Volume 119 — Maine Reports

On October 22, 1918, at the inward freight shed of the Maine Central Railroad Company, at Bangor, Maine, the sheriff of Penobscot County, seized ninety-one eases of Scotch whiskey. The liquor was duly libelled. William G. McAdoo, as Federal Director General of Railroads, operating the Maine Central Railroad, through counsel appeared as claimant. Claim was duly filed and the liquors were ordered forfeited to the State.

This is a libel for divorce. After the jury found the allegation of desertion to be true, and a decree was accordingly signed, the libelee filed a general motion to have the verdict set aside, and a new trial granted, on which motion the cause came before the Law Court. Case stated in the opinion.

<p>Indictment for assault upon an officer. At the close of all the testimony the respondent requested the court to direct a verdict of not guilty on the ground of insufficient evidence. Request refused and exception taken. After verdict, respondent filed a motion, to set aside the verdict on the general ground that it was .contrary to the law and the evidence. This motion was denied and the respondent appealed.</p> <p>Case stated in the opinion.</p>

<p>This is an action on the case brought in the name of the plaintiff for the benefit of the Fidelity & Casualty Company of New York, claiming to succeed to the rights of the plaintiff to recover for personal injuries sustained by reason of the alleged negligence of a servant of the defendant, under the provisions of the Workmen’s Compensation Act of Maine. Defendant filed plea of general issue, without brief statement. At the conclusion of the evidence the case was reported to the Law Court for the determination of all questions of law and fact involved in the case, with the stipulation that in the event defendant is liable, damages to be assessed at three hundred dollars.</p> <p>Case stated in the opinion.</p>

<p>Action on the case to recover damages for alleged libel. John S. Williams, one of the defendants filed plea of general issue and brief statement. The other defendant, the inhabitants of- the town of Sangerville, filed a motion to dismiss as against said inhabitants, which motion was sustained by the presiding Justice, to which ruling the plaintiff excepted.</p> <p>Case stated in opinion.</p>

<p> Writ of entry. Adverse possession. Title not acquired by adverse possession under a mistaken idea as to true boundaries. Survey. Lot lines. Disseizin. Plan. </p> <p>On report. This is a real action to recover possession of a certain parcel of land situate in the town of Palermo.</p> <p>On motion, the plaintiff filed an informal statement of his title 'and its origin, setting out that he acquired title by a warranty deed from Jesse C. Bradstreet, which deed is dated May 19, 1882, and that ever since that date he has had open, adverse, continuous, notorious and exclusive possession of the premises described in said suit under claim of right.</p> <p> Held: </p> <p>1. It is familiar law that the plaintiff is bound to recover upon the strength of his own title. He has the burden of proving the seizin upon which he counts.</p> <p>2. One who by mistake occupies for twenty years or more land not covered by his deed, with no intention to claim title beyond his actual boundary, wherever that may be, does not thereby acquire title by adverse possession to land ' beyond the true line.</p> <p>3. It is firmly established in this State that the survey must govern when its location can be shown, that when land is conveyed by lot, without further descriptions, that the lot lines determine the boundaries of that lot when they can be located.</p> <p>4. If the owner of a parcel of land, through inadvertance or ignorance of the dividing line, includes a part of an adjoining tract within his enclosure, this does not operate as a disseizin.</p> <p>5. When a grant or deed of conveyance of land contains an express reference to a certain plan, such plan, in legal construction, becomes a part of the deed, and is subject to no other explanations by extraneous evidence than if all the particulars of the description had been actually inserted in the body of the grant or deed.</p> <p>The testimony of the plaintiff fails to establish title by adverse possession.</p>

<p>This is an action of trover to recover the value of a horse, on which plaintiff held an unrecorded chattel mortgage to secure the payment of a note for forty-five dollars.</p> <p>Plea, the general issue. Defendants purchased the horse of one Hersey without notice of the unrecorded mortgage to the plaintiff. At nisi prius the case was submitted to the court on an agreed statement of facts. The court ordered judgment for the defendants, to which ruling the plaintiff took exceptions.</p> <p>Case stated in the opinion.</p>

<p> Will. Codicil. Contingent interest. Presumption against intestacy one of fact only. Remainderman. Bequest or devise on a contingency, which does not happen, is not effective. </p> <p>Appeal from decree of sitting Justice on bill in equity praying for construction of a will.</p> <p> Held: </p> <p>1. That the bequest and devise to the Woodford’s Congregational Parish, having been made expressly on a contingency which did not happen, did not take effect.</p>

<p> Omit or innocence at common law not determined by degree of care. Mala prohibila. Criminal intent. Doing the act charged under the statute is the only essential fact. Time of seizure governs as to length of lobsters. </p> <p>Complaint charging illegal possession of short lobsters. Exceptions to the refusal of the presiding Justice to give the following instructions:</p> <p>“1. If from all the evidence, or from reasonable and proper inferences to be drawn therefrom, you are satisfied that any or all of these 109 lobsters were of legal length when put into the car from which they were taken by the wardens then the defendant is not guilty as to such of those lobsters as you are convinced were of lawful length at the time they were placed in the car.</p> <p>2. Defendant has the right, if he uses all reasonable precautions to prevent a violation of the law, to have in his possession lobsters that may seem to be of unlawful length, if in that possession he exercises all proper and reasonable care to avoid a violation of the law and did not have such lobsters in his possession with any apparent intention of violating the law or had them in his possession under circumstances as would indicate thai ho had no apparent intention of violating it.</p> <p>3. If you find that the lobsters in question were of lawful length when put into defendant’s car, then they wore at that time the property of the defendant, and no law could deprive him of any of those lobsters without just compensation therefor.”</p> <p>The third request was not urged at the hearing before this court. As to the others the respondent’s brief says that they are offered as bearing upon the degree of care exercised by the respondent in the selection of lobsters to bo placed in his car.</p> <p> Held: </p> <p>1. At common law the degree of care used by the respondent in doing criminal acts does not enter into the question of his guilt or innocence, although a, different rule might apply to a statutory offense if an act mala prohibit», was made so because it was negligently done.</p> <p>2. Neither does the question of intent enter into the offense charged against the respondent under the statute. The axiom “actus non faeit reum, nisi mens sit rea” does not always apply to crimes created by statute, and therefore if a criminal intent is not an essential element of a statutory crime it is not necessary to prove airy intent in order to justify a conviction.</p> <p>3. The illegal possession of short lobsters constitutes the crime, and the normal turpitude or the purity of the motive by which it was prompted, as well as knowledge or ignorance of its character, are immaterial circumstances on the question of guilt. The degree of care with which the act may have been done, or the intent with which it was done, are alike immaterial. The only fact to be determined in such cases is whether the defendant did the act.</p> <p>4. It matters not what the measurement of the lobsters might have been when caught; the statute speaks in the present tense, viz: The length at time of seizure, not at some previous time.</p>

<p> Bankruptcy proceedings. Individual estates of partners held for partnership liabilities after indimdual liabilities are satisfied. Proof of partnership debt may be filed after individual liabilities are satisfied. A judgment entered up after the commencement of bankruptcy proceedings is barred by a discharged in bankruptcy. </p> <p>Prior to March 30, 1918, the plaintiff and Cleon IS. Webster were co-partners in business under the firm name of Webster & Gordon. The partnership had been dissolved before that time. On that date the plaintiff, in his individual capacity only, upon his voluntary petition, was adjudicated a bankrupt in the District Court of the United States for the District of Maine. On the 31st day of October, 1918, he received his discharge from all debts and claims which were provable against his estate by virtue of the acts of Congress relating to bankruptcy, and which existed on the 27th day of March, 1918, on which day Ihe petition for adjudication was filed by him, excepting such debts as were by law excepted from the operation of a discharge in bankruptcy. In his list of creditors, filed with the petition for adjudication, is to be found the following: “The Texas Co., 1914 Portland. 131 Preble St., Portland, Me. Judgment against Cleon L. Webster and Nathaniel E. Gordon as co-partners under the; name and style of Webster & Gordon $1215.45.”</p> <p>At the time of the filing of the petition, on which said' adjudication in bankruptcy was made, a suit was pending on said debt in the Superior Court within and for the County of Cumberland, in the State of Maine, entitled The Texas Company v. Webster & Gordon, in which the said Cleon L. Webster and the said Nathaniel E. Gordon were described as formerly co-partners under the firm name and style of Webster & Gordon, and in which action judgment wás entered for the plaintiff on the 29th day of March, 1918, for $1215.49 with interest from date of the writ, and an execution issued thereon April 3rd 1918.</p> <p>On October 25th 1918, the Texas Company procured an alias execution on said judgment, placed the same in the hands of Frank M. Hawkes, the other defendant in this bill of equity, who was a deputy sheriff, and caused a seizure to be made of certain property claimed to be the property of the plaintiff.</p> <p>The plaintiff claims that the debt due the Texas Company was among those affected by his discharge in bankruptcy and prays that the defendants may be restrained and enjoined from carrying their seizure into further effect.</p> <p>Both defendants filed answer and demurrer. The demurrers were overruled, to which ruling exceptions were taken by both defendants. Upon hearing the court decreed a writ of permanent injunction to issue enjoining and restraining the defendants from taking any action to complete the seizure and levy made upon the individual property of the complainant, as set forth in his bill, and from attempting in any way whatsoever to satisfy the judgment above set forth out of the individual property of the complainant. From this decree appeals were seasonably taken.</p> <p>The defendant company had notice of the bankruptcy proceedings and examined the bankrupt before the referee.</p> <p> Held: </p> <p>1. That individual estates of partners, in the absence of sufficient partnership assets to meet the debts thereof, are held for payment of partnership debts, provided such individual assets are not consumed in payment of individual liabilities.</p> <p>2. That partnership debts are provable against the individual estate of a partner, although postponed in payment until after the individual debts are paid in full.</p> <p>3. That a debt provable in bankruptcy, although merged in a judgment entered up after the commencement of bankruptcy proceedings, still remains the same debt on which the action was brought, and that such a judgment is discharged by the debtor’s discharge in bankruptcy. A different rule has been announced by this court in discussing provisions under a State insolvency law but not in discussing the provisions of a national bankruptcy act.</p> <p>4. Since partnership debts are provable against the individual estate of a partner, it follows that a discharge in individual bankruptcy proceedings is effectual as to such claims, since the more recent Bankruptcy Acts provide that a discharge shall relieve a bankrupt from all of his provable debts.</p>

