Volume 113 — Maine Reports

On exceptions by defendant. In this case, the defendant was arraigned upon an indictment found by the Superior Court for Kennebec County at the April term, 1914, for keeping a drinking house and tippling shop. He entered a plea of not guilty, was tried and convicted. In the course of the trial, the defendant objected to the testimony of two deputy sheriffs; the presiding Judge overruled his objections and admitted the evidence, and the defendant had exceptions to said ruling.

<p>On report.</p> <p>This is an action of assumpsit on an account annexed to recover of defendant the sum of $315.00 for the use of three teams from January 17, 1913, to April 17, 1913, at $35.00 per month for each team. The plea was the general issue. At the conclusion of the evidence, the case was, by agreement of the parties, reported to the Law Court for determination, upon such evidence as is legally admissible.</p> <p>The ease is stated in the opinion.</p>

On report. A process for search and seizure of intoxicating liquors, was issued by the Bath Municipal Court on the 3d day of July, 1913. The respondent was tried in said court and found guilty, and appealed to the Supreme Judicial Court for said County. In the Supreme Judicial Court, the respondent filed a general demurrer. Without ruling upon the demurrer the case Was reported to the Law Court for determination.

On exceptions by plaintiff. This is an action on- a fire insurance policy, issued August 22, 1911, on plaintiff’s farm buildings and personal property, which were destroyed by fire on the 28th day of November, 1912. Plea, the general issue, together with brief statement of special matters in defense. At the conclusion of plaintiff’s testimony, the presiding Justice ordered a nonsuit, and the plaintiff excepted to said order. The case is stated in the opinion.

On exceptions by defendant. This is an indictment against the defendant, as a common seller of intoxicating liquors, under R. S., Chap. 29, Sec. 42. At the conclusion of State’s evidence, defendant requested the presiding Justice to direct a verdict in his favor, which request the Justice refused, and the defendant excepted thereto. The jury rendered a .verdict of guilty.

<p> Arrest. Dwelling Douse. Intoxicating Liquors. Jurisdiction. Justification. R. S., Chap. 29, Sec. 52. Search and Seizure. Warrant. </p> <p>1. In a warrant to search a dwelling house for intoxicating liquors, the allegation, either that the house was used as an inn or shop, or for purposes of traffic, or that the magistrate was satisfied by evidence presented to him, and so states in the warrant, that intoxicating liquor is kept in such house or its appurtenances, intended for sale in this State in violation of law, is material, and the want of such an allegation is fatal.</p> <p>2. A magistrate or court has no jurisdiction to issue a warrant to search a dwelling house for intoxicating liquors, except upon complaint that it, or some part of it, is used as an inn or shop or for purposes of traffic, or when the magistrate or court is satisfied by evidence, and so states in the warrant, that intoxicating liquor is kept in the house, intended for unlawful sale in this State; and these jurisdictional facts must appear on the face of the warrant.</p> <p>3. An officer is not protected by a warrant issued by a magistrate or inferior court, unless it shows on its face that the magistrate or court had jurisdiction to issue it.</p> <p>4. It is not a violation of law for one to interfere with and impede the execution of a warrant for the search of intoxicating liquor, when the warrant shows on its face that it is void for want of jurisdiction of the magistrate or court that issued it.</p>

On exceptions and motion for new trial by the plaintiff. An action of assumpsit to recover the sum of $2560 for crushed oyster shells for poultry sold and delivered by defendant to plaintiff. Plea, general issue, with brief statement. The plaintiff, in the course of the trial, excepted to the admission and exclusion of certain testimony. The jury returned a verdict for the plaintiff for $1009.33, and the plaintiff filed a general motion for a new trial.

On exceptions by defendant. This is an indictment under Chap. 97, Sec. 3, of the Public Laws of 1913, against the defendant for unlawfully, feloniously and knowingly receiving, accepting and appropriating, without consideration, certain moneys from the proceeds of the earnings of one Flossie Cavalluzzi in her occupation of prostitution.

<p> Assault and Battery. Character. Damages. Exceptions. Punitive Damages. </p> <p>1. In an action to recover damages for assault and battery, when plaintiff claims punitive damages or damages for injured feelings, the conduct of plaintiff or provocation by him, may be inquired into to mitigate the damages and evidence of whatever is really and clearly part and parcel of the matter is admissible.</p> <p>2. Time is not of the essence of the principle, but fairly established direct connection, as cause and effect.</p>

<p>On report.</p> <p>Bill in equity. The plaintiff asks the court to enjoin the operations of the defendants. The defendants have no written permit by the municipal officers of the town to that company to construct its lines upon and along the highways and public roads of the town, as required by statute. Answers were duly filed. The case was reported to the Law Court for decision upon the bill, answer and agreed statement of facts.</p> <p>The case is stated in the opinion. •</p>

<p>On exceptions by plaintiff.</p> <p>This is an action on a special contract for goods sold and delivered. The defendant plead the general issue and filed, in addition thereto, a ■brief statement alleging misrepresentation and fraud in procuring the contract. At the conclusion of the evidence, the presiding Justice directed a verdict for the plaintiff for $15.00 and the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>This is an action of debt on a judgment rendered in favor of Sylvanus Jordan at the October term, 1893. At the April term, 1894, the defendant was defaulted and judgment rendered, upon which execution was issued May 1, 1894. The present action is founded upon the execution in favor of Mary E. Jordan, under the will of her late husband, Sylvanus Jordan. The original action was brought before defendant filed his voluntary petition in insolvency, and judgment was obtained before defendant obtained his discharge. The case was reported upon an agreed statement of facts, to the Law Court, for determination.</p> <p>The case is stated in the opinion.</p>

<p> Attachment. Mortgage. Notice. B. S., Chap. 88, Sec. 46. Sale. Tender. Trespass de bonis asportatis.' Waiver. </p> <p>R. S., Chap. 83, Sec. 46, provides that an officer who has attached mortgaged chattels may give written notice thereof to a claimant under the mortgage, and that if the claimant does not within ten days thereafter deliver to the officer a true account of the amount due on his claim, he thereby waives the right to hold the property thereon.</p> <p>Held, under this statute,</p> <p>1. That the officer may give the ‘‘written notice” after, as well as before, a sale of the chattels on execution.</p> <p>2. That a delivery by the claimant of a “true account” to the attaching creditor’s attorney is not a delivery to the officer, and is not sufficient.</p>

<p> Attachment. Mortgage. Notice. Possession. Redemption. Replevin. R. S., Chap. 88, Sec. 44- Sale. Title. Vendee. </p> <p>In an action by the vendor in a conditional sale made in Massachusetts against an officer who attached the property thus sold as the property of the conditional vendee, it is,</p> <p> Held: </p> <p>1. That the conditional sale contract was a Massachusetts contract, to be construed and applied in accordance with the laws of Massachusetts.</p> <p>2. That in the absence of the proof of any statute, the rights of the parties under the conditional sale must be considered as governed by the common law of Massachusetts.</p> <p>3. That the common law of another State is presumed to be like our common law, but not like our statute.</p> <p>4. That the statute of another State is not presumed to be like our statute.</p> <p>5. That the statute of another State must be proved as a matter of fact.</p> <p>6. That at common law there is no right of redemption by a conditional vendee.</p> <p>7. That when no right of redemption is shown, the statute, R. S., Chap. 83, Sec. 45, requiring forty-eight hours’ notice by the vendor before bringing suit against an attaching officer, does not apply.</p>

<p>On motion for new trial by defendant.</p> <p>This is an appeal from the action of the municipal officers of the town of Sanford, in the County of York, on application of the plaintiff for the assessment of damages, under Secs. 67 and 68 of Chap. 23 of the R. S. The plaintiff recovered judgment before the jury at the January term, 1914, for $1082.64. The defendant filed a motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>This is a real action to recover two pieces of real estate situate in York County. The defendant, in the court below, was permitted to plead in equity, under the provisions of R. S., Chap. 84, Sec. 17, in addition to the general issue. To said pleadings, the plaintiff filed his reply. At the conclusion of the evidence, the cause was reported to the Law Court for the determination of the rights of the parties, upon so much of the evidence as is legally admissible.</p> <p>The case is stated in the opinion.</p>

<p> Assignment. Foreclosure. Mortgage. Quitclaim Deed. Real Action. </p> <p>A deed by a mortgagee not in possession, unaccompanied by a transfer or assignment of the mortgage indebtedness, conveys no title.</p>

