Volume 121 — Maine Reports

On exceptions. An action on the case to recover damages for personal injuries sustained by plaintiff by reason of an alleged defect in the highway of defendant city. At the close of plaintiff’s case, on motion of defendant, the presiding Justice ordered a nonsuit, and plaintiff excepted. Case stated in the opinion.

On motion. An action to recover damages for personal injuries sustained by plaintiff, a passenger in an automobile driven by his son-in-law, resulting from a collision between such automobile, and that of the defendant, which occurred on Washington Street ii; the city of Portland, on June 7, 1920, and also to recover damages and expenses resulting from injury to plaintiff’s wife, alleging negligence on the part of defendant in driving and controlling his automobile.

On motion for new trial and exceptions by defendant. An action to recover damages for the loss of a horse and injury to a farm wagon 'resulting from a collision with a train of defendant at a grade crossing, alleging negligence of defendant. Plea, the general issue. At the conclusion of the evidence counsel for defendant moved that the presiding Justice direct the jury to return a verdict for the defendant, which was denied, and defendant excepted.

On report. A writ of entry to recover possession of certain real estate owned by the plaintiffs, which was in the possession of defendant. At the conclusion of the evidence, and by agreement of the parties, the case was reported to the Law Court for final determination, upon so much of the agreed statement of facts and evidence as was material and legally admissible. The case is fully stated in the opinion.

On appeal. The applicant sustained by accident personal injuries while in the employment of defendant, the American Realty Company, as a teamster. Defendant contends that applicant is not entitled to compensation for the reason that the kind of work in which Ire was engaged at the time of the accident is not embraced in its written acceptance, and that it is entitled to the benefits of common law defenses.

On exceptions. An action of assumpsit on account annexed to recover the sum of one hundred and eighteen dollars for storage of hay in a barn in the possession of the plaintiff, from November 1, 1919 to April 26, 1920. A verdict for plaintiff for $80.83 was returned by the jury.

On exceptions. This is an action of forcible entry and detainer. It was brought iii the Lewiston Municipal Court and went to the Superior Court on appeal by plaintiff. It was tried in the Superior Court without a jury and a decision favorable to the defendant resulted, from which decision plaintiff took exceptions. Case is stated in the opinion.

This is an action in assumpsit for money had and received. The plaintiff owned a house in Lewiston and listed it with defendants, real estate brokers, at a stated purchase price and also stated commission.

On appeal. This is a petition by claimant under the Workmen’s Compensation Act praying for a rehearing on the ground of newly discovered evidence, after a full hearing had been held on claimant’s original application for compensation and a final decree entered denying compensation, and the time within which'an appeal may be taken as fixed by statute had expired without any appeal being taken.

On report on agreed statement. This is an action of trespass brought for the purpose of determining the title to a lot of land in Machias of about four acres. The inhabitants of the town of Machias for their title relied upon a deed, dated May 1, 1841, describing the lot and concluding with the following sentence: “The same being intended for a burying ground and to be used for no other purpose.” Plaintiff claimed title by adverse possession, and by abandonment by defendants.

On appeal. A bill of interpleader brought by plaintiff bank against the administrators of the estate' of Margaret F. Fell, deceased intestate, who claimed the fund in dispute as the property of the estate of intestate, and one James P. Jordan, who claimed the fund as a gift from intestate either as a gift inter vivos or as a donatio causa mortis. The funds in dispute at the time of the death of intestate were on deposit in plaintiff bank.

On report. A bill in equity to determine tbe construction of a paragraph in the will of Helen A. Anderson of Thomaston. Upon an agreed statement of facts, and by agreement of the parties, the case was reported to the Law Court for the determination of the rights of the parties. The case is stated fully in the opinion.

On motion for new trial. An action by plaintiff to recover from tbe administrators of the estate of Fred E. Richards upon a note of $20,000 dated December 18, 1916, on sixty days, signed by Ludwell L. Howison, as the principal promissor, and signed by Fred E. Richards, as an accommodation promissor.

On appeal. A bill in equity brought by plaintiffs as taxable inhabitants of the town of Sangerville, against the selectmen, treasurer, and the inhabitants of said town, seeking to enjoin the selectmen and treasurer from paying any sum, pursuant to a vote of the town, to former selectmen of the town indemnifying them for the amount paid by them in satisfaction of a judgment recovered against them in a libel suit by Arthur Stanley.

On appeal. An appeal from a decree of a sitting Justice confirming the findings of the Chairman of the Industrial Accident Commission under the Workmen’s Compensation Act. Held: and a decree rendered awarding compensation, from which decree an appeal was taken. The case is stated in the opinion.

On exceptions. An action of assumpsit against an administrator which was continued for several terms of court from term to term, and defaulted, and on motion by defendant the default was removed, and again at a subsequent term was defaulted and after the default was recorded and before final judgment thereon, the defendant filed a motion that the presiding Justice set aside the default and order it stricken from the records and discontinue the case without costs.

