Volume 107 — Maine Reports

On exceptions by defendant. Search and seizure process originating before a trial justice. The defendant was found guilty and he appealed to the Supreme Judicial Court. On trial in the appellate court the defendant was found guilty. The defendant excepted to certain rulings during the trial. The case is stated in the opinion.

<p>On report.</p> <p>Assumpsit on an account.annexed to recover $413 for clothing alleged to have been sold and delivered by the plaintiffs to the defendant. Plea, the general issue. At the conclusion of the evidence the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

On report. Petition for partition of certain real estate in Swanville which the plaintiff claimed to own in common and undivided with the defendant.

<p> Real Actions. Burden of Proof. Evidence. Deeds. Attested, Copies. Nonsuit. Lis Pendens. Trial. Rule of Court No. XXVI. Revised Statutes, chapter 84, section 125. </p> <p>In a real action to recover land the burden is on the plaintiff to prove title to the land demanded.</p> <p>While Revised Statutes, chapter 84, section 125, and Rule of Court No. XXVI, does not permit the grantee of a deed, or one claiming as heir of the grantee, or justifying as servant of the grantee or his heirs, to introduce in evidence an attested copy from the registry of deeds instead of the original deed, yet it does allow a grantee from such heir to introduce such office copy in his own behalf, though in a previous suit the heir to recover the same land she was not permitted to introduce the office copy, and conveyed her interest to the grantee, her attorney in that suit, and then became voluntarily nonsuit, it not appearing that the conveyance was not made in good faith and with intent actually to pass the title.</p> <p>In the absence of any circumstances tending to remove the presumption therefrom, an attested copy of a deed from the registry of deeds is prima facie proof not only of the execution of the deed but also of the delivery thereof.</p> <p>A voluntary nonsuit in an action to recover land as an heir, does not bar a subsequent suit by the heir’s grantee.</p> <p>A judgment of nonsuit is not a bar to a subsequent suit, even when ordered by the court, because, while the facts introduced may be held insufficient in law to support the action, they have not been adjudged — that is, decided — in the defendant’s favor.</p> <p>A nonsuit is not equivalent to a judgment for the defendant.</p> <p>A grantee of land in litigation takes it subject to such judgment as may eventually be rendered.</p>

On report. Petition for partition brought in the Supreme Judicial Court, Waldo County.

On agreed statement of facts. Action of debt on a bond given under Revised Statutes, chapter 114, section 49, to secure the release of the defendant from an arrest on execution, brought in the Superior Court, Cumberland County, against the defendant as principal and Kathleen Barnfield and W. Harry Lynch, as sureties. An agreed statement of facts was filed and the case then reported to the Law Court for determination. The case is stated in the opinion.

<p>On motion and exceptions by defendant.</p> <p>Action on the case for personal injuries received by the plaintiff' while in the performance of his duties as a servant of the defendant, claimed to have been caused by the negligence of the defendant in the choice and retention of one Merton L. Taylor and one Dana P. Sanborn, fellow-servants of the plaintiff, or one of them. Plea, the general issue. Verdict for plaintiff for $7500. The defendant excepted to certain rulings and also filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p> <p>The plaintiff’s writ contains three counts. The first count setting out the cause of action generally, is as follows :</p> <p>"In a plea of the case for that on the 20th day of July, A. D. 1907, the defendant company, to wit, the Lewiston, Augusta & Waterville Street Railway was a corporation duly organized by law and as such owned and operated a certain street railway or electric railway between the town of Winthrop and the city of Augusta, as a common carrier of passengers for hire, and as part of its business and in the usual course, thereof, owned and operated through its servants and agents, certain electric cars, so called, or cars the motive power of which was electricity. And the plaintiff was then and there an agent or servant of said defendant company’s. And on the day, aforesaid, to wit, the 20th day of July, A. D. 1907, was duly and regularly employed as motorman aforesaid, and in the regular course of his employment was driving a certain car belonging to said company from Winthrop aforesaid to Augusta, aforesaid. And the plaintiff says that the defendant company then and there owed him the duty of providing a reasonably safe and suitable place in which, and reasonably safe and suitable appliances with which to perform his labor, as aforesaid, and the plaintiff says the defendant company then and there owed him the duty of using reasonable care and diligence in the engaging, hiring or employing of reasonably careful and prudent servants or agents having a view to the nature of the work to be performed so that he would not in the ordinary and regular course of his employment be exposed to undue and unnecessary risk from the negligence or carelessness of negligent and careless fellow-servants. But the plaintiff says the said defendant company wholly unmindful of its duty in this regard and totally disregarding same, carelessly and negligently engaged or employed certain servants or agents, to wit, Merton L. Taylor and Dana Sanborn, as motorman and conductor, respectively on one of the defendant company’s cars, and the plaintiff says these men were totally and absolutely unfit for the work to which they were assigned because of immaturity of age, want of experience and a careless, negligent and wilful tendency to disregard the rules of the defendant company’s and the orders of their superiors in authority. All of which the defendant company then and there well knew, or in exercise of ordinary and reasonable care and diligence might have known and all of which the plaintiff was ignorant of and not at all informed of. And the plaintiff says that while in the due discharge of his duty and in the exercise of due care and in no way due to his fault, but entirely and solely due to the reckless, careless, wilful and wanton negligence of Merton L. Taylor and Dana Sanborn, aforesaid, the car in and upon which the plaintiff was at work as motorman, aforesaid, while coming toward Augusta and while in the town of Winthrop was suddenly crashed into by a car driven by said Merton L. Taylor and on which said Dana Sanborn was conductor and the plaintiff was then and there crushed, maimed and greatly injured about his head and chest, his spine and spinal cord and the structures thereto attendant, his stomach and bowels, his - arms and legs, receiving a great shock to his nervous system, injuring his brain, rendering him unconscious and otherwise greatly injuring him in mind and body, and as a result the plaintiff has suffered great pain and anguish both of mind and body, has been put to great expense for medical treatment, medicine and nursing, has been wholly unable to work or labor from the day of the accident to the date of this writ and is permanently injured and will be unable ever again to do work or labor.”</p>