<p>On report.</p> <p>This is an action of tort brought by LeRoy R. Folsom, as receiver of the Smith Publishing Company, a Maine Corporation, against Clyde H. Smith, Selden F. Greene, R. C. Brown, J. F. Hill and Edward F. Danforth and Helen Wing Wentworth, both executors of the last will and testament of John P. Clark, deceased, directors in said corporation, for misappropriation of the assets of said corporation. Plea, the general issue. At the conclusion of the evidence, the case was reported to the Law Court upon so much of the foregoing evidence as is legally admissible; the Law Court to render such judgment as law and justice require.</p> <p>The case is stated in the opinion.</p>

<p> Assumpsit. Contract. Deed. Fraud. Misrepresentation. Notice of Rescission. Possession. Rescission. Restoration. Sale. </p> <p>1. The right to rescission is limited to cases where the seller can be put substantially in the position he occupied before the contract. If one would rescind, he must restore.</p> <p>2. Notice that possession will be delivered within the next ten days is not sufficient; it should be done within a reasonable time.</p> <p>3. If a party would rescind a contract on the ground of fraud, the rule is that he must restore, that it should be done within a reasonable time.</p> <p>4. What is a reasonable time is a mixed question of law and fact. When the facts are ascertained, it becomes a question of law.</p> <p>5. A contract obtained through fraudulent representations may be rescinded, or affirmed, at the election of the party defrauded, and this principle applies to contracts under seal, as well as to other classes of contracts. Deeds procured by covin or fraud, as between the parties, are as dead as forged deeds.</p> <p>6. The law does not allow a partial rescission whereby the party claiming the right to rescind can retain the beneficial part of a contract and refuse performance on his part.</p> <p>7. The vendee may avail himself of a partial failure of consideration to reduce damages and is not obliged to resort to a separate action for deceit, or upon a warranty.</p> <p>8. That the power to cancel an executed contract ought never to be exercised, except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved and unless the complainant has been deceived and injured by them.</p>

<p> Beneficiaries. Construction. Dividends. Funds. How far Timber may be cut upon Trust Lands. Income. Principal. Remainder-man. Tmst Estate. Trustee. Waste. Will. </p> <p>A. testator made a devise in trust of '‘wild lands,” which were kept and held merely for the produce of salable timber. He gave no directions as to how they were to be operated. The income was to go to certain beneficiaries for life, remainder in fee to another. On a bill by the trustee for instructions,</p> <p> Held: </p> <p>1. That the income derived from the cutting of trees or the sale of stumpage rights belongs to the life beneficiaries, and not to the i’emainder-man.</p> <p>2. That the trustee is to operate the timber-land without strip or waste of the rights of the remainder-man. He must operate according to the precepts of good forestry, and not so as to reduce the quantity of available timber below what it was at the commencement of the trust.</p> <p>3. That when the trustee cuts trees, or permits such cutting, so much, and no more, of the proceeds of such cutting, in addition to the previous cuttings, as is equivalent to the growth since the commencement of the trust, of available, marketable timber, -taking the tract as a whole, is income to be paid to the life beneficiaries.</p> <p>4. That the interest on income already received and deposited pending this proceeding will follow the principal deposit.</p> <p>5. That of the income already received and interest thereon, the life beneficiaries are entitled only to so much as would have been received had the operations been conducted in accordance with the preceding paragraph 2. The remainder is to be allowed to accumulate and be paid to the remainder-man upon the termination of the trust.</p> <p>6. _ That the income from the wild lands now in the hands of the trustee belongs to the life beneficiaries and the remainder-man in the proportion of 4,496,000 to 4,262,855, respectively.</p> <p>7. That the expenses for wild land taxes, sealing, commissions, and all other expenses connected with the wild land management, may be paid from any income in the hands of the trustee, whether derived from the proceeds of stumpage, or from any other trust property, and whether the wild lands are being operated for the time being, or not.</p> <p>8. That the trustee has large discretionary powers respecting the details of'the management of the trust estate, and that it is not within the province of the court to direct him how to exercise these powers.</p>

<p>On exceptions by plaintiff.</p> <p>This is an action of replevin to recover a certain quantity of copper junk, alleged in plaintiff’s writ to have been taken and detained by the defendant company at Fairfield, in the County of Somerset. The writ in said action was returned to and entered in the Superior Court at Augusta, in the County of Kennebec, on the first Tuesday of April, 1914. At the June term of said court, the defendant filed a motion to dismiss said action for want of jurisdiction. The judge of said Superior Court granted the motion, to which the plaintiff excepted.</p> <p>The case is stated in the opinion.</p>

<p> Appeal. Approval. Constitutional Law. Equity. Injunction. Jurisdiction. Public Convenience. R. S., Chap. 53, Sec. 9. Stockholder. Street. </p> <p>1. The construction by a street railroad company of additional turnouts in a street is unlawful, unless the approval of the municipal officers is first obtained.</p> <p>2. In a petition by a street railroad company to municipal officers to approve additional turnouts in a street, under R. S., Chap. 53, Sec. 9, it is not necessary to allege that public convenience or necessity requires them.</p> <p>3. The approval by a board of mayor and aldermen of additional turnouts on the petition of a street railroad company is not rendered invalid by the fact that the mayor was interested as president of a corporation to be benefited thereby, when it appears that the mayor took no part in the proceedings except to present the petition.</p> <p>4. By statute, all street railroad corporations, both those specially chartered and those organized under the general laws, have authority to do a freight business.</p> <p>5. The right granted to a street railroad company to haul freight in cars imposes no additional servitude upon the land in the street on which its line is located, for which the owner of the land is constitutionally entitled to compensation, more than was awarded when the street was originally laid out.</p> <p>6. A street railroad company has no right to use the public highway as a switching yard, and is not entitled to a turnout for that purpose, nor for the purpose of affording a standing place for its cars, nor for its mere business convenience.</p> <p>7. An injunction may be granted to prevent a threatened wrong for which there is no adequate remedy at law, although the rights of the parties have not been settled by an action at law.</p> <p>8. The plaintiff is entitled to an injunction restraining the defendant from using the proposed turnout as a switching or shifting place.</p>

<p>On report.</p> <p>This is an action on the case to recover damages for the loss of one carload of potatoes, by the alleged negligence of the defendant, which the plaintiff delivered to and the same were received by the defendant on the 26th day of November, 1910, at Hillside Station in Brunswick, to be carried by the defendant to Summit, in New Jersey, and there to be delivered by the defendants, through connecting railroads, to the order of the plaintiff.</p> <p>The plea was the general issue. At the close of the plaintiff’s testimony, this case was reported to the Law Court by agreement of parties. If the plaintiff is entitled to recover in this action, upon the evidence offered by him, the case to stand for trial; otherwise, the Law Court is to direct judgment for the defendant.</p> <p>The case is stated in the opinion.</p>

<p> Acreage. Agent. Boundary. Deceit. False. Misrepresentations. Representations. Sale of Farm. Title. </p> <p>During the negotiations for the sale of the land between the parties, the defendant, M. A. Seaney, knew where the true boundary was and he knew that the fence, which the defendant pointed out to the plaintiff, was not the northerly boundary of his land, but included land not owned by him.</p> <p> Held: </p> <p>1. That if the defendant did falsely point out, as the boundaries of the land, he was endeavoring to sell the plaintiff the fence the plaintiff claims he did, the plaintiff had the right to believe that fence to be the true boundary.</p> <p>2. Where a vendor of land undertakes to state or point out to a purchaser the boundaries of property he is selling, he is bound to state or point them out correctly.</p> <p>3. If the defendant did point out the boundary as claimed by plaintiff, he did not point it out correctly, but knowingly pointed out to plaintiff a false boundary for the purpose of deceiving the plaintiff.</p> <p>4. It appears from the testimony that M. A. Seaney was acting as the agent of 'his wife, I. M. Seaney, who owned the land, in the sale thereof to the plaintiff; therefore, she was liable for such acts of her agent as were done within the scope of his authority as agent.</p> <p>5. The principal is liable to third persons in a civil suit for frauds, deceits, concealments, torts, negligence and other malfeasance, and omissions of duty in his agent in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of such misconduct, or even if he forbade them or disapproved of them.</p> <p>6. In such case, the principal holds out his agent as competent and fit to be trusted; thereby, in effect, he warrants the fidelity and good conduct in all matters of his agency.</p>

<p>On report.</p> <p>This is a bill in equity, praying for an injunction restraining and enjoining the city of Portland from establishing a permanent municipal fuel yard, and is brought by taxable inhabitants of said city, under R. S., Chap. 79, Par. VI, Cl. 11. The defendants demurred to said bill. Upon a hearing in the above entitled cause, the Justice hearing the same being of opinion that questions of law are involved of sufficient importance and doubt to'justify the same, and the parties agreeing hereto, hereby reported this cause to the next term of the Law Court to be held at Portland, Mame: The bill of complaint and the demurrer thereto to make the report of said cause.</p> <p>The case is stated in the opinion.</p>