<p> It is within the discretion of the court to grant a motion requesting that a case be placed on the jury list for trial, where the plaintiff failed to write on the writ itself a claim for jury trial, but did send to the clerh’s office a written claim for jury trial, which was filed with the writ before the return day. </p> <p>The plaintiff, not being familiar with the laws of this State, by mistake or accident, failed to write on the writ a claim for jury trial, as provided by statute but did send to the clerk's office a letter claiming a trial by jury which was filed with the writ before return day.</p> <p>Under such circumstances it is within the discretion of the court to grant a motion that the case be placed on the jury list for trial.</p>

On exceptions. The respondents were indicted at the January term, 1921, of the Superior Court for Cumberland County, for maintaining a liquor nuisance. The jury returned a verdict of guilty. During the progress of the trial several exceptions by respondents were taken on which the case went to the Law Court. The case is fully stated in the opinion.

On motion for new trial. This is an action of assumpsit brought -by Nathan M. Rodman Company against Peter Kostis to recover for certain produce sold by plaintiff corporation to defendant. The action was tried by jury at the January term, 1921, of the Supreme •Judicial Court in York County, and the jury rendered a directed verdict for plaintiff, and defendant filed a general motion for a new trial.

On exceptions. This is acomplaint made by the wife of the respondent charging him with wilful neglect to provide the necessary support and maintenance for her and a minor child, which originated in the Auburn Municipal Court under R. S., Chap. 120, Sec. 38.

On exceptions. This case reached the Law Court upon exceptions from the finding at nisi prius of the Justice of the Supreme Judicial Court sitting as Supreme Court of Probate, which finding reversed the decree of the Judge of the Probate Court allowing the account of the administrator of the estate of Frances R. P. Skolfield.

On exceptions. A libel for divorce brought by Antoinette Landry against Emiline A. Landry, in the Superior Court for the County of Cumberland, and a. cross libel for divorce brought by libellee in the first libel against the libellant therein, utter desertion being alleged in each libel.

<p>On report. This is an action brought by the People’s Ferry Company against Casco Bay Lines, to recover damages for alleged interference by the defendant corporation with what the plaintiff corporation alleges to be its exclusive rights of transportation between Portland Pier in the city of Portland and Forest City Landing on Peak’s Island in Casco Bay.</p> <p>A plea of general issue was filed with a brief statement alleging justification. By agreement of the parties the case was reported to the Law Court upon so much of the evidence as was admissible for the determination of all issues raised by the pleadings, and if the defendant be held liable, the case to be remanded to the trial court for assessment of damages.</p> <p>The case is fully stated in the opinion.</p>

On exceptions. This is a criminal process by complaint originating in the Belfast Municipal Court, charging the respondent with possession of intoxicating liquors with intent to sell in violation of law. Respondent waived a hearing in the Belfast Municipal Court, and upon being found- guilty, appealed to the Supreme Judicial Court, where a trial by jury resulted in a verdict of guilty.

On exceptions. This is an action on an alleged contract to recover for board of defendant, his wife, her mother and sister at plaintiff’s summer hotel called Colonial Inn, situated at Ogunquit, for two weeks at eighty dollars per week. The action was tried in the Supreme Judicial Court for York County, and at the close of the evidence on motion by defendant the presiding Justice directed a verdict in his favor, and plaintiff excepted.

On report by an agreed statement. These two actions of debt were brought by plaintiff town to recover of defendant town taxes assessed for the years of 1920 and 1921 on property owned by plaintiff and situated in the defendant town. Plea the general issue and a brief statement under which it was alleged that the property upon which said taxes were assessed was exempted from taxation under the statute.

On appeal. This is an appeal by the Mexican Petroleum Corporation from a decision of the Assessors of the city of South Portland in refusing to grant an abatement of a tax laid by said assessors on the “stock-in-trade” of the said Mexican Petroleum Corporation on April 1, 1920, which stock in trade consisted of oil in the tanks of said corporation located in said South Portland on land owned by said corporation.

<p>On exceptions. The respondent was indicted at the January Term, 1920, of the Superior Court for the County of Cumberland, for being a common seller of intoxicating liquors in violation of Sec. 23, of Chap. 127, of the R. S. Respondent objected to the admission of testimony to the effect that the sale was of cider, and that under the indictment as drawn, it could not be shown that cider was sold, unless sold for tippling purposes or as a beverage, and that the indictment should so expressly recite. The testimony was admitted and respondent took exceptions. Other exceptions were taken to the refusal of the presiding Justice to give certain requested instructions. The jury found the respondent guilty.</p> <p>The case is sufficiently stated in the opinion.</p>

On report. This is an action for money had and received for the recovery of one hundred dollars paid in advance upon the execution of a lease of two furnished flats over the stores in the Povich Block in Bar Harbor. The plaintiff with his family moved into the premises and remained there one day, moving out the next day because of the unfit and unsuitable condition of the premises as a tenement.

On exceptions. This is an action on the case for slander, plaintiff alleging that defendant used about and concerning him. the following words; “He has been in the cemetery and moved the headstone of my wife sidewise from its place.” The defendant filed a demurrer which was overruled by the presiding Justice and the defendant took exceptions. The case is fully stated in the opinion.

