Volume 108 — Maine Reports

<p> Limitation of Actions. Bills and Notes. Indorsers. Corporations. Directors, listoppel. Revised Statutes, chapter 83, sections 100, 103. </p> <p>Under Revised Statutes, chapter 83, section 103, an indorsement by the payee of a payment on a note is insufficient proof of payment to take the ease out of the statute of limitations.</p> <p>The directors of a corporation sustain a fiduciary relation to the stockholders.</p> <p>Where a trustee of a corporation in his individual capacity signed his name on the back of a note at its inception and which note was payable to the order of the corporation, held that he became an original promissor with the other makers.</p> <p>Where a trustee of a corporation had indorsed at its inception a note payable to the order of the corporation and he negligently failed to attempt collection of the note before the same was barred by the statute of limitations, and the other officers of the corporation relied on his indorsement, held in a suit on the note by the corporation against the trustee that he was estopped to plead the statute of limitations.</p>

<p>On exceptions by defendant.</p> <p>Trespass quare clausum fregit alleging that the defendant broke and entered the plaintiff’s close in the town of Greene, and there trod down, trampled upon and spoiled the grass there growing, etc. Plea, the general issue with brief statement alleging "that he entered upon the land described in the plaintiff’s writ at the time alleged in said writ as the employee and agent of the Valley Cemetery Company, a duly organized corporation which company was then and there rightfully and legally in possession of said land by virtue of proceedings taken by it and the municipal officers of the town of Greene in compliance with the statutes of Maine, to enlarge its cemetery or burying ground within said town of Greene, and that it and said municipal officers had done all acts required by law prior to said alleged trespass to place said cemetery corporation in the rightful possession of said land, and the said defendant further alleges that the sum awarded as damages for the taking of said land, viz: four hundred dollars, was duly tendered to the plaintiff in gold but was by him refused, and said four hundred dollars was brought into court on the first day of the term to which the plaintiff's writ was returnable.”</p> <p>The case was heard by the presiding Justice without a jury, with the right of exceptions. The presiding Justice ruled that the defendant had not shown a justification for his entry, and rendered judgment for the plaintiff with damages assessed at $1.00. The defendant excepted.</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiffs. Assumpsit on account annexed for $342.47, and interest, for stumpage on school lots.” The writ also contained a count for money had and received, and also an omnibus count of the usual form. Plea, the general issue.

On motion and exceptions by defendant. Action of assumpsit for money had and received to recover the sum of $100,000 paid by the plaintiff to the defendant for an option to purchase certain coal and iron properties in the State of Tennessee, with interest on said sum from March 13, 1906, the date of said payment. Plea, the general issue. Tried to a jury at the October term, 1908, Supreme Judicial Court, Kennebec County. Verdict for plaintiff for $116,133.33.

<p>On an agreed statement of facts.</p> <p>Action of covenant broken and reported to the Law Court on an agreed statement of facts with the stipulation that the Law Court should render such judgment as the law and the material facts required.</p> <p>The case is stated in the opinion.</p>

<p> Trespass Quare Clausum. Presumptions. Deeds. Seizin. Evidence. </p> <p>1. To maintain an action of trespass quare clausum the plaintiff must show that he had either actual or constructive possession of the premises at the time of the alleged acts of trespass. If he claims under a quitclaim deed, he must show that his grantor had possession at the time of the execution of the deed, either actual or constructive, or that he himself has since entered and become possessed of the premises..</p> <p>2. When one has the legal title, in the absence of proof of actual adverse possession by someone else, the law implies that he has a constructive possession, sufficient to maintain the action of trespass quare clausum.</p> <p>3. A quitclaim deed, or a deed of “a right, title and interest ” in land, is not prima facie evidence of title.</p> <p>4. Possession alone is a sufficient title against a wrongdoer.</p> <p>5. The case shows sufficient evidence of possession to enable the plaintiff to maintain an action of trespass quare clausum against a wrongdoer.</p> <p>6. A warranty deed, or a deed of conveyance, acknowledged and recorded, itself raises a presumption that the grantor had sufficient seizin to enable him to convey, and also operates to vest the legal seizin in the grantee. It is prima facie evidence of title. And the same rule applies to a mortgage in the usual form.</p> <p>7. The presumption of seizin arising from a deed of conveyance is only a presumption, and may be rebutted by showing that the grantor had no title.</p> <p>8. When the defendant in trespass quare clausum justifies under a title originating in a mortgage deed, and the plaintiff in rebuttal shows that the mortgagor had a paper title, but one which was defective, and nothing else appears, the court, hearing the case on report, infer that the defective title was all the title which the mortgagor had.</p>

On an agreed statement of facts. Action of debt, brought by the inhabitants of the town of Eden against Flora Pineo to recover the sum of $591.60 the amount assessed against the defendant, as her proportion of the town, county and state taxes for the year 1909 upon her real estate, being particularly described on the books of allotment and assessment of said Eden as four-fifths of Rodick’s Island and buildings thereon. Plea, the general issue.

In equity. On appeal by defendant bank. Bill in equity brought by the plaintiff against the Eastern Trust and Banking Company of Bangor, and the trustees in Bankruptcy of the H. J. Willard Company, a corporation, to recover the sum of $640, which it alleged the defendant bank received as a deposit made for the purpose of securing the discharge of a mortgage on an automobile which was sold in Bangor by said H. J. Willard Company acting as agent for the plaintiff, and praying…

<p>On motion by defendant Carrie Church.</p> <p>Action of assumpsit against Charles Church and Carrie Church, his wife, on an account annexed to recover the price of a cream separator, and for which said cream separator the defendant Charles Church had previously given to the plaintiffs his negotiable promissory note of the kind and form known as a Holmes’ note. The bankruptcy of the defendant Charles Church was suggested on the docket, and the plaintiffs discontinued as to him by reason of his discharge in bankruptcy. Plea, the general issue. Verdict for plaintiffs against the defendant Carrie Church for $112.25, and she 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>Assumpsit on an account annexed to recover the sum of-$1092.81 for goods sold and delivered. The writ also contained an omnibus count. Plea, the general issue with brief statement as follows: "That the contracts declared upon in plaintiff’s writ were beyond the lawful authority of the defendant to .ma-ke and were forbidden by law, and the defendant did not and never has received any benefit from said contracts.” At the conclusion of the plaintiff’s evidence, and on motion of the defendant, the presiding Justice ordered a nonsuit and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. Petition for the annulment of a decree of divorce made in Maine in 1894, on the libel of the petitioner’s husband, Llewellyn L. Leathers. The case is stated in the opinion.

On exceptions by defendants. Assumpsit on account annexed to recover $1500 cash furnished by the plaintiff to the defendants. The writ also contained a count forr money had and received and also an omnibus count. The defendants filed an account in set-off amounting to $1403.34. Plea, the general issue. Verdict for plaintiff for $224.85. The defendants excepted to certain rulings made during the trial. The case is stated in the opinion.

<p>Oil report.</p> <p>Ileal action to recover the possession of certain lots of land in Eustis, Franklin County. 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 report.</p> <p>Action of debt brought by the plaintiff as collector of taxes, under the provisions of Revised Statutes, chapter 10, section 28, against the defendant to enforce the lien for taxes prescribed by Revised Statutes, chapter 9, section 3, upon the property described in the writ. 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. Action of debt for the collection of a non-resident tax upon certain lumber. Plea, the general issue. At the conclusion of the evidence the case was reported to the Law Court for determination. The case is stated in the opinion.

