Volume 112 — Maine Reports

On motion by the defendant for a new trial. Motion sustained. New trial granted. This is an action on the case in favor of William McCarthy, who sues this action by next friend, against the defendant corporation to recover damages for injuries received by him because of the alleged negligence of the defendant.

On report. Judgment below affirmed. This is a complaint by A. B. Smart against Charles W. Starkey for a violation of an ordinance of the town of Houlton, in the county of Aroostook. The defendant was arrested on the 21st day of December, 1912, upon said complaint, and a hearing was had before the Judge of the Houlton Municipal Court on said date. The respondent on being arraigned pleaded that he was not guilty.

On motion for new trial by defendant. Motion sustained. This is an action on the case to recover damages for injuries to the plaintiff’s bicycle, caused by a collision with the defendant’s automobile on Madison Street, in Madison, in the County of Somerset, in the evening of May 1, 1912. The defendant pleaded the general issue. The jury returned a verdict for the plaintiff for $39.55 and the defendant filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by the respondent. Exceptions overruled. This is an indictment in which the respondent is charged with maintaining a common nuisance in a certain building occupied by him as a hotel, on Main Street, in Thomaston, in the County of Knox. At the September Term of Supreme Judicial Court, 1913, the respondent filed a demurrer to the indictment, which the Justice presiding overruled.

On mption and exceptions by defendant. Motion and exceptions overruled. This is an action of trover to recover the sum of $18,750 and interest. In March, 1900, the defendant received from the Rockland, Rockport Lime Company $56,250, which belonged in equal shares to him, his brother Warren G. Williams, the testator, and to his sister Mary E. Frohock. This money was the consideration for a lime quarry owned by them in common and sold to said Rockland, Rockport Lime Company.

On report. Judgment for defendants. This is an action on the case to recover for services as an architect in drafting plans and specifications for a school house building in the defendant town and for supervising the construction of the same and for purchasing supplies used in the construction of said school house, in the summer of 1911, amounting in all to $1742.90.

On motion and exceptions by the defendant.. Motion and exceptions overruled.

<p> Arbitration. Insurance. Letter. Nonsuit. Waiver. </p> <p>In this case there was no reference of the amount of the loss to three disinterested men, as provided in the policy. The following letter from the President of the defendant company was received by the plaintiff and introduced in evidence.</p> <p>“Hallowell, Maine, Feb. 15, 1913.</p> <p>Raymond S. Oakes, Esq.,</p> <p>Portland, Maine.</p> <p>Dear Sir; — Yours re claim E. U. Archibald at hand.</p> <p>This Company deny all liability and have not done anything about it.</p> <p>Yours truly,</p> <p>(Sig.) James T. Collins</p> <p>Pres.”</p> <p> Held: </p> <p>1. A distinct denial of all liability by the insurance company is equivalent to a declaration that it will not pay if the amount of the loss should be determined.</p> <p>2. The law will not require the useless and expensive formality of an arbitration, when the insurer, for whose benefit it was provided, has rendered it superfluous.</p> <p>3. The letter in the case was an unqualified denial by the insurance company of all liability in respect to the Archibald claim that had been made against it for loss under its policy.</p> <p>4. The letter was at least prima facie evidence of a waiver by the insurance company of the provision in the policy for arbitration.</p>

On exceptions by respondent. Exceptions overruled. This is a complaint under Revised Statutes, Chap. 125, Sec. 5, against the respondent for wantonly and indecently exposing his private parts openly and in the presence of the complainant. The respondent demurred to the complaint and warrant and the presiding Justice overruled the demurrer. To which overruling of said demurrer, the respondent excepted. The case is stated in the opinion.

<p>On motion and exceptions by defendant. Motion and exceptions sustained.</p> <p>This is an action on the case for deceit to recover money expended in removing a cloud from the title to real estate conveyed to the plaintiff's intestate by Ellen McGlinchy, by warranty deed in March, 1901. The case was tried before the Superior Court of Cumberland County. The plaintiff claimed that the defendant, acting as agent for the grantor, made false representations as to the title to the land, that the grantee, relying upon those representations, purchased the land and later found the title defective. Plea, general issue. The defendant filed a motion requesting the judge to instruct the jury to return a verdict for the defendant, which motion the judge denied, and the defendant excepted thereto.</p> <p>The jury returned a verdict for the plaintiff and the defendant filed a motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Carmack Amendment. Continuous Carriage. Initial Carrier. Negligence. Notice of Loss. Through Bills of Lading. Terminal Carrier. 84- United States Statutes at Large, page 879. </p> <p>Potatoes were shipped from a station on the line of the Bangor Railway and Electric Company, an electric railroad corporation, consigned to the shipper’s order at Bangor. They were intended by the shipper for through and continuous transportation to Hoboken, New Jersey. At Bangor the cars were received by the defendant and forwarded. There was a through tariff rate from the point of shipment to Hoboken, and when the defendant received the cars it advanced to the Bangor Railway & Electric Company its proportion of the through tariff rate. The defendant issued through bills of lading to Hoboken and collected of the shipper “heater charges” which were intended to cover heating the cars from Bangor to Hoboken. The potatoes were frozen while in transit, but not on the defendant’s line.</p> <p> Held: ■ </p> <p>1. That the receipt by the Bangor Railway and Electric Company of its proportion of the through tariff charges is some evidence of “a common control, management or arrangement for a continuous carriage or shipment” as defined in 24 U. S. Statutes at Large, p. 379, so as to bring that corporation within the scope of the Act to regulate commerce as amended by the Carmack Amendment, and make it liable, as initial carrier, for the defaults of connecting carriers.</p> <p>2. But that the defendant, having assumed the obligation of heating after the potatoes had left the possession of the Bangor Railway and Electric Company, is to be deemed the initial carrier as to defaults in heating during the course of transportation.</p> <p>3. That the case shows sufficient evidence to go to the jury on the question of damages.</p> <p>4. That, as to the question of failure to give notice of the loss either to the initial or terminal carrier within ninety days, as required by the bills of lading, the point not having been made in the motion for a nonsuit, when the lack of evidence might have been supplied, it is not considered by the court.</p>

<p>On report. Appeal sustained. Petition dismissed.</p> <p>This was a petition to the Probate Court of Waldo County by Albert A. Blethen and Boutelle B. Blethen, brothers of Carrie W. Simpson, Administratrix of the estate of Jane A. Blethen, and children of Jane A. Blethen, late of Thorndike; in the county of Waldo, deceased, asking that said Carrie W. Simpson be ordered to file an inventory in the said Estate of Jane A. Blethen. On the 27th day of May, 1913, the Judge of Probate for said County, ordered said Carrie W. Simpson, Administratrix as aforesaid, to file an inventory of the real estate, goods and chattels, rights and credits of the estate of the late Jane A. Blethen, at a Court next to be held at the Probate Court Room at Belfast, in said County of Waldo. From that decree, said Carrie W. Simpson appealed to the Supreme Judicial Court, being the Supreme Court of Probate within and for the County of Waldo next to be held on the third Tuesday of September, 1913. After the testimony was taken out in the Supreme Judicial Court, the case was reported to the Law Court by agreement of parties, for decision, upon so much of the evidence as was legally admissible; this Court to render such judgment as the legal rights of the parties require.</p> <p>The case is stated in the opinion.</p>

<p> Assumpsit. Burden of Proof. Contract. Delivery: Memorandum of Agreement. ■ Sale. Scale. </p> <p>1. The defendant haying admitted sale and delivery to itself.of 690,000 feet'of logs, an amount in excess of that mentioned in the contract, the question relating to the form of action and the admission of the memorandum of agreement are answered in favor of the plaintiff.</p> <p>2. Whenever personal property is sold to be delivered to a certain person, or at a certain place, for the buyer, a delivery to such person or at such place is a completed delivery to the vendee.</p> <p>3. Proof of such delivery raises a presumption in favor of the vendor that the property had been accepted by the vendee.</p> <p>4. These rules of law, however, do not apply when the amount of property claimed to-be delivered is largely in excess of that contracted for, as the buyer may reject the excess.</p>

<p> Assignment. Demurrer. Exceptions. Fire Loss. Insurance. Locomotive Engine. Negligence. B. S., Chap. 62, Sec. 78. Subrogation. </p> <p>Under Revised Statutes, Chap. 52, Sec. 73, which provides that where property is injured by fire from a locomotive engine, the railroad company is responsible and has an insurable interest in the property and is entitled to the benefit of any insurance effected by the owner, less the premium and expense of recovery. The railroad company is absolutely responsible, and is entitled to the benefit of the insurance, whether'the fire was caused by its negligence or not. Hence it is held that an insurer which has paid a loss occasioned by fire from a locomotive engine is not subrogated to the owner’s rights against the railroad company, and cannot maintain an action against it' to recover the amount paid.</p> <p>Dyer v. Maine Central B. B. Co., 99 Maine, 195, is overruled upon the point of subrogation.</p>

<p>On exceptions by plaintiff. Exceptions overruled.</p> <p>This is a bill in equity in which the plaintiff prays for an injunction restraining the defendants from interfering with plaintiff in the sale of land in Lewiston, the legal title to which was in defendants, and to enjoin defendants from conveying said land, except according to the terms of a written contract. The case was heard by a single justice upon bill, answer, replication and proof, who made findings of fact and rulings of law, to which rulings the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>Report on agreed statement. Judgment for defendant.</p> <p>An action of assumpsit upon an account annexed to recover a balance of salary as liquor agent of the City of Bath from May 5, 1911 to May 5, 1912. Plaintiff was appointed and qualified as liquor agent of said Bath, May 5, 1911, and continued as such agent until August 31, 1911, at which time the agency was discontinued. Plea, general issue. The case was reported upon an agreed statement to the Law Court for determination.</p> <p>The case is stated in the opinion.</p>