<p> Contract. Due Care. Exceptions. Fellow Servant. Negligence. Notice to Produce. Written Agreement between the Defendant and the Tarbox Express Company. </p> <p>Action of tort brought by the plaintiff, a motorman in the employ of the defendant, to recover damages for injuries sustained by him on February 2, 1912, in a collision between the car he was driving and two freight cars partly loaded with wood which had been left standing unflagged and unattended on the main line of the defendant’s road between Gardiner and Lewiston, at or near Thompson’s Crossing, so called.</p> <p> Held: </p> <p>1. The case clearly shows that the plaintiff failed to prove that the agreement offered and excluded was the agreement in force between the companies at the time of the accident, and for that reason it was properly excluded.</p> <p>2. The purpose of a notice to produce a document is to obtain the document itself that it may be introduced in evidence if admissible, or to lay the foundation for the introduction of secondary evidence of its contents, if not produced. But it does not have the effect to make an inadmissible document admissible.</p> <p>3. The evidence shows unmistakably, that the motorman of the express car was the servant of the defendant, and therefore the fellow servant of the plaintiff; that he had'full control of the operation of the express car; and that the freight cars were left standing on the main line through his negligence.</p> <p>4. Where the plaintiff’s injuries were caused by the negligence of his fellow servant, he cannot recover of the defendant damages therefor.'</p> <p>5. Furthermore, the evidence clearly shows that the plaintiff did not exercise that degree of attention and caution on his part which the law requires, otherwise he would have seasonably seen the obstruction on the track and avoided the collision.</p>

<p>On motions by defendant.</p> <p>These actions on the case were brought under R. S., Chap. 52, Sec. 73, to recover damages for the loss of certain buildings and personal property therein, by fire alleged to have been communicated to said buildings by a locomotive belonging to and in control of the defendant. Plea, general issue. The cases were tried together and verdicts were rendered in each case in favor of plaintiff. The defendants each filed a motion for a new trial.</p> <p>The cases are stated in the opinion.</p>

<p> Breach. Contract. Damages. Dividends. Exceptions. Sale. Stock. R. S., Chap. 70, Sec. 51. </p> <p>1. Whether a contract was entered into by the plaintiff and defendant, the terms thereof, if made, whether the plaintiff performed the services called for by the contract or not, were questions of fact for the jury and were submitted to them, with proper instructions as to the force and effect of the testimony, the acts and conduct of the parties, the degree of credit to be given to witnesses, and the explanations of their acts and conduct.</p> <p>2. The jury having decided that the contract was made and performed, as claimed by the plaintiff, and there being sufficient evidence, if believed by them, to authorize that finding, the court will not substitute its judgment for theirs, and the finding by the jury is binding upon the parties.</p> <p>3. The plaintiff was asked upon cross-examination this question, “After you came down here and got ready to establish your home, were you informed that Mr. Bradstreet had provided a house that you could occupy rent free?” The question was objected to, excluded and exceptions taken to its exclusion. The court overruled the exception, on the ground that the furnishing of a house, if furnished, .was no part of any contract entered into between the plaintiff and defendant and had no tendency to prove or disprove the contention of either plaintiff or defendant.</p>

<p>On exceptions by defendant.</p> <p>This is an information in the nature of quo warranto. The defendant demurred to the information, and the plaintiff joined the demurrer. The presiding Justice overruled the demurrer and the defendant filed and had allowed exceptions to the overruling of said demurrer.</p> <p>The case is stated in the opinion.</p>

On motion and exceptions by defendants. This is an action to recover damages for breach of warranty of a horse. Plea, the general issue. The defendants had exceptions to the admission of certain evidence. The jury returned a verdict for the plaintiff for three hundred dollars ($300.00), and the defendant filed a general motion for a new trial. The case is stated in the opinion.

<p>On motion and exceptions by respondent.</p> <p>This is a petition to the Probate Court of Androscoggin County, asking for the appointment of W. H. Judkins as guardian of Sarah C. Gower. Upon notice and hearing thereon, said Judkins was appointed guardian of said Sarah C. Gower. From this decree, an appeal was taken to the Supreme Court of Probate. In the Supreme Court of Probate, a hearing was had on the appeal and it was ordered that the decree of the Judge of Probate, appointing W. H. Judkins, guardian, be affirmed. To this decree affirming the decree of the Judge of Probate, respondent excepted, and a motion for a new trial was filed.</p> <p>The case is stated in the opinion.</p>

<p> Bill of Exceptions. Broker. Commissions. Exceptions. Fancy Corn. Samples. Self-serving Evidence. </p> <p>1. The court is not bound to consider exceptions, unless the bill of exceptions itself states the grounds of exceptions in a summary manner; nor unless it states the evidence, concerning the admission or exclusion of which complaint is made, and enough of the contentions or issues in the case to show that it was relevant or irrelevant, material or immaterial, competent or incompetent, as the case may be; nor, unless it contains the requested instructions, to the refusal of which exception is taken, and sufficient matter to show that the requested instructions were appropriate.</p> <p>2. Neither the reference in a bill of exceptions to the body of the evidence, nor the incorporation of the evidence as a part of the bill of exceptions can take the place of a succinct and summary statement of the specific grounds of exception in the body of the bill itself.</p> <p>3. Letters and telegrams sent in the general course of business by one party to a suit to the other, which by the character of their contents are naturally calculated to elicit replies and denials are admissible in evidence, although they are self-serving, and are not answered.</p> <p>4. A broker has earned his commissions for the sale of goods, when he has produced a customer who is ready and willing to buy on the seller’s terms, and is able to pay.</p> <p>5. In a suit by a broker to recover commissions, it appears so clearly that the defendant offered for sale “fancy” packed corn; that the plaintiff produced a customer ready and willing to buy “fancy” packed corn, and able to pay for it; that the com offered was not “fancy” and that for that reason the customer refused to take it, that a verdict for the defendant is set aside.</p>

<p>On motion and exceptions by defendant.</p> <p>This is an action on the case to recover for personal injuries caused by the alleged negligence of the defendant, in the transportation of the plaintiff as a passenger. The defendant claims that the plaintiff, at the time he received his injuries, was traveling gratuitously on a freight train of defendant. Plea, general issue, with brief statement. To the refusal of the presiding Justice to direct a verdict for the defendant, the defendant excepted. The jury returned a verdict for the plaintiff of $600.00, and the defendant filed a motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>This is an action for breach of the covenant for quiet enjoyment, under a lease from the defendants to plaintiff, dated January 1, 1912, of the county jail workshop. The defendants plead the general issue, with brief statement alleging that they did not enter and expel the plaintiff from the premises leased, but, the county commissioners entered said premises for the purpose of performing the duties required of them by virtue of their office. At the close of the evidence, the presiding Justice directed a verdict for the defendants, and the plaintiff excepted to said ruling.</p> <p>The case is stated in the opinion.</p>

<p>On appeal by defendant from decree of sitting Justice denying the motions to vacate the receivership and injunction ordered, and from the final decree sustaining the bill and ordering dissolution of defendant corporation, and that such injunction and receivership be made permanent.</p> <p>This is a bill in equity, brought by Salomon Frederik Van Oss, in behalf of himself and all other stockholders of the defendant company, who may elect to join as parties plaintiff, against the Premier Petroleum Company, a Maine corporation, praying for an injunction, temporary and permanent receiver and the liquidation and dissolution of the defendant corporation. Defendant filed its answer to bill, and replications were filed by plaintiffs. From decree granting an injunction and appointing temporary receiver, and from final decree sustaining the bill and ordering dissolution of defendant corporation, and that such injunction and receivership be made permanent, the defendant appealed to the Law Court.</p> <p>The case is stated in the opinion.</p>

