Volume 118 — Maine Reports

<p>' Bill in equity asking for the partition of certain real estate in the City of Rockland, Knox County, State of Maine. The cause was heard upon bill, answer, replication and evidence, and from the findings of the sitting Justice an appeal was taken. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Action on the case to recover damages for alleged fraud and misrepresentation in regard to a certain farm sold to plaintiff by defendants. Defendant filed plea of general issue, also brief statement. Verdict for plaintiff in the sum of $1331.24. Defendant filed motion for new trial; also exceptions to certain rulings of presiding Justice. Judgment in accordance with opinion. Case stated in opinion.

Indictment for violation of the provisions of R. S., Chap. 130, Sec. 1, as amended by Chap. 126, Public Laws, 1917. After verdict of •guilty, respondent filed certain exceptions to the rulings of presiding Justicé. Judgment in accordance with opinion. Case state in opinion.

Action for libel, entered at January term, Supreme Judicial Court, 1918, Knox County. The plaintiff is described in the writ as of Camden, Knox County, State of Maine, and the defendant as of New York, State of New York. At September term, 1918, defendant filed motion to remove said action to the United States District Court upon the grounds of diverse citizenship. Motion was overruled by presiding Justice, to which ruling exceptions were filed. Exceptiohs overruled.

<p> Legacies; when 'payable. Rule under the Common Law. Amended by R. S., 1916, Chap. 70, Sec. 36. Rule as to Statutes being prospective in their operations. </p> <p>Action of debt to recover a legacy. The only point in controversy is the date from which interest should be computed.</p> <p>The testatrix died on February 26, 1914. Her will was allowed and admitted to probate on May 12, 1914. An appeal was taken to the Supreme Court of Probate and exceptions were there taken to the Law Court. The exceptions were overruled and the decree of the Probate Court affirmed on January 3,1916. Then a petition was filed to revoke and vacate the decree of May 12, 1914. Final decision dismissing this petition was rendered on November 24, 1917.</p> <p>At the time of the allowance of the will there was no statute in this State prescribing the time when pecuniary legacies should be due and payable. But the general rule prevailed, here as elsewhere, in the absence of statute, that such legacies were due and payable in one year after the death of the testatrix when no time of payment was specified in the will and there were assets belonging to the estate subject to legacies.</p> <p>In 1915 the Legislature changed the rule then prevailing and created a statutory rule to the effect that legacies should be paid in one year after final allowance of the will. This act took effect in July, 1915.</p> <p> Held: </p> <p>1. The time of payment of the legacy in this case was not affected by this statute. On February 26,1915, one year after the testatrix died, this plaintiff was entitled to her legacy. Interest began to run from that date, and interest after that date was a vested right which was not affected by the subsequent statute.</p> <p>2. The plaintiff’s claim however as set out in the writ is for the legacy with lawful interest thereon only from January 3, 1917. It is beyond the power of this court to order judgment for a greater sum than is demanded in the writ.</p>

<p> General rule as to reversing the decision of single Justice in equity cause upon issues of facts. Rule as to decisions of sitting Justice upon questions of law. Meaning of word “dependent." </p> <p>The presiding Justice sitting in equity held that Margaret O’Leary, an adult sister of William S. O’Leary, was a dependent oi the latter so as to entitle her to the death benefit provided for by the constitution of the Cigar Makers International Union, of which unorganized society William was a member at the time of his decease. The case comes to the Law Court on appeal.</p> <p>The appellee relies upon cases holding that the decision of a single Justice in equity will not be reversed unless clearly erroneous, and that the burden of' showing such error is on the appellant.</p> <p> Held: </p> <p>1. That this rule is true as to issues of fact where the sitting Justice enjoys the opportunity denied to the Law Court of observing and hearing witnesses by whom the facts are established.</p> <p>2. In passing upon questions of law, the presiding Justice occupies no such vantage ground. The opinion of the single Justice may produce conviction, but upon issues of law it brings with it no presumption.</p> <p>3. The meaning of the word “dependent” as judicially interpreted in this and other States rests upon duty, not bounty; upon continuing obligation, not occasional giving; upon services imposed or undertaken, not upon favors voluntarily bestowed. True, the duty or obligation which it comprehends may be moral rather than legal, but the impulse that moves a brother to make gifts to his adult sister does not create the relation of dependency as the term is judicially defined.</p>

<p>Bill in equity asking that a certain bill of sale given by one of the defendants to the other be declared null and void, and further that the said defendants be enjoined from disposing of the property mentioned, in said bill of sale. Cause was heard upon bill, answer, replication and evidence, and by agreement of parties was reported-to Law Court. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Indictment for maintaining a liquor nuisance. Jury returned verdict of gtfilty. Exceptions were filed by respondent to certain rulings of presiding Justice. Exceptions sustained.</p> <p>Case stated in opinion.</p>

Bill in equity to enforce a lien under Revised Statutes, Chap. 96, Secs.- 29-30. Cause was heard upon bill, answer, replication and agreed statement, and by agreement case was reported to Law Court for' final determination. Judgment in accordance with opinion. Case stated in opinion.

<p>Action on the case to recover damages on account of the alleged negligence of defendant. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $165.00. Defendant filed motion for new trial. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Bill in equity asking for the construction of will of Virginia D. Austin. Cause was heard before single Justice upon bill, answer and replication, and by agreement of parties same was reported to Law Court for determination. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Reports of referees. Acceptance of same. Exceptions to ruling of court accepting referee’s report. General rule covering discretion of court in such matters. </p> <p>On exceptions to the ruling of the presiding Justice, accepting the report of referees appointed under a rule of court, it is Held:</p> <p>1. The acceptance of the report of referees is a matter of judicial discretion and when that discretion is judicially exercised, the decision of the presiding Justice is final and conclusive.</p> <p>2. By making the ruling of another Justice at a previous term upon the recom-mitment of the report, a part of the bill of exceptions, the scope of inquiry is not enlarged and the correctness of the ruling of the former Justice cannot be examined here, when no exceptions to that ruling were taken. That ruling could have been brought before this court only by exceptions duly signed and allowed by the Justice who made it or by one of the methods prescribed by R. S., Chap. 82, Secs. 55 and 56.</p>

<p> Rule of 'practice in regard to probate appeals. </p> <p>This case is before the Law Court on exceptions to a ruling of the presiding Justice dismissing an appeal from a decree of the Judge of Probate of Knox County.</p> <p>The will and codicil were'allowed by'the Judge of Probate, July 7th 1915. Prom the decree allowing the same, appeal was taken and was by this court dismissed.</p> <p>The appellant states in the appeal and reasons for appeal “that the codicil should have been declared null and void for the reason that the testator at the time of making said codicil was of unsound mind and incapable of making a codicil to said will.”</p> <p> Held: </p> <p>1. . This contention was disposed of by the decree of the Judge of Probate, July 7, 1915, and there is no provision of the statutes authorizing a reopening of the question by the method here adopted by the appellant.</p> <p>2. The ruling of the presiding Justice was in harmony with the law governing probate proceedings in this State.</p>

<p>Wills. General rule of law to be applied in the interpretation of R. S., Chap. 79, • Sec. 9.</p> <p>It is a presumption of the law, that the omission to provide for a child, or the issue of a deceased child, living when a will is made, is the result of forgetfulness, infirmity, or misapprehension, and not of design. But this presumption is rebuttable. With the wisdom or propriety of the act of the testator, in preter-mitting his child from his will, the law has nothing to do.</p> <p>That such omission was intentional, or was not occasioned by mistake, on the part of the testator, may be established by evidence extrinsical the will itself. All the relevant facts and circumstances, including the intention of the testator as he declared it before, at, or after the making of the will, may be shown.</p> <p>In the instant case, the proof is adequate and convincing, that, the child then being present to his mind, the testator, when the will was made, purposely disinherited him. It, therefore, is conceived by the court to be its duty to sit aside and disregard the verdict of a jury otherwise advising. . It is neither necessary nor desirable again to send the case to a jury. The mandate to the court below will be, that the omission of the appellant’s ward from devise in the will of the ward’s father, Robert C. Foster, was intentional, and not occasioned by mistake, on the part of the testator. The decree of the Probate Court denying that petition for the payment to appellant’s ward of the same share of the estate of the testator, as he would have taken if no will had been made, is affirmed.</p>

Action on the case to recover damages on account of alleged negligence on part of the defendant. Defendant filed plea of general issue and also brief statement. Verdict for plaintiff in the sum of two hundred dollars. Defendant filed motion for new trial. Motion sustained. Verdict set aside. Case stated in opinion.

Action to recover damages for false arrest. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $931.25. Motion for new trial filed by defendant. Motion overruled. Case stated in opinion.

<p>Bill in equity asking that the discharge of a certain mortgage be decreed as invalid and that said mortgage so discharged be decreed to be in full force and effect. Cause was heard upon bill, answer and replication and proof. From the decision of the single Justice, an appeal was taken by defendants. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Complaint and warrant under R. S., Chap. 45, Sec. 35. Respondent filed demurrer with right to plead anew if demurrer was overruled. Presiding Justice overruled demurrer and respondent filed exceptions. Exceptions sustained. Demurrer adjudged good. Case stated in opinion.

