Volume 109 — Maine Reports

On report. Trespass quare clausum. An agreed statement of facts was filed and the case reported to the Law Court for determination. The case is stated in the opinion.

On report. 'Action of debt to recover a tax for the year 1910, assessed upon 228 shares of bank stock owned by the defendant. An agreed statement of facts was filed and the case reported to the Law Court for determination. The case is stated in the opinion.

In equity. On -appeal' by plaintiff. Appeal dismissed. The case, as stated by the Justice who prepared the opinion, is as follows: “This is an appeal from a decree of a single justice dismissing a bill in equity asking for specific performance of an alleged contract by the defendant to convey to the complainant a strip of land across his homestead farm for its -right of way. “The plaintiff with many others signed an instrument in which it was stipulated that the signers…

<p>In equity. On report. Decree according to opinion.</p> <p>Bill in equity brought by the plaintiff as trustee under the will of John Barrows, late of Augusta, deceased, asking for instructions. Answers were filed. All allegations in bill and answers were admitted to be true, and the case reported to the Daw Court for determination.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>Action on the case to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, and caused by the alleged negligence of the defendant. Plea, the general issue. At the conclusion of the plaintiff’s testimony the presiding Justice ordered a nonsuit and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>Assumpsit to recover the sum of $453.95. Plea, the general issue. An agreed statement of facts was filed and1 the case reported to the Law 'Court for determination.</p> <p>Mr. Justice Bird who prepared the opinion, states the case as follows:</p> <p>“The defendant’s testator, Jeremiah B. Knowlton, was the owner of certain springs and prior to the date of the contract set forth below had advertised them as for sale in certain newspapers owned or controlled by plaintiff. On 'the day of its date the plaintiff and the testator executed the following agreement:—</p> <p>‘Phillips, Maine, Nov. 5, 1900.</p> <p>‘Memorandum of advertising contract between J. B. Knowlton of Strong, Maine and the Phillips Phonograph and Maine Woods Phillips, Maine, for advertising said Knowlton’s Soda and Sulphur Springs to such an amount as in the judgment of J. W. Brackett seems best but not to exceed the sum of ($1000), one thousand dollars a year for two years’ time under this agreement, the regular price for said advertising to be paid when said Springs are sold or upon sale of one of them. If the property named herein is sold within two years the amount to be paid by said Knowlton is simply the amount that will have been earned by the advertising up to that time. It is also agreed that J. W. Brackett’s bill of ($317.83), three hundred and seventeen dollars and eighty-three cents, for advertising said Springs previous to this date is also to be paid when said Springs or either of them is sold.</p> <p>‘There shall be no demand made for advertising until said Springs or one of them are sold or in some way change owners. This is.to be interpreted to mean that the heirs in case of said Knowlton’s death shall be no more liable than he unless there is business sufficient to pay it as managed by said heirs.</p> <p>J. W. Brackett, (Seal)</p> <p>J. B. Knowrton, (Seal)’</p> <p>Witness: W. D. Grant.</p> <p>“The plaintiff, in accordance with the contract, continued to. advertise the springs in the years 1901 and 1902.</p> <p>“On the 18th of April, 1906, the testator conveyed the springs, described in the contract, as a gift to his grandchildren who were the testator’s legal heirs. The testator died on the 12th day of March, 1907. By his will he left all his estate to his widow, the executrix. Since the conveyance to them,, his grandchildren have neither sold nor leased the springs nor received any income therefrom. The plaintiff claims that his charges for advertising are due and brings this action to recover the same.”</p>

<p>On report.</p> <p>Assumpsit to recover money which the plaintiff alleged he expended in order to make his title to land sol'd to him by the defendant and conveyed to him by deed of release and quitclaim, “good, complete and merchantable.” Plea, the general issue with brief statement invoking the statute of frauds. 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>Bill in equity brought by the plaintiffs “L. B. Fournier, Fortuna W. Pelletier, Beloni Hebert, Thomas Hebert, Raymond Albert and Eloi Albert, all oí Madawaska in said county of Aroostook, and all resident within the Northern Registry District of Aroostook County, all being six taxable inhabitants of said Madawaska in said county, against Samuel C. Greenlaw, of Presque Isle in said County, Lewis E. Jackman, of Sherman in said County, and Patrick Therriault, of Grand Isle in said County, as they are the commissioners of said County of Aroostook,” for the purpose of enjoining the defendants from erecting a building in Fort Kent for the office of registry of deeds in the Northern Registry District in said county and from borrowing money for that purpose upon the credit of the county. The defendants filed an answer alleging in substance that they were legally authorized to erect such a building at Fort Kent, that it was their legal duty as County Commissioners to erect such a building and that unless enjoined they intended to erect such a building. An agreed statement of facts was filed and the case reported to the Law Court “to render such final judgment as the legal rights of the parties require.”</p> <p>The case is stated in the opinion.</p>

<p> Libel and Slander. Newspaper Articles. Construction. Innuendo. Malice. Evidence. </p> <p>Whether a newspaper article is libelous is to be determined from an examination, not of a clipping, but of the entire article.</p> <p>A newspaper item stating that there was a deadlock over the extradition of the plaintiff, who was indicted for larceny from an estate, was not libelous as imputing larceny, where a subsequent paragraph of the same item stated that the specific charge 011 which the plaintiff was indicted was for procuring a genuine signature to an instrument, the false making ' of which would be forgery.</p> <p>In determining the effect of a newspaper item charging the plaintiff’s indictment, it is unnecessary that the reader should be able to make a legal distinction between the offense charged in the alleged libelous words ■and the offense described in the entire article.</p> <p>Where a newspaper article is claimed to be libelous as charging the commission of a public offense, the charge cannot be enlarged by innuendo.</p> <p>An editorial, stating that it was hoped that it was not true that extradition of the plaintiff, under an indictment for larceny from an estate, was denied because of political pressure, was not libelous as imputing larceny to the plaintiff, where the item further stated that the specific charge against the plaintiff was for procuring an order, through false pretenses, to deposit money.</p> <p>Newspaper articles concerning the plaintiff, and relied on by him as being libelous, cannot be deemed to be malicious, where the evidence showed that the plaintiff was unknown to the writer.</p>

<p>On exceptions by plaintiff.</p> <p>Assumpsit on an account annexed against the defendant in her capacity as executrix, to recover the sum of $3345-15, “and was heard on demurrer to the defendant’s brief statement filed with her plea of general issue.” The presiding Justice overruled the demurrer and ordered judgment for the defendant and the plaintiff excepted. The ruling of the presiding Justice overruling the demurrer was as follows :</p> <p>“Demurrer to defendant’s brief statement, which serves the purpose of a plea in bar, and the statements in which are agreed to be true.</p> <p>“The date of the writ is November 28, 1910, service on defendant, December 2, 1910. By the allegations in the brief statement, it appears that prior to the date of the writ, to wit: November 21, 1910, the defendant filed her petition in the Probate Court representing that the claim now sued was exorbitant, unjust or illegal, and praying for the appointment of commissioners in accordance with the statute. Notice was ordered for a hearing thereon December 7, 1910, and the notice was served on the plaintiff November 23, 191Ó. Commissioners were duly appointed, and after notice to the plaintiff, they met to hear and determine the claim and did so against the protest of the plaintiff. The commissioners filed their report in the Probate Court and it was accepted. The plaintiff filed notice of an appeal from the award of the commissioners, but did not prosecute his appeal. Upon these allegations, I think that after the defendant filed her petition in the Probate Court November 21, 1910, and in any event after the notice of the hearing thereon was served on the plaintiff, November 23, 1910, the Probate Court had sole and exclusive jurisdiction to determine in manner provided by statute the validity and amount due on the plaintiff’s claim, subject to appeal, and if this be so, it follows that the Supreme Judicial Court did not have original jurisdiction in this matter at the time this action was commenced. But it is alleged that pending the proceedings in the Probate Court, to wit: at the January Term, 1911, of this Court, the defendant filed a motion to dismiss this action on the ground that it was commenced after the petition above mentioned had been filed in the Probate Court, which motion was at the same term denied. It is contended' by the plaintiff that this denial was a judgment which bars or estops the defendant from further setting up the Probate proceedings in defense; in other words, that the defendant is concluded' by a denial of her motion to dismiss. I do not think so. A motion to dismiss reaches only such defects or defences as are apparent upon the face of the writ. It is not available to present defences dehors the writ. It raises no issue as to matters not disclosed by the writ. Upon a motion to dismiss, the court has no jurisdiction to determine any issue upon any matter that is not apparent by an inspection of the writ. In this case the motion to dismiss was properly denied, whatever be the merits or demerits of the action itself, because on the face of the writ there appeared no defects nor defences, and I must assume that the presiding Justice did not go beyond the scope of the motion to dismiss and attempt to decide questions which the motion to dismiss did not properly raise.</p> <p>“Therefore, the entry will be ‘Demurrer to brief statement overruled,’ and since the parties agree that the facts are correctly and truly stated in the brief statement, a further entry will be: ‘Judgment for the defendant.’ ”</p> <p>Memo. The commissioners .appointed by the Probate Court allowed the plaintiff on his claim $105.51, with $11.34 interest.</p> <p>The case is stated in the opinion.</p>

