Volume 120 — Maine Reports

On motion for a new trial by defendant. This is an action on the case to recover for loss by fire in a building in Rockland on December 30, 1917, damaging a stock of merchandise, consisting of boots, shoes, and rubbers, and fixtures. Before this action was brought an arbitration was held under the provisions of the standard form of policies which resulted in fixing the amount of the plaintiff’s total loss of $2952.50.

On report. This is an action to recover damages for a breach of contract. The defendant pleaded the general issue and under a brief statement set up the statute of frauds. The defendant by letter offered to buy the entire crop of apples at Highmoor Farm.

On report. This is an action of trespass for false imprisonment. The plaintiff was arrested by the defendant, a deputy sheriff, on the 27th day of August, 1919, on a warrant issued by the Portland Municipal Court, and on the same day committed to jail in Cumberland County. The next morning, before court set, the sheriff, without the knowledge or consent of the defendant, one of his deputy sheriffs, permitted the prisoner to go at large.

<p> Where two or more municipal corporations or political bodies are wholly or partly coincident in territory, they are nevertheless regarded as separate bodies for the purposes of constitutional debt limitation unless the contrary is expressed in the constitution. The constututional requirement is met, if the municipality or district enjoying special benefits from a public imprroverrient is required to bear the burden of a greater percentage of tax caused by such improvement than the state at large, provided such percentage is not disproportionate to the special benefits that ‘will accrue to it. When a part of a statute which is unconstitutional and invalid is separable from, and independent of a valid and constitutional part, the former may be rejected and the latter may stand. </p> <p>1. The Charter of the City of South Portland provides that “every such ordinance, order, resolution or vote (involving the appropriation or expenditure of money to an amount which may exceed three hundred dollars) shall be read twice with an interval of at least three days between the two readings before being finally passed.” The act of the Legislature creating the Portland Pier Site District (Comprising the cities of Portland and South Portland) was accepted by the city council of South Portland, but was not read twice with an interval of three days.</p> <p>Such procedure was not necessary. It is clear that the above quoted language of the City Charter has reference to the appropriation of the City’s money, and not to that of an independent municipal corporation, though including in part the same territory.</p> <p>2. Assuming without deciding that the debt of the City of South Portland plus its proportionate share of the proposed bond issue of the Portland Pier Site District will exceed five per cent of South Portland’s valuation the constitution is not thereby contravened.</p> <p>The bond issue creates a debt of another corporation. ■ It is settled by numerous judicial authorities that where two or more municipal corporations or political bodies are wholly or partly coincident in territory, they are nevertheless regarded as separate bodies for the purposes of constitutional debt limitation unless the contrary is expressed in the constitution.</p> <p>3. Under the constitution of Maine taxes upon tangible property must “be apportioned and assessed equally according to the just value thereof.” It is obvious that a dollar of district property will'bear a much larger share of the tax burden to be caused by the projected public wharves, than a dollar of property outside the district.</p> <p>But charging upon a city, town or district enjoying special benefits from a public improvement a percentage of the tax burden caused thereby greater than that borne by the state at large but yet proportionate to such special benefits does not produce, but on the other hand, prevents inequality. When the benefit and burden are reasonably proportionate, the constitutional requirement is satisfied.</p> <p>The popular conviction underlying the adoption of the constitutional amendment of 1919 is apparent. It was that Maine’s advantageous geographical position and natural features if supplemented by adequate wharf and port facilities promise large growth in maritime commerce and that such growth will enhance the prosperity and promote the welfare of the state and its people. If this conviction is well founded it requires no argument to demonstrate that the Port of Portland will enjoy a much greater share of such growth and prosperity than will the state at large.</p> <p>It is not clear and manifest that the act imposes upon the district a tax burden which is disproportionate to the special benefits that will accrue to it.</p> <p>4. Section 8 of the act creating the Port of Portland authorizes the directors of the port to lease wharves that may be built in pursuance of the act “under such covenants and conditions as they may prescribe.”</p> <p>The act by its broad and general terms purports to authorize the directors to lease for private as well as public purposes.</p> <p>In so far as the act authorizes leasing for private purposes it contravenes the constitution.</p> <p>This however does not render the entire act void. The remainder stands unchallenged and the power to assess and collect taxes in furtherance of the valid portion remains in full force and virtue.</p> <p>When as in this ease a part of a statute which is unconstitutional and invalid is separable from, and independent of a valid and constitutional part, the former may be rejected and the latter may stand.</p> <p>The petitioners have not shown that they are entitled to an injunction restraining the proposed bond issue by the Portland Pier Site District.</p>

On exceptions. This is an action of assumpsit to recover for services rendered in preparing plans and specifications for the construction of a proposed bridge between Orr’s Island and Bailey’s Island in the town of Harpswell. Defendant claimed that the municipal officers were not legally authorized to contract with the plaintiff to furnish or render the services sued for and that the town was not liable.

<p> An employee after finishing her work and in leaving the building to return to her home, there being two exits from the floor where she worked to the street, and a stairway leading to the basement from which there was an exit by a back way to . her home, takes a freight elevator not used by employees for the purpose of exit with knowledge of employer, to reach which it was necessary to go through a door into another room and pass through an alley way, the elevator being in an extension built onto the main building, and is injured, such injury is not the result of an accident “arising out of and in the course of his employment.” The accident must be due to a risk which the employee is exposed “while employed and because employed by employer,” and must occur while employee is doing the duty which he is employed to perform, all of which the burden is on the petitioner to show. </p> <p>This case comes up on an appeal from the finding of the chairman of the Industrial Commission in favor of the petitioner.</p> <p>The essential facts as found by him are as follows:—</p> <p>The only question raised in the case is whether or not the injury to the petitioner is due to an accident arising out of and in the course of her employment.</p> <p>The facts brought out in the evidence which was introduced at the hearing were briefly as follows:—</p> <p>Lizzie Dulac was, on the 28th day of August, 1919, an employee of the Dumbarton Mills at Dexter, Maine. Her work was in what was known as the card room of the mill. On the day in question she had finished her work and was leaving the building to return to her home. There were two exits from the floor of the mill'where the card room was located, which went out to the street level. There was also a stairway leading from the card room to the basement of the mill, one floor below the card room. By going to the basement floor Mrs. Dulac could go to her home a back way which was shorter than by going out on the street level from the card room floor. Besides the stairway leading from the card room floor to the basement floor, there was an elevator used to carry freight between the basement and the other two floors of the mill. On the particular night in question, Mrs. Dulac, instead of going down the stairway to the basement, took the elevator. The injury occurred in the basement as she was getting out of the elevator.</p> <p>The elevator was installed and used for the purpose of carrying freight to the mill. The evidence shows that it was used some by individual workman in going up and down, and by the plaintiff, as she says a maximum of eighteen times during her eight years’ employment.</p> <p>There is no evidence that the respondent or any of its agents knew of the plaintiff’s personal use of the elevator. On the day of the injury, she was alone on the elevator and attempting to operate it herself, and was injured as the testimony unquestionably shows by her own ignorance of how to operate. But the manner of the accident is not material. Her act is not barred by Section 8.</p> <p>Under these admitted facts and circumstances was she injured in an accident ‘arising out of and in the course of her employment?’</p> <p> Held: </p> <p>1. That the relationship of the plaintiff and defendant aré contractual. Their common law relations of master and servant are allowed to be changed by the consent of the parties. By formal written notice, they are authorized, but not compelled, to modify their rights and their remedy as prescribed by the common law, R. S., Chap. 50, Secs. 6 and 7.</p> <p>2. ■ That among other things, the employee agrees that his right to recover shall occur from an accident ‘arising out of or in the course of his employment.’</p> <p>3. That the burden of proof is on him to establish these facts.</p> <p>4. That the accident must have been due to a risk to which the employee was exposed ‘while employed, and because employed by the defendant.’</p> <p>5. That an injury is received in the course of the employment when it comes while the workman is doing the duty which he is employed to perform.</p> <p>6. That the use of the elevator was no part of the work, duty or privilege of the petitioner’s nor incidental to her work.</p> <p>7. That the accident did not occur in the course of the plaintiff’s employment.</p>

On exceptions'. The respondent was indicted at the January-1920 term of the Superior Court in Cumberland County for a violation of Sec. 38, of Chap. 26, of the R. S., in that on the sixth day of December, 1919, at Portland, while operating an automobile, after causing injury to one Arthur Abbott, “did go away without stopping and making himself known.” At the same term of court the respondent was found guilty by a jury.