Action of assumpsit to recover the value of certain goods delivered to a person other than defendant Lewin. Defendants filed plea of general issue. Verdict for plaintiff in the sum of $430. Defendant filed motion for new trial; also exceptions to certain rulings of presiding Justice. Exceptions sustained. Case stated in opinion.

<p> Probate appeals. Buie as to the findings of the Justice of Supreme Court of Probate in waiters of fact being conclusive. Rule as to his findings being renewable on exceptions. </p> <p>Appeal from and exceptions to the decree of a Justice of the Supreme Court of Probate.</p> <p>1. There is n'o provision of statute for an appeal from a decree of the Justice of the Supreme Court of Probate and such attempted appeal cannot be entertained or considered.</p> <p>2. Exceptions to the decree of a Justice of the Supreme Court of Probate raise only questions of law. If as matter of law there is no evidence to sustain the decree then the exceptions must be sustained, otherwise overruled.</p>

<p>Appeal from the decision of the Industrial Commission. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Bill in equity brought under R. S., Chap. 7, See. 87. Cause was heard upon bill, answer and proof, and from the decision of the sitting Justice an appeal was entered according to R. S., Chap. 7, Sec. 89. Judgment in accordance with opinion. Case stated in opinion.

Probate Appeal in the matter of will of Barney F. Rawley. To the rulings of the Justice at Supreme Court of Probate, appellant filed exceptions. Judgment in accordance with opinion. Case stated in opinion.

<p> General rule oj Procedure governing probate appeals. Supreme Court of Probate. Powers of sitting Justice of Supreme Court of Probate. Buie governing verdict of jury upon issues submitted by presiding Justice. Supreme Court of Probate as distinguished from Caw Court. Distinction between cases going to Law Court upon motion and cases going on report. Bight of appeal when court sitting as Justice of Supreme Court. Bight of appeal when silting as Supreme Court of Probate. </p> <p>This is a probate appeal. On the fourth day of September, 1917, the Judge of Probate of Lincoln County by proper decree allowed the last will and testament of M. Amanda Ford. From that decree an appeal was taken to the Supreme Court of Probate for Lincoln County. At the October term, 1917, the appeal was heard, and two questions of fact were submitted to the Jury, one, whether at the time of execution of the will the testatrix was of sound and disposing mind and memory, and the other whether said instrument was her voluntary act uncontrolled and uninfluenced by others. To each question, an affirmative answer was returned. Counsel for appellant filed thereupon a simple motion for new trial addressed to the Law Court, without any decree being made by the Supreme Court of Probate.</p> <p> I-Ield: </p> <p>1. As a matter of strict statutory construction, it may well be doubted whether this course of procedure is correct; but in view of the fact that such a practice has been of long standing, a majority of the court do not feel compelled to dismiss the motion on this ground without considering the merits of the case. If the customary procedure is to be changed or modified, it had best be done by rule of court.</p> <p>A careful examination of the record to determine the merits of the controversy leads irresistibly to the conclusion that the findings of the jury were in strict accord with the testimony, and that the decree of the Judge of Probate in allowing the will was without error.</p>

<p>Action of trover. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $476.26. Defendant filed motion for new trial. Motion overruled.</p> <p>Case stated in opinion.</p>

<p>Appeal from findings of single Justice under Workmen’s Compensation Act. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Action on the case to recover damages for loss of services caused by the alleged negligence of defendant. Defendant filed plea of general issue. Verdict for defendant. Plaintiff filed exceptions to certain rulings of presiding Justice and also motion for new trial on the ground of newly discovered evidence. Judgment in accordance with opinion. Case stated in opinion.

<p>Action of assumpsit with count annexed and also a general count of quantum meruit under which the plaintiff alleged that he would prove the items and charges set out in the account annexed. Defendant filed plea of general issue. Verdict for plaintiff in the sum of 113,736.23. Defendant filed exceptions to certain rulings of presiding Justice in regard to offering proof of damages caused to defendant by plaintiff's failure to carry out the terms of the special contract, which was offered in evidence and which was the basis of the action, defendant claiming proof of damages could be offered under plea of general issue. Exceptions sustained.</p> <p>Case stated in opinion.</p>

<p> Superior Courts. General rule covering right of appeal to Law Court from Superior Courts. </p> <p>Indictment brought under Revised Statutes, Chap. 126, Sec. 2, Superior Court, Cumberland County.</p> <p> Held: </p> <p>That an appeal lies from the Superior Court to the Law Court under R. S., Chap. 136, Sec. 28.</p>

<p> Rule of practice as to making and fding exceptions. Effect of record shovñng “exceptions fded and allowed.” Rule as to allowance of exceptions where presiding Justice has become incapacitated. R. S., Chap. 82, Sec: 66, interpreted. General rule of practice as to facts in prior proceedings being considered res judicata where new trial has been granted for any cause. </p> <p>Where an entry of “exceptions filed and allowed” is made before the close of a term by consent of parties, the presentation of the bill of exceptions to the presiding Justice for his approval after the adjournment of the term will be considered as done as of the date of the entry.</p> <p>Where an entry of “exceptions filed and allowed” has been made before the close of the term by consent of parties, and a bill of exceptions has been duly made up and presented to the presiding Justice, though after the adjournment of the term at which they were allowed, and before allowance the presiding Justice has become incapacitated for allowing them for any of the reasons assigned in Sec. 56 of Chap. 82, R. S., any Justice may upon motion and hearing allow them.</p> <p>When a now trial is granted for any cause, the proceedings begin de novo, and no facts determined in the prior proceedings can be considered res judicata.</p>

<p> Revised Statutes, Chap. 50, Sec. 34, interpreted. Burden of proof in claims arising under Workman’s Compensation Act. Necessary elements to be proven. General rule as to admissibility of statements made by deceased or injured person as to the manner of receiving the injuries. Rule as to admissibility of statements showing physical condition. Findings of fad by Chairman of Industrial Accident Commission as compared with findings of fact by Justice in equity proceedings. Rule as to invoking fraud to defeat commissioner’s findings of facts. Rule where the natural and reasonable inference from the facts proven is that the accident happened while the deceased was engaged in his employment and employer disputes same upon whom is the burden of proof. Rule as to employee dying at his post of duty being presumed to be at the time of his death in the performance of his duty and engaged in the work for which he was employed. </p> <p>Proceeding under the Workman’s Compensation Act.</p> <p>William Mailman, a night watchman in a foundry, began work as usual on the evening of April 18, 1917. The following morning he was discovered at the foundry in a state of collapse. To the man who found him he exclaimed “I got hurt.” The Chairman of the Industrial Accident Commission permitted the introduction of testimony showing that Mailman afterward told that and how he was accidentally injured while doing his work at the foundry during the night. The Chairman, however, in his decree certifies that in making his finding of fact he wholly disregarded this hearsay evidence.</p> <p>Mailman developed peritonitis and pneumonia and died on April 27, 1917.</p> <p>It was contended and, on the other hand, denied that Mr. Mailman’s pneumonia was traumatic, i. e., that it was superinduced by trauma, or injury. There was testimony that a red mark was found on his chest which turned black when blood poisoning set in. There was some medical testimony to the effect that the sequence of symptoms was more consistent with traumatic pneumonia than with illness otherwise caused.</p> <p>The Chairman found Mailman’s fatal illness was traumatic and that it was the result of an accident arising out of and in the course of his employment by the defendant and made an award to the dependent widow.</p> <p>From a formal decree of a single Justice in accordance with the Chairman’s finding the case comes up on appeal.</p> <p> Held: </p> <p>In the hearing before the Commission the plaintiff has the burden of proof. To sustain the decree it must appear that there was produced at the trial of facts competent legal evidence of three things, to wit: that the deceased died, or was disabled, as the result of (1) an accident arising (2) out of, and (3) in the course of his employment by the defendant.</p> <p>In the absence of fraud the Chairman of the Industrial Accident Commission is under the statute final Judge of the facts. When the evidence is direct the court will not review the Commissioner’s finding in respect to the credibility and weight of testimony.</p> <p>The decree of the Commissioner is analogous to a finding of a Judge who by consent determines facts or (as indeed it is) an award by a referee agreed upon by the parties! That such a finding or award cannot be impeached by showing errors of judgment, however gross, as to the weight and credibility of testimony, is settled by so many authorities that citation is unnecessary.</p> <p>In a case proved-wholly, or in part, circumstantially, where there is a dispute as to what the circumstances are, the determination of such dispute by the Commissioner is final. It is for the trier of facts, who sees and hears witnesses, to weigh their testimony and without appeal to determine their trustworthiness.</p> <p>When the evidence is circumstantial and a state of facts is shown more consistent with the Commissioner’s finding than with any other theory and the finding is supported by rational and natural inferences from facts proved or admitted, an appeal cannot be sustained.</p> <p>The Workman’s Compensation law is not violative of the Constitution in respect to the method by it provided for the exclusive determination of issues of fact. Being elective it does not deny or abridge the right of jury trial.</p> <p>The admission by the Commissioner of plainly incompetent hearsay testimony does not require the court to disturb the decree unless such decree was in whole, or in part, based on such inadmissible testimony.</p> <p>The spontaneous exclamation of the helpless pian “I got hurt” was properly admitted. But only as tending to show the physical condition of the deceased at the time.</p> <p>Evidence was produced both in support of and in denial of the proposition that Mailman’s illness was traumatic, i. e., caused by injury. The weight and credibility of this testimony was entirely for the Commissioner.</p> <p>The Chairman found and determined that Mailman’s fatal illness was traumatic and was due to an accident arising out of and in the course of his employment by the Record Foundry & Machine Company. This inference is not unnatural or irrational and is more consistent with the proved or admitted facts than is.any other theory.</p>

