Volume 106 — Maine Reports

<p>On exceptions by trustees.</p> <p>Trustee process in an action of assumpsit against the principal defendant, who was one of the residuary legatees under the will of his mother, and the three executors of said will alleged trustees of the principal defendant.</p> <p>The principal defendant did not appear, but the alleged trustees appeared and filed their disclosure and after hearing thereon were charged for certain personal property in their hands as executors aforesaid, as belonging to the principal defendant. To the ruling charging them as aforesaid the alleged trustees excepted.</p> <p>The case is stated in the opinion.</p>

<p>On report. Appeal from decree of Judge of Probate.</p> <p>Appeal from the decree of the Judge of Probate, York County, allowing the account of the executors of the last will and testament of Elizabeth C. Palmer. When the matter came on for hearing in the Supreme Judicial Court sitting as the Supreme Court of Probate, an agreed statement of facts was filed and the case was then reported to the Law Court "for such judgment, direction and decree as the law and admissible evidence require.”</p> <p>The case is stated in the opinion.</p>

<p>In equity. On appeal by plaintiff.</p> <p>Bill in equity under the provisions of Revised Statutes, chapter 89, section 21, brought by the plaintiff creditor against the executrix of the estate of Maria A. Bent, late of Portland, deceased, to recover judgment on a claim against the estate of said deceased and which said claim had become barred by the special statute of limitations,, to wit, section 14 of said chapter.</p> <p>The defendant both demurred and answered. The Justice of the first instance filed a pro forma decree dismissing the bill and the plaintiff appealed.</p> <p>The case is stated in the opinion.</p>

<p> Street Railroads-. Negligence. Proximate Cause. Newly-Discovered, Evidence. </p> <p>Where in an action on the case to recover damages for personal injuries sustained by the plaintiff and for injury to his property caused by a collision between an electric car of the defendant and the plaintiff’s truck wagon, and the verdict was for the defendant and the plaintiff filed. a general motion for a new trial also a special motion based on the ground of newly-discovered evidence,</p> <p>Held, 1. That the evidence utterly failed to support the only allegation of negligence contained in the writ, namely, that the car was being driven at a “high, rapid and excessive rate of speed.”</p> <p>2. That it was the duty of the plaintiff to use due care in so placing his team as not to obstruct the passage of the defendant’s cars, and having placed it he impliedly invited the employees to pass if there was ample space. From the attitude and conduct of the team they had a right to assume that the plaintiff had so placed it that it would not move.</p> <p>3. That the evidence abundantly proved that the proximate cause of the accident was the moving of the horse and the consequent throwing of the wagon top against the car, and that the wagon ran into the car, and not the car into the wagon.</p> <p>4. That whether the injury was caused by the want of due care on the part of the plaintiff in not properly placing his team or not trigging the wheels to prevent their moving, or whether it was due to an accident for which neither party was responsible, it was not necessary to determine but it certainly could not be attributed to any negligence on the part of the defendant or its servants.</p> <p>5. That the newly-discovered evidence was not of such kind or strength as to demand a new trial under the rule well settled in this State.</p>

<p> Master and Servant. Vice-Principal. Contributory Negligence. </p> <p>The plaintiff, who was the servant of a third party, was loaned by his employer to the defendant’s servant', Wood, for a day’s work on the defendant’s farm, under circumstances which warranted the jury in finding that Wood had authority to procure the service. The plaintiff was then sixteen years of age. Wood and the plaintiff undertook to cut up some straw for bedding. For this purpose they used a feed cutter, the power for which was supplied by a gasolene engine. Wood fed the straw into the machine, where it was cut by knives affixed to a shaft revolving at a speed of about 900 revolutions a minute. The plaintiff was directed to remove the chopped straw after it left the machine, and carry it away in a basket, or baskets. The chopped straw, as it came from the spout, so called, of the feed cutter, either fell on the floor or, if the plaintiff was there with his basket, into the basket. Around the spout was a projection, — a rim or flange, — and from the outer rim of this flange, at the top, in to the revolving knives, was a distance of from three and a half to four inches. The spout was eleven inches wide, and about sixteen inches from top to bottom, and the top of it was about thirty inches from the floor. The knives were covered by a hood, and were not visible to the plaintiff, in any position he would naturally assume in removing the bedding. The plaintiff had never worked about a feed cutter before, and was not acquainted with its mechanism. He did not know the exact position of the knives. But he must have known that knives, or some cutting apparatus, was within the machine. The plaintiff was told in the beginning to take the straw away from the machine, the straw that piled up.” Soon the machine clogged. The plaintiff was then tóld “ to keep it clear.” No other specific direction was given at any time. The clogging was in the iron rolls which conducted the straw to the knives, and not in the knives themselves. But-ifc was claimed for the plaintiff that he understood that the straw was clogged in the knives. Sometime afterwards, while he was away emptying'his baskets, straw accumulated on the floor, when he returned he put this into one basket, and then took the other basket, and placing it before him, stood in front of the spout, and caught the straw as it came down, to use his own expression, “combed it right down into the basket with both hands, dog paddle style.” While he was doing this, the machine clogged again. He noticed that the machine was shaking, and, as he says, “he went to pull the straw away,” and got his fingers into the knives. The plaintiff complains of want of proper instructions, and the defendant, among other things says the plaintiff was guilty of contributory negligence.</p> <p>Held: 1. That though the plaintiff was loaned to the defendant by his own employer, the defendant owed to him the duties which a master owes to a servant.</p> <p>2. That in giving, or failing to give, warning of hidden dangers, Wood was not a fellow.servant of the plaintiff, but was a vice-principal and as such represented the master.</p> <p>3. That the defendant was not bound to give the plaintiff warning of all possible, concealed, or unknown, dangers incident to the use of the machine, but only of such as might expose him to injury in the course of his employment, that is to say, while doing'his work in the way he was told to do it, if told at all, or, if not told, in any way in which he might reasonably be expected to do it, taking into account his age, intelligence and experience.</p> <p>4. That the plaintiff was guilty of contributory negligence.</p>

<p> Wills. Revocation. Lost Will. Evidence. Presumptions. Revised Statutes, chapter 76, section 3. </p> <p>1. The existence of a lost will must be proved by clear, strong, satisfactory and convincing evidence.</p> <p>2. If an instrument propounded as a revocation of a will be in the form of a will, it must be perfect as such and subscribed and attested as required by the statute.</p> <p>3. Neither water stains upon a will nor jpencil marks thereon will be held to indicate the revocation of the will, in absence of declarations of the testator made at the time, when the evidence shows that'the presence of the stains and pencilings may have been the result of accident or made for a purpose other than immediate revocation.</p> <p>4. When a will is once regularly made, the presumption of law is strong in its favor and the intention to revoke must be plain and without doubt.</p>