<p>On motion by defendant.</p> <p>Action on the case to recover damages for the alleged failure of duty on the part of the defendant, a registered apothecary, in filling a physician’s prescription by substituting corrosive sublimate tablets for chlorodyne tablets.</p> <p>The declaration in the plaintiff’s writ states the case as follows:</p> <p>"For that the said defendant on the'eighth day of May A. D., 1909, at East Livermore in the County of Androscoggin in the State of Maine, was employed as a duly registered apothecary in a drug-store, and had sole charge of compounding, putting up and dispensing drugs and medicines under the provisions of chapter 30 of the Revised Statutes of the State of Maine, for a consideration to said defendant from the plaintiff was using medicines and drugs in preparing, compounding and putting'up or filling written prescriptions of physicians. And the plaintiff avers that said defendant was then and there bound to use such due care, judgment and skill in preparing, compounding and putting up prescriptions atid dispensing medicines and drugs to customers or patients having prescriptions from physicians as is required to prevent the misuse and misapplication of all medicines, and drugs, and. especially of all deleterious or poisonous substances, so as to avert all possible danger to patients and customers. But that on said 8th day of May at said drug-store in said East Livermore, said defendant did so carelessly, unskillfully, and negligently perform his said duty as a registered apothecary aforesaid, that in putting up or filling for the plaintiff a physician’s prescription of the following tenor to wit:</p> <p>‘L. Geo. Belisle, M. D. Chisholm, Maine.</p> <p>R 5521 — 5-8-09 Chlorodyne Tablets No. XXV</p> <p>Sig. Une pilule a Toutes les 4 heures</p> <p>L. Geo. Belisle, M. D.’</p> <p>Which he then and there received, took, and undertook to put up or fill. That he substituted for and instead of chlorodyne tablets, antiseptic tablets each containing a fatally poisonous dose of corrosive sublimate to wit: 7 grains of corrosive sublimate in each tablet with directions in writing upon the box containing said tablets to take one tablet every four hours, and delivered said box containing said tablets with said directions to the plaintiff and received from the plaintiff the sum of twenty-five cents in payment therefor, and the plaintiff avers that he then and there confiding in the skill, judgment and care of said defendant in his business and duty did take into his mouth and swallow into his stomach one of said corrosive sublimate tablets aforesaid, which said tablet then and there immediately caused and produced burning heat in his throat: Severe pains in his stomach and intestines, great thirst, nausea, and retching, feeble pulse, cold sweating, cramps and inability to talk, a boiling sensation in his stomach and froth foamed from his mouth, and his stomach and intestines were burned, poisoned and corroded and have remained so hitherto, and have become and are now strictured, whereby and by reason whereof he has suffered great pain and anguish, and become sick and unable to perform any labor then or since, and was put to great expense for medical attendance and nursing to wit: the sum of two hundred dollars and lost a large sum of money which he would otherwise have received for his labor to wit: the sum of two hundred dollars, and other wrongs and injuries sustained all to his damage in the sum of five thousand dollars. And the plaintiff further avers that L. Geo. Belisle, M. D., from whom he procured the aforesaid prescription is a physician and surgeon practicing his said profession in the village of Chisholm in the State of Maine. And that he acted in good faith and in the exercise of due care, and free from negligence or contributory negligence in the purchase and use of said tablets, but through the negligence and carelessness of said defendant, his health and prospects have been ruined.”</p> <p>Plea, the general issue. Verdict for plaintiff for $1400. The defendant then filed a general motion for a new trial.</p> <p>The material facts are stated in the opinion.</p>

<p> Fraud. False Representations. Sale of Real Estate. </p> <p>In order to be actionable, a false representation in the sale of real estate must be a determining ground of the transaction.</p> <p>Representations as to the value of real estate or the price for which it can be. - sold, or that a third person will shortly purchase it for a certain sum are but expressions of opinion which are not actionable.</p> <p>The statement of a vendor of real estate that a third person has paid or will pay a certain sum for an undivided interest in the property is not actionable.</p>

In Equity. In equity. On appeal and exceptions by plaintiff. Bill in equity praying that a certain deed of warranty given by the plaintiff to the defendants be rectified and reformed in accordance with the mutual intent of the parties thereof at the time said deed was made, executed and delivered, by adding to the description thereof” certain words so that the deed as reformed should except a certain right of way from the description and covenants.

<p>On exceptions by defendant.</p> <p>Indictment against the defendant Ouellette and one Archie * LeBlanc under Revised Statutes, chapter 22, section 1, for maintaining a liquor nuisance. On trial the defendant LeBlanc was acquitted while the defendant Ouellette was found guilty. During the trial the defendant Ouellette excepted to certain rulings.</p> <p>The case is stated in the opinion.</p>

<p>On motion in each case by defendant.</p> <p>Two actions on the case to recover damages for personal injuries received by the plaintiffs and caused by the alleged negligence of the defendant. Plea, the general issue in each case. The two actions were tried together. In the first entitled action the plaintiff recovered a verdict for $494.28, and in the second entitled action the plaintiff recovered a verdict for $156.25. The defendant filed a general motion in each case to have the verdict set aside.</p> <p>The cases are stated in the opinion.</p>

<p>On motion by defendant.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant. The plaintiff claimed that the injuries were caused by reason of a defective cold chisel, furnished by the defendant, and which he the plaintiff undertook to oso under the direction and with the assistance of an agent of the defendant, for the purpose of cutting an iron pipe of the defendant, and that in the course of the operation the chisel broke and a piece of the same flew into his eye, causing the injuries complained of. Plea, the general issue. Verdict for plaintiff for $2,000. The defendant then filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Descent and Distribution. Liability of Heir. Dien for Debt to Intestate. Enforcement. Revised Statutes, chapter 77, section 7 ; chapter S3, section 60. </p> <p>1. E. S., chapter 77, section 7, imposes a lien in favor of the administrator of a solvent estate upon the share of an heir who may be indebted to the intestate at the time of his death. The lien is made enforceable by suit and attachment by the administrator within two years after administration granted, and is made to have priority to any other attachment of the share.</p> <p>2. A creditor of a person to whom a share in a solvent estate has descended is chargeable with notice of such lien, and any attachment made by him of such share is subject to the lien, though made before any attachment by the administrator.</p> <p>3. In enforcing the lien by suit and attachment, it is not necessary that the writ or the officer’s return should contain a description of any particular parcels of land to he attached, since the lien is upon the entire share. It is sufficient if the writ and return show that the attachment is made to enforce the lien.</p> <p>4. Nor is it necessary to allege in the declaration that the estate was solvent, since the right of action is not based on the statute but is independent of it.</p> <p>5. Nor is it necessary that the certificate of the attaching officer returned to the register of deeds, under E. S., chapter 83, section 60, should contain a statement that the plaintiff sues as administrator. That statute only requires “ the names ” of the parties to be stated.</p>

<p>In Equity.</p> <p>In equity. On report.</p> <p>Bill in equity brought by the plaintiff against the defendant Edward P. Murray and ten others, praying the court to decree that the defendant Murray held the legal title to a certain dwelling house and lot in Bangor in trust for the plaintiff and to compel the defendants to convey the property to him free of all liens and incumbrances. The defendants answered, the evidence was taken out, and the cause was then reported to the Law Court for determination.</p> <p>The material facts are stated in the opinion.</p>