<p> Account. Appeal. Decree. Exceptions. Guardian. Judgment. Orderof Court. Probate Court. </p> <p>The appellant in this case was a former guardian of Arthur T. Gould, whose petition to reopen the first and final account of appellant, as such guardian, was granted, and the appellant appealed from said decree to the Supreme Court of Probate and the case was thence reported to the Law Court for determination. The decision of the Law Court was as follows: “Decree of Probate Court affirmed. The case is remanded to the Supreme Court of Probate for the County of Knox for further action in accordance with this opinion.” At the September term, of Supreme Court of Probate, 1914, the appellant filed a motion asking the court to state the appellant’s account and make corrections, etc. The presiding Judge denied the motion and caused the following order to be entered: “In the above entitled cause, it is ordered; That in accordance with the certificate from the Law Court, the clerk of this court enter on the docket of the cause in this court, ‘Decree of Probate Court affirmed.’ ”</p> <p> Held: </p> <p>1. It nowhere appeared in the report, nor was it mentioned in argument or brief that question was made as to any items appearing in the exceptions and now urged here. The case was reported for the determination of this court, and under the rule, the decision reached is necessarily final.</p> <p>2. The case is here upon exceptions and may be considered upon that ground alone. The office of an exception generally is to preserve a known or supposed right, taken upon a hostile ruling upon a matter of law, or exclusion or admission of testimony, or order imperiling an asserted right.</p> <p>3. Such exceptions must be taken in the trial court and not in the court of last resort, or to the decree or order of such court sitting as a court of last resort.</p> <p>4. To the order of the Judge overruling the appellant’s motion and entering judgment in accordance with the order of this Court, exceptions do not lie; otherwise, there would be no end of litigation. A ground of exception not stated in the trial court cannot be stated on appeal.</p> <p>5. In order to present such a question, it was essential that exceptions to the findings be filed before judgment was rendered thereon.</p> <p>6. The right of exception under the practice in this State is conferred by statute, and is based upon some opinion, direction or judgment on the part of the court which is erroneous and adverse and prejudicial to the party excepting.</p> <p>7. When a party takes exceptions to the rulings of a presiding Justice, it is incumbent on such party to show affirmatively that there was error in such rulings and that he is aggrieved thereby.</p>

On exceptions by plaintiff. This is a petition for partition, made returnable at the October term of Supreme Judicial Court in Lincoln County, at which term the defendant filed a brief statement and the plaintiffs filed a counter brief statement.

<p> Arbitration. Assessment. Benefits. Debt. Notice. Re-assessment. R. S., Chap. SI, Sec. 10. R. S., Chap. 21, Sec. 5. Time Limit. Waiver. </p> <p>An action of debt brought under the provisions of R. S., Chap. 21, Sec. 10, to recover of defendant $1330 alleged to have been assessed upon his land for benefits accruing thereto from the construction of a sewer.</p> <p> Held: </p> <p>1. An assessment made by a tribunal duly authorized cannot be regarded as a re-assessment, because a tribunal absolutely without authority has previously attempted to act in the premises.</p> <p>2. When no limitation of time is fixed by the legislature within which an assessing board must act, the time when an assessment shall be made is confided to the discretion ol such board. The court in such case can impose no limitation.</p> <p>3. The award of arbitrators made without notice of hearing and hearing, in the absence of waiver of the party claiming to be thus aggrieved, is a nullity.</p>

On motion and exceptions by defendant. This is an action of assumpsit on an account annexed and a count upon a quantum meruit, to recover for hauling and loading on cars 71 coi'ds of wood. The verdict was for plaintiff for $63.67. The defendant excepted to certain rulings and instructions of the presiding Justice, and filed a general motion for a new trial. The case is stated in the opinion.

On exceptions by defendant. This is an action of forcible entry and detainer, commenced in the Municipal Court of Waterville. In this court, judgment was rendered for the plaintiff. The defendant appealed from said judgment to the Superior Court for Kennebec County. The case was heard by the Superior Court upon an agreed statement of facts, with the right of appeal reserved. The judgment of the court below was affirmed and the defendant excepted to said ruling.

On motion for new trial by defendant. This is an action on the case to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company, while attempting to cross the tracks of the defendant company, which extend across Railroad Street in the City of Bangor. Plea, general issue. The jury returned a verdict for plaintiff for $300, and the defendant filed a motion for a new trial. The case is stated in the opinion.

On report. This is an action of assumpsit upon an account annexed to recover the sum of $1890, being the balance due for one five hundred horse power vertical water tube boiler and fixtures according to written contract between the parties dated August 12, 1912. Tried in the Superior Court for Kennebec County, September term, 1914.

On appeal by the plaintiff. This is a bill in equity, brought by Erving M. Greenwood, plaintiff, against Bertha M. Greenwood, his wife, and is based upon the provisions of Chap. 48, Sec. 2 of the Public Laws of 1913, to recover back certain real estate conveyed by him to his wife April 10, 1914, in consideration that the parties should separate and thereafter live separately, and that the wife should care for herself and said minor children, without assistance from the…

On exceptions by appellants. The petitioners filed in the Probate Court notice of appeal from the allowance by the Probate Court of the will of Harriet A. Munroe by decree of February 21, 1911, to the September term, 1913 of Supreme Judicial Court. Notice of this appeal was served upon the executor. Appeal and reasons of appeal were entered at the September term, 1913, and upon entry day the executor filed a motion to dismiss the appeal.

On motion for new trial by plaintiff. Eeplevin for four pigs, tried in the Supreme Court for Cumberland County at December term, 1914. Plea, general issue, with brief statement alleging title is not in plaintiff, but in the defendant. The jury returned a verdict that the defendant is not guilty in manner - and form as plaintiff has declared against him.

<p> “Caveat Empior.” Deceit in Sale of Goods. Examination. Inspection. Kind and Quality. Negligence. Reasonable Care. Representations. </p> <p>An action of deceit in the sale of a stock of goods in bulle. At the close of the charge, the plaintiff requested the following instruction, which was refused:</p> <p>“That if the defendant represented to the plaintiffs that the goods, as they showed on the shelves in front, were of like quality and conditions as those behind, and the plaintiffs believed such representations, they were not bound to make an examination of the goods, except as they showed in front, but were entitled to rely on the representations of the defendant.”</p> <p> Held: </p> <p>1. That the instruction requested should have been given, at least in substance. The law does not allow one to take advantage of his own wrongful assertion, made to induce another to rely upon, and that the other does rely upon by claiming that the one who relied upon it ought to have known, or to have investigated, and learned that the assertion was untrue.</p> <p>2. The well settled rule to be applied here is that, if one intentionally misrepresents to another facts particularly within his own knowledge, with an intent that the other shall act upon them, and he does so, he cannot afterwards excuse himself by saying that the one trusting him was negligent, in not investigating and learning that the assertion was untrue.</p>

On report. This is an action, on the case, based upon the provisions of R. S., Chap. 114, Sec. 76, to recover damages of the defendant, because the said defendant wilfully disclosed falsely concerning his business and property before a disclosure commissioner. Plea, the general issue. At-the conclusion of the evidence, the case was reported to the Law Court for final judgment. The case is stated in the opinion.

On appeal by defendant. . This is a bill in equity, brought by Sarah C. Gower, widow of Francis S. Gower, late of Pownal, against Charles G. Keene, Administrator of the estate of Francis S. Gower, praying that the defendant may be declared a trustee of the sum of fifteen hundred dollars, out of the deposit of $2040. The defendant filed answer, and the plaintiff a replication.

On report. This is a bill in equity brought by the plaintiff for the purpose of removing an -alleged cloud upon his title to real estate in Day Academy Grant, so called, in the County of Piscataquis. The defendant filed its answer to the bill and the plaintiff filed his replication thereto.

On agreed statement of parties whereby this court may render such judgment in law, or make such decree in equity, as the rights of the parties may require, irrespective of the form of action. Plaintiff nonsuit. This is an action of trespass quare clausum to recover damages for trees cut by defendant, upon land alleged to belong to the plaintiff.

On report. This is an action on the case to recover damages against the defendants for personal injuries by reason of the negligent operation of an automobile by the defendant Arthur L. Herrick, acting as chauffeur. Each defendant separately pleaded the general issue.

On motion for new trial by the defendant. This is an action on the case brought under Secs. 9 and 10 of Chap. 89 of the R. S., by James Crosby, the father and administrator of the estate of Howard Crosby, deceased, for the benefit of the parents of the deceased. Plea, the general issue with brief statement alleging contributory negligence by deceased. The jury; returned a-verdict for plaintiff of $1200 and the defendant filed a motion for a new trial.

On motion for new trial by defendant. This is an action of assumpsit for money had and received to recover fifteen hundred dollars, paid to defendant by plaintiff as a part of the purchase price of defendant’s farm and certain personal property. Plea, the general issue. The jury rendered a verdict for the plaintiff for $1105.42, and the defendant filed a general motion for a new trial. The case is stated in the opinion.