On exceptions by defendant. The defendant was arrested and arraigned on a warrant issued by Municipal Court of the City of Augusta, charging a single sale of intoxicating liquors and further alleging that said Stickney has been previously convicted of a single sale of intoxicating liquors in the Municipal Court of Augusta on the 7th day of January A. D. 1909.” Upon conviction in the Municipal Court, he appealed to the Superior Court in the same county, where after trial…

<p>On exceptions by plaintiff'.</p> <p>Real action to recover possession of certain land in Winthrop. Pleadings filed as stated in the opinion. At the conclusion of the testimony, the presiding Justice ordered a verdict of the form and tenor stated in the opinion. The plaintiff excepted to several rulings made during the trial.</p> <p>The case is stated in the opinion.</p>

<p> Bills and Notes. Payment. Extension of Time. Consideration-Mutual Promises. Evidence. </p> <p>An agreement by a stockholder that the time of payment of a note due him from the corporation be deferred until payment of present and future outside creditors is not void as being too indefinite as to duration of the extension.</p> <p>An agreement by a stockholder that payment of a note due him from the corporation be deferred until payment of present and future outstanding creditors is supported by similar agreements by the other stockholders, who held similar notes.</p> <p>In an action against a corporation by a stockholder on a note which was not payable until outside creditors of the corporation should be paid, or until the company’s assets should equal its liabilities, evidence held to show nonfulfilment of either condition.</p>

<p> Fish and Fisheries. Injury to Private Weir. Burden of Proof. Damages. Evidence. </p> <p>Evidence held to show that defendant threw refuse into a river so near plaintiff’s fish weir that the refuse was carried into the weir by the tides, preventing fish from entering, and that such result might have been foreseen by reasonably prudent men.</p> <p>The owner of a fish weir, suing for pollution of the river by defendant’s depositing refuse therein, has the burden to show the prospective profits thereby lost to him.</p> <p>In the absence of definite proof of damage caused plaintiff by pollution of his fish weir through defendant depositing refuse in the river, he is entitled to recover only the cost of removing the refuse.</p>

<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 74, to determine his right to the office of sheriff of the county of Oxford. An answer was filed by the defendant. 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 sheriff. Thereupon the defendant appealed as provided by section 72 of said chapter.</p> <p>The case is stated in the opinion.</p> <p>Note. Section 27 of chapter 6 of the Revised Statutes, was amended by the Public Laws of 1911, chapter 72, so that said section 27 as amended now reads as follows:</p> <p>"Section 27. If a voter marks more names for any one office than there are persons to be elected to such office, or if for any reason it is impossible to determine the voter’s choice for an office to be filled, his ballot shall not be counted for such office. No ballot without the official indorsement shall, except as herein otherwise provided, be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this chapter shall be counted. Ballots not counted shall be marked defective on the back thereof, and shall be preserved, as required by section twenty-five. No marks, other than those authorized by law, shall be placed upon the ballot by the voter, but no ballot, after having been received by the election officers, shall be rejected as defective because of marks other than those authorized by law, having been placed upon it by the voter, unless such marks are deemed to have been made with fraudulent intent, and no ballot shall be rejected as defective because of any irregularity in the form of the cross in the square at the head of the party column unless such irregularity is deemed to have been intentional and made with a fraudulent purpose.”</p>

<p>In equity. On appeal by plaintiff.</p> <p>Proceedings by the plaintiff "as in equity,” under the provisions of Revised Statutes, chapter 6, sections 70 to 74 to determine his right to the office of sheriff of the county of Sagadahoc. An answer was filed by the defendant. The matter was heard by the Justice of the first instance who found and decreed that the defendant was entitled by law to the said office of sheriff. Thereupon the plaintiff appealed as provided by section 72 of said chapter.</p> <p>The case is stated in the opinion.</p>

<p> Landlord and Tenant. Lease. Execution. Evidence. Option to Renew,. Renewal. </p> <p>A landlord is presumed to have understood a lease signed by her, in the absence of fraud or deception practiced upon her.</p> <p>Evidence held- to show that a landlord signed a lease, and that it was previously read to her.</p> <p>A lease to “Eng Fong and his brother,” signed by “Charlie Fong” and “Charley Sam,” held sufficient as a lease to Charlie Fong, on a showing of his identity as Eng Fong.</p> <p>A lease until a specified time at a fixed rental, with a higher rental after that time, giving occupation as long as the lessee “may want it,” gives the right to renew indefinitely.</p> <p>By continuing in possession on lapse of a particular term, and paying stipulated rent, a tenant sufficiently elected to avail himself of an option to renew. *</p>

<p> Pleading. Declaration. Duplicity. </p> <p>Under the established rules oí pleading the plaintiff’s declaration must contain a clear and distinct averment of the facts which constitute the cause of action, and set them out with that degree of certainty of which the nature of the matter pleaded reasonably admits, in order that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court that is to give judgment.</p> <p>A declaration for an injury to an employee charged to have resulted from dullness of circular saw teeth, irregularity in the set of the teeth, and failure to instruct, is bad for duplicity; each breach of duty being properly the subject of a separate count.</p> <p>The rule that pleadings must not be double means that the declaration must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported.</p>

<p>On report.</p> <p>Assumpsit on an account annexed to recover the sum of $486.45 for printing, binding, etc., certain books called a "Municipal History of Waterville.” The declaration also contained a count declaring specially upon a written contract between the plaintiff and the defendant, relating to the same books. 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>In equity. On report.</p> <p>July 15, 1903, the plaintiff filed its original bill in equity for an injunction, accounting, etc., against the defendant then known as the Auburn-Lynn Shoe Company, its corporate name since that time having been changed to that of Lunn & Sweet Shoe Company, and the cause eventually came before the Law Court and a decision thereon was rendered, which is reported in 100 Maine, 461, under the title " W. R. Lynn Shoe Company v. The Auburn-Lynn Company et als., ” and reference to that report is made for a statement of the original contentions between the parties. Also see W. R. Lynn Shoe Company v. The Auburn-Lynn Shoe Company, 103 Maine, 334, which is the same cause reported to the Law Court on questions arising after the aforesaid decision. After the decision reported in 103 Maine, 334, the master’s report was recommitted solely, however, "for further hearing and report upon the question of what damages, if any, should be awarded to the plaintiff for the losses in its own business, in the production and sale of its own goods, caused by the wrongful acts of the defendants,” and after such hearing the master filed a second report which was accepted. A final decree was then entered, "ordering the defendant company to pay to the plaintiff the sum of $7424.53 and taxable costs, and on August 4, 1909, the sum of $7974.13 was received by said plaintiff corporation, in accordance with the terms of said decree.” The master’s report covered the period between July 9, 1903, and January 15, 1906, the date when the decree on the original bill was filed enjoining the defendant and appointing a master. April 1, 1910, the plaintiff filed the bill under consideration in the present cause, praying that "an account may be taken of all the profits of said business from said fifteenth day of January, 1906, resulting from the wrongful acts committed by the defendant company in its unfair competition with the plaintiff,” etc. The defendant filed an answer with a demurrer therein inserted. The case was then reported to the Law Court for decision.</p> <p>The pith of the case is stated in the opinion.</p>

