Volume 115 — Maine Reports

<p>Action of trover to recover the value of fifty tons of fertilizer seized and sold by one of the deputies of the defendant on a judgment recovered against one Carroll B. Burns. Defendant pleaded general issue and filed brief statement alleging that the plaintiff corporation could not recover in this action, because it was a foreign corporation and had not complied with certain statutes of the State of Maine relative to foreign corporations doing business in this State. The evidence disclosed at the trial that the plaintiff company was a foreign corporation and had not complied with the provisions of chapter 152 of the Public Laws of 1911, requiring such corporations to pay certain fees and to perform certain other acts, as provided in said chapter.</p> <p>At close of all the testimony, the defendant requested the court to direct a verdict for defendant, on the ground that the plaintiff corporation, being a foreign corporation, did not comply with the provisions of chapter 152 of the Public Laws of 1911 of the State of Maine. The court thereupon directed the jury to return a verdict for the defendant. To this ruling of the court, the plaintiff filed exceptions.</p> <p>Case stated in opinion.</p>

Action on the case by plaintiffs to recover damages from the defendant for obstructing an alleged right of way around the easterly end of the block, or building, owned by plaintiffs. The right of way claimed by plaintiff was over and across a certain part of a lot belonging to the Free Church, so called, in the town of Union.

Action of assumpsit on an account annexed brought by plaintiff against defendant, as administrator, to recover certain sums alleged to be due plaintiff from defendant’s intestate for room, board, nursing and other items. Defendant pleaded general issue and brief statement alleging payment of certain of the items charged in the writ and pleaded also the statute of limitations and statute of frauds as to certain other items. Verdict for plaintiff in sum of $2196.16.

Action on the case to recover damages for the failure of defendant to perform and carry out the terms of an alleged contract entered into by said plaintiff and defendant. Defendant pleaded general issue. At the close of the testimony, the parties agreeing thereto, the case was reported to the Law Court, upon so much of the evidence as is legally admissible, to render judgment as the law and evidence require. The case is stated in the opinion.

Action of assumpsit containing a quantum meruit count brought by plaintiff, as guardian of her husband, to recover for certain work and labor rendered and performed for defendant. Defendant pleaded the general issue and brief statement. At close of plaintiff’s testimony, counsel for defendant made a motion for a nonsuit, which was granted. Plaintiff filed exceptions. The case is stated in the opinion.

Action of assumpsit under a count for money had and received to recover certain money claimed as due the plaintiffs. Defendant filed general issue and brief statement. Case reported to Law-Court for final determination upon so much of evidence as legally admissible. Case stated in opinion.

Action of debt on probate bond. Plea of general issue and brief statement filed by defendant. Case reported to Law Court upon agreed statement of facts, Law Court to render such decision as law and facts require. Case stated in opinion.

Action on the case for an alleged infringement of the plaintiff’s right to use a common entrance to a certain building owned by defendant. Defendant pleaded general issue and brief statement, alleging that the acts of the defendant were legal and lawful. Evidence on part of the plaintiff tended to show that the right of way, or easement originally granted to plaintiff had been materially changed by defendant. Verdict for plaintiff in the sum of one dollar.

<p> Burden of proving delivery of deeds. Deeds. Evidence. </p> <p>In an action to recover stumpage for granite taken from a quarry and pasture in which plaintiff claimed an undivided two-fifths ownership, held:</p> <p>1. That the evidence failed to show that there ever was any delivery of deeds to the property to the plaintiff, or anyone in her behalf.</p> <p>2. As to the testimony offered to support the question of the delivery of deeds relied upon by plaintiff, the jury, in the opinion of the court, manifestly erred.</p>

Action of assumpsit to recover certain sums of money claimed as due the plaintiff from defendant for constructing a dam in the town of Cornish. Defendant pleaded general issue. Verdict for plaintiff. Defendant filed motion for new trial and also exceptions to exclusion of a certain letter written to a person other than the defendant by attorney for plaintiff. Defendant contended that the letter should be admitted on the ground that it was an admission against the plaintiff.

<p> Intention of testator. Rule as to after-acquired property passing under will. Rule as to finding of fact by sitting Justice. Wills. </p> <p>Appeal from a decree of the sitting Justice in a bill in equity, brought by the trustee under the will of Julia H. W. Mosher, asking for the construction of said will, and especially the sixth clause thereof.</p> <p> Held: </p> <p>1. The statute of this State, R. S., chap. 76, sec. 5, providing that “real estate owned by the testator, the title to which was acquired after the will was executed, will pass by it, when such appears to have been his intention,” does not affect the issue here. This statute was passed to mitigate the severity of the common law rule that prevented after-acquired real property from passing under a devise, on the -theory that a devise of real property was held at common law to be in the nature of a conveyance and to speak imperatively as of the date of its execution. To correct this injustice, statutes have -been enacted, both in England and in most, if not all, the states of -this country, similar to the statute in this State; but that statute is invoked where the question lies between certain property passing by the will or by descent; in other words between testacy and intestacy.</p> <p>2. In one aspect, the testatrix could have had no actual intention whatever as to the after-acquired property at -the time she executed the will. Not then owning it, she could not then have desired that it pass to her children and grandchildren, and then to the church- under item six, nor that it should form a part of the trust fund under item seven. And this absence of specific intention applies to both clauses with equal force. But in a'broader sense the general intent as to after-acquired property may be ascertained in a given case, and must be gleaned from the will itself, viewed in the light of facts at the time of its execution within the knowledge of the testator.</p> <p>3. If the devise is of the whole of a certain class of property, then future acquisitions within that class are embraced as a matter of law; but future acquisitions outside that class are not included.</p> <p>4. The sitting Justice finds as a fact, as stated in the decree, that the after-acquired parcels “are both included in and constitute the property described in the sixth clause of said will as the property commonly known as the Woodford homestead property.” This finding has the force of the verdict of the jury, and must stand unless it is manifestly wrong. A careful study of the testimony justifies the finding and warrants the decree.</p>

Action of assumpsit to recover certain sums of money alleged to have been loaned by plaintiff’s intestate to defendant, her husband. Defendant filed the general issue and brief statement. At the close of the testimony, by agreement of counsel, the case was reported to the Law Court for determination of questions involved, the Law Court to render final judgment in the case. The case is stated in the opinion.

Action of debt to recover a personal property tax assessed by the town of Etna against defendants, non-residents. Defendants pleaded the general issue and brief statement, alleging that the property upon which said tax had 'been assessed was not liable to a personal tax in said town of Etna for said year.

Action of assumpsit to recover the sum of fifteen hundred dollars paid by plaintiff to defendant as part of the purchase price of a certain farm belonging to defendant. Plaintiff claimed that no contract existed because of failure of parties to agree on terms. Certain amendments for plaintiff were filed and allowed. Verdict for plaintiff. Defendant filed general motion for new trial. Exceptions to charge and rulings of presiding Justice were allowed. Case stated in opinion.

Action of debt on bond for conveyance of certain real estate. Plaintiff seeks to recover a certain sum of money named in the bond as liquidated damages. Defendant pleaded the general issue and brief statement, alleging in part that plaintiff was not the owner of the land mentioned therein and had no legal interest therein and was never able to convey said land, or to compel the conveyance of said land to said defendants according to the terms of said bond.

The respondent was indicted, tried and found guilty of the offense of selling three gallons of cider in violation of the statutes of Maine. The presiding Justice charged the jury in part as follows: “The government claims here that this man had this cider on hand and sold it to this man with the intent to sell the same as a beverage, that is, to be drank.

Petition for review of action Smith, Administrator v. Booth Bros. & Hurricane Island Granite Co., reported in Volume 112 Maine Reports on page 297. Petitioner alleges certain errors in the decision of the Law Court. Case stated in opinion.