<p>On motion by defendant. Motion sustained, unless the plaintiff within thirty days from the certification of this case, shall file a remittitur of the verdict in excess of $500.00.</p> <p>This action is to recover for injuries which resulted in the immediate death of plaintiff’s intestate, a girl eight years of age, by being struck by defendant’s car on the 20th day of July, 1913, on Lisbon Street, in the city of Lewiston, in the county of Androscoggin. This action was brought under Chap. 27, Public Laws of 1913. The plea was the general issue. The jury returned a verdict for the plaintiff in the sum of $1811.00. The defendant filed a motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions . by defendant. Motion overruled. Exceptions sustained. ,</p> <p>An action in assumpsit to recover sick benefits under a contract of insurance, provided for in a policy issued to the plaintiff by defendant, dated November 21, 1910, therein agreeing to pay plaintiff at the rate of eighty dollars per month, tried before the Superior Court for Kennebec County. Plea, general issue and brief statement as follows: That the statements and warranties set forth in the application for a policy of insurance declared upon in this action were untrue and that there is a breach of said warranties. The jury returned a verdict for the plaintiff of $145.91. The defendant excepted, to an instruction by the presiding Judge to the jury and filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendants. Exceptions overruled. Scire facias against bail on recognizance taken by bail commissioner. The defendants filed a demurrer to plaintiff’s declaration, which was joined by tbe attorney for tbe State. Tbe. presiding Justice overruled the. demurrer. , To which ruling the defendants, excepted. The ease is stated in the opinion.

<p> Bastardy. Exceptions. Guardian. Judgment of Affiliation. ■ Minor. Writ of Error. </p> <p>1. It is the rule of the common law that in all civil actions an infant must be represented by a guardian, or next friend, and whenever it appears to the court in which an action is pending that one or more of the parties are infants, and such infant has no guardian by appointment of the Probate Court, the Court should appoint a guardian ad litem to appear and protect the rights of the infant.</p> <p>2. Unless the infant is so protected and the records so show, a judgment or decree against him is erroneous and may be reversed on a writ of error.</p> <p>3. The proceedings in bastardy, under Revised Statutes, Chap. 99, are civil actions.</p> <p>4. There is nothing in Revised Statutes, Chap. 99, on which the proceeding is founded that alters the common law in this respect.</p>

<p>Bill in Equity. Construction. Gift. Intention. Interpretation. Personal Property. Residue and Remainder. , Tangible. Will.</p> <p>1. The words “personal property” are susceptible of two meanings; one, the broader, including anything which is the subject of ownership, except lands and interest in lands; the other, more restricted, oftentimes embracing goods and chattels only.</p> <p>2. The intention of the testator is the fundamental canon of interpretation in the construction of wills.</p> <p>3. The intention of the testator is to be gathered, not only from the words of the particular devise, but from the whole will, from the relation of the testator to those who are the objects of his bounty, and from all the circumstances suriounding the testator.</p> <p>4. When certain things are enumerated and a more general description is coupled with the enumeration, that description is commonly understood to cover only things of like kind with those enumerated, upon the presumption that the testator had only things of that kind in mind.</p> <p>5. Testatrix, to carry out a provision in the will of her deceased husband, whereby he gave her his estate for life with power to dispose of the same by will to a charity, gave by will a specified sum to a charity. She subsequently made an additional will wherein, she directed her ■ executrix to give specific tangible articles to various legatees named, and gave the remainder of her “personal property” to the executrix to be kept for herself and given to others as she saw fit. The heirs of testatrix were first cousins, and the executrix and her husband second cousins, and the executrix was a niece of the deceased husband. ' The executrix had an insane sister dependent on her for support, and for more than a year testatrix had been living in the family of the executrix and her husband. There was some evidence that testatrix disliked some of her heirs. Held, that the gift of the remainder of the personal property included rights and credits and was not limited to tangible personal property.</p>

On motion by defendant for new trial. Motion sustained. This is an action on the case to recover damages for injuries claimed to have been sustained by the plaintiff by reason of a defect in the highway in the town of Orono. Plea, the. general issue. The jury found for the plaintiff in the sum of eight hundred and fifty dollars ($850.00), and the defendant filed a general motion for a new trial. The case is stated in the opinion.

<p>On report. Case remanded to.the Supreme Court of Probate of Knox County for further action in accordance with this opinion.</p> <p>This is a petition by Albert T. Gould to the Probate Court for the County of Knox, asking that the final account of Joseph E. Moore as the guardian of him, said Albert T. Gould, be reopened and certain sums credited to said Moore, in his said account disallowed, and an account taken of what is now due the petitioner for principal and interest on the same. Upon a hearing on the said petition, it was decreed that said petition be granted and that said account be reopened. From this decree, the said Moore appealed to the Supreme Court of Probate. At the conclusion of the evidence, the case was reported to the Law Court for determination, upon so much of the evidence as is legally admissible.</p> <p>The case is stated in the opinion.</p>

<p>On report. Decree according to opinion.</p> <p>This is a bill in equity brought to obtain the construction of the will of Llewellyn J. Morse. The principal question is whether Fred D. Hill, the widower of Louisa Bridges Hill, is one of the legal heirs of his wife, within the meaning of a devise over to the legal heirs of the testator’s granddaughter, a beneficiary of a trust created in said will and who died before the termination of the trust. The respondents filed answers to said bill. The case was reported to the Law Court upon bill, answers, copy of the will of Llewellyn J. Morse and the agreed stipulation that Louisa Bridges Hill was a granddaughter of Llewellyn J. Morse, and that the property devised consisted of both real estate and personal property; the Law Court to render such final judgment as the legal and equitable rights of the parties require.</p> <p>The case is stated in the opinion.</p>

On motions by defendant to set aside the verdicts in both cases. Motion in each case overruled. These two actions were tried together before a jury at the September Term, 1913.

<p> Consignee: Forfeiture. Interstate Common Carrier. Intoxicating Liquors. Search and Seizure. </p> <p>1. It was not necessary that the presiding Justice should place on record specific findings of facts. His order of judgment of forfeiture meant, and it must be so assumed, that he found for the State upon all issues of fact necessary to sustain the libel.</p> <p>2. It is a fundamental rule that exceptions will not be sustained, unless the excepting party shows affirmatively that he is aggrieved, and he cannot be aggrieved unless he has a legal interest in the subject matter of controversy.</p> <p>3. The claim for the liquors must state specifically certain matters specified by statute, such as the nature of the right claimed and the foundation thereof.</p> <p>4. Having filed such a claim, he is admitted as a party; the filing of the claim does not prove the right; it merely entitles the claimant to be heard.</p> <p>5. It is not enough under the statute to show that the seizure was invalid. It must be shown that the claimant is the party entitled to the custody, and the burden on this issue is on the claimant.</p> <p>6. No matter who else might be wronged by an invalid seizure, the wrongs of others cannot be redressed at the suit of the claimant, if it has not right to the custody on its own account.</p>

Certified by Judge of Lewiston Municipal Court on agreed statement of facts direct to the Chief Justice of the Supreme Judicial Court. Judgment for plaintiff of $20.35. This is an action of assumpsit on an account annexed, to recover from the City of Auburn for cash disbursements and for services as City Solicitor in preparing and presenting a bill in behalf of said City to the Legislature.

<p>On report. Judgment for defendant.</p> <p>This is a writ of entry, brought to foreclose a mortgage on real estate dated May 23,1910, for the sum of twenty-two hundred dollars and interest. At the time the mortgage was given, the plaintiff and defendant entered into a written agreement, under seal, wherein the defendant agreed to support the plaintiff for the term of two years and six months from the date thereof, or during her life, if she should die within said time, for the sum of one thousand dollars per year, which said sum of one thousand dollars was to be indorsed on said note.</p> <p>Plea, general issue and brief statement.</p> <p>The case is stated in the opinion.</p>

<p> Assignee. Assignment of Part of Fund. Creditors. Equity. Order. Residue. Testamentary Trustee. Trust. </p> <p>The question presented is whether the plaintiff, as holder of the order, and therefore as assignee of part of this particular fund, can recover in equity from the trustee of the fund, who was duly notified of the order and who, at the time of the notice, had ample funds in his hands to meet it, but refused to accept or pay it, and who has since paid to subsequent creditors of assignor all of said fund.</p> <p> Held: </p> <p>1. It is familiar law that an entire demand or chose in action may be assigned, that the assignment is binding upon the debtor after notice, whether he accepts it or not, and that the assignee may enforce his rights in an action at law against the debtor, upon the acceptance, if accepted; otherwise, upon the original claim itself.</p> <p>2. The assignment of a part only of an entire demand or chose in action, though invalid in law, except as between the parties, is valid in equity and binding upon the debtor, whether accepted and assented to by him or not, and may be enforced in equity against the debtor.</p> <p>3. The law permits the transfer of an entire cause of action from one person to another, because in such case the only inconvenience is the substitution of one creditor for another, but if assigned in fragments, the debtor has to deal with a plurality of creditors. A partial assignment would impose upon him burdens which his contract does not compel him to bear.</p>

On appeal. Bill in each case dismissed without prejudice and with single bill of costs. In the bill of Clinton C. Palmer, he seeks to establish a lien on the share of Bartlett Palmer in the residue of the estate of Elizabeth C. Palmer, in the hands of the executors of her will, to secure payment of advances made by him to said Bartlett Palmer, and to collect from the executors the amount secured by said lien.

