiff while riding horseback along a town way in the defendant town, by reason of his horse stepping into a hole in the traveled part of the way. Plea, the general issue. Verdict for plaintiff for $441.67. The defendants then filed a general motion to have the verdict set aside. The case is stated in the opinion.

On exceptions by plaintiff. Overruled. Action of assumpsit to recover damages for an alleged breach of a written contract in the form of a logging permit. Plea, the general issue, with brief statement setting up certain alleged equitable defenses. At the conclusion of the evidence, the presiding Justice directed a verdict for the defendant and thereupon the plaintiff excepted. The case is stated in the opinion.

On agreed statement. Decree of Probate Court affirmed. The plaintiff in his capacity as administrator de bonis non with will annexed of the estate of Mercy Follett, filed a petition in the Probate Court, York County, for license to sell certain real estate. License was refused and the plaintiff appealed to the Supreme Court of Probate.

On exceptions by defendant. Overruled. The defendant was indicted in the Superior Court, Cumberland County, for a felonious assault on a woman, and upon trial was found guilty. He then filed a motion for a new trial which was overruled. He also filed a motion in arrest of judgment which was, also overruled and to this ruling he excepted.

<p> Scire Facias. Recognizance. Non-joinder. Ignis Faiuus Principal. </p> <p>The defendant was formally accused of an offense but another person was arrested upon the complaint and recognized under the defendant’s name and defaulted the recognizance.</p> <p>Held: 1. That scire facias upon such recognizance could not be maintained against the defendant.</p> <p>2. Nor against the sureties because of the non-joinder of the real principal.</p>

On exceptions by defendant. Overruled. Search and seizure process originating in the Municipal Court of Skowhegan, Somerset County. On his arraignment the defendant pleaded not guilty but on trial was found guilty and sentenced to pay a fine of $100 and costs. He then appealed to the Supreme Judicial Court in said county. In the appellate court, Amos K. Butler, claiming to be Special Attorney for the State for said county, moved to proceed to trial.

On report. Judgment for plaintiffs. Action of debt to recover a tax for the year 1907, assessed by the plaintiff town against the Sigma Alpha Epsilon Society, a corporation located in the plaintiff town.

<p>On exceptions by defendant. Overruled.</p> <p>Indictment against the defendant as a common seller of intoxicating liquors, found and returned by the grand jury at the September term, 1908, Supreme Judicial Court, Somerset County. Before being arraigned the defendant moved to quash the indictment, which motion was overruled, to which ruling exceptions were taken and allowed, whereupon the defendant was ordered to plead to the indictment and upon his arraignment pleaded that he was not guilty, and the matter went to the jury. The defendant offered no evidence and a verdict of guilty was returned, whereupon after trial and verdict of guilty and before judgment the defendant moved in arrest of judgment, which motion was also overruled and sentence imposed. To the overruling of this motion the defendant also excepted. The reasons alleged in support' of the motion in arrest of judgment were the same as set forth in the motion to quash.</p> <p>The case is stated in the opinion.</p> <p>Note. In connection with the case at bar, attention is called to State, by Information, v. Butler, found on page 91 of these reports, where on January 6, 1909, the Law Court declared the statute under consideration in the ease at bar, section 8 of chapter 92 of the Public Laws of 1905, to be unconstitutional.</p>

On motions by defendant. Overruled. Action on the case, brought in the Superior Court, Cumberland County, to recover damages for personal injuries sustained by the plaintiff'and caused by the alleged negligence of the defendant. Plea, the general issue. Verdict for plaintiff for $400. The defendant then filed a general motion and also a special motion to have the verdict set aside.

On exceptions by plaintiff. Sustained. Real action to foreclose a mortgage. The defendant filed a plea in abatement to the writ. To this plea the plaintiff -filed a demurrer which was joined by the defendant. The presiding Justice overruled the demurrer, sustained the plea in abatement and ordered the writ and declaration to be quashed. To this ruling the plaintiff excepted. The case is stated in the opinion.

On report. Plaintiff nonsuit. Assumpsit on account annexed to recover toll on 819,000 feet of pulp wood driven down Wilson Stream, Piscataquis County, in the spring of 1906, at 15 cents per thousand feet. The plaintiff claimed to recover under and by virtue of the provisions of sections 2 and 3 of its charter. Private and Special Laws, 1899, chapter 64, and chapter 205, Private and Special Laws, 1905, amendatory of section 3. Plea, the general issue.