<p>On , report.</p> <p>Assumpsit on an account annexed to recover for 5 tons and 75 pounds of hay at $17.00 per ton, alleged to have been sold and delivered by the plaintiffs to the defendant. Plea, the general issue with brief statement as follows: "That if any such contract was made as alleged by the plaintiffs it was void under a certain statute of the State of Maine known as the Statute of Frauds, contained in section 4 of chapter 113, which provides, ‘That no contract for the sale of goods, wares or merchandise for thirty dollars or more shall be valid unless the purchaser accepts and receives part of the goods or gives something in earnest to bind the bargain, or in part payment thereof, or some note or memorandum thereof is made and signed by the party to be charged thereby, or his agent,’ and the defendant says that if any contract was made between the plaintiffs and themselves such as is mentioned in said plaintiffs’ writ, that such contract was for the sale of goods, wares or merchandise for thirty dollars or more, and that the purchaser under such did not accept or receive any part of the goods or give anything in earnest to bind the bargain or any part of the payment thereof; and that no note or memorandum thereof was made and signed by any party to be charged thereby or by their agent.”</p> <p>At the conclusion of the plaintiffs’ evidence, the case was reported to the Law Court to render such judgment as the law and the legally admissible evidence required.</p> <p>The hay for which this suit was brought was a part of a lot of pressed hay in the barn of the plaintiffs. In relation to the trade for the hay, the purchasing agent of the defendant testified as follows: "The final trade was somewheres just about before the 25th of December. I made Mr. Beedy an offer of $17 a ton for five tons to be taken at his barn and he said he would let me know the next day or in a day or two, and the 25th of December, Saturday, Willard Beedy came to my place and said that they would sell me this five tons of hay, and I arranged with him to go up to the barn and put out five tons of hay on the outside so that the teams could get it there; and he went up Monday and put out this hay. I think it was the 27th.”</p> <p>Shortly after the trade for the hay, the defendant discontinued its lumber operation and never removed the hay and it remained outside the barn where it had been placed by the plaintiffs, and there spoiled. In relation to the hay, after the lumber operation had been discontinued, the defendant’s purchasing agent testified as follows :</p> <p>"Q. When you saw Mr. Brayman up in the woods did you have any conversation with him about this hay ?</p> <p>"A. Yes. Mr. Brayman decided that day that he would not operate any longer, and I reminded him again — I had previously reminded him of this hay —that there was some hay down there at Mr. Beedy’s that I had purchased that would need to be taken care of.</p> <p>"Q. Did Mr. Brayman make any reply?</p> <p>"A. Why, we had some conversation in regard to moving it down I think on the train to Phillips.</p> <p>"Q. Did you ever have any more conversation either in the woods' or in the village at Phillips concerning this hay ?</p> <p>"A. I met Mr. S. M. Brayman on the street, I think in front of the post-office, and had some conversation. I think perhaps I might have mentioned it to him that that hay ought to be taken care of. That was a little later. He asked me if I could not find some one to buy the hay, he said they did not want to lose more than they could help, and I suggested Mr. Beal and he requested me to see him. I did see Mr. Beal and tried to sell him that hay but he didn’t care to buy at that time.”</p> <p>The points in the case are stated in the opinion.</p>

<p> Chattel Mortgages. Intent to Take Possession. Notice. Booh Accounts. Mortgagee in Possession. Prior Incumbrances. Foreclosure. Application of Proceeds. Debts Secured by Mortgage. Principal and Surety. Reference. Law Court. Duties. Accounting. </p> <p>1. The mortgagee in a chattel mortgage of the plant, tools, stock, etc., of a going manufacturing concern is not required by the law to give notice of its intention to take possession of the mortgaged property for breach of condition.</p> <p>2. Such a mortgagee upon taking possession of the mortgaged property is not required by the law to assume, perform or complete then existing contracts of manufacture made by the mortgagor, however profitable they may be.</p> <p>3. Though choses in action, like book accounts, are included in a chattel mortgage they are not thereby made subject to the statutes governing chattel mortgages. As to them the mortgage only operates as a pledge or equitable assignment, and the title to them does not become absolute in the mortgagee by a statutory foreclosure of the mortgage. He is not required by the law to collect them and is accountable only for what he actually receives on them so long as he does not acquire an absolute title.</p> <p>4. A mortgagee is not required by the law to pay off prior mortgages, or existing liens, nor to perform conditions necessary to secure or perfect the title to any of the mortgaged property, even though the property is lost through the omission to do so.</p> <p>5. Where a mortgage secures several debts due from the mortgagor to the mortgagee, and the mortgaged property is not sufficient to pay all the debts, the mortgagee upon foreclosure may elect to which of the debts the property shall be applied.</p> <p>6. In such case the bringing suit on some of the debts is an election to apply the mortgaged property to the other debts not put in suit.</p> <p>7. Where some of the debts secured by a mortgage are also secured by sureties, the latter cannot require the application of the mortgaged property to such debts in preference to those debts secured only by the mortgage.</p> <p>8. The sureties upon debts also secured by a mortgage cannot require the creditor to foreclose the mortgage upon condition broken, nor, to follow up the foreclosure if begun. The creditor may without their consent allow the debtor more than the statutory time for redemption after foreclosure is begun ; and in such case he will be held to account only for the value of the property at the end of the extended time.</p> <p>9. The Law Court will not act, at least in the first instance, as auditor, master in chancery, or accountant. It was not established for such purposes.</p>

<p> Insurance. Hire Insurance. Construction of Policy. </p> <p>The defendant issued to the plaintiff a policy of insurance on “his one story frame, steel roof building situated on the north side of Bridge Street, and known on the map asThurston’s Planing and Saw Mill, in Livermore Falls, privileged to be occupied as a Planing Mill and Job Shop.” The map referred to was “Sanborn’s Map,” so called, made for the use of fire insurance companies and their agents. The plaintiff had two “one story frame, steel roof buildings” north of Bridge Street in Livermore Falls. In one logs were sawed and boards and dimension lumber were planed, and there was evidence that it was known at one time as Thurston’s Planing and Saw Mill. The other building was used more especially as a fitting and job shop, and contained a planer, band saw and other machinery. The latter building was delineated on the map referred to, with the legend “C. II. Thurston, Saw and Planing Mill.” The former building was not on the map at all.</p> <p>Held, that the description in the policy, “ building. . . known on the map as Thurston’s Planing and Saw Mill” must be construed to refer to the building that was on the map, and not to the building that was not on the map, and that the verdict of the jury which awarded damages for the loss of the building not on the map is not sustainable, as a matter of law.</p>

<p> Mortgages. Rights of Parties. Priority. Liens. Statute, 1868, chapter 207. Revised Statutes, 1857, chapter 91, section 16; 1871, chapter 91, section 72; 1903, chapter 93, sections 29, 31. </p> <p>As between mortgagor and mortgagee, the latter holds the legal estate with all the incidents of ownership in fee, while the mortgagor retains an equitable right under a condition subsequent in the deed.</p> <p>Under Revised Statutes, 1903, chapter 93, section 29, providing for mechanics’ liens, a lien under contract with the mortgagor in a prior recorded mortgage attaches to the equity of redemption only, but such mortgage takes priority over liens only so far as advances under the mortgage were made before the furnishing of the labors and materials for which liens are claimed, though the mortgage bo given for a larger amount; the liens otherwise being superior.</p>

<p>In equity. On report.</p> <p>Bill in equity praying for an injunction to restrain the defendant from entering in or upon the plaintiff’s land and from taking, using or appropriating her land without her consent.</p> <p>The defendant demurred to the bill and the case was reported to the Law Court upon bill and demurrer.</p> <p>The case is stated in the opinion.</p>

<p>In equity. On report.</p> <p>Bill in equity praying for the construction of the fourth item of the last will and testament of Levi W. Houghton, deceased testate. The defendant filed an answer with a demurrer thei’ein inserted. When the cause came on for hearing an agreed statement of facts was filed and the case reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by defendants.</p> <p>The defendants were indicted for assaulting an officer, to wit, a fish warden, and obstructing him in the execution of his official duty. The indictment was nolle prossed as to the assault. The defendants then filed a demurrer which was overruled and the defendants excepted.</p> <p>The case is stated in the opinion.</p>

<p> Avnsuit. Variance. Amendments. Revised Statutes, chapter 84, section 98. </p> <p>1. Where the declaration describes a note signed by four and the note put in evidence is signed by only three, the variance is cured by a discontinuance as to the defendant who did not sign the note, and then is not cause for a nonsuit.</p> <p>2. In an action upon a several contract against three, the fact that the evidence against one of the three does not show him to be liable is not cause for a nonsuit. The plaintiff might still be entitled to a verdict against the others under Revised Statutes, chapter 84, section 98.</p> <p>3. As a general rule, variance,s that are remediable by allowable amendments or discontinuances are not grounds for nonsuit.</p>

<p>On motion and exceptions by defendant.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff, a minor, while acting as fireman upon one of the defendant’s locomotives in a head on collision with another locomotive of the defendant railroad. Plea, the general issue. Verdict for plaintiff for $12,821. The defendant excepted to several rulings made 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 on the case brought by the plaintiff, a minor, to recover damages for personal injuries sustained by him while in the employ of the defendants and caused by the alleged negligence of the defendants. Plea, the general issue. At the conclusion of the plaintiff’s evidence the presiding Justice ordered a nonsuit, and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. Assumpsit on account annexed to recover from the defendant, a non-resident, the sum of $117.00 for a casket, oak box, embalming, etc., and interest on the same.

