Volume 89 — Maine Reports

On exceptions by plaintiees. The case appears in the opinion. The contract as alleged in the bill is confessed in the defendants’ answer, and thus taken out of the statute. Browne, Stat. Frauds, pp. 475, 476; Story, Eq. § 755. The retention and refusal to give up the agreement, within a reasonable time, was an adoption on the part of these defendants of the agreement itself as solemn and binding, as though they had placed their signatures to it.

ON REPORT. The case appears in the opinion. The insurance effected by the agent, under the circumstances, in this case, in the second company is valid. In the case of Schauer v. Queen Ins.

<p>On -Motion by Defendant.</p> <p>The case is stated in the opinion.</p>

<p>Fish and Game. Penalties. Procedure. Jurisdiction. Saco Mun. Court. S. S., c. 40, § 21; 133, § 13; Stat. 1888, c. 275; 1887, c.,144; 1889,c.292; 1891, c. 126.</p> <p>Since the Stat. 1891, c. 126, prosecutions for the violation of the fish and game laws, as therein provided, may be begun and finished upon complaint before judges of municipal and police courts and trial justices. This mode o'f prosecution which had been omitted apparently, by inadvertence, from the statutes of 1887 and 1889, was expressly revived by that act of the Legislature.</p> <p>The Saco Municipal Court has jurisdiction to render final judgment of conviction and sentence in such prosecutions, subject to the right of appeal. R. S. c. 133, § 13.</p>

Agreed Statement. This was an action to recover for pauper supplies furnished Edith Wardwell, and was reported to the law court upon an agreed statement of facts. The regularity of the furnishing of the supplies was admitted. Due notices and denials were given and made.

<p> Fraudulent Conveyance. </p> <p>A conveyance made by a debtor for tlie express purpose of protecting his interest in the property against a pending suit is fraudulent and void as against the plaintiff in that suit, and equally fraudulent and void as against the debtor’s assignee in insolvency.</p>

<p> Guaranty. Principal and Agent. </p> <p>A guaranty should receive a fair and reasonable interpretation, so as to attain the object for which it is designed.</p> <p>The Machiasport Company received an order for some stone which the company was unable to fill, and application was made to the Red Granite Company f or assistance; the latter company declined to delivef stone on the credit of the Machiasport Company, but expressed a willingness to do so on the credit of the defendant. Thereupon the defendant wrote a letter addressed to the manager of the Red Granite Company of the following tenor: "Dear Sir: Mr. Pattengall advises me that he is in need of about $200 worth of Red Beach stock. Kindly fill such orders as he -may give you, and I will attend to the payment of same as they become due. Geo. ~W. York, Treas. of the Machiasport Granite Company.” Held; that the defendant became personally bound by this letter.</p> <p>The addition, "Treas. of the Machiasport Granite Company,” does not relieve the defendant .from a personal liability as guarantor.</p> <p>The use of the words "about $200 worth” in the guaranty held to be no more than an estimate; and a verdict of $254.70 was sustained.</p>

<p> Agency. Proof. </p> <p>Evidence that a third person by his declarations and acts assumed to be the agent of a corporation, does not amount to proof of such agency in an action against the corporation.</p> <p>Agency cannot be established against an alleged principal by showing the words and acts of the alleged agent.</p>

On Motion by Deeendant. This was an action on tbe case for injuries sustained by the plaintiff, February 22,1892, by being tipped over and thrown out of his sleigh while driving along Main Street in the city of Lewiston. The defect complained of was a rut where the rail of the horse-railroad ran, and shoulders of ice on each side, left when thé street was plowed out after a storm — by which the runner of the sleigh was caught and tipped over.

<p>On Exceptions by Trustee.</p> <p>This was an action of assumpsit brought upon an account annexed for the sum of one hundred and two dollars and fifty cents, for merchandise sold to the employees of the defendant who were at work in the woods, cutting birch belonging to the trustee, Charles P. Bartlett, which was being cut under a contract between the defendant and the trustee. For the goods sold, an order was given to the plaintiffs in writing, by the principal defendant upon the trustee, but was never accepted. The case shows that a former disclosure was made by the trustee and that additional allegations were filed, upon which a further examination was had of both the trustee and defendant. The matter was submitted to the presiding justice, who heard the testimony, and upon the whole evidence, charged the trustee with three hundred dollars less his costs. To this finding by the court, the trustee excepted and presented the case to the law court for further consideration.</p> <p>There is no equitable ground upon which the trustee can claim relief, for he had the benefit of the plaintiffs’ goods. The merchandise for which this suit is brought was sold to the men who were cutting the birch owned by the trustee. It was his custom, as it was for his interest, to pay the men who were at work under this contract, to prevent the attachment of individual claims, or liens for personal labor upon this timber. He had, from his testimony, evidently divided the money, between the choppers in the woods and the defendant.</p> <p>The defendant testifies that the price of the goods furnished the men by the plaintiff was deducted from their pay, which if true, went to the direct benefit of the trustee in discharging or cancel-ling so much indebtedness, which might be otherwise secured by a lien upon his lumber. Counsel cited: Toothaher v. Allen, 41 Maine, 324; Sebor v. Armstrong, 4 Mass. 206 ; Scott v. Bay, 18 Pick. 361; Barker v. Osborne, 71 Maine, 69.</p>

On Exceptions by Plaintiee. This was a real action brought to determine the title to a lot of land on the North side of Court Street, in the city of Bath, or to that part of the lot upon which the defendant had erected a building extending into Winslow Court, a private way. The defendant claimed a fee to the center line of the private way.