<p> Insurance contracts. General rule as to the beneficiary having a vested interest in same. Rule as to constitution and by-laws of a fraternal beneficiary association being part of the contract. Right.of association to change its by-laws so as to affect the rights of person already insured. General rule in respect to liability of insurance companies where the insured has committed suicide. </p> <p>The constitution and by-laws of a fraternal beneficiary association, in respect to which the beneficiary contract of insurance was entered into, so far as applicable, form a part of the contract itself.</p> <p>Where the by-laws of a fraternal beneficiary association provide that the member may, in accordance with such by-laws, change the beneficiary named in the benefit certificate without the latter’s consent, the beneficiary has no vested interest either in the certificate or the money to be paid under it. Such beneficiary has during the lifetime of the member, a mere expectancy; this expectancy is not property.</p> <p>When in an action by the widow of a member to recover the amount of the death benefit named in the benefit certificate expressly made payable to her, it appears that the member committed suicide, but the case is silent as to his sanity or insanity at the time, the presumption of sanity must be entertained, and for the purposes of the case, the member must be considered as sane at the time of his suicide.</p> <p>Where the by-laws in force when the original benefit certificate was issued, contained the following provisions only relating to suicide of a member, viz: “No benefit shall be paid on account of the death of any member who within three years next after becoming a beneficiary member voluntarily takes his own life, and, provided further, that any member who within three years after changing his Benefit Certificate from a lower to a higher rate, voluntarily takes his own life, shall thereby forfeit all right to participate in the Benefit Fund beyond the amount named in the Benefit Certificate issued for such-lower rate;” and later the by-laws were duly amended by providing “that after three years from the date of initiation or transfer to a higher rate, death by suicide, whether the member be sane or insane, and whether the act be voluntary or involuntary, shall constitute a hazard not assumed under the ordinary condition of the certificate of membership and the constitution and General Laws; but in all such cases the liability of the Order shall be limited to an amount equal to the total of the sums paid into the benefit fund by any such member; but in no case shall the sum so paid exceed the amount named in the benefit certificate;” it is held that it was undoubtedly the intention of the members of the order in adopting the amendment, that it should apply to the existing as well as future membership, and to certificates of membership then outstanding as well as those thereafter issued; it did not apply to death claims then pending.</p> <p>When, in an action by the widow of a member upon a benefit certificate expressly made payable to her, issued when such original by-law was in force “and upon condition that the said Member complies in the future with the laws, rules and regulations now governing the said Commandery and Fund, or that may hereafter be enacted by the Supreme Commandery to govern said Com-mandery and Fund,” — it appears that the by-laws further provide that the member may in accordance with such by-laws, change the beneficiary named in the benefit certificate without the latter’s consent, and .it further appears that the member committed suicide when sane after three years from date of becoming a member, and after such amendment to the by-laws became effective, it is held that the plaintiff did not obtain a vested interest in the certificate in question at the time the same was issued or in the money to be paid thereon, which could not be defeated by a change in the terms upon which the death benefit should be payable, made in accordance with the constitution and bylaws of the Order, although without her actual knowledge and consent; that she had during the lifetime of her husband a mere expectancy dependent upon the terms of the contract existing at the time of his death and that the amended by-law is applicable to the certificate in suit.</p>

<p>Action of assumpsit to recover upon a policy of insurance issued by defendant company. The plaintiff claimed that on account of interest, prejudice and bias on the part of the alleged referee nominated by the defendant, and on the part of the alleged third referee, the alleged award was void. The defendant seasonably filed a general and special demurrer to the plaintiff’s declaration, which was joined in by the plaintiff. The presiding Justice overruled the defendant’s demurrers and allowed the defendant to plead over in the event the Law Court should overrule the defendant’s exceptions; to which ruling the defendant filed exceptions. Exceptions overruled.</p> <p>Case stated in opinion.</p>

<p> Intoxicating Liquors. Revised Statutes, Chap. 127, See. 21 interpreted. Rule to be applied in determining whether certain extracts or preparations are intoxicating liquors vñthin the meaning of the statute. </p> <p>Complaint and warrant and libel of certain extracts, liquors or compounds known as Jamaica ginger. The liquors libeled consist of a quantity of each of three different grades of Jamaica ginger, seized at claimant’s extract manufacturing plant in Portland. The three grades are represented by State’s Exhibit 1, which is claimed to be a medicinal preparation made in accordance with the formula prescribed by the United States Pharmacopeia, and containing 93 per cent, of alcohol, and State’s Exhibits 2 and 3, claimed to be flavoring extracts, and containing respectively 28 and 55 per cent, of alcohol.</p> <p>The question presented is whether any or all of the different grades of extracts represented by said exhibits are intoxicating liquors within the meaning of Revised Statutes, Chap. 127, Sec. 21.</p> <p> Held: </p> <p>1. The intent of the claimant that the Jamaica ginger should be used only as a medicine or for household purposes, and not as a beverage, does not control in this case.</p> <p>2. If its composition is such that it is practicable to commonly and ordinarily drink it as a beverage and drink it in-such quantities as to produce intoxication, then it is intoxicating liquor within the meaning of the statute. It is immaterial whether the plaintiff had any knowledge for what purpose the liquors were purchased if they were in fact intoxicating liquors and intended by the purchasers for illegal sale in this State.</p> <p>3. It is the opinion of the court that the Jamaica ginger now held in this case is an intoxicating liquor within the meaning of Sec. 21, of Chap. 127, R. S., It therefoz'e follows that any sale thereof is an unlawful sale, and any possession for the purpose of sale is an unlawful possession under R. S., Chap. 127, Secs. 27 and 28.</p>

<p> Right of court to discharge jury and continue capital case under certain conditions. What constitutes being placed in jeopardy. Rule as to what conditions may operate as a bar to a plea of former jeopardy. Right of respondent or accused to be present when jury are taking a view of the premises. May the right to be present be waived by accused. Weight of authority as to purpose of a view. Right of jury to receive testimony of witnesses or evidence ■ in any form during a view. </p> <p>1. Where a respondent, charged with an offense punishable by imprisonment for life, does not demand a trial at the “first term” after the finding of the indictment, Sec. 25 of Chap. 136, R. S., does not by implication preclude the continuance of the case by order of court to a later term, but leaves it subject to the common law and the discretion of the presiding Justice, as modified by the provisions of Sec. 11, Chap. 136, R. S., and Sec. 6, Article 1 of the Constitution of Maine.</p> <p>2. Sec. 11, Chap. 136, R. S., was designed to carry out the provisions of Sec. 6, of Article 1 of the Constitution in guaranteeing a “speedy trial,” but silence on the part of the respondent cannot be constructed as a demand for trial. Where no demand for trial at the “first term” is made by the respondent, a trial at the “second term” is a compliance with Sec. 6 of Article I of the Constitution; and where no demand for trial is made by the respondent at the “first term,” an exception to the order of the court continuing the caso to the “second term” cannot be sustained. The “first" and “second” terms within the meaning of Sec. 11, Chap. 136, are the first and second terms respectively after the term at which the indictment was found.</p> <p>3. Where at the “second term” after the finding of the indictment, the case is not in order for trial owing to the voluntary act of the respondent in prematurely causing the case to be transferred to the Law docket, he must be held by such act to have waived his right of trial at the “second term,” and a motion to quash the indictment on the sole ground that he was not placed on trial at the “second term” according to the provisions of Sec. 11, Chap. 136, was properly overruled.</p> <p>4. Jeopardy in a criminal case begins when a jury has been impanelled and sworn. A respondent once in jeopardy is entitled to a verdict of guilty or acquittal, unless the case is withdrawn from the jury by the court with his consent, or by reason of some manifest, urgent necessity in order that the ends of justice may not be defeated.</p> <p>5. A manifest or urgent necessity may arise from purely moral or legal grounds as well as from physical. The knowledge that a jury does not stand indifferent or lias been subjected to influences, whether for or against the accused, that might render it impossible for them to stand indifferent between the state and the respondent, creates such an urgent, manifest necessity as to warrant the court in withdrawing the case from the jury.</p> <p>6. (1) The consent of the accused; (2) the illness of the court, a member of the panel or of the respondent; (3) the absence of a member of the panel or the respondent; (4) the end of the term before verdict when the term is fixed in duration; (5) or where the jury cannot agree, are all recognized as constituting that “manifest necessity” warranting the court withdrawing the case from the jury.</p> <p>7. To create such a “necessity” due to outside influences upon a jury, it is not necessary for it to appear that the jury was actually prejudiced or biased thereby. It is sufficient, if the incident or influence was of such a nature that it may have produced such a bias or prejudice that they would not stand indifferent, whether it be in favor of the state or the accused.</p> <p>8. The purpose of a view in a criminal case is not to procure evidence on which to base the verdict, but to enable the jury to bettor understand and appreciate the evidence produced in court. Neither is it a part of the trial within the meaning of that word as used in Sec. 23, Chap. 136, R. S. A respondent in a capital case has an inherent right to bo present at a view, if he demands it, but he may waive it. His right to be present, however, is not based on Sec. 6 of Article 1, of the constitution, or Sec. 23 of Chap. 130, R. S.</p> <p>9. No evidence of any kind should be permitted to be presented to a jury during a view in a criminal case, whether in the presence or absence of the accused. The jury may take into consideration only such facts as appear to the eye and only for the purpose indicated above.</p> <p>10. A respondent in a capital case may expressly waive all his rights, constitutional or otherwise, except matters involving jurisdiction or the anciently established forms of our judicial tribunals,- — -as the number of members of the panel. Unless by acts or words he expressly waives them he will not be presumed to waive anything but to stand upon all his rights. Slate v. Oakes, 95 Maine, 369, is not to be construed as going beyond this.</p> <p>11. The absence of a respondent by his request, or unless he demands the right to attend, while a view is being taken, violates none of his rights, constitutional or otherwise, and the respondent cannot afterward take advantage of the fact under such conditions, if the jury proceeded with the view in his absence.</p> <p>12. But acts and unsworn statements of the accused bearing on the issues raised by his pleadings, out of court, but in the presence of the jury, while the jury were taking a view of the premises where the crime was committed, which acts and unsworn statements are of such a nature that they might naturally affect the minds of the jury whether for or against the accused, are sufficient to warrant the presiding justice, after having the facts appear as • a part of the record, in withdrawing the case from the jury.</p> <p>13. The right of determining when such urgent necessity exists must be left to the legal discretion of the presiding justice, acting under his oath of office, but subject always to review by this court.</p>