On report. Judgment for the plaintiff for $215.88, with interest thereon from August 6, 1912. This is an action of assumpsit to recover for oak lumber claimed to have been sold and delivered to the defendants in August, 1912, amounting, with interest, to $1387.68. Defendants plead the general issue, with brief statement of tender. The case is stated in the opinion.

On motion by defendant for new trial. Motion overruled. This is an action on the case brought under Revised Statutes, Chap. 23, Sec. 62, to recover damages alleged to have been sustained by said defendant peculiar and different from those sustained by the public generally, on account of a certain way in said town being encumbered by snow and thereby rendered impassable. Plea, general issue. The jury returned a verdict for the plaintiff of $25.00.

<p> Costs. Damages. Demurrer. Exceptions. Judgment. Revised Statutes, Chap. 84, Sec. 85. Waiver. </p> <p>At common law, when exceptions to the overruling of a demurrer to the declaration were overruled, judgment on the demurrer, or that plaintiff recover, followed and was final.</p> <p>By Revised Statutes, Chap. 84, Sec. 35, the severity of the common law was relaxed, wherein it was provided that if the demurrer is filed at the first term and overruled, the defendant may plead anew on payment of costs, from the time when it was filed, unless adjudged frivolous and intended for delay.</p>

<p>On motion by defendant. Motion sustained. New trial granted.</p> <p>This is an action brought to recover damages for the loss of an arm on the first day of April, 1910. The plaintiff, who brings this suit by next friend, was four years of age and riding on the platform of one of the defendant’s cars, and in alighting from said car while in motion received the injuries complained of. The plea was the general issue. The jury rendered a verdict for the plaintiff of $3500, and the defendant filed a general motion for a new trial.</p>

<p>On report. Petition dismissed with costs.</p> <p>This is a petition in the nature of quo warranto, to determine the title to the office of city marshal of the city of Lewiston, held by the respondent and claimed by the relator, George R. Hall. McCarron filed an answer to the information, and said Hall filed a replication to the answer of said McCarron. By consent of the parties, the cause was reported to the Law Court for determination upon the evidence submitted, including the agreed statement of facts.</p> <p>The ease is stated in the opinion.</p>

On exceptions by defendant. Exceptions overruled. This is an action in assumpsit on an account annexed to recover the sum of $222.00 and interest from date of demand, for 222 barrels of potatoes claimed to have been sold and delivered to the defendant at $1.00 per barrel. At the April term of Court, the case was referred to Hon. A. M. Spear under a rule of Court.

<p>Report on agreed statement of facts. Case to stand for trial.</p> <p>This is an indictment against defendant, found at the January Term, 1914, of the Superior Court for the County of Cumberland, which charges this respondent with the offense of keeping and maintaining a liquor nuisance, as defined in Sec. 1, of Chap. 22 of the Revised Statutes of Maine. The case was reported on an agreed statement of facts to the Law Court, with the stipulation that if the Court determines that the facts, as set forth in the agreed statement, constitute the offense charged in the indictment, the case is to stand for trial; otherwise, respondent to be discharged.</p> <p>The case is stated in the opinion.</p>

<p> Award. Exceptions. Finding of Referees. Law and Fact. Reference by Rule of Court. Reservation. </p> <p>1. In the absence of fraud, prejudice or mistake on the part of a referee, appointed under Rule of Court, his finding is conclusive on questions both of law and fact.</p> <p>2. The fact that the referee states in his report findings of law which, upon examination by the Court might be deemed unsound, is immaterial. The determination of the referee is final.</p> <p>3. The word “mistake” used in this connection does not mean an error in judgment but some unintentional error such as a mathematical computation.</p> <p>4. Rule of Court XLY, adopted in 1908, provides that “in references by Rfile of Court no stipulation will be allowed for a review by the Court of the decision of the referee upon any question of law or fact submitted, but the referee may find the facts and report questions of law for decision by the Court.”</p>

<p> Burden of Proof. Directing Verdict. Exceptions. Guy Wire. Highway. Negligence. Permit to Erect, and Maintain Poles on Streets. Personal Injuries. Reasonable Care. </p> <p>The plaintiff, having been injured by one of the defendant’s guy wires, alleged to have been placed within the limits of a public way upon which the plaintiff was a traveler, it was necessary, in this case, to show, among other things, that the guy wire was within the limits of a public way. The evidence does not show, nor would it authorize a jury to find, that the guy wire was placed within the limits of any way as located, or within the limits of any right of way acquired by the public by prescription.</p>

On exceptions by plaintiff. Exceptions sustained. This is a real action to recover a certain described tract of land situate in the town of Fort Kent, in the County of Aroostook. The defendant pleaded the general issue and filed a disclaimer as to a part of the described premises. At the conclusion of the plaintiff’s evidence, the presiding Justice directed a verdict for the defendant. The plaintiff excepted to the ruling directing said verdict.

On report. Judgment for defendant. This is a complaint and warrant against the defendant for conducting business as an itinerant vendor in the town of York, in the County of York, by selling goods, wares and merchandise at retail without a license, as required by Chap. 45 of Revised Statutes.

On report. Appeal dismissed. Writ quashed. Two cases considered together. The first case is an appeal from the order of the Judge of the Police Court of the City of Rockland, condemning certain liquors described in the libel. The second case is certiorari, in which the claimant attacks the validity of the warrant, libel and monition, and the jurisdiction of the court.

On motion and exceptions by the defendant. Motion and exceptions overruled. This is an action for deceit in the sale of an automobile. Plea, general issue. The jury returned a verdict for the plaintiff of $309.70. The defendant had several exceptions to the admission and exclusion of evidence, which are specifically considered in the opinion. Defendant also filed a motion for a new trial. The case is stated in the opinion.

On motion by defendant. Motion sustained. New trial granted on the question of damages only. This is an action on the case to recover damages for personal injuries sustained on account of the negligence of the defendant. Plea, the general issue. The jury returned a verdict for the plaintiff of $8500. The defendant filed a general motion for a new trial and also a motion for a new trial on the ground of newly discovered evidence. The case is stated in the opinion.

On exceptions by plaintiff. Exceptions overruled. This is an action to recover for injuries which plaintiff claims to have sustained by reason of the negligence of the defendant. At the conclusion of the evidence,- the presiding Justice directed a verdict for the defendant, and the plaintiff-thereupon excepted to said directing of said verdict. The case is stated in the opinion.

<p> Assignment. Justification. Notice to Co-tenant. Penal Statute. Pleadings. Revised Statutes, Chap. 97, Sec. 5. Statute of Limitations. Tenants in Common. </p> <p>1. Revised Statutes, Chap'. 97, Sec. 5,' which provides that if a tenant in common cuts down wood without first giving thirty days written notice to his co-tenants, he shall forfeit three times the amount of damages, is not a penal statute within the meaning of Revised Statutes, Chap. 83, Sec. 97, which requires that actions for any penalty or forfeiture on a penal statute shall be brought within one year after the commission of the offense.</p> <p>2. An assignee of a chose in action may bring suit thereon in the assignor’s name without filing with the writ a copy of the assignment.</p> <p>3. When a defendant would justify or excuse an act which is unlawful unless justified or excused, he must plead the justification.</p> <p>4. In an action.by tenants in common against a co-tenant for cutting wood without giving written notice, justification by permission must be pleaded.</p> <p>5. To allow or refuse leave to a defendant to amend his pleadings so as to set up a justification by license is a matter of discretion, to the exercise of which exceptions do not lie.</p>

<p>On report. Petition denied with costs.</p> <p>The petitioner asks for a review of a real action in which the defendants, Kimball and Coffin, were plaintiffs, and George B. Dorr was defendant, which case went to judgment at the April term, 1913, of the Supreme Judicial Court for Hancock County.</p> <p>The case is stated in the opinion.</p>

<p>On report. Judgment for plaintiff for $20.</p> <p>This is an action of trespass quare clausum to recover damages for entering upon a lot of land situate in Frenchville and destroying-trees, grass, etc. At the conclusion of the testimony, the case was reported to the Law Court, upon so much of the evidence as is legally admissible, the Court to render such judgment as the rights of the parties require. It was further stipulated by the parties that, if the Law Court sustains the contention of the plaintiff, that the trespass was committed, damages are to be $20.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by respondent. Exceptions overruled.</p> <p>This is an indictment for murder, found by the Superior Court for the County of Kennebec at the April term, 1913, of said Court. The respondent was tried and convicted at the January term of said Court, of murder. The respondent filed four motions at said January term, all of which were overruled by the presiding Judge of said Court, and the respondent excepted to the order overruling said motions.</p> <p>The case is stated in the opinion.</p>

On motion by defendant for new trial. Motion overruled. This is an action on the ease to recover damages for personal injuries sustained in .a collision between the carriage in which the plaintiff was riding and the electric car of the defendant. The defendant plead the general issue. The jury returned a verdict for the plaintiff of $1200. The defendant filed a general motion for a new trial. The case is stated in the opinion.

<p>On motion by the defendant. Motion overruled.</p> <p>The policy in this case, upon which this action was brought, was dated February 11, 1911; the fire occurred May 2, 1913, and proof of loss was mailed August 5, 1913. The plea was the general issue, with brief statement. The jury returned a verdict for the plaintiff of $1234.24. The defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

On motion and exceptions by the defendant. Motion and exceptions overruled. This is an action on the case by the plaintiff to recover damages for property destroyed by fire, alleged to have been caused by fire communicated from a locomotive engine belonging to the defendant. Plea, general issue.