At conclusion cf testimony, the cause was reported for the determination of the Law Court, and upon so much of the evidence as is legally admissible, the court to render such judgment as the law and evidence require. Decree of court stated in opinion. Appeal not sustained. Decision of court, that the fund in question does not belong to the appellant, but is a part of the estate of Amanda M. Kent, and should be so accounted for. Case stated in opinion.

Petition for mandamus to compel the defendant, as Secretary of State, to place name of plaintiff as a candidate for the office of register of deeds for Knox ccounty, State of Maine, upon the official primary ballot to be voted upon at the primary election preceding the general election to be held on the second Monday of September, 1916.

Action of debt on replevin bond. Defendants brought an action of replevin against the present plaintiff, and on the writ issued in said action took possession of ninety cords of wood in Thorndike, in the county of Waldo, claiming title thereto. The writ was made returnable to the superior court in Kennebec county, accompanied by a sufficient bond.

<p>Action on the case for an alleged assault and battery committed by defendant, tried at nisi prius, Penobscot county. Verdict was rendered for plaintiff in the sum of one dollar. Plaintiff alleged in his writ that he was a resident of the City of Bangor, county of Penobscot, State of Maine. His attorney also was a resident of the city of Bangor. After verdict, plaintiff made an affidavit setting forth, that for the purposes of this trial, he had traveled from, and intended to immediately return to, New Haven, Connecticut, where he was employed temporarily, and claimed costs based on that mileage. In taxing the costs, the clerk of court allowed mileage to and from the line of the State, which finding was affirmed by the Justice presiding. Defendant filed exceptions to this ruling.</p> <p>Case stated in opinion.</p>

<p>Action of assumpsit with trustee process for the recovery of certain sums of money on account of goods sold and delivered principal defendant. Principal defendant was defaulted, and question was raised as to what sum should be charged the trustee under the disclosure as filed. Under the ruling of the presiding Justice, the trustee was charged with a certain amount, and exceptions were filed by the trustee to this ruling.</p> <p>Case stated in opinion.</p>

<p> Effect of decree of Supreme Court of Probate dismissing an appeal front, Probate Court. Probate Appeal. </p> <p>Where, upon appeal by an executor of an insolvent estate from the decree of the Judge of probate disallowing the private claim of such executor, the supreme court of probate decrees that the appeal be sustained, the decree below reversed and the claim ordered for hearing before the Judge of probate, and, the Judge of probate having thereupon, without hearing the parties, entered a decree allowing such claim, the creditors of the deceased testate appeal from such decree:</p> <p> Held: </p> <p>1. That the reversal of the prior decree of the Judge of probate was to annul the decree and no more.</p> <p>2. That it was the duty of the probate court to hear the parties.</p> <p>3. That under R. S., Chap. 65, sec. 33, the supreme court of probate may combine two of the acts thereby authorized, provided they be not inconsistent.</p> <p>4. That the exceptions to the decree of the supreme court of probate dismissing the creditors’ appeal must be sustained and the case remanded to the supreme court of probate for further proceedings in accordance with the opinion.</p>

This proceeding is by libel brought under provisions of section 15, chapter 62, Revised Statutes of Maine, asking for the annulment of a marriage entered into by petitioner and one Alvarado Moseley, deceased. The petitioner alleged that her marriage to said Moseley was invalid for the resason that said Moseley, at the time of entering into said marriage with the petitioner, had a wife then living from whom he had not been legally divorced.

<p> Duties of towns and municipalities towards trespassers upon the highway. Effect of Statute prohibiting automobiles being driven on highways without proper license and registration. Effect of Statute where persons are not prohibited, but penalized for using highways without proper license and registration. Notice of defect in highways. </p> <p>1. The Legislature has the right to limit or control the use of the highways of 'the State whenever necessary to provide for and promote the safety, peace, health, and general welfare of the people.</p> <p>2. Where plaintiff was injured by reason of a defective bridge in defendant town, while operating an automobile registered under the license of a dealer from whom he had recently purchased the machine, plaintiff not having been provided with necessary license and registration, under public laws of 1911, chapter 162,</p> <p> Held: </p> <p>His rights upon the highway, were only the rights of a 'trespasser upon the lands of another and the defendant town owed him no duty to keep the highway safe and convenient for him to travel on.</p>

<p>Interpretation of Chapter 235, Public Laws of Maine, 1915. Necessary proof in criminal charge of obstructing officer. Jurisdiction of ,State Court. Words necessary to make violation of Statute a criminal offense.</p> <p>Two complaints and warrants under section eleven of chapter 235 of the Public Laws of 1915, “an act to provide for the granting of lobster licenses and giving state wide jurisdiction to wardens,” brought to this court on an agreed statement of facts from the Supreme Judicial Court for Lincoln county.</p> <p>1. In- the complaint charging the respondent, who had been duly licensed by the Commissioner of Sea and Shore Fisheries, with obstructing a warden in the discharge of his official duties by refusing to stop his vessel in order to allow the warden to come on board for the purpose of inspection, it is held, that section eleven does not make this act on the part of the licensee a criminal offense'. It may warrant the revocation of his license and may work a forfeiture of' his bond, but does not constitute a crime.</p> <p>2. In', the complaint charging the respondent with refusing, while outside the waters of this State, to return to waters under the jurisdiction of the State when ordered so to do by the warden, it is held, that as the act complained of took place, not only beyond the limits of the County of Lincoln, but beyond the borders of the State, the court in this State has no jurisdiction. It is beyond the power of the legislature to make such an extra-jurisdictional act criminal. The legislative power, like the judicial, ceases at the State line.</p>

<p> Judge of Municipal Court acting as attorney in cases over which his Court has jurisdiction. Jurisdiction of Municipal Court. </p> <p>Under section 4 of chapter 219, Private and Special Laws of 1903, the Eastport Municipal Court is given “original jurisdiction, concurrent with the Supreme Judicial Court, of all civil actions in which the debt or damage demanded, exclusive of costs, does not exceed one hundred dollars;” section 1 provides that the judge “shall not act as attorney or counsel in any action, matter or thing within the jurisdiction of said court.”</p> <p>In an action of assumpsit, brought in the Supreme Judicial Court to recover the sum of $60.82, the ad damnum stated in the writ was $125. The defendant filed a plea in abatement, alleging that the attorney who instituted the suit and brought and entered the writ was, at the time, the Judge of the Eastport Municipal Court. A demurrer to this plea was filed by the plaintiff, but was overruled by the presiding Justice, and the writ was ordered to be quashed. Upon plaintiff’s exceptions to this ruling,</p> <p> Held: </p> <p>1. That this action was within the concurrent jurisdiction of the Eastport Municipal Court and the Supreme Judicial Court.</p> <p>2. That the Judge of the Municipal Court was therefore expressly prohibited from bringing and maintaining the action.</p> <p>3. That the writ was properly abated.</p>

<p>Proceedings under chapter 166 of Private and Special Laws of Maine, 1915.</p> <p>Case stated in opinion.</p>

<p> Dedication of land to public use. Presumptions as to permissive use of way. Private and Public ways. </p> <p>Action of trespass quare clausum to recover damages for injury to the plaintiff’s land in the town of Hancock.</p> <p> Held: </p> <p>1. The jury found that the road in question was a public way, and in so finding erred. The instances of use of the road from all the witnesses during its history are confined to individuals having private interests in adjoining lots, and by sportsmen, and such use was not made by any of these as travellers as of right, but privately, and the contrary not appearing, presumably by permission. There is no evidence that ordinary travel ever passed over the road from one end to the other, or that it was ever dedicated to public uses, or ithat any owner of the land ever assented ta its use for public purposes, as a public way.</p> <p>2. Dedication exists only when so intended by the party, and permissible use does not prove it.</p> <p>3. Where there has been a cessation for twenty years, unexplained, to use a way originally acquired by use, it is regarded as a presumption, either that the former presumptive right has been extinguished in favor of some adverse right, or, when no such adverse right appears, that the former has been surrendered, or that it never existed.</p>