<p> Pleading. Amendment. New Cause of Action. </p> <p>In an action of trespass quare clausum, when the plaintiff’s close is described in the declaration as “beginning at the westerly corner of land owned” by H. F. thence proceeding by courses and distances around a tract of land “to the bounds first mentioned,” and no monuments are mentioned except the starting point, an amendment substituting the “southerly corner” of land of H. F. for the “westerly corner,” as the point of beginning, is not allowable. The description as amended would include land not included in the original declaration, and such an amendment would introduce a new cause of action.</p>

<p> Wills. Construction. Testator’s Intent. Charities. Educational Gifts. Cy Pres Doctrine- Insufficient Funds. Rights and Powers of Trustees. Private and Special Laws, 1909, chapter SOB. </p> <p>The primary rule of testamentary construction is to ascertain and execute the testator’s intent.</p> <p>A testamentary gift to provide funds to establish and maintain an institution for the education of young women, to promote their moral, intellectual, and physical education, provides for a school of a different and higher type than a high school, for the education of young women only, and does not authorize use of the funds in whole or in part in assisting in maintaining a town high school or other school for both sexes, though the funds be insufficient to effect the donor’s purpose.</p> <p>If the original purpose of a public charity under a trust fails, and there are-no objects to which, under the specific terms of the trust, the funds can be applied, a court may determine whether, in the event that has happened, it was not the donor’s probable intention that the gift be applied to some kindred charity as nearly like the original purpose as possible; but if it appears that the gift was for a particular purpose only, and there was no general charitable intention, the court cannot by construction apply the gift cy pres to the original purpose.</p> <p>Under a testamentary gift to provide a fund to establish and maintain an institute for the education of young women, the fact that the fund amounts to only $32,000 does not warrant a holding that the original purpose has failed so as to permit application of the cy pres doctrine to direct its use to some nearly allied purpose.</p> <p>If the trustees of a testamentary gift to be used in establishing and maintaining an institute deem the funds inadequate, they may permit them to accumulate.</p> <p>Under a testamentary gift to provide funds to establish and maintain an institute for the education of young women, the trustees could expend less than one-half of the funds in erecting a building, but could not authorize male pupils to be received with or without payment of tuition, nor contract- with the town to run a school for pupils of both sexes by the trustees paying female teachers the unexpended funds in the trustees’ hands.</p>

On agreed statement. Action of assumpsit, brought in the Rumford Falls Municipal Court, Oxford County, to recover damages for breach of a contract to purchase a farm.

On exceptions by defendant. Special action of assumpsit brought by the plaintiff in the Superior Court, Cumberland County, to recover for breach of a special contract to build a house for the defendant, according to the terms of the contract as set out in the plaintiff’s writ. Plea, the general issue. Verdict for plaintiff for $40. The defendant excepted to certain rulings during the trial. The case is stated in the opinion.

On report. Defendants defaulted. Five actions at law brought by the several plaintiffs against the same defendants, on accounts annexed, to enforce alleged liens against the building and land of one J. Palmer Merrill, under the provisions of Revised Statutes, chapter 93, section 29. The several cases were reported to the Law Court for determination, on admissions and evidence taken out. at the hearing in the first two above entitled actions.

In Equity. In equity. On exceptions by defendants. Bill in equity brought by the plaintiffs against George E. Chase, Robert C. Williston, George W. Smith and the Bangor Jewelry and Optical Company, a corporation, in which said company the plaintiffs and the said Chase, Williston and Smith are stockholders, praying for injunctions both temporary and permanent, restraining the said Williston from voting certain shares of the stock of the corporation held by him, or otherwise…

On exceptions by defendant to taxation of costs. Action of assumpsit brought in the Superior Court, Cumberland County. At the seventeenth term after the entry of the action, judgment was entered for the defendant by agreement.

On agreed statement of facts. Action of debt upon a probate bond, brought in the name of the Judge of Probate, and reported to the Law Court on an agreed statement of facts. The case is stated in the opinion.

On exceptions by plaintiff. Action brought in the Superior Court, Cumberland County, to recover damages for an alleged breach of the following contract : We, the undersigned, hereby, contract and agree with one another, as follows: That Mr. H. G. Fuller is to devote his full business time and energy to the interests of Harry L. Smith, as they are connected with the Aetna Life Insurance Co., and as may be required of him, for the term of one year.

On exceptions by defendant. Action on the case under Revised Statutes, chapter 2G, section 4, to recover double the amount certified by fence viewei’s as the value of a partition fence built, by the plaintiff, and of their fees. Plea, the general issue with brief statement alleging ten special matters of defense.

On agreed statement of facts. ’ Action of assumpsit to recover for pauper supplies furnished by the plaintiff town to one Flossie Miller, a minor, whose pauper settlement was alleged to be in the defendant town. Plea, the genera] issue.

On exceptions by defendant. The defendant was indicted at the October term, 1909, of the Supreme Judicial Court, Oxford County, for maintaining a liquor nuisance. Verdict, guilty. The defendant excepted to several rulings during the trial. The case is stated in the opinion.

On report. Action of trespass quare clausum to recover damages for an alleged breaking and entering the plaintiffs’ close on Elm Street in Biddeford.

In Equity. In equity. On report. Bill in equity brought against the defendant corporation by its treasurer, under Revised Statutes, chapter 47, sections 80 and 81, praying for a dissolution of the corporation, and the appointment of trustees and receivers.

On exceptions and 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 $5000. The defendant excepted to several rulings during the trial and also filed a general motion for a new trial. The case is stated in the opinion.

In Equity. In equity. On report. Bill in equity asking that the defendants be enjoined by both temporary and permanent injunctions from cutting and removing ice from the Androscoggin River opposite the shore of their property situated on the east side of the river above the Maine Central Railroad bridge in Lewiston. A writ of temporary injunction was issued as prayed for. The defendants filed a joint and several answer, and the plaintiffs filed the usual replication.

On exceptions by plaintiff. Action of assumpsit by the plaintiff to recover the sum of $2000 for services as Superintendent of Schools in Lewiston. Plea, the general issue. At the conclusion of the evidence, the presiding Justice ordered a verdict for the plaintiff for $40 and a verdict for that sum was returned. The plaintiff excepted to the order.

On exceptions and motion by defendant. Action on the case to recover damages for deceit in the sale of a farm. Plea, the general issue. Verdict for plaintiff for $750. Defendant excepted to certain rulings and also filed a general motion for a new trial. The case as stated by the bill of exceptions, is as follows : This case is an action of deceit by vendee in the sale of a farm against vendor in which a verdict was rendered for the plaintiff.