<p> Life Estates. Vendor and Purchaser. Deeds. Notice. Record. Priorities. Unrecorded Deedsw Adverse Possession. Evidence. Statute,. 1903, chapter 220. Revised Statutes, chapter 73, sections. 1, 8, 11; chapter 107, section 3, clause III. </p> <p>A life tenant’s warranty deed in fee conveys a life estate only.</p> <p>The title acquired under a recorded conveyance of specific real estate is valid against a prior unrecorded conveyance of the same property by the same grantor, unless it be shown that the grantee in the recorded conveyance, when he took it, had actual' notice of the previous conveyance.</p> <p>The doctrine which prevailed in Maine prior to chapter 220, Laws of 1903, that a conveyance of all the grantor’s interest in the land described in his deed conveyed only the interest he actually had at the time of the conveyance, so that such a conveyance, although recorded, would not be effectual against a prior unrecorded conveyance of the same land, was never applicable to conveyances, although of quitclaim without covenants, in which the property was specifically described as conveyed.</p> <p>In an action to recover land from the grantee under a recorded conveyance, the 'burden is on the plaintiff to show that such grantee took with actual notice of the existence of the plaintiff’s prior unrecorded deed.</p> <p>In an action to recover land, evidence held insufficient to show that when the defendant took under a recorded conveyance he had actual notice of the plaintiff’s prior unrecorded deed.</p> <p>A life tenant’s warranty deed in fee and a grantee’s taking of actual possession thereunder, do not work a disseizin of the remaindermen, since their right of entry does not accrue until termination of the life estate by its own limitation.</p> <p>Under Revised Statutes, chapter 75, section 1, one owning land and having a right of entry into it, whether seized of it or not, can convey all his interest in it.</p> <p>Possession and occupation of land by the grantees of a life tenant, under a warranty deed in fee, does not become adverse to the remaindermen until the life tenant’s death, since until that time the possession and occupation is rightful.</p> <p>In an action to recover land, evidence held insufficient to show adverse possession by the plaintiff.</p>

<p>On report.</p> <p>Assumpsit on a policy of fire insurance. Plea, the general issue with brief statement alleging in substance that the policy was rendered void because of misstatement of material facts in the written application for the policy and also because of a prior valid insurance on the property when the policy in suit was issued, etc. 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> Trustee process. Executory Contracts. Corporate Officers. Evidence. </p> <p>One is not chargeable as trustee for the price of bonds on his breach of an executory contract to buy them.</p> <p>On trustee process, evidence held insufficient to show that the alleged trustee was indebted to the principal defendant.</p> <p>The treasurer of a corporation cannot be charged under trustee process for its property in his official custody.</p>

<p> Wills. Construction. Power of Sale. Remainders. </p> <p>In construing a will, the testator’s intention collected from the whole instrument and considered with reference to all the surrounding circumstances, his family, the nature, amount, and situation of his property, and his avowed or manifest purpose, should govern.</p> <p>A will directed that all the testator’s property should be held in trust for payment of the income to his widow during her life, gave her the use of the homestead and its furniture, and provided that, if the income should not be sufficient to comfortably maintain her, the executor might use as much of the principal as he deemed necessary, and that at the widow’s death the estate then remaining should go to testator’s two stepsons, and to his own son in stated proportions. Held, that the remainders vested in the son and stepsons at testator’s death subject to divestiture by execution of the trustee’s power of disposal during the widow’s lifetime, and that the executor was not empowered to sell the land for the purpose of distributing the estate on death of the widow.</p> <p>A testamentary remainder will not be construed to be contingent if, consistently with the testator’s intention, it may be deemed vested.</p>

<p> Brokers. Real Estate Brokers. Commissions. </p> <p>To entitle a real estate broker to a commission for procuring a prospective purchaser, he must produce a customer willing and prepared to purchase and pay for the property at the price and on the terms given by the principal to the broker.</p> <p>In an action for a real estate broker’s commission, it was proper to refuse to instruct that the fact that payments were not made by the purchaser would not bar plaintiff’s right to recover, if a sale had been made, where it was admitted that payments were not made, and the question as to whether a sale had been made was fully covered by the instructions given.</p>

<p> Bankruptcy. Discharge. Poor Debtor’s Bond. Revised Statutes, chapter 114, sections 49, 65. </p> <p>The defendant Murphy having been arrested on execution, obtained his release by giving a six month’s bond signed by himself as principal and by the other defendants as sureties, conditioned as provided in Revised Statutes, chapter 114, section 49, to wit, that he would “within six months thereafter, cite the creditor before two justices of the peace; submit himself to examination, and take the oath prescribed in section fifty-five; pay the debt, interest, costs and fees, arising in said execution; or deliver himself into the custody of the keeper of the jail to which he is liable to be committed under said execution.” A few days before the six months expired the defendant Murphy filed his petition in bankruptcy and was discharged six weeks after the bond had run out. None of the conditions of the bond were performed.</p> <p>Held: 1. That at the expiration of the six months named in the bond, neither of the alternative conditions of the bond having been performed, the liability of the sureties became fixed, and a right of action upon the bond then accrued to the plaintiffs.</p> <p>2. That Murphy’s discharge in bankruptcy granted after the breach of the conditions of the bond was not a bar to an action on the bond.</p> <p>Fogg Company v. Bartlett, 106 Maine, 122, distinguished.</p>

<p>On report.</p> <p>Assumpsit to recover a balance due on a note given by Ora A. Fleming and guaranteed 'by the defendant. Plea, the general issue with a brief statement alleging “that the consideration for which the supposed guaranty was made has wholly failed.” 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>Petition filed 'by George W. Maxfield in the matter of the receivership of Tyler, Fogg & Co. asking the court to issue an order directing the receiver of that firm to restore to him a package of money containing $500 in bills, which the petitioner deposited with the cashier of the firm for safe keeping April 22, 1911. 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>Money had and received. The declaration in the plaintiff’s writ is as follows: “In a plea of the case, for that the said' The Travelers Insurance Company at said Bangor, on the sixth day of July, A. D. 1908, was indebted to the said Joel Richardson, in his lifetime, in the sum of one thousand one hundred and' forty-eight dollars, for so much money before that time had and received by the said The Travelers Insurance Company for the use of the said Joel Richardson, and in consideration thereof, then and there promised the said Joel Richardson to pay 'him the same on demand; yet, though requested, the said The Travelers Insurance Company never paid the same to the said Joel Richardson in his lifetime, nor since the decease of the said Joel Richardson to the plaintiff, but neglects and refuses so to do, to the damage of said plaintiff, in his said capacity of administrator, as he says, the sum of two thousand dollars, which shall then and there be made to appear, with other due damages.”</p> <p>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 exceptions 'by petitioners.</p> <p>The case is stated in the opinion. (See Batchelder & Snyder Company v. Saco Savings Bank, 108 Maine, 89.)</p>

<p> Bailment. Lien for Storage. </p> <p>A person, not an- inn-keeper or warehouseman, nor in the business of storing goods, who permits the property of another to remain on his premises under an agreement that storage is to be paid, but without any agreement for a lien, has no li-en for the storage at common law.</p> <p>Held: That a ruling that the defendant was entitled to a lien for the storage of certain hay if there was an understanding or agreement between the parties that the storage was to be paid for, was erroneous and that the defendant had no such lien at common law.</p>

<p> Street Railways. Injury to Pedestrian. Negligence of Motorman. Parent, and Child. Injury to Child. Contributory Negligence. Capacity of Child. Care of Child. </p> <p>In an action against a street railway company for death of the plaintiff’s child by being struck by a street car, evidence held to show that the motorman failed to exercise that degree of care which the situation demanded, especially in failing to reduce the speed of the car and having it under control as demanded by the exigencies of the occasion, and that it did not show any want of due care on the part of the child.</p> <p>Though the court can say, as a matter of law, that there is an age at which a child cannot exercise any care under the circumstances, and also an age when the court can say, as a matter of law, that a child is capable of exercising some care under the circumstances, between these limits are the ages where it is for the jury to determine the capacity of the child to exercise care for itself.</p> <p>However young a child may be, the negligence imputable to the parent or custodian from the mere presence of the unattended child in the place of danger is only prima facie and not conclusive.</p> <p>The facts and circumstances in explanation of a child’s presence unattended in a place of danger are always to be considered. No hard and fast rules as to the care of children can be laid down and the financial condition of the family and the other cares devolving upon the parents are not to be ignored.</p> <p>Where a mother was obliged to go to a nearby market for something for supper and left her five year old child wit'll a nine year old daughter on ' the sidewalk, telling the latter to watch the child which she promised to do, and the young child was struck by a street car during her absence, •held that the mother was not guilty of contributory negligence.</p>

<p> Exceptions. Laches. Jurors. Judgment. Dismissal. Review. Revised Statutes, chapter gi, section 1, paragraph VII. </p> <p>A petitioner’s right to writ of review is not defeated on the ground of laches in failing to procure signature and allowance of a bill of exceptions before the trial judge died, where he had five days left within which to present the bill under an allowance of time.</p> <p>Tn actions brought on notes and defended on the ground of forgery by a third person, jurors who had tried a similar action, wherein identical facts were involved, were disqualified; and it was improper to refuse defendant a continuance on the ground of such disqualification, especially since defendant intended to call as a witness one who had been taken in custody in the presence of the jurors in the other action on a charge of perjury.</p> <p>A judgment of the Law Court, dismissing exceptions brought from the Superior Court for want of prosecution, not being on the merits, cannot be urged as res adjudicata.</p> <p>A petitioner being prevented without his own fault from taking cases from the Superior to the Law Court on exceptions, through the death of the Judge of the Superior Court before exceptions were allowed, is entitled co present them by petition for review.</p> <p>To entitle one to a writ of review, he must show that justice has not been done; that the consequent injustice was through fraud, accident, mistake or misfortune, and that a further hearing will be just and equitable. Where one asks for review of two actions, he should present a petition in each action; but, where the same facts apply to both cases, a single petition may be discontinued as to one of the causes, without prejudice, and a writ of review issued in the other.</p>