<p>Action of assumpsit on account annexed to recover for work and labor done and materials furnished. Writ entered in Supreme Judicial Court, York county, Maine, May term, 1915. Defendant filed plea of general issue and at the same term the matter was sent to a referee and a writ of reference duly issued. After hearing both parties, referee reported a certain sum due plaintiff, but in the same finding disallowed the plaintiff or his witnesses any fees or costs for the hearing. Objections were filed by plaintiff to said report, and upon an agreed statement of facts, case reported to Law Court for determination on the question of costs.</p> <p>Case stated in opinion.</p>

<p> Affidavits under Revised Statutes, Chapter 114, Section z. Writs. </p> <p>Action of assumpsit with capias writ, Casavant & Cloutier Company being named as the plaintiff or creditor. The oath or affidavit which the Statute, R. S., ch. 114, sect. 8, required as a prerequisite to an arrest upon a writ was made by G. A. Cloutier, who described himself in the affidavit as “clerk of the Casavant & Cloutier Company, and its agent and manager.” The Statute provides that such oath or affidavit may be made by an agent or attorney of the creditor.</p> <p>Upon a motion to dismiss for want of sufficient affidavit,</p> <p> Held: </p> <p>1. That on a motion to dismiss, the statements in the affidavit must be taken to be true.</p> <p>2. That it sufficiently appears on the face of the process that the Casavant & Cloutier Company, mentioned in the affidavit, is the creditor company named in the writ.</p>

<p>Action on the case for the alleged negligence of defendant. Defendant pleaded general issue and brief statement, alleging that the plaintiff was not in the exercise of due care at the time when the injuries complained of were received. Verdict for plaintiff in sum of sixty-five hundred dollars. Defendant filed motion for new trial.</p> <p>Case stated in opinion.</p>

<p>Indictment returned at Superior Court, Cumberland county for violation of chapter 32, Public Laws of Maine, 1915, said statute relating to the methods of payment to the producers of milk or cream by any firm or person purchasing same for the purposes of re-selling or manufacturing the milk or cream thus purchased. P.espondent filed demurrer to said indictment. Indictment adjudged</p> <p>good; to which ruling, respondent filed exceptions.</p> <p>Case stated in opinion.</p>

<p>Action on the case for alleged deceit, fraud and misrepresentation in sale of farm by defendant to plaintiff. Plaintiff alleged that defendant, or his agent, made false representations relative to the number of acres contained in the farm sold to plaintiff. Defendant pleaded general issue. Verdict for plaintiff in sum of two hundred and fifty dollars. Defendant filed motion for new trial, and also exceptions to refusal of court to give certain requested instructions and rulings.</p> <p>Case stated in opinion.</p>

<p>Action on the case to recover damages suffered by plaintiff on account of condition of defendant’s dock or landing. Verdict for plaintiff. Defendant filed motion for new trial and exceptions to certain rulings and instructions of presiding Justice. Motion for new trial waived.</p> <p>Case stated in opinion.</p>

<p> Common Law Liability of innkeepers. How effected by Statute. Failure to comply with Statute as to posting notices. General rules of liability of innkeepers. </p> <p>Section 1 of chapter 101 of the Laws of 1913 provides, among other things, that no innkeeper who has a sufficient safe or vault and who. keeps a copy of this section printed in distinct type constantly and conspicuously posted in not less than ten conspicuous places in all in his inn, shall be liable for ¡the loss, by a guest, of jewelry, personal ornaments, and other specified classes of property, unless the guest has offered to deliver the same to the innkeeper for custody in the safe, and the innkeeper has refused or omitted to receive it. It also provides that an innkeeper shall not be liable for the value of property in excess of three hundred dollars, whether received, or not. In an action by a guest against an innkeeper for .the value of scarf pins, cuff buttons and studs stolen from the guest’s room, it appearing that the innkeeper had not posted any copies of section 1, It is held:—</p> <p>1. Chapter 101 of the Laws of 1913 was intended as a substitute for all existing statutory provisions governing the liability of innkeepers .to their guests, and repealed sections 6, 7 and 8 of chapter 29 of the Revised Statutes.</p> <p>2. An innkeeper, who fails to have copies of section 1 of chapter iox of the Laws of 1913 posted as provided in the section, is liable as at common law for the loss of jewelry, personal ornamen'ts, and other property specified in the section.</p> <p>3. At common law an innkeeper is an insurer of the property of his guest, and is liable for the loss of it, when placed within the inn, except when caused by the act of God, the public enemy, or the neglect or fault of the owner or his servants.</p> <p>4. Though an innkeeper fails to^ post copies of section 1, chapter 101 of the Laws of 1913, as provided by the section, his liability for articles embraced in section is limited by statute to three hundred dollars.</p> <p>5. The articles lost by the plaintiff were, most of them jewelry, and all • of them personal ornaments. They are within the provisions of section 1 of the Act, -and not within section 4, which fixes the liability of an innkeeper for property “other than that described in the preceding sections” as that of a depository for hire.</p>

<p>Action on the case for recovery of sum due under an insurance policy. Defendant pleaded general issue and brief statement alleging that the policy, upon which suit was brought, had been can-celled and surrendered by mutual agreement long before the fire, which caused the loss. At close of testimony, case referred to Law Court for determination, upon so much of evidence as legally admissible.</p> <p>Case stated in opinion.</p>

<p> Arrest of judgment. Continuando. Evidence supporting indictment. Forms of indictments. Indictment as common seller of intoxicating liquors. Necessary allegations. </p> <p>The respondent was found guilty by the jury under an indictment charging him as a common seller of intoxicating liquors on the first day of January, 1915, “and continually thereafter up to the day of the finding of this indictment.” On exceptions to the overruling of his motion in arrest of judgment, and to the refusal to give certain instructions,</p> <p> Held: </p> <p>1. That the averment as to the time when the offence was committed is sufficient in law to constitute a good indictment.</p> <p>2. That it is not imperative that the Statute form of indictment should be used.</p> <p>3. That the offence of being a common seller- of intoxicating liquors may be established by the acts of the party done on a single day.</p> <p>4. When, as in this case, the offence is alleged to- have been committed on á particular day “and continually thereafter up to the day of the finding of this indictment” such allegation may be supported by proof of the- • .commission of the offence- on the particular day named or during any part of the period covered by the continuando.</p> <p>5. There was no error in the refusal to instruct the jury that the government was bound to prove that the respondent was a common seller “without reasonable cessation, unceasingly and continuously” during the entire 'period named, and that -the offence charged in the indictment “should be 'construed to mean a sale of intoxicating liquors each and every day between the dates set forth in the indictment.”</p>

<p>Respondent indicted for violation of provisions of chapter 125, section 8, Revised Statutes of Maine. Respondent found guilty. Motion for new trial filed.</p> <p>Case stated in opinion.</p>

<p>Action of assumpsit to recover wages due plaintiffs, tried at March term, 1915, Superior Court, Cumberland county. Actions were brought under and by virtue of an assignment claiming to have been given by real plaintiffs. At trial, signatures of assignors were denied. Verdict for defendant. Plaintiff filed motion for new trial. Hearing upon same was had, but no docket entry was made of the finding of the court and no record made until February term, 1916, when the docket entry showed that motion for new trial had been granted. Defendant filed exceptions to the decree or order of the presiding Justice.</p> <p>Case stated in opinion.</p>

<p>Action on the case alleging negligence on the part of the defendant company in operating its cars. Verdict for plaintiff. Defendant filed motion for new trial; also exceptions to certain rulings of presiding Justice, and to refusal of court to grant certain requested instructions.</p> <p>Case stated in opinion.</p>