<p> Contract of Hiring. Same not Ambiguous. Same Construed. </p> <p>The plaintiff and the defendant entered into a written contract, by which the defendant employed the plaintiff to solicit contracts for advertising for the term of twelve months. In two separate clauses of the contract, it was stated that “the company agrees to pay J. A. Clarke, fifteen per cent commission.” In another it was stated that “ the fifteen per cent commission shall be credited and paid,” only under certain conditions therein named. The eighth and twelfth clauses were as follows: “ Eighth. A statement of account is to be rendered by the company to J. A. Clarke every three months, or within fifteen days thereafter, together with a check for any monies due him after deducting monies drawn.” “Twelfth. The company agrees to allow J. A. Clarke a weekly drawing account of fifty dollars to be charged against commissions earned by him and due to him by the company. Said J. A. Clarke is to pay his own travelling expenses.” The defendant discharged the plaintiff before the expiration of the contract period. In an action to recover damages for this alleged breach of the contract,</p> <p>Held: 1. That the contract was not ambiguous, with respect to the compensation agreed to be paid, and that parol evidence was not admissible to explain it, or to show that the words “ weekly drawing account,” in the twelfth clause, were intended to mean a guaranteed salary.</p> <p>2. That the plaintiff was not entitled, under the contract, to a salary of fifty dollars a week, but only to a fifteen per cent commission upon the amount actually paid to the company by the advertisers whose contracts for advertising the plaintiff personally secured.</p>

<p>On agreed statement of facts.</p> <p>This case was reported to the Law Court for decision upon an "agreed statement of facts,” which states the case as follows:</p> <p>"This is a criminal, prosecution for breach of a town ordinance. passed by authority of a special act of the Legislature of Maine. A. D. 1903, approved March 28th A. D. 1903, entitled ‘An Act in regard to use of the roads in town of Eden.’ Said ordinance having been passed at a special town meeting, legally called and held in Bar Harbor, town of Eden, Hancock County, Maine, on the first day of July, A. D. 1903.</p> <p>"The respondent S. H. Mayo, was arrested on a warrant duly issued by the Bar Harbor Municipal Court on the 5th day of April, A. D. 1909, entered a plea of not guilty, was found guilty by said court, and sentenced to pay a fine of five dollars and costs of prosecution, from which sentence he appealed to the Supreme Judicial Court for Hancock County.</p> <p>"All the requirements of the special act and the ordinance passed by the town of Eden, have been complied with on the part of the town, by.its municipal officers. The warrant was properly drawn, served and returned. The respondent came in over the Eagle Lake road, from Eagle Lake to the head of Mount Desert street, in said Eden, being one of the roads specified in said special act and ordinance, in a motor vehicle propelled by its own power, with full knowledge of the existence of said ordinance prohibiting the use of automobiles and motor vehicles on said road.</p> <p>"The Ocean Drive, Bay View Drive, from Duck Brook bridge to Hulls Cove bridge, the Eagle Lake .roads as far as Eagle Lake and the Green Mountain drive, are the only entrances by land into that part of the town of Eden, known as the village of Bar Harbor. Closing the above roads make the entrance into Bar Harbor by motor vehicles over existing roads impossible. The said Eagle lake road from Eagle lake to head of Mt. Desert street is a crooked and hilly road.”</p> <p>Chapter 420, Private and Special Laws, 1903, provides as follows:</p> <p>"Sec. 1. The town of Eden in the county of Hancock, at any legal meeting of the voters thereof may close to the use of automobiles the following streets within its limits: Ocean Drive, Bay</p> <p>View Drive, from Duck Brook bridge to Hull’s Cove bridge, the Eagle Lake roads as far as Eagle Lake and the Green Mountain drive. Any street so closed shall be marked at the entrance thereof by sign boards in large letters ‘No automobiles allowed on this road.’</p> <p>"The term ‘automobile’ as used in this section applies to all motor vehicles propelled by power. For the violation of this act the town of Eden may vote at said meeting what punishment shall be inflicted for the violation thereof, but for the first offense, not over twenty-five dollars and cost of prosecution; for the second offense, not over twenty-five dollars or thirty days’ imprisonment, or both and cost of prosecution.</p> <p>"Sec. 2. This act shall take effect when approved.”</p> <p>At the special town meeting held in the town of Eden, July 1, 1903, the following votes were passed :</p> <p>"Article 1. — B. E. Whitney was elected moderator and was sworn by the clerk.</p> <p>"Article 2 — Voted—That the following streets be closed to the use of automobiles in the town of Eden: Ocean Drive, Bay View</p> <p>Drive from Duck Brook bridge to Hulls Cove bridge; both Eagle Lake roads, as far as Eagle Lake, and the Green Mountain Drive.</p> <p>The following amendment was offered and carried: Any street</p> <p>so closed shall be marked at the entrance thereof by sign boards in large letters, ‘No automobiles allowed on this road.’</p> <p>"Article 3 — For the violation of the foregoing act the person so offending for the first offense shall be punished by fine not exceeding $20 and costs of prosecution ; for the second offense by a fine not exceeding $25 or 30 days imprisonment or both and costs of prosecution.”</p>

<p>On exceptions by plaintiff.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff caused by the alleged negligence of the defendants in leaving open or unguarded the door to an elevator in the defendants’ building in Portland, and into which the plaintiff stepped and fell. Plea, the general issue. At the conclusion of the evidence for the plaintiff, the presiding Justice ordered a non-suit and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p> Master and Servant. Negligence. Duly of Master. Fellow Servant. Vice-Principal. Failure of Master to Warn Servant of Dangerous Conditions. </p> <p>The duty imposed upon a master to warn his servant of dangers attendant upon the place of the employment, of which the master has knowledge, and which are unknown to the servant, is a personal duty. The servant has the right to look to the master for the discharge of it. If instead of discharging it himself the master employs another to do so then that other stands in the place of the master, becomes a substitute for him, a vice-principal, in respect to the discharge of that duty, and -the master then becomes liable for the acts and the negligence of such other person in the premises to the same extent as if he had performed those acts and was guilty of the negligence personally.</p> <p>In an action on the case to recover damages for personal injuries sustained by the plaintiff, held that there was no error in the refusal of the presiding Justice to instruct the jury that the foi’eman of the crew in which the plaintiff was working was a fellow servant of the plaintiff, for in respect to informing the plaintiff of the dangers attendant upon the place where the foreman directed the plaintiff to work he was not his fellow servant, but a vice-principal of the master.</p> <p>In an action on the case to recover damages for personal injuries sustained by the plaintiff, held (1) that there was no reversible error in the refusal to give the request that, if the place in which the plaintiff was set at work was unsafe and unsuitable, it had become so through the act of a fellow servant. It was unimportant how or by whpm the dangerous conditions were created so long as they existed in fact, and the plaintiff did not know of them, but the defendant did, through its foreman, and was required by law to inform the plaintiff of them. (2) That the negligence complained of was not that dangerous conditions were created and existed, but that the plaintiff was not warned of them.</p> <p>Iu an action on the case to recover damages for personal injuries, the plaintiff recovered a verdict for §3750, held that the verdict must be sustained.</p>

<p>On report.</p> <p>Writ of entry "brought by the plaintiff against the defendants wherein the plaintiff demands five-eighths in common and undivided of certain real estate in the village of Guilford,” Piscataquis County.</p> <p>Plea, the general issue, with written claim for betterments as provided by Revised Statutes, chapter 106, section 24.</p> <p>At the conclusion of the evidence, the case was reported to the Law Court for decision, with the following stipulation: "If the</p> <p>plaintiff is not entitled to recover, judgment shall be rendered for defendant; if the plaintiff is entitled to recover, the case shall be remanded to nisi prius, for assessment by commissioners already agreed upon by the parties, of defendant’s compensation for buildings and improvements under the provisions of R. S., chapter 106, section 24.”</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiff. Assumpsit upon an account annexed to enforce a statutory lien for labor performed for the defendant upon certain lumber. During the trial the presiding Justice ruled that under the evidence the plaintiff had no lien and also denied the motion of the plaintiff to amend his writ, and to these rulings the plaintiff excepted. The case is stated in the opinion.