On exceptions by defendant. An action on the case for negligence. At the return term, the defendant made special appearance, and seasonably filed a plea in abatement, because of an alleged insufficient service of the writ, to which plea the plaintiff filed a demurrer after filing a motion tó strike from the files the plea in abatement. The presiding Justice denied the motion, and adjudged the service sufficient, to which rulings the defendant took exceptions.

On agreed statement. On August 27, 1917 the ship “Binghampton” arrived at Portland with a cargo of coal consigned to the plaintiffs and destined. for Cumberland Mills.. Under the' contract of carriage between the plaintiffs and the ship owners four days were allowed for loading and discharging. Beyond such time demurrage at a stipulated rate was provided for. Two days, twelve and one half hours of the time remained for discharging.

On report on agreed statement. This is an action of assumpsit to recover for a quantity of hay sold by plaintiffs to Boyd & Harvey Co., a corporation, the plaintiffs alleging that defendants were undisclosed principals of Boyd & Harvey Co., in the contract. The defendants denied the alleged agency. Upon an agreed statement the case was reported to the Law Court. The case is fully stated in the opinion.

<p>On report on agreed statement. This is an action of assumpsit to recover $93.15 for personal services and expenses in recruiting laborers for the defendant corporation. The defendant denied that it had ever employed plaintiff, or that he had been employed by any authorized agent of it.</p> <p>The case is fully stated in the opinion.</p>

On motion and exception. This is an action on the case to recover for personal injuries sustained by the plaintiff resulting from a collision of an automobile in which plaintiff was a passenger, with a train of defendant company at the Western Avenue crossing, so called, in the town of Fairfield, on July 18, 1920.

On exceptions by plaintiff. This is an action of assumpsit on the first instalment of a promissory note, against Herbert L. Marston and Almeda E. Marston, who signed on the face of the note, and Howard M. Smith and Walter H. Foss, who signed on the back of the note, all signatures being made at the inception of the note and before delivery to the plaintiff as payee.

On agreed statement. This case comes from the Superior Court of Androscoggin County upon an agreed statement of facts entered into before the decision by this court in the case, State v. Paige Touring Car, 120 Maine, 496. In the present case the automobile in question was seized at a garage in Lewiston, and at the time of the seizure twenty-five cans each containing one gallon of alcohol were found deposited in the car.

On report. This is a petition in equity, brought under the provisions of Secs. 120 and 122 of Chap. 52 of the R. S., in the name of the Bank Commissioner, against the Mutual Construction Company, a corporation organized in New Hampshire, and Emile J. Pelletier, its genteral agent in this State, for the purpose of enjoining the defendants from carrying on business in this State similar to that carried on by loan and building associations in this State, without complying with…

On report. This is a real action to determine title to certain real estate in Lewiston formerly owned by Edwin B. Holbrook, now deceased. On July 28th, 1920, said Edwin B. Holbrook executed a deed of said real estate wherein the plaintiff was grantee, and delivered the deed to Fred O. Watson, an attorney who drafted it, with instructions to deliver the same to grantee.

<p> The stipulation contained in a bill of lading that as a condition precedent to recovery for non-delivery of interstate shipment of goods, claims in writing m,ust be made to the originating or delivering carrier •within six months after a reasonable time for delivery has elapsed, has been determined by the Federal Court as valid. A reasonable time for performing a given act is such time as is necessary conveniently to do what the contract requires to be done, and in any given case is a question of fact. </p> <p>The evidence in the instant case proves that two or three days was a reasonable time in which to conveniently transport these goods from Gardiner, Maine, to Boston, Massachusetts, and therefore the reasonable time for delay expired on May 18, 1918.</p> <p>The six months after the reasonable time, therefore expired on November 18, 1918, and as the first written claim was made on December 14, 1918, it was nearly a month subsequent to the period allowed by the stipulation and eleven days even beyond the request for a tracer. Such delay on the part of the plaintiff constitutes a bar and precludes recovery.</p>

<p> The seller’s remedy for refusal to accept goods ordered is not a suit for the pi-ice, but a special action for breach of the implied contract to receive and accept. </p> <p>The law is well settled in this State that when goods are ordered, and shipped to the one giving the order, but were never accepted by the one giving the order, the seller’s remedy is not a suit for the price, but a special action for breach of the implied contract to receive and accept. To maintain an action for the price actual acceptance must be shown.</p>

<p> A marginal memorandum “and interest” on a note which is in conflict with the note itself, does not constitute a variance, and such note is admissible, it having been declared upon as without interest, as in the body of the note no interest is mentioned. </p> <p>In the instant case the only question is, were the words “and interest” a part of the note, a part of the contract, and included in the promise of the maker. The maker was bound by his promise. He promised to pa,y one hundred dollars, no more, and no less. The marginal memorandum contradicts the note, contradicts the promise to pay. Which shall govern, the deliberate, signed promise to pay, or a memorandum which may have been made by a person not a party to the pote? It is the opinion of the court that the note should govern, and not the marginal memorandum or notation. ,</p>