On exceptions by plaintiff. Exceptions overruled. This is an action on the case to recover for personal injuries to plaintiff sustained, as he alleged, by reason of the negligence of the defendant. Plea is the general issue. At the conclusion of the plaintiff’s evidence, the presiding Justice directed a nonsuit, and to this the plaintiff excepted. The case is stated in the opinion.

<p> Assumption of Risk. Cautioned. Instructed. Knew and Appreciated the Danger. Safe Place. </p> <p>1. A master is not an insurer of the safety of his servant. He is only bound to use reasonable care to have the place where the servant works in a reasonably safe condition.</p> <p>2. A servant assumes the risk of all obvious dangers, and all dangers incidental to the business which are known and appreciated by him, and as well, of all dangers that he ought, by the exercise of reasonable care, to have known and ' appreciated.</p> <p>3. A servant is not entitled to instructions and cautions about dangers, that he already knows and appreciates.</p>

<p>On motion for new trial by defendant. Motion overruled.</p> <p>This action is to recover for supplies furnished by the plaintiff to L. J. Allen and his wife, who, it is claimed, were destitute and stood in need of immediate relief, and is based on the provisions of Chap. 27, Sec. 45, of the Revised Statutes. Plea, general issue. The jury-returned a verdict for the plaintiff of $168.61. The defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On motion for new trial by defendant. Motion overruled.</p> <p>This is an action of assumpsit on an account annexed to the writ to recover of the defendant the sum of $1093.20 for potatoes sold and delivered in April, 1912. The defendant plead the general issue. The jury returned a verdict for plaintiff of $1022.54, and the defendant filed a general motion for a new trial.</p> <p>The ease is stated in the opinion.</p>

<p>On motion and exceptions by defendant. Motion and exceptions overruled.</p> <p>This is an action of trespass for an assault and battery. The defendant was a deputy sheriff, and in attempting to take a suit case from the plaintiff and in taking him into custody, committed the assault complained of. The defendant plead the general issue and filed a brief statement of special matters of defense, alleging that he was a duly qualified deputy sheriff in and for Cumberland County and was in the performance of his official duties as deputy sheriff, and acts committed by him as alleged were justified by this fact. The defendant excepted to refusal of the presiding Justice to give certain requested instructions, which are specifically considered in the opinion. The jury returned a verdict for the plaintiff of $200, and the defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On report. Judgment for defendant.</p> <p>Action on the case to recover damages for personal injuries to the plaintiff, sustained by her while alighting from one of the defendant’s passenger cars at the Grand Trunk Terminal in Portland, Maine, April 6, 1912. Plea, general issue. The case, at the close of the testimony introduced by plaintiff at January term, 1914, of Supreme Judicial Court, was reported to the Law Court upon this stipulation; — “If the Law Court is of the opinion upon such evidence that the case should have gone to the jury, then the case is to stand for trial; otherwise, it is to direct judgment for the defendant.”</p> <p>The case is stated in the opinion.</p>

On motion by defendant reported to Law Court in accordance with Revised Statutes, Chap. 84, Sec. 53. Motion sustained. New trial granted. This is an action of replevin of a calf. The maternity of the calf was an element in determining the question of title.

On report. Bill sustained. Decree in accordance with this opinion. This is a bill in equity praying for a termination of the trust under the will of Isaac Dodge, late of Newcastle, deceased, and the distribution of the remainder of his estate. The defendants filed answers to said bill. The cause was reported to the Law Court, to be decided upon the facts stated in the bill. The case is stated in the opinion.

<p> Assignment of Mortgage. Boundaries. Deeds. Delivery. Exceptions. Mortgage. Possession. Prescription of Delivery of Deed. Record. Title. </p> <p>1. A new trial will not be granted on the ground of newly discovered evidence, when it could have been discovered before the trial by the exercise of due diligence.</p> <p>2. The newly discovered evidence in this case does not have such probative forcé as to warrant the granting of a new trial.</p> <p>3. A deed by a mortgagee, containing also an assignment of the mortgage debt, conveys the mortgagee’s title.</p> <p>4. A deed by a mortgagee out of possession, not accompanied by a transfer or assignment of the mortgage debt, conveys no title.</p> <p>5. A mortgagee by talcing possession under his mortgage acquires a seisin in fact, and an interest in the land itself, which he can convey, if he continues in possession.</p> <p>6. A seisin once acquired is presumed to continue until it is shown that there has been an ouster or disseizin, or an abandonment.</p> <p>7. Mere non-user is not enough to warrant a finding of abandonment.</p> <p>8. The owner of land may retain the legal possession of land though he does not remain upon it, and such possession may be regarded as actual, as distinguished from constructive.</p> <p>9. When a mortgagee has taken possession, his title, so acquired is presumed to continue until the contrary is shown.</p> <p>10. An owner having granted all the granite in his farm, his subsequent deed of a tract of land by metes and bounds which included the farm, and perhaps more, is not admissible to show the limits of the farm. But if the later deed conveyed more than the original farm, the grantee became the owner of all the granite outside of the farm, and a trespasser who is sued for one-fifth only of the granite is not prejudiced by the admission of the deed, which is a muniment of the plaintiff’s title.</p> <p>11. Exceptions to the admission of irrevelant, but harmless, testimony will not be sustained.</p> <p>12. The payment of taxes assessed on land is not evidence of possession. It is evidence of a claim. But where the fact of possession is indisputable upon the other evidence, the admission of a tax assessment and payment offered to show possession is harmless.</p> <p>13. The granting of a motion to strike out testimony is usually discretionary. The discretion was not unreasonably exercised in this case.</p> <p>14. How long and how far cross-examination of a witness for the purpose of impeaching him shall be continued lies within the discretion of the presiding Justice.</p> <p>15. That it is found to be the ordinary thing that land overruns the measures given in old deeds and old surveys may be shown to explain apparent discrepancies between old surveys and measurements and what are claimed to be monuments marking true lines and corners; but not to lengthen certain and definite measurements in old deeds.</p> <p>16. Exceptions to refusals to instruct except as given in the charge cannot be sustained unless the charge is made a part of the bill of exceptions. In such case, it must be presumed that the instructions given were adequate and correct.</p> <p>17. Unless a charge is made a part of a bill of exceptions, the court cannot examine or consider it, although it may be printed as a part of the record.</p> <p>18. Under a motion for a new trial, it is always to be presumed that the charge was appropriate and correct; and the practice, sometimes followed, of printing the charge has no warrant.</p>

<p> Adverse Possession. Damages. Riparian Proprietor. </p> <p>1. As the owners of upland upon the seashore' and adjacent flats may sell the' upland without the flats, or the flats without the upland, or divide the flats into such parcels as convenience may suggest, so the owner of upland extending to the thread of the river may sever and convey the upland or the land under the river, or any part of the latter, as well as the former.</p> <p>2. The owner of land covered by water has a right to erect and maintain buildings or other structures upon piles driven into the bed of the stream, provided he does not dam the river back upon the upper owners, or interfere with the flow of the stream t'o those below.</p> <p>3. The title to the land on which buildings are so erected and maintained may be acquired by proscription, and so may the right to diminish the flow or change the character of the water relative to the lower proprietors.</p> <p>4. When land is conveyed by metes and bounds, the description of the line nearest the thread of the river being “thence northeasterly thirty-eight feet, more or less,” which line is submerged, and there is neither mention of _ the river nor apt language conveying more than the lot described, the grantee is limited to the lot described, by metes and bounds. He is not a riparian proprietor. ■</p>

<p>On exceptions by libelee. The certificate discharged and exceptions stand to be certified to the clerk of next term of Law Court, under the provisions of Revised Statutes, Chap. 79, Sec. 44.</p> <p>Libel for divorce pending in Superior Court for the County of Kennebec. At the hearing, the exceptions by libelee were adjudged frivolous and intended for delay and were ordered to be transmitted to the Chief Justice of the Supreme Judicial Court to be argued on both sides in writing, within thirty days thereafter.</p> <p>The case is stated in the opinion.</p>

<p> Appeal. Constitution, Art. I, Sec. SI. Damages. Highway. Land Taken. Report. Retrised Statutes, Chap. S3, Sec. 53. Surface Water. Water. </p> <p>1. Where part of a tract of land is taken for public purposes, by the right of eminent domain, the measure of damages is the injury to the market value of the entire tract by the taking. It is the difference between the value of the whole tract immediately before the taking, and the value immediately after-wards.</p> <p>2. In the assessment of damages for the taking of a part of a tract of land for a highway, it is proper to consider the probability or likelihood that the proper construction of the road will make it necessary to turn the surface water accumulated in the ditches onto the remainder of the tract, in streams or collected bodies, so far as that probability or likelihood may depreciate the market value of the whole tract, but no further. Such damages are not too remote for ascertainment and allowance.</p> <p>3. Revised Statutes, Chap'. 20, Sec. 26, which provides that selectmen may construct ditches or drains to carry water away from a highway, affords ho remedy to the owner of land which is taken for a highway, for damages by depreciation in value of the tract on account of the probability that surface water.coliected in the road ditches will be turned onto the land below in streams.</p>

<p>On exceptions by plaintiff. Exceptions sustained.</p> <p>An action of assumpsit to recover a balance due for hay sold and delivered. The plea was the general issue. At the conclusion of the plaintiff’s evidence, the presiding Justice directed a nonsuit, to which direction the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. Exceptions sustained. This was an action of assumpsit. The writ was dated June 5,1913, and was made returnable on the second Tuesday of October, A. D. 1913, of the Supreme Judicial Court for said County. At said October term, the defendant filed a motion to dismiss said action because the same should have been made returnable on the third Tuesday of August, 1913.

