Volume 110 — Maine Reports

Petitioners for Leave to Enter Appeal. On exceptions by petitioners to dismissal of petition.

<p>Reported on agreed statement of facts.</p> <p>This is an action of assumpsit to recover the sum of $49.50 as salary as patrolman in the defendant city from September 5 to September 27, 1911, having been prevented from serving during that time by the chief of police. Plea, the general issue. The case was submitted to the Law Court for decision upon an agreed statement of facts.</p>

<p> Acts. Agreement. Assumpsit. Breach of Contract. Conduct. Contract. Estoppel. Meeting of Stockholders. Shares. Stock. Waiver. </p> <p>Waiver is a voluntary relinquishment of a known right, benefit or advantage which would otherwise have been enjoyed.</p> <p>It is essentially a matter of intention which may be proved by a course of acts and conduct, or by such neglect or failure to act as to induce the belief that it was the intention and purpose to waive.</p> <p>Estoppel is a rule of law which prevents a party from asserting his rights when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.</p> <p>His conduct need not be characterized by an actual intent to mislead or deceive.</p>

<p>Act of God. Accumulation of Logs. Booms. Damages. Burden of Proof. Declaration. Eminent Domain. Jam. Logs. Lumbering. Navigable Stream. Negligence. Obstruction. Overflowing. Privileges. Riparian Owners. Rainfall. R. S., Chapter 43, Sections 7 and 8.</p> <p>1. This case comes on report. The facts show that the plaintiff during ■the period covered by his writ was the owner of a farm upon the west side of the Aroostook river, containing an intervale of about 14 acres ■bordering upon the river. The defendant is a corporation operating lumber mills at a dam across the Aroostook river near the village of Ashland and about six and one-half miles down the river from the land of the plaintiff. Bearce Island is a short distance north of the plaintiff’s land. Near the upper end of the island are erected three large piers known as the “Upper Jam Piers.”</p> <p>2. The defendant for about six years has used the river exclusively for a distance of over six miles below the jam piers and about eight miles above them,, for the driving and booming of its logs coming into the river from above. There was a large booming privilege below the piers, which during the period covered by the plaintiff’s declaration, was entirely unused.</p> <p>3. The plaintiff in his writ declares that in the. years 1906, 1907 and 1908 the defendant negligently allowed its logs to jam and accumulate upon the jam. piers immediately north of his land to such an extent as to cause the water to overflow his intervale and deposit thereon- logs and other debris floating down the river to such a degree that he was damaged in each of these years and put to considerable expense in removing these ■deposits from his land. -</p> <p>It is the opinion of the court that the remedy for damages for these three years, under the plaintiff’s declaration, if any there were, should have 'been sought under R. S., Ohap. 43, Secs. 7 and 8.</p> <p>4. The defendant, however, while not controverting the overflow of the plaintiff’s land and the destruction of his crops by water, contends that by virtue of a special act of the Legislature it was authorized to erect at the place where located, piers and booms to collect, hold, separate and sort logs, pulp-wood and other lumber coming down the Aroostook river.</p> <p>5. The only issue, which, therefore, seems to be raised upon the law and the evidence is whether the defendant exercised reasonable care in the execution of the privileges conferred upon it by the Legislature. There can be no question that the defendant within the exercise of due care had a right to use its piers and booms for all the purposes they were intended to subserve, without liability for any damages incident to or consequent upon the result of such act.</p> <p>6. The first question accordingly is, did the defendant in allowing its logs to drift down and accumulate upon the piers, as the evidence tends to show they did, make a reasonable use of the privileges granted by the Legislature. It is the opinion of the court that it did not.</p> <p>7. The defendant also raised the defense of vis major or act of God, claiming that the rain-fall was unprecedented; that the defendant was not required to anticipate it and consequently the flood was vis major. But this contention is not sustained by the evidence.</p>

<p>On motion by defendant.</p> <p>This is an action on the case to recover for personal injuries to the plaintiff alleged to have been occasioned by the negligence of the defendant. The plaintiff was a passenger on one of the defendant’s electric cars, on the eleventh day of October, 1906, going from Topsham Fair Grounds to Brunswick, and that during said passage, the car on which he was a passenger ran off the track, through the negligence of the defendant, and that he then and there received the injuries complained of. The case has been tried twice before, each trial resulting in a verdict for the plaintiff. On October 27, 1906, the defendant’s superintendent paid the plaintiff, on account of the defendant company, five hundred dollars and agreed to pay in addition thereto all his hospital and surgical expenses, and the plaintiff in turn, in writing, released the defendant from all claims and demands. The plaintiff seeks to avoid this settlement on the ground that it was fraudulently obtained and not binding. Plea, the general issue. The jury returned a verdict for the plaintiff for $2912, and the defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>Agreed statement. Exceptions by the defendant.</p> <p>This is an action of assumpsit for money had and received brought by the plaintiff as administrator of the estate of Fred E. Savage, against John H. Berry, executor of the last will and testament of his wife, Nellie A. Berry, who was the former wife of Fred E. Savage, to recover the amount of a Savings Bank deposit. Plea, general issue. The case was heard by a single justice without a jury, upon an agreed statement of facts. The Justice found for the plaintiff in the sum of $2400.46, with interest from date of writ, and the defendant excepted to said finding.</p> <p>The case is stated in the opinion.</p>

<p>On motion by plaintiff.</p> <p>This is an action of trespass quare clausum against Fred E. Libby and Sarah A. Libby for wilfully breaking and entering the plaintiff’s close, described as a certain lot of land with buildings thereon, situated on the northerly side of Free street in Portland, and erecting a wall and a portion of a brick building on said premises, etc. Plea, general issue and brief statement as follows: And for a brief statement of special matter of defense to be used under the general issue pleaded, the said defendants further say; that the defendants deny that the plaintiff at the time of bringing of said suit had the possession of the premises described in his writ as against these defendants and they also deny that the plaintiff had any title; that the premises described in the writ and declaration of the plaintiff are not the property of said plaintiff, but are now and were at the date of plaintiff’s writ and prior thereto, the property and freehold of the said defendants. The jury returned a verdict for the defendants and the plaintiff filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Apportionment. Assessment. Distribution. Demurrer. Equality. Improvements. Municipality. Policy. Private and Special . Laws, igir, Chapter 227. Taxation. </p> <p>The issue raised by the defendant’s demurrer is to Section 5 of 'Chapter 227 of the Private and 'Special Laws of 1911, which provide for the distribution of the faxes when assessed and collected and is as follows: “The town of Boothbay Harbor shall annually pay over to the Treasurer of said 'Corporation, out of the taxes collected from the inhabitants and estates within the territory of the Bayville Village Corporation aforesaid, a sum equal to sixty per centum of all of the town taxes, exclusive” of the State and county tax, collected from said inhabitants and estates.”</p> <p>Held: 1. That inequality of assessment of taxes is necessarily fatal; inequality of distribution is not, provided the purposes be the public welfare.</p> <p>¡2. The method of distribution of the proceeds of such a tax rests in the wise discretion and sound judgment of the Legislature.</p> <p>3. If this discretion is unwisely exercised, the remedy is with the people and not with -the court.</p>

<p> Abandonment. Consent. Conveyance. Covenant. Consideration. Compensation. Estoppel. Eviction. Quiet Enjoyment. Privilege. Rental. Sale. Waiver. </p> <p>The plaintiff, Seiger, leased from the defendant, Gerber, by written lease dated December 18, 1909, the entire building situated at No. 2 Portland Pier in Portland, in Cumberland 'County, with the exception of the fruit store at the corner of said building for the term of four years from the first day of January, 1910. The rental was $330 per year, payable $25.50 monthly in advance; lessor to pay taxes, water rates and do outside repairing and lessee to do inside repairing. The lessee occupied the premises and paid the rent until January 9, 1912, when he abandoned the premises. The reason given for such abandonment was that on November 20, 1911, the lessor, without the lessee’s consent, sold to the adjoining proprietor the privilege of attaching a structure to one side and one end of the leased building, thereby shutting out the light and thus constituting a breach of the covenant for quiet enjoyment, and operated as an eviction. The defendant claimed and introduced proof that the sale aforesaid was with the knowledge and consent of the lessee, and that whatever rights the plaintiff had were waived.</p> <p>Held: That upon all the evidence both waived and estoppel on the part of the plaintiff are established.</p>