<p>It is permissible for the State in establishing the intoxicating character of liquor, on an indictment charging respondent with unlawful possession of intoxicating liquor, to admit testimony of persons who have used a part of the liquors involved in the inquiry as 'to its effect upon them. A sale of the liquor involved may be shown as bearing on the question of unlawful possession.</p> <p>This is an indictment charging the respondent with unlawful possession of intoxicating liquor. The jury returned a verdict of guilty and the case is before the court on exceptions.</p> <p> Held: </p> <p>1. The State had the burden of proving that the liquor in question was intoxicating liquor. This was a question of fact for the jury. While there may be other means of establishing the intoxicating character of liquor, we think the most satisfactory testimony on the subject is that of persons who have used part of the liquors involved in the inquiry. This course was pursued in the instant case, and properly.</p> <p>2. The State had the further burden of showing the respondent’s possession of intoxicating liquors to be unlawful. Philip W. Wheeler, a deputy sheriff, was permitted to testify that while in respondent’s store he saw the respondent sell to oumtoincrs Florida water and witch hazel. This testimony was admissible with the other testimony in the case on the question of unlawful possession, and the intent accompanying such possession. What respondent’s intention was would be fairly indicated by what he did with the liquors; what he did with the liquors may be shown by a witness who saw him dispose of them. The testimony was properly submitted to the jury.</p>

<p> Equity practice and procedure under Equity Bule XXVIII. </p> <p>On exceptions to a final decree entered by a single Justice after the Law Court has certified its decision upon an appeal or exceptions, it is</p> <p> Held: </p> <p>1. That such exceptions, under Equity Rule XXVIII must be taken within ten days from the filing of the decree and they must be filed in the office of the Clerk of Court in the County where the proceedings are pending, within that time.</p> <p>2. That the exceptions in this case were not so filed and therefore must be dismissed as a matter of equity practice and procedure.</p> <p>3. Disregarding this irregularity the plaintiff could take nothing by these exceptions. The only question to be determined by the court under this rule at this stage of the proceedings is whether the decree in form accords with the decision and certificate of the Law Court. If so it is sufficient. The merits of the controversy are no longer open.</p> <p>á. The final decree in this case follows the mandate of the Law Court without attempting to modify, limit or enlarge it and therefore is unobjectionable.</p>

On appeal by defendant. The claimant on the 17th day of February, 1921, while in the employ of the Camden Anchor-Rockland Machine Company, as a moulder, received a personal injury alleged as arising out of and in the course of his employment, by receiving on his left-knee a blow from a sledge hammer which he was using in dumping out a flask, and as a result of the injury an abscess formed, and claimant claimed that the attack of pneumonia which followed was caused by the…

On exceptions by defendant. This is an action of assumpsit upon account annexed to recover the price of certain coal sold and delivered by the plaintiff to defendant. Defendant pleaded the general issue, and under a brief statement alleged that plaintiff was not entitled to recover inasmuch as he had not had the coal weighed by a sworn weigher as provided in the R. S., Chap. 46, Secs. 11 and 12; also Public Laws 1919, Chap. 74, Sec. 3.

On motion by defendant for a new trial. This is an action upon an account annexed to recover for merchandise sold and delivered by the plaintiff to the defendant’s wife. The defendant, at the age of nineteen years, was married July 17, 1918, and his wife was seventeen years of age. A few days after his marriage the defendant with his wife went to live witli his aunt, his father being dead.

On exceptions and motion for new trial by' plaintiff. These are actions of assumpsit founded upon joint and several notes signed by defendants and five others, on which defendants were sued severally by the endorsee, the notes being for $900 each, dated August 7, 1918, one payable in one year and the other in two years, each bearing an indorsement of $200. The notes were given in payment of the purchase price of a Percheron Norman stallion bought of one 11.

On exceptions and motion. This is an action to recover damages resulting from an alleged breach- of a written contract, wherein it was stipulated that defendant sold and agreed to deliver to plaintiff forty-five hundred barrels of Spaulding Rose potatoes, and forty-five hundred barrels of Green Mountain potatoes, thirty cars in all, fifteen cars of both kinds to be shipped in each of the months of January, 1920, and February, 1920, for which plaintiff was to pay $2.65 per…

On motion and exceptions by defendant. This is an action upon an insurance policy under Sec. 38, Chap. 87, of the R. S. to recover the sum of five hundred dollars, the amount of the policy, and interest, being the amount of insurance on the personal property of plaintiff, which was totally destroyed by fire on April 15, 1919, at Hampden, Maine.

On motion for new trial, and exceptions by plaintiffs. This is an action in trover for certain trees cut and removed by defendants on the south half of lot number 9,' range 10, in the town of Greenfield, in the fall and winter of 1916. The defendants pleaded the general issue and estoppel by way of brief statement. Plaintiffs relied upon record title, and defendants claimed title by adverse possession of their grantors and predecessors in title.

