Volume 111 — Maine Reports

In equity. On report. This is a bill in equity by the executor of the last will and testament of Charles Oscar Littlefield, to obtain a construction of said will and codidil. The defendants severally filed answers to the bill and the usual replications were filed. At the conclusion of the hearing before the presiding Justice, the case, iby agreement of the parties, was reported upon bill and answers to the Law Court for decision. The case is stated in the opinion.

On Motion by Defendant. This is an action on the case to recover damages for personal injuries received while in the employment of the defendant, and which injuries are alleged to have been sustained by reason of the defendant’s negligence. The defendant pleaded the general issue. The jury found for the plaintiff and assessed damages for the plaintiff in the sum of $725, and the defendant filed a motion for a new trial. The case is stated in the opinion.

<p> Bill of Sale. Bonds. Conversion. Demand. Gratuitous Bailee. Intention. Ownership. Possession. Refusal. Title. Trover. </p> <p>1. An action of trover cannot be maintained without proof that the defendant either did some positive’wrongful act, with the intention to appropriate the property to himself, or to deprive the rightful owner of it.</p> <p>2. The refusal to deliver the property, upon demand, must be absolute, amounting to a denial of the plaintiff’s title to the possession and not a mere apology for not delivering the goods at present.</p> <p>3. If the intention be based on a denial of the owner’s rights or be accompanied by an intent to convert the property to the holder’s own use, an action for conversion will lie.</p>

<p>On exceptions by defendant.</p> <p>This is a process of séarch and seizure instituted under Revised Statutes, Chapter 29, Section 49. The complaint was made to the Recorder of our Police Court for the city of Rockland, in the County of Knox, and the warrant to search was issued and signed by him. This case was carried to the Supreme Judicial Court by appeal. At the September term, 1912,. of the Supreme Judicial Court, the defendant filed a demurrer to the complaint and warrant, which was overruled by the Justice presiding, and the defendant excepted to said ruling.</p> <p>The case is stated in the opinion.</p>

On report. This is an action of trover by the executor of the last will and testament of Lewis F. Gray and against Etta F. Gray, testator’s widow, to recover damages for the alleged conversion of a bond for one thousand dollars of the Lewiston, Augusta and Waterville Street Railway Company, and alleged to be of the value of one thousand dollars, gold coin of the value of one hundred and fifty dollars, and bank 'bills, gold and silver certificates of the value of sixty-five…

On motion by defendant. This is an action of assumpsit on an account annexed to recover a balance of $70 claimed to be due plaintiff on a contract for repairing and building an addition to buildings in the town of Wells and also $458.39 claimed to be for extra work and materials in repairing and building said addition, amounting in all to $528.39.

<p> Amendment. Compensation. Deputy Sheriff. Errors. Fees. Inferior Courts. Public Laws of 1907, Chapter 138. Remuneration. Revised Statutes, Chapter 79, Section 3. Revised Statutes, Chapter 29, Section 69. Services. </p> <p>Public Laws of 1907, chapter 138, d'idi not amend R. S., chapter 29, section 69, so as to increase the per diem compensation of deputy sheriffs engaged in the enforcement of the statutes prohibiting the illegal manufacture and sale of intoxicating liquors. The per diem compensation mentioned in said section 69 is to be regarded as a fee and remains fixed at two dollars.</p>

On appeal by Patrick F. Tremblay, Pet’r., against George A. Murphy, and by John LaCroix and W. S. Keene, Pet’rs., against George Z. Bernier and George A. Welch.

On motion and exceptions by the defendant. Exceptions not considered. This is an action of assumpsit in which the plaintiff seeks to recover the sum of $30.79 for supplies furnished to a pauper chargeable to the defendant town, by the plaintiff, under the provisions of Revised Statutes, chapter 27, section 45. Plea, the general issue. The jury returned a verdict for the plaintiff for $31.00.

On exceptions by the defendants. This is a real action brought to foreclose a mortgage on real estate described in plaintiff’s writ, and situate in Webster in the County of Androscoggin. The mortgage and the note thereby secured were originally made by the defendants to one James G. Jordan and by him transferred, by assignment of mortgage and endorsement of the note, to the plaintiff.

<p>On exceptions by defendant.</p> <p>This is an action of review. The defendant here, who was the plaintiff in the original action, recovered judgment against the plaintiff here,, who was defendant in said1 original action. The plaintiff brought a petition for review, which was granted. This writ of review was sued out, dated October 7, 1912, and made returnable to a term of court which was begun on the following ¡day, and which was the next term after the review was granted. There was no attachment made on said writ and no service of same before entry in court. On the return day, the defendant appeared specially and moved to dismiss the action for want of proper legal service. This motion was overruled and the defendant excepted. The case is stated in the opinion.</p>

On exceptions by defendant. This is an action on the case in which the plaintiff seeks to recover damages for an injury to one of his eyes, alleged to have been caused by the negligence of the defendant in locating, erecting and maintaining an eleotric arc lamp less than fourteen feet from the ground, and so placed with reference to the stopping place of the car of which the plaintiff was conductor, that in turning the trolley pole to prepare for the return trip, it came in…

Report on. agreed statement of facts. The defendant on the 10th day of April, 1911, made a common law assignment for the benefit of his creditor's to Leo D. Lamond, wherein he offered 25 per cent to all creditors who became parties to said assignment. The plaintiff in this action did not assent to said assignment, but on the 12th day of May, 1911, commenced this action and summoned said Lamond as trustee, and made it returnable to the Municipal Court for the city of Eastport.

On exceptions by the plaintiff. This is an action of assumpsit o-n an account annexed, in which the National Home for Disabled Volunteer Soldiers is summoned as trustee.

<p> Amendments. Attachment. Exceptions'. Exempt. Motion. Original Summons. Property of a Town. Revised Statutes, Chapter 84, Section 10. Revised Statutes of 1820, Chapter 63. Revised Statutes of 1841, Chapter 114, Section 25. Revised Statutes, Chapter 63, Section 2. Title. Writ. </p> <p>1. The real estate of a town, not exempted 'by statute, and not used by the town in the performance of its municipal functions, may be attached in a suit against it.</p> <p>2. An action against a town may be begun by writ of summons and attachment, and not necessarily by writ of summons only.</p>

On exceptions by the petitioner. This is a petition for mandamus .against the defendant as trustees of the Gardiner Water District wherein the petitioner seeks to compel the defendants to extend the water main of said District to the petitioner’s residence in South Gardiner, and supply him with water. The cause was heard before a single Justice, who denied the peremptory writ, and the petitioner excepted to that ruling. The case is stated in the opinion.

On exceptions by the defend&nt to the refusal of the Judge of the Superior Court for Kennebec 'County to give certain requested instructions. This is an action of assumpsit upon an account annexed to recover $315.13, being balance claimed' to be due plaintiff on a lot of flour, shipped by plaintiff to the defendant at Augusta on or about April 30, 1910. There is also a count for the refusal by defendant to receive and pay for said flour, and also the common counts.

On motion and exceptions by defendant. This .is an action on the case to recover damages claimed to have been sustained by the plaintiff in consequence of fire which destroyed a carload of merchandise, which the defendant company was carrying over its railway from Kennebunk, Maine, to Dover, New Hampshire, on the 30th day of November, 1911.