<p>On motions by defendant. Sustained in each case unless remit- - titur be made.</p> <p>Two actions on the case, one by the wife and the other by the husband, to recover damages occasioned by the failure of the defendant company to transport certain goods and chattels as a common carrier. Plea, the general issue in each case with the following brief statement in each case : "And for brief statement to be used</p> <p>under the general issue pleaded said defendant further says that the goods and chattels described in the plaintiff’s writ, were never lawfully delivered to it for transportation as a common carrier; that it never received and accepted said goods and chattels, as a common carrier, for transportation, as is alleged in the plaintiff’s writ, and that at no time has the liability of a common carrier for the transportation of said goods and chattels ever attached.”</p> <p>The two actions were tried together. In the first entitled action, the plaintiff recovered a verdict for $110 and in the second entitled action the plaintiff recovered a verdict for $175. The defendant company then filed a general motion in each case to have the verdict set aside.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. Sustained. Action of assumpsit originally commenced in the Municipal Court for the city of Portland where a hearing was had on October 1, 1907, and judgment rendered for the plaintiff from which judgment on the same day the defendant claimed an appeal to the Superior Court of the County of Cumberland, at the term next to be held on the first Tuesday of November, 1907.

On exceptions and motion by defendant. Exceptions sustained. 'Motion not considered. Action on the case to recover damages alleged to have been sustained by the plaintiff through the alleged failure' of the defendant sufficiently to improve the conditions for navigation on the Songo River. Plea, the general issue. Verdict for plaintiff for $3,250.

On report. Judgment for defendant. Action of trespass quare clausum brought in the Supreme Judicial Court, Piscataquis County. Plea, the general issue with brief statement as follows: That any entry upon the lands of the plaintiff or acts complained of in plaintiff’s writ and declaration (if any) were done by the defendant by the consent and under the license and permission of the plaintiff.” Tried at the January term, 1908, of said court.