In equity. On report. Bill in equity to determine in what proportions the income of a trust estate created under the fourth item of the will of Llewellyn Scott Wyman, allowed, June 5, 1905, in the Probate Court for Cumberland County, in Paragraphs 3, 4, 5, and 6, shall be paid to the issue of the beneficiaries, all of whom now deceased, named in said paragraphs.

On appeal by defendant from the decision of the chairman of the Industrial Accident Commission, confirmed by a sitting Justice of the Supreme Judicial Court in accordance with the provisions of R. S., Chap. 50, commonly known as the Workmen’s Compensation Act. The case is fully stated in the opinion.

On appeal. This case came before the Law Court on an appeal from a decision of the chairman of the Industrial Accident Commission of this State. On August 3, 1920, the petitioner was employed as a cleaner by the Eastern Manufacturing Company at their mill in South Brewer, Maine. He was also a member of the Volunteer Fire Department of South Brewer and received from that organization a salary of sixty-five dollars a year, dependent upon his attendance at fires.

On motion by defendant for new trial. This is an action for assault and battery. The plaintiff recovered a verdict of one hundred dollars. The defendant plead the general issue and a brief statement of justification. The case is fully stated in the opinion.

On April 23, 1918, Mathias Gauthier, petitioner, while in the employment of the Penobscot Chemical Fibre Company, respondent, suffered a broken leg by accident arising out of and in the course of such employment. Under an agreement compensation was paid from date of injury to Jan. 20, 1919. Petitioner returned to work, but his injury grew no better, and on Jan. 19, 1920, his leg was amputated.

On May 2, 1919; Major Shink, the petitioner, while in the employment of Augustus Carey & Co., át Waterville, was injured. For such injury, the petitioner was paid as compensation for loss of time two hundred and fifty dollars, and a bill of $35 for medical services rendered to petitioner as a result of such injury was paid by the insurer.

<p> Under the Workmen’s Compensation Law, the amount of compensation is determined by the statute in force at the date of the accident. </p> <p>The commissioner found as a fact that the death of the petitioner’s husband from tuberculosis, was due to an industrial accident which he suffered twenty months before. This finding being supported by some evidence is not subject to review by this court.</p> <p>The amount of the commissioner’s award is however based upon the statute of 1919. This is error. For reasons set forth in Gauthier’s case the amount of compensation is determined by the statute in force at the date of the accident.</p> <p>To determine the correct award, no disputed question of fact is to be passed upon.</p> <p>The decree must be modified to conform to the statute in force in 1918 when the accident occurred.</p>

<p>On exceptions by respondent. At the October term 1919, of the Supreme Judicial Court in Oxford County, Michael X. Mockus of Chicago in the State of Illinois, was indicted for blasphemy under Sec. 30, Chap. 126, of the R. S. The respondent at the invitation of a society of Lithuanians in Rumford Falls, delivered three lectures on the 6th, 8th and 10th days of September, 1919. These lectures were delivered in the Lithuanian language to a large audience in each case accompaniéd by pictures thrown upon a screen, representing usually Biblical subjects, including the Annunciation, the Crucifixion, and the picture of God as he appeared in the vision of Ezekiel. As these pictures were thrown upon the screen the respondent commented upon them, in a manner alleged to be blasphemous. The jury found the respondent guilty and the case was taken to the Law Court on exceptions by respondent to the refusal of the presiding Justice to give certain instructions, and to the exclusion of certain documentary evidence.</p> <p>The case is fully stated in the opinion.</p>

<p> For injury done to the property of another by fire communicated by a locomotive engine the user of the engine is liable, a statute making it in effect an insurer.• </p> <p>For injury ■ done to the property of another by fire communieated by a locomotive engine the user of the engine is liable, a statute making it in cli’ect an insurer.</p> <p>Predicated on the premise that defendant’s locomotive engine set the fire which burned over about three-fourths of an acre of land, doing it damage besides killing one hundred or less pine and other timber trees together with a larger number of a smaller growth suitable for fuel, plaintiff, as the owner of the land, brought this action to recover damages.</p> <p>The jury found for plaintiff. Such finding, as the case is seen on review, is supported by a fair preponderance of proof, in nature both direct and deducible by inference. The amount of damages, fixed by the jury at $380.00, is not shown to be inordinate.</p>

On exceptions by defendant. This is a common law action of trespass for flowage. Plea, the general issue. A verdict of two hundred and twelve dollars and fifty cents for the plaintiff was rendered by a jury. The case was taken to the Law Court on exceptions to the refusal of the presiding Justice to give certain instructions, and. a refusal to direct a verdict for the defendant. Case stated in the opinion.

On appeal. This is a bill in equity praying for a sale of certain real estate held in common by the plaintiff and the defendant, Fred H. Coombs, and for a distribution of the proceeds of the sale.

On appeal. This is a bill in equity brought originally by the Belfast Savings Bank as sole plaintiff against the Sanford & Cape Porpoise Railway Company, under the provisions of Sec. 82, Chap. 51, R. S., alleging that the plaintiff was a creditor of the defendant corporation on account of unpaid interest on the 5% bonds of the defendant corporation, dated January 1, 1898, since July 1, 1915, and that the defendant had ceased to do business and that it possessed assets…

On report. A bill in equity seeking the construction of the will of Pierre Emmanuel Dupont, who died December 9, 1915, testate, and after specific bequests to relatives, gave the residuum of his estate to the Community of Carmelites, a religious corporation located at Montreal, Canada.

On exceptions. This is a bill in equity brought by the complainant in his own name as county attorney to restrain the defendant in the operation of its glue plant at Vinalhaven, alleging it to be a public nuisance.

<p> Verdict for plaintiff not warranted by the evidence, as the testimony fails to disclose a fair preponderance of evidence in favor of plaintiff’s claim by adverse possession, and the defendant has a better record title. </p> <p>This is a real action wherein the plaintiff demands possession of certain real estate claimed both by adverse possession and by record title. Verdict for plaintiff,</p> <p> Held: </p> <p>1. The testimony contained in the record does not disclose a fair preponderance of evidence in favor of the plaintiff’s claim by adverse possession.</p> <p>2. As to record title, the plaintiff presents three deeds, the first bearing date of March 4, A. D. 1739; the second, bearing date of April 1, A. D. 1748; the third is a quit-claim deed to herself dated April 18, 1864, leaving a gap of one hundred sixteen years, so far as her record title is concerned, between the quit-claim deed, by which she claims to hold, and the next prior conveyance in. her chain of title. On the other hand, the defendant offers a warranty deed dated December 16, 1841, which is twenty-three years earlier than the plaintiff’s quit-claim deed, and presents intermediate deeds without break in the chain tracing direct title to himself, his immediate conveyance being a warranty deed, under which he has held for more than forty years.</p> <p>3. That the defendant has the better record title; that the jury must have failed to understand the rules of law pertaining to the case, and the application of the evidence to those rules of law, with the result that their verdict was manifestedly wrong.</p>

<p>On appeal. This case was taken to the Law Court on an appeal from a decision of the Industrial Accident Commission. The claimant, a machinist, in the employment of the Kennebec Journal Company, while cranking a motor in the course of his employment, received a blow upon his left forearm. He lost no time from his work and no wages, as a result of the injury, but was not able to do such efficient work. It was alleged that the nerves of the arm were injured by the blow, which resulted in an impairment of function of the thumb, and first and second fingers of the left hand, and the commission found that such impairment was permanent from which finding respondent appealed.</p> <p>Case is stated in the opinion.</p>