On report. This is an action in trover for the value of articles of personal property alleged to have been taken and converted by defendant. Plaintiff owned several farms and personal property on and about them in Franklin County, and agreed orally to sell the whole property both real estate and personal property to the Carrabassett Timberland Company for $10,500.

On appeal. This is a proceeding by petition under the Workmen’s Compensation Act by Fannie E. Ballou, for compensation as dependent widow of Joseph Ballou, who, on November 17, 1919, was an employee of the Jackman Lumber Company in its sawmill at Jackman as a sawyer. Soon after the crew began to work in the afternoon on said date, fire broke out in the mill and decedent was trapped in the mill and had to escape through a window.

On report on questions of law. This is an action to recover damages sustained by plaintiff because of the alleged nonfeasance and misfeasance of the defendant in the storage and use of water in the Wilson Stream Dam in the years 1917 and 1918.

On motion and exceptions. This is an action for money had and received to recover $13,622.28 with interest, consisting of bank deposit accounts and promissory notes. On July 30, 1910, Edward P. Faunce, intestate, died in Readfield in Kennebec County, at the home of his sister, Abbie C. W. Ambrose, the defendant.

On report on an agreed statement. This is a writ of entry brought to determine the validity of a tax deed and the sufficiency of the description therein, and in the assessment. The case is stated in the opinion.

On report. This is a bill in equity brought pursuant to Chapter 80 of the Resolves of the State of Maine for the year of 1919, by Deforrest .Keyes of Oneonta in the State of New York praying that from the State Treasury there be paid to him the amount he paid in 1902 for certain tracts of land which had been advertised by the State Treasurer as having been forfeited to the State for state taxes and county taxes, said tracts having been sold at public auction, and interest on…

On report on an agreed statement. This action was brought to recover the sum of one hundred and ninety dollars with interest from October 1, 1920, the balance claimed by the plaintiffs to be due from the defendant for unpaid taxes to the town of Mechanic Falls for the year 1920. The defendant was a soldier who served in the war of eighteen hundred and sixty-one and five, but his property subject to taxation exceeded the value of five thousand dollars.

An action of assumpsit to recover for some apples, alleged to have been sold and delivered to defendant, and for commissions in purchasing some apples for defendant. A verdict in favor of plaintiff was returned by a jury on both items, and defendant filed a general motion for a new trial. The case is stated in the opinion.

<p>• On exceptions by defendant. This is an action to recover the value of a stock of goods sold by the bankrupt to the defendant in violation of the Bulk Sales Statute. The defendant moved for a directed verdict for the reason that there was no evidence of deficiency of assets. This motion was denied and the defendant excepted. The plaintiff also moved for a directed verdict. This motion was granted, the presiding Judge ordering a verdict for $1,713.54, on the ground that the only evidence of value was the defendant’s admission. To this ruling defendant reserved exceptions.</p> <p>The case is stated in the opinion.</p>

On exceptions by respondent. The respondent was tried in the Western Somerset Municipal Court for the County of Somerset upon a warrant alleging a single sale of intoxicating liquor, and upon appeal the case went to the Supreme Judicial Court and was tried at the January term, 1922, and respondent was found guilty.

On exceptions and general motion for new trial by defendant. This is a real action to determine title to certain real estate situate at the corner of Forest Avenue and Hartley Street, in the Deering District in Portland. Defendant pleaded the general issue and by brief statement disclaimed as to part of the premises demanded.

On exceptions and motion for new trial by plaintiff. This is an action in assumpsit on account annexed to recover for water furnished by plaintiff to defendant for two tenement houses for one year at a fiat rate of $14.00 per year, and'for 907,820 gallons at 45 cts. per one thousand gallons as excess water. Plea the general issue. The cause was tried to a jury and verdict of $42.62 was rendered for plaintiff.

<p> An inventory of an estate duly sworn to and filed in the Probate Court is admissible to prove and is prima facie evidence of the amount of the estate which passes into the hands of the trust officer, but not conclusive, and may be offered to show the financial benefits which the widow of the deceased may receive from that estate. </p> <p>The inventory of an estate duly sworn to by the executor or administrator and filed in the Probate Court is admissible to prove and is prima facie evidence of the amount of the estate which came into the hands of such trust officer, but not conclusive, and may be offered to show the financial benefits which the widow of the deceased may receive from that estate. Such evidence is open to denial or explanation either as to property improperly scheduled, or as to title or value of the same.</p> <p>In the instant case no legal ground for exception is pointed out either in record or argument, and it not being clearly shown that the excepting party was injured by the question and answer, such exception is not considered.</p> <p>The customary and established burden resting upon a party seeking to set aside the verdict of a jury has not been sustained in the case at bar.</p>