<p> Annexation. Attachment. Chattels. Conversion. Demand. Landlord and Tenant. Officer’s return. Personal Property. Possession. Recording. Removal of property attached. Revised Statutes, Chapter 83, Section 27. Trover. Vendor and Vendee. </p> <p>1. bathes, a drill press, and a hand milling machine in a shop, bolted to the main shaft, and part of them bolted in the floor, are all attachable as personal property.</p> <p>2. An attachment of a machine weighing 1200 pounds, of two others weighing 800 pounds each, of another weighing 400 pounds, and of another weighing 100, all in a shop, belted to the main shaft, the three heavier ones not fastened to the floor, and the others bolted to the floor, held, to be well preserved by filing copy of return in the town clerk’s office.</p>

<p> Descent. Dower. Inheritance. Personal Property. Partition. Real Estate. Release. Tenants in common. Waiver. Will. </p> <p>1. The question presented by the petition is solely that of the rights of Emma J. Cheney in the real estate of her deceased husband, Charles J. 'Cheney, who died testate and in whose will no provision was made for his widow.</p> <p>2. Public Laws of 1895, Chapter 157, amending Section 1, Chapter 75, Revised Statutes of 1883, which is found in Section 13, 'Chapter 77 of Revised Statutes of 1903, abrogated the old rule of dower regarding the interest of .a widow in the deceased' husband’s lands and conferred upon her an estate of inheritance instead of an interest for life.</p> <p>3. The Legislature, by the act of 1907, did not intend to repeal or modify the widow’s right by descent in the contingencies named nor by the use of the language employed did it do so.</p> <p>4. This provision of the act of 1907, although incorporated into Section 13 of 'Chapter 77, Revised Statutes of 1903, relating to title by descent must be construed to mean just what the language conveys and be confined to personal estate only.</p>

<p>On report.</p> <p>This is an action of assumpsit to recover commissions on renewal premiums collected by the defendant from policy holders obtained for the company by the plaintiff while in the employ of the company as general or sub-agent. The claim is only for commissions on renewal premiums collected after the expiration of two years from the date of the last service of plaintiff to the company. The case was referred to Mr. Chief Justice Emery, who reported his findings of fact and referred to the court the question of law, whether upon the facts reported the plaintiff is entitled to recover. The case, by agreement of the parties, was reported to the Law Court for determination upon the facts found by and the written evidence made a part of the report of the referee.</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 false imprisonment. The plaintiff claimed that the defendant held her under restraint on the barkentine “Kingdom” from May 10 to June 6, 1910, in such manner as to constitute false imprisonment. Plea, general issue. The jury rendered a verdict for the plaintiff for $1100. The -defendant filed a motion-for a new trial and excepted to certain rulings and refusals -to rule by the presiding Justice. . The case is stated in -the opinion.</p>

<p>On report.</p> <p>This is an action of trespass quare clausum, brought by the plaintiff, owner of the saw-mill and novelty-mill situated on Sebasticook river in Hartlaud village, in the county of Somerset. The plaintiff, on June 7, 1909, leased all this property to Ira W. Page, Jr., for seven years at an annual rental of four hundred dollars, payable quarterly. The lease to Page contained a covenant that the lessee should not sublet the premises, or any part thereof, without the consent of the lessor in writing on the back of the lease, and also provided that the lessor might enter to expel the lessee if he should fail to pay the rent. On the 14th day of September, 1910, Page, without the consent in writing, sublet the saw-mill and machinery and a portion of the yard to the defendant for one year, and he entered into possession and occupancy of the premises. Plea, general issue with brief statement justifying under his lease.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>This is an action of scire facias to recover the penal sum in a recognizance entered into by the defendants. The defendant, Charles E. Sturgis, was convicted of maintaining a liquor nuisance at the January term, 1910, of the 'Superior Court for Kennebec County, and the following sentence was imposed upon him by the court:</p> <p>“Sentence: Fine $1000 and in addition imprisonment at hard labor in jail for the term of six months, and in default of payment of fine, thirty days additional in jail, the imprisonment part of the penalty to be cancelled on payment of fine, if respondent shall recognize with sufficient sureties in the sum of $1500 to keep the peace and be of good behavior, and especially to' violate no provision of the law for the prevention of the traffic in intoxicating liquors for the term of two years.” The case was reported on an agreed statement of facts to the Law Court, which is to render judgment thereon and if said judgment is for the plaintiff to assess damages.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>This is an action on the case by Catharine Bigelow against the Maine Central Railroad Company to recover damages for injuries to her health occasioned by eating canned asparagus furnished to her in its dining-car on the 25th day of February, A. D. 1910, by defendants’ caterers in said car. The plaintiff contends that the asparagus furnished her by the defendant in said dining-car was' unwholesome and poisonous. The plea, the general issue with brief statement that the defendant is in no way responsible as it did not know, and by the exercise of reasonable prudence and care, could not have known, that said food was unwholesome. At the conclusion of the evidence, the case was reported to the Law Court for final determination upon so much of the foregoing evidence as is legally admissible, the Law Court, to render such judgment as the case and the evidence warrant, including the assessment of damages,- if the plaintiff is entitled to recover.</p> <p>The case is stated in the opinion.</p>

<p> Appropriation. Bond. Call Deposits. Credibility of witness. Change, of note. Checks. Discount Handwriting. Exceptions. Interest. Motion. Notes. Overdraft. </p> <p>Action of assumpsit to recover three different items: First, $500, which plaintiff claimed to be due him as a balance of a call deposit which he made with the defendant bank December 1, 1905; second, $111.25, corrected during the trial to $101.25, as an'over charge of interest on two notes discounted for him by the bank; third, $295.83, as interest on the alleged call deposit. This last item was abandoned at the trial. The verdict was for $601.25, showing that the jury found the plaintiff entitled to recover the first item of $500 and the second item as corrected of $101.25.</p> <p> Held: </p> <p>The finding of the jury in plaintiff’s favor upon the issue presented to the jury, whether the plaintiff authorized the appropriation of the $500 of his deposit to the purchase of a bond for that amount olf the Monson Consolidated Slate Company alleged by the defendant and denied by the plaintiff, is sustained.</p> <p>The plaintiff who was in 1907 engaged in building a vessel borrowed on August 31, 1907, of defendant, $2200, and gave his note on two months therefor and November 13, 1907, he borrowed $1300 and gave a mortgage on certain vessel property to secure both notes. The first note of $2200 having been renewed October 13, 1907, for four months. In both notes was written “interest after at 7%.” The plaintiff claimed that he should have been cahrged with only 6% interest on this loan of $3500 and the item of $101.25 is the difference between 6% and 7% interest, and that the notes were altered after he signed them, and the jury so found.</p> <p> Held: </p> <p>That this finding of the jury was against the weight of the evidence.</p> <p>A witness for the defendant who was Treasurer of the Monson Consolidated Slate Company from 1896 until it went into a receiver’s hands in 1910, was asked this question concerning the value of the property covered by the mortgage which secured an issue of $50,000 of bonds of which issue the $500 bond in question was a part, “Could it have been sold for enough, in your opinion, even at forced sale, to have paid the bonds in full,” and the exclusion of his answer is sustained.</p>