<p>On report.</p> <p>Action of forcible entry and detainer brought in the Bangor Municipal Court and by appeal transferred to the Supreme Judicial Court.</p> <p>The declaration in the plaintiff’s writ is as follows : "In a plea of Forcible Entry and Detainer, for that the said defendant, at Bangor on the first day of August, A. D. 1910, having before that time had lawful and peaceable entry into the lands and tenements of the plaintiff, situated in the City of Bangor, being numbered one hundred twelve (112) and one hundred fourteen (114) Exchange Street, and whose estate in the premises was determined on first day of August, A. D. 1910, then did and still does forcibly and unlawfully refuse to quit the same; although the plaintiff avers, that he gave notice in writing to said James F. Gerrity thirty days before the first day of August aforesaid, to terminate his estate in the premises.” Plea, the general issue with brief statement as follows : "And by way of brief statement, defendant further says : That at the time of the alleged service of the notice to quit, and also at the time of the bringing of this action, he and those who lawfully claim under him, the said defendant, were lawfully and peaceably in possession of the lands and tenements described in the plaintiff’s writ and declaration by virtue of a written lease or indenture under seal from Charlotte W. Thatcher et als. to said defendant, James F. Gerrity, dated January 1, 1908, and recorded in Penobscot Registry of Deeds, Book 774, page 272, said Charlotte W. Thatcher et als. being the predecessors in title of said plaintiff, Fred A. Gilbert, he, said Gilbert, having acquired title to the real estate in question subject to said lease or indenture. And defendant further says that any occupancy of the whole or any part of said premises by any party or parties claiming in any manner under said defendant was with the full knowledge and consent of said Gilbert and those under whom he claims ; and defendant further says that neither his estate or tenancy in the premises by virtue of said lease or indenture, or otherwise, nor the estate or tenancy in the premises of those claiming under him, was lawfully terminated either at the time alleged in said writ and declaration, or at the time of the bringing of said action, or at any time previous thereto.”</p> <p>At the conclusion of the evidence in the Supreme Judicial Court, the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

On report. Action of trespass against the defendant, an officer, for attaching and carrying away as the property of the plaintiff on a writ, one Aspinwall potato planter, one Standard or Rotary potato sprayer and one Hoover potato digger, each of said articles being mounted on wheels and operated by means of horses, mules, oxen or other beasts of burden.

On motion by defendant. Action on a written contract. Writ contained three counts, one for breach of contract, one upon an alleged promise to sell certain loam to the plaintiff, and one on an account annexed. Plea, the general issue. Verdict for plaintiff for $350.50. Defendant filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by plaintiff. Complaint for flowage, to which a general demurrer was filed and joined. The presiding Justice pro forma sustained the demurrer, and the plaintiff excepted. The case is stated in the opinion.

<p> Corporations. Franchise Tax. Treasurer. Findings. Accommodation. Indorsement. Consideration. Accommodation Paper. Ultra Vires. Bills and Notes. Innocent Holders. Evidence. Revised Statutes, chapter 8, sections 1S-22; chapter 47, section 26. </p> <p>Assessment of a franchise tax against a corporation under Revised Statutes, chapter 8, sections 18-22, after appointment of receivers in proceedings to dissolve the corporation and while such proceedings are pending, does not create a debt provable against the corporation.</p> <p>The treasurer of a corporation is presumed to have had authority to use the corporate name on notes for the benefit of another corporation or himself, where the other directors who constituted the ' remaining stockholders, knew that he had followed such practice for several years and did not object.</p> <p>The finding of receivers acting as masters under order of court is entitled to the weight of a verdict, and is not to be set aside or reversed unless the evidence reported shows the finding to be clearly wrong.</p> <p>That a defendant corporation was a large creditor of another company does not show such interest as to constitute a valid consideration for defendant’s indorsement of the company’s paper.</p> <p>Where a corporation, having taken over the assets and assumed the liabilities of a partnership, substitutes its name for that of the partnership in the renewal of a note on which the partnership was liable as an accommodation party, its act in so doing is not without consideration.</p> <p>Unless a corporation be specially authorized to do so, the execution or indorsement of accommodation paper merely for the benefit of third persons is fin act beyond the scope of its corporate authority.</p> <p>A private corporation organized for pecuniary profit may borrow money when necessary and issue customary evidences of debt therefor, unless prohibited by its charter.</p> <p>The title of the holder before maturity of accommodation paper used by a corporation can be defeated only by proof that he took it knowing that it was accommodation paper, or under such facts and circumstances that he is chargeable with notice of that fact.</p> <p>Evidence held to show that notes were indorsed on the part of a corporation for the benefit of another.</p> <p>Evidence held to show that the payees of notes took them with knowledge that they were indorsed by a corporation for accommodation.</p>

In equity. On report. Bill in equity against the defendant, an insolvent corporation, to wind up its affairs and distribute its assets among its creditors. Reported to the Law Court, in connection with Johnson v. Johnson Brothers, ante, for determination. The case is stated in the opinion.

<p> Trial. Directing Verdict. Fraud. Deceit. </p> <p>If the evidence would warrant a jury in returning a verdict for defendant it is error to direct a verdict for plaintiff.</p> <p>In an action for deceit, it must be shown that the defendant made a false representation as to a material fact, that he knew it was false, or made it as a statement of fact of his own knowledge not knowing whether it was true or false, with the intent that the plaintiff should rely on it, and further that the plaintiff was ignorant of its falsity and acted upon it to his damage.</p> <p>Whether the elements of actionable deceit exist in an action therefor, are questions of fact to be determined from the evidence and the inferences to be drawn from the facts established.</p> <p>Where there were facts and circumstances in an action for deceit from which the jury might have reached the conclusion that the plaintiff did not believe and rely upon the alleged misrepresentations, it was error to direct a verdict for the plaintiff'.</p> <p>Where fair-minded and unprejudiced persons might reasonably differ on the conclusions to be drawn from undisputed facts, the question is for the jury.</p>

<p>On exceptions by defendant.</p> <p>Complaint and warrant issued by the Sanford Municipal Court against the defendant for an alleged violation of the provisions of Revised Statutes, chapter 125, section 25. The defendant appealed to the Supreme Judicial Court, and on trial in that court was found guilty. The defendant excepted to certain instructions given to the jury by the presiding Justice.</p> <p>The case is stated in the opinion.</p> <p>Revised Statutes, chapter 125, sections 25 and 27, read as follows:</p> <p>"Sec. 25. Whoever, on the Lord’s Day, keeps open his shop, workhouse, warehouse or place of business, travels, or does any work, labor or business on that day, except works of necessity or charity; uses any sport, game or recreation ; or is present at any dancing, public diversion, show or entertainment, encouraging the same, shall be punished by fine not exceeding ten dollars.</p> <p>"Sec. 27. The Lord’s Day includes the time between twelve o’clock on Saturday night and twelve o’clock on Sunday night.”</p>