On report. .Action on the case to recover damages for the obstruction of an alleged easement claimed by the plaintiffs. Plea, the general issue. After the evidence had been taken out at the trial the case was reported to the Law Court for decision, damages to be assessed at $10.00 if judgment was for the plaintiffs. The case is stated in the opinion.

On motion and exceptions by defendant. Assumpsit for money had and received brought in the Superior Court, Cumberland County. On January 11, 1907, the plaintiff, being then a minor, signed a written contract with the defendant for it to furnish him with a course of correspondence instruction in the Electrical Engineering Course and paid therefor the sum of eighty-eight dollars in advance.

<p> Writs. Amendment. Master and Servant. Verdict. </p> <p>Where a plaintiff was allowed to amend his declaration after the commencement of the trial and also to further amend the same after the evidence was introduced' on both sides, held, that the amendments were within the discretion of the presiding Justice.</p> <p>Where the plaintiff’s intestate was called into the defendant’s “wash room ” to assist in moving the nozzle of a blow pipe which conveyed hot pulp and which was ordinarily moved by a rope attached thereto but which had become clogged so that it could not readily be moved by use of the rope and the plaintiff’s intestate was attempting to turn the nozzle by pushing .the same and it suddenly discharged its contents and became light and gave way under the force the plaintiff’s intestate was applying to it and he was precipitated into a vat and scalded and burned so that he died a week later, held, that even if the authority which was given to the foreman of the “wash room” to call men from other rooms to assist in moving the nozzle was limited to the pulling by them on the rope, yet it must be brought to the knowledge of the servant to afford the defendant the benefit of the limitation.</p> <p>Where in an action on the case brought to recover damages sustained by the plaintiff’s intestate who was injured while in the defendant’s employ so that he afterwards died, and the verdict was for the plaintiff and for §1050, held, that the verdict should not be disturbed.</p>

On exceptions by defendant’s grantee. Assumpsit on account annexed and real estate attached. No service had been made on defendant before entry of the writ. Service was ordered but not complied with. A motion for a new order of service was then made and the defendant’s grantee, 5. J. Gushee, especially appeared and objected to the motion. His objection was overruled and thereupon he excepted. The case is stated in the opinion.

<p> Law Court. Same has no Power to Recall Judgment. Revised, Statutes, chapter 79, section 49. </p> <p>Where a petition was filed prayihg the Law Court to recall its certificate of decision and mandate in a case which had been heard and determined by the Law Court and restore the case to the docket of the Law Court and the case bad already gone to judgment when the petition was filed, held, that there was no statute or rule of law which authorized the Law Court to recall such judgment and reinstate the case on the docket of the Law Court.</p>

On exceptions by defendant surety. Assumpsit on a promissory note signed by the defendant Pitman as principal and by the defendant Harvey as surety.

<p>On motion and exceptions by defendant.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff in falling down a flight of unrailed and unlighted stairs in the defendant’s boarding house. Plea, the general issue. Verdict for plaintiff for $394. During the trial the defendant requested the presiding Justice to instruct the jury "if when the plaintiff came to the head of the stairs it was so dark that he could not see he ought not to have proceeded without a light and to do so was of itself contributory negligence.” The requested instruction was refused and the defendant excepted. The defendant also filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

On report. Action of debt on a six months’ bond given by the defendant Bartlett as principal and the other defendants as sureties, in accordance with the provisions of Revised Statutes, chapter 114, section 49. The bond was dated February 12, 1908. February 29, 1908, the defendant Bartlett was duly adjudged a bankrupt and April 24, 1908, he was duly discharged in bankruptcy. The suit on the bond was commenced August 22, 1908’.

On exceptions by defendant. Assumpsit on an award made under a submission at common law. At the return term of the writ the defendant demurred generally to the declaration, the demurrer was sustained and the plaintiff was given leave to amend. ' At the second term, the plaintiff' filed an amended declaration, and the defendant demurred generally to the same. The demurrer was overruled and the defendant excepted. The case is stated in the opinion.

In equity. On exceptions by defendants. Bill in equity against Samuel W. Junkins, Edwin A. Hobson, and Lewis W. Pendexter, County Commissioners of York County, and eight others, to wit, the selectmen of the town of York, a bridge committee of four chosen by the town to act in conjunction with the selectmen, and a contractor alleged to have a contract with the town for the construction of the way hereafter mentioned, praying that the defendants be perpetually enjoined from…

In equity. On report. Bill in equity in the nature of an information under the provisions of Revised Statutes, chapter 16, section 33, brought by Hannibal E. Hamlin, Attorney General, on relation of The Maine Baptist Missionary Convention, against the property in Webster, Maine, formerly occupied by the Sabattus Baptist Church,” Frank I. Sanborn and six others, praying that trustees be appointed to care for said property,” etc. The defendants demurred to the bill, the…

On report. Search and seizure process issued by the Municipal Court of Lewiston, by virtue of which certain intoxicating liquors transported from Boston, Mass., to Lewiston, Maine, were seized from the freight depot of the Maine Central Railroad Company in said Lewiston, before delivery to the consignee.” The liquors were duly libeled, a hearing had, and the Maine Central Railroad Company appeared as claimant.

On report. Search and seizure process issued by the Lewiston Municipal ■ Court whereby certain liquors were seized at the depot of the Grand Trunk Railway Company in Lewiston. These liquors were duly libelled and the Grand Trunk Railway Company appeared as claimant. The liquors were declared forfeited and the claimant appealed to the Supreme Judicial Court.

On report. Search and seizure process issued by the Municipal Court of Lewiston whereby four gallons of whiskey which had been shipped from Boston, Mass., to Lewiston, Maine, were seized at the station of the Maine Central Railroad Company in said Lewiston. The liquors were duly libelled and at the hearing on the libel the Maine Central Railroad Company appeared and claimed the liquors. The liquors were declared forfeited and the claimant appealed.

<p> Eminent Domain. Land Taken for Public Park.’’ Damages. Title. Statute, 1821, chapter 118, section 2. Statute, 188S, chapter 17B, sections 3, 4- Devised Statutes, 1841, chapter 25, section 8 ; 1857, chapter 18, section 8; 1871, chapter 18, section 8; 1903, chapter 4, section 91; chapter 18] section 8 ; chapter 23, sections 8, 20. </p> <p>Revised Statutes, chapter 4, section 91, relating to the taking of land for parks, provides as follows: “Any person aggrieved by the estimate of damages may have them determined by written complaint to the supreme j udicial court in the manner provided respecting damages for the establishment of town ways.” In proceedings under this section instituted by a person aggrieved by the estimate of damages, Held: That the question of the title of the complainant to the land taken may be considered in so far as it respects the question of damages.</p>

On exceptions by plaintiff. Action on the case to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. Plea, the general issue,. At the close of the evidence in behalf of the plaintiff, the presiding Justice ordered a nonsuit and the plaintiff excepted. The case is stated in the opinion.