<p>On exceptions by plaintiff.</p> <p>This is an action to recover damages for breach of contract of guaranty in writing, that the automobile purchased of defendant should be free from defects in material and workmanship, for one year from date of delivery. The plea was the general issue an'd a brief statement in substance that subsequent to the quaranty, the defendant entered in to a new contract with the plaintiff for the sale and delivery to him of certain new parts, which said parts and appliances, when delivered, were to be paid for by the plaintiff and were not- furnished under the contract of guaranty.</p> <p>‘Alt the conclusion of the plaintiff’s evidence, the presiding Justice directed a verdict for the defendant, to which direction the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

On exceptions by the defendants. This is an action' ¡of debt on a bond given under section 5, of chapter 31 of the Revised Statutes. The defendant company was licensed on May 6, 1912, by the municipal ¡officers' of Rumford, to keep a pool room, and said license was to expire May 1, 1913.

On motion and exceptions by the defendant. Exceptions sustained.

On exceptions by appellant. 'Arvilla B. Jordan, late of Auburn, .deceased, in her will directed the executor thereof to convert her estate into money and after payment of debts, funeral charges, and expenses of administration, to pay over to James P. Hutchinson, trustee, all the residue and remainder of said estate, to be by him held in -trust and be invested in Safe and productive property.

<p>In Equity.</p> <p>On report.</p> <p>This is a bill in equity in which the plaintiff seeks ito redeem certain real estate from a mortgage given to defendant by the plaintiff, dated September 3, 1908, for $1300, to be used in the erection of a dwelling house. On January 23, 1909, the defendant advanced $600 in addition to the $1300 to plaintiff and took from her a second mortgage on said property. The plaintiff abandoned the house in an unfinished and untenantable condition, :and on March 8, 1909, the defendant took possession of the premises and finished' the house practically as the plaintiff had' planned it. The mortgage for $600 became 'due January 23, 1910. In October, 1910, the plaintiff made ¿■demand upon the defendant for an ¡account, of amount due on said $600 mortgage, and on October 27, 1910, defendant furnished the plaintiff with an itemized statement of amount claimed to be due on the mortgage, which included the amount of lien claims which defendant agreed to pay as the consideration for the $600 mortgage and also included the amounts paid ,out by him in finishing the house. December 1, 1910, plaintiff made a tender to defendant of $707.29 and demanded a discharge of the $600 mortgage, and the defendant refused to accept said tender. The defendant -filed an answer to the bill and the plaintiff filed a replication. At the conclusion of the evidence, the cause was reported to the Law Court on so much of the foregoing evidence as is legally admissible; the Law Court is to determine all questions of law and fact, and render such judgment as the rights of the parties require.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by Andrew Clark.</p> <p>This is ia Ml in equity brought by Edwin B. Jonah, as administrator of the goods and estate of Eewis D. Clark, against defendants, in which the court is asked to set aside certain Bills of Sale of certain boats and an assignment made by Eewis D. Clark to Andrew Clark and to order Andrew Clark to render an account of certain goods and property in his hands. This cause was referred to Hon. William P. Wblitehouse, Hon. Arno W. King and Hon. George M. Hanson. The report of the above named referees was offered for acceptance in court on May 1, 1913, and objections made by Andrew Clark. Upon 'hearing before the Justice presiding, the objections were overruled and said report ordered to be accepted. To this order, the defendant excepted.</p> <p>The case is stated in the opinion.</p>

On motion and exceptions by the defendant. Motion not considered. The actions of Benjamin P. Warner v. Maine Central Railroad Company and George B. Warner v. Maine Central Railroad Company were tried together.

On motion by defendant. This is an action on the case to recover damages for an injury occasioned by the negligence of the defendant in not sufficiently instructing her as to the danger incident to operating the steam mangle on (which s’he was working at the time of the accident.

<p>On motion and exceptions by the defendant.</p> <p>Exceptions overruled if within thirty days after the rescript of this decision is filed, the plaintiff remits all of the verdict, in excess of $3,487.15; otherwise, exceptions sustained.</p> <p>This is an action on the case to recover damages for personal injuries, received by the plaintiff, by being thfow-n from an elevator, operated by the defendant, and is based on the negligence of the defendant. The defendant pleaded the general issue. In the first trial of this case, a nonsuit was ordered, with the stipulation that if that ruling should not be sustained, the question of damages only, ■should be submitted to the jury. At the second trial of the case, the jury returned a verdict for the plaintiff for $4,136.75. The Justice presiding, in the course of his charge to the jury, instructed the jury to reckon interest at six per cent from the date of the writ on the amount they should find the plaintiff was entitled to recover for her injuries, and include that interest in the amount of the verdict. To this instruction the defendant excepted, and also filed a motion for a new trial, on the ground that the damages awarded are excessive.</p> <p>The case is stated in the opinion.</p>

On report upon an. .agreed' statement of facts. This is an action of assumpsit upon a ¡written contract to -recover •the sum of three hundred and1 forty dollars, 'designated in -said contract as a withdrawal fee. On the 24th day of May, 1907, -Cornelia S. -Rogers -owned- certain real -estate -which she placed in plaintiffs’ ’hands for -sale.

On motion and. exceptions by defendant. This is an action on a fire insurance policy of the standard form for $1500 issued by the defendant company upon plaintiffs’ two story frame dwelling house, situated in 'Lisbon, in the county of Androscoggin, on the second day of August, 1910, for the term of four years. The fire which destroyed the house occurred April 24, 1912, and the proof of loss was furnished the defendant on June 21, 1912.

On exceptions by plaintiff. This is an action of assumpsit upon an account annexed to the writ to recover the sum of one hundred and seventy-seven dollars and eighty-two cents, for legal professional services rendered to and on behalf of the defendant by the plaintiff. The defendant filed a general demurrer, which the Judge presiding sustained, and the plaintiff excepted to said ruling sustaining the demurrer. The case is stated in the opinion.

On appeal by defendant from decree of sitting Justice. Bill dismissed. This is a bill in equity wherein it is alleged that the brick wall of the defendants’ building, eighteen feet from the ground, between the second and third floors and continuing to the roof and shows a maximum overhanging upon plaintiffs’ premises of about one and one-half inches.

<p>On exceptions by plaintiff.</p> <p>This is an action on the case brought in the Superior Court for the County of Cumberland to recover damages for the instantaneous death of Theda C. Sykes, which occurred at Gray, in said county, 'and alleged to have been occasioned by the negligence of the defendant corporation. Plea, general issue.</p> <p>At the conclusion of plaintiff’s testimony, the presiding Judge, upon motion, ordered a nonsuit, and the plaintiff excepted to said order.</p> <p>The case is accepted in the opinion.</p>

<p> Amendment. Appeal. Bond. Decree. Exceptions. Motion. Reasons for Appeal. Revised Statutes, Chapter 65, Section 29. Motion. </p> <p>1. A probate appeal is not a common law procedure. It is a matter of statutory prescription and gives no latitude for construction a-s the language is plain and unambiguous.</p> <p>2. In this 'State, it is well settled that an instrument, although purporting to be a bond-, not sealed, cannot be regarded as a bond in contemplation of Revised 'Statutes, chapter 65, section 29.</p> <p>3. The appeal bond which had no seals upon it cannot be amended by adding seals to it, because to permit the addition of seals to a bond' filed by the appellants would be equivalent to allowing them to file a new bond-.</p>

