Volume 117 — Maine Reports

Action on the case to recover damages for alleged slander. Defendant filed plea of general issue and brief statement. Verdict for plaintiff in the sum of $1475.00. Defendant filed motion for new trial, and also exceptions to certain rulings of presiding Justice. Case stated in opinion.

Bill in equity asking for the construction of certain parts or clauses of the will of L. Annie Dagnan, of Washington County, State of Maine. Cause was beard upon bill, answers of the several defendants and replication, and it appearing that questions of law of sufficient importance were involved and the parties agreeing thereto, it was reported to the Law Court for determination. Judgment in accordance with opinion. Case stated in opinion.

Proceeding in equity in which the town of Skowhegan, acting through its selectmen, sought to restrain the defendant from restoring to its former condition a business block owned by him which was damaged by fire in March, 1917. After the answer and replication were filed, a hearing was held before a single Justice upon the motion for a temporary injunction.

Action for breach of contract with trustee process, principal defendant being a non-resident of the State. Appearance was entered for principal defendant. At a later term the same attorney filed motion to withdraw his appearance as attorney for defendant. Case stated in opinion.

Action on the case to recover damages on account of injuries received by plaintiff through alleged negligence of defendant. Plea of general issue filed. Verdict for plaintiff in the sum of $3975.50. Motion for new trial filed by defendant. Case stated in opinion.

Action on the case to recover damages of defendant as common carrier for alleged negligence in transporting horses of the plaintiff from Watertown, Mass., to Portland, Maine. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $707.71. Defendant filed motion for new trial. Case stated in opinion.

Action on the case to recover damages for personal injuries sustained through the falling of an awning from a building occupied by defendant. Defendant filed plea of general issue. Verdict for plaintiff in sum of $500.00. By agreement of counsel case was reported to Law Court upon certain agreed stipulations. Judgment in accordance with opinion. Case stated in opinion.

Action brought under Federal Employers’ Liability Act of 1908 to recover for personal injuries sustained by plaintiff through alleged negligence of defendant. Defendant filed plea of general issue and also brief statement, claiming that plaintiff was familiar with the condition which caused the accident and that he had, therefore, assumed the risk and was guilty of contributory negligence. Verdict for plaintiff in sum of $4791.75. Defendant filed motion for new trial.

Action of debt upon an insurance contract. By agreement of parties case was reported to Law Court upon agreed statement of fact. Judgment for defendant. Case stated in opinion.

Writ of entry to recover certain lands in the County of Piscataquis, State of Maine. Defendant filed plea of general issue and brief statement. At the close of testimony, by agreement of parties, case was reported to Law Court for determination upon so much of the evidence as legally admissible. Judgment for plaintiff. Case stated in opinion.

Action on the case for slander. The declaration originally contained four counts. The writ was entered at the January term, 1917, Somerset County. At the April term, 1917, defendant filed motion asking that the plaintiff file specific items under the third and fourth count of his writ. At said April term, by agreement, the first, second and third counts of plaintiff’s declaration were stricken out and specifications filed under the fourth count.

Action on the case brought under R. S., 1916, Chap. 92, Sec. 9, to recover damages for the negligent killing of plaintiff’s intestate. Defendant filed plea of general issue and also brief statement, setting forth that payment had been made in settlement of the claim prior to the bringing of the suit. At close of testimony case was reported to Law Court for determination upon so much of the evidence as legally admissible. Judgment in accordance with opinion.

Action on tbe case to recover damages for alleged malpractice in treating plaintiff. Defendant filed plea of general issue. At close of testimony, by agreement of parties, case was reported to Law Court to be determined upon so much of the evidence as legally admissible, and in event that defendant was found liable the Law Court was to assess damages for plaintiff. Judgment for defendant. Case stated in opinion.

Indictment for rape under R. S., 1916, Cbap. 120, Sec. 16. Verdict of guilty. Respondent filed exceptions to rulings of presiding Justice relative to the matter of the admissibility of certain testimony, and to the overruling of a motion in arrest of judgment. Respondent also filed an appeal. Exceptions overruled. Appeal dismissed. Judgment for the State. Case stated in opinion.

Information in the nature of quo warranto. Heard upon bill, answer and amended information. Judgment in accordance with opinion. Case stated in opinion.

Petition asking that an entry of “neither party” be stricken off and the action brought forward and restored to the docket of the court. After due hearing, presiding Justice ruled that the prayer of petitioner ought not be granted upon the evidence presented and that the entry-should be “petition denied;” to which ruling petitioners filed exceptions. Case stated in opinion.

Proceedings in equity asking that the receiver of a corporation be ordered to appear and defend an action at law brought against a corporation and pending at the time of the dissolution of the corporation. At the hearing before single Justice it was ruled pro forma that the receiver be ordered to appear and defend the pending suit; to which ruling exceptions were filed. The petition of receiver was dismissed pro forma; to which ruling exceptions were also filed.

Action on the case to recover damages on account of injuries received by plaintiff through alleged negligence of defendant company. Plea of general issue filed. At close of plaintiff’s testimony, on motion of defendant, a nonsuit was granted; to which ruling plaintiff filed exceptions. Case stated in opinion.

<p>Action of trover to recover tbe value of a cream separator delivered the company of which the defendants were trustees in bankruptcy. The separator was delivered to the company under an agreement that the title was not to pass until notes representing the purchase price had been paid. The case was reported to the Law Court upon certain agreed statements and stipulations. Judgment for plaintiff in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Rules 4 and 6 of Chap. 80, Sec. 1, R. S., 1916, interpreted.</p> <p>This is an appeal from the decree of the Judge of Probate of Knox County, making a partial distribution of the personal property of the estate of Lavinia M. Snow among the eighteen nephews and nieces of said intestate as her next of kin, each having an equal share.</p> <p>The decedent was more than eighty years old when she died, and she was never married. Her grandparents, father, mother and all her sisters and brothers died before she did. Eighteen nephews and nieces survived her.</p> <p>Besides these nephews and nieces she left several grandnephews and grandnieces who claim to inherit as heirs of the intestate by right of representation. Hence arises the question whether this estate descends under Rule 4 or Rule 6, R. S., Chap. 80, Sec. 1.</p> <p> Held: </p> <p>The language of Rule 6 is so clear and unequivocal that its meaning will admit of no interpretation. This rule expressly declares that the estate shall descend to the next of kin and accordingly must be distributed per capita, and not per stirpes, as the nephews and nieces are next of kin and the grandnephews and grandnieces are not.</p>

<p> R. S., Chap. ISO, Sec. 18, interpreted. Lotteries and games of chance. Rule to be applied in determining whether a device is a gambling one. </p> <p>The respondent is the proprietor of an automatic machine installed in his store for the purpose of vending packages of chewing gum to the public and operates as follows:</p> <p>In the face of the machine is a window opposite which, with a hand pointing towards it, is inserted a placard which reads: “Anybody depositing a nickel in the above slot will receive a package of chewing gum together with a number of trade checks shown and indicated here.” The “trade cheeks” referred to are metal discs which have a trade value in the store of five cents each. Before the nickel is deposited, in any case, the window is either empty or shows a certain number of trade checks, the exact number being also stated by an indicator at the side of the window. The number of trade checks so shown and indicated varies from time to time, but the customer always knows before he deposits his nickel whether he will receive gum only or both gum and trade checks; and if he is to receive trade checks, he knows in advance exactly how many.</p> <p>The value of each of these trade checks is the same; to wit, five cents in trade, and the proportion of the profit from the sales of each thousand packages of gum thereby returned to the customers is constant and known in advance by the owner of the machine. It is also agreed that each package of gum vended is of the retail value of five cents.</p> <p> Held: </p> <p>This machine constitutes a gambling device within the provisions of our statute.</p>

<p>Cardinal rule to be applied in interpretation of deeds. Meaning of word “timber.” Where a licensee has the right to cut and remove timber without limitation as to time, what shall be considered a reasonable time in which to remove same.</p> <p>This is an action of trover brought to recover the value of eighteen cords of poplar pulp-wood cut and piled on a tract of land situate in the town of Greenwood. On report, such judgment to be directed as the law and facts require. The defendant admits the taking and conversion, but denies the plaintiff’s title to the property in question. The case involves the construction of a deed and the rights of the plaintiff thereunder.</p> <p> Held: </p> <p>1. 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 and circumstances. It is the intention effectually expressed, not merely surmised. This rule controls all others. Technical rules of construction of deeds may be resorted to as an aid in getting at the intention. And technical rules may be controlling, when nothing to the contrary is shown by the deed. The ancient rigidity of technical rules has given way in modern times to the more sensible and practical rule of actual expressed intention.</p> <p>2. The grant of trees or timber, or particular lands of timber trees, is a grant of the growth standing at the time of the grant. If the grant limit itself by size of tree, age or adaptability for specified uses, then the particular described tree would pass and none other. But where there is no limitation of that character, and the grant is of standing timber, to be taken off in the future, the common understanding is that the grantee may cut timber from the lot until the present growth, suitable for the purpose, shall have been exhausted, or until the right to cut shall have expired by limitation, either express or implied.</p> <p>3. This rule is two-fold in its nature, viz: what may be cut under the grant and when the right to cut may expire. The time limit for cutting may be expressed in the deed. When not so expressed the cutting is limited to such as may be done within a reasonable time.</p> <p>4. The court is of opinion that a period of more than twenty years is not a reasonable time within which to cut sixty dollars worth of growth, that the time within which this plaintiff might cut had long since expired, and hence his right to cut had also expired.</p>