<p>Action on the case against defendant company for injuries received while in the employ of the defendant company as brakeman. Plaintiff filed motion for the allowance of amendment to his writ and the amendment was allowed. Defendant company excepted to the allowance of the amendment and exceptions were allowed. Defendant company pleaded general issue. Verdict for plaintiff.</p> <p>Case stated in opinion.</p>

<p>Respondent indicted for polygamy under chapter 125, section 4, Revised Statutes. Verdict of guilty. Motion for new trial filed by respondent.</p> <p>Case stated in opinion.</p>

<p> Duty of common carriers to shippers of freight. What is reasonable care on part of common carriers. </p> <p>1. It is the duty of a common carrier to use reasonable care and diligence in the transportation of freight given to it to carry.</p> <p>2. What is reasonable diligence by a railroad company in the transportation of freight depends upon circumstances, and one of the circumstances in transportation is the perishable character of the freight, or otherwise.</p> <p>3. When a railroad company accepts perishable property, such as potatoes, to be shipped over the line at a season of the year, when in the course of nature severely cold weather is to be apprehended, it is bound to use great diligence in forwarding the property.</p> <p>4. A shipper, even of perishable goods, cannot require his freight to be started until the arrival of a freight train.</p> <p>5. But when there were accidents and delays, avoidable or not, and when the freight has lost its regular schedule, and, being perishable, is in imminent danger of being lost, reasonable care may require a carrier to do special service, and expedite the carriage, without waiting for a regular train.</p> <p>6. When a carrier permitted a car of potatoes to stand upon a siding, in freezing weather, from 36 to 40 hours, without apparent necessity, or apparent reason, except the waiting for the arrival of a regularly scheduled freight train which might take it along, the jury was warranted in finding that it was guilty of negligence.</p>

<p>Action of trespass quare clausum. Defendant pleaded general issue and brief statement claiming an easement by prescription. Verdict for defendant. Plaintiff filed exceptions to refusal of court to give certain requested instructions, and also motion for new trial.</p> <p>Case stated in opinion.</p>

<p>Bill in equity asking for the granting of a permanent injunction. Defendant company threatened to discontinue its water service to plaintiff town. Defendant filed demurrer .and answer to plaintiff’s bill. Case reported to Law Court to render such judgment as the law and evidence require.'</p> <p>Case stated in opinion.</p>

<p>Action on the case to recover certain sums of money paid by plaintiff to defendant, alleging that defendant did maliciously threaten to prosecute the plaintiff by accusing him of having committed a certain crime or felony. Defendant pleaded general issue and brief statement setting forth that if any money was paid to defendant by plaintiff, he, the defendant, was acting solely as the agent of the plaintiff and employed by the plaintiff for that purpose. Verdict for plaintiff. Defendant filed motion for new trial.</p> <p>Case stated in opinion.</p>

<p>Certainty of allegations in indictments for perjury. Indictment for perjury. Necessity of allegation as to time and place where crime was committed. Statutory requirements, Chapter 123, section 1, Revised Statutes.</p> <p>1. An indictment for perjury, which set forth testimony given by the accused upon different subjects, referring to different papers and persons, some of which must have been true, without specifying the false testimony relied upon by the State with that reasonable degree of fullness, certainty and precision requisite to enable the accused to meet the exact charge against him, is bad for uncertainty.</p> <p>2 — Counts in an indictment for perjury containing the allegation “do further present that .... of Northport, in the county of Waldo aforesaid, on the 7th day of January, A. D. 1915, appeared as a witness in a proceeding . . . then and there being heard before a tribunal of competent jurisdiction, and committed the crime of perjury by testifying as follows,” were defective, as not containing any allegation of the place where the offense was committed, the words “then and there” not'referring to the place where the crime is alleged to have been committed, since when a single fact is alleged with time and place, the words “then, and there” subsequently used as to the occurrence' of another fact, as the crime, refer to the same point of tima and necessarily import that the two were coexistent. v</p>

Writ of entry. Plea of general issue filed together with brief statement claiming title to part of premises demanded in writ and disclaiming as to another certain part beyond a given line. Verdict for defendant. Plaintiff filed motion for new trial and exceptions to refusal of presiding Justice to give certain requested instructions. Case stated in opinion.

Bill in equity praying for specific performance of an alleged oral contract for the sale of real estate. Defendants filed demurrers to bill and also filed answers, setting forth in substance that there was not a sufficient legal contract which was enforceable. After hearing, presiding Justice decreed that conveyance be made as prayed for in bill. Defendants appealed to Law Court. Case stated in opinion.

Action on the case brought under chapter 114, section 77, Revised Statutes of Maine, to recover damages for aiding in a conveyance in fraud of creditors. Defendant filed general issue and briei statement. Verdict for defendant. Plaintiff filed motion for new trial and also exceptions to certain instructions of court. Case stated in opinion.

Information in the nature of quo warranto filed by attorney general of State of Maine against C. Wallace Harmon requesting said Harmon to prove hi’s right to hold the office of Judge of Saco municipal court. Bill, answer- and replication filed. After hearing, cause reported to Law Court upon so much of the evidence as legally admissible. Law Court to render final judgment thereon. Case stated in opinion.

Action of debt to recover of the defendant certain money as a penalty for failure to comply with a certain ordinance of the city of Saco relating to public health. Defendant pleaded general issue. At conclusion of testimony, case repotted to Law Court ’upon so much of evidence as legally admissible, Law Court to render such judgment as legal rights of the parties require. ’’Case stated in opinion.

Action on the case for injuries received by plaintiff through the alleged negligence on the part of the defendant in operating an automobile. Hearing in Superior Court, Cumberland county. Defendant pleaded general issue. Verdict for plaintiff. Defendant filed motion for new trial. Case stated in opinion.

Action of assumpsit against the defendant towns on an account annexed. Defendants each filed demurrer. Demurrers sustained. Plaintiff filed exceptions to ruling of court sustaining demurrers. Case stated in opinion.

Action of assumpsit on account annexed to recover for goods sold and delivered to defendant company. Attachment was made of defendant’s stock in trade and receiptor given to sheriff. Within thirty days of date of writ and attachment, proceedings were instituted under Public Laws, 1905, chapter 85, as amended by Public Laws, 1907, chapter 137. Under these proceedings, a- decree was entered appointing a receiver for defendant corporation.

<p> Part payment as renewing outlawed account. Burden of proof as to such alleged payments. , </p> <p>In an action of assumpsit, brought by the plaintiff against the administrator of his brother’s estate to recover $1350., the balance due on an alleged loan made nearly thirty years ago, it is</p> <p> Held; </p> <p>1. That, although the evidence is weak and rather unsatisfactory, there may be sufficient to substantiate the plaintiff’s claim that the loan was made, fourteen hundred dollars in 1886, and five hundred dollars in 1887.</p> <p>2. That at the expiration of six years from the date of the original loan the Statute of Limitations intervened and continued to -be a bar to the enforcement of the claim for fifteen years longer, before any alleged payment was made.</p> <p>3. That the intentional part payment of debt constitutes an acknowledgment of its existence and a renewal of its obligation, however old the debt may be.</p> <p>4. That the evidence fails to convince the Court that the intestate ever intentionally made partial payments on this outlawed claim or in any way acknowledged its existence or renewed the obligation. The facts and circumstances negative rather than confirm the plaintiff’s contention.</p>