<p>On motion for new trial by defendant.</p> <p>This is an action of assumpsit, upon an account annexed to the writ to recover the sum of $533.32, paid by plaintiffs for defendant at his request for rent of building on College Avenue in Waterville, for four months from May 1, 1912. The plaintiffs leased, in writing, of the Waterville Motor Company said premises for the term of three years, from September 1, 1911, at a rental of $1600 per year. On the 22d day of April, 1912, the plaintiffs transferred all their right, title and interest in said lease to the defendant, the consideration being the payment of said rent to said plaintiffs; or, as a matter of convenience, to said Waterville Motor Company. The agreement by the defendant to pay said rent was not in writing. The plea was the general issue and brief statement invoking the Statute of Frauds. \</p> <p>The jury rendered a verdict for the plaintiff for $533.32, and the defendant filed a general motion for a new trial.</p> <p>•The case is stated in the opinion.</p>

On exceptions by Herbert W. Hawes, petitioner. This is a petition for partition of certain real estate dated March 18, 1913, by Herbert W. Hawes, against Charles E. Nason, Jesse H. Nason and Carrie F. Nason. The real estate of which partition is sought was owned in common and undivided between said Charles E. Nason, Jesse H. Nason and Carrie F. Nason.

<p>On motion and exceptions by the defendant.</p> <p>This is an action of assumpsit to recover damages for an alleged breach of warranty in the sale of certain fertilizer by the defendant that it contained the necessary ingredients to make it suitable to use to grow potatoes. The plea is the general issue. The jury returned a verdict for the plaintiff for $812.50. The defendant had various exceptions, and filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On report. Judgment for plaintiffs for $500, with interest from the date of the writ.</p> <p>This is an action of assumpsit on an account annexed to the writ, and a special count to recover the sum of five hundred dollars, being an assessment of one hundred per cent by the plaintiffs, upon five shares of the capital stock of the Waterville Trust Company, of the par value of one hundred dollars each, and owned by defendant’s intestate. The plea, general issue. The case was reported to the Law Court upon an agreed statement. Upon so much of the evidence as is legally admissible, the court will render such judgment and assess such damages, if any, as the law and the evidence require.</p> <p>The case is stated in the opinion.</p>

On motion by plaintiff for new trial. This is an action of assumpsit upon an account annexed to the writ to recover a balance due for fertilizer sold defendant. The defendant claimed that he had made payment in full. Plea, general issue. The jury returned a verdict for the defendant and the plaintiff filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by defendant. This is an action of assumpsit for use and occupation of a certain tenement situated in Mexico, in the County of Oxford, for one month from September 1, 1912, to October 1, 1912. The action was brought in the Rumford Falls Municipal Court and returnable at the November Term of said court, 1912.

<p>On appeal and exceptions by respondent, Arthur E. Marks.</p> <p>This is a bill in equity in which the plaintiff, James A. Clarke seeks to secure the cancellation of a certain promissory note dated April i, 1908, for $17,500, payable to the order of John B. Candy and signed, “Prospect Realty Company, J. B. Candy, Treasurer,” on the ground that said note was executed without authority, and was without consideration, and also to enjoin the further prosecution of an action at law thereon.</p> <p>The defendant, Arthur E. Marks, demurred to said bill, and filed a plea in bar thereto. The presiding Justice overruled the demurrer and the plea in bar, to which ruling the defendant, Arthur E. Marks, excepted. The case was then heard before a jury upon bill, answer, replication and proofs and final decree in accordance with the prayer of the plaintiff was entered, from which decree the defendant Arthur E. Marks appealed to the Law Court.</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 from the defendants, owners of a certain building situated in Guilford, in the County of Piscataquis, and known as the Braeburn Block, for injuries received in consequence of the careless and negligent manner in which the said defendants managed and controlled said building, or Braeburn Block, so called. That on account of said negligent and careless management of said building, the rain, ice and snow fell from said building upon the sidewalk rendering it slippery. The plaintiff, while travelling on said walk, slipped and fell upon the ice, causing the injuries complained of. Plea, general issue. In the course of the trial, the defendants introduced, and were allowed to read to the jury, extracts from the private diary of one James Ham, deceased, purporting to be a record of the weather conditions.</p> <p>The plaintiff excepted to the admission of said evidence. The jury-returned a verdict for the defendants.</p> <p>The case is stated in the opinion.</p>

<p> Allegations. Counts. Exceptions. Extortion. Indictment. Motion. Threats. </p> <p>This is an indictment charging extortion, based on Revised Statutes, chapter 119, section 23.</p> <p>1. The gravamen of the charge contained in this statute is an intent to extort money, and the threat is the manner in which this is to be accomplished.</p> <p>2. In this indictment, it is alleged that the respondent verbally, did feloniously and maliciously threaten to accuse one Hewett of the crime of selling intoxicating liquor, with intent to extort money.</p> <p>3. The indictment in this case is held to be sufficient, as it specifically alleged the offense charged and apprised the respondent of what he was accused.</p> <p>4. The form of the language in which the threat was made is not material. If required to be set out, it might defeat the very purpose of the statute. The statute never intended the words should be alleged as in the case of a libel or slander.</p>

<p> Accidents. Automobile. Chauffeurs. Contributory Negligence. Damages'. Danger. Diligence. Due Care. Highways. Negligence. Owners. </p> <p>1. It is a matter .of common knowledge that all adults of ordinary prudence do not always immediately do the right thing, or exercise the best judgment in cases requiring quick thought and quick action.</p> <p>2. In view of this habit, due to the inherent frailties of human nature, the law requires that degree of diligence which constitutes due care, to be commensurate with the danger to be avoided.</p> <p>3. A driver of an automobile, in the public highways constantly traveled by pedestrians and .teams, and occupied 'by children, should, to establish due .care, exercise so h'igh a degree of diligence in observing the rights of foot passengers, or teams, when approaching them, as to enable him to control it or stop it if neeessary, to avoid collision, which cannot be regarded as a pure accident or due to contributory negligence.</p> <p>4. Drivers of automobiles should be required to do everything that human agency can do to avoid taking human life.</p>

On exceptions by plaintiff. This is a real action to foreclose a mortgage; the writ being dated March 6, 1912, and returnable at the April Term, 1912, of the Supreme Judicial Court for Waldo County. On June 3, 1911, the plaintiff brought a real action to foreclose the said mortgage, returnable to said court at the September Term, 1911. The declaration in the first named writ contained no description of the land involved.