<p> Trusts. Statute of Uses. Deeds. Recitals. Beneficiaries. Consideration. Death of Trustee. Estates Tail. Remainder. Reversion. Wills. Costs. Revised Statutes, chapter 79, section 30. </p> <p>A deed in trust for benefit of the grantor’s daughter, vested the legal title in the trustee and an equitable fee simple in the daughter, depriving the grantor and his heirs of all interest in the property and its proceeds.</p> <p>A deed in trust is not within the statute of uses, where the trustee has discretion to sell and manage the estate and invest the proceeds.</p> <p>The beneficiaries of a trust, and persons claiming under them, are not bound by a recital in a deed to the trustee of land purchased with proceeds of the trust estate, that they consented to the inclusion of others as beneficiaries.</p> <p>A trustee diverting property, as by taking a conveyance including other beneficiaries, must show clearly and satisfactorily that all parties consented.</p> <p>Persons whose names are wrongfully and without consideration inserted in a deed as beneficiaries of a trust take no interest, and the trustee holds the property for the rightful beneficiaries.</p> <p>A trustee having died without exercising a power to terminate the trust by conveying to the beneficiary, the legal estate descended to the trustee’s heirs in trust; his executrix and residuary legatee taking no interest.</p> <p>Where the holder, under a deed in trust, of an equitable fee simple, consented that an equitable remainder in estate tail effective on her death be conveyed to another, such remainder revested in the consenting beneficiary on predecease of the remainderman without issue, leaving the beneficiary the equitable owner in fee simple.</p> <p>Title of trustees for an equitable owner in fee simple, under a trust which, by the terms of its creation, terminates at the death of such owner, is extinguished by the owner’s death, vitiating subsequent appointment of a trustee.</p> <p>An equitable owner in fee of trust property is entitled to devise the property free of the trust, which by the terms of its creation ceases at the death of such owner.</p> <p>Reid: That trust property was properly chargeable with the plaintiff’s expense, and the costs on a bill in equity brought by him to settle the rights of the parties claiming an interest in the property.</p>

<p>On report.</p> <p>Action of debt to recover taxes assessed against the defendant for the years 1907 and 1908. ' Reported to the Law Court on an agreed statement of facts with the stipulation that if "the action is maintainable, judgment is to be entered for the plaintiff’s for the sum of $167.92, without interest or costs;” otherwise plaintiff to be nonsuited.</p> <p>The case is stated in the opinion.</p>

<p>Drunkards. Capacity to Consent to Sale of Trust Property. Jurisdiction of Courts. Conveyance by Trustee. Consent by Committee. Courts. Extra-Territorial Jurisdiction. Marketable Title. Constitution of Pennsylvania, Article 5.</p> <p>By the terms of a trust deed, the trustee, which is the plaintiff in this case, was empowered to sell in fee simple or otherwise, the real estate thereby conveyed to it, but it was provided that certain real estate in Bar Harbor in this State should be subject to sale or rent only with the consent of the cestui que trust, and should be sold or rented by the trustee at any time upon the request of the cestui que trust, and for a price or sum acceptable to her. All the parties to the deed, as well as the cestui que trust, were, and still remain, residents of Philadelphia.</p> <p>After the execution and delivery of the trust deed, the cestui que trust was adjudged, by the Court of Common Pleas of Philadelphia to be an habitual drunkard, and a committee of her person and estate was appointed by that court.</p> <p>Afterwards, the plaintiff, as trustee, and the committee, so appointed, entered into a written agreement with one Allison, for the sale and conveyance to him, of the Bar Harbor property, and it was stipulated in the agreement that the title was to be good and marketable. The defendant is the executrix of Allison’s will.</p> <p>On petition of the committee, the Court of Common Pleas of Philadelphia made an order approving the sale and authorizing the committee to consent formally to the sale in behalf of his ward, the cestui que trust, and to join in the deed. The cestui que trust herself joined in the prayer of the petition, and formally assented to the making of the order.</p> <p>A deed executed by the plaintiff as trustee, and consented to by the committee was seasonably tendered to Mr. Allison, who refused to accept it and pay according to the terms of his agreement to purchase.</p> <p>This bill being brought to compel specific performance, it is held: —</p> <p>1. That the cestui que trust, by reason of having been adjudged an habitual drunkard, and the appointment of a committee of her person and estate, was incapable of giving consent personally.</p> <p>2. That under the constitution and statutes of Pennsylvania, as interpreted by the highest Court in Pennsylvania, the Court of Common Pleas of Philadelphia had jurisdiction to adjudge the cestui que trust to be an habitual drunkard, and to appoint a committee of her person and estate, and that that court having chancery powers, had jurisdiction to authorize the committee to consent to a conveyance by the trustee, for and in the place of his -ward, and that the consent of the committee was as effectual, as if the consent had been given by the cestui que trust personally, while she was capable of so doing.</p> <p>3. That the decree of the Court of Common Pleas of Philadelphia was effectual, although the land to bo conveyed was in Maine.</p> <p>4. That the deed tendered conveyed a good and marketable title to the Bar Plarbor property.</p>

<p> Equity. Judges. Death of Judge. Decree. Unsigned Decree. Trial. Findings. Judge’s Signature. Equity Rule XXVIII. Statute, 1881, chapter 68, section 9. Revised. Statutes, chapter 79, section SI. </p> <p>When a Justice of this court who has heard a cause in equity dies, or otherwise becomes incapacitated, before signing the decree, it is not competent for another Justice to settle and sign the decree; and in such event the case must stand for a new hearing.</p> <p>Under equity rule 28 only the Justice who hears a cause in equity can settle and sign the decree, except by consent.</p> <p>Since a statement of findings and rulings is not required to be filed in chancery practice by any statute or rule of court, such findings and rulings, if filed, whether signed or unsigned, are not effective but are subject to modification until the decree itself is signed.</p>

<p> Evidence. Intoxicating Liquors. Sale of Liquor. Recovery of Price. Pleading Statute. Revised Statutes, chapter 29, section 64. </p> <p>X. The evidence is plenary that the intoxicating liquors whose price is sought to be recovered in this case were intended, when purchased out of the State, for unlawful sale in this State.</p> <p>2. When intoxicating liquors are purchased by the steward of a club for a club, and are sold by him to the members, such sales are unlawful.</p> <p>3. Revised Statutes, chapter 29, section 64, provides that “no action shall be maintained” upon any claim or demand contracted for any intoxicating liquors purchased out of the State with intention to sell the same or any part thereof in violation of the laws of this State. This statute affords a perfect defense in this suit.</p> <p>4. Revised Statutes, chapter 29, section 64, is a police regulation, and was not enacted for the benefit of purchasers of intoxicating liquors. A defense based upon this statute need not be specially pleaded by way of brief statement, or otherwise.</p> <p>5. Under Revised Statutes, chapter 29, section 64, forbidding any action for the price of liquors purchased out of the State for sale in violation of law, recovery is barred whether the seller knew the purchaser’s intention, or not.</p>

<p> Nonsuit. Directed Verdict. Writ of Entry. Declaration. Amendment. Review. Execution. Sheriff’s Deed. Punctuation. Construction. Revised Statutes, chapter 78, sections 33, 36. </p> <p>1. When a nonsuit, is ordered, or a verdict is directed, and exceptions are taken, all of the evidence necessarily becomes a part of the case on exceptions, whether it is mentioned in the bill of exceptions or not.</p> <p>2. The burden is on the party who excepts to an order of nonsuit or the direction of a verdict to show that it was erroneous, and that it was erroneous cannot be determined without an examination of all of the evidence.</p> <p>3. If the party excepting to an order of nonsuit, or the direction of a verdict, fails to present a transcript of all the evidence to the Law Court, his exceptions must be overruled, unless the omission is otherwise supplied.</p> <p>4. When in a real action several, separate tracts of land are embraced in one count, the demandant may be allowed to amend by striking out one tract.</p> <p>5. To support a sheriff’s sale of land upon an execution, it is necessary to show, among other things, a valid judgment, upon which the execution issued. In this case, to support the plaintiff’s title under an execution sale, formal proof of a judgment was not offered. But inasmuch as it appears that when the plaintiff was proceeding to prove a judgment, the defendant’s counsel interrupted saying-, “I don’t make any objection to that", the certificate on the back of the execution is to be the legal proof,” and the plaintiff thereupon forebore to ask further questions," it is held that formal proof of a judgment was waived.</p> <p>6. It is not indispensable that a sheriff’s deed should show what court rendered the judgment, nor at what term it was rendered nor its date, nor its amount, nor the date of the execution, nor that the execution was alive at the time of the sale. The deed, as evidence of title, may be aided and supplemented by the judgment, execution and officer’s return.</p> <p>7. Punctuation, or the want of it, is not decisive in the construction of a deed; and it is considered that in the recital in a sheriff’s deed, “having given notice in writing of the time and place of sale to the judgment debtors .... and having given public notice of the time and place of sale by posting up notifications thereof in a public place in the town of Pittsfield, and also by posting up notices thereof in one public place in each of the adjoining towns of Palmyra and Detroit thirty days before the time of sale,” a fair construction requires that the words “thirty days” should be applied to all the notices.</p> <p>8. An officer may embrace in one deed several parcels of land sold separately on the same execution, at the same time and place to the same purchaser. And the record shows that that was what was done in this case.</p>