<p>Complaint and warrant charging respondent with indecent exposure. Respondent was found guilty in Municipal Court and entered his appeal to the Supreme Judicial Court, where after trial a verdict of guilty was rendered. Respondent filed exceptions to the admissibility of certain testimony, and also as to the ruling of the Justice presiding permitting counsel to assist the State’s Attorney in the prosecution of the case.</p> <p>Case stated in opinion.</p>

<p> Rule of proof where defendant would avoid liability on the ground of violation of law on part of plaintiff. Presumption as to illegality. </p> <p>Action of tort to recover damages for injuries sustained by the plaintiff, a passenger in a car owned by one Morgan and driven by one Richardson, in a collision with a car owned and driven by the defendant. The verdict was for the plaintiff.</p> <p> Held: </p> <p>1. That the evidence was squarely contradictory as to the manner in which the accident happened, and the blame therefor, and the court is not convinced that the verdict is palpably wrong.</p> <p>2. That the evidence being silent upon the registration of the car in which the plaintiff was riding, the burden was on the defendant to introduce evidence of its non-registration if he relied upon that fact as a defense. He who charges another with moral turpitude or legal delinquency must prove it.</p> <p>The court therefore did not err in refusing to direct a verdict for the defendant on this ground.</p> <p>3. This conclusion renders it unnecessary to consider the question whether if the car was in fact unregistered the plaintiff, a passenger, was precluded from recovering of the defendant in this common law action of tort.</p>

<p>Action on the case to recover damages for injuries received through alleged negligence of defendants’ intestate. Plea of general issue filed in each case. Verdict for plaintiff in first action in the sum of $5250, and in the second in the sum of $1483.33. Motion for new trial and exceptions filed in each case. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Appeal from the decision of County Commissioners in relocating a certain highway between the town of Pownal, County of Cumberland, and the town of Durham, Androscoggin County. After hearing and laying out by commissioners, an appeal was entered to Supreme Judicial Court by the inhabitants of the town of Durham. At the term of the Supreme Judicial Court a commission was appointed to pass upon the findings of the County Commissioners, and upon the filing of their report a motion was filed by the Inhabitants of the town of Durham, asking that the report of said Committee be set aside and that all proceedings be' quashed. This motion was overruled by presiding Justice, to which ruling exceptions were filed.</p> <p>Case stated in opinion.</p>

<p> Pauper. Derivative settlement; when and how acquired. Burden of proving derivative settlement. Burden of proving acquired settlement. Rule where declarations of father are admissible in matters of family history. </p> <p>In an action to recover for pauper supplies furnished M. and wife, on report, it is</p> <p> Held: </p> <p>1. That the plaintiffs contention that M. had a derivative settlement in the defendant town is not proved.</p> <p>2. The derivative settlement was fixed when the pauper attained his majority. At that time he took the settlement of his father if the latter had one in this State, and the burden was on the plaintiffs to prove that at that time the settlement of the father was in Fort Kent.</p> <p>3. The actual knowledge of M. does not furnish this proof, and declarations of his father could not be received as to matters of family history because his father was still alive. They were merely hearsay testimony and not admissible.</p> <p>4. The proof as to derivative settlement failing, this action fails; but it may be added that the facts are sufficient to prove that the pauper had acquired a settlement in Eagle Lake after he became twenty-one years of age.</p> <p>There is therefore no liability on the part of the defendants.</p>

Action of trover. Plea, general issue with brief statement claiming title in defendant. Verdict for plaintiff in the sum of $339.60. Motion for new trial filed by defendant. Case stated in opinion.

Action on the case to recover damages for alleged malpractice in performing an illegal operation upon plaintiff and for negligent treatment thereafter. Defendant filed general demurrer, in which plaintiff joined. Presiding Justice overruled demurrer; to which ruling defendant filed exceptions. Case stated in opinion.

Action on the case to recover damages for. an alleged assault and battery on the person of the plaintiff. Defendant filed plea of general issue, and also a brief statement setting forth that whatever acts were done by him were done in self-defense. Verdict for the plaintiff in the sum of eight hundred dollars. Defendant filed a motion for a new trial and also exceptions to certain rulings of the presiding Justice. The case is stated in the opinion.

Action on the case to recover damages for alleged breach of warranty in the sale of a horse. Verdict for plaintiff in the sum of sixty-five dollars. After verdict, defendant filed a motion to set aside the verdict, and after hearing, the presiding Justice granted the motion; to which ruling plaintiff filed exceptions. Case stated in opinion.

<p> R. 8., Chap. 114, Sec. 8, interpreted. Rule as to necessity of recording a permit to cut logs. </p> <p>The plaintiffs in the winter of 1913 gave a written permit to one Allen of Dennysville to enter upon their lands and cut and haul therefrom the logs and lumber described in the plaintiff’s writ. Allen sold the logs and lumber cut under the permit to the defendant to be delivered at their mill in Baring, and they were fully paid for. The defendant had no knowledge of the permit or its terms and conditions when it purchased the logs.</p> <p>The only question here involved is whether this permit should have been recorded so as to give notice to innocent third parties, intending to purchase, that the timber and lumber made therefrom were subject to a lien.</p> <p> Held: </p> <p>(1) No claim could be made in favor of such record prior to the enactment of Chapter 32 of the Public Laws of 1895.</p> <p>(2) The letter of this statute now found in Sec. 8, Chap. 114, R. S., 1916, does not apply.</p> <p>(3) Nor was it the intention of the legislature that it should apply to a permit.</p>

<p>Action on the case to recover damages for alleged injuries to water rights of plaintiff. Case was reported to Law Court upon certain agreed statement of facts, the Law Court to dispose of the case in accordance with stipulation of the parties. Judgment for defendant.</p> <p>Case stated in opinion.</p>

Action on the case to recover the value of certain articles sold defendant.

<p>Action on the case to recover damages for personal injuries sustained through the alleged negligence of defendant. Defendant filed plea of general issue. At close of plaintiff’s case, after motion by-defendant, presiding Justice ordered nonsuit; to which ruling plaintiff filed exceptions.</p> <p>Case stated in opinion.</p>

<p> Deeds. Exceptions and reservations. Difference between an exception and a reservation. General rule to be applied in determining whether a clause should be deemed an exception or a reservation. </p> <p>This is an action of assumpsit on account annexed to recover certain sums alleged to be due for one-half rent for gravel sold from a gravel pit on the land of defendant, to which defendant pleads the general issue.</p> <p>The deed from Foster to French contains the following language: “E. A. Foster has half the income of the gravel in said lots where now opened.”</p> <p>The only question here raised is an interpretation of the reservation clause found in 'the deed from Foster to French. Is it a reservation or an exception?</p> <p> Held: </p> <p>(1) Under the facts and circumstances the reserving clause must be construed as an exception.</p> <p>(2) Though not containing words of inheritance, yet the clause is operative as an exception, the effect of an exception being, that the grantor has never parted with his title.</p> <p>(3.) The language, “Foster has half the income of the gravel in said lots where now opened” excepts the gravel in the lot in which the gravel pit was located, and not the hole or pit that was opened on the lot.</p> <p>(4) The modifying phrase “Where now opened” is used to designate the excepted lot, not the pit.</p>

Action on the case to recover for one month’s rent. Defendant filed plea of general issue, and the question raised by defendant was that plaintiff had really dispossessed the defendant during the month for which he was claiming a full month’s rent. The case was heard before single Justice, without jury, and the findings were in favor of defendant; to which rulings and findings plaintiff filed exceptions. Case stated in opinion.

<p>Appeal from decree of single Justice sustaining the findings of the Industrial Accident Commission.</p> <p>Case stated in opinion.</p>

An appeal from decree of single Justice sustaining the findings of the Industrial Accident Commission. Judgment in accordance with opinion. Case stated in opinion.

At Supreme Court of Probate the decree allowing the account of the executrix was affirmed by presiding Justice; from which ruling appellant filed exceptions. Judgment in accordance with opinion. Case stated in opinion.