<p> Trust. Rule against perpetuities. Forfeiture. Failure of specific trust. Resulting trust by implication of law. Cy pres. General charitable purposes excluded. </p> <p>On February 28, 1910, Eleazer D. Chamberlin of Newton, Massachusetts, placed in the hands of three residents of Portland, Maine, a fund of two hundred thousand dollars, under a declaration of trust signed by the trustees, the purpose being to invest and reinvest said fund and to pay over semi-annually the net income thereof to the Maine State Sanatorium Association, of Hebron, solely for running expenses, for the period of forty years and then to pay over the principal fund freed from all trusts, but subject to certain conditions.</p> <p>On October 1, 1911, and each alternate October 1 thereafter, the trustees were to ascertain whether the Association was free from debt which it had not sufficient cash or good bills receivable to off-set. If not, the trustees were to give notice in writing to the Association and if such deficit was not discharged within three months thereafter, then said fund with its accumulations should be paid over to Eleazer D. Chamberlin, if living, and if not living, then in equal shares to Theodore Chamberlin and Walter S. Fox or to their then heirs at law.</p> <p>The trustees paid over the income to the treasurer of the Association until October, 1915, when the Association conveyed all its property, real and personal, including its right, title and interest in this endowment, to the State of Maine, and the State has continued to maintain and manage the Sanatorium since that time under R. S., Chap. 146. The donor died testate on August 7,1914, and Walter H. Roberts was appointed sole executor in Maine on September 26, 1917.</p> <p>Upon a bill in equity brought by the endowment trustees asking for a construction of the trust and a determination of the party or parties to whom the fund should now be paid, it is held,</p> <p>1. That the validity of the trust in favor of the Association is not controverted, although the legal title was to remain in the trustees for a period of forty years before it could be conveyed to the beneficiary and then only on the prescribed conditions as to freedom from debt. That fact does not however offend the rule against perpetuities because it is the time of vesting and not the period of continuance that concerns that rule. On February 28, 1910, the legal title vested in the trustees and the beneficial title in the Association, this latter however subject to being divested on the occurrence of the event specified.</p> <p>2. In determining whether a forfeiture for non-payment of indebtedness should occur at any time, the broadest possible powers and discretion were conferred upon the trustees, and in the absence of bad faith, fraud or mere arbitrary action on their part their conclusions were fina! and binding upon all parties in interest.</p> <p>3. The trustees found that no forfeiture took place, on October 1, 1911, October 1, 1913, or October 1, 1915, and after a full and careful examination of all the testimony considered in the light of the declaration of trust, their finding is held to be correct in fact and conclusive in law. No forfeiture was created.</p> <p>4. There was however a failure of the trust due to the transfer of all the property of the Association to the State and the consequent cessation of business on the part of the Association. There was an implied condition that the Association should continue in operation and carry on its own work in its own way. The State, since the transfer, has maintained and managed the institution through a board of trust ees appointed by the Governor. The Association for whose sole benefit the gift was made has virtually ceased to exist.</p> <p>5. As the trust was limited to that particular Association, and that Association was not intended as a mere conduit for the application of the fund to a general charitable purpose, the failure of the cestui que trust worked a failure of the trust itself. Under such circumstances in this class of gifts, if the donee fails the gift itself fails. In whom then is the title, the trust having failed?</p> <p>6. Theodore Chamberlin and Walter S. Fox are not entitled to the fund under the limitation over because the only event which could cause their contingent interest to materialize was a previous forfeiture, and no forfeiture has occurred. A discussion of the validity of the limitation over as offending the rule against perpetuities is therefore not involved.</p> <p>7. The claim of the State of Maine cannot be sustained. The Sanatorium Association had no assignable interest in the fund and therefore its attempted assignment to the State was futile.</p> <p>8. Nor can the doctrine of cy pres be successfully invoked in behalf of the State. In order to apply that doctrine two prerequisites must exist, first a failure of the specific gift, and second, a general charitable intent disclosed in the instrument creating the trust. The first element exists here but not the second. A general charitable purpose is clearly excluded.</p> <p>9. It follows that this fund now belongs to the estate of the donor as a resulting trust. The specific trust having failed a trust results by implication of law to the executor under the will. His claim is therefore sustained.</p> <p>10. Under the circumstances of this case it is proper and it is therefore ordered that costs and reasonable counsel fees be fixed by the sitting Justice who shall make the final decree, be paid by the executor, and charged by him in his account of administration.</p>

<p> Trespass guare clausum. Prescriptive title. Distinction as to admissibility of evidence, where claim is based on prescriptive title, and where by grant. </p> <p>Action of trespass quare clausum. Heard on exceptions and general motion for new trial.</p> <p> Held: </p> <p>1. In cases where a party seeks to sustain a prescriptive title to real estate, pajrment of taxes assessed upon land, hy the party, may be offered to show the character of the occupation. But where, as in the case at bar, the trespass is ' upon land which the plaintiff claims to own by grant, such evidence is inapplicable and was properly excluded.</p> <p>2. The defeated party fails to sustain the burden of showing that the verdict of the jury was clearly wrong.</p>

Assumpsit for money had and received. Plea, the general issue and an amended brief statement, wherein defendant alleged that he was adjudicated a bankrupt under the bankruptcy laws of the United States, on a petition therefor, within four months of the date of the writ and attachment thereon, and had received his discharge in bankruptcy.

<p> Trespass. Necessary allegations. </p> <p>Under Sec. 9, Chap. 100, R. S., only owner of the property injured can maintain an action, hence ownership is an essential allegation.</p> <p>In alleging ownership of real estate, “land of”, or “property of”, or “the buildings of” is the approved form of allegation.</p> <p>To allege a removal of horse-stalls, cribs, cow-chain holders or partitions in buildings belonging to the plaintiff is not a sufficient allegation of ownership of the horse-stalls, etc., as they might have been fixtures that, as between landlord and tenant, the defendant had a lawful right to remove.</p> <p>To break glass that is a, part of a building is a separate and distinct cause of action under the statute above referred to, and the allegation that the glass was “in the windows in the barn” of the plaintiff is a sufficient allegation that the glass was a part of the building.</p>

Libel for divorce alleging cruel and abusive treatment and extreme cruelty. At the conclusion of libellant’s evidence, libellee waiving his privilege to'testify or offer evidence, moved to dismiss the libel, which motion was overruled and a divorce decreed for extreme cruelty. Libellee excepted to ruling and decree. Case stated in the opinion.

<p>Assumpsit on a promissory note given by defendant’s intestate to plaintiff’s intestate, payable on demand. Plea, the general issue with a brief statement invoking the statute of limitations, as a bar to recovery. Heard by the justice of the Superior Court, without a jury, reserving right of exception. The presiding Justice ruled that a certain letter signed by defendant removed the bar of the statute of limitations, to which ruling defendant excepted. Judgment for plaintiff for S262.15.</p> <p>Case stated in the opinion.</p>

<p> Mingling trust funds. Must be identified or susceptible of identification, or followed in kind. </p> <p>A bill in equity by beneficiaries under a testamentary trust, alleging that a deceased trustee sold real estate of the trust, mingled the proceeds with his own property, and later transferred all his property, both real and personal, to the defendant, cannot be maintained, after the death of the trustee, who was entitled to the income of said trust estate for life, to reach such proceeds in the hands of defendant, it being admitted by plaintiffs that said proceeds cannot be followed in kind, or be identified or susceptible of identification.</p>

<p>A mixed action to recover a tract of uncultivated land in the town of Wesley, containing approximately eight hundred acres, and also to recover for value of the trees and timber cut and removed from said tract by the defendants. Plea, the general issue, with a brief statement claiming title by adverse possession under R. S., Chap. 110, Sec. 18. Plaintiffs claimed title as heirs at law of Otis S. Tibbetts, their father, who, it is admitted by the parties to the action, was seized in fee simple of the demanded premises in 1864, and died intestate on June 28, 1879, without having given any deed of said real estate. The cause was heard by the presiding Justice without a jury upon agreed facts, no evidence having been introduced. The question at issue was as to whether the defendants during the period of.their occupancy claimed said real estate under “recorded deeds” within the purview of the statute. The presiding Justice as a matter of law ruled that the deeds were of such a character as to satisfy the statute and ordered judgment for the defendants. The plaintiffs excepted.</p> <p>The ease is stated in the opinion.</p>

<p> Assumpsit. Accident insurance. Alleged false representations. Elements necessary to constitute same. Must be made with knowledge of their untruthfulness. Alleged breach of general provisions. Death accidental. Differentiation between condition and cause. </p> <p>In an action of assumpsit upon an accident insurance policy brought in behalf of the beneficiary to recover the sum of five thousand dollars for the death of the assured, James H. O’Brion, alleged to have been caused by accidental injury, and before the Law Court on report it is Held:</p> <p>1. That the assured made no false representations material to the acceptance of the risk or to the hazard assumed by the company.</p> <p>2. That there was no violation of the general provision of the policy giving the company the right to examine the body and make an autopsy, nor of the provision giving the company the right to be present if any autopsy were made and to have timely notice thereof.</p> <p>3. That the death of the assured resulted solely from the accident. Even if the assured at the time of the accident was afflicted with Bright’s disease that was merely a condition and not a cause, and had nothing to do with the accident nor with the death which followed within a few hours thereafter.</p>

Assumpsit. Plea, the general issue. The plaintiffs contracted in writing to cut and haul a quantity of lumber for defendant. Subsequently, within a year, the parties by oral agreement, the terms of which are in dispute, modified the written contract. Verdict for plaintiff for $708.23, which was set aside on motion by defendant. The case is stated in the opinion.