<p>On motion by defendant.</p> <p>Action for money had and received, brought by the plaintiff against the defendant as executrix of the last will and testament of Llewellyn Powers, late of Houlton, deceased testate. The plaintiff’s specifications were as follows :</p> <p>"Estate of Llewellyn Powers to Frank W. Titcomb, Dr.</p> <p>"To cash paid to Llewellyn Powers, being the proceeds of two certain notes of one thousand dollars each, given by Thayer & Collins of Keene, New Hampshire, to Frank W. Titcomb and sold by the said Frank W. Titcomb to the said Llewellyn Powers.</p> <p>"Which said money said Llewellyn Powers agreed to credit to said Frank W. Titcomb on notes held at that time by said Powers against said Titcomb, which said credit was never given to said Titcomb and afterwards all of said notes then held by said Powers against said Titcomb including interest was collected by the estate of said Llewellyn Powers of the said Frank W. Titcomb, and the said Frank W. Titcomb paid to the estate of said Llewellyn Powers all of said notes and interest and was never allowed the said sum of two thousand dollars, the proceeds of said Thayer & Collins notes, except a small check for between fifty and sixty dollars given at said time by said Llewellyn Powers to said Titcomb, which check is in the possession of the executrix of said estate . . . $1950.00</p> <p>To interest on same eighteen months......175.50</p> <p>"$2125.50”</p> <p>Plea, the general issue. Verdict for plaintiff for $2002.65. The defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. Probate appeal. (This cause has already been before the Law Court and is reported in 107 Maine, 274, under the title Benjamin E. Sproul, Petitioner, v. Charles L. Randell et als., and under which said title it was sent to the Law Court, and the name of the deceased testate, Adelia E. Sprowl, was stated and given in the record as Adelia R. Sproul.) The case is stated in the opinion.

<p>On report.</p> <p>Scire facias to obtain an alias execution upon a judgment. The defendant demurred, and the case was reported to the Law Court.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>Action of tort brought under the provisions of the Public Laws of Maine, 1909, chapter 258, known as the "Employer’s Liability Act,” to recover damages for the death of the plaintiff’s intestate while he was employed in the defendant’s power house, and caused by the alleged negligence of the defendant. Plea, the general issue. At the conclusion of the evidence counsel for the defendant moved that a verdict be directed for the defendant. The motion was overruled. The case was then withdrawn from the jury and reported to the Law Court with the stipulation that "if the motion for the direction of a verdict for the defendant, should have been granted, or if the decision shall otherwise be for the defendant, judgment shall be entered for the defendant. If the decision be for the plaintiff, the Law Court is to assess the damages.”</p> <p>The case is stated in the opinion.</p>

<p>In equity. Od exceptions and appeal by defendants.</p> <p>Bill in equity brought by the plaintiff under the provisions of Revised Statutes, chapter 93, section 33, against Flora J. Wing, L. B. Wing, G. Harold Grant Wing and the Lewiston Trust & Safe Deposit Company, to enforce a lien upon land and certain buildings thereon, situate in Farmingdale, for labor and materials furnished in altering and repairing said buildings. The last named defendant was the mortgagee of the premises. The case went to the Law Court on exceptions and appeal by defendants.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. Assumpsit on a written contract to pay royalties for the right to manufacture and sell invented articles under the plaintiff’s patent. The defendant filed a general demurrer to the declaration. The demurrer was overruled and the defendant excepted. It was stipulated in the bill of exceptions that if the exceptions were overruled judgment should be entered for the plaintiff for $500. The case is stated in the opinion.

<p> Contracts. Restraint of Trade. Validity. Equity. Injunction. </p> <p>An agreement by a seller of a business not to re-engage in a similar business in the same city for five years, if made on a sufficient consideration, is enforceable in equity.</p> <p>The defendant, the owner of a trucking business in the city of Portland, on the first day of August, 1910, sold, transferred, and delivered the same to the plaintiff, the bill of sale containing the following agreement: “I also, in consideration of above, and other considerations named in the mortgage which is a part of this transaction, agree not to engage in any similar business in Portland, or vicinity, for the term of five years from the day of the date hereof.” Afterwards in May, 1911, the defendant entered into the employment of another person who was engaged in the trucking business in Portland, the defendant being employed as a lumper, assisting the teamsters of his employer in loading and unloading teams engaged in the trucking business. The plaintiff then brought a bill in equity to have the defendant enjoined.</p> <p>Held: That the defendant be “enjoined and restrained, during the pend-ency of the suit and during the remainder of the term of five years yet to elapse, as specified in said agreement, from carrying on, either alone or jointly with or as agent or servant of any person or persons, or agent, director, or servant of any other company, or otherwise, directly or indirectly, to assist in carrying on any business of a similar nature to the business transferred by him to the plaintiff at said Portland.”</p>

<p> Statute of Limitations. New Promise. Revised Statutes, chapter 88, section 100. </p> <p>The defendant, who was the maker of a promissory note dated June 9, 1900, on May 6, 1910, wrote to the plaintiff, who was the holder of the note, a letter which contained the following: “I was at your place Sunday, but you were not there. I have some money due me in a number of places, but 1 couldn’t collect in any.....Now can’t 1 fix it up with you by giving you my note for the amount, and then I will take it up as soon as I can, and I will do it before October 1st.” The statute of limitations having been pleaded as a bar to a suit on the note it is held,,</p> <p>1. That it was competent for the plaintiff to show that the letter referred to the note, by showing that he had no other claim against the defendant.</p> <p>2. That to take an indebtedness, otherwise barred, out of the statute of limitations by an acknowledgment in writing, it must appear that the acknowledgment was made under such circumstances and in such terms as reasonably and by fair implication to lead to the inference that the debtor intended to renew his promise of payment, and thus make a new and continuing contract.</p> <p>8. That the letter was a sufficient acknowledgment of the indebtedness to take the note out of the statute of limitations.</p>

<p> Descent and Distribution. Surviving tlusband. Executors and Administrators. Administration. Statute, 1905, chapter 124, sections 86, 87. Revised Statutes, chapter 8, section 69; chapter 67, section SI. </p> <p>Shortly before her death, without issue and intestate, a wife delivered to her husband certain bags containing money, jewelry and other property of her own, also containing property that belonged to him. After her death the husband delivered the bags and all of the contents to one of the plaintiffs. Assuming, as is claimed, that he intended thereby to make a gift of the property, it is held : —</p> <p>1. That the husband had neither legal nor equitable title to the property which had belonged to the wife, but only a statutory right to have one-half of the net avails of it, after administration, distributed to him.</p> <p>2. That the attempted gift transferred neither legal nor equitable title, and was inoperative and void, and that, being void, equity cannot interpose to make it good, or enforce it.</p> <p>3. In relation to estates where collateral heirs are entitled to distribution, the statutes, E. S., chapter 8, section 69, and Laws of 1905, chapter 124, sections 86, 87, relating to collateral inheritance taxation contemplate that they must and will be duly administered.</p>