<p> Corporations. Dissolution. Disposition of Property. Contracts. Construction. </p> <p>In June, 1906, plaintiff and defendant organized a corporation in which each held one-half the stock, and to which they assigned leases on theaters, under an agreement (that on any dissolution “the theaters, including the personal property, good will, and business of each shall be retransferred to the party from whom they were respectively received by the corporation;” and any new theaters leased should be taken by the highest bidder. Plaintiff previously held a lease on the F. theater, expiring in 1912, subject to termination on one year’s notice in case of a sale. In April, 1906, a corporation, whose control by defendant was concealed by him, purchased the theater and gave notice terminating the lease May 1, 1907. Plaintiff’s assignment included his rights under this lease. In 1907 a new lease was given by defendant’s company to the corporation first mentioned. Held that, on dissolution, it was not error to award a transfer of the lease on the F. theater to plaintiff under the clause of the contract above quoted.</p>

<p> Indictment. Records. Judicial Power. Lost Indictment. Substitution. Constitution of Maine, Article I, Section 7. </p> <p>An indictment duly found, returned, and filed becomes a part of the records of the court.</p> <p>At common law and independent of any statute, courts have an inherent power to preserve and protect their own records and to substitute copies of lost records.</p> <p>Copy of a lost or mislaid indictment may be substituted by order of the trial court as soon as the loss is discovered and before the case is submitted to the jury, but omission to do so before conviction is not fatal; the substitution being properly made upon satisfactory evidence at a forthcoming nisi prius term.</p>

<p>On report.</p> <p>Trespass quare clausum fregit to recover damages for the construction of a road across the plaintiff’s land. Plea, the general issue with a brief statement alleging that any acts done by the defendants on the plaintiff’s land were done in the construction of an alteration of an existing highway laid out by the county commissioners of Lincoln County. The case was first submitted to the jury on the question of damages which were assessed at $270, and then was reported to the Law Court for determination, with the following stipulations: “If the plaintiff is entitled to recover because there is no legal road at the place where the trespass is claimed to have been committed judgment is to be awarded for the plaintiff for the sum of two hundred and seventy dollars ($270.00), it being the amount fixed by the jury as damages. If the plaintiff is not entitled to recover as above, the court is to determine whether there is a trespass outside the location, and if so,, assess the damages therefor. If no liability, judgment shall be for the defendants. All objections to the testimony to be passed upon by the Law Court and the case to be determined upon that which is admissible.”</p> <p>The case is stated in the opinion.</p>

<p>In equity. On report.</p> <p>Bill in equity brought by Herbert J. Sawyer of Mattamiscontis, an unorganized township in the County of Penobscot to enjoin the defendant, and his successors in office, from collecting a tax assessed under the provisions of Chapter 177 of the Public Laws of 1909, entitled “An Act relating to the Common School Fund and the means of providing for and distributing the same.” Bill dated July 27, 1910. An answer was filed by the defendant. By agreement the case was reported to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

On report. Action on the case ¡to recover damages for an alleged false imprisonment of the plaintiff in the common jail at Alfred in the County of York. Plea, the general issue with a brief statement alleging in substance that the plaintiff was arrested and committed to jail on a process issued by a disclosure commissioner upon an execution in favor of the defendant.

On report. Action of assumpsit on a written contract of guaranty to recover the sum of $1812.20. Plea, the general issue. At the conclusion of the evidence the case was reported to the Eaw Court for determination. The case is stated in the opinion.

<p> Appeal. Cumulative Evidence. Declarations. ' Discretion. Error. Exceptions. Homicide. Issue. Limitations. Malice. New Trial. Reasonable Doubt. R. S., Ch. 133, Sec. 27. </p> <p>At the October Term 1911, of the Supreme Judicial Court for the county of Oxford, the respondent was found guilty of the murder of his wife,Rosina Albanes on May 11, 1911. He thereupon filed a motion for new trial, which was denied by the presiding Justice, and an appeal from this decision was taken to this court under R. S., Ch. 135, Sec. 27. Various exceptions were also reserved.</p> <p>1. That the single question before this court on this branch of the case is vMIut m view oí Till the. testimony “the wete vra-tasted hr believing beyond a reasonable doubt and therefore in finding, that the defendant was guilty of the crime charged against him.” State v. Lambert, 97 Maine, 51.</p> <p>2. That a careful study of the occurrences which were either uncontroverted or which from the evidence the jury were warranted in believing took place, not only justified but demanded the verdict rendered. There was ample evidence both of implied and of express malice.</p> <p>3. That it is the opinion of the court that the jury were warranted in finding that a husband who, armed with a revolver, fired three shots at his defenseless wife with no more provocation than is here revealed and especially after twice making threats to kill her if the divorce case which he had brought against her were continued, who turned and left her lying upon the floor in the blood that was pouring from her wounds without attempting to ascertain whether she were living or dead, or to call a physician to her assistance, (although she lived -three hours and regained consciousness before her death), but sought his own safety in delivering himself up to the officers, who never afterwards manifested the slightest remorse or even regret at his deed but rather continued to cherish his hatred towards her, for though a man of some property, when asked by the undertaker on the next day after the homicide when he wanted her buried-, answered “tonight,” and when -asked in what price casket, told the undertaker to “bury her in a pine box” if he could not get a casket for ten dollars, is, according to the laws- of Maine, guilty of murder and nothing less.</p> <p>1. That the evidence of John Zacolli as to certain conversation he had with the deceased on the day before the shooting, offered “to show what she had to say about Joe Bill’s manner” was properly excluded. It was merely hearsay.</p> <p>2. That the ruling of the court tha-t evidence charging the deceased with adultery “must be confined to acts occurring within one, two, three or four days prior to the homicide” was at the most harmless error. Such facts would not be admissible unless they were -brought to the knowledge of the respondent, and no evidence was offered to that effect. Moreover the record shows that the respondent had been informed of his wife’s alleged relations with one Nicola Balistin and had brought a libel for divorce against her on the ground of adultery. Harmless error, if such there was, .should not be permitted to overturn a just verdict.</p> <p>3. That, two of the leading citizens 'of Rumford having testified to the good reputation of the respondent in that community in which he had lived for the preceding ten years, the exclusion of the testimony of two witnesses to the same effect from Lewiston where he had lived for ten years prior to coming to Rumford was not reversible error. This inquiry under ordinary circumstances is confined to the .place of residence at the time of trial, provided the residence there has been of sufficient length for a reputation to have been acquired.</p> <p>Moreover the question of relevancy or irrelevancy on the ground of remoteness in time is a preliminary question to be determined by the presiding Justice in his discretion and his ruling will not be disturbed unless the -discretion has’ been grossly abused.</p> <p>Further, in this case, the evidence offered was merely cumulative, as this point was not challenged by the State, and the court has 'the power to impose a reasonable limitation upon the number of witnessses who shall be permitted to testify on the issue of character.</p> <p>4. That the evidence of the undertaker as to the declarations of the respondent made on the next day after the homicide, in regard to the interment of his wife was admissible as -bearing upon the question of express malice, its weight, being for the jury.</p>

<p> Agents. Brokers. Fiduciary. Trust. Insolvency. Rights of Creditors. </p> <p>Payment for corporate shares to a stock brokerage firm does not give the buyer priority as to his claim for return of the money on receivership proceedings against the firm before the stock could be secured by the firm, though the firm’s balance in the fund in which the payment was deposited never fell below the amount of the payment; the transaction being an ordinary stock sales contract, and involving no fiduciary relation between the parties.</p>

<p>On an agreed statement of facts.</p> <p>Action of debt to recover a tax assessed by the plaintiff town against the estate of Charles Forster, deceased testate, for the year 1910. Plea, the general issue with a brief statement alleging “that said estate is not liable to a personal property -tax in said town.” 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> Bills and Notes. Estoppel. Liability of Parties. Presumptions. Principal and Surety. </p> <p>1. In the absence of agreement to the contrary, the parties to a note are presumed to be liable on it according to the legal effect of the instrument.</p> <p>2. Defendant, an indorser of a note, who induced plaintiff to indorse by deceiving her into believing that by indorsing below his name she would become merely a surety for him, is estopped to deny that he assumed the relation of principal to plaintiff.</p>

<p> Taxation. Personalty. Where Taxable. Property Bmployed in Mechanic Arts. </p> <p>bogs and lumber used at a mill for manufacture of boxes for the manufacturer’s use in shipping explosives are taxable as personalty “employed in the Mechanic Arts,” within Revised Statutes, Ch. 9, sec. 13, par. 1, in the town where the mill is located.</p>

<p>On exceptions by plaintiff.</p> <p>Action on the case to recover damages for the alleged negligence of the defendants in leaving unguarded a hole cut in the ice on Saint Croix Lake, Aroostook Comity, during a part of the logging season of 1909 whereby the plaintiff lost a horse by drowning. Plea, the general issue. At the conclusion of the plaintiffs’ evidence a non-suit was ordered and the plaintiffs excepted.</p> <p>The case is stated in the opinion.</p>

<p> Motion to Dismiss. Pleading. Property. Process. Natural Flow. Waters. </p> <p>1. A motion to dismiss lies only to some defect which can be seen on inspection of the writ alone. It does not lie, where to support or resist it, proof is necessary dehors the writ.</p> <p>2. The plaintiff as a lower mill owner had the right to the natural fldw of the river, which right is regarded and .protected as property.</p> <p>3. Before the defendant had a right to take and detain the waters of the ■river, it was incumbent upon him to take the water in the same manner as it would be required to take other property.-</p>

On exceptions by defendant. Complaint and warrant under Revised Statutes, chapter 29, section 49, authorizing the process for search and seizure of intoxicating liquors.