Bill in equity seeking to enjoin defendant from instituting proceedings of forceable entry and detainer against plaintiff to get possession of a garage occupied by plaintiff under a lease with option of releasing for a term of years at expiration of term. Questions of law having arisen, the parties agreeing thereto, the case was reported to the Law Court for its determination upon bill, answer, replication, and evidence. The case is stated in the opinion.

<p> Action of deceit. Necessary and essential elements in action of deceit. What plaintiff must prove. </p> <p>The plaintiff in his brief states the case as follows: “This is an action for deceit in which the plaintiff seeks to recover from his former business associates for taking advantage of his alleged defective mental condition and purchasing his half interest in the business for less than its fair value, the measure of damages claimed being the fair value of plaintiff’s half interest in the business and the amount which defendants paid him. The jury returned a verdict for the plaintiff .... and in answer to questions propounded by the Chief Justice, presiding, found that on the date when the plaintiff signed the instrument accomplishing the transfer of his interest he ‘did not then have sufficient mental capacity to transact that particular business with intelligent understanding of what he was doing and a rational judgment in relation thereto.’</p> <p>Defendants bring the case to this court on motion in the usual form, and exceptions to the refusal of the chief justice to direct a verdict for the defendants.”</p> <p>The defendant made no affirmation representations, the only ground upon which the plaintiff seeks to maintain his action is that the defendant dealt with him knowing he was imcompetent to do business.</p> <p> Held: </p> <p>1. That forms of action that are well established and approved by long usage, should be adhered to.</p> <p>2. That the action of deceit is as old as the jurisdiction of the State, and as well defined as any form of action known to our course of procedure.</p> <p>3. That the elements are various, every material one of which must be proved to sustain the action.</p> <p>.4. That proof of any of the material allegations is wanting in the report of. the evidence in the present case.</p>

<p>This is a bill in equity brought by the executrix of the will of Charles C. Burrill, and prosecuted by Sarah Burrill Tatley as administratrix, d. b. n against Julia A. Giles, executrix of the will of Jeremiah T. Giles, under R. S., Chap. 92, Sec. 22, seeking relief from the statute requiring suits against a decedent’s estate to be brought within twenty months from the filing of affidavit by executrix of having given notice of her appointment. The payment of a note given by said Jeremiah T. Giles to said Charles C. Burrill is involved. Defendant claims that the note was given wholly as an accommodation to said Charles C. Burrill.</p> <p>The cause was heard upon bill, answer, replication and proofs, and the presiding Justice found that said note was without consideration having been given solely for the accommodation of said Charles C. Burrill, and dismissed the bill. Plaintiff appealed.</p> <p>Case stated in the opinion</p>

<p> Option. Attempted acceptance by telegram. Terms of contract not met. Expiration. </p> <p>This is an action of assumpsit in which the plaintiff seeks to recover the sum of seven hundred dollars, as commission for procuring a sale of ice for the defendant.</p> <p>The contract of employment involved an option.</p> <p>Among other tilings was this vital provision: “$3062.50 to be paid on acceptance of option and this option will expire on or before 6 P. M.” A telegram was sent, on the day of expiration, at 4.44 P. M. accepting the offer.</p> <p>Alt about 8 P. M. the same day, a telegram was sent in reply declining to accept the offer, on the ground that the money was not paid. No money was paid or offered until the next day.</p> <p> Meld: </p> <p>(1) That time is the essence of an option.</p> <p>(2) That an offer to pay money by telegram is neither payment nor tender.</p> <p>(3) That acceptance and payment were to concur on or before the designated hour, to meet the terms of the contract.</p> <p>(4) That payment, having been neither made nor tendered on or before 6 P. M., the option expired at that hour.</p>

Indictment for the unlawful possession of intoxicating liquor. At the conclusion of the testimony, the presiding Justice, on motion, refused to direct a verdict for defendant, to which refusal exceptions were taken. Verdict of guilty. Case stated in opinion.

<p>Assumpsit to recover eight hundred dollars, paid by plaintiff to defendant for an automobile purchased upon a contract under seal. Plea, the general issue, with a brief statement. Exceptions were taken by defendant to certain instructions given to the jury by the presiding Justice. Verdict for plaintiff for nine hundred and twenty-eight dollars. Defendant filed a general motion for new trial.</p> <p>Case stated in opinion.</p>

<p> Real action. Relying on quitclaim deed. Disclaimer as to part. Dines on the face of the earth. Must make out a prima facie case. </p> <p>This is a real action for the recovery of a certain lot of land, the alleged title to which was based, upon a quitclaim deed. A disclaimer was filed up to a definite line, covering a part of the locus claimed in the writ. The plaintiff’s deed did not define the east end of her lot either by metes or bounds, but described it as bounded “on the east and south by land of William Whitney.” That is, the west boundary of Whitney’s land, when located, would be the east boundary of the plaintiff’s land, as described in her deed. The issue involved was not the capacity of the deed to convey, but the location, of the Whitney line. The Whitney line was the only question in dispute. It was incumbent upon the plaintiff, in order to establish her line to prima facie prove where, upon the face of the earth, the Whitney line vras located.</p> <p>In attempting to prove this, the deed having been admitted, Mr. Everett, the husband and agent of the plaintiff who did all the investigating of the lines, was asked this question: Q. Did you in purchasing that lot, and taking that deed rely upon the line on the cast as run by Judge Buswell marked by the — ? The question was excluded. Upon the close of the plaintiff’s evidence the presiding Justice ordered a non suit to which exception was also taken. But, assuming that the question excluded was admitted and answered in the affirmative, the case is then devoid of any adequate evidence to establish prima facie proof of the plaintiff’s contention.</p> <p>The non suit was properly ordered.</p>

<p> Requirements as to written notice, and filing proof. Estoppel. Temporary diversion. Construction of phrase “entire loss of sight.” </p> <p>This is an action upon an insurance policy combining the phases, both of accident and health indemnity. On the accident side the plaintiff was classified as “select” and described his duties and occupation as “office manager, office duties only,” in a business designated as “Lumber.”</p> <p>On the 30th or 31st day of August, 1917, the plaintiff, while riding a motorcycle ran through a swarm of flies or insects, one of which struck his right eye with such force as to give him immediate and continued annoyance and distress, but not sufficient at first to prevent him from the pursuit of his occupation as bookkeeper. It was not long, however, before it so impaired his capacity to ■work at his usual occupation, that he had to give it up, and pursue a business that did not tax his eye. The eye grew gradually worse until at last it became so blind that ho could only distinguish light from darkness, without any ability whatever to distinguish one object from another. In other words the eye became what we call blind and had continued so to the time of the trial, without hope of improvement or recovery. Upon this state of facts the case resolves itself into the following propositions:</p> <p>1. Was the injury to the eye accidental within the moaning of the policy?</p> <p>2. Was notice of the accident invalid on account of delay?</p> <p>3. Was it sufficient, if given in time?</p> <p>4. Was the plaintiff engaged in an overhazardous employment?</p> <p> Held: </p> <p>(1) That the injury was clearly accidental.</p> <p>(2) That the defendant is estopped to deny that the notice was not given in time.</p> <p>(3) That the notice was sufficient in law.</p> <p>(4) That the plaintiff at the time of his injury was not engaged in an overhazardous employment.</p> <p>(5) That he did lose the entire sight of his eye, within the contemplation of the policy.</p>

<p>In equity. On appeal.</p> <p>Bill in equity under the provisions of R. S., Chap. 95, Sec. 15, to redeem a mortgage given by plaintiff to John E. Littlefield, defendant’s testate. The principal contention at issue was as to whether a certain receipt for money alleged to have been paid by plaintiff to said John E. Littlfied, should be credited on the note. The cause was heard upon bill, answer and proof before a single Justice without a jury, who found, pro forma, that plaintiff should pay to the defendant one hundred twenty-nine dollars and eleven cents, within a pres-scribed time, from which ruling defendant appealed.</p> <p>Case stated in the opinion.</p>

On exceptions. Exceptions overruled. Judgment for the State. An indictment for larceny of one automobile tire and two automobile tire tubes, “of the property of persons to your grand jury unknown,” returned in Superior Court in Cumberland County, at September term, 1919. At the conclusion of the testimony, respondents filed a motion requesting the presiding Justice to direct a verdict of not guilty. This motion was overruled and respondents excepted.