<p> Building. Contract. Contractor. Cancellation of Contract. Fraud. Mistake. Money had and received. Unilateral mistake. Reforming contract. Referee. Specification. Stipulation. Quantum Meruit. </p> <p>1. This case comes up on the following stipulation: “It is hereby stipulated and agreed that the above entitled cause shall be reported to the Caw Court for final decision upon the facts as reported by the Referee.”</p> <p>2. There is no controversy that the contract provided for the materials and work for the structural steel for the roof framing for the School for Feeble Minded, and that the buildings were to consist of two dormitories.</p> <p>3. The Referee finds that when the contract was signed the plaintiff understood it to call for one building only; that the defendant understood it to call for two buildings; that until some time in November, several months after the contract was made, the plaintiff did not understand that the specifications called for two buildings or that defendant was expecting more than one roof.</p> <p>4. That the plaintiff was not negligent in not discovering that the plans and stipulations covered two buildings before it executed the contract, and defendant did not know that plaintiff understood that only one building was embraced in the contract.</p> <p>5. In view of the smallness of the amount which plaintiff proposed to furnish the steel roof framing, it being many hundred dollars less than it would actually cost to furnish roof framing for two buildings, the defendant, an experienced contractor and bidder on contracts embracing iron and steel structural work, ought to have been put upon inquiry as to whether the plaintiff was not acting under a mistake as to the number of the buildings.</p> <p>6 But notice sufficient to put one upon inquiry imposes upon him such a degree of diligence as will enable him to ascertain the truth, and in failing to so do he will be charged with the knowledge he ought to have obtained by investigation.</p> <p>7. Being put .upon inquiry it was the duty of the defendant to have informed the plaintiff of its apprehension, if not knowledge, as to the plaintiff’s misunderstanding.</p>

<p>On motion by defendant.</p> <p>This is an action on the case to recover damages to plaintiff’s house and cellar situated in Newport village, in the county of Penobscot, and opposite one of the defendants’ water mains. The defendant is the owner and operator of a certain water system in said Newport, by which it supplies the town of Newport with water. The claim of the plaintiff is that each winter since the pipes were laid, large quantities of water coming from a leak in defendants’ pipe in the ground have flowed into his cellar, causing much damage. Plea, the general issue. The jury returned a verdict for plaintiff for $393.75, and the defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Advertisement. Deceit. Exceptions. Evidence. Fraud. Intention. Immateriality. Inducement. Instruction. Intention. Material Fact. Opinion. Personal Property. </p> <p>In this action for deceit in the sale of a farm, the plaintiff alleged that the defendant misrepresented the amount of hay which had been cut upon the farm in years past.</p> <p>1. If one person makes a statement of a positive fact, which is material, the truth of which can be ascertained as of his own knowledge, and that statement is untrue, and if he made the statement for the purpose of inducing another party to act upon it, and the other party relying upon the statement, without knowledge of its falsity on his own part, acts thereon to his damage, it is such a misrepresentation as will sustain an action of deceit.</p> <p>2. In an action for deceit it is not necessary that the false statements complained of should have been made with a fraudulent purpose and with intention to cheat or defraud. Good faith in making the statement is immaterial.</p> <p>3. The admission of inadmissible evidence which is harmless will not support an exception.</p>

<p> Appreciation of danger. Accident. Damages. Danger. Exceptions. Fellow servant. Fright. Inexperienced. Immature. Instructions. Machinery. Master. Minor. Suitable machinery. Warning. </p> <p>An action on the case to recover damages by the plaintiff, a minor, for injuries to his hand which, while he was at work in the defendants’ factory on the 18th day of December, 1911, was caught and drawn in -between two rollers on a washing machine. It is claimed by the plaintiff that he was inexperienced, ignorant of and did not appreciate the danger. The plaintiff came to this country three years before the accident and had worked one year and eight months in the carding room of the defendant factory, and about fourteen months in other mills where machinery was used. The machine by which the plaintiff was injured consisted in part of two sets of rollers' and the plaintiff’s work, when injured, was in placing a piece of cloth so it would pass between the rollers.</p> <p>Held: That the plaintiff’s experience in various mills where machinery was used for nearly three years must have taught him the danger of contact with revolving wheels and cylinders, and that he must have known and appreciated the danger of the work he was doing. That he would have learned the danger by observation without instructions.</p>

<p>On report.</p> <p>This is an action on the case to recover damages for injuries to seven trunks, one sewing-machine and a quantity of music in one of the trunks carried by the defendant company as a common carrier from New York to Eastport, Maine. The plaintiff, who was in Italy returned to the United States in November, 1910, by the Hamburg American line from Genoa to New York. She intended to take the trunks and sewing-machine with her as personal baggage, but they had not arrived when she sailed, and the steamer agent was to forward the baggage later. She says the sewing-machine was properly crated, and the trunks were in a sound condition and securely locked and tied with ropes. About three weeks after she arrived in Eastport, Maine, the trunks and sewing machine were delivered to her by the defendant company in a damaged condition. No bill of lading or shipping receipt from the defendant company were in evidence and no evidence offered to show who delivered the property to the defendant in New York or what its condition was when the defendant received it. Plea, the general issue with brief statement in substance that the alleged injury to the property of plaintiff did not occur while the same was in defendants’ possession, and that defendant exercised due care in handling and transporting said property; and that it was delivered to plaintiff in same condition as it was when received by defendant. At the conclusion of the evidence, the case was reported to the Law Court upon so much of the evidence as is legally admissible, to render such judgment as the rights of the parties require.</p>

<p>On motion for new trial.</p> <p>This is' an action to recover damages for personal injuries while in the employ of the defendants. The plaintiff had been for some years, an overseer in their woolen mill, and while the mill was shut down, at the request of the defendants, he took charge of a small crew of their laborers, in the work of grading an electric railroad which they were constructing from Lewiston to- Portland. While so employed, it became necessary to have some blasting done. The defendants’ superintendent of construction asked him if he knew anything about using dynamite, to which he replied that he did not. A. M. Clark, who was experienced in that work, was put in charge of the blasting that was -done at that time. There are two kinds of caps used in exploding sticks -of dynamite. The plaintiff saw Clark use the cotton fuse -caps in his work of blasting, but was not instructed by Clark, or by anyone else, as to the risks of exploding a cap by inserting a fuse into it, or as to the care to be exercised in doing it to avoid those risks. Subsequently, he was directed by said superintendent to do some blasting with dynamite and while so employed, received the injuries complained -of by the explosion of a -cap. Plea, the general issue.</p> <p>The jury returned a verdict for the plaintiff for $1494, and the defendant filed a general motion for a new trial; and also a special motion for a new trial, alleging that the plaintiff had testified falsely.</p>

<p> Appraisal. Assignment. Attachment. Certiorari. Creditors. Disclosure commissioner. Exemptions. Personal labor. Record. Revised Statutes, Chapter 114, Sec. 280. Writ. </p> <p>1. Subdivision VI, Sec. 55, C. 88, R. S., as amended by Chapter 256, Laws of 1909, and as further amended by 'Chapter 175, Laws of 1911, which provides that no person shall be adjudged a trustee under trustee process, “By reason of any amount due from him to the principal defendant as wages for his personal labor, or that of his wife or minor children, for a time not exceeding one month next preceding the service of the process, and not exceeding twenty dollars of the amount due him as wages for his personal labor; and ten dollars shall be exempt in all cases,” — is in effect a general exemption from attachment of at least ten dollars of a debtor’s wages, since the trustee process is the only appropriate proceeding under our statutes for the attachment of such property right.</p> <p>2. A poor debtor should not have been required, under the provision of Sec. 28, C. 114, R. S., to assign to his judgment debtor', whose original debt was for necessaries, a claim of $8, which was the only sum due him as wages for his personal labor earned within one month next preceding the date of his disclosure, because that amount of his wages at least is exempt from attachment.</p> <p>3. The decision of the disclosure commissioner in this case not to require the debtor to assign to the creditors the $8, being the balance due him as wages for his personal labor, was correct.</p>

<p> Attachment. Assumpsit. Creditors. Contract. Uxceptions. Lease. Mortgage. Nonsuit. Notice to Creditors. Sale of goods in bulk. </p> <p>This is an action to recover for a stock of goods claimed to toave been sold by plaintiff in bulk and delivered to the defendant. The plaintiff, who was a grocer at East Knox, in January, 1912, occupying a store belonging to defendant under a lease, entered into an agreement with Walter Wood-bury to sell him the stock of goods at cost with a bonus of $60. An account of the stock was taken and amounted to more than Woodbury thought he would be able to pay, and thereupon the defendant, with consent of plaintiff took the stock off his hands. Before the requisite notices to the creditors could be mailed, the creditors attached the goods and the defendant refused to pay for them.</p> <p>Held: That under such circumstances there was no sale of the goods to the defendant.</p> <p>The plaintiff contended that Chapter 114 of the Public Laws of 1905, .which requires full information to be given to creditors together with notice of such sale is unconstitutional in that it deprives persons of their rights, privileges and liberty to control their property and thus violates 'Section 6 of Article I of the 'Constitution of Maine.</p> <p>Held: That the objection stated is insufficient to justify the conclusion that the act is unconstitutional.</p>