In equity. On report. Bill sustained. Bill in equity against eighteen defendants praying for the construction of the will of James P. Parker, late of Bangor. In addition to the defendants named in the bill, the Bangor Young Men’s Christian Association located at Bangor, and the Good Samaritan. Home also located at Bangor, were by leave of court admitted as parties defendant. Answers were filed by all the defendants.

<p>In equity. On report.</p> <p>Bill in equity asking for the construction of the last will and testament of Llewellyn J. Morse, late of Bangor. Answers were filed by the several defendants. At the conclusion of the hearing before the Justice of the first instance, the case was reported to the Law Court upon bill, answers and proof, “the Law Court to render such final judgment as the legal and equitable rights of the parties require.”</p> <p>The case is stated in the opinion.</p>

<p> Assumpsit. Account. Burden of Proof. Contract. Deed. Destruction of Deed. Delivery. Lease. Minor. Title. Novation. </p> <p>1. The destruction of a deed once delivered cannot destroy the title which had been conveyed.</p> <p>2. The plaintiff cannot recover for the use and occupation of real estate to which she had no title.</p> <p>3. The plaintiff invokes the doctrine of novation 'based upon the alleged promise by the defendant to pay to her the amount due from the defendant to Hovey and an agreement on Hovey’s part that this should be done, but the doctrine of novation does not apply. She was a stranger to the transaction, while novation implies the substitution of a debtor, of a creditor and of a new contract.</p>

<p>On report.</p> <p>Assumpsit on a policy of fire insurance to recover for a loss. 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> Appeal. Autrefois Convict. Complaint and Warrant. Exceptions. Motion in Arrest of Judgment. Instructions. Pleading. Intoxicating Liquors. </p> <p>1. Upon the imposition of sentence, the taking of an appeal and filing an appeal bond, the jurisdiction of a magistrate or judge of a municipal court is at an end and he has no further jurisdiction of the case unless the appellant withdraws his appeal as, and in the manner, authorized by R. S., c. 133, S. 19.</p> <p>2. When a motion is made by an appellant, under R. S., c. 133, S. 19, to withdraw his appeal, the powers of the magistrate are those only which are conferred by that section of the statute.</p> <p>3. A record is a memorial or history of judicial proceedings in a case, commencing with the writ or complaint and terminating with the judgment and only the records of magistrates which are made in the course of judicial duty are of force.</p> <p>4. Even when the record of prior conviction is in the same court, an attempt to set up a prior conviction by way of motion instead of 'by plea is not to be encouraged nor departures from the requirements of such a plea favored.</p> <p>g. Exceptions will be sustained only when it appears from the exceptions themselves that the court mistook the law.</p> <p>6. Like a demurrer, a motion in arrest of judgment is addressed only to the record and can introduce no facts not appearing therein.</p>

<p> Agreement. Commissions. Contract. Exceptions. Extension of Option. Motion. Quantum Meruit. </p> <p>1. The plaintiff had two written options given by the defendant authorizing him to sell certain timber land at commission of 5% within a specified time and at a price named. The time named in both options had expired and no sale had been affected and no customer obtained ready and willing to pay the price named. The plaintiff claimed that, in addition to the written options, the defendant promised to pay him for his services in trying to find a customer for the property, even if the property should be sold to other parties by the defendant. Whether there was such a contract as the plaintiff claimed, in addition, to the options, was an issue of fact for the determination of the jury.</p> <p>2. The following instruction to the jury on the question of damages were held to be correct: “You are to make the plaintiff whole as near as you can. I don’t know how you will figure it. It appears that the plaintiff did more or less work. It seems impossible for him to state what he did, but in arriving at the amount which he is entitled to, if entitled to anything, you will consider the value of the property and the effort he made, according to the evidence, and determine what would be a fair, a reasonable price for the services performed.”</p>

<p>On report.. Appeal denied.</p> <p>This is an appeal of the Bangor Railway and Electric Company from a decree of the Railroad Commissioners ordering the Railway and Electric Company to build a new steel highway bridge across the Stillwater branch of the Penobscot River at Orono in place of the present wooden structure.</p>

<p>On motion and exceptions. Exceptions overruled. Motion overruled, if plaintiff remits all of the verdict in excess of $2133.28 within thirty days after the certificate is filed; otherwise motion sustained.</p> <p>This is an action of assumpsit to recover the price of certain agricultural implements and fittings sold and delivered to the defendant, amounting to $4,607.35. The plaintiff recovered a verdict for $3,958.35. Plea, general issue and brief statement.</p> <p>The case is stated in the opinion.</p>

<p> Action on the Case. Blasting. Corporation Damages. Liability. Negligence. Party. Waiver. Water System. Chapter 243 of Private and Special Laws of 1895. </p> <p>Points not made at the trial are not open to the party at the hearing before the Paw Court. It is the well settled rule that points not made at the trial are considered as waived.</p> <p>A party should not be silent when he ought to speak.</p> <p>It is true that there are exceptions to this rule and that the court, sometimes, will of its own motion, consider and determine issues upon points not suggested by either party, in the furtherance of justice.</p>

<p>On exceptions by defendant.</p> <p>This is an action to recover damages alleged to have resulted from the negligence of the defendant in scaling certain logs. The plaintiffs made a written contract with one Foster to cut and haul merchantable logs on the timber lands owned by them in the town of Guilford, and therein stipulated that the timber and wood should be scaled by a disinterested sworn surveyor, “to be paid by the plaintiffs. The defendant was selected by the parties to that contract, -to survey the logs cut thereunder and. it was mutually agreed that his scale should be final and binding between the parties as the basis of payment under that contract. There was a discrepancy between the scale made by the defendant in the woods and that made by another scale at the mill in Foxcroft of 49,326 feet. The plaintiff claimed to recover as damages the sum of $221.97, being the contract price of $4.50 per thousand feet on 49,326 feet.</p> <p>The presiding Judge was requested to rule, “that if the defendant was appointed by plaintiff and Robert Foster to scale lumber cut by Foster, under contract with plaintiff, and in the contract it was then and there agreed that the scale so made by this defendant should be final and binding between the parties, then the defendant acted in the capacity of an arbitrator between the parties, or at least as a quasi arbitrator, and if the performance of his said duty requires the exercise of skill and judgment, then the defendant is not liable in this action, there being no proof or allegation of fraud.”</p> <p>The presiding Judge declined to give this instruction but upon this branch of the case, instructed the jury as follows:</p> <p>“I say, too, that if upon all the testimony in this case, upon one side and the other, weighing it as I have suggested, you should find from a fair preponderence of the evidence, that you are convinced thereby that the defendant in this -case was negligent or careless in the scaling of these logs, and that through his negligence and carelessness a mis-scale was made or a misstatement was made of the amount of the scale, and that thereby the plaintiffs paid any amount of money, under the original contract, that then this defendant is liable.”</p> <p>To which ruling and refusal to rule the defendant excepted.</p> <p>The jury returned a verdict for the plaintiffs of $82.98.</p> <p>Plea, the general issue and brief statement alleging good faith in the scaling of said lumber.</p> <p>The case is stated in the opinion.</p>

<p> Application. Agent. Assent. Avoidance. Contract. Loss. Material misrepresentation. Policy. Occupancy. Vacancy. Unoccupied. Verdict. Warrant. Waiver. </p> <p>Where there is evidence upon which the jury is warranted in finding that the fact of non-occupancy was known to defendant’s agent who procured the application for a policy of fire insurance, the agent’s knowledge must be deemed to be the knowledge of defendant and all misdescription regarded as waived (R. S., ‘Chap. 49, Sec. 93) and the policy issued upon such application is not void by reason of false representation.</p> <p>Where an application for renewal of a policy of insurance is signed in blank by the insured and subsequently filled out by the agent of the insurer, the act of the agent is that of the insurer.</p> <p>A motion for a new trial on the ground of excessive damages will not be granted when the court finds in the verdict, viewed in the light of the evidence, no indication of bias, prejudice or improper motive on the part of the jury.</p>

<p>On exceptions by the plaintiff.</p> <p>This is an action of trespass in which the plaintiff alleges that he was illegally arrested and imprisoned upon a tax illegally assessed. The conceded facts show that the defendant, Shedd, tax collector of the town of Mattawamkeag, arrested the plaintiff for refusal to pay the tax assessed against him in 1908 by the other defendants, Webster, Wyman and Applebee, purporting to be the legally qualified assessors for that year.</p> <p>Plea, the general issue with brief statement justifying his acts.</p> <p>On motion and exceptions. Motion waived. Exceptions sustained.</p> <p>Case is stated in the opinion.</p>

<p> Accident. Amendment. Burden of Proof. Exceptions. Motion for New Trial. Negligence. Prima Facie. Verdict. </p> <p>1. The defendant was described in the writ as the Atlantic Shore Railway 'Company, otherwise known as the Atlantic Shore bine Railway Company. The plaintiff was allowed to amend by striking out the word “Company” in both places. The amendment was properly allowed.</p> <p>2. When a plaintiff fails to prove any one essential element of his case, exceptions lie to a refusal to direct a verdict for the defendant.</p> <p>3. There was sufficient evidence, prima facie, at least, to warrant a jury in finding that the defendant company was operating the car on which the .plaintiff received the injury complained of. Hence a motion to direct a verdict for the defendant for want of such proof was properly denied.</p> <p>4. When in a suit against an electric railway company it is shown that an electric car was derailed, and the plaintiff, a passenger, was injured in consequence of the derailment, that is sufficient evidence prima facie of the defendant’s negligence. The burden of explanation then falls upon the defendant.</p>