<p> Actions under Federal Employer’s Inability Act. Rule as to an injured employee being held to assume the risk where dejendant company has used cars or appliances contrary to the statute. Burden of proof to show that absence of appliances enumerated in Statute contributed in whole or in part to the cause of accident. </p> <p>This is an action to recover damages resulting from injuries sustained by Frank R. Hodgman, the plaintiff’s intestate. The jury returned a verdict for the plaintiff in the sum of six thousand six hundred and fifty dollars, and the case is before the court on the defendant’s general motion.</p> <p> Held: </p> <p>1. The failure to equip the engine with power driving-wheel brakes was a violation of Sec. 8605 of the Federal Statutes requiring the same.</p> <p>2. This fact alone does not make the defendant liable per se; the burden is still on the plaintiff to show that the absence of such brakes contributed in whole or in part to produce the accident.</p> <p>3. The testimony fails to show a substantial compliance with the Act, as claimed by defendant, and we are very clear that any improvement to other parts of the engine or tender could not take the.place of the power driving-wheel brakes required by law. The engine was not properly and lawfully equipped without such brakes. In our view there can be no such substantial compliance shown to relieve the defendant iron strict compliance with the statute. The law required the power driving-wheel brakes; and the plaintiff’s intestate was entitled to have such brakes installed so he could use them when necessary.</p> <p>4. The evidence carefully considered confines us to these inquiries, which were in their order submitted to the jury, with the question of due care of the plaintiff’s intestate and the speed of the train, under proper instruction:</p> <p>1. If the brakes were on the driving wheels as required by law, would they have steadied the engine?</p> <p>The evidence shows they would.</p> <p>2. Would the plaintiff’s intestate have used the brakes?</p> <p>The jury have said that he would.</p> <p>3. Is there sufficient evidence upon which they could base their conclusion?</p> <p>There is no positive evidence on this point, but from the inferences to be drawn from the undisputed facts, ordinary fair-minded, reasonable men might differ. It was thus clearly a question for the jury,- and we find nothing in the case to indicate bias, prejudice or misunderstanding, the verdict being so reasonable in amount as to show a perfectly fair mind toward the defendant.</p>

Action brought under Public Laws, 1917, Chap. 276, Sec. 10. Case was entered in Bar Harbor Municipal Court, and by agreement of parties was reported to Law Court for determination. Judgment in accordance with opinion. Case stated in opinion.

<p>Bill in equity asking for the construction of the will of Nathan Palmer, late of Hollis, Maine, deceased. The cause was heard on bill, answer, replication and agreed statement of facts; and, it appearing to the Justice presiding that questions of law of sufficient importance were involved, by agreement of parties cause was reported to Law Court for hearing and decision.</p> <p>Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> B. S., Chap. 45, Sec. 35, interpreted. </p> <p>By the revision of the statutes relating to Sea and Shore Fisheries in 1901, Chap. 284, Public Laws, a radical change was effected in the nature of the offense of buying, selling, exposing for sale or having in possession “short lobsters.” Prior to that time, the penalty was imposed for buying, selling, giving away or exposing for sale or having in possession lobsters that should have been liberated alive and were not.</p> <p>Under the present statute the basis of the offense of buying, selling, giving away or exposing for sale or having in possession is the fact that the lobsters are of less than lawful length, whatever the condition in which they may be found; nor does it matter what their length was when caught, if they were of loss than lawful length when seized, whether dead or alive, cooked or uncooked.</p> <p>In a complaint for buying, selling, giving away or exposing for sale, it, therefore, is not necessary under the present statute to allege that they were shorter than • the prescribed length when caught or were alive, or, even, that they were not liberated alive.</p> <p>In a complaint for catching or having in possession, however, it is still necessary to allege that they were not immediately liberated alive at the risk and cost of the party taking them, — in a charge of catching, because it is a necessary element of the offense; in a charge of having in possession, in order to negative the lawful possession between the time of catching and the liberation under the statute.</p> <p>State v. Brewer, 102 Mo., 293, modified in accordance with the opinion.</p>

Indictment for the crime of bigamy. The indictment was returned by the Grand Jury, County of Penobscot, State of Maine, alleging that the respondent was living in Bangor, Penobscot County, State of Maine, and that the crime was committed in McAdam, Province of New Brunswick. Respondent filed a general demurrer, which was overruled by presiding Justice; to which ruling respondent filed exceptions. Exceptions sustained. Case stated in opinion.

<p>Action of debt upon bond given to release an attachment. Defendant filed plea of non est factum, and also brief statement. Cause was heard before sitting Justice without jury, reserving rights of exception. At close of evidence on part of plaintiff, no evidence having been offered on part of defendant, motion was • filed by defendant requesting the court to direct verdict for defendant. The court refused to grant said motion; to which ruling defendant filed exceptions. Judgment in accordance with opinion.</p> <p>Case stated in opinon.</p>

<p>Action of trespass quare clausum. Defendant filed plea of general issue; also brief statement setting forth an alleged ownership in the parcels of land described in plaintiff’s writ. Verdict for plaintiff in the sum of $211.00. Defendant filed motion for new trial; also exceptions. Motion and exceptions overruled.</p> <p>Case stated in opinion.</p>

<p> Wills. Rule as io right of testator to dispose by Will of proceeds of insurance policies on his life. Rule as to proceeds from insurance policy being considered personal estate of testator. </p> <p>Anaisc L. Beaudry died in 1916, childless, testate and solvent. The complainant, executor of her will, has a sum of money collected from an insurance policy upon her life. To the defendant, Chesnel, her brother, the testatrix bequeathed the life insurance. For the defendant, Beaudry, her husband, she made no . testamentary provision.</p> <p>The brother and husband both claim the insurance. The former under the will, the latter under It. S., Chap. 80, Sec. 14.</p> <p> Held that: </p> <p>Except for the provision that three years premiums and interest shall be deducted, the right of a solvent testator to dispose by will of life insurance payable to himself is unqualified.</p> <p>Sec. 21 of Chap. 80, R. S., relating to life insurance is not qualified by Section 14 of the same chapter, because proceeds of life insurance is not “personal estate of such testatrix” within the puryiew of the statute.</p> <p>The insurance fund should be paid to Frank Chesnel, the legatee. But the executor should first deduct from the fund an amount equal to three years premiums with interest and administer the same as a part of the estate. This is required by the statute.</p> <p>Failure to provide for this deduction was error. For this reason the exceptions must be sustained.</p>