<p> Conveyance. Damages. Basement. Equity. Fee. Private Nuisance. Restriction. </p> <p>The plaintiff and defendant owned adjacent -lots facing on Lincoln Street, in Lewiston, each lot having a frontage on said street of twenty-five feet, and in each deed was this clause: “Subject to the restriction that no buildings ereoted thereon shall be placed nearer the line of 'Lincoln Street than twelve feet.</p> <p> Held: </p> <p>1. That the restriction, or reservation, was a servitude in the nature of an easement for the benefit of all the lots and would run with each lot in the hands of the grantees of the Franklin Company, or in the hands of subsequent grantees.</p> <p>2. That the plaintiff has a remedy at law, and the evidence discloses no abandonment of his rights by him or his predecessors in title.</p>

<p>On report.</p> <p>This is a bill in equity, brought by the trustees of the residuary estate, under the will of Isaac Dodge, late of Newcastle, in the County of Lincoln, praying for a construction of the will and for instructions. The heirs of Isaac Dodge, the beneficiaries under the will and the executor of the will of Arabella Dodge, widow of testator, are parties defendant. Answers by defendants were filed and replication thereto by plaintiffs. At the close of the hearing, the cause was, by agreement of parties, reported to the Law Court upon bill and answer, it being agreed that the facts stated in the bill are true, upon which case the Law Court is to determine the rights of the parties.</p> <p>The case is stated in the opinion.</p>

<p> Boundaries. Calls. Deeds. Intention. Line. Location. Lots. Road. Wrought and Traveled. </p> <p>1. When the line of a road is referred to in a deed as a boundary, and the road actually traveled lies wholly .or 'in part outside of the limits of the way as laid out, it is a question of intention whether the reference be to the road as laid out, or as traveled and used; and it is to be determined as a question of fact. In these cases the court find that such a reference was to the road as traveled.</p> <p>2. When the calls of a deed are applied to the face of the earth, and it Is doubtful which of -two objects or places is meant by the language of the deed, parol evidence showing intention may be resorted to.</p> <p>3. Where a call in a deed began “seven rods and twenty-two links northwesterly from” a certain road, the court finds in these cases that the distance is to be measured from the site of an old wall, which had marked the physical boundary of the road as it was traveled.</p>

On exceptions by the defendant. This is a real action to recover the possession of lot No. 74 in Sea View Cemetery, which is located in the town of Rockport, in the County of Knox. The case was submitted to the presiding Justice at the April Term of the Supreme Judicial Court for Knox County, 1913, with the right of exceptions.

<p>On exceptions by the plaintiff.</p> <p>This is an action on the case against the defendant company as a common carrier to recover damages occasioned by the alleged negligent delay in transporting a car of strawberries from the defendant’s freight yard in South Boston, Massachusetts, to Auburn, Maine. At the conclusion of the evidence, the presiding Justice ordered a verdict for the defendant with an agreement on the part of the defendants that if this order is overruled, the Law Court may enter judgment for the plaintiffs for the sum of $233.17. To this order of verdict for defendants, the plaintiffs excepted. Plea, general issue.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by the plaintiff. Exceptions overruled and in accordance with the stipulation, judgment to be entered for the defendant.</p> <p>This is an action on the case to recover damages for personal injuries received by the plaintiff on account of the alleged negligence of the defendant. The case has been tried once before and the plaintiff recovered a verdict, which was set aside on the ground that the plaintiff, prior to suit, had settled his claim and released in writing the defendant. See Borden v. Sandy River & Rangeley Lakes Railroad, 110 Maine, 327.</p> <p>By agreement of parties, the court record of all evidence taken at the first trial in September, 1912, was offered and admitted, and additional documentary evidence and testimony was admitted, subject to exception noted. After the evidence was all in, the presiding Justice order a verdict for the defendant, to which order and ruling the plaintiff excepted. Plea, general issue and brief statement, stating in substance that on the 3d day of November, 1911, the plaintiff, by his certain writing of release by him signed, in consideration of thirty-five dollars to the plaintiff in hand paid by the defendant, the plaintiff did thereby release and forever discharge said defendant for damages to him in person and property for injuries received.</p> <p>The case is stated in the opinion.</p>

<p> Assent in writing. Conditions. Insurance. Policies. Vacancy. </p> <p>1. Contracts of insurance are contracts of indemnity upon terms and conditions specified in the policy embodying the agreement of the parties and if it appears that the insured has violated or failed to perform any of the conditions of the contract, and such violation or want of performance has not been approved by the insurer, .the assured cannot recover.</p> <p>2. If the plaintiff permitted the insured premises to become vacant by the removal of the occupants and to remain vacant for more than thirty days without the assent of the company in writing, or in print, he violated a condition of the policy and cannot recover.</p> <p>3. The subsequent reoccupation of the premises by workmen of the assured did not revivify the policy, nor restore the plaintiff to his former rights, as no act of the plaintiff alone could have .that legal effect.</p>

On report. This is an action of assumpsit on a policy of life insurance for twenty-five hundred dollars. The policy issued to plaintiff was called the Free Tontine Policy. Under this policy, the plaintiff was to pay in advance thirty-one dollars and sixty-three cents, and thereafter to pay annually on or before the 29th day of January in each year, one hundred and nineteen dollars and fifty cents, for twenty years.

<p>On exceptions by petitioner.</p> <p>This is a petition for division of certain land situate in Guilford village, in the town of Guilford, in the County of Piscataquis, and is brought under the provisions of Revised Statutes, chapter 90. In 1905, this petitioner brought a real action in the Supreme Judicial Court, Piscataquis County, against these defendants to recover this same land, which he seeks to have set out to him in severalty in these proceedings. In the real action, the defendants in this filed a written claim to compensation for buildings and improvements on the premises and a request for an estimation of the increased value of the premises by reason thereof, and the demandant in the real action, being the petitioner in this,.filed a request in writing that the jury would estimate what would have been the value of the premises at time of trial, if no buildings had been erected, improvements made or waste committed. By agreement of the parties, three persons were named to fix the values as prescribed in chapter 106 of the Revised Statutes. The commissioners made their report at the September Term, 1910, and the report was accepted at same term, and no further proceedings were had, until this petition was filed for partition. The presiding Justice, on motion of defendant, dismissed the petition for partition, and the petitioner excepted.</p> <p>The case is stated in the opinion.</p>

<p> Bequests. Codicil. Construction. Intention. Remaindermen. Renunciation. Sequestration. Waiver. Will. </p> <p>By the will dated November 23, 1905, the testatrix made several pecuniary bequests aggregating aboult $1500, lindluding a small bequest to her husband and gave the residue of her estate to 'her nephews named. May 24, 1910, she made a codicil, in which the testatrix gave in trust to a person named, $2000, to be invested by the trustee, and if her husband survived her, the income thereof and so much of the principal as should be necessary for his comfortable maintenance and support was to ibe used for that purpose, and at his decease, if any of said fund remains unexpended, she gave to certain persons named. The testatrix died without issue.' Her husband waived the provisions for him in the will and codicil, ¡taking one-half of the estate, which was about $4000.</p> <p>Isabel Pratt, a legatee in the will for $200, died before the death of the testatrix.</p> <p> Held: </p> <p>1. In construing the will and codicil in ¡the light of the situation and circumstances o'f the testatrix, when the codicil was made, it is the opinion of the court that she intended that the pecuniary bequests in her will should be paid and that she regarded these bequests superior to the provisions that any unexpended balance of the trust fund remaining at the death of her husband was to go to the persons therein named.</p> <p>2. That the intention of the testatrix that the pecuniary bequests in her will should be paid, can and should be carried out -by using so much of the trust fund as may be necessary therefor to pay those bequests made in the will.</p> <p>3- That the interest of the remaindermen in the trust fund ¡takes precedence of the interest of ¡the ¡residuary legatees in the will.</p> <p>4. If the net estate left after the husband’s share is 'taken oult, is in excess of the $2000 ¡trust fund, that excess will be applied to ¡the payment of the pecuniary bequests, and then the trust fund must contribute enough to satisfy the balance of the pecuniary bequests, and what remains of the trust fund will belong to .the remaindermen named in ¡the codicil.</p> <p>5. The bequest to Isabel Pratt lapsed as she died before the death of the testatrix, and was not related .to her by blood.</p>