<p>On appeal from the decree of a single justice who ordered a reformation. Appeal denied.</p> <p>This is a bill in equity to reform a contract, between the Brunswick and Topsham Water District and the Inhabitants of Topsham for an extension of the Water System by the Water District across the Androscoggin River into the village of Topsham. The plaintiff claims that the contract drafted and executed does not express the terms to which the parties actually agreed and which were intended to be expressed. To sustain the bill, the plaintiff must show that there was a mistake and that it was mutual by a very high degree of proof.</p> <p>Case stated in the opinion.</p>

<p>On appeal from decree below. Appeal denied.</p> <p>1. This is a bill in equity, brought to enforce a mechanic’s lien under the provisions of Revised Statutes, Chapter 93, Section 29. The plaintiff was the contractor and furnished labor and materials in erecting the building under a contract with the Maine Supply and Garage Company, dated October 20, 1910. The Androscoggin County Savings Bank, on January 4, 1911, took from the Maine Supply and Garage Company a mortgage of the building and the land on which it stood to secure a loan of $15,000.</p> <p>2. The plaintiff has a valid lien, for the amount of $4,543.15 due him, upon the property owned by the Maine Supply and Garage Co.</p> <p>3. That said) lien is entitled to priority in payment over the right of said Androscoggin County Savings Bank under the mortgage given it by said Maine Supply and Garage Company.</p>

<p>On motion and exceptions by the defendant.</p> <p>This is an action for money had and received. The plaintiff and defendant are mother and daughter. The plaintiff claims that the defendant took title to certain real estate in Hallowell. That the sum of twelve hundred dollars was paid therefor, four hundred dollars of which were paid by the plaintiff for one-third interest,, and that the title to the whole was taken in the name of the defendant by mutual agreement. The defendant, thereafter, sold said real estate for $1350.00, and refused to account to the plaintiff for any part of the money so received. The defendant claims that the four hundred dollars contributed by plaintiff towards the purchase price was a gift or advancement of the inheritance which might come to her upon her mother’s death. Plea, the general issue. The jury returned a verdict for the plaintiff for $413.40.</p> <p>The defendant filed a general motion for a new trial and exceptions.</p>

<p> Abandonment of Contract. Contract. Change of Location. Credibility of Witnesses. Charter. Location. Survey. Street Railway. Supplemental agreement. </p> <p>1. The plaintiff made a contract in writing with the defendant to construct for it a road bed for a single track railroad from Presque Isle to Washburn. The contract itself was silent as to the precise location of the railroad. The plaintiff claims that the contract was understood to be, and was in reality for a road bed along an approved location, mostly within highway limits. The defendant claims that it was understood to be for a road bed along an intended location through fields, woods and swamps, mostly outside of highway limits. The road bed was in fact constructed along the intended location, outside of the highway. The plaintiff claims that it consented to a modification of the contract, changing the location from the highway to the place where the road bed was constructed in consideration of the defendant’s promise to compensate it for the additional expense and difficulty occasioned by the change, and to pay what the labor and materials used in constructing the road bed along the new location were reasonably worth. This suit is brought to recover additional compensation under this alleged promise.</p> <p>Upon this principal issue in the case, the court is of opinion that the plaintiff has failed to show by a preponderance of the evidence that the original contract was understood to be for a road bed within the highway limits, or that there was a modification of the contract, or that it is entitled to receive more than the original contract prices, so far as the location is concerned.</p> <p>2. Some of the timber furnished by the defendant for the plaintiff to use in erecting trestles was unsound and unsuitable, and was on that account more expensive to the plaintiff to work, than would have been the case if the timber had been reasonably sound and clear. The court is of opinion that the plaintiff should be allowed $200 additional, on account of this timber.</p> <p>3. The plaintiff, a contractor, agreed to do certain work “on force account, ’ the defendant to pay the actual cost, plus ten per cent. In the contract it was provided that the wages of common laborers was not to exceed $2 a day. This is not to be construed as authorizing the plaintiff to pay $2 a day under all circumstances but only so much as was reasonably necessary, and in no event to exceed $2 a day. The defendant complained to the plaintiff that it was paying higher wages than was reasonably necessary. The complaint resulted in the .plaintiff’s leaving the work, and it now claims that it was discharged. The evidence shows that the defendant was justified in the complaint that was made, and that the plaintiff could not complain, and take it as a breach of contract, if the defendant refused to continue to pay unreasonably high wages.</p>

<p>On report.</p> <p>This is an action of trespass quare clausum against defendant for breaking and entering the plaintiff’s close, situate in Farming-ton, in the County of Franklin, and cutting trees and 'destroying wood and bushes, etc.</p> <p>Plea, the general issue and brief statement as follows: Defendant says that he had a right of way over and across the plaintiff’s close and that the alleged trespass was only t'he rightful use of said way. The case was reported for the determination of the Law Court upon so much of the evidence as is legally admissible.</p> <p>The case is stated in the opinion.</p>

<p> Accident. Contributory Negligence. Damages. Defect. Exceptions. Motion. Negligence. Notice. Substitute for Road Commissioner. </p> <p>1. The alleged defect was a hole between two planks of the sidewalk into which the plaintiff stepped her heel and was thereby thrown upon the walk. The testimony of the witnesses for the plaintiff and the defendant, as to the size of the hole, varied from 6 inches in length by 3 1-2 inches in width to 10 inches in length by 1 7-8 inches in width. Held; whether the jury determined the size of the hole to be precisely as claimed by plaintiff or defendant may not be very material, for they were justified in finding that it was large enough at least for a woman’s heel to go down into it easily. And it was for them to decide whether this sidewalk on the •bridge between the cities of hewiston and Auburn, with such a hole in it, was defective within the meaning of the statute—or, in other words, was not safe and convenient for travel over it. Their decision was that it was defective and in the opinion of the court that decision was justified by ■the evidence.</p> <p>2. One of the essentials required by R. S., 'Ch. 23, Sec. 76, to be shown by. the plaintiff in order to maintain an action for damages for injuries received 'by reason of any defect or want of repair of a highway or town way against the county or town required by law to keep the way in repair is that the commissioners of such county, or the municipal officers, or road commissioners of such town, or any person authorized by any commissioner of such county, or any municipal officer or road commissioner of such town to act as a substitute for either of them had twenty-four hours’ notice of the defect, or want of repair before the accident. Whether Hiram T. Spencer was authorized to act as a substitute for the road commissioner of Tewiston, within the meaning of the statute, and whether he had twenty-four hours’ actual notice of the alleged defect were questions of fact for the jury and the evidence justified the jury in deciding these questions in the plaintiff’s favor.</p>

<p> Appeal. Award. Bounds and Admeasurements. Damages. Highivay. Highway Surveyor. Justification. Trespass Qtiare Clausum. Waiver. </p> <p>Trespass quare clausum, on report. The defendants admit the acts complained of but plead in justification that they were done by them in building a town road as laid out by the selectmen.</p> <p>The way was laid out around a hill for a distance of about fifty rods over cleared land, and the defendants built an ordinary road about fifteen feet wide over the way as laid out. The work was done on Friday and on the following Monday the plaintiff plowed and harrowed the way, in part at least, and planted it in connection with the cultivation of the adjoining land.</p> <p>It clearly appears that the defendants did the acts complained of without authority of any vote of the town, or direction of the selectmen, highway surveyor or road commissioner. They acted in their own discretion as private individuals and without permission of the plaintiff express or implied.</p> <p>Held; that the statutory laying out of a town way affords no legal justification for the acts of a private individual in building a road over the way unless at least he was acting as a highway surveyor or road commissioner, or was in some way authorized and directed by the town to build it.</p> <p>The acts complained of were committed without legal justification and the defendants are liable therefor in this action of trespass.</p> <p>The actual damages sustained by the plaintiff on account of the defendants’ -acts were comparatively small, and in the opinion of the court the facts and circumstances do not require that any punitive damages should be awarded.</p>

<p>On exceptions by plaintiff.</p> <p>A;n action of trover for a watch and chain. The plaintiff obtained the property from the National Jewelry Company under a written contract dated September 9, 1911, when she agreed to pay $29.50 therefor, $1.00 upon signing of contract and $1.00 per week until the whole sum was paid. It was stipulated in the contract that the plaintiff should not acquire title to the watch until the whole sum was paid. The plaintiff paid only $1.00 and claimed that her husband stole the watch from her and that a Mrs. Hemond pawned it with the defendant. Plea, the general issue.</p> <p>At close of plaintiff’s evidence, a nonsuit was ordered1 and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p> Appeal. Bequest. Decree. Device. Executors. Fraud. Jurisdiction-Power of Attorney. Testator. Trust. Trustees. Will. </p> <p>An appeal from a decree of the Judge of Probate of Knox 'County, appointing Samuel A. Burpee, Trustee under the will of Samuel H. Burpee, who died testate in May, 1906, leaving six children, four sons and two daughters. The fifth item of the will is as follows:</p> <p>“Fifth—I hereby nominate and appoint my sons Samuel A. Burpee, 'Charles E. Burpee, Richard H. Burpee and John A. Burpee, executors of this will and hereby direct that no bond be required of them, nor shall they be required to return inventory or settle account in either capacity as Executors or Trustees.”</p> <p>The four sons named in the will as executors and Trustees never qualified as trustees by giving bonds as required by statute, and their nomination as trustees was never confirmed by the Judge of Probate. But during the four years succeeding the death of the testator, the affairs of the estate appear to have been managed by the appellee Samuel A. Burpee with the acquiescence of his co-executors.</p> <p>In March, 1907, a power of attorney was given to the appellant by the executors to collect and distribute the income of the estate, but was surrendered by the appellant upon complaint of the co-executors that he had exceeded his authority thereunder and abused his trust.</p> <p>Soon after the withdrawal of this power of attorney, the appellant and his brother Charles filed a petition in the Probate Court asking that they be appointed Trustees and thereupon the appellee and his brother Richard filed a similar petition as to themselves. After a full hearing the Judge of Probate appointed the appellee Samuel A. Burpee to be sole trustee.</p> <p>John A. Burpee appealed from this decree and filed thirteen reasons. But the evidence introduced in support of the appeal fails to substantiate any of the objections stated in the reasons of appeal.</p> <p>The question of the jurisdiction and authority of the Judge of Probate to appoint a sole trustee under this will in which four were named as trustees by the testator, but none of them qualified, is not one specifically raised by the reasons assigned for the appeal and hence is not now before the court.</p> <p>It is a well settled and familiar rule in this State that on such appeals the appellant is strictly confined to such matters and questions as are specifically stated by him in his reasons for appeal.</p>