On exceptions by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the- defendant. Plea, the general issue. Verdict for plaintiff for $4800. Defendant excepted to the refusal of the presiding Justice to direct a verdict for the defendant and also to his refusal to give certain requested instructions. The case is stated in the opinion.

On report. Trover to recover the value of certain outside windows and doors, commonly known as storm windows and storm doors, alleged to have been converted by the defendant. Plea, the general issue. An agreed statement of facts was filed and the case reported to the Law Court for determination. The case is stated in the opinion.

<p> Reformation of Instruments. Burden of Proof. Mutual Mistake. Evidence. Revised Statutes, chapter 82, sections 4, 14, 65. </p> <p>The burden is on one suing to reform an instrument to show that, when altered, it will correctly show the actual intention of both parties. Evidence in a suit to reform a constable’s bond for omission of seals from the signatures held insufficient to show that the seals were omitted through mutual mistake.</p> <p>To constitute a “mutual mistake” so as to authorize reformation of an instrument, the minds of the parties must meet in a common intent.</p>

On report. Action by the plaintiff city to recover of the defendant town the sum of $58.80 for pauper supplies furnished Daniel O’Neil, a naturalized citizen, a short time prior to bringing the action. When the action came on for trial an agreed statement of facts was filed and the case reported to the Law Court for determination. The case is stated in the opinion.

On report. Writ of entry to recover a certain parcel of land situate in the town of Lyman, York County. The plaintiff’s title depended upon the validity of a tax sale of the demanded premises. At the conclusion of the evidence, the case was reported to the Law Court for determination. The case is stated in the opinion.

On report. Writ of entry by the plaintiffs as receivers and trustees of the Mt. Battie Mfg. Co,, for the purpose of determining the title to certain real estate in Camden, formerly the property of said company. The plaintiffs claimed the same as receivers and trustees duly appointed, while the defendant claimed under an execution sale of the same as the property of said company. Plea, the general issue.

On motion and exceptions by defendant. Action of trespass quare clausum.brought in the Superior Court, Cumberland County, for breaking and entering the plaintiff’s close and severing and carrying away therefrom a certain frame building. Plea, the general issue. At the conclusion of the evidence, the presiding Justice directed a verdict for the plaintiff and the defendant excepted and also filed a special motion for a new trial and also excepted to other rulings.

On exceptions by defendant. The defendant was indicted in the Superior Court, Kennebec County, for keeping and maintaining a common nuisance as defined by Revised Statutes, chapter 22, section 1.

On exceptions by defendants. Assumpsit on account annexed to recover the price of certain logs sold by the plaintiffs to the defendants under a written contract. Plea, the general issue. At the conclusion of the evidence, the presiding Justice ordered a verdict for the plaintiffs for the amount claimed in the writ. To this ruling and certain other rulings made during the trial the defendants excepted. The case is stated in the opinion.

On motion by defendant. Assumpsit on account annexed to recover for fishing tackle, guns, revolvers, ammunition, etc., furnished to the defendant’s minor sons. Verdict for plaintiffs for $82.28. The defendant then filed a general motion to have the verdict set aside. The case is stated in the opinion.

On motion and exceptions by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant in so operating one of its street cars that it collided with the plaintiff’s team whereby the plaintiff was injured. Plea, the general issue. Verdict for plaintiff for $1540.67. The defendant filed a general motion for a new trial and also excepted to several rulings during the trial.

In equity. On report. Bill in equity against the defendant bank, and seven other defendants, to redeem certain real estate from an alleged equitable mortgage. The defendant bank filed an answer and the cause was then sent to a referee who heard the matter and found the facts. The cause was then reported to the Law Court on bill and answer of the Eastport Savings Bank and the report of the referee.” The case is stated in the opinion.

On report. Action under Revised Statutes, chapter 89, sections 9 and’ 10, relating to the death of a person caused by wrongful act, neglect or default.” The plaintiff’s declaration is as follows : In a plea of the case for that the said defendant on the fifteenth day of October, 1908, at said Winthrop, was a Street Railway Company engaged in operating its passenger cars on its tracks through the town of Winthrop, crossing at grade the highway from Augusta to Winthrop at a…

On exceptions by plaintiff. Real action to recover possession of the home farm of the parties in Brunswick, and of a certain wood-lot on Great Island in Harpswell. Plea, the general issue with brief statement alleging that the plaintiff had barred herself from the right of entry into and possession of the premises by making and executing a written lease thereof which was still in force.

<p>On motions and exceptions by defendants.</p> <p>Special action on the case under Revised Statutes, chapter 23, section 76, to recover damages for personal injuries sustained by the -plaintiff while riding in the evening along a highway in the defendant town, and caused by a collision of his wagon with a guy wire employed by the defendant town to support a certain derrick in the highway and which was unguarded by a light or other warning. Plea, the general issue. Vei'dict for the plaintiff for $988. The defendant town excepted to certain rulings made during the trial, and filed a general motion for a new trial and also a special motion for the same purpose on the ground of newly discovered evidence.</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiffs. Assumpsit upon a policy of fire insurance issued to the plaintiffs by the defendant company.

On report. Appeal by plaintiff. Appeal to the Supreme Judicial Court, Cumberland County, by the plaintiff from the decision of the assessors of the city of Portland refusing to abate a tax for the year 1908, and brought under the provisions of Revised Statutes, chapter 9, section 79. A motion to dismiss the appeal was filed, and the case was then reported to the Law Court on an agreed statement of facts. The case is stated in the opinion.

On report. Action to recover for pauper supplies furnished by the plaintiff town to three minor children of one Alden B. Partridge. An agreed statement of facts was filed and the case was then reported to the Law Court for determination. By leave of court, the Attorney General was permitted to appear for the State.

<p> Deeds. Reservations. Construction. Railroads. Right of Way Deed. Specific Performance. </p> <p>A reservation in a deed relates only to the land conveyed.</p> <p>A railway right of way deed binding the company to always maintain an overhead street crossing so far as concerned the property conveyed did not bind the company to build a bridge over an adjoining right of way of another company, though failure to do so defeats the reservation, and though the grantee company afterwards obtained control of the other company.</p> <p>Specific performance of contracts is a purely equitable remedy, being a substitute for the legal remedy of compensation when it is inadequate or impracticable, and lies within sound judicial discretion on consideration of the particular surrounding circumstances.</p> <p>Specific performance lies only when the matter can be disposed of by an order enforceable at once, not lying ordinarily to direct the performance of a continuous duty covering several years.</p> <p>Specific performance does not lie to enforce a reservation in a railway right of way deed where it would not benefit plaintiff, and would put the company at an unnecessary burden and where a decree could not be wholly performed at once.</p>

In equity. On report. Bill in equity for an accounting against the defendant whom he . claimed to be the equitable mortgagee of one Leonard Smith, deceased, to whose rights he succeeded by assignment. Reported to the Law Court for determination. The facts, as stated by Mr. Justice Bird who prepared the opinion are as follows: This bill in equity is brought for the redemption of sundry parcels of land from a conveyance alleged by complainant to be an equitable mortgage.

On motion by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. Plea, the general issue. Verdict for plaintiff for $2200. The defendant then filed a general motion for a new trial. ' The case is stated in the opinion.