In Equity. In equity. On report. Bill in equity brought by Frederick O. Conant, Alpheus G. Rogers, and the Great Pond Club, a corporation organized and existing under the laws of Maine, against Edward D. Jordan and ten others, wherein in substance the plaintiffs claimed to be the owners of a certain tract of laud situate in the town of Cape Elizabeth, together with certain waters thereon, all containing two hundred and fifty acres more or less, known as the Great Pond…

On exceptions by plaintiffs. Appeal from decree of Judge of Probate, Waldo County, appointing an administrator on the estate of Henry H. Cunningham. See' Mather et al. v. Cunningham et al., 105 Maine, 326, and Mather et al. v. Cunningham et al., 106 Maine, 115. The case is stated in the opinion.

On report. Appeal from the decree of distribution of the personal estate of Edward P. Page, deceased intestate, made by the Judge of Probate, Somerset County, wherein he decreed that Lizzie M. Page, widow of said deceased, was entitled to ”1-3 of personal property free from payment of debts of intestate, $21,308.67” while the balance was decreed in equal shares to Blin W. Page and Edna Page Smith, the two children of the deceased.

On agreed statement of facts. The defendant was arrested on -a warrant duly issued by the Bar Harbor Municipal Court for an alleged violation of a special act of the Legislature approved March 12, 1909, entitled An Act to prohibit the use of automobiles in the towns of Eden, Mount Desert, Tremont and Southwest Harbor, on the island of Mount Desert.” The defendant pleaded not guilty but on trial was found guilty and sentenced to pay a fine of $20 and costs and thereupon the…

On agreed statement of facts. The defendant was arrested on a warrant issued by the Municipal Court of Auburn, for an alleged violation of an ordinance of the City of Auburn, relating to the sale of foreign grown fruit from any vehicle in any public street or place” in said City. The defendant pleaded not guilty but upon hearing was found guilty and fined $10 and costs. The defendant then appealed to the Supreme Judicial Court.

On report. Plaintiffs nonsuit. Action of debt brought to enforce the double liability of the defendant who was a non-resident stockholder in the State Bank of Monte Vista in the State of Colorado. Plea, the general issue.

On exceptions by defendant Randell. Petition for leave to enter an appeal from the decree of the Judge of Probate, Lincoln County, made May 25, 1909, admitting to probate an instrument purporting to be the last will and testament of Adelia R. Sproul. The case is stated in the opinion.

On report. Action of covenant broken on a contract under seak Plea, the general issue with a brief statement alleging that the contract was ultra vires. At the conclusion of the evidence the case was reported to the Law Court for determination, that court upon such evidence as was legally admissible to render such judgment as the law and equity require.” The case is stated in the opinion.

<p> Witnesses. Compensation. Experts. Statute 1907, chapter 66. Revised Statutes, chapter 117, section 13. </p> <p>Where physicians were employed by the plaintiff in a personal injury case to examine her physical condition to enable them to qualify as medical expert witnesses at the trial, and made the examination and appeared voluntarily, and testified without any agreement as to their compensation, they were entitled to reasonable compensation for their services above the legal fee due to the ordinary witness prescribed by Revised Statutes, chapter 117, section 13, as amended by Public Laws, 1907, chapter G&.</p> <p>Where the decision of a case upon the merits is clearly correct, it will not be ■ disturbed on review because of abstract errors of law not affecting the truth of the result.</p>

On motion and exceptions by two of the defendants. Action of debt on a probate bond given by the defendant Bennett with the other defendants, Albert R. Leavitt and Silas M. Boothby, as sureties thereon. Verdict for plaintiff for $2500. The defendants Leavitt and Boothby filed a general motion for a new trial and also excepted to certain rulings. The case is stated in the opinion.

On exceptions by plaintiff. Trespass quare clausum fregit brought against the defendant for removing a pair of bars erected by the plaintiff across a certain narrow strip of land alleged to belong to the plaintiff.

On motion by defendant. Real action to foreclose a mortgage. Plea, the general issue. Heard by the presiding Justice, without a jury, who rendered judgment for the plaintiff as of mortgage and fixed the sum to be paid in order to redeem at $175. The defendant filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by plaintiff. The bill of exceptions states the case as follows: This was an action of assumpsit upon an account annexed for the recovery of a claim against the estate of one James R. Farnsworth deceased. The declaration and account annexed are made a part of these exceptions. The defendant seasonably demurred to the declaration, demurrer was sustained, and plaintiff had leave to amend. The amendment is made a part of these exceptions.

In Equity. In equity. On appeal by defendants. Bill in equity brought by the plaintiff against Francis Palmer of Trenton in Mercer County, State of New Jersey, Chase Palmer of Washington District of Columbia, and Chase Eastman of Portland in the County of Cumberland and State of Maine as executors of the last will and testament of Elizabeth C. Palmer, late of Kennebunkport, in said County of York, deceased, and said Francis Palmer as trustee under the last will and testament…

On agreed statement of facts. Action upon a fire insurance policy. Reported to the Law Court on an agreed statement of facts. The case is stated in the opinion.

In Equity. In equity. On appeal by defendant. Sustained. Bill in equity praying that it be decreed that certain real estate purchased and held by the defendant, was held in trust for the plaintiff and that the defendant be ordered to convey the same to the plaintiff upon payment of the amount due thereon. An answer and a replication were filed. Heard before the Justice of the first instance on bill, answer, replication and proof, who filed a decree in favor of the plaintiff.

On report. Petition for review of an action of assumpsit brought by Morgan & Company, a corporation, against the petitioner and in which he was defaulted and judgment was rendered against him for $184.85. The defendant filed an answer. At the conclusion of the evidence the case was reported to the Law Court for determination. The case is stated in the opinion. Note.

On agreed statement of facts. Trover to recover the value of certain personal property alleged to have been converted by the defendant.

On report. Action on the case to recover damages caused by the alleged wrongful act of the defendants in erecting a fence and obstructing a certain right of way and easement, claimed to have been gained by the plaintiffs by prescription in common with the inhabitants and public at large of the city of Portland, by open, adverse and uninterrupted use of' the same under claim of right for more than twenty-years.” Plea, the general issue.