<p>On exceptions by. defendant. This is an action on the case to recover damages by reason of the publication in a newspaper published by the defendant, of the portrait of Nathan C. Herrick, of Washburn, son of the plaintiff, in connection with a sketch reciting and concerning the death of Nathan C. Herrick of Mechanic Falls, the son of the plaintiff at the time of said publication being over-seas in the Army of the United States.</p> <p>At the return term of said action defendant filed a general demurrer, which was overruled by the presiding Justice, and defendant filed exceptions.</p> <p>Case stated in the opinion.</p>

<p> Unregistered motor vehicles and unlicensed operators of motor vehicles, not lawfully in the highways under R. S., Chap. 86, Sec. 88, unless within the exception under Chap. 86, Sep. 88, R. S. Nor is a passenger in a motor vehicle driven by an unlicensed operator a lawful traveller upon the highway, so far as the town is concerned, unless such operator is within said exception. </p> <p>By R. S., Chap. 26, Sec. 28 the highways of the State are closed alike to unregistered motor vehicles and to unlicensed operators of motor vehicles.</p> <p>In actions against, towns to enforce a statutory liability for defects in the highways, it is not a question of casual connection in either case between the violation of the statute and the happening of the accident; the unregistered car and the unlicensed operator are’ alike expressly forbidden by the statute to pass along the highway.</p> <p>So far as the town is concerned the unlicensed operator is not a lawful traveler upon the highway unless in any particular case he is within the exception found in R. S., Chap. 26, Sec. 33.</p> <p>Nor is a passenger in a motor vehicle driven by an unlicensed operator a lawful traveler upon the highway, so far as the town is concerned, unless the unlicensed operator is within the exception found in said Section 33.</p> <p>The words, “riding with or accompanied by a licensed operator,” contained in said Section 33, mean that the licensed operator shall ride with, or accompany the unlicensed person, under such conditions and in such proximity that he can- maintain the supervision over the unlicensed person necessary for safety, and render assistance, if need be, with reasonable promptness.</p> <p>To be within the exception, the unlicensed person must be operating the vehicle in company with the licensed operator “for the purpose of becoming familiar with the use and handling of a motor vehicle, preparatory to taking out a license for driving” — not necessarily for the sole purpose of becoming familiar with the vehicle, but that purpose must be present in his mind.</p> <p>Upon the undisputed facts the court is of the opinion that Harry F. Blanchard, the unlicensed operator and part owner of the motor vehicle in which Alanson S. Blanchard was riding was not within the protection of Sec. 33 of Chap. 26 of the R. S.</p>

On motion by plaintiff to set aside the verdict. This is an action of trespass quare clausum involving the true line between adjoining lots. Verdict for defendant with special findings. Case is stated in the opinion.

From which decree the plaintiff in said bill took an appeal to the Supreme Court of Probate according to the provisions of the statute relating to probate appeals. The appeal was entered in the Supreme Court of Probate and a hearing had thereon, at which hearing the appellees raised the question of jurisdiction of the Supreme Court of Probate and the same was submitted to the sitting Justice and was reported to the Law Court on an agreed statement. Case stated in the opinion.

<p>On exceptions and motion. Tliis is an action to recover for personal injuries sustained by plaintiff, who was a passenger in an automobile which was hit by a train of defendant on the railroad crossing at Pleasant St. in the City of Rockland, on the twenty-ninth day of August 1916. The case was tried to a jury at September term, 1920, in .Knox County, and at the close of the testimony the defendant moved for a directed verdict upon the ground that there was no negligence on the part of the railroad, and secondly that plaintiff was guilty of contributory negligence, which motion was refused by the presiding Justice and defendant took exceptions. A verdict for plaintiff was rendered for $4048.33, and defendant filed a general motion for a new trial.</p> <p>Case is stated in the opinion.</p>

On appeal by defendant. This is a bill in equity seeking the interpretation of the residuary clause in the will of M. Angie Brown. A hearing was had before a single Justice upon bill, answer and replication and it was decreed that under the residuary clause of the will,' Caroline S. Fogg, the executrix of the will, and the respondent in the bill in equity, held the property in trust for the heirs at law of testatrix, from which finding defendant appealed.

On report. This is an action for money had and received, brought by plaintiff, a brother as assignee of another brother, against a sister to recover a balance claimed to be due from the proceeds of a conveyance of certain land on Bar Island in Frenchman’s Bay.

On exceptions and motion by respondent. The respondent was indicted in the Superior Court in Cumberland County for assault and battery upon one Perley C. Bennett. The case was tried with two other cases against Homer Brooks and Emma King upon the same charge.

On exceptions and motion for new trial. This is an action to recover for personal injuries received by the plaintiff while traveling upon a public highway, to wit, while crossing a bridge, in defendant plantation. At the close of the testimony for the plaintiff, defendants moved for a directed verdict for defendants, which motion was denied, and defendants excepted. Verdict of $775.00 for plaintiff was rendered, and defendants filed a general motion for a new trial.

<p>On motion by defendant. This is an action to recover damages for breach of contract. On October 30, 1917, the defendant, conveyed by deed to the plaintiff certain real estate in Auburn for the sum of $13,000.00, the plaintiff paying down $3,000 of the purchase price in cash and gave a mortgage and note to the defendant bank for $10,000.00. One of the conditions of the mortgage was that the plaintiff should keep the buildings insured against loss by fire in a sum not less than $10,000.00.</p> <p>At the time of the conveyance the bank held two policies on the buildings amounting to $5,000.00. After the delivery of the deed and mortgage plaintiff alleges that the treasurer of the defendant bank told the representatives of plaintiff that if plaintiff would put $5,000.00 insurance on the buildings, it, the bank, would assign the two policies which it held amounting to $5,000.00, to plaintiff. Defendant denies this, which constitutes the contention which resulted in this action. A verdict was rendered for plaintiff and defendant filed a motion for a new trial.</p> <p>The case is fully stated in the opinion.</p>

On report. This is an action of assumpsit against the executor of the estate of Henry Clay Wood to recover for services as a nurse and for cash disbursements made. The plaintiff entered into the employment of the defendant’s testator as his nurse in 1911, and continued to serve him in that capacity until his decease.

<p>On motion to dismiss and exceptions. This is an action of assumpsit against the non-resident administrator of a Maine estate. At the return term a motion to dismiss was filed by defendant for want of sufficient service. At the following term the court allowed the return of service to be amended, and then overruled the motion to dismiss, and defendant excepted.</p> <p>Case stated in the opinion.</p>

<p>An injured employee injured ‘while engaged in a hind of work or business not specified in the mitten acceptance filed by the employer with the Industrial Accident Commission, can not recover.</p> <p>Appeal under Workmen’s Compensation Act.</p> <p> Held: </p> <p>1. That under II. S., Chap. 50, Sec. 3, Public Law 1919, Chap. 238, Sec. 3, an employer who is engaged in more than one kind of business must specify the particular business concerning which he desires to accept the provisions of the act, when he files his written acceptance with the Industrial Accident Commission.</p> <p>2. In this case the Jordan Lumber Company limited its acceptance to the saw-mill and box board business which it was carrying on at Milford and Old Town in Penobscot County, and the Insurance carrier specified the same limitation and also expressly excluded accidents to any employee engaged in the work of cutting, hauling, rafting or driving logs.</p> <p>3. The claimant was injured while in defendant’s employ as a woodsman, rolling logs in a yard, in a different and independent business, a logging operation, carried on in the big woods at or near the Katahdin Iron Works, in the County of Piscataquis. He was not within the scope of the acceptance of the employer, nor of the policy of insurance, nor of the Workmen’s Compensation Act, and cannot recover.</p>

<p>On appeal by defendant. This is a bill in equity brought by the City of Lewiston asking for a mandatory injunction and praying that a certain section of a building situated on the easterly side of Lisbon Street in the City of Lewiston between Main and Cedar Streets be condemned as a nuisance and torn down alleging that it was erected in violation of a building ordinance of the City of Lewiston. The defendants in their answer claimed that the repairs or erection were not a substantial violation of the ordinance, and that the ordinance was illegal and void. Upon a hearing before a single Justice it was decreed that a permanent injunction issue, from which decree defendants appealed.</p> <p>Case is stated in the opinion.</p>

On report. This is a bill in equity seeking and praying» for the construction and interpretation of certain paragraphs in the will of David D. Stewart, late of St. Albans, deceased. After a hearing upon • the bill, answers, and proof, questions of law of sufficient importance having arisen, the case was reported to the Law Court for its determination upon so much of the evidence as was legally admissible. Case is fully stated in the opinion.