<p> Assumption of Bisk. Exceptions. Instructions. Master. Negligence. Notice. Servant. </p> <p>1. The duty of inspection by an employer of the appliances used by his employee does not extend to the small and common tools in every day use, of the fitness of which the employee using them may reasonably be supposed to be a competent judge. ></p> <p>2. Want of reasonable care on the part of the employer cannot be predicated on the fact that he failed to warn a servant mechanic ordinarily intelligent and experienced that bits of steel were liable to fly from the mushroomed head of a cold chisel when struck with a hammer.</p> <p>3. Assumption of risk is voluntary. But when nothing appears to the contrary, an employee is deemed to have agreed to take upon himself the risk of injury from dangers visible and appreciated. He may terminate the agreement by giving notice to the employer that he will no longer bear the risk. The evidence does not take this case out of the ordinary rule.</p>

<p>On motion and exceptions by the plaintiff. Motion and exceptions overruled.</p> <p>This is an action of assumpsit in which the plaintiff seeks to recover of the defendant money claimed to be due him by reason of himself and defendant being joint accommodation makers of a note for one Welch, which note the plaintiff paid. This action is to compel the defendant to contribute towards the payment. Plea, the general issue. The jury returned a verdict for defendant. The plaintiff excepted to the admission of certain testimony and filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Assumpsit. Contract. Delivery. Merchantable. Rescission. </p> <p>In an action of assumpsit to recover the price of a hard pine tank sold and delivered to the defendant.</p> <p> Held: </p> <p>1. That the real issue is, whether the goods sold were of the kind, quality and dimensions called for by the contract.</p> <p>2. That this was a question of fact under proper instructions from the Court on which the jury found, in favor of the plaintiff, and the record fails to convince us that the finding is so manifestly wrong that it must be set aside.</p> <p>3. That the defendant’s attempted rescission by writing the plaintiff that the tank was in defendant’s yard at Berlin subject to the plaintiff’s shipping instructions does not meet the requirements of law.</p> <p>4. That the seller must be put in substantially the same position that he occupied before the contract; and the notification of a vendor by the vendee, that the latter holds the goods subject to the order of the former is insufficient.</p> <p>5. That the agreement on the part of the plaintiff to furnish a man to set up the tank was a subsequent and independent contract and not a condition precedent to the maintenance of an action for the price.</p> <p>6. A witness who was neither the agent nor representative of the plaintiff and who has testified that he did not recollect making a statement regarding workmanship, may be contradicted by showing that he did make such a statement, but the statement itself is properly excluded as he had no power to bind the company.</p>

<p> Adjoining Owner. Division Fence. Fence Viewers. Partition. Prescription. Revised Statutes, Chap. 26, Sec. 6. </p> <p>1. At common law, an adjoining owner could not be compelled to build any part of a division fence. He was compelled to keep his cattle upon his own land at his peril.</p> <p>2. An adjoining owner could not build the entire fence and make the other pay for one-half, or any part of it.</p> <p>3. This condition of the law was not satisfactory and consequently a statute was enacted to relieve it, so that if one owner refused or neglected to build his share of the fence, he could be made to do so, or have it built for him.</p> <p>4. The procedure by which this could be accomplished was prescribed by statute, and a tribunal, known as “fence viewers” was given jurisdiction over the division of fences of adjoining owners to the extent of compelling the delinquent owner, either to build his part of the fence, or pay his neighbor for building it for him.</p> <p>5. The jurisdiction of fence viewers depends upon certain preliminary requirements, among which is proof of a division fence in controversy, by an assignment made by fence viewers, by agreement of the parties, or by prescription, based upon the presumption of a division, the evidence of which is lost.</p> <p>6. To make each party build his share of the fence is the primary purpose of Sec. 5 of Chap. 26 of the Revised Statutes. However, he cannot be so required to build his share until he knows what his share is, and he cannot know this until his part is first determined, either by fence viewers, by agreement of the parties, or by prescription.</p> <p>7. Every person who may, by law, be required to build a part of a division fence, should first, be given an opportunity to build it himself. That such opportunity cannot be given, until by some division, he is informed of what his part is.</p>

<p>On exceptions by the plaintiff. Exceptions overruled.</p> <p>This is an action on the case to recover for injuries to person and property alleged to have been sustained by the plaintiff, by reason of the negligence of defendant company in the management of one of its ice teams, as a result of which said team collided with the team of the plaintiff on the streets of Auburn, causing the injuries complained of. The plea was the general issue. The jury returned a verdict for the defendant, and the plaintiff had exceptions to the refusal of the presiding Justice to give certain requested instructions which are fully considered in the opinion.</p> <p>The case is stated in the opinion.</p>

<p> Damages. Own. Plaintiffs description. Plan. Revised Statutes, Chap. 52, Sec. 78. Title. </p> <p>1. Under the declaration and plea, the plaintiff, without offering any evidence of a paper title, proved his title by the use of a plan and oral testimony. The plan was used under the eye of the Court, without objection by counsel, and must be assumed to be substantially correct.</p> <p>2. No objection or question was made by the defendant as to the truth of plaintiff’s claim of ownership, nor as to the accuracy of the plan which was used to indicate and explain the extent and boundary of the burned area, as set forth in the writ. After the plaintiff had testified to his ownership of the land and described it as delineated upon the plan, the defendant waived his right of cross-examination and left the plaintiff’s testimony and the plan uncontested and impressed with the presumption of truth, both as to title and description.</p> <p>3. The word “own” used as a verb has a well defined meaning in law and is defined, “to have a good legal title; to hold as property; to have a legal or rightful title to; to have; to possess.”</p> <p>4. There can be little doubt that the claim of ownership, as made by the plaintiff, his minute description on the plan of his damaged premises; the conceded truth of his testimony upon both ownership and accuracy of the plan, were sufficient, under the circumstances of this case, to afford prima facie evidence of title.</p> <p>5. It is well settled, that a party who would have the advantage of an oversight, if he wins, must take the disadvantage of the same oversight, if he loses. He must be deemed to have waived the deficiencies, under the circumstances, if there is sufficient in all the testimony to make a prima facie case.</p>

On motion by defendant for new trial. Motion overruled. This is an action on the case to recover damages for injuries to person and property suffered by plaintiff, by reason of the negligence of the defendant in conducting and driving one of its cars, so that it collided with the team of the plaintiff, causing the injuries and damages complained of. Plea, general issue. The jury returned a verdict for the plaintiff of $500, and defendant filed a motion for a new trial.

<p>On report. Decree according to the opinion.</p> <p>. This is a bill in equity, in which the construction of the will of Moses W. Webber is sought. All the allegations of the bill are admitted in the several answers thereto. The following is a copy of the will of Moses W. Webber, omitting the formal parts:</p> <p>“I, Moses W. Webber of Biddeford, Maine, manufacturer, make this my last will.</p> <p>I give, devise and bequeath my estate and property, real and personal, as follows — -that is to say:</p> <p>$500. Five hundred dollars as a fund the income from which to be used for the perpetual care of my burial lot in Laurel Hill Cemetery, Saco, Maine.</p> <p>$750. Seven hundred and fifty dollars for a monument with inscriptions thereon of all buried in the lot of my father’s, Aaron Webber, in Biddeford Cemetery, Biddeford, Maine, there shall also be markers for each one buried there.</p> <p>$250. Two hundred and fifty dollars as a fund the income from which to be used for the perpetual care of said burial lot of my father in Biddeford Cemetery, Biddeford, Maine.</p> <p>$250. Two hundred and fifty dollars as a fund the income from which to be used for the perpetual care of the burial lot of my wife’s father, William Littlefield, in Laurel Hill Cemetery, Saco, Maine.</p> <p>$5,000. Five thousand dollars to Stella F. Ripley, my wife’s cousin, who has faithfully made a home for me since the death of my beloved wife.</p> <p>$15,000. Fifteen thousand dollars as a fund the income from which to be given said Stella F. Ripley during her lifetime.</p> <p>$1,000. One thousand dollars as a fund the income from which to be donated to the aid of unfortunate women to enable them to enter the Wardwell home, so called, at Saco, Maine, the fund to be known as the Eliza P. Webber fund.</p> <p>All of my household goods, books, pictures, &c., &c., wherever situated, to be given said Stella F. Ripley.</p> <p>I also give Stella F. Ripley, the use of my house at Old Orchard, Maine, during her lifetime.</p> <p>I also give from the income of my property one hundred dollars per annum for the maintenance of said house at Old Orchard, Maine, while in the use of said Stella F. Ripley.</p> <p>The balance of my estate and property real and personal and all that shall accrue to said estate, not otherwise mentioned, to constitute a fund which when it shall have amounted to seventy-five thousand dollars the income from which to be used for the maintenance of a Free Hospital in Biddeford, Maine, where the unfortunate may receive good care and skilful treatment.</p> <p>If a Hospital shall not have been built when the above Hospital fund shall have amounted to seventy-five thousand dollars, twenty-five thousand dollars of the principal may be used for building one providing a sufficient sum is guaranteed for its maintenance.</p> <p>•The above fund to be a memorial to my beloved wife, Eliza P. Webber.”</p> <p>At the hearing in this case, May 29, 1914, it was reported to the Law Court upon the following stipulation; “This cause comes on to be heard on bill and answers; and it appearing to the Justice presiding that questions of law are involved of sufficient importance and doubt to justify the same, by consent of the parties, the cause is reported to the next Law Court for hearing and decision.”</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by the plaintiff. Exceptions overruled.</p> <p>This is an action of trespass, in which the plaintiff seeks to recover damages for the killing of the fox hound of plaintiff by the defendant. The defendant, claiming to justify under Public Laws of 1909, Chap. 222, Sec. 17, alleged that he shot and killed the plaintiff’s dog while it was chasing and worrying a cat belonging to him, and upon the land of the defendant. At the conclusion of the evidence, the Justice presiding directed a verdict for the defendant; To which direction, the plaintiff excepted. The bill of exceptions contained the stipulation, that if a cat is a domestic animal, the ruling below is to stand; otherwise, judgment is to be entered for plaintiff in the sum of fifty dollars.</p> <p>The case is stated in the opinion.</p>