On agreed statement of facts. Action of debt brought against the County of Penobscot, in the name of the Treasurer of the State of Maine, for the benefit of the State, under the provisions of section 5 of chapter 92 of the Public Laws of 1905 as amended by section 1 of chapter 255 of the Public Laws of 1909, to recover the sum of $7,171.78 paid by the State Treasurer for the services and expenses of the deputy enforcement commissioners, during the months August, September,…

<p> Easements. Ways of Necessity. Estoppel,. Estopped by Deed. </p> <p>Tlie basis of a right of way of necessity is the presumption of a grant, arising from the circumstances of the case, which is a presumption of fact, and necessity does not,,of itself, create a right of way, but is evidence of the grantor’s intent to convey one, which intent depends upon the terms of the deed and the facts in the case.</p> <p>Where a deed of a tract of land not itself abutting on a highway expressly bounded the premises conveyed on the north by land owned by the grantees, which land on the north extended to a highway, so that the grantees would have access thereto from their newly purchased lot over their own land, and the necessity of passing over the grantor’s land could not arise, the parties to the deed will not be deemed to have intended that the grantees should have a right of way of necessity by implication over the remaining tract belonging to the grantor, which lay between the tracts conveyed and the highway to the west.</p> <p>The grantees having accepted the deed to the tract reciting their ownership of the land abutting it on the north, and having executed a mortgage on the premises to the grantor, containing a like recital, they are estopped to deny the truth of such recital, so as to claim a right of way of necessity over the grantor’s land, it being precise, unambiguous, and relating to a material fact, especially where the title to the grantor’s lot has come to an innocent purchaser, who by examination of the record could not have notice of an implied grant of a right of way over his land, but relying on the recitals could have reached only the opposite conclusion.</p>

<p>On motion and exceptions by defendant.</p> <p>Action of assumpsit brought in the Superior Court, Cumberland County, to recover the sum of $148.00 for injuries alleged to have been sustained by the plaintiffs, by reason of the defendant’s failure to transport, in a proper manner, safely and securely, one bay mare, which the plaintiffs delivered to the defendant at Boothbay Harbor, for transportation over one of the defendant’s steamers to Portland. Plea, the general issue with brief statement alleging that-at the time of the delivery of the horses by the plaintiffs to the defendant to be carried on its steamer to Portland, the plaintiffs "entered into a special contract with the defendant respecting the terms under which the carriage of said horses was to be performed,” etc.</p> <p>Verdict for plaintiffs for $168.63. The defendant filed a general motion for a new trial and also excepted to ■ several rulings made during the trial. Motion not considered.</p> <p>The case is stated in the opinion.</p>

<p> Contráete. Right of Action. Insurance. Mutual Vire Insurance. Premium Note and Policy. By-Lo.ws. Cancellation of Contract. Statute, 1868, chapter 194; 1895, chapter IS. Revised Statutes, chapter 49; sections 27, SO. </p> <p>One party to a bilateral contract cannot recover thereon against the other without proof that his mutual.undertakings, which form a part of the contract, have been performed or waived.</p> <p>The premium note given on a mutual fire insurance policy, though neither copied in full into the policy, nor written upon its margin, nor across its face, nor attached to it by slip or rider according to the statute relating to the form and use of the standard policy, forms a part of the contract of insurance under Revised Statutes, chapter 49, section 30, expressly providing that the policy and deposit note “are one contract,” which statute, at least since the Revision of 1903, is in force equally with that relating to the form and use of the standard policy, being enacted by such Revision equally with the other provisions of chapter 49, relating to the standard policy.</p> <p>That a mutual fire insurance company had a right of action against insured for an assessment would not relieve the insured of the necessity of performance of his part of the contract before he could sue thereon. A right of action to enforce performance is not an equivalent of performance.</p> <p>A provision in the by-laws of a mutual fire insurance company, providing that if any member shall neglect or refuse for 60 days after notice of an assessment to pay it, he shall forfeit all claims upon the company for any loss thereafter occurring, is self-executing, and the cancellation of the contract by the company is unnecessary.</p> <p>Though the by-laws of a mutual fire insurance company were not copied into the policy, nor written on its margin, nor across its face, nor upon a separate slip or rider attached thereto, yet where they were expressly referred to in the deposit note as an essential part of it, and the note was not only mentioned in the policy, but was a part of the contract of insurance by virtue of the express provisions of Revised Statutes, chapter 49, section 30, they formed a part of the contract of insurance, especially in so far as they related to assessment, and the effect of nonpayment thereof.</p>

<p>On exceptions by plaintiff.</p> <p>Action of assumpsit brought to recover the sum of $167 as sick benefits under a policy of insurance issued to the plaintiff by the defendant. Plea, the general issue with brief statement as follows: "That by the terms of the contract in suit, if any of the statements, representations or answers made in the application for said contract were not true, full and complete, all rights to benefits thereunder were null and void ; and the defendant says that the answers to the first, second, third, fourth, eighth and ninth questions contained in the application for said contract were not true, full and complete ;</p> <p>"That further, by the terms of the contract in suit, attempts by fraud or concealment to obtain benefits rendered tlie contract or policy null and void; and the defendant says that the answer of said plaintiff to question 14, in the proof of claim filed by bim, was untrue, and was an attempt by fraud and concealment to obtain benefits to which he was not entitled.”</p> <p>At the close of the evidence the presiding Justice ordered a verdict for the defendant and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions by defendant.</p> <p>Action on the case to recover damages for personal injuries suffered by the plaintiff through the use of an X-ray machine prescribed by the defendant. Plea, the general issue. Verdict for plaintiff for S3,500. The defendant filed a general motion for a new trial and also excepted to certain rulings and refusals to give certain requested instructions.</p> <p>The case is slated in the opinion.</p>

<p> United Slates. Right to Sue. Property of the United States. Adverse Possession. Betterments. Statute, 1821, chapter 47 ; 1885, chapter 368. Revised Statutes, 1841, chapter 147, section 12; 1857, chapter 105, section 11; 1883, chapter 105,- section 11; 1903, chapter 96, section 1; chapter 106, section 20. </p> <p>The United States acts in a dual capacity, as a sovereign and as a body politic or corporate; and while in its sovereign capacity it cannot be sued, following the common-law doctrine that suit will not lie against the crown, yet in its corporate capacity as a body politic it can contract and hold property, real and personal, and as an attribute to such right, can sue to preserve and protect its property, and can avail itself of the same remedies and in the same tribunals that other owners can, and hence may sue in forcible entry and detainer in a State court to obtain possession of its property.</p> <p>No title by adverse possession can be acquired except by statute against the sovereign, be it crown, national government or State.</p> <p>j*t claim l'or betterments can be set up only in real actions, Revised Statutes, chapter 106, section 20, relating to betterments, applying only to such actions, and cannot be recovered in forcible entry and detainer, since chapter 96, section 1, provides that such action maybe maintained against a disseizor who has not acquired any claim by possession or improvement.</p> <p>As a claim for betterments can arise only out of an adverse possession of such a character that it could, by lapse of time, mature into a title, no valid claim therefor can be set up against the United States.</p>

<p>On report.</p> <p>Two actions of assumpsit against the principal defendant and the Guilford Manufacturing Company as trustee and also alleging that the plaintiffs had a lien on certain manufactured lumber and seeking to enforce such lien. The Guilford Manufacturing Company appeared as owner of the lumber, pleaded the general issue in each action together with a brief statement alleging that it was the owner of the lumber and denying that "there was or is any lien on said lumber,” as set out in the writs. At the conclusion of the evidence the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