On motion to set aside the verdict by defendant. This is an action of assumpsit to recover for logs sold and delivered at a specified price. The only question was the quantity of logs for which the defendant was legally bound to pay. The defendant questioned the correctness of the scale of the surveyor who was agreed upon by the parties. The jury rendered a verdict for plaintiff for $39,996.55, and defendant filed a motion to set aside the verdict.

On report. This is an action of trespass brought by the plaintiff against defendant resulting from certain acts of trespass alleged to have been committed by defendant on a strip of land sixteen feet wide and about fifty-four feet long, located at Kennebunk Beach, on Lord’s Point, alleged to be owned by plaintiff.

Appeal and exceptions by defendant. This is a petition in an equitable proceeding under the provisions of Secs. 60 to 71, inclusive, of Chap. 51 of the R. S., commonly known as the minority stockholders act, for the appraisal of the stock of the defendant corporation held by Albion L. Fenderson, deceased, complainant’s testator.

On appeal. This case was taken to the Law Court on an appeal by defendant from a decision of the Industrial Accident Commission granting compensation to claimant.

On appeal by defendant. This case was taken to the Law Court on an appeal by defendant from a decree of the Industrial Accident Commission granting compensation to claimant under the Workmen’s Compensation Act.

On exceptions by defendant. This is an action to recover damages for breach of warranty in the sale of a horse by defendant to plaintiff, which horse was later taken from the plaintiff, on a replevin writ brought by Nathan B. Hopkins.

On appeal by defendants. This case went to the Law Court on an appeal from the decision of the Chairman of the Industrial Accident Commission. On May 18, 1919, John Fennessey, claimant, while in the employ of the Stebbins Lumber Company, received a personal injury by accident arising out of and in the course of his employment, and was decreed compensation for the period of his resulting total incapacity to labor.

On exceptions by plaintiff in error. This is an action by writ of error brought by plaintiff to reverse a judgment rendered against him in the Superior Court in the County of Cumberland at the December term, 1919, alleging that the defendant in the original action, being the plaintiff in error in this action, was defaulted in the original action because he did not appear and-answer in the original action in which said judgment was rendered.

On report. This is a bill in equity brought by Marjorie Gregg of Seattle, Washington State, and Hortense G. Gates of Norway, Maine, daughters of the late William Gregg of Andover, against Georgie J. Bailey and Frances Ann Gregg, as executrix, sisters of the said William Gregg, seeking the interpretation and construction of the will of the said William Gregg. The cause was heard upon bill and answer, and by agreement reported to the Law Court.

On exceptions by defendant. This action was brought under R. S., Chap. 8, Sec. 29, by the plaintiff to recover of the defendant town, damages resulting to the premises of plaintiff by fire, alleging negligence on the part of the selectmen as fire wardens in permitting the forest fire to reach premises of plaintiff. The case was heard in vacation by a Justice without the intervention of a jury, who rendered judgment for plaintiff in the sum of two hundred dollars.

On appeal. This bill in equity was brought under the provisions of Sec. 1, Chap. 66, of the R. S.,.by the plaintiff as trustee in bankruptcy of the estate of the defendant, George W. Johnson, to recover, for the benefit of such creditors as might be entitled to share therein, certain real estate conveyed to the wife of said George W. Johnson, codefendant in this action, by her father, alleging that payment for said real estate was made from the property of her husband, the…

<p>On exceptions by defendant. This is an action for criminal conversation. The plaintiff in proving marriage was allowed to introduce a copy of the record of the marriage of plaintiff to the woman who it was alleged was guilty of the charge, in Dover, New Hampshire, certified by the clerk of that city, to be correct to the best of his knowledge and belief, and defendant excepted.</p> <p>Case is stated in the opinion.</p>

On exceptions by plaintiff. This is a writ of error before the Law Court under R. S., Chap. 82, Sec. 47, based upon the following record facts. At the October term, 1920, of the Superior Court for Androscoggin County, the plaintiff in error pleaded guilty to a complaint for illegal possession of intoxicating liquors and the court ordered the case placed on the special docket without imposing sentence.

On report. A bill in equity seeking the construction of item 8 in the will of Olivo P. Ross, who died March 20, 1896, leaving as her only heirs at law, Mark Prime, a nephew, and Hattie Nowell, a grand-niece, who, never having married, died a few months subsequent to the death of the said Olive P. Ross. The nephew, Mark Prime, died July 6, 1917, testate, and the plaintiff is the executrix.

On appeal by defendant. A bill in equity praying for the cancellation of a written contract entered into by plaintiff and defendant on the ground of fraud and misrepresentation, and a further ground that it was unconscionable. The cause was heard upon bill, answer, replication, and proof before a single Justice who sustained the bill, and defendant appealed from such finding. Case is stated in the opinion.

On appeal by respondent. At the September term, 1920, of the Supreme Judicial Court sitting in the County of Piscataquis, the respondent was jointly indicated with one William Pomeroy, for murder, and they were tried together and both convicted. The respondent filed a motion for a new trial which was denied by the presiding Justice, from which denial an appeal was taken. The case is fully stated in the opinion.

<p> A bequest to A in trust of certain personal property, to pay the net income thereof to B during his natural life, and at his death to his wife if she survives, for their support and maintenance, with discretionary power to sell a part of said personal property and apply the proceeds for said purposes if necessary, invests the trustee with the right to use his own discretion and judgment in ■ determining whether or not the conditions specified in the will exist or not in fact, and as to how much relief may properly be given. So long as he acts within his power, honestly and in good faith, not arbitrarily or capriciously, his determination is conclusive and his judgment will not be reviewed. </p> <p>A testator bequeathed to a trustee certain shares of the capital stock of three corporations, in trust to pay the net annual income thereof to his brother, W, during his natural life; and further provided as follows: “If, during the life of said W the income from said trust estate is insufficient for his comfortable support and maintenance, the trustee may in his discretion sell the stock of the A company, or so much thereof as may be necessary and of the proceeds thereof pay such amounts to the said W from time to time as may in his judgment be suitable and proper. I leave the whole matter to the sound judgment and discretion of the trustee. If the aforesaid funds prove insufficient for the comfortable support of the said W, then in that event, if it is absolutely necessary for his support and maintenance, I authorize and direct the trustee to dispose of so much of the stock of B company as in his judgment may be suitable and proper for the aforesaid purpose.” If W’s wife survived him, the net annual income was to be paid to her during her natural life. The trust was to terminate upon the death of W, if he survived his wife; if the wife survived, then upon her death. ■</p> <p> Held: </p> <p>That it was the intention of the testator to interpose between the principal of the fund and W, and W’s creditors, the discretion of a trustee in whom he had implicit confidence.</p> <p>That as to the stock of A company the discretionary power was conferred in the broadest terms; as to the stock of B company the power was limited to absolute necessity; as to the stock of C company no authority to sell was given, and such sale, if advisable, must rest upon authority to be granted by a court having jurisdiction of testamentary trusts, upon special application therefor.</p> <p>That such a trust is valid and does not confer an absolute estate in the principal of the fund to the beneficiary.</p>