<p> Fellow-servant doctrine. Interpretation of Public Laws of Maine, 1909, Chapter 256, section 2 as bearing on the question of negligence. Liability where one performs work or labor outside of regular scope of duties and is injured thereby. Proof necessary under allegation that “servant was incompetent." What is meant by "incompetence.” </p> <p>The plaintiff, a girl fourteen years of age, was injured while in the defendant’s employ. She was working at the rear end of a machine used for the manufacture of skewer sticks. Her contention is that the machine clogged, that one La Pointe, who operated and controlled the machine, stopped it; that she was clearing out the knives attached to the central set of cylinders when La Pointe, without giving her any warning, started the machine, and her hand was caught and severed at the wrist. Upon defendant’s motion to set aside a verdict rendered in favor of the plaintiff, it is</p> <p> Held; </p> <p>t. It was no part of the plaintiff’s duty to remove the clog. That was a part of the operation of the machine, and was the sole duty of the operator. • ■</p> <p>2. The plaintiff was performing an uncalled for and inexcusable act, one entirely disconnected from the service for which she was employed and which she’was accustomed to perform.</p> <p>3. Even assuming the plaintiff’s contention as to the facts to be true, the fellow servant rule precludes recovery unless the defendant could be proven guilty of negligence either in employing La Pointe or in retaining him in its employ.</p> <p>4. In order to maintain this proposition, the plaintiff must prove first, that La Pointe was in fact incompetent, and second, that the defendant knew that fact or, by the 'exercise of reasonable diligence, should have known it.</p> <p>5. Although the original employment of La Pointe when only thirteen years of age was in contravention of Pub. Laws, 1909, chapter 257, section 2, yet it did not create any evidence of negligence here, because at the time of the accident he had attained the legal age, and the question of competency must relate to the time of the injury and not to the time when the employe first assumed his duties.</p> <p>6. Incompetence in the law of negligence means want of ability suitable to the task, either as regards natural qualities or experience, or deficiency of disposition to use one’s natural abilities and experience properly.</p> <p>7. That even if La Pointe had been in some way negligent at the time of the injury, his incompetency cannot be established by that single act. It is admissible evidence, but not of itself sufficient.</p> <p>8. Upon the question of actual incompetence, the evidence is negligible, and the verdict was manifestly wrong.</p>

Action of assumpsit under a count for money had and received to recover of defendant certain sums of money paid by plaintiff to defendant. Plaintiff alleged that payments so made to said defendant were under duress and on account of illegal and unjust advantage taken by defendant of plaintiff’s condition. Defendant pleaded general issue.

Complaint and warrant for violation of what is known as the meat code or ordinance of the city of Waterville, Maine. Respondent adjudged guilty and fined by Judge of municipal court. Appeal entered to Superior Court, Kennebec county, where demurrer was filed by respondent. Demurrer overruled by pre- siding Justice. Respondent filed exceptions. Case stated in opinion.

<p>Action on the case to recover for merchandise sold to defendant1-» testate. Case entered in Supreme Judicial Court, April term, 1909, Knox county; continued from term to term until April term, 1912, at which term a referee was appointed. Case was not heard by referee and at April term, 1914, the following docket entry was made: “To be heard before the September term, 1914, or dismissed.” At September term, 1915, defendant filed motion asking that case be dismissed in accordance with entry upon the docket. Case dismissed by presiding Justice, to which ruling plaintiff filed exceptions.</p> <p>Case stated in opinion.</p>

Action of debt on probate bond. Defendant pleaded general issue and brief statement. At close of testimony, questions of law having arisen, case was reported to Law Court. Judgment for plaintiff for the full amount of the bond with interest on that sum from the date of the writ, July 16, 1915, together with costs. Case stated in opinion.

Libel for divorce entered at March term, 1916, Superior Court, Cumberland county. Hearing was held on libel, April term, 1916, on the fourth day of term. The presiding Justice granted a decree of divorce. On the seventeenth day of the same term the presiding Justice vacated the decree granting the divorce. At May,term, 1916, motion filed asking that the court vacate its order revoking the decree of divorce.

Action to recover sick benefits for a period of thirteen weeks at five dollars per week. Case entered at Superior Court, Kennebec county, and reported to Law Court upon agreed statement of facts. The case is stated in the opinion.

<p>Action on the case to recover damages for alleged failure of defendant to purchase and convey to plaintiff certain water rights in land adjoining property of plaintiff, which was purchased from defendant’s testate. Defendant pleaded the general issue and also brief statement setting up the statute of frauds. At the conclusion of the testimony, the case was reported to the Law Court with certain stipulations.</p> <p>The case is stated in the opinion.</p>

Petition in vacation to Justice of Supreme Court asking leave tn bring an action for money had and received against defendant as administrator. At return term, defendant filed motion to dismiss the petition. After hearing, the Justice presiding overruled the motion to dismiss, to which ruling defendant filed exceptions. Case stated in opinion.

Action on the case brought by plaintiff to recover damages for alienation of the affections of her husband, defendant being his mother. Defendant pleaded general issue. Verdict for plaintiff in the sum of five hundred dollars. Defendant filed motion for new trial. Case stated in opinion.

Information in the nature of quo warranto to determine the title to the office of a member of the board of dental examiners of the State of Maine. Bill answer and replication filed and upon certain agreed stipulations. case was reported to Law Court by agreement of parties. Case stated in opinion.

Action of assumpsit against the defendant, as executrix of the ■estate of Edward E. Chase. Defendant filed demurrer to writ, which was joined by plaintiff. Demurrer sustained by Justice presiding. Thereupon plaintiff filed motion to amend writ and declaration, which motion was denied by the court, to which ruling plaintiff filed exceptions. Case stated in opinion.

Action of assumpsit to recover for the value of certain labor and materials furnished defendant town. The plaintiff, in his writ, seeks to recover for certain labor and materials which it is admitted were part of a claim or account in another action brought by plaintiff against defendant town, said action or suit being reported in volume no, page 500, in which case the claim that is now made was disallowed by the court. Defendant pleaded the general issue and brief statement.

Action of assumpsit. Verdict for plaintiff. After verdict, knowledge came to defendant that- certain statements had been made by a relative of the plaintiff to, or in the presence of, a juror who was then sitting on said case, to the effect that the defendant and his witnesses were not telling the truth. After verdict, defendant filed a special motion for new trial, and hearing was held before the presiding Justice.

Action of debt on a poor debtor’s six months bond executed in accordance with' section 49, chapter 114, Revised Statutes of Maine. Defendant pleaded general issue and brief statement, setting forth that he had complied with one of the conditions of the bond. At conclusion of the evidence, presiding Justice directed a verdict for the defendant, to which ruling and order, as well as to other rulings, plaintiff filed exceptions. Case stated in opinion.

Action on the case to recover damages for the death of the plaintiff’s intestate, alleged to have been caused through the negligence of the defendant. Defendant pleaded general issue and brief statement setting forth that at the time the plaintiff’s intestate met his death, he' was not in the exercise of due care.

Action on the case to recover for personal injuries. Defendant pleaded general issue. Verdict for plaintiff in the sum of twelve thousand dollars. Defendant filed motion for new trial. Case stated in opinion.

Respondent was indicted, tried and found guilty of violation of Public Laws of Maine, 1913, chapter 5. After verdict, respondent filed motion for new trial, which was overruled by the presiding Justice, and the record shows that the respondent’s counsel “filed exceptions” to the ruling of the court. Appeal not taken according to statute, case dismissed. Case stated in opinion.

Action on the case to recover damages for personal injuries. Defendant pleaded general issue. After the evidence on the question of liability was offered, court directed a nonsuit; to which ruling plaintiff filed exceptions. Case stated in opinion.

At the January term, Knox county, Supreme Court, several actions between the same parties were pending on the docket, to which appearance had been made. The last day of the term a writ of entry and a bill in equity were entered, and the defendant’s appearance by counsel was entered on the docket, defendant’s attorney claiming that such entry was without authority. At same time a docket entry was made, referring all matters between these parties to Justice Savage as referee.