<p>On appeal by defendants. This is a proceeding by petition by Philomene A. Jacques, claimant, as dependent widow of Archie L. Jacques, for compensation under the provisions of the Workmen’s Compensation Act. Archie L. Jacques, husband of claimant, on the ninth day of May, 1918, while working as a carpenter for the Cumberland Ship Building Company at South Portland, fell from a staging receiving injuries to his face, limbs and side. He ceased working for two or three days and then went back and tried to work but after a few days he stopped working, and on the fifth day of June gave up his work entirely and from that time to the date of his death, April 12, 1919, he did no work.</p> <p>On the day following the accident he had a hemorrhage from the mouth, and early in the following month he had other hemorrhages, and grew weaker and weaker until his death from tuberculosis. An answer was filed by the respondent resisting compensation on the grounds that the death of the husband of claimant was not the result of an accident arising out of and in the course of his employment, but was the result of a pre-existing disease. After a hearing on the petition the Commission awarded compensation in the sum of ten dollars per week for a period not to exceed three hundred weeks, and respondents appealed from the decree of a single Justice affirming such award.</p> <p>The case is stated in the opinion.</p>

On motion by defendant. An action to recover damages for injuries sustained by plaintiff, a passenger, while alighting from a street car of defendant at Lincoln Street in South Portland, caused by a sudden starting of the car. The jury returned a verdict of $2,050.00 for the plaintiff, and the defendant filed a general motion for a new trial. The c^se is fully stated in the opinion.

On exceptions by defendants. This is a real action for the possession of certain réal estate situate in the town of Leeds. The case was heard by the presiding Justice without a jury. Both parties claimed title under one Reuben Ridley. The plaintiff claiming title under certain quit-claim deeds from the heirs of Reuben Ridley of 17/18 of the parcel described in the writ.

On exceptions by respondent. This is a complaint charging the respondent with unlawful possession of intoxicating liquor. When the evidence was all in, the respondent filed a motion requesting a directed verdict of “not guilty” on the ground of insufficient evidence, which was denied by the presiding Justice, and the case submitted to the jury and a verdict of guilty returned. The respondent excepted to the ruling refusing to direct a verdict.

On exceptions by respondent. This complaint which originated in the Municipal Court, alleged that the respondent offered for sale certain articles of adulterated food, in violation of Paragraph 7, Sec. 12, of Chap. 36 of the R. S. The respondent filed a general demurrer with the right to plead over, asserting as a ground on which his demurrer was based, that it was the containers of the articles of food that were offered for sale, and not the contents thereof.

On exceptions and appeals. The respondents were indicted under the provisions of R. S., Chap. 128, Sec. 24, for conspiracy. Philomena Trocchio, one of the respondents, requested a separate trial, which was refused, and exceptions taken.

On appeal by complainant. This is a bill in equity seeking the construction of the will of Harriet E. Whitmore, late of Gardiner, deceased. The defendants demurred generally to the bill as a whole, and also specifically to each paragraph, on the ground that the complainant had no interest in the subject matter of the bill. The demurrer was sustained by the sitting Justice and the bill dismissed, from which decree complainant appealed. The case is fully stated in the opinion.

<p> The court ordinarily declines to answer questions, or give requested instructions, in an equitable proceeding, where there are no existing conditions, occasion, or emergency, set forth in the bill requiring an answer or instructions. Where questions and requested instructions are predicated upon a contingency, answers should not be given as a rule until such contingency arises, or is about to arise, or imminent. </p> <p>No existing conditions, occasion, or emergency is set forth in the bill requiring an answer to the first question: nor can the amount or character of the estate to be “disposed of according to the laws of inheritance of the State of Maine in force at date hereof,” be now ascertained.</p> <p>The fact that a question may arise in the future is ordinarily not enough. Such question should not be decided until the anticipated contingency arises, or at i least until it is about to arise; until it is imminent.</p> <p>For the samo reasons the second question should not be answered. In addition, Elizabeth B. Dunphy may die before the death of the widow without leaving lawful issue. In that event, the provisions of the will are plain as to the disposal of the property in which she is interested.</p> <p>If after the death of the widow a dispute arises as to the distribution of the residuary estate, all the questions then arising should be determined in a proceeding to which the heirs of Elizabeth G. McCarthy, who are not, and cannot be made parties to the present bill, would be parties.</p>

On appeal. This is a bill in equity brought by Cora M. Denison, daughter of Samuel H. Dawes, late of Harrison, deceased, and Herbert H. Dawes, executor of the will of said Samuel H. Dawes, against Isabelle A. Dawes, widow of the said Samuel H. Dawes, to compel performance by said Isabelle A. Dawes of a certain ante-nuptial agreement alleged to have been entered into by the said Samuel H. Dawes and the said Isabelle A. Dawes, under the name of Tsabelle A. Gray.

On appeal. This is a proceeding under the Workman’s Compensation Act. Claimant was a night watchman, his chief duties being to make the rounds of the mill where he was employed. He claimed that in making his rounds while walking on a level floor he experienced a sharp pain in his knee or calf of the right leg, and that his leg gave away and he fell over on to the floor.

On motion for new trial by plaintiff. This is an action in assumpsit on twenty promissory notes, aggregating $1,525.00, given to plaintiff by defendant for the construction of a baker’s oven for defendant by plaintiff. Defendant filed the general issue with brief statement setting up failure of consideration, in whole or part, but not indicating wherein.