<p>On appeal. Joseph Dulac while in the employ of Proctor & Bowie Company as a foreman in a woodworking mill, at Winslow, Maine, received an injury by producing an epigastric hernia by heavy lifting. Prior to and at the time of this injury he had an inguinal hernia. The injury occurred on December 1G, 1919, and on February 25, 1920, he was operated upon for both the epigastric hernia, which was caused by the accident, and the inguinal hernia, which was not caused by the accident.</p> <p>On February 27, 1920, he died from the effect of the operation. The petitioner, his widow, claims compensation for his death. The Chairman of the Industrial Accident Commission granted compensation at the rate of fifteen dollars per week for a period of three hundred weeks or until such time as said compensation so paid shall amount to $3,500.00, and a decree in conformity therewith was entered, from which decree an appeal was taken.</p> <p>Case stated in the opinion.</p>

<p> Assumpsit on account annexed supported by affidavit, B. S., Chap. 87, See. 127, entitles plaintiff to judgment, unless rebutted. Delivery or performance to be shown by best evidence obtainable. Shopkeeper’s books of account-must be identified by person making entries, if living, not insane, and within jurisdiction of court. Books and suppletory oath not admissible until defendant’s liability established, if delivery was to, or services rendered for, third parties. If person making entries is the only person with knowledge of delivery, or performance, and is dead, insane, out of jurisdiction, or unable to testify, proof of handwriting, that books kept in regular course of business, such entries made in line of his duty or practice, and that they were ■made at or near time of delivery, or performance, may be sufficient proof of delivery or performance. In actions between living parties, any person having personal knowledge is a competent witness as to delivery or performance. The testimony of any party, in an action between a living party and the representative of a deceased person who made the entries, except in case of bulky articles, and services requiring assistance, if he has knowledge of the fact, whether the living party or not, is admissible on the question of delivery or performance, but if assistance was required in delivery, or performance, such assistant, if living, sane, and within jurisdiction of the court and able to testify, should be called. Statute of limitation can not be invoked unless there has been a period of at least six years, during which there are no items, either debit or credit. </p> <p>The plaintiff in an action of assumpsit on account annexed supported by the affidavit provided under Sec. 127, Chap. 87, of the 11. S., is entitled to judgment unless rebutted by competent and sufficient evidence.</p> <p>Shopkeeper’s books of account are not admissible unless identified by the clerk or servant who made the entires, when it is not shown that such clerk or servant is dead, insane, or absent from the jurisdiction of the court. Failure to carry out the amount of any item does not effect the competency of the entries if they are otherwise unobjectionable.</p> <p>Where goods are delivered to, or services rendered for third parties, and there is a question about the defendant being chargeable, the book and suppletory oath are not admissible unless proof of the defendant’s liability is furnished aliunde.</p> <p>(a) Except as qualified by rule (c), a book of original entries supported by a suppletory oath, but without an evidential statement as to delivery of the goods or performance of the services, is not sufficient evidence of delivery or performance.</p> <p>(b) The delivery of goods sold or performance of services rendered must be shown by the best evidence obtainable, and if the person making the entries has no personal knowledge of delivery or performance it must be proved by other competent evidence.</p> <p>(c) Where the person malting the entries is the only person having knowledge of the delivery of the goods or the performance of the services, and he is dead, insane, or out of the jurisdiction of the court, or unable to attend court to give his testimony or give his deposition, upon proof of his handwriting and that the books were kept in the regular course of business, and that it was his duty or practice to make such entries at or near the time of delivery of goods or performance of services, the books themselves, if they otherwise appear to be regularly and fairly kept may be sufficient proof of delivery of goods or services performed.</p> <p>(d) In actions between living parties, any person having personal knowledge of the delivery of the goods or the performance -of the services, whether he be a party, clerk, servant or agent, and even though the goods or the services be of such a nature as to require aid in their delivery or performance, is a competent witness upon the question of delivery or performance.</p> <p>(e) In actions between a living party and the representative of a deceased person, except in the case of bulky articles and services of such a nature as to require assistance m delivery or performance, the person making the entries, whether he be the living party or a clerk, servant or agent, if he has knowledge of the fact, may make oath to the delivery or the performance of the services.</p> <p>(f) In actions between a living party and a representative of a deceased person, if the entries were made by the living party and the goods were of such a bulky nature or the services rendered were of such a character as to make it impossible that delivery was made without aid or the services performed without assistance, then the person rendering such aid or such assistance, if living, sane, within the jurisdiction of the court, and able to attend and give testimony should bo called under the best evidence rule.</p> <p>8. Under the provisions of R. S., Chap. 86, Sec. 90, the statute of limitations does not operate until there has been a period of at least six years during which there are no items, either debit or credit, and until such six year period expires the entire account is alive and suable.</p>

<p>On motion by defendant. An action of assumpsit on account annexed to recover commission as real estate brokers, plaintiffs alleging that they entered into an arrangement with defendant to sell for him his house at a stipulated price, and that it was further stipulated that their commission was to be $200. The question involved was as to whether plaintiffs produced a customer willing and prepared to purchase and pay for the property at the price and on terms given by defendant. A verdict of $208 was returned by the jury, and defendant filed a general motion for a new trial.</p> <p>Case is stated in the opinion.</p>

<p> Exceptions to the direction or omission of a presiding Justice must be noted before the jury retires. Exceptions lie only to some ruling by the 'presiding Justice. Remarks by counsel in addressing the jury are not themselves subject of exceptions, but if prejudicial should be taken advantage of by motion for new trial. Evidence of the effect of an alleged private nuisance on adjoining property as bearing on reasonable use, is admissible. Exceptions lie to the admission of a conclusion based on hearsay, if bearing on a material fact, being as objectionable as hearsay itself. </p> <p>In an action for maintaining a private nuisance caused by noise and dust from a surfacing machine operated by a compressor in finishing granite bases for monuments, exceptions were presented by the plaintiff; (1) to the admission of evidence as to the effect or absence of any effect from noise and dust upon adjoining property and occupants other than that of plaintiff; (2) to the admission of a statement by the defendant in reply to a question whether he had investigated to determine whether there was any device on the market for lessening the noise and dust from such machines, that he had learned there was nothing; (3) to certain remarks of counsel for the defendant in his argument before the jury; (4) to certain instructions to the jury in response to an inquiry by one of the jurymen.</p> <p>Exceptions to the direction or omission of a presiding Justice must bo noted before the jury retires. A bill of exceptions allowing such exceptions as were seasonably taken does not properly bring before this court as a court of law an exception to a direction by the presiding Justice noted after the jury had retired.</p> <p>Exceptions lie only to some ruling by the presiding Justice. Alleged improper remarles by counsel in addressing the jury are not themselves the subject of exceptions. Any prejudice resulting therefrom must be taken advantage of by a motion for a new trial.</p> <p>The admission of evidence of the effect of noise and dust on adjoining property ■ in an action for maintaining a private nuisance as bearing on the reasonableness of the use of the property alleged to be a nuisance is not error.</p> <p>The admission of a conclusion based on hearsay, however, is just as objectionable as hearsay itself, and if bearing on a material fact cannot be excused as unprejudicial.</p>

On report. An action on. breach of contract. January 3, 1920, the defendant residing at Grand Isle, Maine, entered into an agreement to deliver to the plaintiff at Harlem River, New York, a carload of potatoes in bulk at $3.65 per cwt., and on January 6, 1920, the defendant shipped a car of potatoes consigned to Harlem River, New York, in pursuance of such agreement.