<p> Negligence. Hule in actions of tort as to admissibility of evidence of the violation of the statute or ordinance by defendant as bearing upon the question of defendant’s negligence. </p> <p>Where evidence is admitted for a purpose alleged to be illegal, subject to objection and exceptions, and the court in its instructions to the jury confines the evidence so admitted to a single point for which it was confessedly admissible, the presumption is that the jury regarded the instructions in arriving at its verdict. The evidence being conflicting and the credibility of the witnesses wholly for the jury, the court is of opinion that there was sufficient evidence in the case to sustain the verdict for the plaintiff.</p>

<p> Rule of practice as to presenting entire evidence when exceptions are taKen to the direction of a verdict or to the granting of a nonsuit. Rule as to liability of parties signing contract without reading same. </p> <p>Exceptions to ruling of presiding Justice ordering verdict for plaintiff. The record fails to present the entire evidence, upon which the order of the Justice below was based, and for this reason the exceptions might well be overruled.</p> <p>But so much of the evidence as the record does contain clearly shows that the defendants signed the bond on which suit was brought, that there is no sufficient proof, in the partial report of the evidence, to warrant a finding that their signatures were procured by fraud.</p>

Action of deceit. Defendant filed plea of general issue. At close of evidence defendant filed motion asking presiding Justice to direct verdict for defendant, on the ground that the plaintiff’s action should sound in contract rather than tort. Presiding Justice overruled the motion; to which ruling defendant filed exceptions. Case stated in opinion.

<p> Rule in Maine as to liability for maintaining dangerous structures attractive to children. Rule of law as to duty towards licensee, invitee or trespasser. </p> <p>Action to recover damages for negligence. On report.</p> <p> Held: </p> <p>1. The plaintiff, at best, was a mere licensee upon the premises of the defendant.</p> <p>2. The plaintiff has not sustained the burden of showing that the defendant did anything to wantonly injure him, or that the defendant wantonly and recklessly exposed him to danger.</p> <p>3. In a legal sense, to come under an implied invitation, as distinguished from mere license, the visitor must come for á purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must be some mutuality of interests in the subject to which the visitor’s business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant.</p>

<p>Action on the case to recover damages for the obstruction of a right of way claimed by plaintiff. Defendant filed plea of general issue and also filed brief statement denying right of way claimed by defendant. At close of evidence case was reported to Law Court for final determination upon so much of the evidence as legally admissible. Judgment for defendant.</p> <p>Case stated in opinion.</p>

Action to recover for board, lodging and clothing furnished and provided by plaintiff to minor son of defendant. Defendant filed plea of general issue. At close of evidence, by agreement of parties, case was reported to Law Court upon certain agreed stipulations. Judgment for defendant Case stated in opinion.

<p>Action of assumpsit on policy of fire insurance. Defendant filed plea of general issue; also following brief statement. "That the proofs of loss furnished to the defendant by the plaintiff under the requirements of the policy of insurance and under the law are fraudulent in that they contained claims for articles not destroyed by fire and a gross and fraudulent overvaluation of certain items of property which were destroyed by fire and being so fraudulent, under the contract of insurance void.” Verdict for defendant. Plaintiff filed motion for new trial; also exceptions to certain rulings of presiding Justice relating to the admissibility of certain testimony. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Mortgages. Rights of mortgagee where property mortgaged has been legally partitioned. To what part of the properly partitioned shall mortgage attach. Rule where part of the property covered by mortgage has been conveyed to persons having no knowledge of the mortgage. Where that part remaining is not sufficient to meet the mortgage indebtedness, what are the rights of the mortgagee. General rule of practice where equitable defense is made or offered, under R. S., Chap. 87, Sec. 17-18. </p> <p>Real action to foreclose a mortgage on an undivided interest in inherited property. Subsequent to the date of the mortgage the mortgagor, Mrs. Dinsmore, conveyed her equity of redemption to a co-owner, Mrs. Hurley, and the entire estate was afterwards divided by partition proceedings among the then owners. After partition was made Mrs. Hurley conveyed two lots by warranty deed which have come by mesne conveyances to two of these defendants.</p> <p> Held: </p> <p>1. That under the pleadings and the admitted facts the subject matter of the controversy should be governed by the rules of equity rather than those of law, as provided in R. S., Chap. 87, Secs. 17 and 18, and as the case is before the Law Court on report it can be so treated.</p> <p>2. At the time the mortgage was given it covered the one-fifth undivided interest of the mortgagor in the entire property.</p> <p>• 3. The effect of the partition, under R. S., Chap. 93, Sec. 28, was to attach the mortgage to the part assigned to the mortgagor or to the grantee. The several interest took the place of the undivided interest.</p> <p>4. As the mortgagor had sold her undivided interest to Mrs. Hurley subject to the mortgage, as Mrs. Hurley had also purchased two other -undivided interests so that at the time of partition she owned eight-fifteenths of the entire property, and as these were all grouped and treated as one interest in the partition, the mortgage after partition attached to three out of the eight-fifteenths assigned to Mrs. Hurley, or to three-eighths of her assigned portion.</p> <p>5. The two lots conveyed by Mrs. Hurley after the partition should not be held subject to the mortgage unless the remaining interest in the hands of Mrs. Hurley should prove insufficient to meet the mortgage debt. The portion retained by a mortgagor in such a case stands primarily liable in equity for the payment of the whole debt, while that which had been sold by the mortgagor is chargeable only for any deficiency after the other had been applied.</p> <p>6. Whether the remaining portion is ample can be determined by the sitting Justice who will have the power and duty of working out the rights of the parties in accordance with the equitable rules laid down in the opinion.</p>

Action on the case in the nature of assumpsit. By agreement of the parties the case was referred at the April term of court, 1917, Waldo County. The report of the referee was duly filed in court at the September term, 1917, and on the fourth day of the same term counsel for plaintiff filed a motion asking that the report of the referee so filed be resubmitted on account of an error in figuring the amount due plaintiff.

<p> Declaration. Amendment to declaration alleging injuries other than complained of in original declaration. General rule as to right of defendant to have continuance on the ground of surprise by an amendment to the declaration. General rule as to the granting or denying a motion for continuance being a matter of judicial discretion. Rule in some States as to being entitled, to a continuance as a matter of right when an amendment of substance is made to the declaration. </p> <p>In an action of tort to recover for injuries received through the alleged negligence of the defendant’s servants the plaintiff sought to introduce evidence concerning injuries not set out in the declaration. The evidence was excluded and plaintiff was allowed to amend by inserting allegations covering the additional injuries. Thereupon the defendant asked for a continuance on the ground of surprise and because of entire lack of preparation to meet the new issues.</p> <p>This motion was overruled and after a delay of a half day the trial proceeded. On defendant’s exceptions it is</p> <p> Held: </p> <p>1. The granting or denying of a motion for continuance is a matter of judicial discretion.</p> <p>2. The term judicial discretion means sound discretion exercised according to the well established rules of practice and procedure, a discretion guided by the law so as to work out substantial equity and justice. It is magisterial not personal discretion.</p> <p>3. A discretionary ruling is reviewable when some palpable error has been committed or when an apparent injustice has been done.</p> <p>4. The amendment in this case was an important one and opened a new and wide field for investigation, for which the defendant being taken by surprise was not prepared. Sufficient postponement or continuance should have been granted to enable it to secure the testimony needed to meet the new issues. This was not done, and to refuse this was ground for exception.</p>

<p>Respondents were indicted for the crime of murder at the September term of the Supreme Judicial Court, Piscataquis County. After trial, respondents were both found guilty. Respondents duly filed an appeal and also exceptions to certain rulings of presiding Justice. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Proceedings under Public Laws, 1917, Chap. 294, in re seizure of an automobile claimed to be illegally transporting intoxicating liquors. Claim for automobile was duly filed in Municipal Court and appeal entered to Supreme Judicial Court, at which term the case was reported to the Law Court for determination of all questions presented. Judgment in accordance with opinion. Case stated in opinion.

Petition for partition. Defendants each filed motion to dismiss, which motion was overruled by presiding Justice; to which ruling exceptions were filed. By agreement of parties exceptions were withdrawn and the case reported to Law Court upon certain agreed statements. Judgment in accordance with opinion. Case stated in opinion.