<p>On Motions by Plaintiff.</p> <p>The case is stated in the opinion.</p>

On Exceptions by Dependant. This was an action of assumpsit for goods sold and delivered. Plea, the general issue. The verdict was for the plaintiffs. The defendant admitted that the goods sued for and delivered to him by the plaintiffs, were taken away and used by him; but he claimed that they were delivered to him on the verbal order of a third party, Parks and Connor, and should have been charged to Parks and Connor and not to him.

<p> Assault. Self-Defense. </p> <p>The intent to do harm is an essential element in all criminal prosecutions for assault. i</p> <p>An instruction that a wanton motion, an angry motion, coupled with thesability at the time, and under the circumstances to do harm, is an assault, and if carried into effect, is an assault and battery, is erroneous inasmuch as it omits the element of intent. The motion may be wanton, made in an angry manner, coupled with an ability to do harm, and yet no harm be intended, and if harm should result may be from pure accident.</p> <p>A man when assaulted is not required to cowardly flee from danger, but may assert a manly self-defense, necessary for his protection.</p> <p>An instruction that it is a man’s duty, as a good citizen, to preserve the peace; and when he finds he is in danger of being attacked in any way, it is his duty to try every other means, first by retiring, withdrawing from the scene, or by remonstrance or by calling in assistance, is erroneous.</p>

Opt Exceptions by Plaintipp. This was an action of replevin of five cows tried before a jury in the Superior Court, for Kennebec County, and where a verdict was rendered in favor of the defendant. The mortgage bill of sale under which he claimed title appears in the head-note. The case appears in the opinion.

On Motion by Plaintiff. The case appears in the opinion. There is no presumption of law that a home which is once shown to have been established continues until the contrary is shown, nor is there any such presumption of fact except where a continuance of the indicia of home is proved. Kirlcland v. Bradford, 30 Maine, 453; Greenfield v. Camden, 74 Maine, 65.

Agreed Statment. The case appears in the opinion. The lands covered by these preserves are substantially wild lands and the ponds and lakes within their limits nearly all great ponds, that is, containing ten acres or more. The important question therefore arises: can the owner of these lands, or his lessee, exclude persons whose only entry is in the pursuit of game, and who are in no way injuring or disturbing his property or rights ?

<p> Shipping. Master pro haa vice. Owner. </p> <p>A part owner of a vessel let to the master on shares is exonerated from a per- ■ sonal liability to pay seamen’s wages, although the part owner procured the charters for the two trips made by the vessel during which the wages of the seamen were .earned.</p> <p>The simple statement that a master "sails,” or "hires” or "takes the vessel on shares” implies that he fully controls the management of the vessel for the time being.</p> <p>Conditions and qualifications which would deprive owners from exemption from such liabilities are not to be presumed; they must be proved. It is like the hiring and letting of any other kind of property whether real or personal. The letter yields and the hirer takes possession, and dominion and control presumably follow the rightful possession,</p> <p>No such conditions and qualifications of the part owner’s liability exist when it appears that the seaman’s wages were earned after the former procured the charter, and the latter was not connected in any way with the terms of the contract; that the procurement of the charter was not without the master’s consent and direction; and the part owner was not pretending to exercise any personal right as owner.</p> <p>It would seem inconsistent for the master to pay all the running expenses and to be entitled to the greater part of the earnings if he were merely an agent for the owners.</p>

On Exceptions by Defendant. This was a petition fox partition. Plaintiff’s title is by virtue of the foreclostue of a mortgage given by Selden Knowlton to Abraham W. F. Belcher and Jason Knowlton. Defendant owns the title of Jason Knowlton by virtue of the mortgage. An action upon the mortgage was commenced by A. W. F; Belcher in his life-time and Jason Knowlton, and judgment as on mortgage was rendered at the March term of the Supreme Judicial Court, 1885.