<p> Divorce. Descent. Distribution. Domicil. Estate. Heirship. Illegitimate Child. Issue. Laws of Nevada in relation to heirship. Money had and received. Nonsuit. Public Laws, Chapter 14. </p> <p>The plaintiff is the son of Aurelius Holmes, deceased, who was the illegitimate child of Rhoda A. Patterson, mother of Alonzo Patterson, deceased.</p> <p> Held: </p> <p>1. That whatever rights the plaintiff has are derived from legislative enactment. At common law his father was incapable of inheriting.</p> <p>2. It has been invariably held that a statute allowing an illegitimate child to inherit from his mother does not allow him to inherit from her lineal or collateral kindred.</p> <p>3. It is clear that the words “the same as if born in lawful wedlock” do not in this case enlarge the rights of the plaintiff to include inheritance from lineal or collateral kindred.</p> <p>4. The plaintiff cannot invoke the aid of the present statute of Maine to control or in any manner influence the distribution of personal estate of an intestate whose domicil was in the state of Nevada.</p> <p>5. As all rights of inheritance become vested at the death of the person from whom they are derived, the statutes in force at the time of his death govern the disposition of the estate.</p> <p>6. The succession to and disposition and distribution of personal property, wherever situated, is governed by the law of the domicil of the owner or intestate at the time of his death, without regard to the location of the property, or the place of the death.</p>

<p>On exceptions by defendant.</p> <p>This is an action of assumpsit to recover the sum of forty dollars paid by the plaintiffs to the defendant for the stumpage of hay sold in July, 1910. The defendant was trustee in bankruptcy of the estate of Clarence Scott, which consisted of a farm situate in the town of Greenbush, and also certain personal property. This farm was mortgaged to W. S. Marshall for $400. Scott was adjudicated a bankrupt April 23, 1910, and was then in possession of the farm. The defendant qualified as trustee, and on June 6, 1910 was granted leave to sell the said farm and personal property. June 8, 1910, defendant took possession of the real and personal property, and on July 10, 1910, sold, as trustee, the standing grass on said premises to the plaintiffs for forty dollars. When the plaintiffs undertook to cut said grass, the mortgagee forbade them, and this action for money had and received was commenced. Plea, general issue with brief statement; viz., that whatever he did in the premises, he did in the capacity of, and by force and virtue of, his appointment and qualification as trustee in bankruptcy of the estate of Clarence Scott.</p> <p>The case is stated in the opinion.</p>

<p> Claimant. Common carrier. Consignee. Consignor. Credit. Delivery. Forfeiture. Insolvency. Intoxicating liquors. Libel. Payment. Revised Statutes, Chapter 29, Section 51. Shipment. Stoppage in transitu. </p> <p>This is a proceeding to enforce the forfeiture of intoxicating liquor alleged to have been intended for unlawful sale within this State.</p> <p>On July 18, 1911, F. W. Hunt & 'Co., wholesale liquor dealers in Boston, Mass., shipped to S. Malo of Lewiston, Maine, by American Express, two boxes each containing ten gallons of whiskey, S. Malo not being a fictitious name. On July 19, 1911, these boxes were seized by an officer, before delivery to the consignee and while in the possession of the carrier, and were duly libelled. The consignor appeared as claimant.</p> <p> Held: </p> <p>1. That under R. S., Ch. 29, Sec. 51, it is only a person who is found to be “entitled to custody of any part” of the seized goods who can be regarded as a lawful claimant.</p> <p>2. That the lawful right to claim the property may arise either from ownership, as when the claim is made by the consignee, or from right to possession, as when made by the carrier.</p> <p>3. That in the case at bar, the claim is made neither by the consignee nor by the carrier, but by the consignor, the seller, and on the sole ground of his alleged right of stoppage in transitu.</p> <p>4. That there are two prerequisites to the exercise of the right of stoppage in transitu on the part of the seller; first, a sale upon credit; and second, the insolvency of the purchaser.</p> <p>5. That the agreed statement is silent as to the terms of sale, and the price may have been paid in advance. The sale on credit is not proved.</p> <p>6. Nor is there any proof or even suggestion of the insolvency of the consignee. The agreed statement simply alleges that before delivery to the consignee the liquor was seized by an officer, and the fair inference is, that had the seizure not been made, delivery would have taken place in the ordinary course of business.</p> <p>7. That the claimant was not entitled to the custody of any part of the seized goods.</p>

<p> Brief Statement. Complaint. Dam. Damages. Efficient height. Flowage. Freshet. Mill. Petition. Prescription. Repairing. Writ. </p> <p>This is a complaint for flowage .and is inserted in a writ of attachment. The plaintiff is the owner of several lots of land in -the town of Abbott in Piscataquis County, bounded by the Piscataquis river. The defendants are owners of woolen mills in the town of Guilford. In 1881, the Piscataquis Woolen Company erected a water mill, or factory, and maintained same ever since, upon its land on the north side of said river in Guilford village. The M. %. 'Hussey Woolen .Company, in 1906, erected a water mill upon its land on the south side of said river. The defendants, in 1909, erected a mill dam across said river at Guilford village to raise water for working their mills, and still, maintain said mills and dam. The first dam was built in 1823, rebuilt in 1864, repaired in 1903, and replaced in 1909 by a dam of concrete.</p> <p> Held: </p> <p>1. That the defendants had the right to construct a new. concrete dam a few feet below the old dam.</p> <p>2. The uncontradicted testimony of the Engineer Crowley corroborates the theory of the defendants that the increase in the height of the water in the river above the logs on April 29th and May 15th was not due to the height of the dam, or the fault of the defendants.</p> <p>3. It is admitted that the defendants in 1903 had acquired a prescriptive right to flow the plaintiff’s land to the extent that it would be flowed by the water held back by the dam at its effective height, as said dam existed in that year prior to any repairs, changes or additions made in said year.</p> <p>4. The defendants had the right to maintain a dam as it was before the repairs in 1903. If repairs were necessary, they had the right to make them and to build a new dam in place of the old dam.</p>

<p> Appeal. Arbitration. Assessment. Benefits. Board of Public Works. Commission. Contract. Hearing. Interests. Jurisdiction. Municipal officers. Private and Special laws of 1905, Chapter 137. Petition. Sewers. Taxes. Taxpayers. </p> <p>An action of -debt to recover under Section 10 of 'Chapter 21 of -the Revised Statutes, $1680, being the amount of an assessment made upon the defendant’s land on Lake and Shepley streets and Gamage avenue in the city of Auburn, for the benefits received to said land by reason of the construction of a sewer through said streets. The assessment in question was made by the Board of Public Works of the city of Auburn, consisting of the mayor, a member ex-officio, and five citizens of, Auburn chosen by the city council under the provisions of Private and 'Special Laws of 1903, Chapter 137, as amended by Private and Special Laws of 1903, 'Chapter 109.</p> <p>The defendant questions the validity of the statute governing and regulating -assessments for construction of sewers, as provided by Chapter 21 of the Revised Statutes.</p> <p> Held: </p> <p>1. That it was the intention of the Legislature by Section 6 of Chapter 21 of the Revised Statutes to provide a tribunal before -which a party assessed for construction of a séwer, might have determined by proceedings in the nature of an appeal, the amount that should be assessed for the expense of the construction of the sewer by reason of the benefit to his land, which tribunal should act judicially in determining the amount of assessment.</p> <p>2. That when a Statute merely imposes a tax for benefits like the act in question, involving no question arising under the exercises of eminent domain, no appeal to a jury need be provided.</p> <p>3. Section 6 of said statute gives a party agrieved the right to have the amount of his assessment determined by arbitration, and the right to a hearing before a disinterested court or board, according to the rules of law and the procedure o-f our courts.</p> <p>4. -That the Legislature, by providing that the -board of -arbitration to fix the assessment should be citizens of the town in which the sewer was constructed, considered that the interest of the general taxpayer of -the town was too minute or remote to warp or influence their judgment and that the -disqualification by reason of that interest was removed by said act.</p> <p>5- No express authority is given the Board of Public Works by the act creating said Board to estimate the benefits and make the assessment, and the grant of the power of taxation is not implied in said act nor incident to the .powers expressly granted said board.</p>