<p> Taxation. Personal Property. “Landing Place." '•'■Landing." Statute, 1845, chapter, 159, section 10; 1866-68, chapter 105; 1869, chapter 53; 1909, chapter 4- Revised Statutes, 1883, chapter 6, section 14; 1903, chapter 9, sections 1, 12, IS, %2. </p> <p>The plaintiffs, copartners, having paid, under protest, a tax assessed to them by the assessors of the defendant town, upon lumber, bring this suit to recover it back. Logs had been hauled by the plaintiffs from other towns into Minot and had there been sawed. The lumber was then “ stuck up ” in a field in Minot for seasoning. It was intended for sale and it was intended to remain there until sold. Itemaining there on the ensuing April 1, it was assessed. None of the plaintiffs resided in Minot.</p> <p>To sustain the assessment, under Itevised Statutes, chapter 9, section 22, it must appear:</p> <p>1. That the plaintiffs were, at the time of the assessment, carrying on business in the town of Minot, and that the property assessed was employed in that business, or</p> <p>2. If their place of business was in some other town than Minot, that the property so employed was placed, deposited or situated in Minot; also, in either case,</p> <p>3. That the property assessed was employed in trade, in the erection of buildings or vessels, or in the mechanic arts ; and</p> <p>4. In case the place of business was in some other town than that in which the pi'operty was deposited, that the plaintiffs, their servants, sub-contractors or agents, so employing the property, occupied, for the purpose of the employment, a store, shop, mill, wharf, landing place, or shipyard in Minot.</p> <p>5. The case fails to show that the plaintiffs, at the time of the assessment, were carrying on business in Minot, within the meaning of the statute, or if the property assessed was employed in trade in Minot, that the plaintiffs occupied, for the purposes of such employment, a store, shop, mill, wharf, landing place, or shipyard in Minot.</p> <p>6. A field, where lumber is “ stuck up ” for seasoning, there to remain until sold, and then to be hauled to a railroad for transportation, is not a “landing place” within the meaning of the statute.</p>

<p>On report.</p> <p>Action on the case to recover damages for an alleged obstruction of a right of way. Plea, the general issue. At the conclusion of the evidence the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>Two actions on the case against Maine Eye and Ear Infirmary of Portland, a corporation, to recover damages for the alleged negligence of the servants of the defendant in allowing the plaintiff’s wife, Mary J. Jensen, while an inmate of the defendant institution, to evade the supervision of her attendants and fall through a window to the sidewalk, five stories below, whereby she was fatally injured and died within a few hours after the accident. One of said actions was brought by the plaintiff' in his capacity as administrator of the estate of his said wife, and the other was brought by him in his own behalf as husband of the said decedent. Plea, in each action, the general issue, with a brief statement, in each action, as follows:</p> <p>"J. That defendant is not a corporation for the treatment of sick and injured persons for hire, as the plaintiff' in his writ has alleged against it.</p> <p>"2. That defendant is a corporation organized and existing solely as a public charity, its organization having been ratified, confirmed and declared to be legal and valid as such by Chapter 519 of the Private and Special Laws of the State of Maine, approved March 25, 1897.”</p> <p>The actions were tried together and at the conclusion of the evidence the presiding Justice directed a verdict for the defendant in each action, and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions by defendant.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. Plea, the general issue. Verdict for plaintiff for Si941.66. Defendant filed a general motion for a new trial and also excepted to several rulings made by the presiding Justice.</p>

On report. Assumpsit brought by the plaintiff as beneficiary of Henry A. Wright to recover the sum of $824.50 as sick benefits under a policy of health and accident insurance issued to the said Henry A. Wright by the defendant company.

<p> Nuisance■ Abatement. Injunction, liemedy at Law. </p> <p>1. When what, is claimed to be a nuisance already exists, the fact that it is a nuisance must be established by a suit at common law before a court of equity will interfere to abate, unless for some sufficient reason a remedy at law will not be adequate.</p> <p>2. When, as in this case, under a bill in equity praying that the defendants be enjoined from entering on, or attempting to take any of the plaintiff’s land, and from erecting or maintaining on the land certain structures complained of, it appears that at the time the bill was brought the defendants had already entered upon the land, and a large part, if not all, of the offending structures had already been erected, and it further appears that the plaintiff' had allowed the work to go on for many weeks without objection, that a temporary injunction was not asked for, and that, at all events, the work was all completed before a hearing on the bill, the bill will be dismissed, and the plaintiff remitted to a remedy at law.</p>

On motions for new trials by defendant. Two actions on the case brought to recover damages caused by a collision between a team owned by the plaintiff Philbrick and driven by the plaintiff Cass, and a car of the defendant, as Cass was attempting to drive across the tracks of the defendant in the town of York to reach a private way leading to Dover Bluff. Plea, the general issue in each case. The two actions were tried together.

On exceptions by defendant Alpren. Scire facias on a recognizance in criminal prosecution brought by the State against the defendant Reed as principal and the other defendants as sureties. The case is stated in the opinion.

<p>On exceptions by plaintiff.</p> <p>Three actions of assumpsit brought at different times to recover installments as they became due, on an installment note given to the plaintiff by the defendant, and which said note is of the following tenor:</p> <p>"$500.— "Lewiston, Maine, June 5, 1908.</p> <p>"For Value Received, I promise to pay to the order of F. E. Tainter, Five Hundred Dollars as follows, Twenty-Five Dollars cash, balance fifteen dollars each month until paid in full, and interest at six per cent.</p> <p>"The above note is given in consideration for Sterling Player Piano & bench No. 51353 valued at Five Hundred Dollars, and is payable at the office of F. E. Tainter, Lewiston, Me., and said piano & bench are to remain the property of F. E. Tainter until the above note is paid in full, and are not to be sold, underlet, misused, or removed without the written consent of said F. E. Tainter; and I hereby promise and agree that all payments made shall be forfeited if not paid according to the above agreement.</p> <p>"Witness, . "Ernest Wentworth, M. D.”</p> <p>"A. W. Drew.</p> <p>Plea, the general issue in each case with a brief statement alleging in substance an express warranty of the quality of the piano and a breach of the warranty, also a seasonable rescission of the contract by the defendant also that the defendant had paid the plaintiff on the note the sum of $100 and asking "that said sum of one hundred dollars be considered as money paid to the use of said plaintiff, and that said defendant may be allowed to set-off the sum of one hundred dollars, so paid to said plaintiff, and that he may have judgment thereof, and for his costs.”</p> <p>The three actions were tried together. In the first action the verdict was for the defendant on the claim in set-off for $104.93. In each of the other actions the verdict was for the defendant.</p> <p>The bill of exceptions further states the case as follows: "The defendant introduced evidence in support of the various allegations in his brief statement. ‘ Plaintiff introduced evidence tending to show that the Player Piano in question was of good quality and was all it was represented to be by the plaintiff or any of his agents. The evidence shows that the Player Piano was sold to the defendant by one A. W. Drew, the plaintiff’s agent and salesman, who drew the Holmes note and witnessed the defendant’s signature to the same.</p> <p>"The plaintiff’s counsel seasonably objected to the introduction of the following testimony given by the defendant, and which was admitted by the presiding Justice, subject to objection.</p> <p>"Direct examination by Mr. Webber, attorney for the defendant.</p> <p>"Q. When was the next conversation you had with him, i. e. Drew, in relation to it?</p> <p>"A. The next conversation was at the time of the signing of the note.</p> <p>"Q. Now what did he (Drew) say to you in regard to it at that time ?</p> <p>"A. He said "If this piano isn’t satisfactory, return it.”</p> <p>"Mr. Crockett: Just a moment. I object to that testimony. This is a suit on a written contract, and here is an attempt to introduce oral evidence of a contract inconsistent in its terms with the written contract, and under the decisions of our court it isn’t admissible.</p> <p>"The Court: I will admit it subject to objection.”</p> <p>The plaintiff then filed exceptions to the admission of the aforesaid evidence.</p> <p>The case is stated in the opinion.</p>