<p>On petition to establish exceptions to a ruling by the court denying a writ of prohibition.</p> <p>This is a petition to establish exceptions to a ruling by the court denying a writ of prohibition brought under the provisions of Revised Statutes, Chapter 79, Section 55.</p> <p>On January 3, 1912, certain electors in Portland presented to one of the Justices of this court their petition alleging that corrupt practices, contrary to the provisions of Section 11 of Chapter T22 of the Public Laws of 1911, had been committed by the present petitioners in connection with a municipal election in Portland in December previous. Notice was ordered on this petition and the Chief Justice designated another Justice of this court to hear the petitioner with the Justice to whom this petition was presented.</p> <p>On the return day of that petition, the respondents moved to dismiss that petition on two grounds, namely, that it was not alleged in the petition that these petitioners were electors or voters at said municipal election, and that Section 12 of Chapter 122 of the Public Laws of 1911 was unconstitutional. The two Justices denied the motion. Thereupon these petitioners presented to another Justice of this court their petition for a writ of prohibition. A hearing w^as had on this petition at the April term, 1912, and the presiding Justice ruled as matter of law that the petition should be denied. At the same term the petitioners presented to the presiding Justice their written bill of exceptions to this ruling and the presiding Justice refused to allow the bill of exceptions and these proceedings were commenced to establish the truth of the exceptions,</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiff. This is an action on the case to recover for injuries to the plaintiff’s person and property resulting from a collision between the plaintiff’s motor boat, Carolyn, and the defendant’s steamer, City of Rockland, which occurred about 7.15 in the evening of September 21, 1909, on the Kennebec River, near the City of Bath. Plea, the general issue. The jury returned a verdict for the defendant.

<p> Authority of Directors, President, Treasurer, and General Manager of Corporations to Increase Wages or Salary. Fixing own Salary. Money had and received. </p> <p>1. The findings of facts made by the court hearing a case without a jury, or such as necessarily formed the basis of the court’s conclusion, are conclusive, if there is any evidence to support them, and exceptions do not lie.</p> <p>2. If there is no evidence to support the findings of such facts as must necessarily have formed the basis of the judgment, in a case heard by the court without a jury, or, if only one inference can be drawn from the existing facts, and if that inference does not support the judgment, the finding is an erroneous decision of the legal conclusions to be drawn from the evidence, and is error in law, to correct which exceptions will lie.</p> <p>3. No officer of a corporation can fix or increase his own salary. That power is vested in the directors as a board. But it is not necessary that the power be exercised at a formal meeting, or by a formal vote, nor that the exercise be shown by record. A mutual understanding of all the directors is sufficient.</p> <p>4. Under the evidence, a finding that the plaintiff’s directors authorized the defendant, the “manager” of the corporation, to increase his own salary is not open to attack. So as to the action of the defendant, in raising the salary of the clerk, Richard.</p> <p>3. The defendant, as treasurer of the plaintiff corporation, had no power to employ counsel in litigation in which he and other individuals were the only interested parties, at the expense of the corporation, and to pay them out of the corporate funds, even though the corporation was a necessary, but only a nominal, party, to the suit. No contrary inferences can properly be drawn from the evidence. The plaintiff is entitled as a matter of law to recover back the amounts so paid out for counsel fees.</p>

<p> Alternative Writ. Corporation. Inspection. Limitation. Motive or Purpose Immaterial. Statute Mandatory. R. S., Ch. 47, Sect. 20. Stockholders. </p> <p>1. Under the statutes of this State, R. S., chapter 47, section 20, the right of a stockholder to inspect the corporate records and the list of stockholders is absolute and unlimited. The purpose of a desired inspection is immaterial. The right to take copies, and minutes from the records is limited to such parts as concern the stockholder’s interests.</p> <p>2. A petition for mandamus by a stockholder to compel the officers of a ■corporation to permit him to inspect the corporate records is not faulty for the reason that it fails to allege the purpose for which inspection is desired.</p> <p>3. Assuming that the court may not be required in every case to afford the aid of the discretionary writ of mandamus to a stockholder -who desires to inspect corporate records-, the writ will not be denied for the reason ■that it appears that the stockholder’s purpose is to ascertain how much stock is owned by her former husband, with whom she is in litigation over the question of alimony, or, to gain from the records information which will assist he.r in litigation hostile to the corporation.</p> <p>4. Upon exceptions to an order for the issuing of a peremptory writ of mandamus, the court cannot direct a modification of the decree. It can only sustain or overrule the exceptions.</p> <p>5. When a decree, otherwise properly ordered, follows the language of the statute upon which -it is based, it cannot be held to be erroneous in law, on exceptions, on the ground that the court failed to limit or define the meaning of a statutory term, which is susceptible of two meanings.</p>

<p> Action. Assault. Damages. Exceptions. Private Way. Town Way. Use of Private Way. </p> <p>1. Exceptions to a refusal to instruct cannot be sustained unless the requested instructions are correct in their entirety. A requested instruction based upon the assumption that municipal officers may lay out a private way for an owner of cultivated land over his own land is faulty, for the reason that municipal officers have no such authority.</p> <p>2. Whether a way laid out by municipal officers is a town way or a statutory private way is a question of law to be determined by the records of the laying out. And the court in this case having ruled that the town “did lay out a town way,” a requested instruction respecting the character of a statutory private way and the rights of parties therein related to an immaterial issue and was properly refused.</p>

<p>On motion and exceptions 'by the defendant. Exceptions not considered.</p> <p>This is an action on the case for deceit in connection with the sale of real estate to recover a forfeiture on the ground of alleged ■false representation's by the defendant. Plea, general issue.</p> <p>The jury rendered a verdict for the plaintiff for $319.50, and the defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff. Exceptions sustained.</p> <p>This is an action brought in the name of the Judge of Probate of Androscoggin County by Ralph W. Crockett, as administrator de bonis non on the estate of Hubert DeLorme and for the benefit of said estate against the sureties on two probate bonds given by Henri P. Bechard, late of Lewiston, the original administrator of said estate. The defendants pleaded separately the general issue with brief statement.</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions by the plaintiff. Motion not considered.</p> <p>This is an action of replevin by a mortgage of personal property against the mortgagors after default.</p> <p>fend-ant, Carrie C. Merrill, and denying plaintiff’s title. The other</p> <p>Frederick T. Merrill, one of the defendants, pleads the general issue with brief statement claiming title in himself and his co-dedefendant, Carrie C. Merrill, pleads the general issue with brief statement that she and her -co-defendant retained possession of the goods in question -by virtue of the terms of the mortgage and by permission of the plaintiff.</p> <p>The presiding Judge refused to grant the plaintiff’s motion to order a verdict for the plaintiff and the plaintiff excepted to said refusal.</p> <p>The -case is stated in the opinion.</p>

<p>On report. Decree may -be entered and injunction granted by sitting Justice in accordance with opinion.</p> <p>This is a bill in equity in which the plaintiffs seek an injunction restraining the Sebee Dam Company from holding water in Sebee. Lake, contrary ¡to its right and its charter. The defendant filed an answer and the plaintiffs filed the usual replication. The cause was then heard before the Justice of the first instance on bill, answer and evidence, and at the conclusion of the evidence, the cause was reported to the Law Court under the following stipulations. Questions of law having arisen of sufficient importance, or doubt, to justify the same, and the parties agreeing thereto, this cause is reported to the Law Court for decision. Upon so much of the evidence as is legally admissible the Law Court is to render such judgment as the legal rights of the parties may require.</p> <p>The case is stated in the opinion.</p>

<p> Breach of Contract of Marriage. Condonation. Damages. Exceptions. Meretricious Relations. Motion. New Trial. Pari Delicto. Seduction. </p> <p>1. In an action for breach of contract of marriage, if seduction is alleged, it may be shown in aggravation of damages on the ground that the damages resulting to the plaintiff by reason of the breach of the marriage contract cannot be justly estimated without taking into consideration that increased humiliation and keener sense of shame and disgrace, on account of the seduction which the breach of the contract of marriage subjects her to.</p> <p>2. The plaintiff was not entitled to recover damages for the seduction itself, because she was a participant in the wrong. But having been seduced by the defendant, if his subsequent refusal to marry her according to his promise subjected her to keener humiliation and deeper shame, because of the seduction than otherwise would have been the case, then that additional element of aggravation of feeling was to1 be considered by the jury in estimating her damages because of the breach.</p>

<p>On exceptions by defendant.</p> <p>On July 28, 1910, an action was commenced on a promissory note. The writ was duly served on the defendant and made returnable at a term of the Supreme Judicial Court to be held at Bath, in the County of Sagadahoc, on the fourth Tuesday of December, 1910, instead of the intervening term of said court held at said Bath on the third Tuesday of August, 1910. The defendant filed a motion on the second day of .said December term to dismiss said action, and in accordance with said motion, the Justice presiding dismissed said action. On June 29, 1911, this action for the same cause was commenced and the writ made returnable to the Supreme Judicial Court to be held at Bath, in Sagadahoc County,, on the third Tuesday of August, 1911.</p> <p>Plea, general issue and by brief statement the Statute of limitations was pleaded. The presiding Justice ordered a nonsuit and the plaintiff excepted to said order.</p> <p>The case is stated in the opinion.</p>

On report. This is an action to recover damages for an alleged breach of the defendant’s contract with the plaintiff, who resided at Auburn, Maine, to transport twenty-eight horses from1 East St. Eouis, Illinois, to Detroit, Maine. On the margin of the bill of lading, consignee’s request that the horses be fed and watered and unloaded at Auburn, Maine, besides Buffalo, New York.