<p> Exceptions. Judicial Duty. Mandamus. Ministerial Duties. Motion. Petition. Writ. </p> <p>1. When the law requires a public officer to do a specified act, in a specified way, upon a conceded state of facts, without regard to his own .judgment as to the propriety of the act and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus, if there is no other remedy.</p> <p>2. When the law requires a judicial determination to be made, such as the decision of a question of fact, or the exercise of judgment in deciding whether the act shall be done or not, the duty is regarded as judicial and mandamus will not lie to compel performance.</p>

On exceptions by plaintiff. This is a bill in equity against the Rockland-Rockport Lime Company and the directors thereof, in which plaintiff prays that said company be required to declare and pay a dividend upon its preferred stock from the year 1902 to 1910. The directors who had been served with process, demurred to the bill, which the Justice hearing the case sustained. The plaintiff filed exceptions to the ruling sustaining the demurrer, which exceptions were allowed.

On appeal by defendant from final decree in favor of plaintiff.

On motion for new trial by the defendant. This is an action of assumpsit on an account annexed, brought in the Municipal Court for the City of Biddeford, in the County of York, at May term, 1914, to recover for certain merchandise furnished by plaintiffs to the defendant’s wife, who was living apart from her husband. Plea, the general issue.

<p> Consideration. Extension of Time of Payment. Indorser. Original Promisor. Pmnissory Note. Release. Surety. </p> <p>1. It is the well settled principle of law in this State that a person, not a party to the note, who signs his name upon the back of it in blank at its inception, and before it is negotiated, is an original promisor as to a bona fide holder of the note before maturity.</p> <p>2. In this case both Thomas J. Blossom and Eugene Murray put their names on the back of this note at its inception, before it was delivered to the payee, and accordingly, the plaintiff bank, if it had no knowledge to the contrary, had a right to rely upon the note itself and the presumption of law arising therefrom that Blossom and Murray, whose names appeared upon the back of it, were original promisors.</p> <p>3. If Murray notified the bank, before it accepted the note, that he revoked his indorsement, then he was not liable in this action.</p> <p>4. In order to reheve a surety from liability on a note on account of an extension of time of payment to the maker, it must be shown that the contract relied upon was a valid, enforceable one against the bank, founded on a sufficient consideration, the effect of which would be to give further and definite time to the maker of the note, without the consent'of the surety.</p>

On exceptions by plaintiff. This is assumpsit upon an account annexed to recover for services as physician in caring for one Boussalari, who was quarantined, having smallpox. Plea, general issue. At the conclusion of the evidence for plaintiff, the presiding Justice directed a nonsuit and the plaintiff excepted thereto. The case is stated in the opinion.

On report. This is an action of assumpsit by plaintiff, as administrator de bonis non, with will annexed, of the estate of Ursula M. Penniman, late of Machias, in said County, deceased, to recover money claimed to have been-paid by decedent as surety on two promissory notes given by defendant James E. Hathaway to I. Sargent and Mary E. O. B. Harding dated respectively, July 10, 1865 and July 13, 1865.

On exceptions by defendant. This is an action of trespass quare clausum, brought by Howard T. Richardson, Leland S. Richardson, Daniel T. Richardson, John S. Richardson, A. E. Flint, Clara A. Allen and George P. Richardson, being all and the only heirs at law of their father Daniel T. Richardson, deceased intestate, who owned the premises at the time of his death, against Frank W. Wood for cutting and carrying away trees therefrom.

<p>On report.</p> <p>This is an. action on the case to recover a balance claimed to be due for labor performed under a written contract. At the conclusion of the evidence, the case, by agreement of parties, was reported to the Law Court for determination, upon so much of the evidence as is legally admissible: The court to render such judgment as the rights of the parties require, with full jury powers.</p> <p>The case is stated in the opinion.</p>

On appeal by plaintiff. This is a bill in equity by the plaintiff, a minority stockholder of the Old Dominion Copper Mining and Smelting Company of New Jersey, asking for a temporary injunction restraining the Maine Company from voting any of its stock at a meeting of the New Jersey Company and that the Maine Company be perpetually enjoined and restrained from voting any of its stock for the election of any officer, director, etc., of the Maine Company.

On exceptions by the defendants. An action of assumpsit on an account annexed, in which the plaintiff seeks to charge the defendants, as copartners. A denial of partnership was seasonably filed. The defendants excepted to the introduction of plaintiff’s account as it appeared upon the book of the E. J. Smith Company. At the conclusion of the evidence, the defendants moved that a verdict be directed for defendants, which motion the presiding Justice overruled.

On report. This is an action on the case by plaintiff as administrator de bonis non of Emma S. Schoppee, deceased, to recover one thousand dollars claimed to have been paid by the defendant to one Arthur G. Eaton and charged against the deposit of said Schoppee. Plea, general issue and brief statement.

<p> Attachment. Demurrer. Divorce. Jurisdiction. Libel. Motion for Continuance. Plea of Libel for Divorce. “Power.” Service. </p> <p>Exceptions to the rulings of the Judge of the Superior Court for Kennebec County-on questions of law.</p> <p>1. The first exception is to the refusal of the presiding Judge to grant a motion ' for a continuance of the case. Rule 3 of the Superior Court provides that libels for divorce will not be in order for trial at the return term, but contested libels may be heard by agreement. The presiding Judge found, as matter of fact, that there was such an agreement and ordered the case to proceed to trial.</p> <p>Held: No exceptions he to this finding.</p> <p>2. The libel in this case was inserted in a writ of attachment with power of attachment and an order to attach property of the value of 1100, while the officer’s return disclosed that he made a nominal attachment of “a chip.” The libellee claimed that on the face of the paper no legal service was made upon the defendant and that the Court had no jurisdiction.</p> <p>Held: That the Statute cannot be given so narrow a construction.' The language does not require it.</p> <p>3. Libellants may file in the clerk’s office a libel signed by him, or insert it in a writ of attachment with power to attach real and personal property to respond to the decrees of the Court.</p> <p>Held: This clause “with power to attach” was not intended to limit, but enlarge ■ the force of the word “attachment” and as used here means the right, not the duty.</p> <p>4. In a libel for divorce, the phrase “in a plea of” is not a necessary part of the pleading, and if it was it should be taken advantage of by plea in abatement.</p> <p>5. In a libel, an erroneous date of marriage is amendable, at the discretion of the Court.</p>

On report. The first of these two cases is a writ of entry to recover a certain Island in Penobscot Bay known as Saddle Island, to which the defendant plead the general issue, and the second is a bill in equity in which the plaintiff seeks to rectify and reform a certain deed given to the State of Maine in 1846 by Charles and William D. Crooker, from which she claims that said Island was inadvertently omitted.

On appeal. This is a bill in equity, brought by plaintiff to redeem the premises described in plaintiff's bill from an alleged equitable mortgage held by the defendant on said premises, in favor of the plaintiff. An answer and replication were filed. The cause was heard by a single Justice, and from the decree entered by said Justice, the defendant appealed to the Law Court. The case is stated in the opinion.

On exceptions by the defendant. This is a petition for writ of mandamus to enforce a judgment of the County Commissioners directing the railroad company to construct and maintain cattle passes and an underpass. Upon hearing, the Justice ordered a peremptory writ to issue, and the defendant excepted to said ruling. The case is stated in the opinion.

On motion by plaintiff. This is an action of assumpsit on two promissory notes, one dated April 1, 1908 for $2400, purporting to be signed by George E. Trask and Trask Brothers, and the other dated October 30, 1908 for $3600, purporting to be signed by George E. Trask and Trask Brothers, both notes payable to the plaintiff. Plea, the general issue and brief statement alleging that said notes were without consideration, that same was obtained by deceit and fraud.

On motion and exceptions by the defendant. Motion not considered. Assumpsit to recover for services claimed to have been rendered by plaintiff to defendant’s testate in her lifetime. The plaintiff introduced in evidence his claim filed in Probate Court, supported by an affidavit purporting to have been made before a notary public in Minnesota. The defendant excepted to the admission of said claim.