<p>On exceptions by defendant. Overruled.</p> <p>Petition under Revised Statutes, chapter 106, sections 47 and 48 as amended by Public Laws of 1907, chapter 150, to compel the defendant to bring an action to try his title to a parcel of land in South Thomaston. The petition was inserted like a declaration in a writ of attachment. The defendant filed an answer with a motion to dismiss the petition and also demurred. The motion and demurrer were overruled and the defendant excepted.</p> <p>The case is stated in the opinion.</p> <p>The petition is as follows:</p> <p>"State of Maine</p> <p>"Knox, ss. — To the Supreme Judicial Court in and for the County of Knox and State of Maine:</p> <p>"Thomas J. Ginn of Auburn, Androscoggin County, in said State, respectfully petitions and gives this Honorable Court to be informed:</p> <p>"First: That he is the owner and in possession of a certain lot or parcel of land with the buildings thereon, situated in the town of South Thomaston, in said County of Knox, bounded and described as follows, to wit:</p> <p>"Beginning at a stake and stones at tide water at the west side of Emery’s Point formerly so called, now Ginn’s Point, near the old brickyard ; and in the line of a stone wall running diagonally across said point in a generally northeasterly and southwesterly direction ; thence in a generally northeasterly direction across said point by said stone wall and by the line thereof to the waters of Penobscot Bay at the easterly side of said point; thence’ southerly, westerly and northerly by the said Penobscot Bay to the place of beginning.</p> <p>"Second : That your petitioner claims an estate of freehold in the whole of said real estate above described and claims to be the absolute owner in fee simple thereof, excepting only therefrom the Hitchcock cottage and lot so called.</p> <p>"Third : That your petitioner and those under whom he claims have been in uninterrupted possession of said property for more than ten years next .preceding the date of this petition, to wit, your petitioner since the 19th day of September, A. D., 1892, and the immediate grantor of your petitioner for many years prior to said date.</p> <p>"Fourth : That the source of title of your petitioner is as follows : A warranty deed of said premises from Eliza S, Ginn dated September 19, 1892, and recorded Knox Registry of Deeds, Book 93, Page 78.</p> <p>"Fifth: That an apprehension exists that Augustus H. Ulmer of Rockland in said County of Knox claims, or may claim some title in the premises hereinbefore described, adverse to your petitioner.</p> <p>"Sixth: That the aforesaid apprehension creates a cloud upon the title of your petitioner to said premises and depreciates the market value thereof, and prevents easy sale of the same.</p> <p>"Wherefore your petitioner respectfully prays that the said Augustus H. Ulmer may be summoned to show cause why he should not bring an action to try title to the above described premises, and set up his claim therein if any he has.</p> <p>"Dated at Rockland, Maine, this eighth day of October, A. D. 1907.</p> <p>Thomas J. Ginn,</p> <p>By A. S. Littlefield, his Attorney.”</p> <p>The answer, omitting formal parts, is as follows :</p> <p>The respondent in the above entitled action having been summoned therein to appear to answer to the petition in such case for an answer says :</p> <p>"That he does not claim title to all the land described in said petition but only to a very small part thereof if any, because said description is so indefinite, vague and uncertain as to its northern. boundary that he cannot tell whether he claims any part thereof or not and is thereby unable to answer in this respect more fully. Wherefore he will be under the necessity of asking for a more minute description as to the northern boundary of the land described in said petition for, as described, he cannot tell whether he claims any part thereof or not.</p> <p>"This respondent further says that he makes no claim whatever adverse to the title of said petitioner and never has and the only difficulty there is between him and said petitioner is the establishment of a line on the northern boundary of said petitioner’s land and, if said description were more fully given, it might be that there would be no dispute as to the line between the parties hereto and that the land in dispute, if it be in dispute, is not one of title but one of the boundary and involves only a few square rods of rough pasture land and that the title to the petitioner’s land so far as this respondent is concerned, when said boundary line shall have been established as aforesaid, will in no way interfere with the plaintiff’s title or in any way affect the value thereof.</p> <p>"That your respondent has no information as to the source of the complainant’s title as said title, as alleged in said petition, does not concern him in any way and that the only difficulty there is between the parties hereto, as before stated, is the settlement of a boundary line as above set forth.</p> <p>"That the apprehension mentioned in said petition in paragraphs 5 and 6 thereof gives no statutory reason why this respondent should be compelled to bring any action to determine the title to the property named in said petition and any order of court compelling him to do so would be inequitable and unjust upon this respondent who makes no such claim as set forth in the petition.</p> <p>"That your respondent says further that your complainant has abundant remedy against this respondent without compelling the respondent to try his title to said described property and that such remedy is trifling and inexpensive as compared to the trouble that this respondent would be put to if the prayer of said petitioner should be granted.</p> <p>"Wherefore this respondent moves that this petition be dismissed and he further, for the foregoing reasons and generally, demurs to the foregoing petition and prays that he may be discharged hence from this court with his costs in this behalf sustained.”</p> <p>The decree made by the presiding Justice, omitting formal parts, is as follows:</p> <p>"In the above entitled cause it having been made to appear that the petition was inserted like a declaration in a writ and duly served upon the respondent, that the allegations in the petition are true, that said respondent has appeared in answer to said petition but has not disclaimed all right and title adverse to the petitioner in the land described in the petition, and that the respondent has not by his answer and upon hearing, shown sufficient cause why he should not be required to bring an action and try such title as he claims to the land or any part thereof described in the petition. It is Ordered, and Decreed, that said respondent bring an action at law against the petitioner to try his title to the land described in the petition, said action to be returnable at the next April Term of this court for Knox County, Maine, 1908.”</p>

On report. Judgment for plaintiff as stated in the mandate. Action of debt on a poor debtor’s bond, brought by the plaintiff against the defendants, James A. Bartley as principal, and Minnie M. A. Bartley and Mark B. Emery as sureties.

On exceptions by defendants. Overruled. Appeal from the refusal of the selectmen of the defendant town to assess damages alleged to have been sustained by the plaintiff by reason of the raising of the highway in front of the plaintiff’s premises, the proceeding being under Revised Statutes, chapter 23, section 68. The plaintiff recovered a verdict in the appellate court. During the trial the defendant town excepted to several rulings of the presiding Justice.

On motion and exceptions by defendant. Exceptions overruled. Motion sustained unless remittitur be made. • . Action on the case to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant corporation, and caused by the alleged negligence of the defendant corporation, Plea, the general issue, Tried at the October term, 1908, Supreme Judicial Court, Cumberland County. Verdict for plaintiff for $23,071.66.