<p>General rule as to the right of the court to pass upon the question as to whether a legisla-live act is an emergency act. Rule as to setting forth in the preamble of a legislative act the necessary facts constituting the act an emergency measure.</p> <p>In May 1919 Vera Payne was indicted in the Superior Court, Cumberland County, for violation of Chap. 112, of the Public Laws of 1919, -which act, approved March 27, 1919, makes more stringent the provisions of statute for the pre- ■ vention and punishment of sexual crimes.</p> <p>She presents her petition for writ of habeas corpus upon the ground that at the time of her indictment and conviction Chapter 112 had not become effective as law. The preamble and concluding paragraph of Chapter 112 are as follows:</p> <p>Preamble. “Whereas, owing to the necessity of preserving the public health in general, the enactment of more stringent laws prohibiting prostitution; lewdness and assignation and providing punishment therefor, is an emergency measure immediately necessary for the preservation of the public peg.ce, health or safety.”</p> <p>Section 7. “In view of the emergency cited in the preamble this act shall take effect when approved.”</p> <p>But the petitioner says that Chapter 112, notwithstanding this legislative pronouncement, is not an emergency act and did not take effect until ninety days after the recess of the legislature which period expired after her conviction. The amended Maine Constitution provides that acts of the Legislature shall become effective ninety days after the legislative recess.</p> <p>Emergency acts, however, may be made to take effect upon approval. The Constitution further provides that the emergency with the facts constituting the emergency shall be expressed in the preamble of the act and also that an emergency bill shall include only such measures as are immediately necessary for the preservation of the public peace, health or safety.</p> <p> Held ihai: </p> <p>Constitutional limitations are subjects of judicial interpretation and effectuation. Questions of public policy such as the justice expediency, necessity or urgency (immediate necessity) of laws are for final legislative determination. But the control by the Legislature of even these questions may be qualified by express constitutional limitations.</p> <p>The provision of the Maine Constitution requiring the emergency, with the facts constituting it, to be expressed in the preamble of the act creates a limitation upon legislative power and without conforming to it no act can be made an emergency act and as such be given immediate effect. The preamble of Chapter 112 contains an assumption that there is “a necessity of preserving the public health in general,” and the conclusion that “the enactment of more stringent laws is an emergency measure.” It contains no statement of facts as required by the Constitution and no facts that are even suggestive of an emergency. In argument, indeed, facts are presented which give the act an emergent character. In argument it is said that a great World War had been ■ raging; that while an armistice had been declared large bodies of troops were still assembled; that for preventing the spread among these troops of sexual disorders, destructive of military efficiency, existing laws were inadequate and that the Federal authorities had requested the co-operation of the State in meeting these conditions. But these facts are not, as the Constitution requires, expressed in the preamble. Chapter 112-is, therefore, not an emergency act as defined by the Constitution.</p> <p>Whether a legislative finding that an act is immediately necessary for the preservation of the public peace, health or safety is open to judicial review is a question concerning which courts of different states are at variance. Mindful of the long established rule that questions of constitutional law should not be passed upon unless strictly necessary to a decision of the case under consideration this Court defers expressing a final opinion upon this question, inasmuch as the point first above determined is decisive of the case.</p>

<p>Indictments for alleged violation of the banking laws'of the State of Maine. Questions of law having arisen as to the sufficiency of said indictments, by agreement, the cases were reported to the Law Court for final determination. Judgment of court that the entry of nolle prosequi be entered in both cases.</p> <p>Case stated in opinion.</p>

<p> Libel. General rule to be applied in considering whether defamatory words are actionable. Rule as to liability for repetition of slanderous words. When slanderous words may be privileged. Degrees of malice in actions of slander and libel. Damages. Rule of pleading where special damages are claimed. When punitive damages may be assessed. </p> <p>Action to recover damages for a libel contained in letters written by the defendant to one Sarah L. Yeager. Not in terms but by necessary implication the letters charged the plaintiff with larceny.</p> <p>The defendant contends that the letters were privileged in that they were written for the purpose of aiding in the investigation a,nd punishment of crime.</p> <p> Held: </p> <p>That to be thus privileged an accusation of crime must be made (1) in good faith and without actual malice, (2) upon reasonable or probable cause after a reasonably careful inquiry, and (3) for the public purpose of detecting and bringing a criminal to punishment.</p> <p>That the defense of privilege is not sustained.</p> <p>That the defendant is responsible for such repetition of the libel and such publicity as are fairly within the contemplation of the original libel and are the natural consequences of it.</p> <p>That special damages can be recovered only if alleged and proved and punitive damages only if actual malice is shown.</p> <p>That there is and can be no fixed rule for determining even actual damages in this class of cases. The plaintiff is entitled to recover for her injuries caused by the libel, including damages up to the present time and for the future. She is entitled to damages sufficient to compensate her for her humiliation and ,for such injury to her feelings and to her reputation as have been proved or may reasonably be presumed. She is not confined to such damages as might have resulted from a communication to Mrs. Yeager alone, never communicated by her to any other. The plaintiff is not entitled to damages for the publicity which this trial has caused. But such repetition and such publicity as are the natural consequences of the original publication may be taken into account.</p>

<p> General rule as to the right of 'permitting horses or other domestic animals to he at large in the limits of the public highway without a keeper. Rule where there is a town law or ordinance prohibiting same. Burden of showing that owner of domestic animals permitted same to be at large on public highway. </p> <p>It is no longer unlawful by statute to allow domestic animals to graze in the public highway; and at common law an owner may lawfully permit his domestic animals to graze within the limits of the highway in front of his own premises.</p> <p>Such animals being lawfully in the highway within these limits, for the above purposes, unless of vicious disposition of which the owner had knowledge, the owner will not be liable for damage resulting therefrom which he could not reasonably have anticipated. This must, of course, be true where animals are within the highway without the owner’s knowledge or negligence, of which evidence in the case is lacking.</p>

<p>Action of assumpsit to recover for services alleged to have been rendered defendant’s intestate, and also to recover certain money claimed as due to plaintiff on account of a certain note and also to recover for certain money alleged to have been loaned to said defendant’s intestate by plaintiff. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $1836.33. Defendant filed motion for new trial, also exceptions to certain rulings of presiding Justice.</p> <p>Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Rule as to demurrer admitting conclusions of law. Recovery of interest where the ‘principle sum or debt has already been paid. How interest is regarded. </p> <p>Action for the recovery of interest on money of plaintiff delivered by her to defendant; a part of the principal sum was disbursed by defendant for the benefit of plaintiff; the balance was paid by him to plaintiff’s guardian before action brought. A promise is not expressly alleged in the declaration, nor is it alleged that defendant received interest on plaintiff’s money in his hands.</p> <p> I-Ield: </p> <p>The allegations of defendant’s liability are allegations of law, not of fact. They are the pleader’s inferences of law from the facts previously stated. The demurrer does not admit mere statements of conclusions of law from the facts averred.</p> <p>The plaintiff alleges that defendant “assumed to be the guardian of said plaintiff, and held possession of her said money in his said assumed capacity”; it is not alleged that the defendant was not the legally appointed guardian of plaintiff. Construing the above allegation to mean that the defendant undertook to act as legal guardian of the plaintiff, the action is not maintainable, because an action of indebitatus assumpsit cannot be maintained before the guardian’s accounts are settled in Probate Court.</p> <p>Nor can the action be maintained upon the view that the pleader used the word “assumed” in its secondary meaning “to pretend”, upon this view interest would only be recoverable as damages for detention of the money, and where so recoverable, an action to recover it cannot be maintained after payment of the principal.</p> <p>Interest is regarded as incidental to the principal debt and not as a part of it, and an action cannot be maintained to recover it after payment of the principal, unless there is an express contract to pay interest.</p>

<p> General rule bearing on the Question of the admissabiliiy of parol testimony to vary or contradict the terms of a written contract. </p> <p>The written contract between the parties is complete in its terms; purports to include all stipulations between the parties, and particularizes the items included; the articles in question are of such kind, that the omission to include them in the particularization indicates that they were not agreed upon as included in the trade.</p> <p>Evidence of conversations between the parties, during their negotiations, before the agreement was signed, offered for the purpose of showing that the chattels in question were included in the property purchased for the consideration named, was rightly excluded.</p> <p>The case does not fall within the exception to the parol evidence rule as stated in Gould v. Boston Excelsior Co., 91 Maine, 214, 220, and Vumbaca v. West, 107 Maine, 130, 133.</p> <p>Evidence of declarations of the agent of the plaintiff to sell the property made prior to the date of the written agreement, as to whether the articles in question were to go to the purchaser in the trade were also rightly excluded.</p> <p>The law of fixtures has no application to the case. ■ The articles in question had not been annexed to the reality; they were unwrought material.</p>

<p>Action of assumpsit to recover tbe amount due under a certain award. Defendant filed plea of not guilty. Verdict for plaintiff in the sum of one hundred and fifteen dollars.</p> <p>Defendant filed motion for new trial. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Rights, limitation, and procedure under trustee action. Question to he determined in charging a trustee. </p> <p>1. The sole ground upon which a trustee in a trustee suit is held chargeable is his liability to the principal defendant by virtue of some contract between them express or implied or deposit of goods and effects.</p> <p>2. The single question to be determined in charging a trustee is the amount of the goods, effects or credits belonging to the debtor in the hands of the alleged trustee at the time of service upon the latter.</p> <p>3. The trustee cannot be charged because of an alleged independent guaranty claimed to have been given by him to the plaintiff. Whether such a guaranty was in fact made, and its legal effect if made, can only be decided in an action brought by the plaintiff against the guarantor to which action the principal defendant is not a party. In such an action the -issue would be the liability of the trustee, the guarantor, to the plaintiff. In this action the issue on the trustee process is the liability of the trustee to the principal defendant. The two propositions are entirely distinct and cannot be commingled.</p>

<p>Bill in equity to cancel deed alleging that certain signatures to said deed were forgeries. From ruling of sitting Justice sustaining bill, defendants entered appeal. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action on the case to recover for pauper supplies. Defendant filed plea of general issue. Statement of facts having been agreed upon case was reported to the Law Court for final determination.</p> <p>Judgment in accordance with the opinion.</p> <p>Case stated in opinion.</p>

<p>Action by mortgagor against mortgagee of personal property to recover value of certain personal property taken by the mortgagee and sold by him before perfecting his title under foreclosure proceedings. Defendant filed plea of general issue and also brief statement. Verdict for plaintiff in the sum of $117.68.</p> <p>Defendant filed a motion for new trial. Motion overruled.</p> <p>Case stated in opinion.</p>