<p> Amendments to declarations. General rule as to when amendment may he allowed. </p> <p>On exceptions to the allowance of an amendment to the original declaration in an action for tort.</p> <p>After verdict for plaintiff, which was set aside on defendant’s motion, the former offered an amendment setting forth defendant’s acts of negligence other than those described in the original declaration, and which plaintiff declared were negligent acts of the defendant contributory to the same injury on account of which he brought his suit. The defendant claims that this amendment was not allowable because it introduced a new cause of action.</p> <p> Held: </p> <p>1. A cause of action may be defined, in general terms, to be the invasion of a legal right without justification or sufficient excuse.</p> <p>2. The primary right belonging to the plaintiff, the corresponding duty resting upon the defendant, the breach of that right, without justification or sufficient excuse, constitute a cause of action.</p> <p>3. Several distinct negligent acts or breaches of duty of one person may contribute to cause an injury to another. Although any one of these negligent acts may be a ground on which the injured person could present his case, yet, as he has suffered but a single injury, he has only one cause of action.</p> <p>4. An amendment alleging other negligent acts of the defendant at the same time, which contributed to the injury, neither changes the form nor the cause of action.</p> <p>5. The ultimate duty of the defendant was to so conduct its business as not to injure others. A breach of that duty, without justification or sufficient excuse, not necessarily the particular manner of that breach, gives the injured party the cause of action.</p> <p>6 The amendment was properly allowed.</p>

<p> Life Insurance contract. Fraud or misstatements in application. General rule as to the knowledge of the agent binding the Company. False statements as to whether applicant has consulted or been treated by a physician. </p> <p>There are two actions of assumpsit brought by the Administratrix of the estate of George A. Gordan upon two policies of life insurance. The first policy was issued February 23rd 1915, for the amount of fire hundred, dollars. The second was dated June 4th 1915, and was for one thousand dollars. The insured died September 8th 1915.</p> <p>The defendant company resists payment on the ground that the insured misstated the facts with reference to his having had a disease of the heart and kidneys; his habits as to his use of intoxicating liquors; his treatment at a sanitarium or hospital, and his treatment by other physicians.</p> <p>The plaintiff at the trial, contended that those answers which were in fact proved to be false by the defendant company, were waived by it, because of the fact that the agent, Mr. Tabachnick, whose name appeared on the policy and who effected the insurance, had knowledge of the true facts. It was also contended that the medical examiner was an agent of the company. The jury found for the plaintiff in each case.</p> <p>These cases come up on motion and exceptions.</p> <p> Held: </p> <p>1. The medical examiner is not an agent of the company, either under the statute or the common law.</p> <p>2. That the knowledge of the agent is constructive knowledge of the company, under the statute, regardless of the source, from whom the agent’s knowledge may come.</p> <p>3. That so far as material false representations to the medical examiner are known to the agent they are known to the company.</p> <p>4. That, on the contrary, any material false representation made to the medical examiner if not known to the agent is not the knowledge of the company.</p> <p>5.. That so far as material false representations made to the medical examiner, coincide with the agent’s knowledge, thereof, they are constructively known to the company.</p> <p>6. But that beyond such coincidence they are not constructively known to the company, will not be deemed to be waived, will operate as a fraud, and vitiate the policy.</p> <p>7. That in the medical examination in each policy, are found material false representations beyond the knowledge of the agent.</p> <p>8. That, for these reasons the policies are void.</p>

<p> Water rights. Liability for adding flash-boards to dam. </p> <p>In an action on the case to recover damages because of the flowing out of the plaintiff’s water wheel and consequent loss of power by the defendant’s dam next below on the river it is</p> <p> Held: </p> <p>1. That whatever the rights of the respective owners of the two water privileges might be under their deeds, their legal rights have been fixed so far as this case is concerned by the agreement entered on the docket by which both parties and the court are bound.</p> <p>2. That under that agreement the defendant’s flowage level of the lower pool in Megunticook Itiver is “the level of the top of the northeast side planking of the old flume at the dam, to be fixed from the Government bench mark at Camden National Bank.”</p> <p>3. That therefore the only issue in the case was one of fact for the jury, whether the defendant’s flowage level had exceeded the agreed limit.</p> <p>4. That the verdict of jury finding such excess was warranted by the evidence.</p> <p>5. That the damages awarded to the plaintiffs, $506.25, were not excessive.</p>

<p> Cheating by false pretenses. Forgery at common law and forgery under the Statute. Necessary allegations in an indictment for obtaining money by false pretenses. What constitutes duplicity in criminal pleading. </p> <p>This case involved an indictment under the statute for cheating by false pretenses. To this indictment the defendant filed a demurrer which was overruled. To this ruling exceptions were taken by the defendant with the right to plead over, if the exceptions were overruled.</p> <p>The statute under whiefi this indictment is brought, R. S., Chap. 128, Sec. 1, reads as follows: “Whoever designedly and by false pretenses or privy or false token, and with intent to defraud, obtains from another .... his signature to any written instrument, the false making of which is a forgery, is guilty .... of cheating by false pretenses and shall be punished,” etc. Under this statute it is necessary to allege: (1) that a written instrument was obtained; (2) that the signature of the maker was obtained by the defendant: (3) that it was designedly obtained by false pretenses; (4) with intent to defraud; (5) that the false pretenses deceived the maker; (6) that the instrument thus procured was an instrument the false making of which is a forgery.</p> <p>Upon inspection, the indictment discloses legal averment of all these elements.</p>

Action to recover damages for death of plaintiff’s intestate on account of alleged negligence on part of defendants. Action brought under R. S., 1916, Chap. 92, Secs. 9-10.

<p> Bill in Equity. Equitable proceedings to obtain an accounting and redemption of mortgage. General rule of law as to interest necessary in order to redeem from a mortgage. Rule as to accounting of mortgagee for insurance money received from mortgaged property. General rule as to insurance money standing in place of property mortgaged. Right of mortgagee to appropriate insurance money to indebtedness, other than the mortgage indebtedness, with consent of mortgagor. Rule where there are intervening rights or mortgages. </p> <p>On report. A bill in equity for an accounting and redemption of a mortgage of real estate.</p> <p>In general any party in interest may redeem from a mortgage and ordinarily any one who has an interest, legal or equitable, in the land and would be a loser by foreclosure is entitled to redeem.</p> <p>If a party is affected by the mortgage, he may redeem; if he is not affected by it, there is no occasion for his redeeming and he is not allowed to do so.</p> <p>Where certain specific property is made liable for the payment of the debt of another and its owner, although not personally liable, must respond or 1 ose it, the latter becomes a surety real for the payment of the debt.</p> <p>Where, in accordance with the provisions of a mortgage of real property, the mortgagor insures the buildings thereon for the benefit of the mortgagee, such insurance as to the mortgagee is for protection of the security and not for the payment of the debt. It is collateral to the debt.</p> <p>After loss the money received from the insurer takes the place of the property destroyed and is still collateral until applied in payment by mutual consent, or by some exercise by the mortgagee of the right to demand payment of the debt, and, upon default of payment, to convert the securities.</p>

<p> R. S., Chap. Jfi, Sec. SO, interpreted. License fees. Right of State to demand and impose -payment of license fees. General rule as to right of each State to pass legislation where interstate commerce is indirectly involved. Right of State to control and protect the property within its borders and to issue licenses for the using thereof. Burden of proving legislation to be unconstitutional. General rule as to when laws are discriminatory and become class legislation. </p> <p>1. The provision in It. S., Chap. 45, See. 30, relating to the necessity of obtaining a license to transport lobsters beyond the limits of the State is a valid and reasonable provision and in accordance with the Constitution of Maine and the Constitution of the United States.</p> <p>2. The imposition of a license fee for smacks or vessels engaged in the lobster fisheries on waters within the jurisdiction of the State, and moving in interstate commerce, if reasonable, is not a burden on interstate commerce.</p> <p>3. The general power of police is in the States. And neither the power itself, nor the discretion to exercise it as need may require can be bargained away by the State. All that the federal authority can do is to see that the States do not, under cover of this power, invade the sphere of national sovereignty,</p> <p>• obstruct or impede the exercise of any authority which the Constitution has confided to the nation, or deprive any citizen of rights guaranteed by the federal constitution.</p> <p>4. In regard to the transportation of lobsters beyond the limits of the State, the right to legislate is given even if interstate commerce is indirectly involved, until Congress exercises its authority over the subject.</p> <p>5. The Fourteenth Amendment does not prohibit legislation special in character. It does not prohibit a State from carrying out a policy that cannot be pronounced purely arbitrary, by taxation or penal laws. If a class is deemed to present a conspicuous example of what the legislature seeks to prevent, the Fourteenth Amendment allows it to be dealt with although otherwise and merely logically not distinguishable from others not embraced in the law.</p>

<p> Procedure in equity to enforce an oral agreement, relating to lands where an action at law could not give just compensation. Rule as to granting specific per~ formance. Rule as to findings of fad by a single Justice in an equitable proceeding being reversed upon appeal. </p> <p>This is a bill in equity praying for the specific performance of an oral agreement made by James Eastman, father of the plaintiff, to devise his homestead farm in Brunswick to the plaintiff. The cause was heard by a single Justice of this court who sustained the bill. Final decree was made and filed, and the defendants appealed therefrom to the Law Court.</p> <p> Held: </p> <p>1. That compensation in damages for the breach of an agreement to convey real estate is not regarded as adequate relief is well settled.</p> <p>2. The parties directly interested are in court and answering, and the parties who are pointed out as having an indirect interest under the codicil, the other children of James Eastman or their descendants, are not necessary parties to this proceeding. If a remote or contingent interest in the parties named appears later, it would be by right of representation, and they would be bound by any decree made against the defendants under whom they must claim, if they should claim at all. Nor are the executors necessary parties, as they are not in this instance charged with any duty involving the real estate in question.</p> <p>3. The findings of fact by the sitting Justice are amply sustained by the evidence, and in accord with the cases cited announcing a uniform rule that specific performance may be decreed in. such cases against heirs.</p> <p>4. It is well settled that the decree of a single Justice upon matters of fact in an equity hearing will not be reversed unless it clearly appears that the decree is erroneous.</p>