<p> Landlord and Tenant. Lease. Construction. Demise in Presenti. Consideration. Optional Renewal. Election to Renew. Notice of Renewal. </p> <p>A lease like any other contract is to be construed with reference to the intent of the parties, as gathered from all parts of the instrument, and the object and purpose of the transaction.</p> <p>The form of the instrument is not decisive of its character as a lease, and the mere use of technical words and phrases which have a definite legal signification cannot be allowed to defeat a contrary intention of the parties, if that intention be manifest from the whole contract.</p> <p>If the instrument contain words of a present demise, it will be deemed a lease in presenti, unless it appears from other portions of the Instrument that such was not the intention of the parties, while, if possession be given under .the agreement, this will be a circumstance tending to prove that it was intended as a lease in presenti.</p> <p>A stipulation in a lease that the tenant shall have the privilege of renewing the lease, is a part of the consideration for which he takes the lease and agrees to pay the sum named therein as the rental of the premises leased.</p> <p>Neither verbal nor written notice is necessary to establish an election to continue a tenancy under an optional lease, for a definite term.</p> <p>Where the optional term was specified in a lease “ as not exceeding ten years,” held that written notice on the part of the tenant was not necessary to establish his election to continue his tenancy under the lease.</p> <p>The plaintiff’s testator on the twenty-second day of January, 1906, executed and delivered to the defendant a lease of a certain building, the habendum of which said lease among other things, contained the following clause : “ to have and to hold for the term of one year from the date hereof with the privilege on the part of said Chase of renewing on the same rental for any term not exceeding 10 years from the expiration of said one year term.” And in relation to the right of renewal, the lease also contained the following stipulation : “ It is mutually understood that the said right of renewal as stipulated shall be wholly optional with the said Chase and such renewal — while in all other respects the same as in this lease, shall contain no further right of renewal except by mutual agreement.” The defendant entered into the occupation of the premises under the lease, and continued his occupancy for the one year, and complied with all the terms of the lease during that time, and four days before the expiration of the year gave the plaintiff verbal notice of his intention to renew the lease for the full period of ten years, and after the expiration of the year still continued in occupation of the premises, and paid rent upon precisely the terms and conditions specified in the lease, and the plaintiff acquiesced and received rent in accordance with the terms of the lease for three quarters, at least, upon the defendant’s continued occupancy.</p> <p>Held: 1. That it was the intent and purpose of the lease to make a demise in presentí to take effect in futuro, at the option of the defendant.</p> <p>2. That no written notice was necessary on the part of the defendant to establish his election to continue his tenancy under the lease.</p> <p>3. That the defendant duly exercised his option to renew the lease for the full term of ten years and that the same was renewed for ten years.</p>

On report. Appeal from decree of Probate Court. Sustained. Appeal from the decree of the Probate Court, Waldo County, appointing Albert W. Cunningham administrator of the estate of his brother, Henry H. Cunningham, deceased, who died in Shanghai, China, June 10, 1905, and who for many years next prior to his decease was a resident of Shanghai. The appeal was heard at the April term, 1908, of the Supreme Judicial Court, in said county, sitting as the Supreme Court of Probate.

On report. Judgment for plaintiff. Assumpsit on account annexed to recover $5,694.01 paid by the plaintiff for the use -and benefit of the defendant, as surety on a certain note given by the defendant. The writ also contained the common counts for money expended.

On exceptions by defendant. Sustained. Action for money had and received brought in the Bangor Municipal Court, against the defendant in her representative capacity as administratrix with the will annexed of the goods and estate which were of Ora S. Pease at the time of his decease.” The defendant administratrix had duly represented the estate of the deceased insolvent and thereupon commissioners were duly appointed and meetings of the commissioners were duly held.