<p>On exceptions by appellants. Exceptions overruled. , An appeal from a decree of the Judge of Probate Court for Hancock County allowing the will of Mary E. Jordan.</p> <p>The appellants requested the presiding Justice to rule as a1 matter of law, that the will should not be allowed for the reason that it was drafted by B. E. Clark, who, at the time was the Judge of Probate Court for Hancock County. The presiding Justice refused to so rule and appellants took exceptions.</p> <p>Case stated in the opinion.</p>

<p> Replevin. Bailment. Innocent purchasers. Estoppel. Record. Constructive notice. Rule as to chattels attached to the realty. </p> <p>Where a sum of money was raised by public subscription for the purchase of a bell and tolling-fork, and the bell was given to the town with the understanding it was to be hung in a church to be rung for church purposes and on public occasions, but was to be controlled by the voters of the town; and afterwards the church property was sold, the purchaser having no knowledge of the claim of the town to the boll.</p> <p> Held: </p> <p>(1) That either the relation of bailer and bailee existed in case the bell was delivered to the church and erected in the church edifice by the church itself; or if installed by the town it was done by license from the church, either express or implied, in which case the law governing the rights of innocent purchasers of real estate in fixtures will control.</p> <p>(2) Where a bailor by his voluntary act confers on his bailee an apparent right of property other than would ordinarily follow from possession and permit him to retain and use it under conditions that would naturally mislead an innocent purchaser without notice of the title, he is estopped from setting up his title as bailor against such innocent purchaser.</p> <p>(3) A record that is not required by law to be made is not constructive notice of what it contains.</p> <p>(4) The rule in this state relating to buildings erected on another’s land never having been extended by this court to other fixtures, and having been abolished by the legislature, the court now adopts as to other chattels the rule generally followed in other jurisdictions; that chattels attached to the realty in such manner as to indicate they are fixtures will pass by deed or mortgage of the real estate to an innocent purchaser or mortgagee, notwithstanding an agreement between the owner of the chattel and the owner of the realty, that they shall not become a part of the real estate.</p>

<p>On report. Two actions of assumpsit, wherein C. Y. Richards is plaintiff in the first case and American Realty Company is defendant, and American Realty Company is plaintiff in the second case and C. V. Richards is defendant, involving the settlement of the accounts of certain logging operations undertaken by the said C. Y. Richards for the said American Realty Company. In the first case, after the evidence had been completed, by agreement of parties, the cause was reported to the Law Court upon so much of the evidence as was admissible, the Law Court to render such final judgment therein as the legal'rights of the parties require. At a subsequent term of court by agreement of parties in the second case, all the testimony and evidence in the first case which had been printed, so far as the same was pertinent and admissible, was considered as offered and admitted in the second case, and the case was reported to the Law Court, and argued together with the first case. The general issue with a brief statement was filed in each case. Judgment for the plaintiff in the first case for $7015.46, with interest on $5296.46 from June 1, 1918, and on $1719.00 from the date of the writ.</p> <p>Case stated in the opinion.</p>

<p>On exceptions. An action of tort, brought to recover damages for personal injuries, sustained by being hit by an automobile, operated by an alleged employee of defendants, alleged to be partners doing business under the firm name of Saxon Motor Company. On the 10th day of February, 1916, defendants filed in the office of the city clerk of Lewiston, a certificate of partnership, under Sec. 11, Chap. 39, R. S. Subsequently, and prior to the date of the alleged injuries, Walter A. Luce, one of the defendants, withdrew from the partnership, but did not file in the office of the clerk of Lewiston, the withdrawal certificate provided under the above statute. The remaining partner, Harry A. Dillingham, one,of the defendants, immediately formed a partnership with one Burkett, and the new partnership thus formed carried on an automobile business in Lewiston under the former firm name of Saxon Motor Company, in whose employ, the woman who was operating the automobile at the time of the injury, was engaged. The presiding Justice ruled pro forma that Mr. Luce was properly named as a defendant. To this ruling defendant Luce took exceptions.</p> <p>Case stated in the opinion.</p>

<p> Construction of a will. The words “give,” “devise” and “bequeath” not essential to the validity of a testamentary provision. Vested remainder. Assignment of a remainder estate. </p> <p>Bill in equity brought for construction of a will. By her will Harriet Stanley left her property in trust for the benefit of her son Benjamin during his life. The will further provides that “After the decease of my son Benjamin or at my decease should I survive him all of my said property shall go to Annie Stanley widow of my son David A. Stanley to be hers absolutely and freed from all trusts.”</p> <p>Annie Stanley became by marriage Annie Stanley Ostrom. She survived the testatrix, but died before the decease of Benjamin. During her life she assigned to the plaintiffs all her interest under the will.</p> <p>The usual formal words “give, devise” &c. were omitted from the will. The intent and purpose of the testator were however plain. The intent when apparent governs. No rule of law or policy makes any special form of words essential to the validity of a testamentary disposition of property. The estate devised to Annie Stanley was a vested remainder.</p> <p>The possession and enjoyment of it were postponed until after the termination of Benjamin’s life interest. But the estate became vested immediately upon the death of Harriet.</p> <p>A vested estate in remainder is alienable by deed to the same extent as are vested estates in possession. Annie Stanley Ostrom’s estate was a vested remainder. It was subject to alienation at will. It follows that her assignments, the forms not being questioned, were effectual to transfer to the plaintiff all her interest derived under the will.</p>

<p>On report. Trover to recover the value of a stock of goods bought by the defendant of the plaintiff’s bankrupt in violation of Sec. 6, Chap. 114 of the Revised Statutes. Plea, the general issue.</p> <p>Case stated in the opinion.</p>

<p>On motion. This is an action at common law to recover damages for personal injuries sustained by plaintiff while in the employ of defendant in his saw mill operating a saw known as a bolter. Plea, the general issue. It was admitted that the defendant at the time of the injury was not an assenting employer within the purview of chapter 50, of the Revised Statutes, known as the Workman’s Compensation Act, and that at the time of the injury he was employing more than five workmen or operatives regularly. Verdict for plaintiff for §250.00. Defendant filed a general motion for a new trial.</p> <p>Case stated in the opinion.</p>

<p> Powers of Public Utilities Commission, li. S., Chap. BO, See. 77. Constitutional right of the legislature to confer authority on the Commission. Public officers. Governmental powers. Distinction in municipal officers, as public officers, and as agents or servants of their respective towns. </p> <p>Pursuant to the provisions of the private and special laws of 1889, chapter 409, the municipal officers of Rockport fixed and determined the route and location of the railroad of Camden and Rockport Street Railroad Company over the streets and ways in the town of Rockport, and determined the distance of the tracks from the sidewalks; the municipal officers granted said location with the following provision: “The condition on which said location is granted is, first, the iron bridge shall be put in repair, strengthened and kept in repair (the foot walks and abutments excepted) so long as said track crosses said bridge, at the expense of said street railroad company.” The railroad company duly assented to the said location, constructed its railroad thereon, and has since made such repairs as have boon made on the bridge, except as to foot walks and abutments.</p> <p>On August 15, 1919, the Public Utilities Commission acting under the provisions of R. S., Chap. 56, Sec. 77, enacted in 1895, after due notice and hearing, determined “that said bridge is not safe for the uses to which it is being put, and that such bridge is not susceptible of any repairs, renewals or strengthening which will make it safe for such uses, and that the same may be rebuilt,” and did therefore order that said bridge be rebuilt by Knox County Electric Company, and apportioned the expense of such rebuilding equally between the Knox County Electric Company and the town of Rockport.</p> <p> Held: </p> <p>That the proceedings of the municipal officers in fixing and determining the route and location of the railroad, and the acceptance by the company of the location so fixed and determined, did not constitute a contract for which the town may successfully claim immunity from legislative interference under the contract clause of the Constitution of the United States.</p> <p>In proceeding under the Act of 1889 the municipal officers were acting as public officers exorcising a governmental function, for the safety of the public.</p> <p>The legislature has power to confer upon the Public Utilities Commission authority to provide for rebuilding the bridge upon terms other than those imposed by the municipal officers, and thus to change the terms upon which the location was granted, to the loss of the municipality.</p>

<p>On appeal. A bill in equity seeking the construction pf the will of William C. Wright. The cause was heard upon bill and answer, the only testimony being the affidavit of Walter E. Crockett, which was offered by the defendant and admitted, all formalities being waived. The presiding Justice ordered, adjudged and decreed, that the bill be sustained and that the true construction of the will was, that Charles H. Wright took a life estate only, under said will, in the real estate described in the bill and that the title to said real estate, subject to the life estate of said Charles II. Wright, became vested in the other children of said William C. Wright who were living at the time of the decease of said William C. Wright.</p> <p>From this decree the surviving defendant, Hannah Frances Crockett, took an appeal.</p> <p>Case stated in the opinion.</p>

<p>An action of assumpsit on an insurance policy or certificate, entered and tried in the Superior Court for the County of Kennebec, at the term thereof beginning on the second Tuesday of November, 1918.</p> <p>A verdict for $1062 was returned for plaintiff. The case was taken to the Law Court on motion to set aside the verdict, and also on exceptions by defendant to refusal of the presiding Justice to give certain requested instructions.</p> <p>Case stated in the opinion.</p>