<p> Equity. Bight of creditor to 'proceed in State Court to set aside a conveyance fraudulent as to him where the grantor has been adjudicated a bankrupt. Bight of trustee in bankruptcy to proceed in State Court to set aside a fraudulent conveyance. Exceptions. Burden on party taking exceptions to ruling of presiding Justice to show that the ruling is erroneous and that he is aggrieved thereby. </p> <p>Bill in equity to set aside a conveyance of certain real estate as fraudulent as against the plaintiff, and before f he court on appeal and exceptions.</p> <p> Held: </p> <p>1. That a creditor may proceed in the State Courts to set aside a transfer fraudulent as to him, notwithstanding the grantor has been adjudicated a bankrupt, when the trustee has not taken action, is well settled, and it is equally well settled that a creditor whose claim is not provable in bankruptcy may so proceed.</p> <p>2. A trustee in bankruptcy may also proceed in the State Courts in behalf of all the creditors to set "aside a fraudulent transfer or in proper .cases may intervene in behalf of all the creditors in-an action brought by one creditor for that purpose.</p> <p>3. When a party takes exceptions to the rulings of a presiding Justice, it is incumbent on such party to show affirmatively that there was error in such rulings and that he is aggrieved thereby.</p>

<p> R. S. 1916, Chap. 126, Sec. 69 interpreted. Meaning of phrase “due process of law." Notice and hearing as being of the essence of due process of law. Rule as to hearing before a judicial tribunal being essential. Right of any act or statute 10 deprive an owner of his property without an opportunity for a hearing , and without notice. Exceptional cases justifying the destruction of private property without preliminary notice or hearing and without compensation. Rule as to there being property rights or interest in an “abandoned animal.” </p> <p>The defendant took the plaintiff’s horse from his possession and killed it. The defendant undertakes to justify the act as agent for the S. P. C. A. He invokes R. S., Chap. 126, Sec. 59. The constitutionality of this section is challenged by the plaintiff.</p> <p>Section 59 purports to authorize such an agent to destroy any animal “found abandoned or not properly eared for.” Such authorization is made conditional upon the finding by two reputable persons that the animal is past recovery for any useful purpose. No notice to or compensation for the owner is provided ■for.</p> <p>The constitution of the United States and of this State forbids depriving any person of his property without due process of law.</p> <p>Notice and opportunity for hearing are of the essence of due process of law. A hearing before a judicial tribunal is not essential, but there must be notice and reason able opportunity for hearing before some tribunal.</p> <p>The defendant urges that a horse so diseased or injured as to be “Beyond recovery for any useful purpose” is not property within the purview of the constitutional guaranty, but this begs the question.</p> <p>The plaintiff claims that the animal is not past recovery and that it has value. To conclusively determine this question against the plaintiff without notice or opportunity for bearing would be to nullify the constitutional guaranty.</p> <p>The defendant argues that the necessity or expediency of any legal enactment is a purely legislative question. This is true. But a legislative enactment which is admittedly expedient and which has been determined by the Legislature to be necessary is void if it violates an express constitutional mandate.</p> <p>It is true, as the plaintiff contends, that under the Police Power the use of private property is subject to uncompensated restriction and regulation. In cases of extreme and urgent necessity, as conflagrations or epidemics, it justifies the destruction of property without preliminary notice or hearing and even without compensation. But Chap. 126, Sec. 59, R. S., cannot be justified on the ground of extreme and urgent necessity, and it provides for the-destruction of property and not merely its restriction or regulation.</p> <p>In so far as this statute purports to authorize the taking of animals from the possession of their owners without consent of the owners and the destruction of the same without hearing and without notice, it violates explicit constitutional guaranties and cannot be given effect to by the courts.</p>

Action of assumpsit to recover the value of forty cords of wood at $10 per cord. The account attached to the writ was as follows: 1918 March 1, To forty cords hard wood at $10 per cord, $400- Defendant filed plea of general issue. Verdict for plaintiff in the sum of $416.40. Defendant filed motion for new trial. Judgment in accordance with opinion. Case stated in opinion.

<p> Mortgages. Foreclosure of same. Where foreclosure is by publication necessity of showing certificate of register of deeds that the publication was in a paper in the county where the land was situated. </p> <p>In proceedings to foreclose a real estate mortgage by publication, a certificate of the register of deeds which fails to state that the notice of foreclosure was published in a newspaper published and printed in whole or in part in the county where the premises are situated is so defective as to invalidate the foreclosure proceedings.</p>

Complaint and warrant for keeping intoxicating liquors with intent to sell same unlawfully. Superior Court, Cumberland County. Verdict of guilty. Respondent filed exceptions to the rulings of the presiding Justice admitting certain testimony offered on behalf of State. Exceptions overruled. Case stated in opinion.

<p>Bill in equity asking for the construction of the will of George S. Bartlett. Cause was heard upon bill and answer and reported by agreement to Law Court. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Taxing of costs. Filing and certifying of stenographer’s evidence for preparation for Law Court. </p> <p>The plaintiff’s costs were taxed by the Clerk of Courts at $391.84. On appeal by the defendant to the court at nisi prius, the court reduced the taxation to $201.84. The items of reduction were two, viz: The plaintiff’s attorney fee from $10 to $2.50, and the disallowance of the cost of printing copies for the Law Court, paid by the plaintiff, $182,50. Through some error or oversight the stenographer’s transcript of evidence was filed in the office of the Clerk of Court of Cumberland County instead of Lincoln County and the printed copies were attested by the Clerk of Cumberland County who was also Clerk of the Law Court, instead of by the Clerk of Lincoln County. But the case was argued at the Portland Law Term, 1917, and decision was subsequently rendered in favor of the plaintiff, gianting a new trial. At the October Term, 1918, a • new trial was had and at that trial by agreement of counsel no testimony was offered but the evidence taken at the previous trial, which was contained in the printed copies now under consideration, was used as the evidence in the case. The presiding Justice ordered a verdict for the plaintiff upon that printed record to which order the defendant filed exceptions, and subsequently argued his exceptions in the December Term, 1918, of the Law Court, using this improperly certified record of 1917 as the basis of his argument. On December, 20, 1918, decision was rendered overruling the defendant’s exceptions.</p> <p> Held: </p> <p>1. That the stenographer’s transcript of evidence should have been filed in the Clerk’s office of Lincoln County and the printed copies should have been attested and certified by that clerk. No other clerk had the power of certification.</p> <p>2. That the Law Court notwithstanding the clerical errors had jurisdiction of the cause and the parties, and the objection now raised by the defendant to the payment of the printing bill, after he has twice argued in the Law Court upon this very record without objection, once when plaintiff was the moving party, and once when he himself was the moving party, comes too late.</p> <p>3. The plaintiff's bill of costs as taxed by the clerk, $391.84, reducted by $7.50 the error in the attorney’s fee, leaving a balance of $384,34 will stand as the correct taxation.</p>

<p>Action on the caseto recover damages for injuries sustained by plaintiff through the alleged negligence of defendant company. Defendant company filed plea of general issue. Verdict for plaintiff in the sum of $2412.50. Defendant filed motion for new trial also exceptions to certain rulings of presiding Justice. Motion overruled. Exceptions overruled.</p> <p>Hanson, J., Dunn, J., Wilson, J., Concur.</p> <p>Morrill, J., concurs in the result in an opinion holding that there was no error in the ruling and refusal to rule of the presiding Justice.</p> <p>CorNish, C. J., concurs in the latter opinion.</p>

<p>B. S., Chap. 68, Sec. 6 interpreted. Husband and wife. Rule as to disturbing the findings of fads of single Justice sitting in eguity unless said findings are clearly wrong.</p> <p>Only when property is entrusted or advanced by husband to wife or vice versa, under conditions where it is apparent that it was regarded by the parties not as a joint or common interest, or as a gift, but as the separate property of the party advancing it for which the recipient ought in equity and good conscience to account, can the remedy provided in Sec. 6, Chap. 66, R. S., be invoked.</p> <p>Bach case of this nature must be determined by itself. It is the intent of the parties which governs. The sitting Justice in this case having determined that the plaintiff was entitled to judgment against her husband for the amount claimed in her bill and that the mortgage given to his father was fraudulent as to the plaintiff, the court is unable to say that the findings of the sitting Justice cannot be maintained from the evidence in the case and that they are clearly wrong.</p>

<p> Principal and ageni. Bule as to liability of one who holds himself out as a partner even though such partnership does not exist. </p> <p>1. The court adheres to its decision as repor ted in Look v. Watson & Sons, 117 •Maine, 476, that a defendant who holds himself out as a partner is liable to a plaintiff who believing in and relying upon such partnership enters into a contract involving the giving credit to it. This principle applies although the defendant is not a partner and notwithstanding that such supposed partnership is in fact, but without the plaintiff’s knowledge a corporation.</p> <p>2. Upon defendant’s contention that the barrels of apples were misbranded in violation of R. S., Chap. 36, Sec. 29, the court is of the opinion that defendant has not sustained his contention.</p> <p>3. If the apples, when packed, were graded according to the Maine standard, the defendant has no cause of complaint, even if that standard might be below the local standard in the Chicago market.</p>