<p> Candidate. Chapter 6, Section 70-73, of the Revised Statutes. Election. Equity. Exceptions. Ineligibility. Irregularity. Mandamus. Minority. Peremptory Writ. Plurality. Votes. </p> <p>1. When a case is before the Law Court upon exceptions, and by change of conditions or otherwise, the questions involved have become merely moot questions, and neither party -has any further interest in their determination, the exceptions will be dismissed, without consideration.</p> <p>2. A candidate receiving less than a plurality of the votes cast at an election is not elected, even if the opposing candidate receiving a plurality of the votes is ineligible. Votes cast for an ineligible candidate are at least so far effective as to prevent the election of a candidate who received a less number of votes.</p> <p>3. If, as it has sometimes been held, the rule does not apply where the electors have full knowledge of the ineligibility of the candidate, in this case, the candidate receiving a plurality of the votes was eligible, and it is not shown that the electors had knowledge of any irregularity or imperfection in the ballot, if any. such there was.</p> <p>4. A candidate, who did not receive a plurality of all the votes cast for a county office, cannot maintain a petition under R. S., Chapter 6, Section 70, to try the title of his adversary.</p>

<p>On exceptions by defendant.</p> <p>This is an action of assumpsit on a promissory note dated December 20, 1905, for two hundred dollars, payable in four months to the Richmond National Bank, made and signed by R B. Torrey, and indorsed by the defendant on the back. Plea, the general issue and by way of brief statement the defendant pleaded that he was an accommodation endorser or surety on the note, -which fact was well known- to the bank, and that the bank for -a valuable consideration had -extended the -time of payment to the maker, Torrey, without the knowledge or assent of the defendant, and that no notice of non-payment, when due, had -been given him. At the conclusion of the evidence, the presiding Justice directed the jury to return a verdiet for the plaintiff, which was done. The defendant excepted to this direction.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>The first case is to recover damages for breach of a contract of indemnity made by the defendant’s intestate, in which he agreed to save the plaintiffs harmless from all loss, cost and damage resulting to them on account of their 'having signed certain notes. The defense is the special statute of limitations applicable to suits against executors and administrators under Revised Statutes, Chapter 89, Section 14-15.</p> <p>The second case is a bill in equity brought by the same plaintiffs to recover judgment on the same cause of action under Revised Statutes, Chapter 89, Section 21. The defense to this bill is that the plaintiffs are chargeable with culpable neglect and are not entitled to equitable relief.</p> <p>The case is stated in the opinion.</p>

On report. This is an action on the case against the defendant, a deputy sheriff, under Revised Statutes, Chapter 86, Section 9, relating to levies of executions on personal property. The plaintiff was judgment debtor in an execution on which defendant seized two automobiles, the property of the plaintiff. Tha-t the defendant has never made any return on the execution, nor accounted for the money received therefor.

On motion for new trial by defendant. This is an action on the case to recover damages for personal injuries occasioned by the alleged negligence of the defendant. The plaintiff claims that he was injured while walking along the passageway leading from the train shed to the street in the Union Station in Bangor, on the 6th day of June, 1912. Plea, the general issue. The jury returned a verdict for the plaintiff for $400.61.

<p>On exceptions by plaintiff.</p> <p>This is an action on the case to recover damages for personal injuries occasioned by the alleged negligence of the defendant, at its station in Wiscasset, on the 29th day of October, 1907. Plea, the general issue. At the close of the plaintiff’s evidence, the presiding Justice ordered a nonsuit and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by the appellant.</p> <p>■ This is a petition to the Probate Court of Hancock County for the appointment of a guardian of George W. Whiting, under paragraph II, Section 4 of Chapter 69, Revised' Statutes. Upon a hearing,, the petition was dismissed by the Probate Court and on appeal was dismissed by the Supreme Court of Probate. At the hearing in the Supreme Court of Probate certain evidence was offered by the appellant, and excluded by the presiding Justice and the appellant excepted to such exclusion.</p> <p>The case is stated in the opinion.</p>

On exceptions by plaintiff. This is an action on the case to recover damages for the immediate death of the plaintiff’s intestate, Thomas Blair, who was a passenger on one of the defendants’ electric cars and alleged to have been caused by the negligence of the defendant. Plea, the general issue.

On appeal. This is a -bill in equity brought by certain taxpayers of the city of Auburn, in which the complainants seek to restrain the defendants from erecting a schoolhouse in said city without the approval of the plans therefor by the superintending school committee of said city of Auburn.

<p>On report.</p> <p>This is an action of assumpsit with two counts in special assumpsit and a count for money had and received to recover the sum of five hundred dollars. The defendant held a mortgage on the plaintiff’s farm, situated in Sangerville, in the county of Piscataquis, tO' secure the payment of nine hundred dollars, dated November 16, 1903. On the 30th day of June, 1910, defendant commenced proceedings to foreclose said mortgage, the equity of redemption of which would expire on June 30, 1911. In April, 1911, the plaintiff claims that the defendant verbally agreed with the plaintiff to give him a reasonable time, after the date when the equity of redemption would otherwise expire to pay the amount due on the mortgage. The defendant sold the farm on July 1, 1911, for $1500, and the plaintiff sues to recover the difference between the amount due on the mortgage and the fifteen hundred dollars which defendant received for said farm. Plea, the general issue. At the conclusion of evidence, the case was reported to the Daw Court for determination.</p> <p>The case is stated in the opinion.</p>

On report. This is a bill in equity in which the plaintiffs seek a conveyance of all the title and interest which the defendant company have in and to the water works owned and operated by said company in the town of Strong, in the county of Franklin, in accordance with a contract or agreement entered into by the town of Strong and said water company on June 27, 1904. An answer to said bill was filed' by the defendant and replication by the plaintiffs.

<p> Allegation. Arrest. Complaint. Fictitious name. Identification. Intoxicating liquors. Legal seizure. Magistrate. Name of person keeping liquors. Person unknown. Search and seizure process. Void. Voidable. Warrant. </p> <p>1. In proceedings for the forfeiture of intoxicating liquors seized under a search and seizure process, 'it is essential to the validity of a complaint and warrant, or 'indictment, that the party against whom it is issued should be described therein sufficiently so that he may be thereby identified as the person on whom it is to be served. If his name is not known, ■he must be otherwise sufficiently described.</p> <p>2. A warrant to arrest a person described fictitiously as John Doe, without any further description or means of identification of the person to be arrested is void.</p> <p>3. Search and seizure process should strictly follow the express requirements of the statute authorizing it.</p> <p>4. If there is no legal seizure of the liquors in question, then there can be no judgment of forfeiture.</p>

<p>On report.</p> <p>This was a complaint and warrant against the respondent Nicholas Staples, of Kennebunk, in the county of York, before the municipal court of the city of Biddeford, in said county, for selling certain nursery stock, without a license, as agent, and not being then and there a grower of nursery stock. The respondent was duly arraigned before said court and pleaded that he was not guilty and thereupon was found guilty and fined ten dollars. The respondent appealed from said sentence to the Supreme Judicial Court then next to be holden at Alfred, in said county, on the third Tuesday of September, A. D. 1912. At said term, of the Supreme Judicial Court, the case was reported upon an agreed statement of facts to the Law Court for decision.</p> <p>The case is stated in the opinion.</p>

<p> Collision. Damages. Duty of those managing cars. Electric cars. Highway. Injuries. Looking. Motor-man. Negligence. Teams. </p> <p>1. The contention of the defendant that the injury was caused solely by the plaintiff because, before coming in contact with the car, having an opportunity to look both ways of the track, he did not do so, and that had he done so he could have avoided the accident, is not sustained by the decisions, either ancient or modern.</p> <p>2. The duty of the defendant to the .plaintiff in .the situation in which the evidence shows the parties to have been at the time of the accident was to use all possible efforts by slackening the speed of the car or stopping it altogether to avoid injury.</p> <p>3. Street railroads are granted very great privileges out of the public right and their treatment of the public must be reasonable in return.</p> <p>4. For a street railway to run into a wagon from behind without special, circumstances to justify it is evidence of negligence on the part of the street railway company.</p> <p>5. A driver of a team is not bound to keep a lookout behind his team for a car.</p> <p>6. If the motorman could have avoided the accident by the exercise of ordinary care and'skill and failed to do so, the defendant is liable for injuries caused by that neglect.</p>