<p>Action of forcible entry and detainer. Defendant filed plea of general issue and also brief statement, setting up title in himself, the plaintiff and two others as tenants in common. Thereupon the case was removed to the Supreme Judicial Court. Verdict for defendant. Motion for new trial and also exceptions to certain rulings of presiding Justice filed by plaintiff. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Intoxicating liquors. Rights of registered apothecaries. </p> <p>The reference in Section seventeen of Chapter twenty of the Revised Statutes of 1916 to the United States Pharmacopoeia, Dispensatory and National Formulary is to the editions of those works recognized as authority among apothecaries, when Chapter seventy-four of the Public Laws of nineteen hundred and seven became effective.</p>

<p> Corporations. General rule as to Boards of Directors authorizing and designating certain persons to act for and in their behalf. Buie as to authority of general manager to bind his corporation. Powers of general manager. </p> <p> Authority of general manager to ratify acts within the scope of his authority to so contract. </p> <p>When the directors of a business corporation, authorized by its by-laws “from time to time to provide for the management of the affairs of the company at home or abroad in such measure as they see fit, and in particular, from time to time to delegate any of the powers of the Board in the course of the current business of the company to any standing or special committee, or any officer or agent, and to appoint any person to be the agent of the company, with such powers, (including the power to sub-delegate) and upon such terms as may be thought fit, so far as it may legally do so,” — appoint a general manager of the company, such general manager, although his duties and authority are not expressly defined by vote of the directors, must be held to have been clothed with all the authority which the term implies, and which is ordinarily incident to that position.</p> <p>A general manager so appointed by the directors of a gas company has authority to purchase pipe and other materials necessary in the operation of the plant, and to arrange payment therefor, although such financial arrangements are made by the general manager through another person not connected with the company.</p> <p>A general manager may have authority to ratify a contract which is within the scope of his authority to make, when such contract is made by an unauthorized person.</p>

<p> R. S., Chap. U, Sec. J¡3, interpreted. Right of members of City Government to contract with city. Right of member of City Government to recover compensation for contracts entered into with the city. Duty of persons contracting with municipality. Action for money had and received. </p> <p>This case comes up on report. The record shows that the defendant, Fred C. Ridley, was an alderman in the City of Bangor for the municipal year of 1915; that, during the year, under contracts with city departments, he furnished teams and drivers who performed certain services for the city: that he received payment in full in due course of business for the services rendered and, by the admission of the plaintiff, “that the city received the benefit of the men and teams furnished by him to said city .... and that the prices for said teams and men were just and reasonable.”</p> <p>Under this state of facts the plaintiff city has brought an action for money had and received to recover back from the defendant the amount it had paid him under these contracts, upon the ground that the services were rendered in contravention of the statute, and the payments therefor were illegal.</p> <p>R. S., Chap. 4, Sec. 43, reads as follows: “No member of a city government shall be interested, directly or indirectly, in any contract entered into by such government while he is a member thereof, and contracts made in violation thereof are void.”</p> <p>The defendant has been paid by the city, with the approval of the department of the city government authorized to approve and pay said bill. The issue is, has he a legal right to keep the money in defense of the pending suit? The test of this question is found in the inquiry, had he a legal right in any form of action to recover from the city for his services?</p> <p> Held: </p> <p>1. That ho could not have maintained an action under this statute for the services rendered.</p> <p>2. The payment of the defendant’s bill by the city was ultra vires and illegal.</p> <p>3. A party dealing with a municipality can reap no advantage from the fact that the contract is completed, as all parties dealing with a municipality must take notice, at their peril of its authority to act.</p> <p>4. The money being paid the defendant in violation of the city’s legal rights it can be recovered back in an action for money had and received.</p>

<p> Wills. General rule of law where property is left to the widow for life with right to use whatever may be necessary for her support and maintainance. Right of remainderman to balance or remainder of property undisposed of or unexpended. </p> <p> How the rights of remainderman may be enforced. Executors and administrators. General scope and limitation of the authority of executors and administrators. </p> <p>Where the executrix of her husband’s will is directed thereby to give by will in charity a sum not exceeding three-fourths part of what may remain of his estate at her decease and she makes the appointment by a will executed less than four months and confirmed less than forty days before her decease, and her executors find among the papers in her possession at her decease, a note given to her by her husband many years before, the balance due upon which practically equals one-half of what must have remained of her husband’s estate at her decease to warrant her devise’of the sums given in the exercise of the power in charity; it is held that her wills clearly indicate that she did not consider the note an existing claim against her husband’s estate and did not intend to enforce it as such.</p> <p>Where a testator gives to his widow a life estate in certain property with power of disposal and remainder over, whatever remains at the decease of the widow, upon due and proper accounting by her executors or administrators, should be paid or delivered to the administrator de bonis non with the will annexed of the first testator.</p> <p>It is the right and duty of an administrator to account in the Probate Court, in behalf of his intestate, as executor or administrator, but the accounting is limited to the acts and doings of the deceased representative in his lifetime and the administrator can proceed no further in the administration of the first intestate and so expressly by B. S., Chap. 68, Sec. 27, with executors.</p> <p>Whether or not, in view of our statutory provisions regarding the allowance of the private claims of executors and administrators they may still exercise the common law right of retainer, quaere.</p>

<p> Water rights. Deeds. Res adjudicata. </p> <p>This case comes up on report and involves a controversy over water rights. The facts involved under the bill and answer are found in Woolen Company v. Bass, 112 Maine, 483. The bill and answer contain practically the same facts involved in the former decision of this case. In the former case the Woolen Company, the present defendant, was the plaintiff, and the present plaintiff the defendant. The defendant in that case filed a cross bill, the material prayer of which was in effect, and almost in phraseology, the same as the prayer in the present bill. The defendants in the present bill, in their answer, plead the defense of res adjudicata.</p> <p> Held: </p> <p>1. That the issue raised in the present bill was put in issue by the pleadings in the former bill and cross bill, and under the well settled rules of law the plaintiff has had its day in court and the present contention must be regarded as res adjudicata. There is another interpretation of the language of the deed which concludes the rights of the plaintiff. The word “until” is a limiting or restrictive word. It does not negative or limit any right of the Woolen Company to use the water. It does, however, manifestly limit the right of Bass & Company after the water has reached the 4J foot limit; then Bass & Company are reduced to 100 square inches. And the purpose as well as the effect of the limiting word “until” was to accomplish this reduction. We think this word, when fitted into the background of the transaction, as it must be to give it a fair interpretation, fully determines the plaintiff’s rights. It is almost inconceivable, if the parties understood the matter as the plaintiff now says, that they would have employed the language used in this deed to give expression to their purpose, when a single sentence properly phrased would have expressed exactly the meaning for which it now contends. It is further inconceivable that the defendant company, having full power to protect its own business, would intentionally deprive itself, for the indefinite time the water might fluctuate between the top of the dam and the 4| foot limit, of the use of sufficient water to operate its own mills, and thus leave them idle and unproductive.</p> <p>2. That the language of the deed does not limit the rights of the defendant to the top of the dam.</p>

Respondent was indicted for the crime of murder and placed upon trial. The presiding Justice, on account of certain matters arising while the jury was viewing the premises, ordered that the case be continued; to which ruling counsel for respondent filed exceptions. Judgment in accordance with opinion. Case stated in opinion.

Action on the case for alleged negligence on part of defendant's carrier or its connecting carriers. Case was reported to Law Court upon agreed statement of facts. Judgment in accordance with opinion. Case stated in opinion.