Action of assumpsit, with account annexed and money counts, to recover the purchase price of twenty-five tons of fertilizer sold and delivered to defendant. Defendant pleaded general issue and brief statement, setting forth that the plaintiff was a foreign corporation and had not complied with the laws of the State of Maine relative to foreign corporations doing business in this State. Case reported to Law Court upon agreed statement for final determination.

<p>Action on the case to recover damages for certain injuries sustained through the alleged negligence of the defendant company. Defendant pleaded ¡general issue, and also filed specifications of defense to be used under the plea of general issue. Verdict for plaintiff in the sum of thirty-three hundred and seventy dollars. Defendant filed motion for new trial.</p> <p>Case stated in opinion.</p>

<p> Actions on account annexed and accounts stated. Rule of law as to presumption when evidence shows that a letter properly addressed has been mailed. Rule of law where debtor has received certain letters, or statements, showing a balance owed by him. </p> <p>1. Where the plaintiff declares in account annexed for a balance due according to bill rendered on account of groceries and other supplies furnished defendant by plaintiff from goods in his store and defendant, having neither demurred nor asked a bill of particulars, pleads the general issue which is joined, the existence of the balance declared upon is the only issue raised.</p> <p>2. Testimony of plaintiff and his common law assignee that statements of account were mailed to all debtors of plaintiff at or about a certain date and the fact that a few days later defendant delivered to the assignee goods, which were included in the account against defendant, justifies the finding as matter of fact that the statement was mailed by the assignee to defendant and received by the latter.</p> <p>3. The original books of account having been destroyed by fire, a book made by the assignee containing balances of all of the accounts of plaintiff is admissible to show the amount of the balance of the account of defendant at the time of the assignment.</p> <p>4. The defendant having made no reply to the account mailed to him by the assignee, his silence not being satisfactorily explained, is under the circumstances of this case an admission that the balance shown by the statement is correct.</p>

<p>Action of debt by the collector of taxes of the town of Mexico, brought under section 28, chapter 10 of the Revised Statutes of Maine. Defendant pleaded general issue, and case was reported to Law Court upon an agreed statement of facts.</p> <p>Case stated in opinion.</p>

<p> Duty of Court in regard to rendering opinion upon past assignments or transfers. Revised Statutes, Chapter 79, Section 6, Paragraph VIII., interpreted. </p> <p>A testator died in Boston, Mass., on May 2, 1889, and his will was duly probated in Suffolk County, Mass., on May 27, 1889. Several trusts were created. The executors and trustees named therein were duly appointed, and on- January 23, 1892, conveyed by deed to Frank B. Wilder as trustee for the purposes named therein certain real estate situated in Searsmont, Waldo County, Maine. William L. Wilder, the beneficiary for life in this trust deed, died on May 4, 19x5, leaving a second wife and an adopted son. In September, 1915, one of the contingent beneficiaries in the trust deed deeded to another contingent beneficiary his interest in the real estate. On October 12, 1915, ancillary administration was taken out on the original will in Waldo County. Charles W. Wilder, Jr., and Frank B. Wilder were appointed executors. Six days later Charles W. Wilder, Jr., died. Upon a bill in equity brought by the surviving executor and the widow and children of Charles W. Wilder, the contingent beneficiary under the trust deed, against the widow and adopted son of the life beneficiary thereunder, asking the court to “construe and interpret the provisions of said will and.said trust deed'together and ascertain and determine the effect of said deed from said executors and trustees — and the respective rights of the complainants and the defendants and each of them in the premises’’ it is</p> <p> Held; </p> <p>1. That R. S. chap. 79, sec. 6, par. VIII., under which this proceeding is brought, relates solely to the construction of wills where a valid doubt is entertained as to their meaning, and does not empower the court to construe a trust deed.</p> <p>2. That the rights of the parties here have become fixed under the conveyances already given and this court must decline in this form of proceeding to express any opinion as to the validity of past assignments and transfers. If a legal cause of action between the interested parties has already arisen through transactions subsequent to the will, they must litigate their claims through the proper legal channel. The remedy sought here is not appropriate.</p>

<p> Adverse possession. Necessary proof in action of trespass quare clausum. Occupation of property by licensee. Rights acquired in property by licensee, or person occupying, under oral permission. Rights of parties to remove personal property placed on land of another with oral permission, or license. </p> <p>1. Occupation of a licensee cannot be adverse to the true owner while he is claiming to occupy it by virtue of the license, and as long as the licensee continues to occupy the premises, or exercises the license by claiming it to be a license or oral permission, said occupation gives no interest in the land and it cannot be considered adverse to the true owner, because it is with the consent of the true owner, and the license is a complete answer and defense made to a claim of adverse possession set up by the licensee, unless the licensee has occupied or used the premises as his own openly, exclusively, and adversely for the period of twenty years, claiming to be the true owner thereof.</p> <p>2. A possession which gives title must be adverse for all the requisite time and so notorious that the owner may be presumed to have knowledge that it is adverse.</p> <p>3. This being an action of quare clausum for entering the close of the plaintiff and entering a building thereon and the carrying away of a small amount of personal property, the gist of the action is the breaking and entering. The other allegations are simply laid as aggravations of the trespass. It is, therefore, incumbent upon the plaintiff to prove such unlawful entry, but the defendant is not liable for breaking and entering because he had the right to revoke the license which gave him the right to enter, and in this form of action, if the breaking and entering is not made out, the action fails.</p>

<p>Bill in equity brought by executor of, and legatee under, the will of Sarah E. Albee in which he asks the court to construe the will and also to set aside and declare void, not only his own mortgage deeds, but also another mortgage made to one of the defendants by the remainderman under said will. Two of the defendants filed demurrer and the other defendant, son of the plaintiff, did not file any plea, answer or demurrer. The court sustained the demurrers of the defendants, and plaintiff filed exceptions.</p> <p>Case stated in opinion.</p>

<p>Action of assumpsit to recover damages for an alleged breach of contract to marry the plaintiff. Defendant filed a plea of general issue and also brief statement. The jury were allowed to assess the damages, and case was reported to Law Court upon certain stipulations which are set forth in the opinion.</p> <p>Case stated in opinion.</p>

<p> Bill of Interpleader. Burden of proof on appeal to reverse finding of fact of single Justice sitting in Equity. Duty of guardian to ascertain and inquire into the estate of his ward. General power of Court of Equity. Right of Guardians to sell real estate of ward when there was sufficient personal estate. Rule of law as to findings of fact of Single Justice sitting in Equity. Rule of law as to funds received from Ihe sale of lands which were impressed with trust. Warranty deeds impressed with trust. </p> <p>1. The findings of a single Justice in equity procedure, upon questions of fact necessarily involved, are not to be reversed on appeal unless clearly wrong.</p> <p>2. The evidence does not show that the findings of the single Justice are erroneous, but, on the other hand, that they are well supported by the proof.</p> <p>3. Where real estate is conveyed upon the faith of the promise of the grantee to make a will devising it to the grantor, or his children, in the event of his death, and it would be a fraud on the part of the grantee to refuse to perform her promise, equity declares that promise is a trust binding on her conscience, and, therefore, that she took and held the property impressed with that trust.</p> <p>4. The will which the grantee executed after the death of the grantor, devising the real estate to his children, but with the proviso that both the property itself and the income therefrom should be held by a trustee until the devisees should attain their legal majority, was not a compliance with the condition which the grantee agreed to perform when the property was conveyed to her.</p> <p>5. Moreover, the sale of the property in the lifetime of the grantee rendered inoperative her devise of it to the children of the grantor.</p> <p>6. Where real estate, which is impressed with a trust in favor of a third party, is sold in disregard of the trust, the proceeds of the sale become likewise impressed with the same trust.</p> <p>7. Where the proceeds of the sale of real estate that was impressed with a trust, are not in the hands of any bona fide holder thereof, equity can and should reach those proceeds and turn them over to the party to whom they equitably and rightfully belong.</p> <p>8. The single Justice did not err in his conclusion that the two deposits in controversy, namely, No. 29,688 in the People’s Savings Bank, and No. 33,050 in the Androscoggin County Savings Bank, are the property of Bridget Ellen Tracy and Catherine Tracy, and that Catherine V. Tracy, their guardian, is entitled to have and receive said deposits in her capacity as such guardian.</p> <p>9. It seems to the court equitable that the $50 fee and the costs allowed to each plaintiff bank under the decree of interpleader in each case, should be paid pro rata from the two deposits in that bank; and, further, that no costs should be allowed in favor of either claimant. In other respects the decrees of the sitting Justice are affirmed.</p>