<p> Common carrier may limit its responsibility. Reasonable and suitable restrictions. Knowledge and assent of consignor thereto necessary. </p> <p>This is an action on the case to recover damages for failure to deliver certain Christmas trees in time for the plaintiff’s Christmas business in the Boston market. The case comes before the court on report on an agreed statement of facts.</p> <p> Held: </p> <p>1. It is well settled that a common carrier may limit his responsibility for property entrusted to him by a notice containing reasonable and suitable restrictions if brought home to the owner of the goods delivered for transportation, and assented to clearly and unequivocally by him.</p> <p>2. The defendant does not claim that the plaintiff knew the import of the memorandum and stamp referred to as an amendment to the bill of lading, or that his attention had been called to the meaning of the same, or the location and provisions of any document containing the tariff or classifications filed as alleged. The agreed statement is silent as to these matters, and being so we think the plaintiff is not legally chargeable with knowledge of the terms of such amendment, nor should it be held that he ought to have known, and that he is therefore precluded from recovering. The words “Section 3 is amended, as per classification governing” printed, apparently with a rubber stamp, upon a slip of adhesive paper affixed to the face of the bill of lading, cannot be held to charge the plaintiff with notice of a limitation of the time within which an action for the recovery of damages for the breach of the contract of carriage may be brought; especially since section three, as printed on the back of the bill of lading, does not mention any such limitation.</p> <p>3. The agreed facts present a Federal question under the following clause and the amendment therein quoted, “that the official classification 43, effective Jany. 1, 1916, and supplement No. 8, to said official classification July 1, 1916, were in full force and effect and properly filed in accordance with the United States law and the rulings of the Interstate Commerce Commission.” As to defendant’s contention thereunder, we are of the opinion that the rights of the plaintiff are not cut off by the Interstate Commerce Act of 1887, and the Carmack amendment of the Hepburn Act of 1906.</p> <p>4. Freight rates are controlled by the schedules and tariffs on file with and approved by the Commission, but provisions relating to the limitations of actions are controlled by special contracts made between the parties and subject to the approval of the Commission. The fact that the Commission has given the carrier the right to make a given contract does not authorize its enforcement unless and until the contract is in fact made.</p> <p>No special contract was made here, and therefore the plaintiff is not bound by the so called amendment filed by the defendant with the Commission.</p>

<p>On exceptions. An action on the case to recover damages sustained by plaintiff resulting from a collision between his automobile and one operated by defendant’s son in an alleged careless and negligent manner. Plea, the general issue. The cause was tried to a jury in the Superior Court for the County of Androscoggin at the May term, 1919, and a verdict was returned for defendant. The plaintiff took exceptions to the refusal of the presiding Justice to give certain requested instructions.</p> <p>Case stated in the opinion.</p>

<p>On report. This ease embraces two distinct equity proceedings wherein the Arizona Commercial Mining Company is complainant in each bill, and the Iron Cap Copper Company is respondent in each bill. Both plaintiff and defendant corporations were organized under the laws of Maine, and each conducts mining operations in the State of Arizona, and the business of each, aside from its actual mining operations, is carried on in the City of Boston, Massachusetts.</p> <p>In one of the two bills, referred to as the “ore suit” the plaintiff seeks to recover for ores mined and extracted by the defendant frqm “veins, lodes or ledges” in the State of Arizona to which plaintiff claims title, and to enjoin the defendant from further extracting ores from said property. In the second bill, referred tó as the “water suit,” the plaintiff seeks to charge the defendant with liability under a statute of the State of Arizona, for part of the expense incurred by the plaintiff in pumping and draining water which it claimed flowed into the plaintiff’s mine from the mine of the defendant. To each bill defendant filed a plea in abatement, and a demurrer. A hearing was had upon the bill, plea in abatement, and demurrer, in each case at the same time, and, the Justice presiding being of the opinion that questions of law involved were of sufficient importance to justify the same, by agreement of the parties, the cause was reported to the Law Court with the following stipulation in each case: — If the demurrer is sustained, or if the plea is adjudged sufficient, the bill is to be dismissed; otherwise the respondent to have twenty days after rescript in which to answer over to the merits.</p> <p>Cases stated in the opinion.</p>

<p> Directed verdict for defendant. Negligence of defendant. Contributory negligence of plaintiff. Subsequent negligence of defendant. Doctrine of the last clear chance. </p> <p>This case comes up on exceptions to the order of a verdict by the presiding Justice after the evidence was all presented and involves a mixed question of law and fact. The question now before the court is: If the case had been submitted to the jury upon the evidence, under proper instructions, would a verdict for the plaintiff be permitted to stand? As the case is now presented, two important issues arise upon the plaintiff’s theory of the accident—</p> <p>1. The contributory negligence of the plaintiff, assuming the negligence of the defendant.</p> <p>2. The subsequent negligence of the defendant, assuming the negligence of the plaintiff in the first instance.</p> <p>Upon the first issue the evidence proves the plaintiff guilty of contributory negligence upon his own testimony. The second question raises the doctrine of the - last clear chance. Upon this question a majority of the court are of the opinion that the case should be submitted to the jury.</p>

<p>On motion and exceptions. Assumpsit to recover on a contract made by defendant with plaintiff under the terms of which defendant agreed to take and pay for certain rooms in the plaintiff’s hotel for two weeks fromMie second day of August, 1918, but left on the fifth day.</p> <p>The action was brought in the municipal court of the city of Biddeford. Defendant filed a plea of the general issue, and also a brief statement, alleging that plaintiff waived the original contract and substituted another contract’in lieu thereof. The court found for the plaintiff and defendant appealed to the Supreme Judicial Court, where the case was tried to a jury and a verdict of $128.78 was returned.</p> <p>At the close of the evidence defendant requested the presiding Justice to direct a verdict for the' defendant, which was refused, and defendant took exceptions. The case was taken to the Law Court on a motion to set aside the verdict, and on the exceptions, but the exceptions were waived.</p> <p>Case stated in the opinion.</p>

<p>On report, on agreed statement. A bill in equity to determine to whom money deposited in four banks in Boston, Massachusetts, by Celina Cazallis, during her lifetime, in her name as trustee for four cestuis que trustent, one of whom was a sister, two of whom nephews, and one a niece, should be paid. The funds since the depositor’s death, by agreement of the parties in interest, were paid over to the domiciliary administrator of the estate of the depositor, pending the termination of Ibis suit. The case was reported to the Law Court upon the bill, answers, copies of bank deposits, and agreed statement of facts, for the determination of the legal rights of the parties and all questions of law arising therefrom; and .to render final judgment in accordance therewith.</p> <p>Bill to be sustained by single Justice.</p> <p>Case stated in the opinion.</p>

<p>On report. An action of assumpsit on an account annexed, and omnibus count, to recover two thousand one hundred thirty-three dollars and eighteen cents of the defendant personally, alleging that the defendant collected said amount on an insurance policy on the life of the plaintiff, assigned as collateral security by plaintiff to the late L. G. Downes, father of the defendant, of whose estate the defendant was administrator. After the evidence was taken out before a jury, by agreement of the parties, the case was reported to the Law Court for its determination with equity powers.</p> <p>Plea the general issue and a brief statement alleging that the assignment of the policy of insurance declared on was assigned by the plaintiff to L. G. Downes in his lifetime, and at his death became a part of his estate, and as such was collected and distributed by defendant in his capacity as administrator of the estate of L. G. Downes.</p> <p>Case stated in the opinion.</p>

This is an action of trover brought in the Bangor Municipal Court to recover the value of a carcass of a bull moose seized under the provisions of Chapter 131 of the Public Laws of 1919. The moose was lawfully killed in the Province of New Brunswick, and transported, in close time, into Maine to Bangor, where the carcass was seized by the defendant, a game warden.

<p>On report. Assumpsit on a promissory note given to plaintiff by defendant’s testate, Cyrus Greeley. Plea, general issue, with a brief statement alleging that the signature to the note is not the signature of defendant’s testate: and that further the alleged note was without a valuable consideration.</p> <p>Case stated in the opinion.</p>

<p> Beal Action. Common Law Adverse Possession. ■Possessory Titles to Wild Land. R. S., Chap. 110, Sec. 18. The constituent dements of common law adverse possession must be established by clear proof of acts and conduct of such a character as to put a man of ordinary prudence, and particularly the true owner, on notice that the estate fh question is actually, visibly and exclusively held by a claimant in antagonistic purpose. Manifestly the Legislature intended to clothe possessory titles to wild lands with status and protection comparatively equal to similar titles to other lands. 'The real purpose and intent of the Legislature will prevail against the general words which it used when, having regard to the object to be secured, exact adherence to verbiage obviously would lead to injustice. </p> <p>Ileal action. Plaintiffs have the true record title to an uncultivated and uninclosed lot of land, numbered 90, containing approximately one hundred and sixty acres, in the incorporated town of Wellington. Itelying on a chain of recorded deeds, the first being one on sale of the lot for non-payment of taxes, and, additionally, on common law adverse possession, defendants set up, as to the whole lot, a better title in themselves. Failing this, then, with regard to the south half of the lot, defendants maintain that they have title paramount to that of plaintiffs, by force of the ground that, continuously for twenty years next prior to the commencement of suit for recovery of the land, they, and those from whom in immediate line they derivatively claim, (1) have claimed said south half under recorded deeds, (2) have paid all taxes assessed thereon, (3) and have held an exclusive, peaceable,- uninterrupted and adverse possession thereof comporting with the ordinary management of such kind of land in the State of Maine.</p> <p>Substantial infirmities patent on the face of the document, and not elsewhere corrected, render the tax deed, with which paper title of defendants begins, inoperative to convey the described land. Nor have defendants sustained the proposition that common law adverse claim of the land ripened into title. However imperfect, by the standard of common law rule, their acts of ownership were, yet such acts as related to the south half of the lot must be held to have attained to peaceable, exclusive, continuous and adverse possession, tallying with the ordinary management of wild lands. And besides, defendants have fulfilled the other requisite statutory requirements. • '</p> <p>On the record before us, defendants have the bettor title to the south half of demanded premises. But demanded premises include the whole lot. Plaintiffs have title to the north half.</p> <p>A general verdict for defendants clearly was unwarranted.</p>