On motion and exceptions by plaintiff. Action of trover brought in the Superior Court, Cumberland County, by the plaintiff as assignee in insolvency of Charles F. Landers, an insolvent debtor, to recover the value of a certain stock of druggist’s goods, fixtures and furniture claimed by the assignee to belong to the insolvent estate. Plea, the general issue. Verdict for defendant.

On report. Assumpsit on a policy of insurance against accidental injury, brought to recover, a stipulated sum for a surgical operation and the face of the policy for the loss of the sight of the plaintiff’s right eye.

On motion by defendant. Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. Plea, the general issue. Verdict for plaintiff for $7500. The defendant then filed a general motion for a new trial. The case is stated in the opinion.

On motion by defendant. Action on the case to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, in running one of its trains at a dangerous and unlawful rate of speed. Plea, the general issue. Verdict for plaintiff for $2750. The defendant then filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by plaintiff. Assumpsit on a fire insurance policy, known as the Maine Standard Policy* issued by the defendant company. There was no submission of the question of damages to arbitration as required by the terms of the policy, before the action was brought.

On motion by defendant. 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. (See Inhabitants of Milford v. Bangor Railway & Electric Company, 104 Maine, 233.) Plea, the general issue. ■ Verdict for plaintiffs for $4,101.

On report. Assumpsit on a contract arising out of a written acceptance by the defendant of an order given by J. S. Longley & Son for the payment to the plaintiff of such amounts as should become due them under their logging contract with the defendant. The writ also contained a count for a quantum meruit.

On motion by plaintiffs. Action on the case to recover damages for the loss of the plaintiffs’ buildings by fire and caused by the alleged negligence of the defendants.

On report. Assumpsit on a policy of fire insurance with a rider” attached, issued by the defendant company, and reported to the Law Court on an agreed statement of facts. (See JRolfe v. Patron's Androscoggin Mutual Fire Insurance Company, 105 Maine, 58.) The case is stated in the opinion.

<p> Sales. Conditional Sales. Seller’s Lien. Revised Statutes, chapter 118, section 5. </p> <p>Revised. Statutes, chapter 113, section 5, making property sold under retention of title until payment of the price subject to redemption, and permitting foreclosure of the same as chattel mortgages, applies to an agreement of sale whereby title was retained until payment of notes for the purchase price.</p> <p>Revised Statutes, chapter 113, section 5, making property sold under retention of title until payment of the price subject to redemption and permitting foreclosure of the same as chattel mortgages, gives the buyer a right to redeem after condition broken, which right continues until the seller forecloses in the manner provided for foreclosing chattel mortgages.</p> <p>Under Revised Statutes, chapter 113, section 5, making property sold under retention of title until payment of the price subject to redemption and permitting foreclosure of the same as chattel mortgages, the seller can sue for the debt and also enforce his lien, concurrently or successively, and is entitled to possession as a means of enforcing payment, there being no contrary provision in the contract.</p>

On motion and exceptions by defendant. Trespass brought in the Superior Court, Cumberland County, for taking and carrying away certain goods and chattels alleged to belong to the plaintiff. The writ also contained a trespass quare clausum count.

Od motion by plaintiff. Action on the case for negligence in the use and care of the plaintiff’s horse.

On exceptions by defendant. Indictment against defendant for keeping and maintaining a liquor nuisance in violation of Revised Statutes, chapter 22, section 1. Plea, not guilty. Verdict guilty, and the defendant was sentenced to pay a fine of two hundred dollars and costs and to serve four months in jail and in default of payment of fine and costs to serve six months additional in jail.” The defendant •excepted to certain rulings made during the trial.

<p>In equity. On report.</p> <p>Bill in equity brought by the plaintiff to enjoin the defendant telephone company from maintaining its poles and wires upon the plaintiff’s right of way. The defendant answered and the cause was then heard on bill, answer and evidence and at the conclusion of the evidence the case was reported to the Law Court for determination.</p> <p>The caséis stated in the opinion.</p>

On exceptions by defendant. At the August term, 1908, Supreme Judicial Court, Penobscot County, an indictment was returned against the defendant for perjury. The defendant demurred to the indictment, the demurrer was overruled and the defendant excepted. The case is stated in the opinion.

On motion and exceptions by defendant. Action of dower. The declaration is as follows : Iri a plea of dower, wherein the plaintiff demands against the said defendant her dower of and in a certain lot or parcel of land situated in Dover in the County of Piscataquis and State of Maine, the same which was conveyed to said Dexter and Piscataquis Railroad Company by Frank B. McAllister of said Dover by his deed dated the fifteenth day of June, A. D. 1889, for a gravel pit for…

On exceptions by defendant. The defendant was indicted for keeping and maintaining a liquor nuisance and on trial was found guilty. He excepted to certain rulings of the presiding Justice during the trial. The case is stated in the opinion.

<p> Executors and Administrators. Probate Petitions. Uniform Blanks. Accounts. Opening Settlements. Corporations. Authority of Officers and Agents. Evidence. Revised Statutes, chapter 47, section 68; chapter 65, section 48. </p> <p>It is not necessary that a petition signed and presented to the probate court by the president of a corporation to require an executrix to settle her final account, should show his authority to sign and present it.</p> <p>The authority of the president of a corporation to sign and present to the probate court a petition to require an executrix to settle her final account can be shown by the records of the corporation or even by oral testimony.</p> <p>Authority in the agent of a corporation may be inferred from the conduct of its officers or from their knowledge and neglect to make objection.</p> <p>The statute, R. S., chapter 65, section 43, establishing uniformity in the use of blanks in the probate court is not to be so construed as to deprive the petitioner of his remedy if there is no prescribed form adapted to the existing situation. He is not prohibited from presenting a petition containing allegations appropriate to the facts of his case.</p> <p>On the settlement of the final account of an executrix, former accounts settled by her may be opened on a charge of fraud in the inventory and in such accounts, although no appeals were taken from the decrees allowing the former accounts.</p> <p>That an executrix regarded her second account as a final account does not make it a final account when it was not accepted by the Judge of Probate as a final account and no notice was given thereon as a final account.</p>

On exceptions by defendant. Action on the case to recover damages for the obstruction by the defendant of the plaintiff’s alleged right of way over the defendant’s land in Nobleboro, Lincoln County. Plea, the general issue.

On agreed statement of facts. Action of assumpsit brought in the Superior Court, Kennebec County, by the plaintiff city against the defendant city to recover the sum of $54.10 expended by the plaintiff city for the relief of a pauper whose pauper settlement was alleged to be in the defendant city.

On exceptions by defendant. Search and seizure process issued by a trial Justice, Lincoln County, under Revised Statutes, chapter 29, section 52. The record does not show how the case reached the Supreme Judicial Court, but presumably on appeal by defendant. The defendant demurred to the complaint and warrant, the demurrer was overruled and the defendant excepted. The case is stated in the'opinion.

On exceptions by plaintiff. Assumpsit on an account annexed wherein the plaintiff sought to recover from the defendant the sum of $283.00 for services in decorating the auditorium at Portland, preparatory to holding an automobile show in February, 1906.