<p> Accident. Disability. Exceptions. Indemnity. Insurance. Notices. Policy. Physician. Premium. Waiver. </p> <p>In an action of assumpsit on a policy of accident and illness indemnity, it appeared that the plaintiff took out hisi policy on January 5, 1911, covering the period until February 1,1911, and paid the premium therefor in advance; that subsequent premiums were due and payable monthly in advance on the first day 'of -each month; that the plaintiff continued to make these monthly payments, sometimes in advance, but often when overdue, the premium for June being paid on May 8; for July on July 24; for August on August 5; for September on September 5; for October on October 3; and for November, in advanoe on October 29.</p> <p>The plaintiff fell ill and ceased work on June 24. He consulted a physician for the first time on July 5. From that date until Ootober 1, he was necessarily and continuously confined within the house and regularly visited- by a legally qualified physician at feast every seven days. From October 1, he was convalescent but unable to work.</p> <p> Held: </p> <p>1. That for the period beibw-een June 24 and July 1, the plaintiff is not entitled to recover because the condition in the policy that the assessed must be “necessarily and continuously confined within the house” was not fully met; and for the further reason that he was not “therein regularly visited by a legally qualified physician,” as required by the policy.</p> <p>2. That for the period from July 1 to July 5 the plaintiff cannot recover because of the same lack of medical attendance.</p> <p>3. That for the period from July 5 to July 24, the plaintiff can recover full indemnity at the rate of $25 per month, even though the renewal premium, due July 1, was not paid until July 24. The company waived the condition of forfeiture for non-payment of premium in advance by accepting and ■retaining it when overdue. It could not accept and retain the premium and still be free from liability.</p> <p>The provision, “nor shall the acceptance of any overdue premium or premiums constitute a waiver of the requirement thaft ail renewal premiums be paid in advance as specified in the contract,” refers to a waiver affecting the future and not the past.</p> <p>4. That for the period from July 24 to October 1, the plaintiff is entitled to full indemnity.</p> <p>The provision “if the payment of renewal premium shall be made after the expiration of this policy or of the last renewal receipt, neither the assured nor the beneficiary will be entitled to recovery . . . for any illness originating before the expiration of thirty days after the date of such renewal payment,” does not apply 'because the plaintiff’s illness did not originate within thirty days after the payment but many days before.</p> <p>5. That for the period from Ootober 1 to December 1, the plaintiff is entitled to half indemnity, at the rate of twelve dollars and fifty cents per month.</p>

<p>On report.</p> <p>Judgment for the plaintiff for $655.00 and interest from December 1, 1910.</p> <p>This is an action of debt brought by the City of Rockland against Lucy C. Farnsworth as executrix of last will and testament of James R. Farnsworth, who resided in said Rockland at the time of his decease, to recover for taxes assessed against her for the years of 1907, 1908 and 1909, amounting to $670.00. Plea, general issue.</p> <p>At the conclusion of the evidence, the case was reported to the Law Court for determination, upon so much of the evidence as may be legally admissible.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>The relators in the above four cases have each brought quo warranto to test the title to the offices of assessor, city solicitor, city physician and auditor in the city of Lewiston, and were tried together. In June, 1913, these respondents, and other claimants, brought petitions under Revised Statutes, chapter 6, sections 70-74 against these petitioners, and others, then holding the above named offices, and upon a hearing before the sitting Justice, on June 7, 1913, said Justice rendered a decision in favor of the respondents. Appeals from said decision were taken by two of the parties, but none by these relators. Answers and replications were filed in these cases, and at the conclusion of the hearing, the case was reported to the Law Court upon the following stipulation:</p> <p>“By agreement of the parties, these four cases, which were heard together, are reported to the Law Court for its determination upon the law, the facts agreed upon, and so much of the evidence as is legally admissible. A copy of the findings made upon the original petitions by Judge Savage may be referred to as a part of the case, and used in argument by either party, but need not be printed.”</p> <p>The case is stated in the opinion.</p>

On motion for new trial by defendant. This is an action on the case to recover damages for personal injuries sustained by the plaintiff on account of the alleged negligence of the defendant company. On the 22d day of September, 1911, an electric car of the defendant company, in which the plaintiff was a passenger, collided with another car of the defendant company, on Main Street in Bangor. By this collision the plaintiff sustained the injuries complained of.

On motion for a new trial by the defendant. This is an action of replevin against the defendant for a Cadillac automobile, 1911 model. The defendant purchased said automobile of John C. Merrill on September 19, 1911. In November, 1911, the defendant traded this car with said Merrill for a 1912 model, and in December, 1912, said Merrill sold this 1911 car to the plaintiff.

On exceptions by the defendant. This is a complaint for flowage under Revised Statutes, chapter 94, section 35. The defendant died, and the death being suggested, the complainant was granted leave to cite in her administrator. Upon summons, the administrator appeared and filed a motion to be discharged from the proceedings. The presiding Justice overruled the motion and the defendant excepted. The case is stated in the opinion.

<p> Acceptance. Assumpsit. Consideration. Delivery. Failure of Consideration. Sale. </p> <p>1. An action of assumpsit to recover ithe price of goods sold cannot be maintained without proof of delivery and acceptance of the goods.</p> <p>2. This case shows no evidence of delivery or receipt, and for that reason this action is not maintainable for the price of goods bargained.</p> <p>3. The destruction ¡by fire of goods bargained, but not delivered, is a total failure of consideration of a check given in part payment before the fire, but not presented for payment until afterwards.</p>

On report. This is an action of assumpsit to recover damages as alleged in the declaration, for breaches of certain promises, covenants and agreements to do certain acts, contained in a certain lease and indenture under seal. The lease was offered in evidence by the plaintiff, and its admissibility was objected to by the defendant. The question of the admissibility of said lease was reported to the Law Court under the following agreement and stipulation.

In Equity. On appeal by plaintiff from decree of sitting Justice. The appeal is therefore sustained and the case remanded for an accounting as herein suggested, before a single justice, after which a decree for the sale of the property upon proper terms will be entered in accordance with the opinion.

On exceptions by the defendant. This is an action of trespass on the case to recover damages for failure of defendant to perform an alleged undertaking to obtain the renewal of a policy of insurance upon its expiration, which would occur at a future date. Plea, general issue.

On report. Decree according to the opinion. This is a bill in equity by the Grand Lodge of the Ancient Order of United Workmen of Maine against Harold M. Edwards and Maude M. Edwards, in which the court is asked to determine to whom belongs the amount due and payable under a beneficiary certificate issued to Merton O. Edwards by the plaintiff corporation on the 5th day of November, 1901, for $2000, payable at his death to his wife, Clara A. Edwards, who died December 7,…

In Equity. On appeal, by the defendant. This is a bill in equity in which the plaintiff prays that an account may be taken of the sums equitably due the defendant on each of said mortgages; that the plaintiff may be allowed to redeem said mortgaged premises by paying to the defendant such sums as may be due the defendant by said account, and that the defendant may be ordered upon payment of said sum to release all his right and title in said premises .to the plaintiff.