<p> Writ of forcible entry and detainer. Rule of law as to burden of proof when the defendant, in an action of forcible entry and detainer, pleads title in himself. The right to open and close under such pleading. The granting or denial of the right to open and close not discretionary with the presiding Justice. </p> <p>1. The right to open and close in a trial is a legal right, to the denial of which exceptions lie.</p> <p>2. The right to open and close in a trial is to be determined by the state of the pleadings at the beginning of the trial, and depends upon which party has the initial or primary burden of proof.</p> <p>3. In a case of forcible entry and detainer, in which the defendant in the municipal court pleaded title in himself, and thereupon as required by statute the case was removed to the Supreme Judicial Court, in the latter court the defendant’s title is the only issue, and upon that issue the burden is on the defendant, at the outset, and he has the right to open and close.</p>

<p>Action on the Case to recover damages for injuries sustained by the plaintiff through the alleged negligence of defendant. The negligence complained of.and relied upon was an alleged defective condition in the machine at or by which plaintiff was injured. Defendant filed plea of general issue. Verdict for plaintiff in the sum of two thousand dollars. Motion for new trial filed by defendant.</p> <p>Case stated in opinion.</p>

<p> Duties and liabilities of common carriers. Effect of Carmack Amendment. Rule of law as to proximate and remote cause where act of God intervenes. Rules as to practice in actions brought in State Courts under Federal Statutes. </p> <p>An action for damages upon a bill of lading issued by defendant to plaintiff under the provisions of the “Carmack Amendment.”</p> <p>The exclusiveness and paramount character of a Federal Law in relation to any subject within constitutional powers of Congress cannot be questioned.</p> <p>In actions under such statutes brought in the State courts, while questions of procedure and evidence are to be determined according to the laws of the forum, questions inseparably connected with the right of action, ' such as those of liability of defendant and the measure of damages must be settled according to the general principles of law as administered in the Federal courts.</p> <p>Hence, in actions upon a bill of lading, where the shipment is interstate, the rights and liabilities of the parties depend upon the acts of Congress, the bill of lading and common law as accepted and applied in the Federal tribunals.</p> <p>Where in an action upon a bill of lading, the shipment being interstate, the arrival of the goods at the place of destination is delayed by the negligence of one or more connecting carriers and after such arrival they are injured by an unprecedented flood amounting to an act of God, the flood, and not the delay, is the proximate cause of the injury.</p> <p>The prime object of the Carmack Amendment was to bring about a uniform rule of responsibility as to interstate commerce and interstate bills of lading and the principal subject of responsibility embraced by the act of Congress carries with it necessarily the incidents.</p>

<p>Action of assumpsit on account annexed to recover the value of certain clapboards sold to defendant town. Defendant filed plea of general issue. Case was reported to Law Court upon agreed statement, the Law Court to determine all questions of law and fact and render judgment accordingly.</p> <p>Case stated in opinion.</p>

Action on the case to recover damages for injuries received by plaintiff through the alleged negligence of defendant. Defendant filed a plea of general issue. Verdict for plaintiff in the sum of one hundred sixty-two dollars and fifty cents. Defendant filed exceptions to refusal of court to give certain requested instructions, and rulings, and^also a- motion for a new trial. Case stated in opinion.

<p>Writ of entry to foreclose a mortgage given for support of plaintiff and his wife. Under proper instructions, in answer to a question framed by the presiding Justice, the jury found that the defendant had broken the condition of his mortgage. The plaintiff thereupon filed a motion for conditional judgment. In addition to the clause in the mortgage deed, the defendant gave a personal bond in the sum of five hundred dollars for the fulfillment of the conditions of the support and maintenance, and the defendant contended that his liability should be fixed by the penal sum of the bond so given. Upon certain agreements and stipulations, case was reported to Law Court.</p> <p>Case stated in opinion.</p>

<p>Action on the case brought by plaintiff, under the provisions of Revised Statutes, chapter 89, sections 9-10, to recover for the death of the plaintiff’s intestate. Defendant pleaded general issue, and also filed a brief statement setting forth, as matter of defense, that the plaintiff’s intestate was a trespasser at the time he received the injuries, and was not in the exercise of due care, and that the parents of the child were also negligent and that said negligence and lack of due care upon the part of the parents of the plaintiff’s intestate contributed directly to the injury which caused the plaintiff’s intestate’s death. At the conclusion of the plaintiff’s case, counsel for defendant moved that nonsuit be granted. Nonsuit ordered, to which ruling plaintiff filed exceptions.</p> <p>Case stated in opinion.</p>

<p> Fair and unfair competition defined. Use of Trade Name. Use of Family Name. Trade device. Right to use family name if same has been previously transferred. Transfer of good will. Dealing in articles easily subject of mistake by imitation or misbranding as compared with dealing in valuable machinery, or piece of machinery purchased by mechanical experts. </p> <p>I11 a bill in equity brought to enjoin the defendant from using the name “Lapointe” in any way in connection with its corporate name or its products, and also to recover damages for loss of profits on the ground of unfair competition;</p> <p> Held; </p> <p>1. This case does not involve in any degree the question of trade marks nor the rights which pertain to patented articles. The sole issue is that of unfair competition.</p> <p>2. As the injunction sought in this class of cases operates as restraint in the mercantile field it is a principle of equity based upon caution that to justify an injunction the case must be unmistakably clear and the proof full and convincing.</p> <p>3. Competition in trade is of two kinds, fair and unfair; and unfair competition may be subdivided into the ethically unfair and the legally unfair. Courts have to do only with the latter. Many acts between keen business rivals which might offend the golden rule do not violate the legal rule.</p> <p>4. Unfair competition consists in beguiling or attempting to beguile the purchasing public-into purchasing the wares of the offender under the •belief that they are buying the wares of a rival. The essence of the action is fraud and the prohibition is confined to cases where the wrongdoer has resorted to some form of deception. The plaintiff must prove a fraudulent intent to deceive or show facts or circumstances from which such an intent can be reasonably inferred.</p> <p>5. If the defendant, although a sharp and vigorous competitor, so conducts its business as not to palm off its own products as those of the plaintiff, the action fails. It has kept within its legal rights.</p> <p>6. The question of unfair competition is one of fact, to be determined by the evidence and circumstances in each particular case, considered in the light of certain well defined rules of law.</p> <p>7. Some of the complaints, such as the motive of Lapointe in leaving the old company, the hiring of many of its employees, and the change in cable address, are of minor importance and, if proved, fall within the domain of the unethical rather than the unfair. But the evidence fails to substantiate the significance claimed for them.</p> <p>8. In the absence of contract, estoppel or fraud, any person can use his own name in all legitimate ways and either as a part or the whole of a corporate name.</p> <p>9. No contract right to the exclusive use of the name “Lapointe” existed in the plaintiff, and the record does not show such conduct on the part of either Lapointe or the defendant as will warrant with the application of the doctrine of equitable estoppel.</p> <p>10. While family names sometimes acquire a secondary meaning and come to denote not merely origin but quality, the acquisition of such a secondary meaning is a matter of proof and the proof here is lacking. Lapointe had come to stand for a certain type of machine, but was not a brand or trade name.</p> <p>11. As the originator of this particular process, Lapointe had the right to avail himself of his reputation and to use his name in the new corporation provided he exercised care to prevent the public from believing that his product, or the product of the new company, was the product of the old, or that the new company was the successor of the old.</p> <p>12. The machines themselves, although somewhat similar in outline and appearance, especially to the inexperienced layman, possess points of marked difference to the expert mechanic. They are marked with no special device, but with the name and residence of the maker. The partial dissimilarity in name and the entire dissimilarity in residence should tend to prevent confusion in the minds of purchasers.</p> <p>13. The defendant by its letters, circulars, advertisements and oral representations made all reasonable effort to acquaint the trade with the situation, and to differentiate between the two companies and their products. It obviously desired to avoid and not to create confusion, and it claimed superiority for its own machine over those of the plaintiff.</p> <p>14. The test on the question of similarity is the likelihood of deceiving an ordinary purchaser who is exercising ordinary care. In applying the test regard must be had to the nature and physical requirements of the article itself, its cost, the class of persons who purchase it and the circumstances under which it is purchased.</p> <p>15. These machines are not sold like articles of merchandise in common use which are sold through middlemen to the general and undiscriminating public, but either directly or through sales agents to a limited and specialized trade composed of mechanical experts who are not apt to purchase without careful investigation and examination.</p> <p>16. The evidence fails to prove that the defendant either succeeded in ■ palming off its product as the product of the plaintiff, or attempted to do so. The defendant belongs in the class of legitimate and not unfair competitors.</p>