<p> Damages. Due Care. Elevator. Evidence. Exceptions. Immature Operator. Chapter 4 of Public Laws of 1907. Negligence. </p> <p>1. It is provided by section one of chapter four of- the Laws of 1907 that “no person, firm or corporation, shall employ, or permit any person under the age of fifteen years to have the care, custody, management or operation of any elevator,” under the penalty prescribed in section two.</p> <p>2. The boy employed to operate and control the defendant’s elevator at the time of the plaintiff’s injury was fourteen years and five months old.</p> <p>3. The fact that he was employed by the defendant in violation of law, to operate and control this elevator, was competent but not conclusive evidence of the defendant’s negligence with respect to all consequences, resulting from a failure of duty on the part of such boy of immature age; and if it is unexplained, and taken in connection with other facts and circumstances, it may be conclusive evidence of such negligence on the part of the defendant.</p> <p>4. It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator as to all consequences that the statute was intended to prevent.</p> <p>5. It was incumbent upon the defendant to exercise such thoughtfulness, prudence and discrimination in the selection of elevator boys as the proper discharge of that duty and the situation and circumstances demanded, having regard to the serious consequences likely to flow from a negligent or unskillful operation and management of the elevator.</p>

<p> Bill in Equity. Claims. Corporations. Collusion. Decree. Directors. Equity. Fraud. Meetings. Notice. Officers. Stockholders. Salaries. </p> <p>1. The allegations in a bill in equity brought by a minority stockholder against a corporation and a majority of the directors, who are also a majority of the stockholders, that the individual defendants corruptly and collusively conspired to convert the property of the corporation to their own use, in fraud of the corporation and in violation of their duty as directors, that they voted and paid themselves salaries greatly in excess of the value of their services, that, instead of paying the debts of the corporation they converted its funds to their own use, that the plaintiff is a creditor as well as a stockholder, that the individual defendants as majority stockholders control the stockholders’ meetings, and manage and control the affairs of the corporation for their own benefit, so that the plaintiff is unable to obtain redress through the corporation, state a case appropriate for equitable relief.</p> <p>2. In such a case, equity has jurisdiction, and will upon proper proof require the individual defendants to account to the corporation and to restore moneys wrongfully received by them.</p> <p>3. In a bill in equity, brought according to the course of the common law, by a minority stockholder, who, is also a creditor, to compel directors to restore property and, funds of the corporation wrongfully received by them, the court will not ordinarily take jurisdiction to determine the ■ amount of the plaintiff’s claim as creditor and order it paid.</p> <p>4. But in such a case, if it appears that the defendants’ breach of trust was wilful, and their conduct collusive and fraudulent, and subversive of the interests of the corporation, the court, if necessary for the protection of the rights of minority stockholders and creditors, and as incidental to the accounting, will not only require the offending directors to account, but will retain jurisdiction of the fund produced thereby, and appoint a receiver to administer it. And in that event, the court has jurisdiction to determine the amount of the plaintiff’s claim, and order it to be paid out of the fund, first taking such measures as may be necessary to protect the rights of other creditors.</p> <p>5. Directors of a corporation have no lawful power to vote salaries to themselves.</p> <p>6. Directors having valid claims against a corporation cannot prefer themselves to other creditors, if there is not enough to pay all.</p> <p>7. On appeal from a decree in equity all questions which appear in the record are open.</p> <p>8. In the absence of statutory power, a court in equity has no jurisdiction to decree the dissolution of a corporation and the distribution of its assets, at the suit of one or more of the stockholders, and the same is true when there is statutory power, if the bill seeks relief only at common law.</p>

<p>On motion for new trial by defendant.</p> <p>This is an action on the case for alleged negligence of the defendant, a master, whereby the .plaintiff, a servant, was injured. Plea,</p> <p>the general issue. The jury rendered a verdict for the plaintiff for $4395.83, and the defendant filed a general motion for a new trial.</p>

<p> Acceptance. Accident. Building street. Damages. Due care. Laying out. Municipal Officers. Negligence. Notice. Liability. Travelers. </p> <p>In two ictions brought by husband and wife for injuries sustained in an accident which occurred on the evening of April 22, 1909, on Dartmouth Street in the Deering District of the City of Portland.</p> <p>1. That the place where the accident happened was a highway within the meaning of R. S., Chap. 23, sec. 76. The street had been laid out and accepted by the municipal officers several years before, and -the portion on which the accident occurred had been built and maintained at least six years prior thereto.</p> <p>2. That the wife was in the exercise of due care and was in no way responsible for the accident.</p> <p>3. That whether or not the Boston and Maine Railroad is secondarily liable is not involved in this suit. The city is primarily liable.</p> <p>4. That while it may be a matter of doubt whether the written notice given ■to the city within fourteen days after the accident, stating that the wife had received “various bodily injuries . . . namely various severe injuries to various portions of my body, including my spine,” was sufficiently specific to include an injury to the ribs, yet as the evidence of injury to the ribs was admitted without objection the point is raised too late. The notice was sufficient to recover for the injuries therein alleged and if the defendant wished to defeat recovery for other and distinct injuries, not specified therein, but covered by the same accident, it should have objected to proof of them when offered.</p> <p>5. That there is no legal foundation for the suit brought by the husband to recover for loss of his wife’s services and the expenses connected with her recovery. He was not present at the time of the accident and his claim is not within the purview of the Statute.</p>

<p>On exceptions by defendant.</p> <p>This is an action of debt, to recover taxes assessed against the property of the defendants in the year 1910, by the assessors of Sandy River Plantation, in which assessment is included the Forestry District tax for that year. Plea, general issue with brief statement, namely:</p> <p>1. That said assessors were not legally elected or legally qualified as such.</p> <p>2. Said tax is illegal in whole or in part.</p> <p>3. Said assessors had no legal right or lawful authority to assess said tax and commit the same prior to the first day of July, 1910.</p> <p>4. Said assessors have included in said assessment a Forestry District tax which they had no right to include in said assessment.</p> <p>5. Said Forestry District tax is unconstitutional and illegal.</p> <p>6. That payment of said tax was never legally demanded.</p> <p>At the conclusion of the testimony, the presiding Justice directed a verdict for the plaintiff for the amount of the tax sued for and interest thereon from date of demand, May 30, 1910, and the defendants excepted to the directing of said verdict.</p> <p>The case is stated in the opinion.</p>

<p> Acceptance of an Offer. Damages. Dispatch. Duty of Defendant. Instructions. Message. Negligence. Telegraph Company. </p> <p>1. In an action on the case to recover damages for negligence of defendant in not seasonably delivering a telegraph message received by it from the plaintiff, at Skowhegan, Maine, to be delivered to Mr. Kaler at South Portland, Maine, it is held that telegrams are sent because the sender desires the contents communicated to the addressee at once; that this method is employed instead of the mail 'because of its dispatch.</p> <p>2. That its importance was apparent upon its face, and when the defendant accepted it and the money to forward it, in law it undertook to forward and deliver it at once. That was the consideration for which it accepted the plaintiff’s money.</p> <p>3. That even if the defendant used the effort to reach Mr. Kaler that it claims to have used, it was negligent and failed to perform the duty that it owed to the plaintiff.</p> <p>4. There is nothing in the case which excuses the defendant from its vaessage. ms, termed at the Portland office, and for that negligence, the plaintiff is entitled to recover such damages as she sustained by reason thereof.</p>

<p> Application. Assumpsit. Assignment. Consent. Contract. Conveyance. Deed. Mortgage. Policy of Insurance. R. S., Chap. 49, Sect. 1. Security. Title. R. S., Chap. 92, Sect. 1. </p> <p>Assumpsit upon a fire insurance policy issued to the plaintiff by the defendant Company on the 22d day of December, 1909, for one thousand dollars, on a certain building occupied by the assured as a fertilizer house, in Houlton, Maine, and which was destroyed by fire on the 23d day of February, 1910.</p> <p>The defendant contends that, at the time of the fire which destroyed said building, the plaintiff had no insurable interest covered by the policy in the property destroyed and that on the 23d day of December, 1909, the plaintiff in violation of the terms of the policy, delivered to the International Agricultural Corporation a warranty deed of the building described in the policy, which deed was dated September 20, 1909.</p> <p>The plaintiff in answer contends that the warranty deed given to the International Company, though absolute on its face, was in fact a conveyance for the security of money advanced to pay debts of the plaintiff: by the International Company.</p> <p>In support of these propositions, the plaintiff introduced four written agreements executed by and between the plaintiff and the International 'Company prior to the conveyance of the premises insured designed to effect a transfer of all the plaintiff’s property to the International Company. The policy in suit 'was never assigned or transferred to said company nor was any assent in writing or otherwise ever given by the defendant to any sale or conveyance of the property.</p> <p>Held: That a most critical analysis of the written instruments above described upon which the plaintiff relies, will fail to disclose any of the elements or characteristics of a mortgage.</p> <p>There is nothing in any of the agreements purporting to be a defeasance. No one of them contains any provisions which could defeat the force or operation of the plaintiff’s deed.</p> <p>According to the express stipulation in the policy, it was avoided by the sale of the property without 'the consent of the defendant.</p>