<p>These two cases being against the same defendant, and Ora A. Wetzler, the plaintiff in the first case, being the wife of the plaintiff in the second ease, being actions on the case to recover damages sustained by the plaintiffs in consequence of the negligence of the defendant, were tried together in the Superior Court in the county of Penobscot. Ora A. Wetzler, the plaintiff in the first case, on the fifth day of November, 1918, at about 5.45 o’clock in the afternoon, while crossing State Street in Bangor from the waiting room of the electric railroad between Bangor and Orono situate about two miles northerly from the center of the city, opposite the entrance to the grounds of the Bangor State Hospital, was struck by the defendant’s automobile, and injured. The plaintiff had come to the waiting room to wait for the electric car from Orono to Bangor, and as she saw the car coming about two hundred feet away, she left the waiting room and was walking on the crosswalk across the street to the car on the other side of the street, when she was struck by the automobile. The jury returned a verdict for $400 for Ora A. Wetzler, the plaintiff in the first case, and $100 for her husband, Henry S. Wetzler, the plaintiff in the other case, for loss of services, comfort and society of his wife, and for nursing and medical attendance.</p> <p>The defendant filed a general motion for a new trial in each case.</p> <p>Case stated in the opinion.</p>

On report on an agreed statement. .This is. an action of debt against a surety on a “fifteen day bond” executed by Frank P. Staples as principal, and- W. A. Soule, the defendant, and one J. W. Currier as sureties. The bond was given to the plaintiff by. the said Frank P. Staples for the purpose of releasing said Staples from an arrest upon mean process in an action of deceit, as provided in the R. S., Chap. 115, Sec. 15.

<p> Tenure of the office of chief of police of Portland. Chapter 370, of the Private and Special Laws of 1909. Duration of term definitely fixed by law. Beginning of first term also definitely fixed by law. Intention controls in construction of statute. Terms of office are regular recurring periods of time, regardless of the time of the exercise of the perogative of appointive power. Where the length of duration of a term of office is fixed by law, and a definite time determined when the first term is to begin, the period of time to be included in each successive term begins at the fixed and definite time of expiration of each preceding term, and a holding over beyond such fixed and definite time of expiration-, does not effect, prolong or change, the time of expiration of any succeeding term. </p> <p>Regular terms of the office of chief of police in the City of Portland succeed each other at quinquennial intervals, beginning with the day that the statute authorizing appointments thereto first had effect.</p> <p>The plaintiff’s term of office as chief of police expired with the second day of July, 1919. From that time on he is without right to salary of the office.</p>

On report on an agreed statement of facts. A bill in equity brought before the Judge of Probate for the County of Knox under Sec. 2 of Chap. 67 of the Revised Statutes, seeking the construction of the will of Susan S. Singhi, and especially and particularly as to whether the provisions of the second item offends the Rule against Perpetuities.

Bill in equity to determine and ascertain the amount of the estate of Amos P. Foster which remained, at the death of Mary A. Foster, his widow, who had a life estate in the whole estate under the provisions of his will, unexpended by her for her care, comfort and support. The cause was heard upon bill, answers, replication and proof. A master was appointed. From the finding of the Justice in favor^ of plaintiff an appeal was taken by defendants. Case stated in opinion.

This is an action on the case for the alienation of the affections of the plaintiff’s wife. It was tried to a jury and a verdict of $7000 was returned.

This an action to recover the purchase price of about fifteen tons of fertilizer. The defendant filed the general issue and a brief statement. The plaintiff made out a prima facie case by showing a purchase, delivery, and non-payment.

This is an action on the case brought in the Superior Court in the; County of Cumberland, to recover for an alleged breach of an agreement, wherein defendant agreed to sell to plaintiff his lodging house business and furniture earned on in Portland on Congress Street, and further agreed to procure from the owner of the lodging house' premises a lease for two years, with right of renewal for same term, and assign said lease to pliiintiff.

This is a bill in equity to enforce a mechanic’s lien for labor and materials furnished by plaintiffs to defendants as contractors in repairing the First Congregational Church of Gardiner.

On Report. An action of assumpsit to recover $171.50 and interest of $15.50 on same, wbicb plaintiff alleges he paid for the purpose of paying or helping to pay a fine imposed by court upon one Caleb H. Wheeler who pleaded guilty to an indictment for maintaining a public nuisance, and for the illegal sale and keeping of intoxicating liquors, and who was a member of the defendant corporation.

On exceptions and general motion. This is an action on the case for personal injuries alleged to have been sustained by plaintiff while a passenger on a car of defendant. Plea, the general issue. Verdict for plaintiff.

<p> Beal action. Sale of land for taxes in unincorporated places. Deed of State Treasurer, ineffectual by reason of insufficient description in advertisement of the list of assessment. </p> <p>In a real action brought to recover real estate in an unincorporated place sold by the State for State and County taxes assessed thereon, in accordance with the provisions of R. S. of 1903, Chap. 9, Sec. 41 et seq., as amended by the Laws of 1905, Chaps. 69 and 150, and Chap. 226 of 1909, where the plaintiff relies on or claims under a deed from the Treasurer of the State of Maine, obtained through a sale of said land as aforesaid, where said land was described in the advertisement of the list of the assessment as follows: — “Penobscot County, 6 R. 7, W. E. L. S. 320, 6,90.” and the list signed by the Treasurer of State, the plaintiff can not prevail, for the reason that the land demanded was not sufficiently described in the list advertised, and said deed is utterly ineffectual to pass any title to any specific tract or acre of land or to convey any title whatever.</p>

On Appeal. A bill in equity to compel specific performance of a written contract between appellants and defendant's intestate. The cause was heard on amended bill, answers, replication and proofs, and the bill was dismissed by the sitting Justice. From which final decree an appeal was taken. Case stated in the opinion.

This is an appeal from a decree by a Justice of the Supreme Judicial Court, in conformity with the decision of the Industrial Accident Commission, that the claimant on January 6, 1919, while in the employ of the American Railway Express Company, sustained an injury to his right foot, in consequence of which so much of the foot as lay forward of the plane of the front surface of the tibia was amputated.

This is an action of assumpsit brought by the plaintiff, a corporation, to recover for merchandise sold and delivered, amounting with interest to $167.06. The plaintiff attempts to charge the defendant, S. P. H. Carr, with liability as a partner with the other defendant, Arthur E. Darling, who offered no defense, having two years prior filed a petition in bankruptcy as an individual.

<p> Malicious prosecution. Probable cause does not depend on the actual state of facts, but upon the honest and reasonable belief of the prosecutor. Actual belief and reasonable grmnds for that belief are essential to constitute probable cause. </p> <p>Upon trial of an action of malicious prosecution, for causing the arrest of the plaintiff under It. S., Chap’. 7, Sec. 105, for fraudulently receiving the vote of a person not qualified to be an elector, an instruction that if the jury finds that such person s voting residence was established in another town, or was not established in the town where he voted, on the day in question, their verdict will be for defendant, is erroneous.</p> <p>Probable cause does not depend on the actual state of facts, but upon the honest and reason .ble belief of the prosecutor.</p> <p>Actual belief and reasonable grounds for that belief are essential to constitute probable cause.</p> <p>By the instruction given, the jury could not inquire into the question of probable cause.</p>

This is an appeal from a decree by a Justice of the Supreme Judicial Court, in conformity with a decision of the Industrial Accident Commission, that the claimant be paid by respondent the sum of fifteen dollars per week during such period he is totally incapacitated for work by reason of his injury, beginning on the eleventh day following the date of the accident, and reasonable medical and hospital expenses', less such amount claimant had received as compensation on…

This is an action of assumpsit on an account annexed to recover brokers’ commissions of 5% of $240,000, the selling price of two steamers, amounting to $12,000, and interest on same of $1,920, making a total of $13,920.

These two actions of assumpsit on policies of fire insurance covering household goods and furniture, each for the sum of $750, were tried together.

This is an action of debt on a bond of an administrator de bonis non with will annexed. Plea the general issue, with a brief statement alleging that no assets came into the hands of the administrator. The case was tried to a jury, but at the conclusion of the evidence the presiding Justice ordered a verdict for plaintiff, to which ruling the defendant took exceptions. Case stated in the opinion.

This is an action of assumpsit to recover an alleged balance of $2,068.24 due plaintiff from defendant on account of transactions between the parties embracing the purchase and marketing of hay. At the return term the defendant filed his pleadings of the general issue, and an account in set-off alleging a net balance of $1,892.61 due him.

This is an action of trespass quare clausum brought by the plaintiff, mortgagee of the locus, against the defendant to recover the value of certain shovel handle blocks removed from the locus by permission of the mortgagor of the land in possession, having been severed and piled up on the land by one Ca,rd, without the permission, consent or knowledge of the plaintiff, mortgagee. Plea, the general issue, with a brief statement.