<p>On exceptions by plaintiff. This is án action to recover the amount paid by plaintiff to redeem a certain Ford automobile. The plaintiff, a widow, was living with her brother in Lewiston and in the autumn of 1919 became acquainted with the defendant, who proposed marriage, and before the marriage was consummated, promised the plaintiff that he would buy and give to her as a gift an automobile, which he did do, but gave at the time of its purchase a mortgage to the party of whom he made the purchase, the plaintiff not having knowledge of the mortgage. Afterwards á divorce was granted, and the automobile was taken from the plaintiff on a writ of replevin by the mortgagee who instituted foreclosure proceedings, and the plaintiff to redeem the automobile paid to the mortgagee the money sued for in this action. Counsel for defendant moved for a directed verdict for defendant. The promise was not in writing, being an oral one only, and the presiding Justice granted said motion, and directed a verdict for defendant, and plaintiff excepted.</p> <p>The cáse is stated in the opinion.</p>

On exceptions. Willard P. Hamilton et als. v. defendant. Re Investigation by ' the Public Utilities Commission. And H. H. Whitney v. defendant, were the three matters in which the Commission rendered decisions, and the Caribou Water, Light.& Power Company in each instance alleged exceptions, and the matters went to the Law Court for determination.

On exceptions. The Caribou Water, Light and Power Company, is a corporation for furnishing water, light and power to municipalities and their inhabitants for domestic purposes, and for fire protection. In 1903, the town of Caribou entered into a contract with the corporation for water for fire protection.

Oil exceptions. This is an action of replevin to recover possession of an automobile. Defendant pleaded the general issue and title under a brief statement.

On exceptions. This is an action in which the Vino Medical Company, Inc., of New York filed its claim for some 2,210 bottles of “Vino Tonic” seized by the deputy sheriffs of Androscoggin County as an intoxicating liquor, intended for unlawful sale. The contention of the claimant was. that the preparation so seized was not an intoxicating liquor within the meaning of the statute.

On appeal. The claimant is a dependent of William. E. Leavitt deceased, who was what is known as a resaw man in the employment of the St. Croix Paper Company of Woodland. Death resulted from an injury received by him on August 1, 1921, in the course of and arising out of his employment. The chairman of the Industrial Accident Commission granted compensation under method “C” of the Workmen’s Compensation Act; and the employer appealed. This case is fully stated in the opinion.

This is a bill in equity and went to the Law Court on an agreed statement of facts. The plaintiffs are lobster fishermen of Kennebunkport, and the defendants are Alton B. Farnsworth, Harry C. Wilbur and E. W. Gould, Commissioners, constituting the Commission of Sea and Shore Fisheries of this State. On the 28th day of July, 1921, the Commission gave .notice of a hearing upon the advisability of a close time, within certain defined limits.

On appeal by defendant. This is a proceeding under the Workmen’s Compensation Act, and the questions involved are as to whether claimant at the time of the injury was an employee within the purview of the Act, or, as claimed by defendant, was either within the exceptions as a casual employee, or was an independent- contractor.

On general motion for a new trial. This is an action on the case to recover damages for injuries sustained by one John N. Willard, the driver of a trotting horse in races held by defendant on the fourth day of September, 1919, who was at the time of the injuries in the employ of plaintiff; who was an assenting employer under the Workmen’s Compensation Law of Maine, having paid compensation, claimed to be subrogated to the rights of said John N. Willard, alleging negligence…

On agreed statement of facts. This is an action of assumpsit to enforce payment of a promissory note given by defendant to plaintiff as part payment of the purchase price of a farm.

On motion for new trial by defendant. This is an action of assumpsit to recover for automobile tires, shipped by plaintiff to one J. M. Agel, upon his written order, and charged to said Agel. Plaintiff seeks to recover of defendant as the original promisor, which defendant denies, and alleges that if he made any promise, it was a collateral one, and not an original promise, hence not enforceable under the Statute of Frauds.

On exceptions by plaintiff; This is an action to recover damages for personal injuries sustained by plaintiff while in the employment of defendant. The first count in the writ states a cause of action at common law, and the other five counts set out causes of action against a non-assenting employer under the Workmen’s Compensation Act. The defendant pleaded the general issue, and the case was tried to a jury.

On report. This is an action in assumpsit on an account annexed. The general issue was pleaded. In June, 1920, plaintiff entered into a written agreement with defendant to cut on Township-4, Range 5, in Oxford County, 7500 cords of rough pulp wood, to land same on the banks of Moose Brook and to drive and deliver same into pocket booms on Parmachenee Lake, during the season of 1920-1921.

On appeal by defendants. This is an appeal from the decision of the Industrial Accident Commission, granting to claimant compensation for partial disability in the sum of $14.'8'9 per week, commencing from the date of the last payment of the specific compensation and to continue according to the provisions of Sections 16, and 15 of the Workmen’s Compensation Act in effect at the time of thé accident.