<p>Action of trover to recover the value of certain logs converted by defendant. Defendant filed plea of general issue. At close of testimony, case was reported to Law Court to render such judgment as the law and evidence require. Judgment for plaintiff. Case stated in opinion.</p>

<p> Buie as to disposition of stock dividends in trust estates. </p> <p> Buie where the dividends are cash. </p> <p>A bill in equity asking the instructions of the court as to the disposition, between life tenants and remaindermen, of a stock dividend declared by the directors of a corporation from its earnings upon its stock, sundry shares of which were held by complainant trustees.</p> <p>Under all ordinary circumstances stock dividends belong to capital and go to the remainderman, while cash or money dividends are the property of the life tenant.</p> <p>In the instant case the fifty shares of stock issued to the trustees as a stock dividend are to be held by them as part of the corpus or capital of the trust estate, the income alone thereof to be paid to the life tenants.</p>

<p>Petition for writ of habeas corpus, to obtain the release of the petitioner from the jail in the County of Penobscot. Upon hearing, the petition was dismissed; to which ruling exceptions were filed.</p> <p>Case stated in opinion.</p>

<p>Action of debt upon a victualer’s bond. To the rulings of the presiding Justice defendant filed exceptions.</p> <p>Case stated in opinion.</p>

<p>Indictment for accepting money contrary to provisions of R. S., Chap. 126, Sec. 16. After verdict of guilty, respondent filed motion in arrest of judgment. Motion was overruled; to which ruling and also to the admission of certain testimony, respondent filed exceptions.</p> <p>Case stated in opinion.</p>

<p> Action of assumpsit. Rule as to bringing an action in the nature of assumpsit for damages caused by deceit and misrepresentation. Rule of procedure in case where party has entered into a contract and claims fraud and misrepresentation. Rights of the parties where the fraud is discovered. Rule as to where false expressions do not generally constitute fraud in law. </p> <p> Right of recovery where party relying upon the alleged misrepresentation had the same or better means of knowledge than the party making the same. </p> <p>The plaintiff made a contract with the defendants to construct certain lines of sewers for a fixed price. He brings this action of indebitatus assumpsit upon an account annexed to the writ, to recover an alleged balance of the contract price, and includes in his account a charge for extra labor of men and teams along and within the limits of lines of sewers covered by the special contract. Recovery is claimed upon the ground that certain material misrepresentations as to the character of the excavation were made to him by the selectmen, and that in this form of action he is entitled to recover for the extra cost occasioned thereby.</p> <p>Held: that where a party agrees to do work for a specified sum under a fraudulent representation, he can only recover in an action of indebitatus assumpsit according to the terms of the contract, although, when he discovered the fraud, he might have repudiated the contract and sued for deceit.</p> <p>The duty to pay damages for a tort, does not imply a promise to pay them, upon which assumpsit can be maintained.</p> <p>The evidence fails to show any attitude or action on the part of the selectmen recognizing, or undertaking to pay, the charges for so-called extra work on the sewers, except in relation to an old well and an extension in Perham Street.</p>

<p> Rule of perpetuities. General rule as to its application to the time of the vesting of an estate rather than the termination thereof. Rule where the gift is absolute but payment of same deferred or postponed. Rule where a fund is given to a class as to each sharing equally. Meaning of word “descendants” when used in a will. Rule as to allowing counsel fees and expenses in cases relating to construction of wills. </p> <p>The will of Viola Phipps, late of Brunswick, contains the following residuary clause:</p> <p>“I give and bequeath to Mildred Strout to hold in trust all the rest and residue of my personal property, and 1 wish it to be distributed to the children of Leon B. Strout and herself or their descendants at such times as she sees fit for their best benefit.”</p> <p>At the death of the testatrix three children of Leon B. Strout and Mildred Strout were living.</p> <p>Upon consideration of the entire will, it is held: that the testatrix intended that the three children should share equally in the legacy so bequeathed; that the shares of the children were fixed beyond the power of the trustee to change; that the time of payment only was postponed; that the trustee took the legal estate; that the three children took the beneficial or equitable estate; that no other interests were bequeathed; that all interests, legal or equitable, vested at the death of the testatrix; and that the residuary clause does not violate the rule against perpetuities.</p> <p>The words “or their descendants” when used in a will are construed to include only lineal heirs in the direct descending line; by the use of these words, the testatrix intended to provide, independently of the statute, R. S., Chap. 79, Sec. 10, that if a child died in her lifetime leaving lineal descendants, such descendants should take the share of the deceased parent.</p> <p>The plaintiff, having instituted this action to wrest the trust estate from the possession of the trustee and to divert the fund to his personal benefit, is not entitled to have his expenses, costs and counsel fees paid from, the trust fund.</p>

<p>Indictment for arson brought under R. S., Chap. 121. After verdict of guilty, and before sentence, respondent filed a motion in arrest of judgment, setting forth that the indictment did not name or describe the kind or location of the building alleged to have been burned and because no judgment could be legally rendered on said indictment. The motion was overruled by the presiding Justice, to which ruling respondent filed exceptions.</p> <p>Case stated in opinion.</p>

<p>. Action of replevin to recover possession of an automobile. Defendant filed plea of general issue, together with brief statement. Verdict for plaintiff. Defendant filed exceptions to certain rulings of the Justice presiding.</p> <p>Case stated in opinion.</p>

<p> Action for malpractice. General rule fixing liability of physician or surgeon. </p> <p>In an action of tort against a surgeon for malpractice it is Held:</p> <p>1. It is not claimed that the defendant did not possess the ordinary skill of members of his profession in like situation.</p> <p>2. The law required him to exercise that skill and to use reasonable care and diligence in his treatment of the case and his best judgment in the application of that skill.</p> <p>3. The evidence does not show that the defendant failed to measure up to the legal requirement in a single particular, either in the care and treatment prior to the two operations, in performing the operations or in the care and treatment subsequent thereto.</p> <p>4. A jury would not have been justified in drawing from the evidence an inference of legal liability on the part of the defendant and therefore the nonsuit was properly ordered by the presiding Justice.</p>

<p> Principal and agent. General rule to be applied to the question as to whether the principal is bound by the acts of his agent when dealing loith third persons who do not hnow the extent of the agent’s authority. </p> <p>In an action of trover to recover the value of certain sample garments sold by a traveling salesman of the plaintiffs to the defendants, the sale was claimed by the plaintiffs to have been without authority and void.. The verdict was in favor of the defendants.</p> <p>Upon plaintiff’s motion and exceptions it is Held:</p> <p>1. Whether or not a principal is bound by the acts of his agent when dealing with a third person, who does not know the extent of his authority, depends not so-much upon the actual authority given or intended to be given by the principal as upon the question, what did such third person, dealing with the agent, believe and have reason to believe as to the agent’s authority from the acts of the principal.</p> <p>2. Under the evidence in this case the jury were justified in holding that the plaintiffs were bound by the acts of their traveling salesman in making this sale.</p> <p>3. That the requested instruction was properly refused as it called upon the court to pass upon disputed questions of fact.</p>

Action on the case to recover certain money paid by plaintiff to defendant on account of the purchase price of a certain automobile truck, plaintiff alleging that there was a breach of warranty in the sale thereof. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $1692.99. Defendant filed motion for new trial and also exceptions to certain rulings and instructions of the presiding Justice. Case stated in opinion.

Action on the case to recover for services claimed to have been rendered defendant town. Defendant filed plea of general issue and also brief statement. By agreement case was reported to Law Court upon certain stipulations and agreements. Judgment in accordance with opinion. Case stated in opinion.

Action on the case by an attorney at law to recover for professional services alleged to have been rendered in behalf of defendant town. Defendant filed plea of general issue and case was reported to Law Court upon certain stipulations and agreements. Judgment in accordance with opinion. Case stated in opinion.

Action on the case by an attorney at law to recover for professional services alleged to have been rendered defendant town. Plea of general issue and brief statement filed by defendant. By agreement of parties case reported to Law Court. Judgment in accordance with opinion. Case stated in opinion.

<p> Wills. Trust estates. Disposition of stock dividends as between life tenants and remaindermen. Rule to be applied where the intention of testator cannot be ascertained. </p> <p>A bill in equity brought by one of the trustees under the will of Oliver Moses, deceased, against his two co-trustees and the children and other descendants of the testator asking the instruction of the court as to the disposition of a stock dividend declared from earnings upon the stock of the Worumbo Manufacturing Company held by the trustees as part of the trust estate.</p> <p>In ascertaining the rights of life tenants and remaindermen as to the disposition of dividends declared from the earnings of corporations upon stock held as part of the corpus of a testamentary trust estate, the intention of the testator so far as manifested by him must of course control, but when he has given no special direction upon the question as to what shall be considered principal and what income, he must be presumed to have had in view the lawful power of the corporation over the use and apportionment of its earnings, and to have intended that the determination of that question should depend upon the regular action of the corporation with regard to all its shares.</p> <p>The stock dividend declared by. the Worumbo Manufacturing Company is to be held in trust as part of the corpus of the trust estate and not distributed as income.</p> <p>In view of decisions in other jurisdictions and the dictum of Gilkey v. Paine, 80 Maine, 349, we think the complainant was justified in seeking the instructions of the court and that it is reasonable that the fund arising from the dividend contribute towards the costs and expenses of the litigation, the latter to include the reasonable counsel fees of the solicitors of the complainant and respondents to be fixed by the sitting Justice. The respondents, however, are to be allowed but one bill of costs,</p>