<p> Agreed, statement of facts. Bill in Equity. Declaration of Rights. Floatable stream. Ice. Injunction. Lease. Private Rights. Private Property. Title. Private and Special Laws of 1911. </p> <p>Under the agreed statement of facts five questions arise:</p> <p>1. Is the Androscoggin River at the point in question a floatable and non-tidal stream?</p> <p>2. If so, were the complainants riparian proprietors?</p> <p>3. Did the 'City of Lewiston acquire, by virtue of its Harrisburg lease, any title to the ice forming upon the river in front of the complainants’ shore?</p> <p>4. Is the title to the ice in a floatable stream in the riparian owner or in the public?</p> <p>3. Is the ice upon a floatable stream formed over and above the land belonging in fee to the owner, property within the meaning of Section of the Declaration of Rights which provides: “Private property shall not be taken far public uses without just compensation nor unless the public exigencies require it.”</p> <p>6, -Was it the intention of the city to cut and harvest ice upon the river, upon -the ice field alleged to be covered by complainants’ title, to the extent of enabling the complainants to maintain their bill and be entitled to the relief prayed for.</p> <p>Held; that under the rules laid down in1 Wilson and Son et al v. Harry Harrisburg and Nathan Goldberg, 107 Maine, 207, there can be no doubt that the plaintiffs are entitled to the relief prayed for and can maintain their bill.</p>

On report. This is an action of assumpsit on a promissory note dated March 8, 1905, upon the 'back of which were two indorsements of payments, one dated August 5, 1905, and the other dated October 3, 1905. The defendant plead the general issue with a brief statement of Statute of Limitations. The plaintiff filed a counter brief statement alleging a waiver of the Statute and an acknowledgment and promise in writing to pay.

<p> Agents. Arrangements for Storage. Common Carriers. Conversion. Demand. Detainer. Dominion. Trover. </p> <p>An action of trover for the conversion of certain personal property which was destroyed by fire in the freight-house at Presque Isle, belonging to the defendant. The plaintiff for several years prior to the fire June 7, 1909, had an arrangement with the defendant that the bulk of his freight coming in car load lots over the defendant’s road should be set apart in a portion of its freight-house and kept separate from goods of other shippers and to allow the plaintiff and his servants at any time to remove them. The plaintiff, and his agents and servants, had, previous to the fire, been furnished with a key to the freight-house whenever called for for the purpose of storing and removing goods from the storehouse. Upon the day of the fire, the plaintiff’s agent went to the agent of the defendant for the key, but the agent refused to deliver to him the key, and the plaintiff did not succeed in getting the key until the burning of the freight-house was imminent.</p> <p>Held: 1. That while the defendant’s agent did not refuse to deliver the goods, nor claim title to them, under the circumstances he exercised a dominion over them in refusing the key.</p> <p>2. Upon the plaintiff’s demand emphasized by the immediate presence of dangerous conditions, almost any hesitancy or delay to give him, the quickest possible possession of his goods was wrongful.</p> <p>3. When a person exercises a dominion over personal property inconsistent with the possession of the owner, in consequence of which the property is lost or destroyed, the exercise of such dominion constitutes a conversion.</p>

<p>On exceptions by plaintiff.</p> <p>This is an action of replevin by vendee against the vendor to recover possession of a cow. Plea, general issue with brief statement alleging title to defendant.</p> <p>The case is stated in -the opinion.</p>

<p>Bill in equity. Bill sustained.</p> <p>This is a bill in equity by Lewis Pierce, administrator de bonis non with the will annexed, of the estate of Joseph How, asking the court to construe the fifth clause in the will of Joseph Plow. Answers by the heirs at law filed admitting the allegations in the bill. At the conclusion of the hearing before a single Justice, the case was reported to the Law Court for determination upon bill and answer. *</p> <p>The case is stated' in the opinion.</p>

<p>On motion and exceptions by defendant.</p> <p>The above actions are to recover for pauper supplies furnished by plaintiff town to George E. Barter and his family and were tried together. The jury returned a verdict for the plaintiff in both cases; in docket number 684 for $76.54, and in docket number 686 for $34.63. In the course of the trial, the defendant excepted to the admission and exclusion of certain evidence and to parts of the charge to the jury. The motion for new trial was not considered by the ¡court, but the exceptions were sustained. The case is stated in the opinion.</p>

<p>On report.</p> <p>This is an action to recover damages for the breach of a contract for the conveyance to the plaintiff of certain real estate situate in Rockland, known as the Hiram G. Berry Block, and the assignment to him of two mortgages of $5,000 each on the Kimball Block adjoining. The first mortgage was held by the Rockland Savings Bank, and the second by the defendant Georgiannna Alden. The consideration of the sale was $29,000,, of which $500 was paid at the time of the execution of the contract. The contract contained this provision: “In the event of my being unable to get ,an assignment of said mortgage to said Rockland Savings Bank so as to assign it to said Allen as aforesaid, then this agreement shall be void and said $500 returned to said Allen.” At the conclusion of the evidence, the case was reported to the Raw Court for its determination.</p> <p>The case is stated in the opinion.</p>

<p>This is an action on the case in which the plaintiff seeks to recover damages for personal injuries which were occasioned by being thrown from a ladder upon which he was standing and working in the course of his employment. While so employed, a team consisting of a pair of horses and a dump cart loaded with -rocks came in contact with the ladder upon which plaintiff was standing throwing him to the ground, a distance of twenty-eight feet, causing the injuries complained of. This team was owned by the Cash Fuel Company, and, at the time of accident, with its driver was let to the defendant. At the conclusion of the evidence, the case was reported to the Law 'Court for determination upon so much of the evidence as is legally admissible on the question of liability only. If, in the judgment of the Law Court, there is sufficient evidence to establish the liability of the defendant, the case is to stand for the assessment of damages by a commission of three to be appointed by the Court.</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions by defendant.</p> <p>This is an action on the case to recover damages for personal injuries received by the plaintiff. The plaintiff was a passenger on one of the defendant company’s steamboats, which landed at defendant’s wharf at Bar Harbor, and in passing on and along said wharf, on her way to take a public conveyance, slipped upon ice and fell sustaining the injuries complained of. The jury returned a verdict for the plaintiff for $4,830.00. The defendant filed exceptions to the admission of two photographs of the locus, and to the refusal of the presiding Justice to charge the jury that at the time of the injury the relation of common carriers and passengers did not exist between the plaintiff and defendant in this case, and filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Burden of Proof. Checks. Dividend. Explanations. Experts. Error. Exceptions. Forgery. Genuineness of Signature. Handwriting. Microscope in jury room. Payment. Settlement. Standard of Handwriting. Signature. Writing. </p> <p>This is an action -of trover brought by Cora Williams, Executrix of the last will and testament of Warren G. Williams, to recover from the defendant the sum of $18,750, with interest. The testator, Warren G. Williams, Maynard S. Williams, the defendant, and Mrs. Mary J. Forhock were the children of Timothy Williams, and as his heirs >at law were the owners in common of a lime quarry in Rockland, which in March, 1900, was sold and conveyed to the Rocldand-Rockport Lime Company for the sum of $56,250, one-third of which belonged to each of the above named heirs. The entire purchase price of $56,250 was paid to Maynard S. Williams, and by him deposited with Kidder, Peabody & Co., of Boston, with the consent of his brother and sister. Warren G. Williams died in 1910, testate, and this suit is brought by his wife, the executrix, who claims that the defendant never paid over to her husband the portion that was due him.</p> <p>The defendant claims that he paid the testator in full, one-half $9,375 on September 10, 1901, and the remaining half, $9,375, on April 18, 1903.</p> <p>In support of his contentions, he presents two receipts purporting to be signed by Warren G. Williams bearing the above dates and for the above amounts.</p> <p>The plaintiff claims that the above two receipts are forgeries.</p> <p>The dividends on the amounts so deposited the defendant paid to his brother and sister in checks, but he claims to have paid to his brother his $18,750 in money at the two times mentioned in the receipts, at his brother’s request.</p> <p> Held: </p> <p>1. That a careful study of the entire testimony fails to find the explanation satisfactory or convincing; on the contrary, it lacks the elements of credibility.</p> <p>2. That the transactions, as related by the defendant, are possible, but seem hardly probable. They are so at variance with the usual course of business transactions as to be well nigh inherently incredible.</p> <p>3. An inspection of these two receipts themselves, without comparison with any other standard, arouses suspicion. The two blank forms used used are identical, the same paper, the same printing. The written portions of the 'body are as nearly identical as the human hand could make them. The ink is apparently the same, the handwriting the same. In fact the two receipts are so similar in form and substance that it seems impossible that one was written on September io, 1901, and the other on April 18, 1903.</p> <p>4. The signatures “Warren G. Williams” are practically identical. Their appearance would indicate strongly that they were prepared at one sitting.</p>

<p>On report.</p> <p>This is an action to recover damages for .the alleged breach of a bond given by the defendant, 'Chevalier, as principal, and the Fidelity and Deposit Company of Maryland, as Surety, to secure the faithful' performance of a contract with the plaintiff, for the erection of a brick building at .the corner of Cook and Second Streets in Auburn, Maine, to be used as a club house. Plea, the general issue with brief statement as follows: And for brief statement of special matter of defense to be used under the general issue above pleaded that it claims oyer of that certain writ obligatory mentioned in plaintiff’s declaration. Upon the conclusion of the evidence, the case was reported to the Law Court upon so much of the evidence as is legally admissible, the Law Court to render such final judgment therein as .the law and the admissible evidence require. It is agreed by the parties that in case the Law Court finds there is any breach of defendants’ bond, the Law Court should assess the damages.</p> <p>The case is stated in the opinion.</p>