<p> Consideration. Contract. Fraud. Municipal officers. Replevin. Repudiation of Contract. Right of Public Officers. Title. </p> <p>1. The city of Rockland owned the 'horse in question and had a right to sell the same on the conditions named in the contract to the defendant and the defendant would thereby obtain a good title thereto, if the transaction was without fraud.</p> <p>2. The defendants agreement as to the care and treatment to be given the horse by him was a sufficient consideration for the sale.</p> <p>3. If the defendant performed the conditions of the contract of sale, the city could not repudiate the same.</p>

<p>On motion for new trial by defendant.</p> <p>This is an action on the case to recover damages for an injury sustained to plaintiff’s person and property, by reason of the negligence of the defendant. The plaintiff had hauled a load of potatoes to Unity railroad station with his team, consisting of a pair of colts four and five years old and a cart. He was instructed by the defendant’s servants to unload the potatoes into a certain car and he backed his cart against the car. He unloaded the bags of potatoes into the car and then went into the car, leaving his horses unhitched and unattended, to help carry the bags to the end of the car and empty them. While so occupied in the car, a shifting engine hitched on to the string of cars, of which the car the plaintiff was in was one, forcing the car back and throwing him upon the scales and injuring him and frightening his horses, causing them to run away and injuring them also. Plea, the general issue. The jury returned a verdict for the plaintiff for $500. The jury also found specially, at the request of counsel and direction of the court, that the damages for plaintiff’s personal injuries were $337.50, and damages to the disposition of the horse were $162.50. The defendant filed a motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Abatement. Action. Attachment. Discontinuance. Divorce. Discharge. Libel. Notice. Pleading. Practice. Vexing. Writ. </p> <p>1. A plea of the pendency of another action is a dilatory one, technical in its nature, and á person interposing it should clearly show himself within reason for its enforcement.</p> <p>2. The principle on which the plea is allowed is that a person should ’be protected from being harassed and vexed by the pendency of two actions at the same time to recover the same demand.</p> <p>3. At common law and in the earlier practice of the courts, the rule allowing this plea was applied with strictness, but the later decisions are more liberal.</p> <p>4. The modern doctrine, supported by a great weight of judicial precedent, is that the -rule allowing this plea is not one of unbending rigor or of universal .application, but rather one to be applied to promote justice and equity.</p> <p>5. That it should not be allowed where justice to the defendant does not reasonably require it and when to allow it would work manifest injustice to the plaintiff.</p> <p>6. That class of cases which hold that the mere fact that another suit was pending when the second suit was begun does not of itself show that the second suit is necessarily vexatious.</p>

<p>On report.</p> <p>This bill in equity was brought by the Crazvford Electric Company v. Knox County Power Company and Hollis M. Shaw, asking that the respondents be enjoined from making, generating, selling, distributing or supplying electricity for lighting, 'heating, manufacturing, etc., in- the tow-ns mentioned in -the counties of Knox and Waldo. In the quo warranto proceedings, charging the defendant Shaw with usurping two public franchises, the same facts and the same propositions of law are involved as are involved in the bill in equity; they were argued together and are decided and disposed of in the same opinion. Answers and replications were filed to the bill in equity, and by agreement, said answers were adopted as the pleadings in the quo warranto.</p> <p>The foregoing bill in equity and quo warranto are reported upon the following stipulation:</p> <p>The above entitled matters having come on to be heard and the undersigned Justice being of the opinion that questions of law are involved, of sufficient importance, or doubt, to justify the same, and the parties agreeing thereto, the same are reported to the next term of the Law Court, for determination, in accordance with the foregoing stipulation and agreement.</p> <p>The case is stated in the opinion.</p>

<p> Appointment. Assumpsit. Fees. Inspector. Lime. Revised Statutes, Chapter 2, Section 37. Revised Statutes, Chapter 117, Section 21. Revised Statutes, Chapter 40, Section 2. Removal. Tenure of Office. </p> <p>1. An inspector of lime casks is a civil officer, appointed by the Governor, whose term of office is not fixed or limited by law and who is subject to removal at any time By the Governor and 'Council.</p> <p>2. The plaintiff is entitled to receive for inspecting lime casks the fees fixed by Revised Statutes, Chapter 117, Section 21, but is not entitled to fees for lime shipped in bulk.</p> <p>3. The appointment of the plaintiff as inspector of lime casks of the City of Rockland was a removal of Mr. Crockett, and when the plaintiff qualified, he became inspector of lime casks.</p>

<p>On report.</p> <p>This is an action of assumpsit to recover the sum of $31.00, being the amount paid by the plaintiff as his part of the amount which the Waldo and Penobscot Coach Horse Company, of which the plaintiff was a member owed to Fred Coffin for taking care of the horse “Fernando,” owned by said association. On the 7th day of March, 1911, the association, by an agreement in writing, sold and delivered said 'horse to the defendant, the consideration 'being that the defendant was to pay Fred Coffin his bill for care of the horse, discharge his own bill for care of the horse, etc.</p> <p>The defendant did not pay Coffin’s bill and the plaintiff paid his share thereof, being $31.00, and this suit is to^ recover that amount. Plea, the general issue, and brief statement that plaintiff was one of a voluntary association and the defendant was also a member of said association.</p> <p>At the conclusion of the evidence, the case was reported to the Law Court for decision. Upon so much of the evidence as is legally admissible, the court is to render such judgment as the legal rights of the parties require.</p> <p>The case is stated in the opinion.</p>

On report. This is an action on the case by the plaintiff, a married woman, to recover treble the value of money alleged to have been lost and paid to the defendant by her husband by gambling and is based on Section 8 of Chapter 126 of the Revised' Statutes. Plea, general issue.

On motion for new trial by the defendant. This -is an action on the case to recover damages for an injury to the plaintiff, a boy fourteen years of age, occasioned from a bite of the defendant’s dog. The action is based on 'Section 52 of Chapter 4 of the Revised Statutes.

On motion by the defendants. This is an action of assumpsit to recover damages on account of a refusal of the defendants to accept sweet corn planted by the plaintiff for the defendants in accordance with a contract in writing between the parties for the season of 1911. The corn was to be delivered by plaintiff to defendants at their canning plant in Skowhegan. The defendants refused to accept the corn on the ground that it was not suitable for canning purposes.

On motion 'by defendant. This is an action on the case to recover damages for breach of a contract, in refusing to accept a quantity of sweet corn planted by the plaintiff for the defendants, in accordance with a contract, in writing, between the parties for the season of 1911. The defendants based their refusal to accept said com on the ground that it was unsuitable for canning purposes.

On motion and exceptions by defendant. This is an action on the case to recover damages for personal injuries alleged to 'have been received in consequence of the negligence of the defendant while he was transferring freight from a car on the defendants’ narrow guage line to a car of the Maine Central Railroad Company on the adjoining track in the yard at Farmington.

On report. This is an action on the case to recover damages for personal injuries sustained by reason of the negligence of the defendant. The plaintiff, on the 13th day of November, 1911, while in the Rodick Block, so -called, in Bar Harbor, for the purpose of transacting some business opened .an unlocked door at -the end of a recess in the building and walked into a floorless area, and fell into the cellar sustaining the injuries complained of.

On exceptions by plaintiff. This is an action on the case to recover damages of the defendant for causing the death of Laura A. Cates, by drowning, through the wrongful act, neglect or default of said defendant, and is based on Sections 9 and 10 of Chapter 89 of the Revised Statutes.

On report. This is an action of assumpsit for money had and received, brought 'by the mother of Edwin Gledhill, deceased, against his wife to recover the sum of $9,907.40, being the .proceeds of a policy of life insurance taken out by said Gledhill for the sum of $10,000 and made payable, in the event of his death, to -his executors, administrators or assigns.