<p> General rule of the law of sales that delivery of personal properly at the place agreed upon or designated by the vendee is a completed delivery and operates as a perfected transfer of the property. Rule as to right of inspection by buyer or vendee even though properly is delivered at place agreed upon. General rules covering the right of rejection by vendee or buyer. When the right of rejection must be exercised. Rule as to silence and delay in rejecting being evidence of acceptance. Burden of proof. Remedies of vendee of personal property after receiving possession of same. </p> <p>Action of assumpsit to recover the balance due for certain wood. The defendant claimed that the wood was not of the contract quality and had never been accepted. The jury found for the plaintiff.</p> <p>On defendant’s motion for new trial it is,</p> <p> Held: </p> <p>1. Whether defendant’s agent had the right to accept the wood in its behalf was a question of fact for the determination of the jury.</p> <p>2. Delivery of personal property at the place agreed upon operates as a perfected transfer, but such delivery does not preclude the buyer from the right of examination in order to ascertain whether the goods are of the contract quality and' to reject them in case they are not.</p> <p>3. The right of rejection however must be exercised within a reasonable time or it is lost, and the sale becomes absolute. Silence and delay for an unreasonable . time are conclusive evidence of acceptance.</p> <p>4. The jury were justified under the facts in this case in finding that the right of rejection, if one had existed, had been lost.“</p>

<p> Buie as to married women being exempt from arrest under B. S., Chap. 66, Sec. 4-Buie as to this exemption being a personal privilege that may be lost by waiver or estoppel. </p> <p>The plaintiff brought this action to recover damages from the defendant because of her alleged alienation of the affections of the plaintiff’s husband. The defendant was arrested on a capias writ and gave a bail bond in the sum of eight thousand dollars, with two sureties. The writ was entered at the September Term, 1918, Knox County, and an attorney appeared for the defendant at that term. The case was then continued to the January Term, 1919, and again to the April Term, 1919, when trial was had and a verdict rendered in favor of the plaintiff.</p> <p>During[the trial it appeared to the utter surprise of the plaintiff that the defendant was a married woman, Mrs. Mary L. Davis, and that she had held herself out as a single woman on coming to Maine from another State, in accordance with a prearranged plan with her husband who in the meantime had gone to Pennsylvania.</p> <p>At the same term, after verdict against her and before judgment, the defendant filed a motion asking that she and her sureties on the bail bond be exonerated and discharged because she was a married woman and under the statutes of this State was exempt from arrest. The presiding Justice granted the motion “as a matter of legal right,” and to this ruling exceptions were taken by the plaintiff.</p> <p> Held: </p> <p>1. That exemption of a married woman from arrest is granted by R. S., Chap. 66, Sec. 4.</p> <p>2. That exemption from arrest is a personal privilege and as such may be lost by either waiver or estoppel.</p> <p>3. That under all the facts and circumstances of this case the defendant was equitably estopped from claiming an exoneretur.</p>

<p>Writ of entry. Defendant filed disclaimer and also brief statement setting forth that the defendant was not a tenant of the freehold and not in possession of the premises described in plaintiff’s writ. At a later term, the defendant filed a demurrer, which was overruled by presiding Justice; to which ruling defendant filed exceptions, and by agreement the case was submitted to the Law Court upon the record and pleadings filed. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Dedication of slreels. Rule where lots are sold according to certain plans or plottings. Rule where that part laid out as a street has not been accepted by the municipality and has been occupied adversely. Rights of way for which damages have been paid being lost by adverse possession. </p> <p>In 1863 one Day owning a large tract of land in what is now South Portland, plotted it into several hundred lots and caused a plan to be made with several avenues delineated thereon, one of which was Adams Avenue. At or about the time of plotting he sold several lots by reference to the plan, five of which abutted on Adams Avenue. The plotted streets were never accepted by the municipality.</p> <p>Between 1863 and 1866 Day sold about ninety lots, all with reference to this plan, and then conveyed the balance of the tract as an entirety by warranty deed without reserving any of the delineated streets, but exceptin g the lots previously sold. The entire tract, with no streets opened, remained practically unchanged until 1918.</p> <p>In 1869, one Merriam, the plaintiff’s predecessor in -title, obtained by warranty • deed title and possession of two of the five lots abutting on Adams Avenue which had been sold by Day previous to his sale of the remainder of the tract, and at some time prior to 1875 erected a fence enclosing said two lots and that part of Adams Avenue lying opposite thereto, using the whole as one lot. Prom that time until 1918, a period of forty-five years, Merriam, and later the appellant, his grantee, have had open, notorious, continuous and exclusive possession of the fenced portion of Adams Avenue in connection with their lots.</p> <p>In 1918, the defendant laid out a street over what had been plotted as Adams Avenue, but the municipal officers refused to award the appellant any damages for the taking. Prom that decision this appeal was taken.</p> <p> Held: </p> <p>1. The conveyance by Day of these two lots abutting on Adams Avenue, so-called, carried with it to the grantee a right of way in the proposed street winch neither Day nor his successors in title could afterwards destroy or interfere with; and to the public an incipient dedication of the street which neither Day nor his successors in title could afterwards revoke.</p> <p>2. Such an incomplete dedication imposes no burden upon the municipality until the street is duly accepted by competent authority or the public has used it at least twenty years. Neither of these events happened.</p> <p>3. The adverse possession by Merriam and his successor ripened into a title as against the successors to Day in the balance of the tract in whom was the fee of the street subject to the inchoate easement of travel in the public.</p> <p>4. So far as the municipality is concerned such incipient dedication must be accepted within a reasonable time in order to be effective.</p> <p>5. A period of forty-five years with no movement whatever on the part of the town or city toward acceptance is clearly beyond what could be deemed reasonable on the part of the municipality.</p> <p>6. In view of all the facts and circumstances the appellant had acquired title to the premises in question by adverse possession against the owners of the fee, and the city had no right of passage therein in 1918 because it had failed seasonably to accept the gift from the dedicators.</p>

<p> Actions for libel. Proof of malice, where the libellous words impute the commission of a crime. Necessary elements of crime of larceny. Privileged communication. </p> <p>Action on the case for libel, by the publication by the defendants, selectmen of the town of Sangerville, in the town report of 1918 among the available assets of the town this item: “Arthur Stanley, Larceny Culvert, $50.” The defendants pleaded the truth of the statement and also that the words were privileged because written and published by them in the performance of their official duty. The jury returned a verdict in favor of the plaintiff for $1500.</p> <p>Upon motion for new trial by defendants it is</p> <p> Held: </p> <p>1. The printed words, as imputing a crime, were actionable per se.</p> <p>2. The plaintiff was not guilty of larceny under the legal definition of that term.</p> <p>In order to constitute larceny there must be not only a taking and carrying away of the goods of another, but there must also exist contemporaneously a felonious intent on the part of the 1 alter which means a talcing without excuse or color of right with the intent to deprive the owner permanently of his property and all compensation therefor.</p> <p>3. The jury were justified in finding such felonious intent utterly lacking. The plaintiff evidently took the metal culvert in this case after two conferences with the chairman of the selectmen and openly used it in constructing a driveway across a ditch in the highway for his employer, Mr. Coburn, expecting that Mr. Coburn would pay for it if the town officers exacted pay, or if they did not require compensation, that Mr. Coburn would receive it as'had many other citizens under like conditions.</p> <p>4. It is the duty 'of town officers charged with the expenditure of money to make a full and detailed report of all their financial transactions in behalf of the town, with a full account of receipts and disbursements, of indebtedness and resources, together with a list of all delinquent tax payers and the amount due from each. R. S., Chap. 4, Sec. 45. A report published within the requirements and spirit of that statute would doubtless be regarded as privileged.</p> <p>5. When, however, the selectmen in this case went further and published the libellous charge of larceny against the plaintiff they transcended their duty, stepped outside the protection of privileged communication and became amenable to the law. The privilege is only commensurate with the duty.</p> <p>6. The verdict is not excessive. The plaintiff is a reputable citizen holding an important position with a local industry. The defendants by virtue of their official position were also men of influence whose words carried weight. These town reports were .distributed among the voters of the town. Copies must be deposited in the office of the selectmen or clerk there to remain as a part of the archives of the town. R. S., Chap. 4, Sec. 45. Such reports are also required by statute to be filed in the State Library there to remain as a part of the archives of the State. R. S., Chap. 3, Sec. 15. Printed defamation is more potent than spoken because more permanent. A criminal charge made under such circumstances is therefore a most serious matter.</p> <p>Moreover the attitude and conduct of the defendants throughout the whole transaction were such as to warrant the jury in awarding punitive damages if they saw fit to do so.</p>

<p>Exceptions under R. S., Chap. 55, Sec. 55, from the ruling and findings of Public Utilities Commission. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Petition for mandamus. Cause was heard upon petition, return to alternative writ, replication and proof. From the ruling of the court granting the petition, defendant filed exceptions. Judgment in accordance with opinion. Case stated in opinion.

Indictment under R. S., Chap. 120, Sec. 16. Verdict of guilty. Defendant filed exceptions to certain rulings of presiding Justice. Judgment in accordance with opinion. Case stated in opinion.