On report. Assumpsit on an account annexed, brought by the plaintiff as assignee of Abbie M. Blethen, the wife of the defendant.

On report. Action of trespass against a constable for taking and carrying away and selling a motor boat under an attachment in a suit against one Percy Turner who then had possession of the boat.

<p> Dedication. Recording Plots. Parks. Construction. </p> <p>In the absence of facts showing a contrary intention, the plotting of land, with parcels designated as parks, recording of the plan, and sale of lots with reference thereto ordinarily constitute a dedication of such parcels. Dedication is the intentional appropriation of land by the owner to some proper public use, reserving to himself no rights therein inconsistent with the free exercise and enjoyment of such use.</p> <p>A lease of lots belonging to an association owning a large tract of plotted land, subject to the association’s right to “ use, lay out, and lease all lands not already laid out or designated, as streets or avenues,” negatives an intention to dedicate, as a park, land designated on the plot as a park; and permitted the association, as against one claiming under the lease, to lease the park for private purposes, and the holder of the last mentioned lease to make certain improvements therein.</p> <p>Construction of a reservation in a lease of land as permitting the lessor to lease-, for private purposes, neighboring land plotted as a park, is aided by the fact that for several years a cottage was maintained on the land under a lease without objection by the lessee under the iirst mentioned lease.</p>

<p>On report.</p> <p>Real action to recover a certain farm in St. Albans occupied by the defendant. Plea, the general issue with brief statement as follows : "And for brief statement of special matter of defence to be used under the general issue pleaded, and filed in said court with said plea, the 5th day of October, 1909, being the 13th day of said term, the Court in the exercise of its discretion, permitting the same to be filed at said time, the said defendant further says that he was not at the date of the writ in this case, tenant of the freehold, in the premises described in said writ, but was at the date of said writ and long before and ever since, in possession of the whole of the premises described in said writ, under George A. Nelson, who he avers, was at the date of said writ, and long before and ever since, the owner in fee of the same premises.” At the conclusion of the testimony the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

<p>Waters and Watercourses. Waterworks. Domestic Use. Regulations. Private and Special Laws, 1888, chapter L68 ; 1007, chapter 187.</p> <p>Private and Special Laws, 1888, chapter 168, chartering a water company to supply water for “domestic” purposes, requires the company to furnish water to operate an elevator in a summer hotel; such use not being a development of power for commercial or industrial purposes.</p> <p>“Domestic” derived from “domus,” a house, means “belonging to the house or household, concerning or relating to the house or family.” The term has a widely varying meaning, though primarily it relates to the house or home. Its significance must be determined with reference to the subject matter and the relation in which it appears.</p> <p>A water company must supply water to a consumer for a purpose contemplated by the company’s charter at reasonable rates, and subject to reasonable rules and regulations.</p> <p>A water company can require a consumer to so apply water as not to menace the safety, stability, or usefulness of the system, nor injuriously affect other consumers.</p> <p>Evidence held to show that the method of a consumer’s use of water in operating a passenger elevator injuriously affected the system and other consumers, warranting a discontinuance of the service on the consumer refusing to change the method.</p>