<p>On report.</p> <p>Bill in equity by Oscar L. Tapley, executor of the last will and testament of James S. Douglass, late of Brooksville, in the County of Hancock, against Hattie R. Douglass, et als., in which he asks the Court to construe the said will and particularly determine whether Hattie R. Douglass is entitled to the legacy of $2000 in money absolutely, and also to determine her precise interest in the remaining personal property. Answer by all defendants, admitting all the allegations in bill, was filed. At the hearing, the cause was reported to the Law Court by agreement of parties: The Law Court to decide all questions involved.</p> <p>The case is stated in the opinion.</p>

<p>On exceptions by plaintiff.</p> <p>An action of assumpsit by the plaintiff as assignee of Bartlett Palmer and Clinton C. Palmer, sons of Elizabeth C. Palmer, to recover from the executors of the will of said Elizabeth C. Palmer their distributive shares in the residuum of said estate. Plea, general issue with brief statement.</p> <p>At the conclusion of the hearing, the Court ordered judgment for the defendant, on the ground that the estate was still in process of settlement in the Probate Court for York County, that the executors were acting in good faith and were proceeding with due and reasonable diligence. The plaintiff excepted to said ruling and his exceptions were allowed.</p> <p>The case is stated in the opinion.</p>

<p> Construction. Description. Intention. Purposes of References to Prior Conveyances. Real Estate. Reference to Other Deeds. Title. Trover. </p> <p>A person owning a homestead situated partly in Exeter and partly in Garland, conveyed “all my right,' title and interest to certain real estate situated in the town of Exeter .... being my homestead place and the same real estate described in a mortgage given by me to J. A. B. under date of August 17, 1909, and recorded in Penobscot Registry of Deeds in Vol. 795, Page 471, to which mortgage reference may be had for a full and particular description.” The description in the mortgage referred to was, “a certain lot or parcel of land known as the homestead of said J. A. B., lying a part in said town of Exeter and part in Garland,” etc.</p> <p>1. Held, that the deed conveyed that part of the homestead which lay in Garland as well as the part in Exeter.</p> <p>2. The cardinal rule for the interpretation of deeds is the expressed intention of the parties gathered from all parts of the instrument giving each word its due force, and read in the light of existing conditions.</p> <p>3. A reference in a deed to other deeds, when it appears that it was so intended, makes them a part of the description, as much as if their language had been incorporated and copied as a part of it.</p>

<p>On motion for new trial by the defendant.</p> <p>■ An action of assumpsit upon an account annexed to recover for services rendered by plaintiff to her father in his house from April 6, 1904 to July 29, 1908, amounting to $1507.13, to which- is added interest amounting to $467.20. Plea- — General issue, with brief statement alleging that plaintiff did not present her claim to the administrator of said estate, nor file same in Probate Court. The jury rendered a verdict for plaintiff for $529.39, and the defendant filed a motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p> Candidates for Office. Criticism.. Defamatory Language. False Statements. Good Faith. Justification. Malice. Privileged Statements. Public Men. Reputation as an Attorney at Law. Rumors. Slander. </p> <p>1. If slanderous words, whether written or oral, directly tend to the prejudice or injury of one in his profession, trade or business, they are actionable.</p> <p>2. When the defamatory words spoken have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when from the nature of the business great confidence must necessarily be reposed, they are actionable, although not applied directly by the speaker to the profession or occupation of the plaintiff.</p> <p>3. It is the law that when a person becomes a candidate for a public office, his qualifications and fitness for that office may be freely and fully discussed, commented on and criticised by any member of the community having an interest in the matter. -</p> <p>4. The conduct and actions of such candidate may be canvassed, discussed and boldly criticised. Even his faults and vices, in so far as they necessarilyaffect his fitness for the office, may be investigated and commented on.</p> <p>5. His private character, however, is only put in issue so far as his qualifications and fitness for the office may be affected by it. He does not, by becoming a candidate for office, surrender his private character to false accusations. It would not serve the public good to have falsehoods concerning him disseminated among the people.</p> <p>6. Such comment and criticism may be harsh, severe and unnecessarily acrimonious, but so long as it is made in good faith, without express malice, it is privileged in law, and therefore not actionable.</p> <p>7. The law tolerates such comment and criticism of public men and candidates for public office upon the theory that it is for the public good to do so, to the end that the people may learn the truth as to the qualifications and fitness of candidates for office, and become informed of the manner those in office are discharging the duties of the office, thereby being better qualified to intelligently exercise the elective franchise.</p> <p>8. The law does not justify, under the guise of qualified privilege, a false, defamatory statement of specific acts of misconduct concerning a candidate for office. While the publication of the truth respecting him may be justified, the publication of defamatory falsehoods will not be.</p>

On motion for new trial by defendant. This is an action on the case against a physician for malpractice in setting and treating a fracture of plaintiff’s thigh bone. Plea, the general issue. The jury rendered a verdict for plaintiff for $2000. Defendant filed general motion for a new trial. The case is stated in the opinion.

<p>On report.</p> <p>This is an action on the case to recover damages for injuries sustained by plaintiff, an employee of the Eastern Manufacturing Company, while upon the premises of defendant. Plea, the general issue. At the conclusion of the evidence, the case was reported to the Law Court to determine the rights of the parties upon so much of the evidence as is legally admissible.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. An action of assumpsit to recover a fractional part of the net proceeds of debts due the firm and collected by his copartners under an agreement of dissolution. Defendant pleaded the general issue with brief statement, claiming to recoup against plaintiff damages arising out of the contract of dissolution. The presiding Justice ruled that those damages could not be recouped in this action and directed the jury to render a verdict for plaintiff.

On exceptions by plaintiff. This is an action of trover by plaintiff, a former deputy sheriff, to recover for the conversion of twelve hundred bushels of potatoes, which the plaintiff, as deputy sheriff, had attached on a writ against the Maine Produce Company. Plea, general issue. At the. close of the evidence, the presiding Justice directed the jury to return a verdict for the defendant, to which ruling the plaintiff excepted.

On motion for new trial by the defendant. This is an action for false representations in the exchange of horses. Plea, general issue. The jury rendered a verdict for plaintiff for $125 and the defendant filed a general motion for a new trial. The case is stated in the opinion.

<p>On exceptions by plaintiff.</p> <p>This is an action of trespass against the defendant, a tax collector of Corinna, for arresting him for a poll tax assessed against him by the assessors of said Corinna for the year 1913. The defendant, more than twelve days prior to said arrest, sent to plaintiff by mail a tax bill, in which he stated that it was a legal demand for the tax.</p> <p>At the hearing of the case before the presiding Justice, without a jury, the presiding Justice ruled that said demand was sufficient and gave judgment for the defendant. To this ruling the plaintiff excepted. ,</p> <p>The case is stated in the opinion.</p>

<p>On motion and exceptions by the defendant.</p> <p>This is an action on the case to recover for injuries received by plaintiff while a passenger on one of defendant’s trains, by reason of a collision of said train with another, October 22, 1910.</p> <p>Plea, general issue. The jury rendered a verdict for the plaintiff for five thousand dollars. The. defendant excepted to certain instructions to the jury, and filed a motion for a new trial.</p> <p>The case is stated in the opinion.</p>

<p>On motion by defendant.</p> <p>An action of assumpsit to recover of defendant for money had and received. Plea, the general issue. The jury returned a verdict for plaintiff for $104.13. The defendant filed a general motion for a new trial.</p> <p>The husband of the plaintiff while in service of the American Express Company received an injury. Subsequent to his apparent recovery, he gave his release to that company. His death occurring some months later, the company voted his widow a gratuity of $500. Desiring an increase of the amount she employed defendant, an attorney-at-law, to negotiate with the company to that end. After correspondence with the company and an interview with one of its officials in Boston, Mass., the company undertook the payment of a further sum of $500 and a check for the amount of $1000, to order of plaintiff, was sent to the company’s agent at Portland for delivery to her. Notice of the sending of the check was given by the company to plaintiff as well as to defendant, who in turn gave notice to plaintiff and she repaired on the afternoon of its receipt to defendant’s office. Both then went to the office of the company and the check was given plaintiff upon her signing a receipt or release to the company. Returning to defendant’s office, plaintiff, at his direction or suggestion endorsed the check which she left with defendant undertaking to return to his office at a stated hour in the morning. Plaintiff states that at this time defendant suggested a fee of $200. He alleges, she denies that she then agreed to it. At his office the next morning, she found the check had been cashed. She testifies that he produced $800 and he that $1000 was produced. She testifies that he preferred her $800, and, on her demurring to the charge of $200, he indulged in acts and language that alarmed her; that she said to him that she intended to consult an official of the company about the charge and would like a paper, that she could show him, disclosing the amount of the charge and that she was not “through with this yet,” and that he advised, if she was going to a lawyer, that she go to a good one. She then signed a receipt for $800 and he gave her one for $200 and she departed with the $800 and his receipt for $200. His evidence of the circumstances attending the exchange of receipts is conflicting in practically all particulars. He declares she left his office stating that she was fully satisfied. Almost immediately after leaving his office, she consulted an attorney-at-law and the present suit followed.</p> <p>The receipts, which were interchanged, are as follows:</p> <p>Portland, Maine, March 18th, A. D. 1913.</p> <p>Received from Josephine Mayo,</p> <p>Two hundred ($200.00) Dollars for Professional Services in collecting One Thousand ($1000.00) from the American Express Company and work, in connection therewith.</p> <p>$200. Frank H. Purington, Atty.”</p> <p>“Portland, Maine, March 18th, A. D. 1913.</p> <p>Received from Frank H. Purington,</p> <p>Eight Hundred ($800.00) Dollars Balance of One Thousand ($1000.00) Dollars, collected by him from the American Express Company, as a gift to me on account of the death of my husband as claimed by said Co., which settles in full with the said Frank H. Purington for Professional Services in securing this said sum.</p> <p>$800.00 Josephine Mary Mayo.”</p>