<p> Railroad, Crossings. Flagman. Oates. Negligence. Accidents without Liability. </p> <p>A railroad company is bound to take reasonable and proper precautions for the safety of travelers upon the highway having reference to all the circumstances and probabilities to be anticipated and when a railroad crossing is especially dangerousthe railroad company must employ such means as are reasonably necessary considering its character, to warn travelers of the approach of a train.</p> <p>It is difficult if not impossible to lay down an abstract rule of law as to the exact time when or the exact distance at which travelers should be warned of an approaching train. It must be governed largely by the circumstances and surroundings of each particular case. In a general way it may , be said that it is a flagman’s duty to give such seasonable warning as will enable a traveler to stop his team at a point where an ordinarily well broken and gentle horse would not become dangerously frightened. Circumstances and conditions might modify this and impose a greater obligation upon him but this would seem to'be a workable principle.</p> <p>A flagman whose duty it is to guard a railroad crossing over a public street and who remains at his post of duty until an approaching train has reached the crossing and is passing the same, is not negligent in then leaving his post as the train itself then becomes a warning.</p> <p>When gates at a railroad crossing would not cause a traveler approaching such crossing to stop any sooner than a flagman, it is not negligence on the part of the railroad company to maintain a flagman at such crossing instead of gates attended by a watchman.</p> <p>The purpose, of gates at a railroad crossing over a public street, is merely to give warning that trains are passing or about to pass, and it cannot be successfully contended that under ordinary circumstances gates should be maintained as a barrier to runaway teams.</p> <p>The plaintiff, a girl of nineteen and who was an expert horsewoman, was driving along a public street towards the point where the defendant’s railroad crossed the' street. She was entirely familiar with the crossing and its approaches. The horse driven by her was seventeen or eighteen years old and was regarded as perfectly kind and safe and not afraid of moving trains. When the plaintiff was approaching the crossing she saw the defendant’s flagman standing near the crossing and towards the westerly side of the street but he was not waving his flag. Upon seeing the flagman, however, the plaintiff immediately stopped at a point ninety-one feet from the crossing. She had not then heard any bell or whistle or seen any approaching train. She remained stationary, the horse entirely docile and unfrightened, for what she said seemed to her a long time, when the engine aiid the forward cars of a long freight train came into view at the crossing, moving at the rate of about four miles an hour, on an up-grade, with all the noise usually attendant under such conditions. While the train was passing the crossing, the horse suddenly started and dashed against the train with such force as to throw the plaintiff from the wagon and beneath the train and resulting in the loss of her left hand at the wrist.</p> <p>Held: That the defendant was neither responsible nor liable for the plaintiff’s injuries, but that the case belongs to a class of lamentable accidents for which no one is legally liable.</p>

On exceptions by defendant. Overruled. Action on the case to recover damages for personal injuries alleged to have been sustained by reason of the alleged defective condition of the basement step of a building belonging to the defendant city. The writ contained two counts, and on the first day of the return term the defendant filed a general demurrer to each count. The demurrers were overruled and the defendant excepted. The case is stated in the opinion.

On report. Judgment for plaintiffs. Action on the case to recover damages for injuries to twenty crates of asbestos roofing transported by the defendant in its capacity as a common carrier, from Old Town, Maine, to Easton, Maine. Plea, the general issue. Tried at the November term, 1907, Supreme Judicial Court, Aroostook County.

On motion by defendant. Overruled. Action on the case to recover damages for personal injuries received by the plaintiff while employed by the defendant in the operation of a drop hammer and which injuries resulted in the loss of the plaintiff’s right hand. Plea, the general issue. The plaintiff, recovered a verdict for $3383.00 and thereupon the defendant filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by appellant. Sustained. Appeal dismissed. Appeal by Ulysses G. Mudgett, executoi' of the estate of Hattie B. Fiiield, from the decree of Judge of Probate allowing the account of distribution presented by Benjamin F. Lennan, administrator of the estate of Jonathan O. Fifield.

In equity. On appeal by plaintiffs. Sustained. Bill in equity by the plaintiffs, eleven in number and all of New York City, holders of preferred Stock in the Marine Safety Appliance Company, a corporation organized under the laws of Maine and located at Portland, Maine, against John P. Carrothers, of Port Clinton, Ohio, James S. Barcus, of New York City, Willard F. Hallam, of Harpers Ferry, West Virginia,” and sixteen others, stockholders in said corporation, and against…

On exceptions by defendant. Overruled. Bastardy complaint entered in the Superior Court, Kennebec County at the January term, 1908. The defendant is a resident of Winslow in said county.

In equity. On appeal by plaintiff. Sustained. Bill in equity brought by the plaintiff to enjoin the defendant city from occupying for a public library lot the land described in the bill. The defendant city, without answering, filed a general demurrer to the bill. The Justice hearing the matter sustained the demurrer and dismissed the bill. The plaintiff then appealed as provided by Revised Statutes, chapter 79, section 22. Note.

<p>On report. Decision of Railroad Commissioners sustained and affirmed.</p> <p>Appeal by the inhabitants of the town of Orono, Penobscot County, from a decision of the Railroad Commissioners apportioning to that town a part of the expense of certain repairs upon the bridge therein across the Stillwater branch of the Penobscot river, over which bridge the street railroad of the defendant passes, and which said appeal was duly entered in the Supreme Judicial Court in said county. The matter was heard in said court and at the conclusion of the evidence and by agreement of the parties the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

In equity. On appeals both by plaintiffs and by defendants. Appeals dismissed. Bill in equity brought by the plaintiff's to establish and enforce a trust in certain lands in Somerset County and Franklin County, and which bill after the same had been filed was amended in several particulars. Answers were filed both to the original bill and amended bill.