<p>Writ of entry. Plea of general issue. Case was reported to Law Court upon agreed statement, the Law Court to render such judgment as the law and facts require. In the defendant’s deed the following words were used: “Beginning at a point in the northerly line of Franklin street, so called, four rods easterly of the tree standing on the southwesterly corner of the land conveyed to Charles E. White by Isaac M. Boardman.” Under one of the stipulations it was agreed that if, under the construction placed upon the deeds by the court this measurement commenced at the center of the tree, judgment to be rendered for the defendant; otherwise, for plaintiff.</p> <p>Case stated in opinion.</p>

Bill in equity asking that defendant, Ray, be ordered and decreed to give to complainant a conveyance of certain real estate and that the other defendants, Edward Chase and Clifford Chase, be ordered to render an accounting of the timber, wood and growth cut on said land in dispute and taken by them. The defendant Ray filed a demurrer to the bill, which was overruled by the Justice presiding, and also filed answer.

At Supreme Court of Probate, appellee hied motion to have appeal dismissed. Motion was sustained, and the Justice presiding ordered appeal dismissed; to which ruling appellant filed exceptions. Case stated in opinion.

<p> Admissibility of declaration of a former owner of land as against present owner. How far such declarations are admissible. Admissibility of deeds of former owner of land showing the extent and location of side lines of certain streets or avenues. Deeds and plans recorded as showing dedication as notice to subsequent purchasers. </p> <p>1. The declarations of a former owner of real estate against interest, are not admissible to^ deny or disparage title. But they are admissible when they relate to the nature, character or extent of the declarant’s possession, or to the identity of monuments, or to the location of boundaries called for in a deed.</p> <p>2. The testimony of the parties to a deed as to the limits to which it was intended to extend is not admissible.</p> <p>3. The conveyance to a town of a strip of land delineated on a recorded plan as a street, “as and for a public street,” and the acceptance by the town of the dedication make the strip a public town way, over which the town and its representatives have the same authority as over other public ways.</p> <p>4. The record of a deed of dedication of land “as and for a public street” as delineated upon a recorded plan is constructive notice to a subsequent purchaser of the extent of the dedication; and the limits of the dedication must be determined from the plan itself.</p> <p>5. In this case, it is held that the plan referred to in the deed of dedication of land for a street, shows that the land in dispute was included within the street, and that the recorded deed and plan were constructive notice thereof to the plaintiff, a subsequent purchaser.</p>

Petition for writ of habeas corpus brought at April term, 1916, Supreme Judicial Court, Penobscot county. Case was reported to Law Court upon agreed statement of facts. Case stated in opinion.

Action of trespass quare clausum. In plaintiff’s writ, no abuttals or lines were given describing the close upon which plaintiff claimed defendant had. committed trespass, but the close was described simply as “situated in Bangor.” Defendant filed a general demurrer, upon which issue was joined, and the presiding Justice sustained the demurrer pro forma. To the ruling of the presiding Justice sustaining the demurrer, the plaintiff filed exceptions. Case stated in opinion.

<p>Chapter 27, Section 47, interpreted. What can be considered as pamper supplies. Duties of Selectmen in furnishing supplies where parties are “destitute and in need." Scope of authority of selectmen in furnishing supplies where person receiving same has ample financial means. Question of necessity of supplies to be determined by whom.</p> <p>This is an action of assumpsit to recover, pursuant to the provisions of section 47, chapter 27, R. S., for pauper supplies alleged to have been furnished by the plaintiff to the defendant, a minor, who is represented by her guardian. Plea, is the general issue and infancy. The case is before the court on an agreed statement.</p> <p>The McDonald family being in distress, the mother applied to the town of Freedom, where the family had a pauper settlement, for relief. With the mother’s consent, the father being dead, the defendant was placed by the plaintiff town in the Girls’ Home, a charitable institution in Belfast, where, in consideration of an entrance fee, of fifty dollars paid by the plaintiff, she was to be cared for until eighteen, a period of about twelve years. For this entrance fee, $11.65 paid for clothing and sustenance, and for $8.60 interest on the account, the plaintiff brings this action.</p> <p> Held; </p> <p>1. Defendant, being in distress, it was her right to receive and the plaintiff’s duty to render immediate reasonable assistance, regardless of her interest in a small distributive share in her father’s estate, the same not being then available and the amount thereof uncertain.</p> <p>2. Clothing and sustenance being proper pauper supplies, the plaintiff is entitled to judgment for all sums expended therefor, notwithstanding defendant’s minority.</p> <p>3. There was no statutory authority for the placing of defendant by the plaintiff in the Children’s Home, and therefore the entrance fee and the incidental expenses in connection with defendant’s commitment are not chargeable to the defendant as pauper supplies.</p>

Action on the case for libel on account of a certain letter written by defendant to a third person, in which letter defendant charges the plaintiff as being a “damaged goods chap.” Defendant pleaded general issue, and also filed brief statement. Verdict for plaintiff in the sum of one hundred dollars.

<p>Bill in equity brought by the plaintiff company against the defendants as trustees under a certain trust deed executed and delivered by DeCarterett True, praying for an accounting and seeking also to enforce payment to the plaintiff company as assignee of the three children of DeCarterett True, said children being beneficiaries under said trust deed, said children having given separate assignments, for the sum of five thousand dollars each to the plaintiff, of certain funds in the custody of the defendants as such trustees. Defendants demurred to the pláintiff’s bill. The demurrer was overruled. Defendants thereupon filed their answer, and the case was set down, by agreement, for hearing upon bill and answer. The court thereupon entered a decree in favor of the plaintiff, ordering that the sum of fifteen thousand dollars, the amount of the assignments, be paid over to the plaintiff. From</p> <p>this decree, the defendants entered an appeal.</p> <p>Case stated in opinion.</p>

Indictment for selling intoxicating liquor contrary to statute,, returned by the grand jury for Waldo county, April term, 1916. It appears that at said term the indictment was returned against the respondent, but the clerk of court did not enter upon his docket any fact relating to this indictment.