<p> Close Time. Congress of United States. Federal Constitution. Came Laws. Jurisdiction. Migratory Game Birds. Regulations. </p> <p>1. The fish in the waters of the State and the game in the forests belong to the people of the State in their sovereign capacity, who, through their representatives, the legislature, have sole control thereof and may permit or prohibit their taking.</p> <p>2. The power to legislate respecting the protection and preservation of wild game within the States was not conferred upon Congress through the commerce clause of the Constitution.</p> <p>3. The ownership of wild game, so far as it is capable of ownership, is in the States for the benefit of all their people in common.</p> <p>4. Congress therefore acquired no power under the general welfare clause of the Constitution to make regulations concerning wild game, because wild game is not “property belonging” to the United States.</p> <p>5. The power of the State of Maine to enact laws and regulations for the protection and preservation of wild game within her borders, including migratory game birds, was in no way suspended or abridged by the Act of Congress of March 4,1913.</p> <p>6. The provision of the game laws of the State of Maine, which the respondent violated, was operative and enforceable against him.</p>

<p> Alteration. Bond. Contract. Contractor. Damages. Insolvency. Possession. Surety. Waiver. </p> <p>1. The principle is elementary that any material alteration in the terms of a contract for the performance of which a surety is bound, if made without the surety’s consent, releases him from liability.</p> <p>2. It is also an established rule that a surety for the faithful performance of a building contract is entitled to have the consideration for the contractor’s performance of his undertakings retained by the creditor in accordance with the terms of the contract.</p> <p>3. The great weight of authority is to the effect that if the creditor in such a contract makes advance payments to the contractor, in violation of the terms of the contract, without the surety’s consent, such payments operate to release the surety to some extent.</p> <p>4. An advancement of money by an owner to his contractor before a payment becomes due under a building contract does not necessarily operate as an alteration of the contract itself; that depends upon the amount of the payment and the conditions and circumstances under which it was made, considered in connection with the rights and obligations of the surety under his contract of suretyship.</p> <p>5. In the case at bar, the advance payments made by plaintiff to the contractor, under the circumstances and conditions disclosed, did not constitute an alteration of the contract so as to release the surety from all liability.</p> <p>6. To the extent of the advance payment of five thousand dollars the surety is released, and is not to be charged with that as a part of the cost of the work.</p> <p>7. Where in an action for a breach of a contract the plaintiff has recovered a judgment, that judgment is presumed to include all the damages he sustained by reason of the breach. In such an action the plaintiff is not permitted, without the defendant’s consent, to withdraw a part of his alleged damages and reserve that as the subject of another action.</p> <p>8. The liability of a surety cannot exceed that of his principal. And where a contractee has brought an action against his contractor for damages on account of a breach of the contract, that judgment fixes the amount of the damages for the breach so far as the plaintiff is concerned; and in a Subsequent action by the same plaintiff against the surety for the contractor the plaintiff cannot recover more damages for the breach than the amount of his judgment against the contractor.</p> <p>9. The plaintiff having taken possession of the contractor’s plant and other - property in the exercise of its right under the contract to take and hold the same as security for any damage it might sustain by reason of a breach of the contract, must be regarded as holding the property so taken for the benefit of the surety as well as itself.</p>

<p> Assault with an intent to kill. Discretion. Exceptions. Hearsay Evidence. Indictment. </p> <p>1. The denial of a motion to strike from the record, testimony on the ground that it is subsequently shown to be hearsay, is usually a matter of discretion.</p> <p>2. When the evidence in support of a criminal prosecution is so defective or weak that a verdict based upon it could not be allowed to stand, it would undoubtedly be the duty of the court to instruct the jury to return a verdict of not guilty, and the refusal to so instruct would be valid ground of exceptions.</p> <p>3. Evidence held sufficient to warrant the jury in finding the respondent guilty as charged in the indictment.</p>

<p> Collision. Damages. Injuries. Negligence. Passenger. </p> <p>No tendency is discovered on the part of the plaintiff to exaggerate either his objective or his subjective symptoms. The evidence, as a whole, leaves no doubt that the verdict, if excessive at all, is not so excessive as to justify the interference of the court.</p>

<p> Ballots. Defective Ballots. Distinguishing Mark. Election. Intention. Marking. Petition. R. S., Chap. 6, Sec. 70. </p> <p>1. According to the amendment of Chapter 71 of the laws of 1912, all ballots marked with a cross in the square at the head of the column shall be counted, if the intention of the voter can be ascertained, no matter what casual, accidental, mistaken or unnecessary mark the voter may have placed upon the ballot, provided the same does not seem to have been fraudulently made; and the fraudulent intent must appear affirmatively.</p> <p>2. A ballot having a cross in a marked square, but having a small mark drawn vertically, and apparently not accidentally, through all the names in party column, cannot be counted.</p> <p>3. A ballot having a cross in the party square and in the square below the cross, a sticker, bearing the name of that party candidate for mayor, and having also two stickers not completely separated bearing the same name, placed nearly over the name of the same candidate, is counted.</p> <p>4. A ballot having a cross in the party square and two stickers not completely separated over the name of the candidate for alderman, is counted.</p> <p>5. A ballot having a cross in the party square and two stickers not completely separated over the name of the candidate for alderman, is counted.</p> <p>6. A ballot having a cross in the party square and another beneath it, across the party designation, is counted.</p> <p>7. A ballot having a cross in the party square with an extra line entering into it, showing an evident attempt to make and erase the previous cross, in which erasure the paper was broken, is not a mutilated ballot and is counted.</p> <p>8. A ballot having for a cross in the party square, a peculiar figure, each arm of the cross being made of practically parallel lines with the ends crossed, is counted.</p> <p>9. A ballot having for a cross in the party square lines which are broad and dull as if made with the rubber end of a pencil is counted.</p> <p>10. A ballot containing a cross in the party square, around which a circle is drawn, is not counted.</p> <p>11. A ballot having a cross in the party square and below a small cross beneath the residence of the candidate for mayor and a mark that looks like a T opposite the name of the candidate for ward clerk, whose name begins with T, is counted.</p> <p>12. A ballot having a cross in the party square and a sticker not placed on or over the name of the candidate for alderman in the column, but under it so that both names appear, is not counted.</p> <p>13. A ballot having a cross in the party square where the voter filled in his name of choice for party alderman, but failed to erase the name of the candidate not voted for, so that both names appear, is not counted.</p> <p>14. A ballot cast by one admittedly never a resident of the ward cannot be counted.</p>

<p>On report.</p> <p>These are writs of error, in which Augustus G. Perro, of Old Town, in said county, and Joseph G. Blais, of Bangor, in said County, seek to have certain judgments of the Bangor Municipal Court reversed, for certain errors alleged therein. The State, by W. B. Peirce, County Attorney for said State, filed in each case answers to said writs, and the cases were then reported to the Law Court by agreement of the parties, for decision. Certified copies of the records of the Bangor Municipal Court in libels against intoxicating liquors, State v. Intoxicating Liquors, and claims for same in writing by Augustus G. Perro and Joseph G. Blais, same to be filed with Clerk of the Supreme Judicial Court for Penobscot County, shall, by agreement, constitute the evidence in the cases.</p> <p>The cases are stated in the opinion.</p>

<p> Check Lines. Deeds. Description. Dividing Line. Heirs. Lots. Plan. Range Line. Seizin. Survey. Title. Trespass Quare Clausum. </p> <p>1. It is firmly established in this State that the survey must govern when its location can be shown, that where land is conveyed by lot, without further descriptions, that the lot lines determine the boundaries of that lot when they can be located.</p> <p>2. It is the well known practice of proprietors of townships in this State to have them surveyed and laid out in ranges, without a more particular description, and the purchaser is entitled to his lot according to the original survey, if that can be ascertained.</p> <p>3. The owners of adjoining lands may agree as to the division line and that agreement be binding upon them and those claiming under them'.</p> <p>4. This agreement is not necessarily conclusive upon other owners whose lands are bounded by the same division line, but it is competent evidence, when the original monument cannot be found, as tending to prove, not a new boundary or cornel', but that the line coincides with the original monument referred to in the deed.</p> <p>5. If the owner of a parcel of land, through inadvertence or ignorance of the dividing fine, includes a part of an adjoining tract within his enclosure, this does not operate as a disseizin.</p>