<p> A n attaching officer may attach an indivisible article of personal property, though of much greater value than the amount he is directed to attach, if debtor has no other property, or no other property is shown to him by debtor, or if insufficient property to satisfy his precept is shown to him by debtor, provided he acts in good faith and not with an intent to harass or oppress. </p> <p>Where no other property belonging to the debtor exists or is shown to the attaching officer, he may attach an indivisible article of personal property though of much greater value than the amount he is directed to attach under his precept.</p> <p>Where insufficient property to satisfy his precept is shown to the attaching officer by the debtor and the attaching officer acts in good faith with no intent to harass or oppress, he may attach an indivisible article of personal property though of much greater value than the amount he was directed to attach under his precept. ■ ' t</p> <p>The failure of the attaching officer to search the record for real estate in the name of the debtor, or to inquire for other property to satisfy his precept or to take property of doubtful value, and not shown to be of sufficient value to satisfy his precept, is not sufficient evidence of bad faith, especially when he was expressly ordered to attach a specific article of personal property though of greater value than required by his precept, to warrant a finding in the absence of other evidence, that he acted unreasonably or with an intent to harass and oppress.</p>

On motion by defendant. An action to recover damages caused by alleged negligence of defendant as bailee. A gasoline engine used in a motor boat of plaintiff was taken to the shop of defendant at Boothbay Harbor for repairs, defendant being a machinist doing general machine work including manufacturing and repairing gasoline engines. Plaintiff claims that the engine while in the possession of the defendant was injured by cracking the two middle cylinders and bases.

<p>On motion for new trial by defendant. This is an action on the case for alleged negligence on the part of the defendant, under Chap. 87, Sec. 48 of the R. S., and the jury returned a verdict for plaintiff for $5000 in the Superior Court- in Penobscot County.</p> <p>Case is fully stated in the opinion.</p>

On exceptions by libellant. This is an action of libel for divorce. The libel was inserted in a trustee writ which was served on the alleged trustees and subsequently service of the writ and libel was made upon the libellee.

On exceptions by defendant. This is an action' of assumpsit brought by plaintiffs against defendant in the Supreme Judicial Court within and for the County of Kennebec and State of Maine, to recover from defendant $250,000, the plaintiffs being residents of the State of New York and the defendant being a resident of Pennsylvania.

On motion for new trial by defendant. This is an action of assumpsit on account annexed to recover for a bonus of $25 a month for seven months, and for salary amounting to $607.50, and cash paid out for expenses $69.28, mailing a total of $851.78. The plea was the general issue, and a verdict was returned for plaintiff for $821.56.

On exceptions by petitioner. This is a petition praying for annulment of marriage on the ground that defendant was at the time of the marriage pregnant with child by another man, and did not disclose the facts to her husband, but told him that she was pregnant by him as they had had sexual intercourse before their marriage. The cause was heard by the presiding Justice without the intervention of a jury who denied the petition, and plaintiff took exceptions.

<p> An attempt of a husband to have his wife committed to an insane asylum if made in good faith and in a sincere belief that her mental condition is such as to be for her own good and that of her .family that she thus be confined and treated, does not constitute cruel and abusive treatment as a cause of divorce. Otherwise, however, if such attempt is wilfully made, and such conduct on his part seriously affects her health, for that would constitute cruel and abusive treatment within the meaning of the statute, and. she would be entitled, to a decree of divorce as a matter of legal right, assuming the facts disclosed to be true. </p> <p>1. If the attempt oil the part of a husband to have his wife committed to an insane asylum although unsuccessful, is made in good faith and in the sincere belief that she is in such an unsettled mental condition that her own good and that of her family require confinement and treatment in such an institution, such an act lacks the essential element of cruel and abusive treatment as a cause of divorce.</p> <p>2. If on the other hand the husband without just cause wilfully attempts to have his wife committed to such an institution, such conduct on his part seriously affecting her health, would constitute cruel and abusive treatment within the meaning of the statute. The motive which prompts the proceedings is the controlling factor.</p> <p>3. Assuming the facts disclosed in the evidence for the libellant in this case to be true, she was entitled to a decree of divorce as a matter of legal right.</p>

<p> Workmen’s Compensation Act. Chap. 50, Sec. Sí, of the R. S., provides that the county in which the injury occurs alone has jurisdiction of the cause, and all papers should he filed in such county. An appeal from a decree of a Justice of the Supreme Judicial Court confirming the finding of the Commission, if the papers in the case were filed in some county other than the one where the injury occurred, is not properly perfected and the Law Court is therefore without jurisdiction. </p> <p>Claim under the Workmen’s Compensation Act. The accident occurred in the County of Kennebec. The evidence was taken out before the Industrial Accident Commission in the County of Androscoggin as a matter' of convenience. Copies of the decision with all other papers in connection therewith were filed by the defendant with the Clerk of Courts for Androscoggin County. From a decree of a Justice of the Supreme Judicial Court confirming the finding of the commission an appeal was taken by the defendant to the Law Court. Held:</p> <p>1. ■ That under R. S., Chap. 50, Sec. 34, Kennebec County, “the County in which the injury occurred” alone had jurisdiction of the cause, and the papers should have been filed in that county instead of in Androscoggin County.</p> <p>2. That the appeal was not properly perfected and the Law Court is therefore without jurisdiction.</p>

On exceptions and motions by defendant. Two actions brought by wife and husband against defendant to recover damages for alleged negligence of defendant in operating his automobile, or permitting it to be operated in his presence and under his control by an inexperienced and unlicensed driver, resulting in an accident seriously injuring the wife, one of the plaintiffs.

<p>On exceptions by petitioner. This Is a petition to review a judgment for divorce granted at an ex parte hearing on the ground of desertion, though service was made on libellee who did not appear at the hearing. At a hearing on the petition the Justice presiding dismissed the petition and ruled that the petitioner’s right of action had been barred by the Statute of Limitation, R. S., Chap. 65, Sec. 11, to which ruling petitioner excepted.</p> <p>Case is stated in the opinion.</p>

<p> The finding of the jury not so manifestly wrong as to warrant the verdict being disturbed by the court. The defendant’s servant in operating the electric car was charged with the duty the defendant owed to travelers lawfully upon the highway to keep a lookout and exercise all reasonable care to avoid injuring them, and must have either seen the plaintiff in his position of peril and misjudged his distance from the track, or failed to exercise that due care which would have caused him to discover him in time to have avoided the accident. In the application of the rule of the “last clear chance” it is not necessary that defendant has actual knowledge of the plaintiff’s peril. If he owed the plaintiff a duty to avoid injuring him, and in the performance of that duty should have discovered the plaintiff’s peril in time to have avoided the accident by stopping the car, even though plaintiff was clearly guilty of contributory negligence but could not extricate himself from his perilous position, he is liable. Alleged newly discovered evidence purely cumulative. Damages clearly excessive and plaintiff to remit all over seventy-five hundred dollars, or motion sustained. </p> <p>Upon a motion by the defendant for a new trial on the usual grounds and also upon newly discovered evidence,</p> <p> Held: </p> <p>That as to the manner in which the accident occurred, the jury must have found in favor of the plaintiff’s contention and in this respect the jury’s finding is not so manifestly wrong as to warrant the verdict being disturbed by this court;</p> <p>That the defendant company owed a duty to travelers lawfully upon the highway to keep a lookout and exercise all reasonable care to avoid injuring them;</p> <p>That in view of these conclusions, the defendant’s servant operating the electric car must either have seen the plaintiff in his position of peril and misjudged his distance from the track, or in the exercise of due care should have discovered him in time to have avoided the accident;</p> <p>That in applying the rule of the “last clear chance,” it is not necessary for the defendant to have actual knowledge of the plaintiff’s peril, if he owed the plaintiff a duty of keeping a lookout to avoid injuring him, and in the performance of that duty should have discovered the plaintiff’s peril in time to have avoided the accident;</p> <p>That while the plaintiff was clearly guilty of contributory negligence in stopping his truck so near the tracks of the defendant and a duty also rested upon him to keep a lookout for the car he knew was behind him, the jury may have found, if the motorman could have stopped the electric car, as he testified he did within a distance of one foot, or even a greater distance, after discovering the plaintiff's danger, that after the plaintiff could no longer extricate himself from his perilous position, the motorman could still have stopped the car in time to avoid the accident;</p> <p>That it must be presumed that proper instructions were given the jury as to the rights of the parties under these conditions, and while this court might have reached a different conclusion upon the evidence, it is unable to say, as upon the other branch of the ease that a finding of the jury that the defendant had the “last clear chance” of avoiding the accident was clearly wrong;</p> <p>That the alleged newly discovered evidence, upon which the second motion of the defendant is based, is purely cumulative and it cannot be said that if presented to another jury it would arrive at a different verdict;</p> <p>That upon the question of damages, the court, after carefully considering the evidence, is of the opinion that they are clearly excessive and unless the plaintiff remit all over seventy-five hundred dollars, the motion of the defendant must be sustained.</p>