On exceptions by plaintiff. Action of assumpsit upon an accident insurance policy issued to Henry Washburn, by the terms of which the defendant became liable to pay to the plaintiff as beneficiary the sum of $5000 in event of the death of the insured resulting from bodily injury effected by external, violent and accidental means.” Plea, the general issue with brief statement alleging that the policy was not in force at the time of the death of said Washburn, that the…

<p>On report'.</p> <p>Two cases, one an action at law to recover damages for obstructing a town way leading to the plaintiff’s summer residence in North-port, Maine, and the other a bill in equity to restrain the defendant from further obstructing the way, and on which a temporary injunction was issued. An agreed statement of facts was filed and both cases were reported to the Law Court for determination.</p> <p>The material facts are stated in the opinion.</p>

<p> Executors and Administrators. Probate Bonds. Remedies. Repeal. Retroactive Effect. Constitutional Law. Obligation of Contracts. Repealing Act, 1903. Revised Statutes, 1883, chapter 72, section 16; 1903, chapter 74, sections 10, 16. </p> <p>Revised Statutes, chapter 74, section 10, authorizes suit on a. probate bond for individual benefit, and section 16 authorizes such suit for the benefit of the estate. Held, that an attempt to proceed under one section cannot be sustained by the other.</p> <p>Section 16, chapter 72, R. S., 1883, authorized a Judge of Probate to empower any interested party to. commence suit on a probate bond. Section 16, chapter 74, R. S., 1903, permits the Judge of Probate to “ expressly authorize or instruct an administrator or administrator de bonis non, on the petition of himself or any party interested,” to commence such suit. Held: That section 16, chapter 72, R. S., 1883, was repealed in 1903 and section . 16, chapter 74, R. S., 1903, substituted therefor.</p> <p>The process prescribed in Revised Statutes, chapter 74, section 16, which permits the Judge of Probate to “expressly authorize or instruct an administrator,” etc., to commence suit on a probate bond, is retroactive and applies to a suit on a probate bond given while section 16, chapter 72, R. S., 1883, was in force.</p> <p>While the Constitution carefully guards the rights of private property, yet it does not prohibit the legislature from passing such laws as act retrospectively if they effect only the remedy.</p> <p>Eevised Statutes, chapter 74, section 16, which permits a Judge of Probate to “expressly authorize or instruct an administrator,” etc., to commence a suit on a probate bond and which applies to suit on a probate bond given while section 16, chapter 72, E. S., 1883, was in force, is not unconstitutional as to its retroactive effect as impairing the obligation of the contract evidenced by the bond as it affects the remedy only and does not impair the rights of the party interested.</p>

<p>In equity. On appeal, exceptions and motion by plaintiff.</p> <p>Two bills in equity in the nature of equitable replevin, brought by the plaintiff in her capacity as administratrix, with the will annexed, of the estate of James R. Farnsworth, deceased, to compel the defendants to return to her as administratrix aforesaid, certain notes, bonds, etc., alleged to belong to said James R. Farnsworth, and to deliver to her in her said capacity the keys to a certain safe-deposit box rented by the said Security Trust Company to the said James R. Farnsworth, etc. (For a more full and complete statement of the facts see Farnsworth, Admx., v. Whiting et als., 104 Maine, 488.) The defense in the answers to both bills was a claim of title in the defendants Whiting and Martin by reason of a gift causa mortis to them by said deceased, James R. Farnsworth.</p> <p>Both causes were tried together and in the first entitled cause the following issues were submitted to the jury :</p> <p>1. "Did the said James R. Farnsworth, on the sixth day of May, A. D. 1905, or at any time, give to George F. Whiting the personal property enumerated and described in paragraph 3 of plaintiff’s bill, to be equally divided as stated in defendants’ answer thereto ?</p> <p>2. "Did the defendants, Whiting and Martin, take or sequester any of said property or effects belonging to the estate of said James R. Farnsworth?”</p> <p>The jury answered the first question in the affirmative and the second question in the negative.</p> <p>In the second 'entitled cause the following issues were submitted to the jury:</p> <p>1. "Did the said James R. Farnsworth on the sixth day of May, A. D. 1905, or at any time before his death, give to the said George F. Whiting the personal property and securities mentioned in paragraph 4 of plaintiff’s bill, marked and described therein as "Schedule A,” in box No. 41 in the vault of the Security Trust Company in Rockland, to be equally divided as stated in defendant’s answer to said paragraph ? :</p> <p>2. "Do the property and securities mentioned in plaintiff’s bill, paragraph 4, marked and described as "Schedule B,” belong to the estate of said Helen A. Farnsworth, deceased?”</p> <p>The jury answered both questions in the affirmative.</p> <p>Final decrees were made by the presiding Justice in accordance with the findings of the jury.</p> <p>In each cause, the plaintiff filed a general motion for a new trial and appealed from the decree and also excepted to certain rulings made during the trial.</p> <p>The cases are further stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>Assumpsit on account annexed brought to recover the sum of $635.50, and interest, for labor in excavating 205 cubic yards of ledge below grade for the foundation of the Agricultural Building at Orono. Plea, the general issue. At the conclusion of the plaintiff’s testimony the presiding Justice directed the jury to return a verdict for the plaintiff for $132.65 and no more, the amount conceded to be due by the defendant, and a verdict was so returned. The plaintiff excepted to the aforesaid order.</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions by defendant.</p> <p>Action on the case brought under Revised Statutes, chapter 52, section 73, to recover damages caused by a fire on the plaintiff’s land, alleged to have been caused by sparks communicated by one of the defendant’s locomotives. Plea, the general issue. Verdict for plaintiff for $1623. The defendant excepted to certain rulings during the trial and also filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>Action of trespass brought in the Superior Court, Cumberland County, against the defendant, a deputy sheriff, alleging the illegal attachment by him of certain personal property. The writ contained two counts, one for goods taken and carried away, and the other in trover. Plea, the general issue, with brief statement as follows: "That he, on the eighteenth day of June, A. D. 1909, and for a long time prior thereto, was, and still is a duly appointed and qualified officer in and for said County of Cumberland and State of Maine, duly authorized and qualified to serve precepts, writs, etc., in said County of Cumberland, and that at the time of the alleged trespass complained of he was then and there qualified and authorized as above set forth, he being then and there a deputy sheriff, of said County of Cumberland. That on said day he then and there, by virtue of a writ issued from the Municipal Court of the City of Portland, in said County of Cumberland, attached certain personal property of the plaintiff, and then and there made proper return on said writ, which writ was then and there properly returned to the court. That he was then and there commanded by said writ to attach the goods and estates of the said Julius C. Jensen to the value of .fifty (50) dollars, and that he then and there, by virtue of said writ, and in answer to the command then and there contained in said writ, attached the goods and estate of the defendant to the value, in his judgment, of fifty (50) dollars, and attached, removed or exercised dominion over no other goods. That he was then and there acting in his capacity as an officer, to wit, a duly qualified deputy sheriff, and he then and there had in his possession, duly issued from said Municipal Court, a writ directing him to attach the goods and effects of said defendant to the value of fifty (50) dollars, and that he did then and there by virtue of said writ attach the goods and effects of the defendant to the value, in his best estimation and opinion, of fifty (50) dollars, and attached no other goods. That said return was then and there properly made, and said writ by him returned to court at the return day thereof, to wit, the sixth day of July, 1909 the court then and there being said Municipal Court.”</p> <p>At the conclusion of the evidence, the presiding Justice, on motion of the defendant, ordered a verdict for the defendant and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On motion by defendant.</p> <p>Action on the case under Revised Statutes, chapter 89, sections 9 and 10, brought by the plaintiff in her capacity as administratrix of the estate of her husband, Hollis Leighton, against the defendant to recover damages for causing the death of the plaintiff’s intestate by wrongful act, neglect or default. Plea, the general issue. Verdict for plaintiff for $2000. The defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Negligence. Wharves. Duty to Employees of Others. Injury to Employee of Another. Defective Appliances." Ordinary Care. Damages. </p> <p>The owner of a wharf was bound to use ordinary care to see that it was . reasonably safe as to a stevedore employed by another in unloading coal at the wharf.</p> <p>Evidence held to sustain a finding that a stevedore, injured by a hoisting apparatus falling upon him, was not guilty of contributory negligence.</p> <p>The term “ordinary care,” as applied to one’s duty to provide reasonably sáfe appliances furnished a third person for the use of his employees, is a relative term; diligence commensurate with the danger being required. Evidence held to show that the owner of a wharf was negligent toward a stevedore employed by another in unloading coal at the wharf in selecting the material used in hoisting apparatus which fell upon the employee.</p> <p>The duty of one to use ordinary care to provide reasonable safe appliances furnished a third person for the use of his employees, cannot be delegated. Held: That $1,750 was not excessive recovery for personal injuries involving a compound fracture of one of the bones of the left forearm, slight injury to the foot, and various bruises, where the fracture united slowly, the rotary motion of the arm was impaired, and the injured person may not be able to resume his .occupation as a stevedore, and incurred $132 medical expenses.</p>