On report on an agreed statement. This is an action of assumpsit to recover for pauper supplies furnished to Everett W. Spencer and Paris A. Spencer, minor children of Ralph Spencer and his wife Nellie M. Spencer, between September 14, 1910, and March 15, 1912, amounting to $103.07. Ralph Spencer, whose pauper settlement was in Veazie, left his wife and said minors and went to the State of Washington, and has not returned, or communicated with, or provided for them.

On exceptions by both párties. This is a bill in equity praying that the defendant may be declared to be a trustee of all bonds bequeathed to him by the will of Alfred Lemont, and received by him from the executors of said will, and all other bonds or other property into which said original bonds, or the proceeds thereof, have been converted by the defendant; that the defendant be ordered to pay to her the income thereof during her natural life; for an injunction and an…

<p> Copy of List of Stockholders. Corporations. Inspection of Corporate Records. Interest of Stockholders. Mandamus. Peremptory Writ. Revised Statutes, Chapter 47, Section 20. Stockholder. </p> <p>In a petition for mandamus by stockholder of corporation to compel Clerk of Corporation to allow petitioner to inspect the corporate records and stock book and to take copies and minutes of such parts as concern his interests.</p> <p> Held: </p> <p>1. At common law stockholders are given the right to examine the books, records and papers of the corporation, when the inspection is sought at proper times and for proper purposes, and those purposes are generally held to be proper which relate to the interest of the stockholder as such.</p> <p>2. These rights have been extended in this State by Revised Statutes, chapter 47, .section 20.</p> <p>3. Under this Statute, a stockholder has an absolute and unlimited right to inspect the corporate records and the list of stockholders, whatever may be his motive or purpose in seeking to exercise it.</p> <p>4. While the right of stockholders to inspect the records of the corporation and the list of stockholders is unlimited, the right to take copies and minutes therefrom is limited to such parts as concern their interests.</p> <p>5. A stockholder is one of many engaged in a joint enterprise and the opportunity to communicate with his associates may be of prime importance, and ownership of stock per se renders information as to who are the co-owners of vital interest.</p> <p>6. The conduct of the corporation, its policies, plans and methods concern all stockholders, and unless they can reach one another so as to obtain concert of action, they may be powerless to prevent injury or disaster.</p>

<p>On report.</p> <p>This is an appeal by the plaintiff from an assessment by the city council of the city of Bangor, of benefits upon land owned by plaintiff and situate at the corner of Hammond and Central Streets in the city of Bangor. The city council of Bangor, in accordance with the city charter, in the summer of 1911 widened Central Street and assessed said plaintiff in the sum of $4032.93 for benefits. From which assessment the plaintiff appealed to the Supreme Judicial Court, then next to be holden at Bangor, in and for the County of Penobscot, on the first Tuesday of January, A. D. 1912, and filed therewith his reasons of appeal.</p> <p>At the close of the hearing below, by agreement of the parties, the case was reported to the Law Court upon so much of the evidence as is legally admissible under these proceedings; in the event the proceedings of the Bangor city council relative hereto are sustained, the case to be sent back for further proceedings according to law.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by the plaintiffs.</p> <p>This is an appeal by the plaintiffs from a decree of the Judge of Probate for the County of Washington, June 10, 1913, admitting to probate the last will and testament of Lewis D. Clark, late of Eastport, in said county, deceased. Said appeal was entered in the Supreme Judicial Court, being the Supreme Court of Probate, at the October term, 1913, when the appellants moved to amend their reasons of appeal by striking out reason numbered 7 and substituting therefor another reason. The presiding Justice refused to allow the amendment. To which refusal by said Justice, the plaintiffs excepted.</p> <p>The case is stated in the opinion.</p>

On motion and exceptions by the defendant. Motion not considered. , This is an action of trover against the defendant, a deputy sheriff, to recover damages for the conversion of four hundred and eighty-five bunches of bananas of the value of $251.40, which were attached by him September 2, 1912, on a writ in favor of G. B. Johnson & Company and against one Arthur Babalais.

On report. Motion to dismiss overruled. Demurrer overruled. Libellee to plead over. This is a libel for divorce.

<p>On report. Judgment for the plaintiff. Damages assessed at $ 150.</p> <p>This is an action on the case to recover damages of the defendant as owner of a house lot situate in Littleton, in said County of Aroostook, for the loss of a horse, owned by the plaintiff, in the evening of December 29, 1911. The plaintiff, a truckman, on said day was delivering a load of wood to a tenant of the plaintiff in said premises, when said horse fell into an excavation made by the defendant for a cesspool, and was killed. Plea, general issue.</p> <p>At the conclusion of the evidence for the plaintiff, by agreement of the parties, this case was withdrawn from the jury and 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. And it is further agreed that if the Law Court decides from the evidence that the defendant is liable, damages shall be assessed for the plaintiff in the sum of one hundred and fifty dollars and interest from the date of the writ.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>This is a real action entered in court at the January term, 1912, of the Supreme Judicial Court, at Machias, in the County of Washington. At the return term, by rule of court, this case and an equity case involving matters in which both parties were interested were referred to three arbitrators. The referees filed their report and award so far as it related to the equity case January 9, 1913, and with the report a memorandum stating that they deemed it inexpedient to decide the real action until the probate of an instrument purporting to be the last will and testament of Lewis D. Clark had been determined. At the October term of- said court, on motion of' defendant, the rule of reference was recalled and the reference stricken off. To this action of the presiding Justice, the plaintiff excepted and his exceptions allowed.</p> <p>The case is stated in the opinion.</p>

<p>On motion by plaintiff for a new trial.</p> <p>This is a real action by a mortgagee to recover possession of the land described in said mortgage for a breach of the condition of said mortgage. May 11, 1893, the defendant gave said mortgage to his mother and the plaintiff, who is his brother, to secure the conditions in his bond that he would suitably support and maintain them during their lives and provide them with clothes, food, drink, medicine and nursing and all other things necessary, in his house, or in such suitable house as he might provide; he to have the benefit of plaintiff’s wages. The mother lived with and was properly supported by defendant until her death in 1900. The plaintiff lived with and was properly supported for eighteen years to 1911. Sometime in 1911, the plaintiff left the defendant’s house, since which time he has not had a home there and the defendant has refused to have him‘there, because of his unruly and dangerous conduct towards the defendant.</p> <p>Plea, the general issue with brief statement of special matter of defense, in which it is alleged, in substance, that the title under which plaintiff claims the real estate is a mortgage deed conditioned that defendant should well and truly support Rachel Gray and George M. Gray during their natural lives. That said defendant on his part has fully carried out, fulfilled, done and performed all of the conditions mentioned in said bond. That the defendant has not had the benefit of said plaintiff’s wages as set out and agreed in said obligation.</p> <p>The jury returned a verdict for the defendant and the plaintiff filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Account. Agent. Agreement for Sale. Contract. Copartnership. Husband and Wife. Lumbering Operations. Mortgage. </p> <p>In the fall of 1911, Mark P. Ladd, husbandl of the defendant, his son Fred, and Asa 'Carle entered into a partnership agreement to carry on a lumbering operation. Mr. Ladd negotiated with the owner of.a lot near his home for the soft wood lumber standing thereon, and .procured a conveyance of it to his wife, the defendant, she giving back to the owner a mortgage for $700, the full purchase price. A contract in writing was made with two men by the name of Bennett, for the purchase by them of said lumber. The defendant, and also Mr. Ladd, his son Fred, and Mr. Carle signed said contract. In the contract, it was stipulated that the Bennetts should retain in their hands, for the grantees in said mortgage, $1.00 per cord on all lath stock and $3.50 per thousand feet on all logs until the sum of $700, the amount of the mortgage given by the defendant, was thus accumulated.</p> <p> Held: </p> <p>1. Mrs. Ladd could not be held liable in these actions on the ground that she was a partner in the lumbering operation with her husband, son, and ‘Carle, and thereby became liable for these debts contracted by the partnership. And that is not really claimed.</p> <p>2. The only ground on -which the defendant’s liability in these actions is predicated is the theory that Mrs. Ladd was carrying on the lumbering operation as her business and that her husband was her agent in dealing with the -Carles, and bound her by his agreement with Mr. Carle to pay these claims in suit. But the court is constrained to the opinion from a careful consideration and examination of all the evidence that it is clearly insufficient to justify the jury in so finding.</p>