<p>On report.</p> <p>At the May term, 1908, Supreme Judicial Court, York County, the grand jury returned an indictment against the plaintiff of the following tenor : "The Grand Jurors for said State upon their oath present that Joseph Gáleo of Wells in the County of York, laborer, on the eighteenth day of April, in the year of our Lord one thousand nine hundred and eight, at York, in said County of York, with force and arms did wilfully, maliciously and feloniously place upon the track of the Atlantic Shore Line Railway Railroad, seven large stones, to the obstruction of said railroad track, whereby the lives of many and sundry persons traveling on said railroad, whose names are to the jurors unknown, were then and there endangered, against the peace of said State, and contrary to the form of the statute in such case made and provided.” To this indictment the plaintiff pleaded guilty, and he was sentenced to imprisonment in state prison for the term of eleven years. The State claimed the necessary authority for this sentence under Revised Statutes, chapter 119, section 5, which reads as follows : "Sec. 5. Whoever wilfully and maliciously displaces a switch or rail, disturbs, injures or destroys any part of an engine, car, signal, track or bridge of any railroad, or places an obstruction thereon with intent that any person or property passing on the same should be thereby injured, and human life is thereby destroyed, is guilty of murder and shall be punished accordingly. If human life is thereby endangered and not destroyed, or if property is injured, he shall be punished by imprisonment for not less than ten years.”</p> <p>Revised Statutes, chapter 104, sections 11 and 12, provide as follows :</p> <p>"Sec. 11. No writ of error upon a judgment for an offense punishable by imprisonment for life shall issue, unless allowed by one of the justices of the supreme judicial court, after notice to the attorney general or other attorney for the state.</p> <p>"Sec. 12. Writs of error shall issue of course upon all other judgments in criminal cases, but not to stay or delay execution of sentence or judgment, unless allowed by a justice of the supreme judicial court, with an express order to stay all proceedings thereon ; and in that case the justice may make such order as the case requires, for the custody of the plaintiff in error or for letting him to bail; or, upon a writ of habeas corpus, if entitled thereto, he may procure his enlargement by giving bail.”</p> <p>July 80, 1910, the plaintiff brought a writ of error to reverse or annul the aforesaid sentence, and which said writ is in form and tenor as follows:</p> <p>"State of Maine.</p> <p>(l. s.)</p> <p>York, ss.</p> <p>To the Sheriffs of Our Respective Counties or Either of Their Deputies,</p> <p>Greeting :</p> <p>We command you that you make known unto the State of Maine, that it may appear if it see cause before our Supreme Judicial Court to be holden at Alfred within and for our said County of York on the third Tuesday of September, 1910, to answer to Joseph Gáleo of Wells in said county in a plea of error, wherein the said Gáleo alleges that in the indictment, proceeding and judgment had before the Supreme Judicial Court within and for said county at the term thereof held at Alfred on the first Tuesday of May, 1908, wherein the State of Maine proceeded by indictment against said Joseph Gáleo, and in which judgment was rendered against said Gáleo and in behalf of said State as follows, to wit: Said Gáleo was adjudged guilty upon his plea of guilty, and was considered and ordered by the court that said Gáleo be punished by imprisonment for the term of eleven years at hard labor in the state prison ; there occurred the errors hereinafter specified by which the present plaintiff was injured and for which he therefore seeks that said judgment and sentence may be reversed, recalled or corrected, as law and justice may require, that is to say the following errors :</p> <p>First: That if said indictment is founded upon the provisions of section twenty-eight of chapter fifty-three of the Revised Statutes the sentence of said court is for a longer term of imprisonment than is authorized by said statute.</p> <p>Second : That if said indictment is founded upon the provisions of section five of chapter one hundred and nineteen of the Revised Statutes,</p> <p>(a) It contains no allegation of an intent on the part of said Joseph Gáleo that any person or property passing on the Atlantic Shore Line Railway Railroad should be injured;</p> <p>(b) It contains no allegation of any specific intent on the part of said Joseph Gáleo whatsoever;</p> <p>(c) That said Atlantic Shore Line Railway Railroad is not therein alleged to be a railroad and is not in fact a railroad within the meaning of that term as used in said statute, but is a street railroad, to which said statute is not applicable.</p> <p>And hereof fail not. And have you there this writ, with your doings therein.</p> <p>Witness, Lucilkjs A. Emery, Chief Justice of our said court, at Augusta, this thirtieth day of July, in the year of our Lord one thousand nine hundred and ten.</p> <p>C. W. Jones, Clerk.”</p> <p>On this writ the following order was made:</p> <p>"State of Maine.</p> <p>Sup. Jud. Court in Vacation,</p> <p>August 4, 1910.</p> <p>Upon the within writ it is hereby ordered that notice thereof be given to the State of Maine by giving in hand to the Attorney General of said State an attested copy of said writ and of this order thereon at least thirty days prior to the third Tuesday of September 1910, in order that said state may appear at the term of the Supreme Judicial Court then to be held at Alfred in the County of York and answer unto said process if it see fit.</p> <p>Dated this 4th day of August, 1910.</p> <p>Leslie C. Cornish,</p> <p>Justice S. J. C.”</p> <p>Service of the writ was made on the Attorney General, in accordance with this order, by a deputy sheriff.</p> <p>After the entry of the writ, the following pleadings were filed by the State:</p> <p>"State of Maine.</p> <p>York, ss. Supreme Judicial Court.</p> <p>September Term, 1910.</p> <p>Joseph Gáleo, Plaintiff in Error, vs. State of Maine.</p> <p>And hereupon, afterwards, to wit, on the first day of said term the said State of Maine freely comes here into court and says: that there is no error either in the record and* proceedings aforesaid or in giving the judgment aforesaid ; and the said state prays that this Honorable Court may proceed to examine, as well the record and proceedings aforesaid, as the matters aforesaid above assigned for error, and that the judgment aforesaid, in form aforesaid given, may in all things be affirmed.</p> <p>State of Maine.</p> <p>By</p> <p>Warren C. Philbrooic.</p> <p>Its Attorney General.”</p> <p>When the cause came on for hearing an agreed statement of facts was filed and the case was reported to the Law Court for determination. Among other things, it was "agreed that the Atlantic Shore Line Railway mentioned in the indictment was on the eighteenth day of April A. D. L908, operating by electricity as a motive power and not by steam as a motive power, and that said Railway Company was incorporated under the provisions of Chapter 53 of the Revised Statutes.”</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>Action of assumpsit brought by the plaintiff against the defendant Charles W. Mott, to recover for her services "at cooking for said defendant and persons employed by him and engaged at cutting and hauling” certain logs and lumber. The plaintiff claimed a lien on the logs and lumber, the same were attached on the writ, notice thereof was given to the log owners and they duly appeared in answer thereto.</p> <p>When the action came on for trial, the plaintiff discontinued as to the defendant Mott and proposed to proceed only against the logs and lumber attached. Thereupon it appearing that the plaintiff and the defendant Mott, at the time the services sued for were rendered, were husband and wife and were such at the time of the hearing, the presiding Justice ordered a nonsuit and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by defendant.</p> <p>The defendant appealed from a taxation of costs by the clerk of courts and upon hearing the presiding Justice affirmed the "clerk’s last taxation as a matter of law,” allowing costs to the plaintiff in the sum of $86.33. To this ruling the defendant excepted.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions both by appellant and by appellee.</p> <p>Appeal from the decree of the Judge of Probate, Cumberland County, dismissing the petition of the appellant, brought- under the provisions of Revised Statutes, chapter 69, section 8, for the allowance of his disbursements and counsel fees in defending Mary M. Leighton in proceedings instituted under the provisions of Revised Statutes, chapter 69, section 4, for the appointment of a guardian to her.</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions by defendant.</p> <p>Action on the case to recover damages for the loss of the plaintiff’s ice-houses and other property by a fire alleged to have been caused by the defendant’s negligence. Plea, the general issue. Verdict for plaintiff for $7000. Defendant filed a general motion for a new trial also took exceptions to several rulings. Exceptions not considered.</p> <p>The case is stated in the opinion.</p>

In Equity. In equity. On appeal by plaintiffs. Bill in equity brought to set aside a conveyance of real estate upon the ground of fraud and undue influence practiced upon the grantor, Lewis D. Clark, who died May 19, 1909, intestate, leaving a widow and seven children. Answers and replications were duly filed, a hearing had, at the conclusion of which a decree was filed dismissing the bill, and the plaintiffs appealed. The pith of the case is stated in the opinion.

<p> Bills and Notes. Renewal. Payment. Contracts. Construction. Pleading. Amendment. </p> <p>A provision endorsed on a corporate note that it would be reuewed unless stock was sold to pay it is part of the contract, and, as construed by the parties, operated to renew the note for a year on the maker’s failure to sell such stock, execution of a new note not being essential to a renewal.</p> <p>A memorandum endorsed on a contract does not affect it if collateral to and independent of the contract, but when a unilateral contract fails to express the agreement between the parties, a memorandum made upon the same paper and delivered as a part of the contract constitutes as much a part of it as if written in the body.</p> <p>Different instruments should be construed together as parts of the same contract where it is necessary to effectuate the agreement and the parties’ intention.</p> <p>A declaration on a note which fails to plead a provision endorsed on the note can be amended on terms so as to set out a new count pleading the entire contract.</p> <p>The maker of a note is entitled to a credit for the value of collateral converted by the payee to his own use.</p>