<p> Agreement. Allegation. Breach. False Representations. Remedy. Variance. </p> <p>In an action of deceit, upon defendant’s exceptions to the refusal of the presiding Judge to order a verdict for the defendant, it is</p> <p> Held: </p> <p>1- That there was a fatal variance between the first alleged misrepresentation and the evidence. The allegation was that the, defendant stated that one Haggett had sold one hundred copies of the plaintiff’s song when demonstrating in Lewiston, while the evidence only showed that the defendant said he had received a letter from Haggett to that effect.</p> <p>2. That the second alleged false statement, viz: that “the defendant agreed that the second lot of one hundred copies should be sold only in Lewiston, while the said Haggett was demonstrating there, and only for advertising purposes,” related not to some material existing fact, but to a promise for the future, and therefore was not properly a representation, but an agreement.</p> <p>3. That the plaintiff’s remedy, if any, is in contract and not in tort.</p>

<p>On report. Upon an agreed statement of facts. Judgment for defendant.</p> <p>This is a real action to recover certain real estate described in the declaration. The plaintiff, a married woman under the age of twenty-one years, conveyed said premises by warranty deed to Forest W. Fields, which land Forest W. Fields subsequently conveyed to the defendant. At the date of the writ in this action, the plaintiff was twenty-one years of age. The case was reported to the Law Court upon the agreed statement of facts.</p> <p>The case is stated in the opinion.</p>

On report. Bill sustained with costs. Perpetual injunction to issue. Decree accordingly. This is a bill in equity, praying for an injunction to prevent the defendant, on his own land, from severing the connection of plaintiff with certain water pipes and the flow of water through them of the Houlton Water Company to the stable of the plaintiff. The defendant filed an answer to the bill and the plaintiff filed a replication.

<p>On exceptions by defendant. Exceptions overruled.</p> <p>This is an action of assumpsit upon an insurance policy issued by defendant company October 30, 1912 for $1200.</p> <p>The case was submitted to the Justice presiding on an agreed statement of facts, with right of exceptions in matters of law. The presiding Justice found in favor of the plaintiff, and the defendant excepted to said finding. Plea, general issue and brief statement' of special matters of defense.</p> <p>The case is stated in the opinion.</p>

<p> Amendment. Breach of Contract of Promise of Marriage. Bate of Promise. New Cause of Action. New Count. Promise. Seduction. </p> <p>1. In an action for breach of promise of marriage, an amendment to the declaration alleging a promise at an earlier date than those already alleged, followed by seduction, does not introduce a new cause of action.</p> <p>2. An amendment to a declaration that is itself demurrable cannot be allowed.</p> <p>3. A new count in a declaration in an action for breach of promise of marriage, which alleges a promise and a breach only inferentially and argumentatively is demurrable, and not allowable as an amendment.</p> <p>4. Every traversable fact must be alleged as of a definite day, month and year.</p> <p>5. In an action for breach of promise of marriage, when no time of performance is alleged, the plaintiff must aver that she was ready and willing to perform the contract on her part.</p>

<p> Alienation of Wife’s Affections. Burden of Proof. Carnal Intercourse. Certificate. Criminal Conversation. Identification of Parlies. Legal Marriage in Fact. Record of Marriage. </p> <p>1. In actions for criminal conversation, marriage between the plaintiff and his wife must be strictly proved.</p> <p>2. In actions for criminal conversation, the plaintiff is competent to testify to the marriage ceremony and the identity of the parties.</p> <p>3. The production of the record proof of marriage, from the proper public records, with proof of the identity of the parties, is sufficient, prima facie, to show a legal marriage in fact. The record affords presumptive evidence of regularity and authority.</p> <p>4. In the absence of proof to the contrary, the law of another State or country is presumed to be like our common law, but not like our statute.</p>

<p> Bailee for Hire. Claimant. Common Carrier. Intoxicating Liquors. Possession. Search and Seizure. </p> <p>1. The claimant, had the liquors in his possession to be transported to Campobello, New Brunswick. He was a bailee for hire, and as such, like a common carrier, had a special title which gave him a legal right to the custody as against one having no right.</p> <p>2. The claimant Cook filed his claim and appeared and testified in the case. He claimed that he was hired by Calder, the consignee of the liquors, to transport ■ said liquors to Campobello, but on arrival there found the water so low that he could not land and returned to Eastport for supper, intending to return to Campobello on flood tide. Before he could return and complete his contract, the liquors were seized. His credibility was not impugned and his conduct seemed honest, and so far as Calder is concerned, it might reasonably be inferred that he was attempting to avoid the custom laws of New Brunswick, rather than the prohibitory laws of Maine. ■</p>

<p> Assignment. Co-partnership. Dissolution. Insurance. Premiums. Renewal of Policies. Right of Assignee to Sue in his own Name. </p> <p>The defendant obtained the renewal of two policies of insurance through the agency of Lord and Fenderson, and the premiums were paid by Lord and Fenderson. Subsequently, the firm of Lord and Fenderson was dissolved. At the dissolution, by mutual agreement between the parties, Lord took the assets, became liable for the debts, and settled with Fenderson on this basis; the account in suit being received at its face value. It was also understood between the parties that if suits were necessary for the collection of bills due the partnership, that such suits should be brought in the name of Lord, and the written assignment on June 1, 1913, was in furtherance of this agreement.</p> <p> Held: </p> <p>1. That this written assignment was confirmatory of his title and enabled Lord to bring suit in his own name, under Revised Statutes, Chap. 146, Sec. 84.</p> <p>2. The oral agreement constituted an equitable assignment to Lord and would authorize him to bring suit in the name of the assignor, but not in the name of the assignee.</p> <p>3. A partnership is regarded as continuing, even after a dissolution, for the settlement of its affairs, and each partner retains the full possession of his former powers, unless a different arrangement has been made.</p>

On motion and exceptions by defendant. Motion not considered. Exceptions sustained. New trial granted. This is an action on the case brought by plaintiff against the Maine Central Railroad Company to recover damages for personal injuries alleged to have been sustained by the plaintiff, by reason of the negligence of the defendant. Plea, general issue. The jury returned a verdict for plaintiff of $10,000.

<p>On motion by defendant for new trial. Motion sustained. New . trial ordered.</p> <p>This is an action on the case to recover for damage to property by three fires, alleged to have been communicated to land of Mary A. Britt by a locomotive engine of the Maine Central Railroad Company. Plea, general issue. The jury returned a verdict for plaintiff of $399.71, and thereupon the defendant filed a general motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Exceptions. Land and Buildings. Lien. Malcriáis. Suspension of Work. </p> <p>1. In an action to enforce lien for materials furnished, when all the materials are furnished under one entire continuing contract, though at different times a statement filed within the time fixed by statute after the last items furnished, is effective in regard to all the other items.</p> <p>2. Even if the materials be not ordered at one and the same time, or the quantity or price of the materials be not agreed upon at the time of the first order, the contract will nevertheless be held a continuing one.</p> <p>3. The interruption of the construction of a building on account of the season of the year, though it be for months at a time, will not prevent a mechanic’s lien from attaching from the commencement of the building, if the construction be resumed without change of design and there is no evidence of an abandonment of the intention to prosecute the work.</p> <p>4. The interruption of the work for a short time and its subsequent resumption without a change of the original design and character will not constitute a new commencement, or effect the attaching of the lien when the building was originally commenced.</p> <p>5. The statute regarding liens on buildings and lots does not confine the right to any particular species of contract. It extends to and includes implied as well as express contracts and those which are entire, as well as those which are devisible.</p>

<p> After Acquired Property. Bankruptcy. Creditors. Custody of the Law. Duress. Intention of Parties. Mortgage. Possession. Replevin. Trover. Trustee. </p> <p>81. The rights of all parties depend upon the language used in a mortgage in reference to after acquired property, and the acts of the parties as declared by the record.</p> <p>2. At common law, a mortgage of chattels not then in existence was invalid, but it has now become a settled principle in this State that a person may mortgage after acquired property.</p> <p>3. As between the parties, a mortgage upon goods which authorizes the mortgagor to sell them and with the proceeds of such sale to purchase other goods to take their place, will be upheld.</p> <p>4. The intention of the parties as gathered from the language of all parts of the agreement considered in relation to each other, and interpreted with reference to the situation of the parties, and the manifest'object they had in view must always be allowed to prevail, unless some principle of law, or sound public policy, would thereby be violated.</p> <p>5. When the trustee is appointed, his title to the bankrupt’s estate relates back to the date of the adjudication, and he takes the property of the estate subject to all equities, liens and incumbrances existing against it in the hands of the bankrupt.</p> <p>6. When the trustee took possession, the property was then in the custody of the law, and could not be removed from that custody by any private person, or by any process issuing out of this Court.</p>