In equity. . On appeal by defendants. Dismissed. Decree sustained.

On report. Judgment for defendants. Action for money-had and received. Plea, the general issue with brief statement invoking the statute of limitations. At the trial, the presiding Justice submitted to the jury certain questions for special answer and after their answer had been returned the case was reported to the Law Court for determination. The case is stated in the opinion.

<p>On exceptions by defendant. Overruled.</p> <p>Action of assumpsit for money had and received, with specifications of what the plaintiff expected to show and prove under the money had and received count. Plea, the general issue. During the trial, the presiding Justice excluded certain evidence offered by the defendant, and at the conclusion of the testimony ordered a verdict for the plaintiff. To these rulings the defendant excepted.</p> <p>The case is stated in the opinion.</p>

In equity. On exceptions and appeal by plaintiff. Exceptions overruled. Appeal dismissed. Bill in equity brought in the Supreme-Judicial Court, Piscataquis County.

On report. Appeal from decree of Judge of Probate. Appeal sustained. Appeal by the widow of John H. Fogg, late of Portland, deceased testate, from a decree of distribution made by the Judge of Probate, Cumberland County.

On exceptions by defendants. Overruled. Scire facias against the defendant Edminster as principal and Ben D. Field and William A. Clark as sureties, upon a recognizance taken before the Judge of the Police Court for the City of Belfast, and in which said court said Edminster had been duly arraigned on a search and seizure warrant issued against him under the provisions of Revised Statutes, chapter 29, section 49, and upon being found guilty and sentenced had appealed.

In equity. On report. Bill dismissed. Bill in equity brought in 1908, praying for the specific performance of an oral contract, alleged to have been made in 1884 by one John R. Toothaker for the conveyance to the plaintiff of a certain lot of wild land. The defendants demurred and also answered.

On report. Judgment for plaintiff. Two actions on the case for the obstruction of a driveway. Plea, the general issue in each case. The two actions were tried together, and at the conclusion of the evidence the cases were reported to the Law Court for determination, with the stipulation that if judgment is for the plaintiff, the court to assess the damages.” The facts are stated in the opinion. Note. In connection with this case see Vleaves v. Braman, 103 Maine, 154.

On motion by defendant. Overruled. Action on the case to recover damages for personal injuries sustained by the plaintiff in a collision between her team and the defendant’s automobile, caused by the alleged negligence of the defendant. The writ also contained a count in trespass for running into the plaintiff’s carriage and throwing her violently to the ground. Plea, the general issue. Verdict for plaintiff for $237.

On exceptions by defendant. Sustained. Indictment against the defendant for maintaining a liquor nuisance at Somerset Junction, Somerset County. Verdict, guilty. The defendant excepted to several rulings made during the trial. The case is stated in the opinion.

<p> Petition for Review. Same Granted. Decision not Reviewable on Exceptions. Revised Statutes, chapter 91, section 1, paragraph VII. </p> <p>If the presiding Justice, hearing a petition for review, finds that through fraud, accident, mistake or misfortune justice has not been done, and that a further hearing would be just and equitable, and grants the petition, his decision is not reviewable on exceptions.</p>

On exceptions by defendant. Overruled. Action of assumpsit brought in the Superior Court, Cumberland County, to recover damages for breach of a contract to purchase twenty-five shares of stock of the Biddeford National Bank.

On report. Judgment for defendant. Action of assumpsit on a certain written agreement or certificate (but not under seal) issued by the defendant town under date of October 10, 1887, whereby, it was alleged, the defendant town for value received promised to pay to the holder of said certificate the sum of five hundred dollars within twenty years from said date, and also that it would pay the interest upon the same annually at the rate of five per cent per annum upon…

On report. Judgment for plaintiff. Assumpsit on account annexed to recover $45.00 for services as custodian of the Franklin Street Fire Station and driver of the hose wagon, month of April, 1908,” in the defendant city. Plea-, the general issue, with a special plea of tender of $25.20 on October 13, 1908, at 9 :30 A. M., which tender was refused and said sum paid into court by defendant.

On report. Judgment for defendant. Action on the case to recover damages for the obstruction by the defendant of an alleged right of way claimed by the plaintiff over and across the defendant’s railroad tracks in Mars Hill, Aroostook County. Plea, the general issue. Tried at the April term, 1908, of the Supreme Judicial Court in said county.