<p> The negligence complained of was established by the jury and the court is not convinced that their conclusion was manifestly wrong. The storm,, though a severe one, was not so overpowering and unusual that the cause of the accident should be regarded as an act of God or vis major. Damages grossly excessive and to be reduced to $4,500 by a remittitur. </p> <p>In an action of tort for injuries sustained by the plaintiff by being struck by a galvanized iron blower pipe which, in turn, was ,hit in the fall of a wooden ventilator shaft during a severe storm, it is</p> <p> Held: </p> <p>1. The negligence complained of in the alleged faulty construction, insecure fastening, inadequate support and improper maintenance and repair of the ventilator shaft, was established by the jury and this court is not convinced that their conclusion was manifestly wrong.</p> <p>2. The storm, though a severe one, was not so extreme'that it might not have been anticipated as likely to oe.cur. Nor was it so overpowering and unusual that the cause of the accident should be regarded as an act of God or vis major.</p> <p>3. The damages awarded, $7,000, wore grossly excessive for the injuries sustained.</p>

<p>On motion for a new trial by plaintiff. An action of assumpsit to recover a balance of $9,905.74 for potato fertilizer sold and delivered to defendants. Defendants filed a plea of general issue and a brief statement alleging that the fertilizer was adulterated and misbranded and was sold in violation of Chap. 36 of the R. S. The jury returned a verdict for the defendants, and the plaintiff filed a general motion to set aside the verdict, and also a special motion to grant a new trial because of the disqualification of a member of the jury.</p> <p>The case is stated fully in the opinion.</p>

<p>On report. A bill in equity praying for the construction of the will of Peter S. J. Talbot, who died January 5, 1908, leaving neither widow nor children, but twenty-eight relatives. A hearing was had upon the bill and answers, and by agreement of the parties, the Justice sitting ordered the cause reported to the Law Court, upon bill and answers, for final determination.</p> <p>The case is fully stated in the opinion.</p>

<p> A will may be void in part and valid in part. A valid will stands unless superseded by a later will, or changed by codicil or writing, or revoked by burning, cancellation, tearing or destruction. An alleged will, the existence of which is due to undue and improper influence, hence not a valid mil, carries such incurable infirmity during its existence, and cannot be offered in evidence as a revocatory document. </p> <p>A will may be contested in whole or in part, and it may be void in part and otherwise valid.</p> <p>In proceedings for the probate of a will, a writing purporting to be a later will, but then already totally disallowed, ■ cannot properly be offered in evidence as a revocatory document. It matters not that a beneficiary under the earlier instrument, in seeking for himself a greater bequest than-it contains, procured the making of the later one by the exerting of an undue and improper influence.</p>

<p> Trespass under B. S., Chap. 100, Sec. 9, done wilfully and knowingly without license of plaintiff. Allegation-that defendant wilfully and knowingly broke out “the glass in the windows in the barn on said premises” is sufficient to sustain an award of either single or double damages, as the evidence m,ay warrant. The evidence upon which a verdict was based must be before the Law Court before it can consider a motion for new trial on ground that damages were excessive. </p> <p>Action, of trespass under R. S., Chap. 100, Sec. 9, with allegation that the acts of defendant were done wilfully and knowingly, without license of the plaintiff; the declaration has been before the court upon general demurrer, and the opinion then delivered (119 Maine 79, 109 Atl., 376) holds (1) that ownership is an essential allegation; (2) that ownership of the land described in the declaration is sufficiently alleged; (3) that ownership in the plaintiff, of the horse-stalls, cribs, cow-chain holders, and partition walls is not sufficiently alleged; (4) that a cause of action under said statute, for wilfully and knowingly breaking out “the glass in the windows in the barn on said premises,” is sufficiently set forth.</p> <p>The defendant now contends that the declaration is insufficient to sustain a verdict for double damages; the presiding Justice ruled otherwise, and allowed exceptions. The exceptions must be overruled. The declaration is sufficient to sustain an award of either single or double damages, as the evidence may warrant. Bwrrill Nat. Bank v. Edminister, 119 Maine, 367.</p> <p>The defendant argues that ownership is not alleged, but that question is not reserved by the exceptions. Moreover, we have already held that a cause of action is set forth for wilfully and knowingly breaking out the glass in the windows in the barn on the premises; we must assume that the jury was properly instructed as to the horse-stalls, cribs, cow-chain holders and partitions.</p> <p>The defendant also argues that the damages are excessive; but the evidence upon which the verdict was based, is not before us.</p>

On motion for new trial by plaintiff. An action of assumpsit to recover the sum of three hundred fifty dollars and seventy cents, which plaintiff claims the defendant has in his possession, having obtained it by false and fraudulent representations, which in equity and good conscience belongs to him. Verdict was for defendant which the plaintiff moves to set aside for usual reasons. Case stated in the opinion.

<p> In sales of personal property, excepting where vendee already has possession, or the property is in the tortious possession of a third person, a delivery, either actual, constructive, or symbolical, is very essential, as against third parties. Actual delivery should be made without laches when it can be reasonably and consistently. Property, title to which has actually passed from vendor to vendee, may, however, be left by vendee in possession of vendor far a specific purpose. Delivery is a question of fact and no hard and fast rule determining it can be laid down. Acts and conduct of the parties subsequent to the alleged sale constitute pertinent 'evidence on the question of good faith, the probative force of which is measured by their consistency with such alleged sale. </p> <p>When the same goods are sold to two persons by conveyances equally valid, he who first lawfully acquires the possession will hold them against the other. An attaching creditor of the seller is to be considered'as having purchased for a valuable consideration. 'Therefore, in the absence of a delivery, actual, constructive, or symbolical, an attaching creditor would not be precluded by an antecedent chattel sale of which he had not knowledge in advance of his own act.</p> <p>In this case the defendant, a deputy of the sheriff of Franklin County, attached certain personal property, on a writ which he had for service. For alleged conversion of the property, growing out of its attachment and its taking, this action of trover was begun by one who claims an earlier sufficient purchase. Following an adverse verdict, defendant brings the action forward on exceptions as well as on motions for a new trial, one of the motions' being in usual form and the other on the ground of newly discovered evidence. The testimony submitted with the latter motion is so decisively interwoven with the fiber of the case as to make it appear probable that the verdict would be different were the cause submitted anew with the additional evidence.</p>

<p>On report. An action of debt brought in the name of the Judge of Probate of the County of Knox against Tyler M. Coombs, administrator of the estate of Edward B. Carleton, as principal, and Cora C. Cushing and Nettie P. Levensaler, as sureties in the trustee bond, given by said Edward D. Carleton, June 18, 1912, as trustee under the provisions of the will of J. O. Cushing, late of Thomaston in County of Knox, deceased. The case was reported to the Law Court, by agreement of the parties, upon an agreed statement of facts, for such decision as the law and the facts require. Plaintiff non-suit.</p> <p>Case stated in the opinion.</p>

On appeal by defendants. An appeal from a decree by a Justice of the Supreme Judicial Court in conformity with the finding of the Industrial Accident Commission that M. F. Donovan & Sons, or their insurance carrier, pay to plaintiff compensation in the sum of $15 per week from February 4, 1921, to February 24, 1921. The plaintiff was injured while in the employment of the defendant in unloading railroad ties from a vessel tied to one of the wharves in Portland harbor.