<p>Appeal from decree of Judge of Probate in the matter of the appointment of an Administrator. Appeal was duly entered at Supreme Court of Probate and from the rulings of the Justice presiding certain exceptions were filed. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action of trespass which was referred, and from the rulings and findings of the referee exceptions taken by the plaintiff. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Deeds. Plans. Rule where lots are deeded according to certain plan: Rule where the distances are given in a deed and the intention clearly gathered from the deed itself hut some reference is made to a plan. General rule to he adopted in the construction of deeds. </p> <p>This is a real action and is before the court on report.</p> <p>The question at issue involves the location of the line dividing lots owned by the contending parties, — the plaintiff’s south line and defendant’s north line.</p> <p> Held: </p> <p>1. The wording of the description in defendant’s deed clearly shows the intention of the parties to be that the grantors were selling what they knew to be a parcel of land from lot No. 1, and not lot No. 1 as originally laid out.</p> <p>2. The use of the plan in the case, as in all cases, is limited to the one purpose as an aid to ascertain the intentions of the parties.</p> <p>3. Here the reference to the plan was solely for the purpose of locating a lot, out of which the land was deeded, and was not a part of the description of the land conveyed. Applying the rule by which our court has been guided since its formation, that 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, must govern our action, we find for the plaintiff.</p>

<p> Negligence. Last Clear Chance Doctrine. Contributory negligence. </p> <p>In an action to recover damages caused to the plaintiff’s motor sprinkling truck, driven by his servant, by collision with a car of the defendant, the jury having returned a verdict for the plaintiff, it is Held:</p> <p>1. That the driver’s own negligence in turning directly on to the track of the defendant without using reasonable efforts to discover whether a car was approaching precludes recovery. His conduct was not that of a reasonably prudent man concerned for his own safety.</p> <p>2. The last clear chance doctrine does not apply. The driver’s negligence actively continued from its commencement up to the moment of collision.</p> <p>3. The verdict is so manifestly contrary to the law and the evidence that it should not stand.</p>

<p>Petition for mandamus brought under R. S., Chap. 51, Sec. 22, seeking to permit the plaintiff to inspect the books of the corporation and make copies of the names of stockholders of the Androscoggin Mills, of Lewiston, Maine.' After hearing, the presiding Justice ruled in favor of plaintiff; to which ruling defendant filed exceptions. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action on the case for libel. Defendant filed plea of general issue and also brief statement setting forth, in substance, that the communication was a privileged one. By agreement of parties, case was reported to Law Court upon certain agreed statements and stipulations. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action to recover the sum due under a policy of insurance issued: by defendant. Defendant filed plea of general issue and also brief statement. Verdict for plaintiff in the sum of $6300. At close of evidence, defendant filed motion asking that the court direct a verdict in favor of defendant. Motion was overruled by presiding Justice; to which ruling, and other rulings of court, defendant filed exceptions.</p> <p>Case stated in opinion.</p>

<p> Rule of ‘practice where demurrer is filed. Right of court to allow plaintiff to amend after filing of demurrer. When an amendment must he fded. Rule of court. Failure to fde amendment according to rule of court. </p> <p>Writ entered at September term, 1917, and general demurrer to the declaration filed at that term. At the next or January term, 1918, hearing was had on the demurrer, the demurrer was sustained and the plaintiff was given leave to amend. At the next or April term, 1918, the plaintiff fded an amendment which was allowed.</p> <p>On exceptions to this ruling it is</p> <p> Held: </p> <p>1. That as no exceptions were taken at the January term to the decision of the presiding Justice sustaining the demurrer and granting the plaintiff leave to amend, his ruling was final.</p> <p>2. When the decision is made by the presiding Justice and no exceptions are taken the statute is silent as to the time when the amendment shall be filed, the language being: “If the declaration is adjudged defective and is amendable, the plaintiff may amend upon payment of costs from the time when the demurrer is filed.” R. S., Chap. 87, Sec. 36.</p> <p>3. This omission however is supplied by Rule of Court No. VIII, which has the force of a statute, and requires the amendment to be filed by the middle of vacation after the term when the order is made, and if the plaintiff neglects to do this judgment of nonsuit shall be entered unless the court for good cause shown shall allow further tiine.</p> <p>4. The amendment in this case should have been filed by the middle of vacation after the January term and being filed at the April term came too late. As no further time was asked for or allowed by the court, the entry of nonsuit should have been made.</p>

<p> R. S., Chap. 87, Sec. 127 interpreted. Actions against executors and administrators. </p> <p>The affidavit provided for in R. S., Chap. 87, Sec. 127, is not admissible in evidence in a case where the defendant is administrator or executor.</p> <p>Nonsuit is properly ordered when on unquestioned facts the action cannot be sustained.</p>

<p>Action by plaintiff as trustee in bankruptcy of Martin S. Guppy to recover the amount of a certain policy of fire insurance issued to said Guppy. Defendant filed plea of general issue and also brief statement. Verdict for plaintiff in the sum of §587.37. Defendant filed motion for new trial, also exceptions to rulings of presiding Justice. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Appeal from decree of single Justice affirming the findings of the Chairman of the Maine Industrial Accident Commission. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Witnesses. Verdict. Burden of proof. General rule where one renders beneficial services to another and the same are accepted and availed of by the person so receiving them. </p> <p>The plaintiff relying upon an implied contract, brought a civil suit against Martha J. Merrill, who died before the case came on for trial, and whose executrix defended it, to recover a balance claimed to be due as wages for labor performed by him from an indefinite time in the year of 1911 to December, 1915, on a farm in Saco. He recovered a verdict for $582.42, a less amount than he sued for.</p> <p>It is elementary to say, that where one renders beneficial services to another, and the latter knowingly and with approbation accepts and avails himself of these services, the law ordinarily supposes a request and a promise to pay what they are reasonably worth, but the hypothesis is by no means conclusive. If a plaintiff produce evidence ample to prove a case .unless answered, and the defendant replies, it then remains to be seen, following the ebb and flow of the testimony, whether that response be sufficient.</p> <p>I*'or the reason that his suit was tried against the legal representative of a deceased person, the plaintiff himself was precluded to testify. He called several witnesses who testified that, during the years he claimed to recover for services, he lived on the farm, and as they passed by or went directly to it, they saw him working there. A witness called by the defendant declared that he was present when the plaintiff and Mrs. Merrill entered into a contract by the terms of which the former was to go to live on the farm, and keep it in order, for what it would yield; excepting that, as was otherwise shown, of the hay crop he should have only sufficient for fodder for his horse.</p> <p>Witnesses are to be judged not so much by numbers as by the weight of the evidence given by them. And the weight of the evidence depends upon its effect in inducing belief. Simple, natural and reasonable narration by a single witness from personal knowledge, of the essentially complete details of a transaction should, and does, stamp conviction on an impartial mind conscientiously seeking truth, to a greater degree than the aggregate testimony of several witnesses, each apparently as reliable and as honest as the single one, but aware only partially of the facts of the case, and whose attestations are equally consistent with the contention of either of the opposite litigants.</p> <p>In this case it appears that the verdict was not founded on a careful scrutiny and examination of the evidence. It is so palpably wrong as to necessitate the court to set it aside and grant a new trial.</p>

<p>Action to recover certain sum of money as contribution on account of a judgment rendered against plaintiff and defendant, which judgment was paid by plaintiff. Cause was reported to Law Court upon certain agreed statements and stipulations. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action on the case to recover damages caused by the alleged negligence of defendant company. Verdict for plaintiff in the sum of $775. Motion for new trial filed by defendant, and also exceptions to certain rulings of presiding Justice.</p> <p>Case stated in opinion.</p>

<p> Bill in equity. Construction of wills. </p> <p>Where under a will the final distribution of balance of trust fund is postponed until death of Sarah M. Roberts, Held:</p> <p>Until such time, it is not necessary to determine or advise as to whom such distribution shall be made, since future conditions, and future existence of the persons to whom distribution may be made, can only be determined hypothetically.</p>

<p> Foreclosure of mortgages. Right of redemption where mortgagee has entered upon the ■premises and held them adversely for twenty years. Rights of parties to redeem from mortgage. When redemption must he sought. </p> <p>If the plaintiff in a bill in equity files a replication and afterwards consents that the cause may be reported to the Law Court for decision upon the bill and answer, the replication is waived and the facts stated in the answer are to be taken as true.</p> <p>It is well settled that if a mortgagee enters into possession of the mortgaged premises after condition broken without taking the steps provided by statute to foreclose the mortgage, it is open to redemption for twenty years. But if the mortgagor and those claiming under him permit the mortgagee to hold possession for twenty years without accounting and without admitting that he holds only as mortgagee, his title becomes absolute and the right of redemption is lost.</p> <p>It is the adverse character of the possession, and not the mere fact of possession by the mortgagee for twenty years that will operate to convert the mortgage title into an absolute one.</p> <p>A mortgage was dated and delivered March 16, 1878; the mortgagor and the plaintiff were married in the year 1886; mortgagor died May 3,1901, leaving the plaintiff as his widow.</p> <p>Held: That under R. S., Chap. 80, Sec. 17, the plaintiff was entitled to her right and interest by descent in the mortgaged premises, as against every person except ' the mortgagee and those claiming under him; and that she had such an interest in the mortgaged premises as would permit her to redeem from the mortgage in the lifetime of her husband.</p>