<p> Cases on Report. Review. Master and Servant. Negligence. Contributory Negligence. Burden of Proof. Evidence. </p> <p>On report of a cause by agreement where the presiding Justice orders a non-suit, the Supreme Judicial Oourt will inquire, not whether there was sufficient evidence for the jury, as in the case of exceptions, but whether, on all the evidence, giving it the weight that a jury ought to give it, the plaintiff is entitled to recover.</p> <p>In an action for death of a railway employee, held that the burden was on the plaintiff to show that the decedent’s own negligence did not contribute to the accident.</p> <p>In an action for death of a railway employee, evidence held insufficient to show negligence of the company in delaying medical treatment, etc., after the accident, even if it be assumed that the company was legally bound to furnish such treatment.</p> <p>In an action for death of a railway employee, upon the like assumption, held that the burden was on the plaintiff to show negligence in delaying medical treatment, etc., after the accident.</p>

On report. Action of assumpsit for money had and received, brought in the Supreme Judicial Court, Kennebec County. An agreed statement of facts was Bled and the case reported to the Law Court for determination. The case is stated in the opinion.

<p>On motion by defendant.</p> <p>Assumpsit on a fire insurance policy Maine standard form, issued by the defendant. Plea, the general issue with a brief statement alleging, among other things, as follows :</p> <p>"That the alleged fire originated by the voluntary act, design, and procurement of the plaintiffs, or one of them, whereby they attempted to defraud defendant, and that the policy declared on was thereby rendered void.</p> <p>"That plaintiffs attempted to defraud the defendant by knowingly and intentionally including in their proof of loss, personal property that was not in their store when the fire occurred, and which was not injured, destroyed, or lost by reason of said fire; and by knowingly, and intentionally including in said proof of loss personal property that they did not know was in said store at the time of the fire, and destroyed, injured or lost, and which they had no reasonable ground for believing was therein and so destroyed, injured or lost; and that said policy was thereby rendered void.</p> <p>"That plaintiffs attempted to defraud the defendant by knowingly, wilfully and intentionally placing in their proof of loss a false and excessive valuation upon the several articles alleged to have been injured, destroyed or lost by reason of said fire; and by placing therein valuations on said articles that they did not know to be just and true, and had no reasonable grounds for believing to be just and true ; and that said policy was thereby rendered void.</p> <p>"That the insured property was exposed to loss or damage by fire to the knowledge of the plaintiffs, and they wilfully, intentionally, and fraudulently neglected to make all reasonable exertions to save and protect the same, as required by the terms of said policy, thereby attempting to defraud the defendant and rendering the policy void.”</p> <p>Verdict for plaintiffs for $1293.75. The defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by defendant.</p> <p>Action of assumpsit brought in the Superior Court, Kennebec County, on the defendant’s promissory note made payable to the International Harvester Company of America, and indorsed by that company to the plaintiff after maturity. The plaintiff was the agent of the International Harvester Company and as such agent sold to the defendant a certain manure spreader for which the note in suit was given. Plea, the general issue. At the conclusion of the evidence, the presiding Justice ordered a verdict for the plaintiff’ and the defendant excepted.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>Search and seizure process and reported to the Law Court.</p> <p>The report is as follows:</p> <p>"This was a process for the seizure of intoxicating liquors, alleged to be stored for the purpose of illegal sale in the office of the American Express Company in the City of Bath. It was issued by the Bath Municipal Court, and is dated August 5, 1910.</p> <p>"The following facts appear in evidence:</p> <p>"A barrel containing intoxicating liquors was shipped from Boston, Massachusetts, to Bath, Maine, the barrel, according to the marks thereon being consigned to H. C. Parshley. The driver for the express company called at the respondent’s shop about ten o’clock A. M., notified him of the arrival of this barrel, asked if it was for him, and what he wanted done with it; respondent said he did not know whether it was for him or not, but that he would pay the express charges, which he did, and signed the express receipt book ; and told the driver to keep the liquors until he (Parshley) found out about it.</p> <p>"The liquors remained in the store room of the express company until about five o’clock in the afternoon of the same day, when they were seized under this warrant. Between the time the notice was given by the driver and time of the seizure no notice had been received by the express company from Parshley or anyone representing him, as to the disposition of the liquors. But the driver testifies that if any direction had been given by Parshley, he understood that it would have been his duty to carry and deliver the barrel to the respondent, as directed.</p> <p>"Upon the foregoing statement of facts the case is, by agreement of parties, reported to the Law Court for its determination. Only a single question is reserved. All others necessary for the State to prove are admitted by the respondent. If the court is of opinion that the barrel of liquors seized had been sufficiently delivered by the express company to the respondent so that it was no longer under the protection of the inter-state commerce provision of the United States Constitution and of the federal statutes relating to the same, judgment is to be rendered for the State as follows : ‘Judgment of the Bath Municipal Court affirmed ;’ otherwise a nol. pros, is to be entered.”</p>

<p>In equity. On report.</p> <p>Bill in equity brought by the plaintiff, William H. Moulton, of Portland, in said County of Cumberland, against Woodman E. Chapman, of Limerick, individually and as administrator of the estate of Sarah Elizabeth Chapman, late of said Limerick, deceased, and Lucy M. S. Crockett, of Buxton, both in the County of York, Joseph M. Mayall, of Vassalborough, in the County of Kennebec, John Chapman Mayall, of Boston and George W. Chapman, of Hyde Park, both in the Commonwealth of Massachusetts, and Maria Adams Rogers of Portland, in the County of Cumberland, for the construction and interpretation of the will and codicil of Eliza Chapman Rogers, late of Portland, deceased. Answers were filed by the several defendants. The case was then reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

<p> Fxecution Sale. Bona Fide Purchaser. Money Had and Received. Assumpsit. </p> <p>A bona fide purchaser of chattels, for value, at a sheriff’s sale on execution can recover from the judgment creditor in an action for money had and received when the chattels sold were, at the time of the sale, not the properly of the judgment debtor but of a third person.</p> <p>Assumpsit for money had and received is comprehensive in its reach and scope, and though the form of procedure is in law it is equitable in spirit and purpose, and the substantial justice which it promotes renders it favored by the court.</p> <p>There need be no privity of contract between the parties, in order to support an action for money had and received, except that which results from one man’s having another’s money which he has not a right conscientiously to retain. The law then creates both the privity and the contract.</p>

<p> Insurance. Contract. Renewal. Premiums. Credit. Presumptions. Application. Warranties. Estoppel. Revised Statutes, chapter 49, section 93. </p> <p>A general insurance agent, pursuant to a long course of dealing with a decedent and under instructions “never to let a policy expire unless told to,” received a renewal receipt from an accident insurance company and attached it lo the decedent’s policy, then in the agent’s safe, charging the renewal premium to the decedent, crediting the amount to the company, and attaching copy of the receipt to the policy register. The decedent intended to have the policy renewed, and understood that it had been renewed. Held, that the policy was legally renewed.</p> <p>Credit is presumed to have been extended to the insured for a premium, if the policy was delivered without requiring payment.</p> <p>Under Revised Statutes, chapter 49, section 93, providing that insurance agents shall be regarded as in the place of their principals, an accident insurance company is bound by its general agent’s act in writing and signing an application at an applicant’s request, containing representations as to the applicant’s occupation and habits.</p>

<p>On report.</p> <p>Bill in equity to enforce a mechanic’s lien for materials alleged to have been furnished in the construction of a certain building in Lewiston.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>Action on the case to recover damages for the obstruction of an alleged right of way leading from a town way to a burial lot alleged to be owned by the plaintiff but surrounded by the defendant’s land. Plea, the general issue with a brief statement alleging that "said plaintiff is not and never has been the proprietor of a certain burial lot enclosed in whole or in part as set forth in the plaintiff’s said writ,” and that the "said plaintiff never had the right to pass and repass over nor a right of possession to any right of way as set forth in plaintiff’s said writ.” An agreed statement of facts was filed and the case reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