<p> Contempt. Divorce. Husband. Husband’s Credit. Necessaries. Professional Services. Revised Statutes, Chap. 62, Sec. 6. Wife. </p> <p>In an action of assumpsit on account annexed, brought by an attorney at law to recover for professional services rendered the defendant’s wife in divorce proceedings instituted by the husband,</p> <p> Held: </p> <p>1. That the plaintiff cannot recover for services in consultations with merchants relating to supplies to be furnished to the wife during separation. The wife’s implied agency or authority to pledge her husband’s credit, arising from the marital relation alone, might have covered the supplies furnished, but not the apparently unnecessary services of an attorney for consultations with the parties furnishing them.</p> <p>2. That in this State, an attorney cannot maintain an independent action against the husband for legal services rendered .and disbursements made in connection with a divorce proceeding instituted'by the husband, even though the wife prevails, because of the statutory means otherwise provided for them remuneration.</p> <p>3. That under R. S., Chap. 62, Sec. 6, providing that “pending a libel, the Court, or any justice thereof in vacation, may order the husband to pay to the Clerk, for the wife, sufficient money for her defense or prosecution thereof, and enforce obedience by appropriate processes,” the wife is guaranteed full and complete relief, is under no necessity of pledging her husband’s credit for such expenses, and therefore has no implied power to do so.</p> <p>4. That the statutory method of compensating attorneys best protects the interests of all parties, is in accord with sound public policy, and should be deemed exclusive.</p>

<p>On report. Judgment for plaintiff for $3020.27, with interest from July 19, 1909.</p> <p>This is a bill in equity, in which the plaintiff prays that an accounting may be taken of all stumpage and timber cut and had from certain designated public lots by the defendant, and that said defendant be ordered to pay over to said plaintiff, in his official capacity, such sums as shall be found to be equitably due from it on account of said public lots. An answer by defendant and replication thereto by plaintiff were filed. On the 5th day.of December, 1913, the whole cause was referred to Henry W. Oakes, as Special Master to hear and determine the amount to which the plaintiff is entitled as stumpage, who made his report to the Court. At the hearing of the cause on the acceptance of the Master’s report, the cause was reported to the Law Court, by agreement of parties, upon an agreed statement of facts and documents mentioned therein, the Law Court to render such judgment as the law and the facts require.</p> <p>The case is stated in the opinion.</p>

<p> Decree. Divorce. Equity. Fraud. Injunction. Mortgage. Term of Court. Vacating Decree. </p> <p>1. A decree of divorce may be set aside for good cause shown and a new trial granted by the presiding Justice at the same term at which the decree was entered, notwithstanding the death of the libelant in the meantime. It is a power inherent in the Court, during the term at which the decree is entered.</p> <p>2. Such reversal, when made, relates back to the date of the original decree and renders it void from that time.</p> <p>3. That a mortgage of real estate given by the libelant, the wife, without the joinder of her husband, the libellee, is void, because contrary to R. S., Chap. 63, Sec. 1, when the property had been conveyed to her by her husband during coverture.</p> <p>4. That such a mortgage given by the wife between the date of the original decree and of its reversal is also void, even when given to a bona fide purchaser for value.</p> <p>5. That such a purchaser took title pendente lite, because prior to the adjournment of the term at which the decree was granted, and therefore the title was liable to be defeated by a reversal of that decree.</p> <p>6. That the plaintiff’s rights remain unaffected by the mortgage held by the defendant mortgagee, and he is entitled to equitable relief, enjoining the foreclosure of the same.</p> <p>7. That as a part of the proceeds of the loan made by the defendant, for which the mortgage was given, went to pay a prior mortgage of $300 held by one Bickford, in which the plaintiff joined and on which he was personally liable, the defendant should be subrogated to the rights of Bickford to that extent.</p> <p>8. That the bill in equity be held, in order that by proper amendments before a single Justice, and the bringing in of all parties in interest, redemption of the property from all outstanding mortgages may be obtained under the principles laid down in this opinion. Temporary injunction to continue until the rights of the parties are finally determined.</p>

<p> Collateral Agreements. Contract. Evidence to Vary Terms of Contract. Landlord and Tenant. Lease. Offset for Repairs. Rent. Written Contract. </p> <p>Action to recover rent due under the terms of a written lease, in which the defendant claimed set-off for repairs done by himself and for which he says allowance should be made by virtue of an independent, oral agreement made at the time the written lease was made. The existence of such agreement .was denied by the plaintiff.</p> <p> Held: </p> <p>1. The general rule is that parol evidence cannot be received to contradict or vary the terms of a written contract; that .when an agreement is reduced to writing it must be considered as expressing the ultimate intention of the parties, and, in the absence of fraud, parol evidence may not be admitted to alter or modify the terms or legal effect of the written contract.</p> <p>2. While there are exceptions to this rule which permit parol evidence of engagements collateral to, or independent of the provisions expressed in the written contract, and not within its terms, although made at the same time, yet the existence of such engagements must be supported by evidence of sufficient weight to produce a strong impression of its verity.</p> <p>3. The doctrine of independent, collateral agreements, as expressed in NealV. Flint, 88 Maine, 72, is not to be extended beyond its legitimate sphere.</p> <p>4. Under the evidence introduced to support the existence of the independent, collateral agreement claimed by the defendant the verdict for plaintiff was properly ordered.</p>

On exceptions by defendant in scire facias. Exceptions overruled. In the equity case, bill sustained with costs and decree to be entered in accordance with this opinion. Scire facias brought by plaintiff to revive a judgment recovered in the Supreme judicial Court for York County, at the May term, 1908, against the defendant.

On motion and exceptions by defendants. Motion and exceptions overruled. This is an action on the case, brought under Revised Statutes, Chap. 46, Sec. 2, as amended by Chap. 90 of Public Laws of 1905, and Chap. 97, of Public Laws of 1907, to recover from defendant interest claimed to have been paid by plaintiff to defendant in excess of six per cent per annum, reserved in the note held by defendant corporation against the plaintiff. Plea, general issue and brief statement.

On exceptions and motion for new trial. Motion sustained. Exceptions not considered. The case is remanded to the Supreme Court of Probate for the County of Androscoggin for further action in accordance with this opinion. This is an appeal from the decree of the Judge of Probate for Androscoggin County, allowing will of Marcia G. Coombs. From this decree, an appeal was taken to the Supreme Court of Probate.

<p> Allegations. Declaration. Demurrer. Exceptions. Time. Traversable Fact. </p> <p>No rule has been better established in this State than that requiring in declarations that the time of every traversable fact shall be named. The pleader . must name some certain day, whether correctly named or not. Declarations omitting this certainty of allegation have been repeatedly held to be bad on demurrer. This rule of pleading was violated in the case at bar.</p>

<p>On report. Judgment for plaintiff for $25.08 and interest from date of writ.</p> <p>This is an action of debt, brought by the plaintiff as collector of taxes of Camden Village Corporation against the defendant, an alleged tax payer of said corporation. Plea, is the general issue. At the conclusion of the evidence, by agreement of parties, this case was reported to the Law Court on an agreed statement of facts for final determination, the Law Court to render such final judgment therein as the law and the evidence require.</p> <p>The case is stated in the opinion.</p>

On motion for new trial by defendant. If the plaintiff, within thirty days after the certificate is filed, remits all of the verdict in excess of $3500 motion overruled; otherwise, motion sustained. This is an action on the case to recover for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant, on account of the negligence of the defendant. Plea, the general issue.

On report. Judgment for plaintiff for one dollar damages. This is an action of trespass in which the plaintiff alleges that defendant at Dexter, in the County of Penobscot, on October 12, 1897, and on divers days and times between that day and the date of writ, September 4, 1904, with force and arms unlawfully broke and entered the plaintiff’s close in Dexter Village, in said County, and dug ditches and canals through her said grounds and laid aqueducts and water pipes in…

On exceptions by defendant. Exceptions overruled. Action to recover damages for malicious prosecution. The defendant was arrested on a warrant issued by the Municipal Court of Lewiston, in the County of Androscoggin, on complaint of the defendant. Plea, the general issue and brief statement, setting up a justification for the arrest. The jury returned a verdict for the plaintiff for $196.00.

On exceptions by defendant. Exceptions sustained. This is a real action to recover possession of a lot of land situate in Caribou, in the County of Aroostook. Defendant plead general issue, and by brief statement disclaimed any right and title to land outside of that formerly known as the “James Calkins Homestead,” and the house on said farm. At the February term, 1914, the case was referred to the Court on an agreed statement of facts, with right of exceptions.

On motion for new trial in each case. Motion in each case sustained and new trial granted. These are actions on the case to recover the value of certain described property alleged to have been destroyed by fire communicated thereto by a locomotive of the defendant. The general issue was plead in each case.

On report. Bill of Wilton Woolen Company and Fernald v. Bass & Company sustained with costs. Bill of Bass & Company v. Wilton Woolen Company dismissed. Case remanded for further proceedings in accordance with this opinion. Bills in equity to determine the respective rights of the three owners of the water power developed by a dam at the outlet of Wilson Lake in the town of Wilton. Answers were filed to both bills and replications to the answers were filed.