On report. This is a hill in equity by the plaintiff as administrator de bonis non of the estate of Ignatius Sargent against the Merchants’ Insurance Company of Bangor, the Metropolitan National Bank of Boston and Charles Sargent of Boston, in which he prays that the Insurance Company may be ordered to cancel the certificate of stock issued to the Metropolitan Bank and issue a new one to the estate of Ignatius Sargent, and to pay the plaintiff the dividends accrued thereon.

On report. This is a real action to recover one-fourth part in common and undivided of a triangular piece of land, with the buildings thereon, situated on the easterly corner of Hammond and Union Streets in Bangor. Plea, the general issue. At 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 in the case as the legal rights of t'he parties may require.

On motion 'by the defendant. This action is to recover damages for personal injuries which the plaintiff sustained by stepping into and through a hole in the defendant’s wharf. Plea, general issue. The jury returned a verdict for the plaintiff for $556 and the defendant filed a motion for a new trial. The case is stated in the opinion.

<p>On motion and exceptions by the defendant.</p> <p>This is an action on the case by John Dirken against the Great Northern Paper Company to recover damages for personal injuries sustained on the 7th day of July, 1911, on account of t'he negligence of the defendant. The action is brought under Chapter 258 of the Public Laws of 1909, otherwise known as the “Employers’ Liability Act.” Plea, the general issue. In the course of the trial, the defendant’s counsel requested the presiding Justice to instruct the jury that there is no evidence that Dickinson was employed as a superintendent, whose sole, or principal duty, was that of superintendent, so that the defendant can be held liable for the negligence of Dickinson under Chapter 258 of Public Laws of 1909.</p> <p>That Chapter 258 of the Public Laws of 1909 is regugnant to and in conflict with the Constitution of the United States and the Constitution of Maine. Plea general issue.</p> <p>That the jury be instructed to return a verdict for the defendant, which instructions the presiding Justice declined to give. To which refusal to so instruct, the defendant excepted. The jury returned a verdict for the plaintiff for $4,000 and the defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Assumpsit. Board of Distribution. Christian Burial. Overseers of Poor. Pauper. Settlement. Revised Statutes, Chapter if, Section 3. Revised Statutes, Chapter 2f, Section if. </p> <p>1. That R. S., 'Chap. 17, Sec. 3, as to the disposal of dead bodies required to be buried at public expense, should be construed in connection with R. S., Chap. 27, Sec. 37, which authorizes and directs overseers of the poor to relieve persons destitute found in their towns and having no settlement therein, and to decently bury them, or dispose of their bodies according to R. S., Chap. 17, Sec. 3.</p> <p>2. That the overseers of the city of Bath had authority in this case either to give the body a 'Christian burial, or to deliver it to the Board of Distribution, if no member of the family had claimed it.</p> <p>3. That they were acting within the scope of their authority in preparing . the body for burial and the expenses so incurred were properly chargeable against the defendant town.</p>

<p> Care. Damages. Due Care. Evidence. Injuries. Negligence. Ownership. Passengers. Platform. Responsibility. Road Commissioners. Superintendent. Tort. Reasonably Safe. Quasi Station. </p> <p>1. That evidence of subsequent repairs was competent, not on the question of the defendant’s prior negligence, but on the issue of fact whether it was the duty of the defendant to make the repairs. It was in the nature of an admission on that issue.</p> <p>2. That whether the defendant actually constructed and maintained the platform and steps or not, it had adopted them as a means of ingress to and egress from its cars and had by implication invited its passengers to use them in passing from the cars to the sidewalk and from the sidewalk to the cars, and had sanctioned such use.</p> <p>3. That the service for which the plaintiff paid the defendant included not only transportation in its cars to the point of destination, but if that point was a station either built and maintained, or adopted by the defendant, it also included the furnishing of a reasonably safe way by which she could leave that station.</p> <p>4. That the ownership of the steps cannot be the sole test. That is a fact which the traveling public cannot know and cannot be bound by. The true test is whether the carrier invited its patrons to use the steps; and if so, a liability existed until the steps were passed.</p> <p>5. That the same degree of vigilance is not required of the defendant dur. ing the exit from the grounds as during the transportation, the amount of care varying with the exigencies of the situation.</p> <p>6. That under the evidence in this case, the measure of care required of the defendant was not met, the steps being in an admittedly defective condition.</p>

On report. This is an action of replevin for one roan colt named “Harry.” The plaintiff held a mortgage on certain horses, given by T. E. Wilson Company to secure a balance due on a note of the said company.

<p>On motion and exceptions by plaintiff.</p> <p>This is an action of assumpsit to recover of the defendant one hundred and twelve dollars and fifty cents, paid by the plaintiff as surety for the defendant. The plaintiff and another person had signed, as sureties, a promissory note for the defendant for two-hundred and twenty-five dollars, which was -paid' at maturity by the plaintiff, and one-half thereof, or one hundred and twelve dollars and fifty cents was paid the plaintiff by his co-surety. This action is brought to recover of the defendant one-half of said note, and was entered and tried in the Superior Court for Kennebec County.</p> <p>The plaintiff in this action also held another note for $30 against the defendant and ¡brought an action against him on said note in said Superior Court. The defendant thereafter brought an action against the plaintiff for $315 for services and board, and in his account annexed gave the plaintiff in this action credit for the $30 note on which Means had brought action against him and for the $225 which had been paid by Means as surety, one-half of which is sued for in the case at bar. At the June term, 1911, of the Superior Court for Kennebec County, the action of Means against Hoar on the $30 note was entered “neither party” and at the same term and time the action of Hoar v. Means for $315 was also entered “neither party; no further action for the same cause.” The action at bar was commenced July io, 1911. The defendant pleaded the general issue and by brief statement claimed that the subject matter of the plaintiff’s action was settled by an entry in the cross-actions between the same parties, at a previous term of the same court. The plaintiff excepted to certain instructions and to refusal to instruct by the Justice presiding. The jury returned a verdict for the defendant and plaintiff filed exceptions and a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Contract. Check. Tuition. Pupils. Registration. Catalogue. Accord and Satisfaction. Constitution. Notice. Payment. </p> <p>1. If one makes an offer of a certain sum to settle an open and unliquidated account, and attaches to his offer the condition that it must be accepted, if at all, in full satisfaction of the claim in dispute, the party receiving the sum offered will be taken to have accepted it subject to the condition attached to it.</p> <p>2. Such acceptance will operate as an accord and satisfaction, even though the party receiving it declares that he received it only in part payment of the debt.</p> <p>3. When the fulfillment of a contract becomes impossible by reason of illness, the obligation to perform it is discharged.</p>

On report. This is an action of trespass quare clausum to recover the value of certain spruce, pine and cedar trees cut by the defendant on section 9, of township number i, range 13, in the county of Piscataquis.

On appeal by defendants, from decree of a single justice. This is a bill in equity by a minority stockholder in the defendant corporation, in which he asks that an account of all transactions of Margaret V. Conners, Dennis E. Conners, and Edward F. Conners, as directors of said corporation, that an injunction, both temporary and permanent, be decreed restraining said corporation, its officers and agents, from recovering any moneys, paying any debts, or exercising any of its…

On appeal ¡by defendants other than --Clinton 'C. Palmer who made no defense from decree by the sitting Justice. This is a bill in equity brought as an equitable trastee process, under Revised 'Statutes, Chapter 69, Section 6 paragraph IX, to reach and apply to a debt due the plaintiff from Clinton C. Palmer certain money and other property in the hands of some of the defendants. Clinton C. Palmer, the debtor, was made a party, but made no defense.