This is an appeal from the decree of the Judge of Probate of Cumberland County, approving and allowing the last will and testament of Gertrude Whittier Archambeau. Philip Goodridge and Daniel M. Goodridge, brothers of the deceased, resisted the petition for the allowance of the will, alleging fraud, and undue influence, and a failure to comply with the requirements of the statutes and laws of this State in the execution of the will.

On exceptions, and general motion for new trial. This is an action of assumpsit on account annexed to recover for labor alleged to have been performed by plaintiff for defendant, who died before the cause came on for trial, and Eva E. Bean, Executrix, came in and defended.

This is an action of tort brought by the plaintiff as assignee of the United Baptist Convention of Maine, in the Municipal Court for the City of Portland in Cumberland County, and from that court on appeal by the defendant it was taken to the Superior Court for the County of Cumberland, where it was tried by the presiding Justice without the intervention of a jury, with the right of exceptions in matters of law. The action grew out of the following alleged facts.

This is an action of assumpsit to recover $192.57, which plaintiff alleges defendant owed him as a balance due on a sale by plaintiff to defendant of two hundred and thirty-seven sacks of potatoes. Defendant filed a plea of the general issue, and a brief statement under which is alleged accord and satisfaction. The jury returned a verdict for plaintiff for $161.90.

This is a bill in equity brought by the plaintiff, a subcontractor, against defendant, Otto Nelson Company, principal contractor, to enforce a lien on land and buildings in Sanford, Maine, owned by The Sanford Building Corporation, for a claim for labor performed and materials furnished under a contract for painting Sanford Trust Company Building. Plaintiff claimed a balance of $494.13 was due him.

On report. This is a bill in equity brought by Carrie M. Stone, one of the holders of common shares in the capital stock of the defendant corporation, seeking an injunction to restrain the defendants from issuing to the preferred and common stockholders in proportion to the number of shares of stock, either preferred or common, held by each, 2,500 shares of the common stock of the corporation of the par value of §100 each.

On exceptions. In this case, the plaintiff petitioned under R. S., Chap. 107, Sec. 17, for a writ of mandamus commanding the defendant to permit the petitioner to inspect the records and stock-book of the corporation. An alternative writ was issued, and a hearing had thereon before a single Justice who decreed that a peremptory writ be issued, to which decree defendant excepted. Case is stated in the opinion.

<p>On exceptions. This is an action of assumpsit on two promissory notes, each dated July 7, 1917, payable to the order of Partin Manufacturing Company, for two hundred and twenty-five dollars, signed by the defendant, and endorsed by the payee to the plaintiff before maturity. Plea, the general issue, and a brief statement alleging fraud in the inception of the notes, knowledge by plaintiff, failure of consideration, lack of good faith, and that the notes were not taken in the usual course of business. Defendant attempted to introduce testimony showing fraud or irregularities between the original parties, but on objection by. counsel for plaintiff, on the ground that it must first be shown that the plaintiff was not a purchaser in good faith, and that it had knowledge of any irregularities or infirmities resulting from acts between the original parties, the testimony was excluded by the presiding Justice and an exception taken.</p> <p>After the introduction of testimony was completed, the presiding Justice directed the jury to return a verdict of $450, and interest, for plaintiff, and defendant excepted.</p> <p>The case is fully stated in the opinion.</p>

On exceptions. This is an action to enforce the award of a referee. A lumber contract entered into by plaintiff and defendant contained a provision for a reference for the settlement of all controversies which might arise between them in the execution of the terms of the contract, and that the award should be conclusive on both parties.

On motion. This is an action to recover damages for alleged alienation of the affections of the plaintiff’s wife by the defendant. The declaration contained two counts, the first charging criminal conversation, and the second alleging enticement. The jury returned a verdict for plaintiff. Defendant filed a general motion for a pew trial, and also tiled a motion for a new trial alleging newly discovered evidence. Case stated in the opinion.

On exceptions by defendant. This is an action on a fire insurance policy in the usual Maine standard form. Subsequent to the issuance of defendant’s policy, other insurance in another company was put on the same property by the same agent. The policy issued by the defendant did not contain a written or printed permit for other insurance.

On report on agreed statement. A bill in equity seeking the interpretation of the residuary clause in the will of Elizabeth H. Avery. One of the residuary legatees predeceased the testatrix. The only question involved is as to whether the share such predeceased legatee would have received, had she survived the testatrix, goes to the surviving residuary legatees, or remains undisposed of and goes to the heirs at law as intestate property. Case is fully stated in the opinion.

On exceptions and motion for new trial by defendant. This is an action on the case to recover damages for personal injuries sustained by plaintiff while in the employ of the defendant, as a laborer in assisting in discharging coal from a vessel, at a wharf in Portland owned by defendant; Several counts at common law, and one invoking the provisions of the State Workmen's Compensation Act, R. S., Chap. 50, were embraced in the writ.

<p>On report. An action of assumpsit to recover of the town of Bucksport the sum of five hundred and fifty dollars, which plaintiff, alleges would have been due her as wages as school teacher under her contract with defendant for the school year beginning September, 1918, had she not been dismissed by the Superintending School Committee of defendant town, prior to the time she was to begin her services under the contract. The defendant filed the general issue, and a brief statement that the Superintending School' Committee of the defendant town had dismissed plaintiff under authority of Chap. 16, Sec. 38 of the Revised Statutes. It was admitted that plaintiff had the necessary certificate for teaching, and that she had been engaged by the defendant town to teach school for the school year beginning in September, 1918, at a salary of $550 a year. During the school year plaintiff received $110 for services as teacher for eleven weeks in her home district. The cause was tried by the presiding Justice without the intervention of a jury, and after the close of the testimony, by agreement of the parties, the case was reported to the Law Court.</p> <p>Case stated in the opinion.</p>

An action under the Federal Employers’ Liability Act to recover for personal injuries received while in the employment of defendant as freight conductor. Plea, the general issue, and a brief statement, alleging assumption of risk by plaintiff. A verdict of $8,454.66 for plaintiff was returned, and defendant filed a general motion for a new trial. Case fully stated in the opinion.

On defendant’s exceptions. Two actions, one in asfeumpsit, and one in covenlant, to recover a balance alleged to be due plaintiff from the defendant, for personal services as parish priest in charge of its church in Lewiston, under a written agreement therefor, were brought for the same cause, on the same day, and served at the same time. The defendant filed a plea in abatement in each case, alleging the pendency of another action for the same cause.

On report on agreed statement. The respondent was found guilty in the Bangor Municipal Court of a violation of a certain ordinance of the City of Bangor relative to junk business, and appealed to the Supreme Judicial Court. The case was taken to the Law Court on an agreed statement of facts and a certain stipulation. Respondent to be adjudged guilty and sentenced to be imposed by the court below. The case is fully stated in the opinion.

On motion. This is an action to recover for meals furnished by plaintiff to defendant’s intestate, and his wife, Fannie B. Patterson. Plea, the general issue. The jury returned a verdict of 81,205.24, for plaintiff. Defendant filed a motion for a new trial. The case is very fully stated in the opinion.

On report. This is an action of replevin brought to recover certain pressed hay alleged to be taken and detained by the defendant. Plea, the general issue of non cepit, with a brief statement alleging title to, and possession of the hay, to be in defendant.

On exceptions by defendant. This is an action on a promissory note, the maker having died before maturity of the note, and an administratrix had been appointed of his estate, it having been endorsed by payee before maturity to plaintiff, no place of payment being specified in the note. It was protested at maturity by a notary public, cashier of plaintiff bank, but no demand was made upon the administratrix of the estate of the maker.

On exceptions by defendant. This is an action of assumpsit by Elliott W. Howe against Abbie M. Gray, administratrix of the estate of George C. Gray, on two promissory notes of $1,000 each. The defendant filed a demurrer to the declaration alleging that the claim in writing which it is alleged in the declaration was presented to the defendant in her capacity as administratrix, was not supported by the affidavit of the claimant or some other person cognizant thereof.

On motion and exceptions by defendant. Plaintiff seeks in this action to recover damages for personal injuries sustained while in the employ of defendant as a sawyer in his portable sawmill. The case was tried in the Superior Court for Kennebec County, and the jury returned a verdict of fourteen hundred dollars for plaintiff. Defendant filed a motion for a new trial, and also a bill of exceptions. Case is stated in the opinion.

On exception by respondent. The respondent was indicted at the January Term of the Superior Court for the County of Cumberland, 1920, for keeping and maintaining a gambling nuisance in violation of Section 1, Chapter 23, of the Revised Statutes. Respondent requested a drawn jury and the eleventh juryman was challenged for cause-by respondent which was overruled by the presiding Justice, and the respondent took exception. Case is stated in the opinion.

On exceptions by defendant. Assumpsit on promissory notes given for jewelry sold by plaintiff to defendant. Plea the general issue with brief statement. Defendant filed a motion to dismiss, which was overruled by the presiding Justice, and defendant excepted. At the conclusion of the evidence the presiding Justice directed a verdict for the plaintiff for the amount sued for and accrued interest, and the defendant took exceptions..