<p>On report. Information dismissed with costs.</p> <p>This is an action of quo warranto, brought at the relation of Lewis W. Moulton, who claims to be sheriff of Cumberland County against Everett G. Scully, appointed to the office of sheriff, of Cumberland County by Hon. William T. Haines, Governor of Maine, upon the adoption of an address to him by both branches of the Seventy-sixth Maine Legislature, calling for the removal of said Lewis W. Moulton from said office; entered at the April Term, 1913, of the Supreme Judicial Court for Cumberland County.</p> <p>The address to the Governor by the Legislature, requesting the removal from office of Lewis W. Moulton, sheriff of Cumberland County, alleged the following causes: “Because the said Lewis W. Moulton, who is now holding the office of sheriff for the County of Cumberland, and who has held said office continuously since the first day of January, A. D. 1913, wilfully or corruptly refuses, or neglects, to perform the duties required of him as such sheriff, by section 69 of chapter 29 of the Revised Statutes of Maine, as amended by chapter 41 of the Public Laws of 1905, and particularly his duties as said sheriff in enforcement of the laws against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops.” This address was adopted by both branches of the Legislature, and on the 24th day of April, 1913, the members constituting the Governor’s Council voted to advise the Governor and to consent to the removal of the relator, Lewis W. oulton, from the office of sheriff of Cumberland County. On the 28th day of April, 1913, the Governor removed said Lewis W. Moulton from said office to take effect May 8, 1913, and appointed Everett G. Scully of Portland, to succeed said Moulton in said office, to take effect upon the date above named, and authorized and empowered him to fulfill the duties of that office according to law, and to have and to hold the same, together with all the powers, privileges and emoluments thereto of right appertaining unto him, the said Everett G. Scully, until the first day of January, 1915, or until another shall be chosen in his place, if he shall so long behave himself well in said office, unless sooner removed by the Governor and Council for the time being, and before the commencement of this action was duly qualified as such. The respondent, Everett G. Scully, made answer to the writ of information in the nature of quo warranto, and the relator, Lewis W. Moulton, filed a replication. At the conclusion of hearing in above case, the same was reported to the Law Court to be determined by said court upon the pleadings and agreements of the parties. The information, answer, replication and agreements of counsel, and all papers, documents and records are made a part of the case.</p> <p>The case is stated in the opinion.</p>

<p> Case. Corporation. Default. Judgment. Limitation of Action. Revised Statutes, Chapter 47, Sections 88-8g. Stockholder. </p> <p>Action on the case under R. S., chap. 47, sections' 88-89, in favor of a creditor of the United Photo Materials Company, a Maine corporation, against the defendant a resident of 'Maine and one of the stockholders in said company. On June 18, 1909, plaintiff, a resident of Massachusetts, recovered judgment in the Municipal Court of Boston against said corporation on the the same debt sued for in this action. On -December 12, '1910, plaintiff brought his action on the above named judgment -in the Supreme Judicial Court for Androscoggin County and recovered judgment thereon.</p> <p> Held: </p> <p>1. The plaintiff’s right of action depends upon the possession of a lawful and bona fide judgment against the -corporation. When a Maine creditor holds such a judgment he may proceed against the stockholder without •taking out an execution,, and so upon authority may the holder of a foreign judgment.</p> <p>3 The rule is well settled that if a judgment is conclusive between the parties in the state in which it is rendered, it is equally conclusive in every other state of the Union.</p> <p>3. The right of a court to issue executions depends upon its own powers and organization. Its judgment may be complete and perfect, and have full effect, independent of the right to issue execution.</p> <p>4. The statute is in the first instance a protection to the plaintiff, the limitation provided is for the protection of the defendant, or debtor. The plaintiff had 'full control of the judgment, and knowledge of its date. The defendant had no such control or knowledge, but we think his liability attached at the date of the Massachusetts judgment, whether he had knowledge of that judgment or not.</p> <p>5. The recovery of a judgment against a corporation establishes conclusively •the plaintiff’s right to satisfy his judgment out of any assets belonging to the corporation. The .plaintiff’s right to relief sought depends upon the existence of his judgment. The defendant’s liability exists by virtue of the statute, and it follows that when such liability begins, the statute limitation commences to run in his favor.</p> <p>6. The statute clearly supports the conclusion that the right of action accrued when it became the duty of the defendant to pay. 'He was under no obligation to pay until the amount necessary for him to pay was ascertained. Untill an unconditional liability to pay is fastened on the debtor, no action can be maintained against him, and the statute of limitations does not run in his favor.</p> <p>7. The statute of limitations begins to run against a judgment from, the date of its rendition or of its entry, provided it is then final and suable, and is not stayed or superseded for any cause, and in computing the period of limitations, the day on which judgment was entered is to be excluded.</p> <p>8. The creditor of the corporation cannot at once upon the maturity of his debt proceed against the delinquent stockholder. He -must obtain a judgment against the corporation. The stockholder cannot be considered delinquent or in default until the creditor has recovered and hold's an unpaid judgment.</p> <p>9. There is no right of action against the stockholder until the corporation makes default, and the amount of the default is judicially established.</p>

<p>This is a bill in equity in which the construction of the will of Mary. Jenness Rawson, of Boston, in the Commonwealth of Massachusetts, is asked. The will was made on the thirteenth day of February, 1901, and the testatrix died on the 26th day of November, 1903. The will was duly proved and allowed in Massachusetts and an authenticated copy thereof was proved and allowed by the Probate Court of Penobscot County in the State of Maine, and letters testamentary issued. The following questions are asked in the bill, to wit:</p> <p>1. Under the fourth clause in the will of Mary Jenness Rawson, what kind of an estate did the plaintiffs take?</p> <p>2. Can the plaintiffs, said minor acting by guardian, join with said Abbie R. Dow and convey good title to real estate, so far as said fourth clause in the will is concerned ?</p> <p>3. Is the defendant, Richard S. Dow, acting as trustee by implication under said will so far as the interests of the plaintiff are concerned, under the fourth clause?</p> <p>The defendants filed answers to said bill admitting the truth of all the allegations contained in plaintiff’s bill. By agreement of parties, upon a hearing of this cause, the case was reported to the Law Court for determination, upon bill, answer, admission and stipulations.</p> <p>The case is stated in the opinion.</p>