<p>Action of assumpsit to recover on a promissory note given by the defendant to his wife and by her delivered to the plaintiff, her daughter, as a gift causa mortis. The defendant contended that the gift was invalid as against himself as surviving husband. The same question was raised on the probate appeal. In both cases the Court ruled that the gifts were valid. To this ruling the defendant excepted.</p> <p>Case stated in opinion.</p>

<p> Contract of insurance. Vacancy clauses. Effect upon policy where vacancy is shown to exist longer than the time allowed under the terms of the policy. </p> <p> Rule as to such vacancy voiding a policy where the same is made payable to a mortgagee. </p>

<p>Action of assumpsit upon account annexed. Defendant filed plea of general issue, also brief statement. At close of evidence presiding Justice directed verdict for plaintiff, to which ruling exceptions were filed. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Common carriers. Carmack Amendment. Rule before enactment of Carmack Amendment permitting common carriers to limit liability over their own lines. Rights of shipper under Carmack Amendment to bring action against any of the earners of .an interstate shipment. </p> <p>Plaintiff’s employe forwarded to them at New York City from Batavia, Iowa, a car of bagged hickory nuts. Shipment was made by the Chicago, Burlington & Quincy Railroad as initial carrier. In due course, the shipment reached destination, the car intact as the first carrier had sealed it, over the line of the principal defendant, the New York Central Railroad Company, as terminal carrier. Claiming a loss of 142 bags of nuts, plaintiffs sued the latter, counting on default of its responsibility as a common carrier of goods.</p> <p>Held: The accountableness created by the Congress of the United States, on the part of the initial carrier of goods in interstate commerce, does not preclude the right to enforce responsibility against the particular carrier on whose line loss, damage, or injury was occasioned. Indeed, the statute expressly preserves such right. To maintain the action, when the suit is against other than the initial carrier, the evidence must establish the fact not merely that there was loss, damage, or injury to the shipment in the course of its transportation in interstate commerce, but that such loss, damage, or injury was caused by the carrier named as defendant.</p>

Action of assumpsit to recover for services rendered by plaintiff to defendant’s intestate. Defendant filed plea of general issue and, by way of brief statement, as a special matter of defense, pleaded a certain foreign judgment. Verdict for plaintiff in the sum of $1195.91. Defendant filed exceptions to the ruling of presiding Justice, excluding the foreign judgment which defendant had specially pleaded and offered in evidence in bar of plaintiff’s suit.

<p> Lease and agreement. Mortgage. Evidence. Exceptions. Waimer. Equitable defenses and pleading. </p> <p>An Aroostook County farmer, of the name of Napoleon Bell, went from his home to the store of the plaintiffs, and negotiated with them for a supply of fertilizer. Their trading merged in a written agreement under seal, variously styled in the ease a “contract” or “lease”, which concerned the defendants’ farm and its contemplated crop, and constituted a security for the payment of the purchase price of the fertilizer; a payment the one was obligated to make, and the others were bound to receive, in potatoes at an agreed price of one dollar a barrel.</p> <p>About three months later, after Bell had received the commercial manure, he and his wife gave to the plaintiffs a mortgage of the aforesaid farm, the recited consideration corresponding in amount with that of the charge for the fertilizer, namely $234.00. The mortgage is defeasible, to quote its terms, if the mortgagor, “shall truly perform the conditions of the potato contract and lease . . . and in default thereof the sum of Two Hundred and Thirty-four Dollars shall immediately become due and payable. This mortgage is given as collateral security for the performance of said contract and does not deprive the grantees of any right of action for broach of its conditions. If the property herein described is sold before fall the mortgage will be discharged on payment of $234.00.”</p> <p>Well within the appointed time, Bell delivered to the plaintiffs one hundred and thirteen barrels of the specified kind of potatoes, actually worth somewhat more than 822.00 in excess of the amount of the charge for the fertilizer. He declined to deliver more to apply on the fertilizer account. Thereupon the plaintiffs brought this action of covenant broken, counting on breach of the original agreement.</p> <p> Held: </p> <p>1. That the two documents, although executed at different times, were parts of the same transaction and that in respect to damages they should be taken and construed together.</p> <p>2. The rights and liabilities of the parties at first were fixed by the lease or contract. It was perfectly competent for them in succeeding time to waive or annul that contract, or to add to or to subtract from it, or to give and take security for its fulfillment or to vary and modify its terms. The two documents should be read together and each construed with reference to the other, to the • end that the intent of the parties, what they particularly meant, as they defined and recorded that meaning, shall control.</p>

<p>Action on the case to recover commissions claimed as due plaintiff on account of sale of defendants’ lands. The defendant, Oramandel Blanchard, entered no appearance, and in behalf of Ella J. Blanchard a plea of general issue was filed. At the close of testimony, by agreement of parties case was reported to Law Court. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Bill in equity to foreclose a trust mortgage given by the Mount Waldo Granite Company to the Peoples’ Trust Company of the State of New York. Cause was heard upon bill, answer and replication. Judgment in accordance with opinion. Case stated in opinion.

<p>Action on the case to recover upon two policies of insurance issued by defendant company. Defendant filed plea of general issue; also brief statement. At close of evidence case was reported to Law Court upon certain agreed statements and stipulations. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Action of trespass quare clausum. Defendant filed plea of general issue and also brief statement, setting forth in substance a right in defendant to pass and repass over said land upon which the trespass had been alleged to have been committed. The case was withdrawn from the jury and reported to the Law Court. Judgment in accordance with opinion. Case stated in opinion.

<p>Action on the case to recover damages which the plaintiff claims to have received by reason of defendant company cutting its wires which furnished light and power to the blacksmith shop of the plaintiff. Defendant filed plea of general issue. The case was heard before Justice of the Superior Court, Androscoggin County, without jury. Judgment was rendered for plaintiff in the sum of $150.00. To the findings of the presiding Justice exceptions were filed by defendant. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action on the case to recover damages on account of the alleged wrongful taking, by right of eminent domain, by the defendant company of certain lands of the plaintiff. Defendant filed plea of general issue and also brief statement. At close of evidence, by agreement of parties, case was reported to Law Court upon certain agreements and stipulations. Judgment in accordance with opinion.</p> <p>Case stated in opinion.'</p>

Petition under R. S., Chap. 82, Sec. 56 and Rule 43 of Supreme Judicial Court to establish the truth of certain exceptions to the rulings of the Justice of the Superior Court, Cumberland County. The moving party in the matter of exceptions was the defendant in an action entered at the Superior Court, Cumberland- County. The plaintiff filed motion to amend his writ, which motion was allowed by the Justice presiding.

<p>Bill in equity asking that defendants be restrained from cutting off supply of water running to the plaintiffs property. Cause was heard upon bill, answer and proof, and by agreement of parties case was reported to Law Court. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Actions o?i account of defective ways. History of law governing notice in such cases.</p> <p> General rule to he applied in determining the sufficiency of such notice. General purpose of notice. Necessary description as to injuries to person. </p> <p> Buie as to description where claim is made for injuries to property. </p> <p>Action to recover for personal injuries sustained by the plaintiff, and for damages done to his automobile, by reason of an alleged defective road or way, which by law defendant town was obliged to repair. The defendants claim that the notice required by R. S., Chap. 24, Sec. 92, was deficient. The case comes to us upon the question of the notice, with a stipulation that if the notice is sufficient the case shall stand for trial, otherwise plaintiff to become non-suit.</p> <p> Held: </p> <p>1. Notices in this class of cases are not to be very strictly construed. The main object of the notice is that a town may have an early opportunity of investigating the cause of an injury and the condition of the person injured before changes may occur essentially affecting such proof of the facts as may be desirable for the town to possess; and a minor purpose of such notice would be perhaps that the town should have a favorable chance to settle the claim before being sued for it should they see fit to do so.</p> <p>2. That the notice sufficiently specifies the nature and the location of the defect that caused the injury.</p> <p>3. That the notice sufficiently specifies the nature of the plaintiff’s bodily injuries.</p> <p>4. That while in actions of this kind the notice must specify the nature of his bodily injuries, yet the statute does not require such specification as to the damage to personal property.</p> <p>5. The notice is sufficient with reference to the nature of the damages to personal property in the case at bar.</p>

<p> Landlord and tenant. Facts constituting abandonment of rights under lease. How lease may be terminated. </p> <p>This case involves an alleged eviction by the defendant and comes up on report. The plaintiff had a written lease of the premises, which he had vacated, but claimed not to have surrendered. The defendant claimed the premises had been surrendered by mutual consent.</p> <p>While several questions of law are raised in the briefs on each side, the case is finally resolved into a simple question of fact: Did the plaintiff abandon and surrender his leasehold rights?</p> <p> Held: </p> <p>1. That the defendant has sustained the burden of proof upon the question of abandonment and surrender.</p> <p>2. That R. S., Chap. 78, Sec. 16, does not prevent proof of surrender by “act or operation of law.”</p> <p>3. That surrender was so accomplished in the present case.</p>