In equity. On report. Bill in equity to enjoin the sale of 1282 shares of the capital stock of the Machias Lumber Company and held by the Merrill Trust Company in trust, and to determine the rights of the parties under a certain trust agreement. A preliminary injunction was issued.

On exceptions by defendants. Petition for a writ of mandamus to compel the Acme Manufacturing Company, a private corporation, and its president and treasurer in their official capacities, to issue to the petitioner a certificate for ten shares of the capital stock of the corporation, and to record the transfer of the same upon the books of the company.

On appeal by defendants. Two cases, a bill in equity and an information in the nature of a quo warranto.

<p> Attachment. Mechanic’s Liens. Pleading. Surplusage. </p> <p>No lien claim need be set out in the declaration in a writ to entitle a plaintiff to attach property in a suit for labor and materials furnished in repairing a house where the personal defendant is also the owner of the property, and if one is set out it is immaterial or surplusage and is not subject to special demurrer.</p>

<p> Guaranty. Remedies. Parties. Joinder. </p> <p>A guarantor is not suable jointly with the maker of the principal contract. Their contracts are distinct and not joint, and the guarantor must be sued separately upon his contract of guaranty, and not jointly upon the principal contract.</p> <p>Held: That an indorsement on a note, “I hereby guarantee payment of the within note,” constituted a contract of guaranty, on which the guarantor must be sued separately from the maker of the note.</p>

On exceptions by defendant. Real action to recover several tracts of land in Pittsfield, Somerset County. At the return term of the writ, the defendant filed a special demurrer to the declaration. The presiding Justice pro forma overruled the demurrer and the defendant excepted.

On report. Indictment against the defendant for perjury and reported to the Law Court under the provisions of Revised Statutes, chapter 185, section 26. The report signed by the presiding Justice is as follows: This was an indictment for perjury found at the January term of the Superior Court for the County of Kennebec.

<p>In equity. On appeal by defendant.</p> <p>Proceedings by the plaintiff, "as in equity,” under the provisions of Revised Statutes, chapter 6, sections 70 to 75, to determine his right to the office of alderman from Ward 2, in the City of Lewiston. The matter was heard by the Justice of the first instance who found and decreed that the plaintiff was entitled by law to the said office of alderman and thereupon and in accordance with the provisions of section 72 of the aforesaid chapter, the defendant appealed and the matter was brought before the Justices of the Supreme Judicial Court as provided in said section 72.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by defendant.</p> <p>Assumpsit to recover the sum of $1000 for a "7-15 interest in the Crystal Spring Water Company and one half interest in Ford runabout automobile of 1907” alleged to have been sold by the plaintiff to the defendant. Plea, the general issue with brief statement as follows:</p> <p>"That if defendant did make any promise, the alleged contract was for the sale of goods, wares and merchandise and void under the statute of frauds.</p> <p>"That if defendant did promise said promise was induced by the fraud and misrepresentation of plaintiff.”</p> <p>The verdict was for the plaintiff. The defendant excepted to certain rulings made by the presiding Justice during the trial.</p> <p>The case is stated in the opinion.</p>

<p> Replevin. Bonds. Sufficient Sureties. Non-resident Sureties. Evidence. Presumption of Regularity. Revised Statutes, chapter 98, section 10. </p> <p>The word “sufficient” as used in Revised Statutes, chapter 98, section 10, requiring “sufficient sureties” on a replevin bond means adequate to suffice or equal to the end proposed.</p> <p>Under Revised Statutes, chapter 98, section 10, requiring “sufficient sureties” on a replevin bond, the fact that one of the two sureties upon such a bond is a non-resident of Maine does not, in and of* itself, constitute non-compliance with the requirements of the statute.</p> <p>When one of the two sureties on a replevin bond is a non-resident of Maine, the sufficiency of such surety can be attacked only by plea in.abatement, and not by a motion to dismiss.</p> <p>In the absence of proof to the contrary, a replevying officer is presumed to have taken the bond required by Revised Statutes, chapter 98, section 10.</p>