<p> Compensation. Constitution. Demurrer. Equity. Legislative Action. Limitations. Municipal Coal and Fuel Yard. Private Property. Public Uses. Taxes. </p> <p>1. The Legislature has, under the Constitution, full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to the Constitution of Maine, nor to that of the United 'States.</p> <p>2. While the executive and the judiciary and other coordinate departments of government can exercise only the powers conferred upon them by the ■Constitution, the powers of the Legislature are absolute, except as limited by the Constitution.</p> <p>3. As to the executive and judiciary, the 'Constitution' measures the extent of their authority; as to the Legislature, it measures the limitations upon its authority.</p> <p>4. The court is bound to assume that in the passage of any law the Legislature acted with full knowledge of all constitutional restrictions, and intelligently, honestly and discriminatingly decided that it was acting within the constitutional limits and powers.</p> <p>5. The power of taxation is akin to the rights of eminent domain, because-it rests upon the right of the sovereign power to appropriate the private property of its citizens to public purposes.</p> <p>6. The power of taxation must rest upon two elements in order to be permitted by the Constitution, first, a public use, and second, a public exigency.</p> <p>7. The wants and necessities of the people change and the opportunity to satisfy those wants and necessities by individual effort may vary.</p> <p>8. A class of public uses has grown up and been recognized within a comparatively recent time, due both to the growing needs of the community and to modern inventions calculated to meet those needs, that furnish a logical precedent for the case at bar. These public uses or utilities embrace water, light and heat.</p> <p>9. R. S., ch. 4, sec. 87, authorizing and empowering cities and towns to •establish and maintain within their limits a permanent wood, coal and -fuel yard for the purpose of selling, at cost, wood, coal and fuel to their inhabitants, is constitutional.</p>

<p>On exceptions by respondent.</p> <p>This is a process of search and seizure under Revised Statutes, chapter 29, section 49, issued from the Western Hancock Municipal Court. The respondent was arraigned before the Judge of said court, pleaded not guilty, was found guilty, and appealed to the Supreme Judicial Court in and for said county. At the appellate term of said court, the respondent filed a general demurrer to complaint and warrant. The grounds of demurrer, upon which the respondent relied, were, first, that the description of the place searched was not sufficient, and second, that the magistrate below did not send to the appellate court a copy of the whole process, and of all writings before the magistrate, as required by R. S., c. 133, section 18. The presiding Justice overruled the demurrer and the respondent excepted to said ruling.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by respondent.</p> <p>This is a search and seizure process, under Revised Statutes, chapter 29, section 48, from the Ellsworth Municipal Court. The respondent was arraigned before the Judge of said court and pleaded not guilty. Was found guilty and sentenced to pay a fine of one hundred dollars and costs, and to serve sixty days in jail, and in default of payment of fine and costs, to serve sixty days additional in jail. From this sentence, the respondent appealed to the Supreme Judicial Court, October term, 1913, and at said term, filed a general demurrer to complaint and warrant. The presiding Justice overruled the demurrer and the respondent excepted to said ruling.</p> <p>The case is stated in the opinion.</p>

On exceptions by the plaintiff. This is an action of assumpsit upon an account annexed to recover for services alleged to have been performed by a certain partnership of which the plaintiff was a member, for the defendants. The plaintiff alleged that Henry Lamon, plaintiff’s copartner, verbally gave up and turned over to the plaintiff his interest in the account sued.

<p>On report.</p> <p>This is a bill in equity by trustees, under the will of Hiram T. Plummer, late of Portland, deceased, asking for the construction of a portion of the residuary bequest in said will. All of the parties defendant filed answers, admitting all of the allegations in the bill. At the close of the hearing in the cause, the same, by agreement of parties, was reported to the Law Court next to be held at Portland, 1913. The bill and answers, with the order of the court thereon, to make the report' of said cause.</p> <p>The case is stated in the opinion.</p>

<p>Advancements. Construction. Demurrer. Discretion. Equity. Parties„ Power. Remainderman. -Trustees. Will.</p> <p>Bill in equity for the construction of the will of Eliza Ann Bradbury, and asking the court to define an interpret the limit and extent of the discretionary power given the trustees thereunder.</p> <p> Held: </p> <p>x. The denial by demurrer that the allegations of the bill sufficiently specify the particular clauses or phrases in the will which the court is requested to construe is untenable.</p> <p>2. R. S., chapter 79, section 6, Paragraph VIII, gives the court power to determine the construction of wills, and in cases of doubt, the mode of executing a trust, and the expediency of making changes and investments of property, held in trust.</p> <p>3. The trustees are authorized, by observing the requirements, to examine, find and certify, to advance to Charles Bradbury such part, or even all, of the principal, as they shall deem for the best.</p> <p>4. The discretionary power given to the trustees, originally named in the will of Eliza Ann Bradbury, as to advancements of principal to Charles Bradbury, vested in their successors.</p>

On motion by defendant for a new trial. This is an action of assumpsit upon an account annexed to the writ, brought by Flora E. Leighton against Fannie P. Nash, as the executrix of the last will and testament of William H. Pearson, late of Skowhegan, in the County of Somerset, to recover the sum of six hundred and ninety dollars and seventy-five cents, for services in caring for and nursing Mr. and Mrs. Pearson when sick, general housework and various other kinds of labor,…

Decree below affirmed with additional costs. This is a bill in equity, brought under the provisions of Revised Statutes, chapter 92, section 15, to redeem certain real estate, situated at junction of Portland and Oxford Streets in Portland, Maine, from certain conveyances claimed by the plaintiff to be equitable mortgages, and which he has a right to redeem.

On report. This is an interlocutory proceeding arising from the above entitled cause, in which C. J. Gilfillan is petitioner and plaintiff in interest.

On exceptions by defendant. This is an indictment against the respondent under section 6 of chapter 126 of the Revised Statutes for wilfully, mischievously and maliciously entering upon a railroad track of the Bangor and Aroostook Raliroad Company, a corporation then and there owning and operating a steam railroad in and through the State of Maine, and without consent of, or permission from said Bangor and Aroostook Railroad Company, and then and there wilfully,…

On exceptions by plaintiff. This is a creditor’s bill in equity in which the plaintiffs seek .to reach and apply, in payment of debts, brought under the provisions of Revised Statutes, chapter 79, section 6, paragraph 9. On May 16, 1912, plaintiffs filed a motion to amend the bill and the sitting Justice denied the same. October 22, 1912, the plaintiffs filed a motion to amend the amendment, and upon hearing, the motion was denied.

On motion and exceptions by plaintiff. This is an action of replevin in which the following goods and chattels were replevied, to wit: One No. 3 Keystone Non-Fraction Well Drilling Machine and equipment belonging thereto, of the value of six hundred dollars, belonging to the plaintiff, taken and detained by the defendant. The plaintiff, on May 21, 1907, leased to the defendant the above named well drilling machine by written lease.

On exceptions by the defendant. This is an action on the case for the recovery of damages alleged to have been sustained by the plaintiffs by reason of injury to a public bridge, being part of the highway known as Bridgham’s Corner road and crossing Cathance Stream in the plaintiff town.

On motion and exceptions by the defendant. This is an action of assumpsit brought in the Superior Court for Kennebec County and tried in said court at the September Term thereof, 1912. In this case, the plaintiff sues to recover the sum of $111.00 for labor. The defendant excepted to certain portions of the Judge’s charge to the jury, particularly notice in the opinion. The defendant pleaded the general issue.