<p>On exceptions by plaintiff. Exceptions overruled.</p> <p>An action on the case to recover damages of defendant for negligently causing the death of plaintiff’s intestate. The action is brought under the provisions of Revised Statutes, Chap. 89, Secs. 9 and 10. Defendant plead the general issue and filed a brief statement, alleging that the' death of Benjamin W. Monk was caused solely by the negligence of Benjamin W. Monk. At the close of plaintiff’s evidence, the presiding Justice directed a nonsuit, and the plaintiff excepted to said direction.</p> <p>The case is stated in the opinion.</p>

<p> Amendment. Motion. Pleading. Revised Statutes, Chap. 114, Sec. B. Revised Statutes, Chap. 84, Sec. 11. Writ of Error. </p> <p>1. That at common law amendments changing the parties are not allowable. Misnomers may be corrected, but the parties cannot be changed.</p> <p>2. That under R. S., Chap. 84, Sec. 11, (originally Pub. Laws, 1874, Chap. 197), “In all civil actions the writ may be amended by inserting additional plaintiffs, or by striking out one or more plaintiffs where there are two or more and the Court may impose reasonable terms.”</p> <p>3. That the statute does not permit the substitution of one sole plaintiff for another, and therefore this amendment should not have been allowed.</p> <p>4. That R. S., Chap. 84, Sec. 10, providing that “no process or proceeding in courts of justice shall be abated, arrested or reversed, for want of form only or' for circumstantial errors or mistakes, which are by law amendable, when the person and case can be rightly understood” does not apply to the change of • parties.</p> <p>5. That under that section misnomers may be corrected, but the distinction. between cases of misnomers and of a substitution of parties like that at bar is that the former state the wrong name of the right party, while the latter state the right name of the wrong party.</p>

<p>On exceptions by respondent. Exceptions sustained. Indictment quashed.</p> <p>This is an indictment in which the respondent is charged with criminal libel. The respondent was tried upon a plea of not guilty, in the Superior Court for Cumberland County, at the January term of said Court, 1914. The jury returned a verdict of guilty. At said, term, the respondent filed a motion in arrest of judgment. The presiding Judge overruled said motion, and the respondent excepted.</p> <p>The case is stated in the opinion.</p>

<p> Action of Debt. Breach. Declaration. Joint Obligors. Penalty. Principal. Sureties. Treasurer’s Bond. </p> <p>1. In suing upon a bond at common law there are two courses open to the plaintiff. The declaration may be framed for the penalty only without mentioning the condition or assigning any breach of it; or the condition may be set out and breaches of it assigned in the declaration.</p> <p>2. Where the officer to be bound, in the ease at bar, failed to sign the bond, such failure does not render the bond void, for the principal was under obligation to perform his official duty, and this he. was bound by law to do just as effectually as if he had covenanted to do it by signing the bond.</p>

<p> Damages. Exhibitions. Invitation. Lessee. License. Negligence. Reasonable Care. Revised Statutes, Chap. 89, Secs. 9-10. </p> <p>1. If the owner or occupier of land either directly or by implication induces persons to come upon his premises, he thereby assumes an obligation to see that such premises are in a reasonably safe condition so that the person there by his invitation may not be injured by them or in their use for the purposes for which the invitation is extended; that there should be no dangerous plays, sports or exhibitions thereon by which the invited might be injured.</p> <p>2. Where the proprietors of a fair allow shooting galleries upon their premises, practice in target shooting is a part of the entertainment carried on at the fair, and the managers and controllers of the fair have such target shooting and its safety under their supervision and control as much as any other part of the fair, and are liable for injuries resulting from their negligence in not properly controlling and conducting the management of this part of their exhibition.</p> <p>3. By inviting persons to their fail, the managers make themselves bound to use reasonable care to see that the fair in all its parts is safe and is conducted safely, whether the various parts of the fair are conducted and managed by the proprietors themselves or with their permission, by license, by independent contractors, or by lessees.</p> <p>4. In an action brought under this statute, the injury for which damages can be recovered must be whollly to the beneficiaries themselves, and is limited to the pecuniary effect of the death upon them.</p>

<p> Acknowledgment. Correspondence. Exceptions. Inferences. Promise. Promissory Note. Statute of Limitations. </p> <p>The question in this case is whether the letter of defendant, dated April 7, 1909, in which he said; “I have 1200.00 to send you as soon as I can get out and more that 1 can send as soon as the pond swims my logs to the mill,” removed the statutory bar.</p> <p> Held: </p> <p>1. The theory of the law is; when a debt is barred by the statute, that the promise upon which assumpsit would before lie is not dead, but suspended, and that, by certain things done by the debtor, the suspension may be removed and the promise revived.</p> <p>2. To remove the bar, under the statute, the debtor must acknowledge the debt, or expressly promise to pay it, in writing.</p> <p>3. Acknowledgment is not a promise; it is only evidence from which a promise to pay may be implied, and upon which assumpsit may be brought.</p> <p>4. The paragraph in defendant’s letter, in which he expresses his willingness to pay $200.00 when he gets out was an acknowledgment from which an inference of a promise to pay is a necessary conclusion.</p>

<p> Engine. Evidence. Inference. Location of Railroad. Origin of Fire. Sparks. </p> <p>1. The burden was upon the plaintiff to show by competent evidence that the defendant’s locomotive caused the fire. In this, the plaintiff has failed.</p> <p>2. AVhen it is sought to establish a case by an inference drawn from facts, such inference must be drawn from facts proved. It cannot b.e based upon a probability.</p> <p>3. There was no positive testimony as to the origin of the fire. The case is silent as to the starting point and no evidence appears as to the location of the railroad, or the location of the burnt area with reference to the right of way, or that sparks were emitted from the smoke-stack which might have been carried beyond the right of way.</p>

<p> Assumption of Risk. Contract. Exceptions. Foreman. Negligence. Proximate Cause. Reasonably Safe Place. Vice Principal. </p> <p>Action on the case for damages for personal injuries sustained by the plaintiff while employed as a laborer by the defendant. The verdi ct was for the defendant, and the case is before the Court on exceptions by the plaintiff to the refusal of the presiding Justice to give certain rulings requested, and to portions of the charge of the presiding Justice.</p> <p> Held: </p> <p>1. The question of ordinary care and negligence when the facts are in dispute, or even where they are undisputed, but intelligent and fair minded men may reasonably arrive at different conclusions, is for the jury.</p> <p>2. When on an issue of assumption of risk by a servant who has sustained injuries, the facts are controverted, or such that different inferences may be drawn therefrom, the question of assumption of risk should be submitted to the jury under proper instructions from the Court. And when the risk to which the servant is exposed is one that arises from the negligent conduct of the master, having imported into the situation a factor of peril not ordinarily incident to the business in which the servant is engaged, it is in legal terminology an extraordinary one. In such cases it is not incumbent upon the plaintiff to either allege or prove want of knowledge and non-assumption.</p> <p>3. In order to be on his guard, and as surely safe and free from harm, the plaintiff should know the dangers known to the defendant. The plaintiff had the right to assume, in the absence of knowledge to the contrary, that he could work in safety. -He had been working but three days, and it cannot be said as matter of law that he assumed the risk. He had the further right to rely upon the belief that the defendant had performed the duty of furnishing him a reasonably safe place in which to perform his work.</p> <p>4. This obligation of the master continues during the time reasonably occupied by the servant on his premises, in going to and returning from his work. Where the injury is the result of concurring negligence of two parties, one is not exempt from full liability, although the other was equally culpable. And the question must be left to the jury whether the first wrong doer's act was the proximate cause of the injury.</p>

<p>On motion of defendant. Motion overruled.</p> <p>This is an action of assumpsit brought by Will A. Gilman, Administrator of the Estate of George E. Gilman, late of Scarboro, in the County of Cumberland, upon a policy of insurance issued by the defendant to Frank T. Spear, October 15, 1909, upon a one and one-half story dwelling house, situated in Scarboro aforesaid. George E. Gilman, deceased, held a mortgage on said dwelling house, and the insurance was payable to him in case of loss, as his interest might appear. The defendant, at the request of the insured, Frank T. Spear, cancelled the policy. Plea, the general issue and brief statement.</p> <p>The case is stated in the opinion.</p>

On appeal by respondent. Appeal denied. Judgment on the verdict. The respondent was tried on an indictment for the murder of Patrick J. Mulkerrin, at the September term of the Superior Court, 1914, for Cumberland County, and was convicted. He filed a motion for a new trial, which was overruled by the presiding Justice, and he thereupon appealed from that decision. The case is stated in the opinion.

<p>On motion and exceptions by the defendants. Motion and exceptions overruled.</p> <p>In this action of assumpsit, the plaintiffs seek to recover of Charles A. Greenwood, Edward H. Greenwood and Grace A. Greenwood, copartners doing business under the firm name of Greenwood Woolen Company, the amount of three checks, given to the plaintiff by said Company. The defendant, Charles A. Greenwood, filed a denial of partnership under Rule X. The only question submitted to the jury was whether he was a copartner. The jury found that he was a member of said firm, and the defendant filed a motion for a new trial and had exceptions to certain rulings of the presiding Justice, which are considered in the opinion.</p> <p>The case is stated in the opinion.</p>

<p>Administration. Claim. Evidence. Exceptions. Filing of Claims. Limitation. Payment. Receipts. Revised Statutes, Chap. 89, Sec. 14. Waiver.</p> <p>1. An administrator or executor may waive the presentment or filing of claims against the estate under oath, while the claim is not yet barred by limitation.</p> <p>2. Whether an administrator or executor can waive the statute bar upon claims, already barred by limitation, quaere.</p> <p>3. An agreement in writing signed by the administrators and the heirs, who are also the claimants, “that the claims have been duly presented to said administrators and payment demanded,” is a waiver by the administrators of the presentment or filing of the claims, even though in fact the statement was not true.</p> <p>4. An item in an account annexed, “to paid town of Newport, taxes, 1902 to 1910, inclusive, 1232.80,” may be supported by evidence of payments of smaller sums at different times, to different collectors, all tending to make up the sum sued for.</p> <p>5. Receipts given by a person not a party to the suit are merely unsworn declarations and hearsay, and are not admissible against either party. But when the person who gave the receipts was a witness and testified that he gave the receipts for the money paid, the amount stated in the receipts is prima facie evidence of the amount paid.</p> <p>6. The conduct of a party, the statements made by him, and the letters written by him, tending to show improper motives, or improper practices, with reference to a suit, are always admissible against him at the trial of the suit. It is reversible error to exclude the evidence of them.</p>