<p> Account. Appeal. Allowance. Counsel Pees. Creditors. Disbursements. Discretion. Exceptions. Executors. Limitations. Private Account. Probate Court. Statute of Limitations. Trust. </p> <p>1. Under exceptions to the decision of -the Supreme Court of Probate on a probate appeal, only questions of law are open for determination. The findings of the Justice presiding in matters of fact are conclusive, if there is any evidence to support them. When the law invests the Justice presiding with power to exercise his discretion, that exercise is not reviewable on- exceptions.</p> <p>2. After the settlement, on appeal, of the account of a testamentary trustee or an executor, in the decree -for which no -provision was made for the payment of the expenses and counsel fees of the accountant in that proceeding, neither the Judge of Probate, nor the Supreme Court of Probate, has power, in the settlement of a subsequent account, to allow him credit for such expenses and counsel fees, either in connection with the hearing before the Judge of Probate, or on appeal. The rule is the same in equity.</p> <p>3. When an executor -is summoned in a suit at law as trustee of a legatee interested in the residuum of the estate, he may, in a proper case, contend against his liability, and may employ counsel for that purpose, and his expenses and counsel fees therein, may, in the discretion of the court, be allowed to him in the settlement of his account.</p> <p>4. An appeal by executors from the disallowance of $437, being part of an attorney’s bill paid by them, raises the questions of the legality and propriety of every item that made up the sum of $437. All the items having been disallowed, it was not necessary to state in particular the items disallowed, in the reasons for appeal.</p> <p>5. The “private claim” of an executor is not barred by the statute of limitations relating to suits against executors and administrators, though not presented to the Probate Court for allowance until after the statutory limit for suits is passed.</p> <p>6. The “private claim” of an executor stated in his account to be the “private claim of Francis Palmer, as executor, amount due 011 note signed by the deceased in favor of said Francis Palmer, $61.93,” is not stated with sufficient particularity to comply with the statute requirements. Whether in this case the disallowance of this claim should be without prejudice to the right to present it properly in a further account is a question -which must be determined in the Supreme Court of Probate.</p>

<p>On appeal by respondents from decision of the presiding Justice.</p> <p>This is a petition brought under Revised Statutes, Chapter 6, Sections 70-74, to determine whether the petitioners, or respondents, were severally elected to the offices for which they were candidates at the municipal election in ward 2 in Lewiston on the first Monday of March, 1913. The case was heard by a Justice of the Supreme Judicial 'Court, and from the decision by said Justice rendered, the respondents appealed and the case was thereupon certified to the Chief Justice, under Section 12, Chapter 6 of Revised Statutes.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. This is an action on the case to recover damages alleged to have been sustained by the plaintiff )by reason of the defendants’ negligence in carelessly constructing and maintaining two bridges' across Cathance Stream in the town of Marion, and by negligently omitting to provide the abutments to said bridges with suitable wings, and that by reason thereof said stream was unreasonably obstructed.

On exceptions by the plaintiff to ruling of the presiding Justice ordering a nonsuit. This is an action on the case in which the plaintiff seeks to recover damages for injuries sustained by reason of the negligence of the defendant. The plaintiff, while assisting in operating a portable sawing machine for the defendant, was injured by his hand coming in contact with the saw. Plea, the general issue.

<p>On report.</p> <p>These are appeals from the decree of the Judge of Probate in Penobscot County, allowing the will of Frank H. Holyoke, as a foreign will. The appellants contended that Frank H. Holyoke had never changed his domicil from Maine to California, and that the burden to establish it was on the appellees.</p> <p>At the conclusion of the hearing of the matter in the Supreme Court of Probate, the case was reported to the Law Court for its determination upon so much of the evidence as is legally admissible.</p> <p>The case is stated in the opinion.</p>

On report. This was a petition by the receiver of the defendant company asking court examination of the liabilities and assets of said company and a decree of court authorizing an assessment upon the premium notes of said company, if such assessment was found to be necessary. Upon this petition a hearing was ordered to be held at the court house in Ellsworth, in the county of Hancock, on the 27th day of March, 1913, at ten o’clock in the forenoon.

On report. This is an action of trespass quare clausum to recover damages for breaking and entering the plaintiff’s close situate in Wells, in said county, and cutting and carrying away certain growing trees. The only question presented was the title to the locus in question. The defendant pleaded the general issue and filed a brief statement denying the plaintiff’s title and claiming title in himself.

<p>On report.</p> <p>This is an action of assumpsit to recover the sum of $51,066.71, claimed to be due plaintiff from the defendant town for the construction of a way and bridge across York River. The declaration contains a count for breach of contract, an account annexed for labor performed, and materials furnished and the common counts. The defendant pleaded the general issue and filed a brief statement alleging, among other things, that the written contract between the plaintiff and defendant for the construction of said way and bridge was invalid, and that the County Commissioners of York County had no jurisdiction to lay out said way, etc.</p> <p>At the conclusion of the testimony, by agreement of the parties, the case was reported to the Taw Court for its determination upon so much of the evidence as is relevant and legally admissible.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>This is an action of debt on the official bond of the defendant as treasurer of the town of York for the municipal year of 1906-7. The plaintiffs claimed as breaches by the defendant:</p> <p>First. That he paid certain amounts on account of the' construction of the bridge across York River.</p> <p>Second. That he diverted certain trust funds held by the town amounting to $3,104.37 to the same bridge account.</p> <p>At the conclusion of the evidence, by agreement of the parties the case was reported to the Raw Court for final determination upon so much of the evidence as is legally admissible.</p> <p>The case is stated in the opinion.</p>

On report. This is an action of trespass quare clausum to recover damages for entry upon plaintiff's land in York, in the county of York. The defendant justifies under a contract made with the town of York for the construction of a way and bridge laid out by the county ■commissioners of York County. This case was reported with the case of Blaisdell v. Inhabitants of the Town of York, reported in this volume. The case is stated in the opinion.

<p> Assumpsit. Bankruptcy. Construction. Contract. Debt. Discharge. Embezzlement. Exceptions. Factor. “Fiduciary Capacity." Trust. </p> <p>1. The written contract between the parties contained the following provision: “All proceeds of sales and goods remaining unsold to be our property and you- are to have no title or lien upon said fertilizers, or their proceeds. It is specially agreed that you will hold the same in trust and separate for the settlement of our account with you. All sales shall be guaranteed by you, and the specific proceeds of the same are to be sent to. me as received by you; and until the proceeds of such sales are received' by us, the same shall be held by you in trust for us.”</p> <p>2. The use of the word “trust” does not alter the relations between the parties so'as to create such a fiduciary capacity as would escape the bankrupt act.</p> <p>3. The phrase “while acting in a fiduciary capacity” relates to special trusts and does not include those trusts which the law implies from the contract and which form an element in every agency and in nearly all the commercial transactions in the country.</p> <p>4. A factor, commission merchant or agent, who has sold property of his principal and has failed to pay over to him the proceeds, is held not to owe to him a debt created in a fiduciary capacity.</p>

<p>On report.</p> <p>The plaintiff on the eighth day of March, 1912, brought this action against The F. C. Tibbetts Mercantile 'Company, describing the defendant as a corporation^ organized and existing under the laws of Maine and located at Portland, in the County .of Cumberland and State of Maine. The defendant was a foreign corporation and was organized under the laws .of Arizona. The sheriff, by virtue of said writ, attached personal property of The F. C. Tibbetts Mercantile 'Corporation organized under the laws of Arizona, and the writ was properly served upon the proper officer'of said corporation. The defendant seasonably filed-a plea in abatement and the plaintiff filed a motion to amend his writ by striking out the words “of the State of Maine.”</p> <p>The case was, by agreement of parties, reported to the Taw Court upon an agreed statement of facts, the Taw Court to determine whether or not the plea in abatement shall be sustained, and if it be, whether the proposed amendment is allowable, and if the writ is amended accordingly, whether or not said amendment vacates the attachment.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions and general motion for new trial and motion for new trial on the ground of newly discovered evidence by the defendant.</p> <p>This is an action on the case to recover damages sustained by the plaintiff and caused by an alleged defect in a way in said City of Eastport. Plea, general issue. The jury returned a verdict for the plaintiff for $1852. The defénclant filed exceptions to the admission of testimony of the contents of the written notice to the municipal officers of the injuries to the plaintiff, and a general motion for a new trial, and a motion for a new trial on the ground of newly discovered evidence.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions, by plaintiff.</p> <p>This is an action on the case to recover damages for personal injuries received while in the employ of the defendant and alleged to have been caused by the negligence of the defendant. The defendant pleaded the general issue. At the close of the testimony for the plaintiff, the presiding Justice ordered a nonsuit to be entered, with the stipulation that if the order is overruled by the Law Court, judgment is to be entered for the plaintiff in the sum of five hundred dollars.</p> <p>The case is stated in the opinion.</p>