On exceptions by plaintiff. Overruled. Action on the case to recover damages for personal injuries sustained by the plaintiff while working on an unguarded steam mangle in the defendant’s laundry. Plea, the general issue. At the conclusion of the plaintiff’s evidence at the trial, and on motion of the defendant, the presiding Justice ordered a nonsuit and the plaintiff excepted. The case is stated in the opinion.

<p> Judgment. Record of Judgment. Amendment of Record. Evidence. Writ of Error. </p> <p>If the record of a judgment is erroneous, it may be corrected by an amendment authorized by the court, but until such amendment is made the record must be regarded as true.</p> <p>When it is alleged that the record of a judgment is erroneous the only evidence admissible to show error is the record itself.</p> <p>Where an amendment of a record of judgment was authorized and allowed after a writ of error, attacking the service of the writ in the action in which the judgment was recovered, had been entered in court, and no amendment of the writ of error, setting forth the amended record, was presented or granted, held, (1) that the amendment should have been made and incorporated in the record before it was recited in the writ of error ; (2) that the amended record when extended was the only evidence admissible to show error ; (3) that the amended record was not the record attacked by the writ of error; (4) that the writ of error must stand or fall by the record therein recited ; (5) that the record therein recited showed a legal service of the writ in the action in which the judgment was recovered; (6) that the judgment recovered in the action the record of which was recited in the writ of error was still valid and must be deemed res judicata.</p>

<p>On report. Judgment for plaintiffs.</p> <p>Action of debt brought by the plaintiff town on the bond of the defendant, Waldo H. Bennett, given by him as tax collector of the plaintiff town for the year 1906. The action was referred to a referee who found the facts and reported questions of law for the determination of the court, and the case was then reported to the Law Court for determination upon the report of the referee. The report of the referee is stated in the opinion.</p>

<p> Certiorari. Writ of, Does not Lie to Review Questions of Bad. Private and Special Laws, 1907, chapter 350. </p> <p>The writ of certiorari lies only to correct errors in law, and not to review and revise the decision of a subordinate tribunal of a question of fact submitted to its judgment.</p> <p>Chapter 350, Private and Special Laws of 1907, provides among other things, that the members of the fire department of the city of Portland, are subject “after hearing to removal at any time by the board of engineers, subject to the approval of the committee on fire department, for inefficiency or other cause.” Under the provisions of this statute, the plaintiff was removed as a permanent member of the fire department by the unanimous vote of the board of engineers. Previous to the hearing which resulted in his removal, written notice was given to the plaintiff stating the charges against him.</p> <p>Held: 1. That the plaintiff was expressly charged in the notice with inefficiency, the statutory cause for removal, consisting not only of disobedience of orders, but also a lack of capacity, skill and ability to perform the duties required of him in his position.</p> <p>2. That whether or not the plaintiff was inefficient to perform the duties of the position from which he. was removed was a question of fact, and that the board of engineers had jurisdiction under the statute to decide that question, and that their decision of that question was final and could not be reviewed under a writ of certiorari.</p> <p>3. That there was no error of law in the proceedings complained of.</p>

<p> Certiorari. Petition. Interest of Petitioners. Evidence Dehors the Record not Receivable. Ways. County Commissioners. Notice on Petitions for Ways. Practice- Revised Statutes, chapter S3, section 2. </p> <p>Although it has been the uniform practice in Maine to hear the whole case upon a petition for the writ of certiorari, nevertheless, the judgment upon the petition granting the writ and ordering the record sent up is not a judgment that the record when sent up in response to the writ is to be quashed, but when the record has been certified up as directed in the writ the question whether the petitioners are entitled to have the record quashed is then to be determined upon the record as certified.</p> <p>When the writ of certiorari issues and in response thereto the record is sent up, the court can only act upon such record. No evidence outside of the record is receivable to show any error therein. If the record is incorrect and amendable it should be amended before being sent up.</p> <p>When it appears that petitioners for the writ of certiorari, who are not parties to the record, have no direct, legal, statute interest in the proceedings complained of, they have not shown such an interest in the proceedings sought to be quashed as entitles them to maintain the writ.</p> <p>Where petitioners prayed for the writ of certiorari to quash the proceedings of the county commissioners in Cumberland County in laying out a town way in the town of Naples in that county, and it appeared that the only ground for their claim of right to petition for the writ was that they were “ citizens and tax payers of said town of Naples,” held that they had no legal right to petition for the writ.</p> <p>When a petition is duly presented to county commissioners for the laying out of a way, Eevised Statutes, chapter 23, section 2, provides that the commissioners “ shall cause thirty days’ notice to be given of the time and place of their meeting, by posting copies of the petition, with their order thereon, in three public places in each town in which any part of the way is, and serving one on the clerks of such towns, and publishing it in some newspaper, if any, in the county.” The same statute also provides that “the fact that notice has been so given, being proved and entered of record, shall be sufficient for all interested, and evidence thereof.”</p> <p>Where on a petition for the writ of certiorari to quash the record of the proceedings of county commissioners inlaying out a town way, and the record certified up showed that the commissioners found as a fact, and entered the same in their record, that it was “ then and there satisfactorily proved to us that all the notices named in said order had been duly and seasonably published, served and posted, and that all the requirements thereof had beeD fully complied with,” held that the record thus certified up showed a full compliance with the statute as to notice.</p> <p>It has been the uniform practice in Maine in proceedings for the laying out of ways, where the notice ordered to be given is to include a copy of the petition, not to copy the signatures of all the petitioners in the notice, but only the first with a statement of the number of the others. Such practice has continued so long, and been relied upon as sufficient so universally, that for reasons of public policy if for no other, it should now be regarded as a substantial and sufficient compliance with the statute.</p>