On exceptions by plaintiff. An action of assumpsit on account annexed to recover $523.95 less a cash credit item of $100.

<p> Where a lessee is obliged to pay taxes assessed on the property embraced, in the lease, such payment being a condition of the lease, and also pay taxes assessed on property not embraced in the lease as the assessment was made on both the leased and unleased property as an entirety, the assessment being made against the lessor, the lessee is entitled on final settlement to recover of the lessor his proportional part of the taxes. </p> <p>The plaintiff, lessor, brought suit against the defendant, lessee, to recover the value of stock sold and not replaced and of supplies used and not replaced, as provided in the agreement of letting, and also for rent. The defendant filed an account in set-off to recover the amount of taxes paid by the defendant on the portion of the real estate reserved by the lessor. The Jury found a verdict of $1.00 in favor of the defendant. On plaintiff’s general motion for a new trial it is</p> <p> Held: </p> <p>1. That as the entire property, both the leased and the unleased portions, was taxed to the plaintiff as an entirety and as under the lease the defendant was obliged to pay the taxes assessed upon the leased portion, and as the tax created a lien upon the whole, the defendant paying the entire tax was entitled on final settlement to recover of the plaintiff his proportional part thereof.</p> <p>2. That in this view of the law and upon the whole evidence, the verdict should not be disturbed as being manifestly wrong.</p>

<p> A Railroad Company is not bound by an agreement made by a local freight agent, to parchase at face value, goods in the hands of consignees, damaged in transit. </p> <p>A local freight agent of a Railroad Company has no implied authority to bind the company in agreeing to purchase at face value goods in the hands of consignees that had reached their destination in a damaged condition.</p> <p>The Railroad Company having disposed of the damaged goods and received therefor the sum of $356.59, the presiding Justice properly ordered a verdict for that amount.</p>

On exceptions by plaintiff. An action for alienation of the affections of her husband brought by plaintiff against her father-in-law. Motion by defendant to dismiss was sustained by the presiding Justice and plaintiff took exceptions. Case stated in the opinion.

On appeal by defendants. Three bills in equity brought to obtain relief from conveyances and assignments of property and property rights made by two elderly, maiden ladies, being sisters, to the defendant, Hollis M. Shaw, as being unfair, unjust, and inequitable, alleging that an imposition and unfair advantage was practiced by defendant upon said two sisters, and that a fiduciary relation existed between defendant and said two sisters.

On exceptions by defendants. ., An .action against the administrators of the estate of the late Fred E. Richards, to recover on notes given to plaintiff by one Ludwell L. Howison bearing the endorsement of intestate. A claim in writing was presented to the administrators by plaintiff under R. S., Chap. 92, Sec. 14, which the defendants contend did not conform to the requirements of .the statute.

On general motion for a new trial and exceptions by defendants. An action of assumpsit to recover damages which plaintiff alleges he suffered by way of loss of profits resulting from an alleged breach of an oral contract made subsequently to the execution of a written contract for sawing lumber. Defendants plead the general issue, and a brief statement setting up a written contract.

On an agreed statement. A proceeding for the condemnation of an automobile under Chapter 294, Public Laws, 1917.

On motion for a new trial. ' This is an action for breach of promise of marriage. The defendant pleaded the general issue, and under a brief statement alleged “that if any contract existed between the parties to this action it was rescinded by mutual agreement.” A verdict for the plaintiff was returned by the jury of $6,000, whereupon the defendant filed a general motion for a new trial. The case is fully stated in the opinion.

On report. This is an action brought by John L. Williams against Charles E. Dunn, sheriff of Aroostook County, for the illegal taking from the plaintiff, by George W. Graves, a deputy of the defendant, of one thousand two hundred sixty-three barrels of potatoes of the agreed value of six thousand three hundred and fifteen dollars, on a replevin writ, without taking from the plaintiff in replevin the bond required by statute.

<p> A presiding Justice should direct a verdict when upon the evidence a different verdict could not be sustained. </p> <p>From.the testimony in this case the conclusion is inevitable that the parties intended to settle and did settle every claim existing between them under the agreement in writing by them signed under date of October 4, 1917, and that the jury would not have been warranted by the evidence in finding a verdict contrary to the one ordered.</p>

On report on an agreed statement of facts. An action of debt to recover an unpaid balance of - taxes as originally assessed. The assessors in their valuation included property exempted under the statute and after discovery of their error, corrected it as they had a right to do under Chap. 4, Sec. 10, R. S., by reducing the amount of tax as assessed.

On appeal. A bill in equity seeking the construction of the will of Sarah J. Penney, who died in New Gloucester, Maine, on February 7, 1921. The will was allowed in the Probate Court and Charles L. Dow was appointed executor and was also appointed guardian ad litem of four minor children of Gertrude G. Webb, the complainant in the bill in equity.

<p> There must be a fair preponderance of evidence to sustain the claim of title to real estate by adverse possession. The acts of cutting timber and wood in small quantities and occasional cutting of firewood and marsh grass are not sufficient to sustain a claim of title by adverse possession against a record title. </p> <p>At a former trial of the case (see 120 Maine, 120) the plaintiff claimed both by adverse possession and record title. In the instant case the presiding .Justice withdrew from the jury the question as to record title, and submitted the case upon the one issue of adverse possession.</p> <p>In the former case upon the question of adverse possession it was held that “a careful examination of the testimony does not disclose a fair preponderance of evidence in favor of the plaintiff’s claim by adverse possession, although there is evidence of certain acts upon which the defendant might claim trespass if he maintains his ownership of the premises in dispute.” It was held, too, that the defendant had the better title. A second trial has not resulted in the production of evidence to meet the deficiency so pronounced in that case.</p>

<p> The inconsistencies in the testimony of a plaintiff and his witnesses, and in the acts of plaintiff prior to the date of the alleged accrued cause of action, which produce a conviction that the jury must have been actuated by sympathy, bias or prejudice, warrants the granting of a new trial. </p> <p>Action on the case to recover damages for personal injuries claimed to have been received by the plaintiff because of the falling of snow and ice from the defendant’s building. The jury returned a verdict for the plaintiff, and the defendant filed a general motion for a new trial.</p> <p>The testimony shows that the plaintiff had suffered from neurasthenia for several years before the date claimed in her writ as the commencement of her suffering. It appears, too, that she had previously brought suit in another county against another defendant for the same claim, reference to which is unnecessary further than to say that the inconsistencies appearing in the instant case are accentuated by the recital of the testimony in the former case, and leave no ground for hesitation in holding that the jury must have been actuated by sympathy, bias or prejudice, and that the verdict is manifestly wrong.</p>

On report. Two actions tried together, the first being a real action to determine title to certain real estate situate in the town of York in the County of York, and'the second action is to recover damages for trespass committed by defendant. After the testimony was completed and the evidence all in, by agreement of the parties the case was reported to the Law Court for its determination upon so much of the evidence as was admissible.

<p> A deed absolute in form, although from a third party, may be shown to be an equitable mortgage between the parties to a suit, but the proof, it is true, must be clear and convincing. </p> <p>A person acting as a friend and agent for another, and from time to time advances to such person money to assist him in carrying out any purpose he may have in mind, and takes from such person a deed absolute in form of real estate, or purchases and forecloses a mortgage on such real estate, if such transactions between such parties are entered into under an-understanding that the party holding the deed and the foreclosed mortgage is to transfer or turn back to the other party property, title to which is in his name, upon payment to him of all that is due him with interest, has in said property the interest only of a mortgagee under an equitable mortgage. Their relations are those of debtor and creditor. The criterion always is whether the transaction was iútended to secure one party for claims against the other. Where a deed absolute in form is held as security only, the fact may be proved by parol. So long as the instrument is one of security, the borrower has a right to redeem upon payment of the loan.</p>