On appeal by respondents. The only question involved in this case is the effect of an agreement between the employer and employee as to compensation which agreement was approved by the Commission. Under such circumstances the agreement is binding and the only remedy provided for relief in case of changed conditions is by a petition for a review seasonably filed.

On appeal by defendants. This is an appeal from the decision of the Chairman of the Industrial Accident Commission, granting compensation to claimant as dependent widow of Joseph Lachance, in the sum of $15.00 per week, from October 22, 1920, for a period of 233 1-3 weeks.

On exceptions by defendant. This is an action of assumpsit to recover the purchase price of pulp .wood sold and delivered to the defendant under a written contract, heard by the presiding Justice without a jury who gave judgment in favor of plaintiff for 1310.14.

On exceptions by defendant. This is an action of assumpsit to recover the purchase price of pulp, wood sold and delivered to defendant under a written contract, heard by the presiding Justice without the intervention of a jury, who gave judgment for plaintiff for $234.44. Exceptions were taken by defendant to rulings of the presiding Justice upon questions of construction of certain parts of the contract, and to a ruling upon an alleged claim of accord and satisfaction.

On exceptions. The respondent was arrested on a complaint and warrant alleging illegal possession of intoxicating liquor. In the complaint the name of the respondent appeared as follows:- — ■ “That M. B. Striar whose full and correct name is to your complainant unknown of Bangor in the County of Penobscot and State of Maine.” The respondent appeared in person, not by attorney, and filed a demurrer to the complaint, and subscribed it as M. B. Striar.

<p>On report. The respondent was adjudged guilty of the illegal possession of intoxicating liquor in the Sanford Municipal Court and on appeal the case went to the Supreme Judicial Court, thence to the Law Court on report. That the respondent had in his possession, intended for sale in this State, a quantity of Bosak’s Horke Vino, a so-called medicinal preparation containing more than eighteen per cent, of alcohol, was not disputed. The question at issue was as to whether such preparation was an intoxicating liquor within the purview of the law of this State.</p> <p>The case is very fully stated in the opinion.</p>

<p>On defendant’s exceptions. This is an action in covenant for breach of a contract under seal. The contract was dated June 13, 1921, for one year, for employment of plaintiff as pressman in defendant’s clothing factory at Lewiston, at seventy-five dollars per week. On September 5, 1921, defendant removed his factory to Boston, and on the same day, through its agent, Mr. Barron, made three propositions to the plaintiff with a view of adjusting his rights under the contract. The first two propositions were rejected by plaintiff, but after some consideration, the plaintiff on the same day wrote a letter to Mr. Barron, accepting the third proposition. On September 10, the action was brought. The defendant pleaded non est factum with a brief statement alleging that it had been ready to make its payments then or thereafter to become due during the entire period of the contract, and further alleged that it was ready to perform all the conditions of the modified contract resulting from the third proposition made by defendant to plaintiff and by him accepted, and that at the time the action was brought there had been no breach of any covenant by it to be performed. The case was heard by the presiding Justice of the Superior Court without the intervention of a jury, right of exceptions in matters of law being reserved by both parties. The Justice ruled that there had been a breach of the contract by defendant by removal of its factory to Boston, unless plaintiff assented to the changed condition embraced in the third proposition, and further ruled that there had been a breach by defendant, and that the plaintiff had a right of action, and rendered judgment for the plaintiff in the sum of $2,128.00. To which rulings defendant excepted.</p> <p>The case is fully state,d in the opinion.</p>

On appeal by defendants. This case was taken to the Law Court on an appeal from the finding of the Chairman of the Industrial Accident Commission under the Workmen’s Compensation Act, granting to claimant compensation for an injury sustained by him while in the employ of the Ashland Company on November 4, 1920, as a swamper engaged in preparing a road for a log hauler in the logging operation in the woods by said company on the Machias river.

On exceptions by defendant. This is an action on the case alleging deceit in the sale of land. The deceit complained of by the plaintiff consisted in the alleged representations made by defendant to plaintiff that in the land sold was included a ten-acre wood lot owned at the time of the representations by the wife of defendant.

On appeal by plaintiff. This is a bill in equity seeking to charge defendants as trustees of certain property for the benefit of plaintiff and to hold them accountable to the plaintiff for the profits derived by them from the purchase and sale of certain personal property, water rights and timberland properties comprising approximately 20,000 acres of woodland.

On exceptions and motion by plaintiff. An action of trover alleging conversion of an automobile. Defendant pleaded the general issue, and under a brief statement set up Res Judicata. Defendant presented in evidence an unredeemed chattel mortgage of the automobile, given by plaintiff to Arthur W. Gilpatrick, and by him assigned to defendant.

On appeal. Respondent was indicted for arson under the provisions of Chap. 121 of the R. S., and tried and found guilty, and presented a motion for a new trial to the presiding Justice, which was denied, and respondent appealed. The buildings destroyed by the fire consisted of the main dwelling-house, ell, woodshed, carriage-house and barn connected in the order named, forming one continuous set of buildings, with means of access without going out of doors.