<p>On exceptions and motions by defendant. Motion on ground of newly-discovered evidence sustained.</p> <p>Bastardy complaint. Tried in the Supreme Judicial Court, Penobscot County. Verdict for plaintiff. Defendant excepted to certain rulings, and also filed a general motion for a new trial, also a motion for a new trial on the ground of newly-discovered evidence. The, latter motion was sustained. Exceptions and general motion not considered.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. Overruled. Two actions of assumpsit brought by the plaintiffs to recover for the transportation of salt, dories and merchandise from Gloucester, Mass., to Cutler, Maine. Plea, the general issue in each case. Presumably the two cases were tried together although the record is silent on that point. Verdict for the defendant in each case.

<p>On report. Judgment for defendant.</p> <p>Assumpsit. The declaration is as follows: "In a plea of the case, for that the said defendant, at said Machias, on the 28th day of December, A. D. 1907, for value received of the plaintiff, drew her order in writing under her hand of that date, directed to George F. Cary and Deola C. Getchell Trustees, therein and thereby requesting the said Trustees to pay to the plaintiff, or his order, the sum of eight hundred and eight dollars, and thirty-four cents, and charge the same to her account; and the plaintiff on the date of this writ, presented the said order to the said Trustees for their acceptance and payment, which the said Trustees then and there refused to do, of which the said defendant then and there had due notice, and was requested to pay the same, whereby she became liable and in consideration thereof promised the plaintiff to pay him that sum on demand.”</p> <p>Plea, the general issue as follows: "And now the defendant, by her guardian, Phineas H. Longfellow comes and defends, &c., when, &c., and for plea says she never promised the plaintiff in manner and form as the plaintiff in his writ and declaration has declared against her and of this puts herself on the country.” Also brief statement as follows: And for brief statement defendant further says: That at the time at which the alleged promise was made she was insane, and mentally incapable of making the contract set out in plaintiff’s writ.</p> <p>"That at the time of the alleged contract, she was suffering from mental weakness and infirmity to such a degree that she did not understand the nature and effect of such alleged contract, and that her signature-to the order declared on, was obtained by fraud.” The plaintiff is the son of the defendant.</p> <p>The order given by the defendant to the plaintiff, is as follows:</p> <p>"Machias, Dec. 28, 1907.</p> <p>"Geo. F. Cary, Deola C. Getchell, Trustees.</p> <p>"Please pay from my interest and income account to the order of Emery H. Maynard the sum of Eight hundred and eight dollars and thirty-four cents, and charge same to my account. .</p> <p>"Lauretta Maynard</p> <p>"Legatee Under Will John F. Harmon.”</p> <p>After the evidence had been taken out at the trial of the action and a certain agreed statement of facts had been filed, the case was reported to the Law Court for determination.</p> <p>The case in stated in the opinion.</p>

<p>On report. Judgment for the State.</p> <p>The defendant was indicted on the charge of having obstructed an alleged town way in Lincoln, Penobscot County, by erecting' and maintaining a fence across the same. When the case came on for trial, an agreed statement of facts was filed and the case was then reported to the Law Court to render such judgment as the facts and the law required.</p> <p>The case is stated in the opinion.</p>