<p> Vendor and Purchaser. Contract to Convey. Evidence. </p> <p>Where the plaintiff brought an action to recover damages for ail alleged failure on the part of the defendant to convey to him certain real estate according to the terms of a written contract, and a verdict was ordered for the plaintiff, held that the evidence was sufficient to support a finding that the plaintiff waived bis right to purchase the property and that he sustained no damage for which the defendant was legally or equitably responsible.</p>

<p>On report.</p> <p>Assumpsit upon a receipt given to the plaintiff, a deputy sheriff for certain potatoes attached by him on a writ against the defendant Graham. An agreed statement of facts was filed and the case reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

In equity. On report. Bill in equity brought by James H. Fitzsimmons, Patrick E. Fitzsimmons and Thomas Fitzsimmons, all of Portland, in said County of Cumberland,” and against Isabelle C. Harmon, Executrix of the Last Will and Testament of Elizabeth Doherty, late of said Portland, deceased, Joseph Fitzsimmons, John Fitzsimmons, Peter Fitzsimmons, Theresa Fitzsimmons and Kate Fitzsimmons, all of said Portland, and all other heirs at law of Elizabeth Doherty, whose names are…

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 corporation. Plea, the general issue. Verdict for plaintiff for $600. The defendant filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by the plaintiff. Action on the case to recover damages for personal injuries alleged to have been sustained by the plaintiff and caused by the falling of plastering upon the plaintiff from the ceiling in the kitchen of a certain dwelling house owned by the defendant Day. Plea, the general issue. At the conclusion of the plaintiff’s evidence, the presiding Justice ordered a nonsuit.

On report. Petition for a writ of prohibition to restrain the assessors or selectmen of the town of Anson, and their successors, from abating certain taxes on a mill, etc., of the North Anson Lumber Company for a term of ten years. The defendants filed a motion to dismiss the petition, and the case was reported to the Law Court for determination. The case is stated in the opinion.

On report. Action of debt upon an award of referees. Plea, the general issue. At the conclusion of the evidence, the case was reported to the Law Court with the stipulation that upon so much of the evidence as is admissible the Law Court is to enter such judgment as the legal rights of the parties require.” The case is stated in the opinion.

<p> Adverse Possession. Prescription. Use or Occupation. Trespass. Action. Title. Presumptions. </p> <p>Where the plaintiff claimed title by adverse possession to a certain lot of 100 acres which was unenclosed and a part of a large tract of 400 or 500 acres, all of which was unimproved, except a small portion of meadow which produced hay, and had a small quantity of wood or lumber growing upon it, and produced blueberries in considerable quantities, and had never been personally and exclusively possessed by any one, held that the acts of the plaintiff in occasionally cutting a little hay or firewood or burning a portion for berries or gathering berries were insufficient to establish title by adverse possession.</p> <p>Record title arising from a quitclaim deed from one who received a warranty deed in 1856 prima facie shows ownership of the land, permitting recovery against a mere trespasser or one who cannot show better title, though the original grant or had no title.</p> <p>A deed from the Commonwealth of Massachusetts, executed in 1788, is not defective as a basis for record title for want of showing of authority of the legislative committee to execute it, where the deed recites authority under legislative resolves which are a matter of public record.</p> <p>A presumption of correctness attaches to official proceedings, and, when those proceedings have stood unimpeached for over a century and have been recorded in the public archives of two states, they should not be set aside without positive proof of their invalidity.</p>

On an agreed statement of facts. Action by the town of Eden against the town of Southwest Harbor to recover for supplies and services furnished certain persons infected with diphtheria, said persons having their settlement in the defendant town, though found in the plaintiff town when said supplies and services were furnished, brought under Revised Statutes, chapter 18, section 51. Writ dated March 8, 1911.

On report. Action of deceit against the defendant corporation, the trustee in a certain trust mortgage given to it by the Ounegan Woolen Company, a corporation, for falsely certifying certain bonds, purporting to have been issued by said Woolen Company, as secured by said mortgage. Plea, the general issue with brief statement alleging as follows: 1.

On motion and exceptions by defendant. Assumpsit on a policy of fire insurance issued to the plaintiff for a term of two months on certain starch owned by the plaintiff and which was destroyed by fire within the two months.

In equity. On report. Bill in equity brought by Moses Giddings and Franklin A. Wilson, surviving trustees under the will of Chapin Humphrey, late of Bangor, Maine, deceased testate, against Elizabeth B. Gillingham, administratrix de bonis non with the will annexed of the estate of Marcia Humphrey, David G. F. Ward, Mabel T. Ward Saltus, John B. Ward, Ralph L. Ward, George F. Maxfield, Janies L. Gillingham surviving executors under the Will of Dana B. Humphrey, Dana B. Pratt,…

On exceptions by defendants. The bill of exceptions states as follows : This was a petition for mandamus to compel the respondent to serve a writ of possession issuing out of the Supreme Judicial Court for Sagadahoc County, in a real action wherein the petitioner, Joseph F. Webster was plaintiff, and Francis Holmes defendant. The petition for mandamus is dated September' 12, 1911, and was made returnable before Mr. Justice Haley, on September 14th.

On exceptions by defendant. Forcible entry and detainer brought in the Municipal Court for the city of Lewiston. Plea, the general issue with a brief statement alleging that the tenancy of the defendant had not been legally terminated, etc. An agreed statement of facts was filed and the case heard thereon.

On report. The assessors of the City of Old Town for the year 1910, assessed the plaintiff for $1000 money at interest. The plaintiff then made written application to the assessors for an abatement of the tax on the money at interest and the abatement was refused. The plaintiff then appealed to the Supreme Judicial Court under the provisions of Revised Statutes, chapter 9, section 79.

<p>On report.</p> <p>Assumpsit on account annexed to recover the sum of $51.75 for the services of the plaintiff and his team in cutting and harvesting certain hay on which the plaintiff claimed a lien under the provisions of Revised Statutes, chapter 93, section 54. The defendant Jenney was defaulted, notice was ordered to the owners of the hay, and Oscar Storer appeared and claimed the hay. An agreed statement of facts was filed and the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiff. Action on the case to recover damages for personal injuries alleged to have been received by the plaintiff while travelling with a horse and wagon along a highway in the defendant town, and caused by an alleged defect in a culvert or causeway in said highway. Plea, the general issue. At the conclusion of the plaintiff’s evidence, and on motion of the defendants, the presiding Justice ruled pro forma ordering a nonsuit,” and the plaintiff excepted.

<p>" ‘Freedom, Maine, Oct. 7, 1909.</p> <p>Sold to Chas. B. Sampson, about 9 tons of hay at $13 per ton. Said hay to be delivered as loaded on car at Danforth Station.’</p>

Maria D. Dean died on August 17, 1909. She was a widow without children, her heirs being a brother and a large number of nephews and nieces. She had had a safety deposit box in one of the banks in Belfast for many years in which she kept her securities.

Bill in equity for the construction of the last will and testament of Sarah C. Barker, late of Bangor. Reported to the Law Court for determination. The rescript says: 1.

<p>‘Bangor, Maine, Feb. 17, 1910.</p> <p>I hereby agree to give Mr. R. W. Stafford $250. commission if he sells timber lot in Hartland for $8000.</p> <p>John A. Burns.’</p> <p>should stand.”</p>

May 30,1910, the plaintiff being then the owner, sold the horse in question to one Erald Smith and received a Holmes note for $175, payable in six months, in which Smith agreed that the title to the horse should remain in the plaintiff until paid for. This instrument was duly recorded in the town clerk’s office in Wellington June 1, 1910, at eight o’clock P. M. But it is not in controversy that Smith sold the horse to John R. Bean, and that Bean sold her to the defendant.