<p>On appeal by respondent. Edgar M. Ward, the respondent, was tried at the October term, 1919, of the Superior Court for Androscoggin County upon an indictment charging Mm with the murder of one Marie Bernier, and the jury returned a verdict of guilty. After verdict and before sentence, the respondent moved that the verdict be set aside. The presiding Justice denied the motion, and the respondent appealed.</p> <p>Case is stated in the opinion.</p>

<p>On exceptions by defendant. This is an action of forcible entry and detainer. Plea, not guilty. This cause was tried to a jury at nisi prius four times, and a verdict for plaintiff was returned at three of such trials, and a verdict for defendant returned at one of such trials, it being the third trial, the court at the first and fourth trials having directed a verdict. The question involved in the case and which was the sole issue at each of the four trials, was as to whether or not there was delivery of a certain deed from the father of these parties to the plaintiff’s wife. After the exceptions taken at the fourth trial had been overruled, upon a hearing on costs the defendant took exceptions and an appeal which were sustained and bill of costs corrected. In the meantime defendant filed a motion for judgment on the verdict rendered at the third trial for defendant, at the April term, 1917. This motion was overruled and exceptions taken. The defendant in support of his exceptions contends that the acts of the Law Court since the rendering of the verdict at the April term, 1917, are void by reason of the fact that the report of the evidence was not certified or attested as required by the statute, thus raising the question of jurisdiction of the Law Court.</p> <p>The case is fully stated in the opinion.</p>

<p>On exceptions by plaintiff. This case arises from the dissolution of a temporary injunction. A master in chancery was appointed to assess damages and costs, and after a hearing filed in court his report, to which plaintiff filed exceptions. The plaintiff’s exception’s were overruled, the report affirmed, damages and costs assessed to defendant in the sum of $269.52, and in default of payment execution to issue. To these decrees plaintiff excepted.</p> <p>Case stated in the opinion.</p>

<p>On appeal from a decision of the chairman of the Industrial Accident Commission. The respondents in their answer to the petition alleged that the matter at issue was not sufficiently set out in the petition, and asked to have the petition amended, which was refused, and further alleged that claimant entered into an agreement with respondents for compensation, as provided by law, which compensation had been paid, when due, and that claimant was not entitled to further compensation than that provided under said agreement.</p> <p>Case is fully stated in the opinion.</p> <p>Claimant not being represented by counsel, his examination was conducted by Arthur L. Thayer, Chairman of Industrial Accident Commission.</p>

On appeal by defendant. This ease came to the Law Court on appeal by J. B. Ham Company, the employer, and Royal Indemnity Company, its insurance carrier, from the decree of a single Justice sustaining the findings of the chairman of the Industrial Accident Commission, ordering them to pay to Elizabeth Patrick, dependent widow of Joseph Patrick, a deceased employee of said J. B. Ham Company, weekly compensation of $11.80 to the maximum sum of $3,500, under the provisions of…

<p>On report. This is an action on the case alleging negligence, brought by plaintiff, a daughter of a tenant of the defendants, to recover damages for an alleged injury received in passing down the back door steps leading from the first floor of the building, in which was the tenement occupied by her father, to the street. The building being located in Portland at the corner of Oxford and Franklin streets. After the testimony was taken, by agreement of the parties, the case was reported to the Law Court to render such judgment as the law and evidence required.</p> <p>The case is stated in the opinion.</p>

On exceptions by defendant. This is an action of debt on a bond containing two counts, one declaring on the penal part of the bond, and the second alleging a breach of the conditions of the bond.

<p>On exceptions by respondent. The respondent was arrested on a complaint charging a violation of Chapter 180 of the Public Laws of 1919, which provides as follows: “No person shall have a riñe or shotgun, either loaded or with a cartridge in the magazine thereof, in or on any motor vehicle while the same is upon any highway or in the fields or forests.” The respondent waived examination in the trial justice court, found guilty, and appealed to the Supreme Judicial Court, and at the first term filed a general demurrer, with leave to plead over, alleging that the language of the complaint was vague and indefinite and did not sufficiently set forth the offense charged, and further alleging that the statute conferring jurisdiction upon trial justices and other courts, of offenses under the inland fish and game laws committed in an adjoining county, is repugnant to Section 6 of the Declaration of Rights, guaranteeing to the accused in criminal prosecutions, the right “To have a speedy, public and impartial trial, and, except in trials by martial law or impeachment, by a jury of the vicinity.” The demurrer, after joinder, was overruled by the presiding Justice, and respondent excepted.</p> <p>Case stated in the opinion.</p>

On exceptions and motion by respondent. An indictment was'found against respondent under R. S., Chap. 126, Sec. 6, alleging the taking of indecent liberties with a female child under sixteen years of age. The case was tried to a jury and a verdict of guilty returned. After the verdict and before judgment the respondent filed a motion in arrest of judgment which was overruled by the presiding Justice, and respondent excepted.

On exceptions by respondent. The respondent was indicted under the provisions of R. S., Chap. 121, for wilfully and maliciously setting fire to a building of another, with intent to burn the building, and the building was burned. The indictment was drawn in the language of the statute.

<p> The record and evidence in a former trustee action and scire facias proceedings, between the parties, are admissible to show the conduct and attitude of a party to a suit, as bearing on the establishment of the truth or falsity of controverted questions. No grounds for invoicing the principles of estoppel. Verdict justified on the evidence. </p> <p>The plaintiff brought this suit ágainst the defendant as an original promisor to recover a balance of $1293.61 for supplies furnished one Bean for use in his lumbering operation. The jury returned a verdict for the defendant and the case is before the Law Court on plaintiff's exception and motion.</p> <p> Held: </p> <p>1. That the record of a previous trustee suit brought by the plaintiff against Bean as the original promisor and the U. S. Bobbin & Shuttle Company as trustee, and of the subsequent scire facias action against the company as a guarantor of Bean’s debt, was properly admitted as showing the conduct and attitude of the plaintiff.</p> <p>2. That the company was not estopped to prove the same and the exception is without merit.</p> <p>3. That the verdict of the jury was fully warranted by the evidence.</p>

On appeal by claimant from a decree of a single justice in conformity with the decision of the chairman of the Industrial Accident Commission, denying compensation to Bessie M. Smith claiming as dependent .widow of Warren H. Smith.

On report. The plaintiff alleges that on the third day of May, 1919, he bought of defendants five hundred tons of ice at $4.25 per ton, f. o. b. Biddeford; that only about one hundred tons were furnished under the terms of the contract, and that he had sold the ice at a net profit of $5.90 per ton.

<p> In an appeal from the finding of a single Justice upon matters of fact in equity, the burden of clearly convincing theAppellate Court of the incorrectness of such finding is upon the appellant. The assignment of a life insurance policy, valid in its inception, as an ordinary business transaction, without suspicion of fraud and entirely free of the character, attributes, and surroundings of a wager policy, made by the assured and beneficiary in good faith for ample consideration, and assented to by the insurance company, vests the assignee with the entire legal interest in the policy, whether the assignee has an insurable interest in the life of the assured or not. </p> <p>This was a bill of interpleader brought by the Aetna Life Insurance Company against Benjamin G. Kimball, Henry J. Conley and Theodore Kerr for the purpose of determining which one of the defendants was entitled to the proceeds of a certain policy of insurance issued by said Aetna Life Insurance Company on the life of Rosina W. Kimball, deceased, wife of the defendant Benjamin G. Kimball.</p> <p>The sitting Justice found that the defendant, Theodore Kerr, was entitled to the fund in question, and from the final decree, the defendant, Henry J. Conley, appeals to this court.</p> <p> Held: </p> <p>1. Examination of the record discloses such finding to be supported by the testimony in the case, and the appellant presents no sufficient evidence in opposition thereto.</p> <p>2. It is a rule well established in this jurisdiction that the decision of a single Justice upon matters of fact in an equity case should not be reversed unless the Appellate Court is clearly convinced of its incorrectness, and that the burden of showing error is upon the appellant.</p> <p>3. An assignment of a policy made by the assured in good faith for the purpose of obtaining its present value, and not as a gambling risk between him and the assignee, or a cover for a contract of insurance between the insurer and the assignee, will pass the interest of the assignor; and the fact that the assignee has no insurable interest in the life of the insured is neither conclusive nor prima facie evidence that the transaction is illegal.</p> <p>4. It is well settled that an assignment of a life insurance policy executed in compliance with the terms of the policy by the assured and the only beneficiary, divests both of them of, and vests the assignee with, the entire legal interest in the policy.</p> <p>5. An insurable interest in the life of another, such as will take the contract of insurance out of the class of wager policies is such an interest, arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life.</p> <p>6. The weight of authority appears to hold that a life insurance contract is not one of indemnity, and so does not require the insurable interest to continue as in case of fire insurance, but is a mere' chose in action, which may be assigned in a bona fide transaction as any other chose in action. If the contract or policy was valid at its inception it may be assigned for a valuable consideration and the assignee may thereafter carry it on and receive the proceeds. A fortiori is this so, if the assignee also has an insurable interest.</p>

On report. This is a writ of entry to recover the possession of certain real estate in Lewiston. On October 13, 1908, the plaintiffs leased to the Lewiston, Augusta & Waterville Street Railway for the term of twenty years, at an annual rental of $2800, a brick block located in Lewiston at the southeasterly comer of Main and Lisbon Streets. Before the expiration of the term of the lease, lessee was placed under receivership by the court.

On appeal by respondent. A bill in equity to redeem a mortgage of real estate upon which foreclosure proceedings had been begun. The mortgage contained a one year foreclosure covenant, and was dated prior to the amendment of Sec. 4 of Chap. 95, of the R. S., by Chap. 192 of the Laws of 1917, requiring the mortgagee within three months after the completion of foreclosure to record in the Registré of Deeds an affidavit setting forth certain facts.