<p> Bodily Injury. Defect. Description of Injuries. Highway. Injuries. Mental Suffering. Notice. Physical Injury. R. S., Chap. 28, Sec. 76. </p> <p>1. Under R. S., Chap. 23, Sec. 76, the notice required must give a specific description of the bodily injuries claimed to have been received.</p> <p>2. A general description of the bodily injuries is not sufficient, but a specific description of bodily injuries is required as a condition precedent to the right of any action at all.</p> <p>3. One having a right of action for bodily injuries may have damages for all of the natural consequences, such as loss of earnings, physical pain and mental suffering.</p> <p>4. Suffering is not the injury for which a recovery may be had under statutory notice, but the consequences of it.</p> <p>.5. This action is based upon the statute and must strictly comply with the requirements of the statute, and the statute allows damages for bodily injuries only and their consequences.</p>

'On exceptions by plaintiff. This is an action of tort brought by plaintiff to recover damages for injuries to her intestate by being run over by an automobile driven by the defendant, from which injuries the plaintiff’s intestate subsequently died. Plea, general issue. At the trial, the defendant and his wife were permitted to testify to the circumstances of the accident; to which admission of said testimony, the plaintiff excepted. The case is stated in the opinion.

<p>On motions for new trials.</p> <p>Two cases on insurance policies by the plaintiff, one against the North British Mercantile Insurance Company and the other against the Norwich Union Fire Insurance Society, to recover for potatoes which were destroyed by fire. The plea in both cases was the general issue, with brief statements. The jury returned verdict for plaintiff against the North British Mercantile Insurance Company for $1951.85 and against the Norwich Union Fire Insurance Society for $975.93. The defendant in each case filed a motion for new trial.</p> <p>The case is stated in the opinion.</p>

<p> Attractive Nuisances. Contributory Negligence. Damages. Duty. Negligence. Personal Injuries. Trespasser. Turn-Table Cases. </p> <p>1. Questions of negligence in cases of personal injuries are always to be considered with reference to the particular injury in the case, and not with reference to other injuries which might have been occasioned in some other manner.</p> <p>2. A telephone company set one of its poles so that one of the guy wires was anchored in the ground inside a school yard. The guy wire passing through an eye in the anchor was bent back upon itself and tied. In time the end of the wire became untwisted. The rods or steps in the pole were so placed that the lowest one could not be reached from the ground. A boy climbed upon an adjacent hen house roof, then on to a fence and wood pile, where he could reach the lowest rod, then climbed the pole on the steps and slid down the guy wire receiving injuries.</p> <p>Held'. That the question of the defendant’s negligence must be weighed not with reference to the liability that boys running or playing in the yard might be injured by the guy wires, but with reference to the liability that a boy might be injured in the manner this plaintiff was; and that in this view, the defendant was not negligent.</p> <p>Held, also, that the plaintiff was guilty of contributory negligence.</p>

<p>On motion and exceptions by defendant.</p> <p>This is an action of Forcible Entry and Detainer, made returnable in the Lincoln County Municipal Court and removed therefrom to the Supreme Judicial Court on the claim that the title to the described premises was in the defendant. At the close of the evidence, the presiding Justice directed the jury to return a verdict for the plaintiff. To this ruling, defendant excepted and filed motion for new trial on the ground of newly discovered evidence.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. This is an action on the case against the defendant for taking and carrying away the certificate of enrollment of the Steamer “Herman Reesing.” The defendant demurred both generally and specially to plaintiff’s declaration, and the presiding Justice overruled the demurrer. To this ruling, the defendant excepted. The case is stated in the opinion.

<p> Non-User. Occupation. Payment of Taxes. Possession. Beal Aclion. Seizin. Tenants. Title. </p> <p>In order to gain title by adverse possession, it must be not only open and notorious, but also continuous.</p> <p>The payment of taxes is not possession nor evidence of possession.</p> <p>The Statutes, Tt. S., Chap. 106, Sec. 4, provide that the demandant in a writ of entry need not prove an actual entry under his title, but proof that he is entitled to such an estate in the premises as he claims, and that he has a right of entry therein is sufficient proof of seizin. This right of entry can be defeated by adverse possession only by showing such possession for some requisite period prior to the date of the writ.</p> <p>A title, otherwise good, is not defeated by mere non-user.</p>

On exceptions by plaintiff. This was an action of trespass quare clausum for breaking and entering the dental rooms of plaintiff, situated in Bath, m the County of Sagadahoc. Plea, general issue. At close of testimony of plaintiff, the presiding Justice directed a non-suit. To this ruling, plaintiff excepted. The case is stated in the opinion.

On exceptions by plaintiffs. This is a bill in equity, brought by the plaintiffs as stockholders of the defendant corporation in behalf of themselves and all other stockholders who might wish to join, alleging that through fraud, neglect and gross mismanagement of its officers, the corporation is insolvent, and praying for the appointment of a receiver. At the hearing of this cause, upon motion of defendant, the bill was dismissed for want of jurisdiction.

On exceptions by plaintiff. This is an action on the case for malicious prosecution of the plaintiff by the defendant. The plea was the general-issue, with brief statement alleging settlement. At the April term, 1915, of the Supreme Judicial Court the case was heard, and at the conclusion of the plaintiff’s testimony, the presiding Justice directed a non-suit; to which ruling, the plaintiff excepted. The case is stated in the opinion.

<p>On motions for new trial by defendant.</p> <p>These are two actions on the'case for negligence; one brought by a minor against defendant for loss of his left thumb; the other action is by the father of minor, to recover for loss of his minor son’s services and for expenses incurred for medical treatment of the son. Plea in both cases was the general issue. The jury returned verdicts in both cases for the plaintiffs, and defendant filed general motions-for new trials.</p> <p>The cases are stated in the opinion.</p>

<p> Assessments. Derivative Settlement. Intention. List of Voters. Public Records. Tax. </p> <p>Action to recover from defendant expense of pauper supplies furnished by plaintiff to one Annie Campbell, who, at the time the supplies were furnished, was the wife of one whose pauper settlement was then, as plaintiff claimed, in defendant town.</p> <p>The intention with which one performs an act may be testified to by such party.</p> <p>The selectmen of towns when performing the duties of a registration board are public officers. When so employed, they are in no sense agents of the municipality?</p> <p>Lists of voters made up by the municipal officers, acting as a registration board, are not admissible to show the residence of a pauper, in the absence of proof that the pauper voted at the election in anticipation of which they were made.</p> <p>The treasurer of a town is a public officer and his records are public records. He is not, however, the town’s financial agent.</p> <p>The records or accounts of a town treasurer are required to be kept by law and are evidence of the facts contained therein which it is made his duty by law to enter.</p> <p>Where a public record is in existence, entries therein may be proved by the production of the record, or by a certified copy, or by examined copy, and not otherwise.</p>

<p> Assignment. Beneficiary. Equity. Insurance. Interpleader. Policy. Proofs of Death. </p> <p>The policy in this case, was assigned by Joseph W. LaSante to Norbert LaChance to secure a loan of $2500, as claimed by Helen A. LaSante, the beneficiary under said policy. The assignee, Norbert LaChance, claimed the full amount of the policy.</p> <p> Held: </p> <p>1. That mere inadequacy of price will not render a contract void when both parties are in a condition to form an independent judgment concerning the transaction and intentionally make the contract, and there are no inequitable incidents connected with the transaction.</p> <p>2. Equity does refuse to enforce a contract, even though legal, in which the party seeking the redress has so far overreached his adversary that the contract is unconscionable.</p> <p>3. It is wisely established in the courts of Chancery, to prevent taking surreptitious advantage of the weakness or necessities of another, which knowingly to do is equally against conscience, as to take advantage of his ignorance.</p> <p>4. There may be such an unconseionableness or inadequacy in the bargain as to demonstrate some gross imposition or some undue influence; and in such cases courts of equity ought to interfere, upon the satisfactory ground of fraud.</p> <p>5. Although the actual cases in which a contract or conveyance has been can-celled on account of gross inadequacy merely, without other inequitable incidents, are' very few, yet the doctrine is settled by a consensus of decisions that, even in the absence of all other circumstances, when the inadequacy of price is so gross that it shocks the conscience and furnishes satisfactory and decisive evidence of fraud, it will be a sufficient ground for cancelling a conveyance or contract whether executed or executory.</p>