<p>On report.</p> <p>Action under the provisions of Revised Statutes, chapter 23, section 37, to recover the assessments on certain lots of land on Franklin Street, Bangor, made on account of widening said street. Plea, the general issue, with brief statement as' follows: "That</p> <p>neither the said Laura Hayford in her lifetime, nor the defendant as administratrix with the will annexed of the estate of said Laura Hayford, as aforesaid, ever was indebted to the plaintiff as alleged.” When the action came on for trial, the following admissions were made:</p> <p>"It is admitted that there was an authorization of this suit by the City Council of Bangor.</p> <p>"It is admitted that the street has been opened and that the damages have been paid.</p> <p>"It is admitted that the assessment was legal and in due form upon land held by Laura Hayford as trustee.</p> <p>"It is admitted that the claim was duly filed in the probate office against the estate of Laura Hayford.”</p> <p>At the conclusion of the evidence, the case was reported to the Law Court to render such judgment as the law and the evidence require.</p> <p>The declaration in the plaintiff’s writ is as follows : "In a plea of the case for that whereas on the twelfth day of December A. D. 1905 upon the petition of thirty-four tax-payers and residents of said City, the City Council of said City ordered the Street Engineers of said City to lay out a widening of Franklin Street in said City; and whereas the said Street Engineers gave due notice of their intention to lay out said widening on the 30th day of December A. D. 1905, and on said 30th day of December A. D. 1905, said Street Engineers met and proceeded to lay out said widening, and after hearing all persons on the questions of damages, awarded Laura Hayford Trustee, the sum of $30,000 as full compensation for the land taken for said widening, and assessed a portion of said sum so awarded, to wit, the sum $22,500 upon the lots adjacent to and bounded on said street, other than those for which damages are allowed, and did assess upon Laura Hayford under the name of Laura Hayford trustee, the sum of $8,250.07 she owning land bounded upon said street and being benefited thereby ;</p> <p>And whereas on the 9th day of January A. D. 1906, the City Council of said City accepted the report of said Street Engineers and established said laying out as made by them in their report, and ordered notice to be given to all persons that said City Council would meet on the 29th day of January A. D. 1906, to give a hearing to all persons interested in the question of betterments; and whereas due notice having been given, said City Council met on the said 29th day of January 1906, heard all parties on the question of betterments and finally established and confirmed said assessments as reported by said Street Engineers; and whereas the City Clerk of said City having recorded the assessment apportioned and established as aforesaid, gave due notice on the 31st day of January A. D. 1906, to each owner and proprietor of said lot or parcel of land so assessed, of the amount assessed against it, and whereas said City has paid to the owner of the land taken for said widening the sum of $30,000 being the amount awarded, and has entered upon and taken possession of said land for the purpose of widening said street; wherefore by reason of all of which acts and proceedings by said City in the premises, the said Laura Hayford became indebted to said City in the sum of $8250.07 with interest thereon at twelve per cent per annum from the said twenty-ninth day of January A. D. 1906, as for money paid, laid out and expended by said City for the benefit of said Laura Hayford which sum the said Laura Hayford in consideration of the premises aforesaid promised to pay plaintiff on demand as by statute in such case made and provided.</p> <p>And plaintiff avers that on the twenty-first day of November A. D. 1908, being within eighteen months after the said Anna C. Peirce had filed notice of her appointment in the Probate Court as administratrix with the will annexed as aforesaid, and at least thirty days before the commencement of this suit, the claim herein declared on, a copy of which is hereto annexed, was filed in the Probate Court according to law; yet neither the deceased in her lifetime, nor since her decease, has the said Anna C. Peirce, ever paid the same. -</p> <p>And plaintiff further avers that twenty months has not elapsed since the defendant filed her notice of appointment as aforesaid in the Probate Court.</p> <p>Bangor, Me., Nov. 21, 1908.</p> <p>Estate of Laura Hayford,</p> <p>To City of Bangor, Dr.</p> <p>Highway Department.</p> <p>1908. For assessment made January 29, 1906 on account of widening of Franklin Street.</p> <p>Lot westerly side of Franklin Street with the store house and buildings, bounded southerly by Kenduskeag Stream and measuring on Franklin Street about 110 feet.</p> <p>Amount assessed 498.92</p> <p>Lot easterly side of Franklin Street bounded northerly by Kenduskeag Stream with buildings, measuring on Franklin Street about 275 feet.</p> <p>Amount assessed ’ 8250.07</p> <p>8748.99</p> <p>Interest for two years, 9 months, 24 days at 12% 2957.15</p> <p>11706.14</p> <p>Also for that the said Laura Hayford at Bangor on the 29th day of January A. D. 1906 being indebted to the plaintiff in another sum of fifteen thousand dollars for so much money before that time laid out and expended by the plaintiff for the use of the said Laura Hayford at her request, in consideration thereof, then and there promised the plaintiff to pay the same on demand ; yet neither the said Laura Hayford in her lifetime, nor since her decease has the said Anna C. Peirce, Administratrix with the will annexed, ever paid the same, although plaintiff on the 21st day of November A. D. 1908 being within eighteen months after said Anna C. Peirce filed notice of her appointment in the Probate Court as administratrix of said Laura Hayford with the will annexed as aforesaid, and at least thirty days before the commencement of this suit filed the claim herein declared on, being the account hereto annexed in the Probate Court according to law. And plaintiff further avers that twenty months has not elapsed since the defendant filed notice in the Probate Court of her appointment as aforesaid.</p> <p>Bangor, Me. Nov. 21, 1908.</p> <p>Estate of Laura Hayford,</p> <p>To City of Bangor, Dr.</p> <p>Highway Department.</p> <p>1908. For assessment made January 29, 1906 on account of widening of Franklin Street.</p> <p>Lot westerly side of Franklin Street with the store house and buildings, bounded southerly by Kenduskeag Stream and measuring on Franklin Street about 110 feet</p> <p>Amount assessed $ 498.92</p> <p>Lots easterly side of Franklin Street bounded northerly by Kenduskeag Stream with buildings, measuring on Franklin Street about 275 feet</p> <p>Amount assessed 8250.07</p> <p>$8748.99</p> <p>Interest for 2 years, 9 months, "24 days at 12% 2957.15</p> <p>$11706.14</p> <p>Yet though often requested, said Defendant has not paid said sum, nor any part thereof, but neglects and refuses so to do, to the damage of said plaintiff (as it says) the sum of Fifteen Thousand Dollars.”</p> <p>The case is stated in the opinion.</p>

On report. Action on the case to recover damages for the alleged unlawful diversion of water by the defendant from the plaintiffs’ mills on the Meduxnekeag Stream in Houlton. Plea, the general issue with brief statement alleging, among other things, that ány taking or diverting of water by the defendant, if any, was by the license, consent and permission of the said plaintiffs” and that such license, consent and permission had never been revoked.

On exceptions by plaintiffs. Action of trespass quare clausum under Revised Statutes, chapter 97, section 11, for entering upon ornamental grounds of the plaintiffs and cutting down and removing therefrom, without permission of the owners, certain ornamental trees, and lopping, trimming, and otherwise defacing certain other ornamental trees thereon standing.

On report. Assumpsit on account annexed for use of a wharf and lumber yard on Pleasant River, and for use of dams, brows, flowage, etc., in driving logs in the river above. Plea, the general issue. At the conclusion of the evidence, the case was reported to the Law Court for determination and in case the defendant was found liable, to assess damages in such an amount as the evidence warrants.” The case is stated in the opinion.

<p> Equity. Appeal. Decree. Revised Statutes, chapter 79, section 22. </p> <p>Equity rule No. XXVIII of the Supreme Judicial Court, authorizing an appeal from a single Justice’s decree entered on a decision of the law court on appeal, and Revised Statutes, chapter 79, section 22, requiring him to enter a decree according to such decision, does not prevent a decree on affirmance from containing elements not in the original decree, though the decree must follow the mandate, which the Justice cannot enlarge, limit, or modify, it being proper to enter such decree as will effectuate the court’s decision ; and hence a decree, on affirmance of a decree finding that defendants owned securities sued for by plaintiff as administratrix, properly required plaintiff to transfer and indorse the securities and to pay over money collected during the litigation as interest or dividends.</p>

<p> Trespass Quare Clausum. Title. Burden of Proof. Eoidence. Deeds. </p> <p>Plaiutiff in trespass quare clausum must affirmatively show his title.</p> <p>A stipulation that defendant in trespass quare clausum cut timber on the land under claim of title to the land is insufficient to show prescriptive title in him.'</p> <p>On an issue of title, a quitclaim deed from one conceded to be the owner of the land shows absolute title, and is equivalent to title through warranty deed.</p> <p>That for over 70 years plaintiff in trespass quare clausum and his predecessors had been in uninterrupted possession of a farm under recorded deeds which included the disputed tract, wild and unfenced land, and that plaintiff was in possession when suit was brought, established his title prima facie.</p>