<p>Exceptions under R. S., Chap. 55, Sec. 55, from the ruling and findings of Public Utilities Commission. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Exceptions from the decision of Public Utilities Commission in the matter of fixing rates for water service. Exceptions overruled.</p> <p>Case stated in opinion.</p>

<p> General rule relative to right oj purchasers of tax deeds or titles to recover money paid for same when title proves defective. </p> <p>Action for money had and received to recover a sum paid by plaintiff to defendant as consideration for a tax deed, which deed conveyed no title because of irregularities in assessing the tax.</p> <p> Held: </p> <p>1. In many states provision by statute has been made so that the purchase money paid at a tax sale shall be refunded to the purchaser if the title conveyed proves to be invalid, and a right of action against the municipality is provided if the refund is refused, but at common law the purchaser at a tax sale assumes the risks of his purchase. Therefore, in the absence of special legislation to the contrary he comes within the rule of caveat emptor, and if his title proves worthless he cannot recover the money from .the municipality,</p> <p>2. Our Legislature has provided no statute requiring a refund of money paid for a tax deed, based on defective proceedings in assessing a tax, nor is there any statutory authority in this State, for bringing an action against a municipality to compel such refund. The motion to set aside the verdict, as against law, must be sustained, but the exceptions need no consideration.</p>

<p>Action of replevin. Reported to Law Court upon agreed statement of facts. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Bill in equity asking for an injunction restraining defendant from interfering with plaintiff’s possession of a certain building or part thereof. Cause was heard upon bill, answer, replication and proof. From decree of Justice granting prayer of petitioner, defendant entered an appeal to Law Court. Judgment in accordance with opinion. Case stated in opinion.

<p>Bill of interpleader. Defendants each filed answer. From the decision of the sitting Justice, an appeal was entered by Forest L. Martin, one of defendants. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action on the case brought under R. S., Chap. 93, Sees. 9-10. Defendant filed demurrer to plaintiff’s writ and his amended declaration, and from the ruling of the presiding Justice overruling the demurrer, exceptions were filed. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Dying declarations. General rule as to admissibility of same. Questions to be considered in passing upon the admissibility of such declaration. Masses chusetts rule relative to same. </p> <p>When, in trials for homicide, the declarations of the victim are offered in evidence as dying declarations, it must appear to the presiding Justice that at the time of making the statements, the deceased was conscious of the certainty of approaching speedy death; if any hope of recovery remained, the declarations are inadmissible.</p> <p>It is not sufficient that the deceased has only the belief that he may ultimately die of his injuries. Death, shortly to ensue, must be an absolute certainty, so far as the consciousness of the person making the declaration is concerned.</p> <p>The actual period of survival after making the declaration is immaterial. It is the consciousness of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the testimony admissible.</p> <p>This consciousness of impending death may be established by any relevant evidence. The range of competent evidence may include evidence of the physical condition of declarant at the time of making the statement, from which the inference may be legitimately drawn that the declarant had a conscious sense of impending death, as well as evidence of the declarant’s conduct and declarations.</p> <p>In the instant case, the State’s attorney having stated his intention of offering the statements of the victim as dying declarations, the presiding Justice ordered the jury to retire and heard the evidence of the witnesses as to the condition of the victim and his consciousness of impending death. Held, that upon the facts as shown in evidence the presiding Justice was fully justified in admitting the declarations of the deceased, stating the details of the assault upon him and naming the respondent as his assailant.</p> <p>When evidence of the declarations of the deceased has been admitted by the presiding Justice, its credibility is for the consideration of the jury, who should have the opportunity to weigh all the circumstances under which the declarations were made, including those already proved to the presiding Justice, and may give the testimony and the declarations such credit as they think they may deserve.</p> <p>Having ruled that the statements of deceased were dying declarations and, as such, competent evidence, the presiding Justice in his charge submitted the same question to the jury; after first fully defining the rule of admissibility of dying declarations, he instructed the jury that they must find that the declarations were made by deceased under the sense of impending dp^th as so defined, before they should consider them as dying declarations.</p> <p> Held: </p> <p>That the respondent was not prejudiced by the procedure adopted; it gave the opportunity for his counsel to reargue to the jury the question of fact upon which the presiding Justice had ruled adversely to him on the preliminary hearing; he was thus allowed a second chance to have the declarations excluded from consideration.</p>

<p>Respondent was tried and convicted for violation of R. S., Chap. 26, Sec. 38. After verdict, and before sentence, respondent filed motion in arrest of judgment, which was overruled; to which ruling, respondent filed exceptions. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action of assumpsit against administrator to recover the amount of six notes signed by deceased. Defendant filed plea of general issue; also brief statement alleging that the action was barred by the Statute of Limitations. Case was reported to Law Court upon agreed statement. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Action by wife against father and mother of her husband, alleging alienation of his affections. The action was brought under R. S., Chap. 66, Sec. 7. The defendant, Elbridge G. Farrell, filed a petition to dismiss said action as to him, and the motion was sustained by presiding Justice; to which ruling, exceptions were filed. Exceptions overruled. Case stated in opinion.

<p> Pleading and practice. Voluntary and involuntary nonsuit. At what point in proceedings may plaintiff become voluntary nonsuit. Bule as to nonsuit • after verdict. Rule where verdict has been set aside as to party becoming nonsuit. General rule permitting plaintiff to invoice new remedy or action where first action was a mistaken form or inefficient to enforce liability. </p> <p>Action brought under the provisions of the so-called Carmack amendment to the Hepburn Act.</p> <p> Held: </p> <p>1. When exceptions are sustained in jury cases, as well as in those tried before a single Justice without the aid of a jury, a trial de novo follows, unless it is otherwise decided and stated in the rescript.</p> <p>2. The rules governing right of plaintiff to an entry of nonsuit, as given in Washburn v. Allen, 77 Maine, 344, are affirmed, but the rule, “after verdict there can be no nonsuit,” refers to a subsisting verdict.</p> <p>3. A verdict which has been set aside by sustaining exceptions is not a subsisting verdict, and since the case, after such sustained exceptions, comes up for trial as if no trial had ever been held, Derrick v. Taylor, 171 Mass., 444, the plaintiff is entitled to voluntary nonsuit, as of right, in accordance with Washburn v. Allen, supra.</p> <p>4. The mistaken selection of a remedy that never existed and its fruitless prosecution until it is adjudged inapplicable, does not prevent the exercise of another, if appropriate, even if inconsistent with that first adopted.</p> <p>5. The requested instruction in this case which would take the decision of a question of fact from the jury was properly refused.</p>

Action of assumpsit to recover commissions for the sale of real estate. Defendant filed plea of general issue. At the close of the evidence on the part of the plaintiff, upon motion of defendant a non-suit was granted; to which ruling plaintiff filed exceptions. Judgment in accordance with opinion. Case stated in opinion.

Complaint and warrant under provisions of an ordinance of the City of Hallowell, said ordinance being based on R. S., Chap. 19, Sec. 112. Respondent was sentenced to pay a fine of fifty dollars. By consent of parties, case was reported to Law Court upon an agreed statement. Judgment in accordance with opinion. Case stated in opinion.

<p>Libel for divorce: Defendant filed answer' denying the several allegations contained in libel. At close of testimony, defendant filed motion asking the court to direct a verdict for the libellee upon each of the allegations contained in the libel of the libellant. This motion was .denied; to which ruling defendant filed exceptions. Verdict was rendered for libellant on the groundof desertion as alleged. Defendant filed motion for new trial. Judgment in accordance with opinion.</p> <p>Case stated m opinion.</p>

<p>Action of assumpsit to recover money alleged to be due for furnishing electricity and appliances to defendant town. Defendant filed plea of general issue; also brief statement. By direction of court, verdict was rendered for defendant. To the order and ruling of presiding Justice, plaintiff filed exceptions. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Wills. Probale of same. Appeal and reasons of appeal. Service of appeal papers in matter of appeal from allowance of will. Rule as to necessity’of service of appeal papers upon executor or administrator named in said u>ill. </p> <p>Additionally to the moral obligation either by express or implied direction of the maker, a statute imposes upon every supposed executor having custody of an unprobated will, the imperative legal duty of filing it for probate.</p> <p>Merely filing a will for probate would not make a proposed executor party to forensic issue so as to give him the statutory status of one entitled to be served with copy of reasons of appeal. The putative executor may himself assume the burden of waging contest to establish the writing as an efficacious will, or he may leave that weight to be borne by those whom probate of the will would benefit. As petitioner that the court take proof and allow the will, he becomes a real party, albeit a representative one, “before the judge of probate.”</p> <p>The right of appeal, exercise of which was attempted in this case, is statutory. Compliance with indicated requirements was not had. It follows that jurisdiction was not conferred upon the appellate tribunal and that the reserved exceptions are without merit.</p>

<p>Action of assumpsit against the administrator of the estate of Herbert M. Clark, plaintiff alleging certain sums to be due for service rendered and money loaned decedent during his lifetime. Defendant filed plea of general issue. At close of the entire evidence, the court directed a verdict for defendant; to which ruling plaintiff filed exceptions. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Action for breach of contract in the sale of an auto truck. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $762.09. Exceptions filed by defendant to certain rulings of court. Judgment in accordance with opinion. Case stated in opinion.

<p>Bill in equity asking for the construction of the will of Charles F. Aehorn. Cause was heard upon bill and answer, and by agreement of parties reported to Law Court. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>