<p>On Repobt.</p> <p>The case appears in the opinion.</p>

<p>On Report.</p> <p>The case is stated in the opinion.</p>

<p> Judgment. Bes Judicata. Basement. </p> <p>The two essential elements of the doctrine of res judicata are the identity of the parties to the suit, and the identity of the issue necessarily involved. It must also appear that the issue which terminated in the former judgment was between the same parties in the same right or capacity. Held; in this case, that a former judgment did not operate as a personal estoppel against the defendant acting in a different right.</p> <p>The defendant and his wife were tenants in common of a right of way across the plaintiff’s lot on which the trespasses complained of in this action were committed. In a former suit the plaintiff recovered judgment against the defendant for trespasses committed on the easterly side of the lot, and it appeared from a special finding of the jury that the verdict in that case was based on the defendant’s personal agreement to use a way on the westerly side of the lot.</p> <p>In this action the defendant justifies the alleged acts of trespass on the ground that they were committed by license and authority of his wife in the exercise of her right to have a reasonably suitable and’ convenient way across the lot, offering at the same time to prove that a way on the easterly side of the lot would be more convenient for himself and wife and not unreasonably injurious to the plaintiff.</p> <p>IieM; that the former judgment against the defendant is not conclusive against him in this case, and that the evidence offered in defense should have been admitted. Tenants in common hold by several and distinct titles, and the wife had an equal right with her co-tenant to the use of a way that was reasonably suitable and convenient for the purpose for which it was granted. She was not bound by the separate agreement of her co-tenant made without her knowledge or consent and in disregard of her individual rights.</p> <p>She was entitled to have the question of the reasonableness of the location of the way determined by a jury. If in this case the defendant was not acting in the exercise of any right of his own, but solely by authority of his co-tenant, the question of the reasonableness of the location is equally open to him in defense.</p>

<p> ■Physician. Negligence. Verdict. </p> <p>In the trial of an action against a physician, who holds himself out as having special knowledge and skill in the treatment of the eye, to recover for an injury claimed to be caused by him in performing an operation upon the eye, his professional services being sought while he was passing through the town in which the patient lived, it is incumbent upon the plaintiff to prove, before he is entitled to recover a verdict, that the injury complained of was caused, either by the defendant’s want of that degree of skill and knowledge which is ordinarily possessed by physicians who devote special attention and study to the treatment of the eye, or by his failure to exercise his best judgment in the application of his skill to the particular case, or by his failure to use ordinary care in the performance of the operation and in giving such instructions as should have been given by a surgeon who was only to perform the operation and who was temporarily in the locality where the patient lived.</p> <p>At the trial the plaintiff relied almost entirely upon the result, which, it was claimed, followed the operation. As to this the evidence was conflicting; but there was no evidence of any want of the requisite skill, knowledge Oleare upon the part of the defendant, while the evidence for the defense was positive and uncontradicted that the operation which was for strabismus was a proper one, that it was performed in a skilful and careful manner, and that it was a physical impossibility for the operation, said to be a very simple one, to have caused the injury complained of. Held; that a verdict for the plaintiff was unauthorized and should be set aside.</p>

<p> Probate. Decrees. License. Deed. Forcible Entry and Detainer. S. 8. c. 71. </p> <p>The decrees of the Probate Court, upon matters within its jurisdiction, when not appealed from, are conclusive upon all persons. Such decrees are in the nature of judgments and cannot be impeached collaterally.</p> <p>The power to grant an administrator license to sell the real estate of Ms intestate, for the purpose of paying debts, expenses of sale and of administration, is conferred upon the Probate Court by statute. Such a license, when the proceedings are regular and in accordance with the statute, is therefore conclusive and cannot be collaterally attacked.</p> <p>When an administrator petitions for such license, it is incumbent upon Mm to show that a sale of the real estate, or at least some portion of it, is necessary for the purpose of paying legally enforceable debts; but a judgment against the goods and estate of an intestate in the hands of the administrator, is not barred by the statute of limitations because it was recovered more than two years prior to the time of filing the petition for license to sell real estate.</p> <p>In an action of forcible entry and detainer the title to the premises was in dispute. The plaintiffs claimed under the sale and deed of an administrator, whose intestate owned the premises at the time of his death. Tlie defendant was one of the heirs of the intestate. The administrator’s sale was under a license from the Probate Court, in obtaining which and in making the sale under it, all the requirements of law were observed. The deed was in proper form. Held; that the plaintiffs obtained a good title under the administrator’s sale and deed, and were entitled to judgment for possession.</p>

<p> Practice. Presiding Justice. Discretionary Power. </p> <p>It is entirely within the discretion of the judge presiding at a jury trial to vary the ordinary order of procedure, whenever in his opinion the occasion requires it, and at any stage of the trial to permit evidence to be offered which had been admitted through inadvertence, or which had not before come to the knowledge of counsel. And the exercise of this discretion is not subject to revision on exceptions.</p> <p>In the trial of an indictment alleging a single sale of intoxicating liquors, after the arguments for the respondent and the State had been concluded, the presiding justice allowed the county attorney against the respondent’s objection, to call a witness to testify to the place where the sale had been made, about which there had been no testimony up to that time.</p> <p>Held; that this was not the subject of exception.</p>

<p>On Motion by Defendant.</p> <p>This was an action on tbe case, brought under Chapter 124 of the Statute of 1891, which provides that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect qr default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable in an action for damages, brought by and in the names of the personal representatives of such deceased person, for the benefit of his widow, children or heirs.</p> <p>The verdict was for the plaintiff in the sum of $500.00 and the case was brought before the law court on defendant’s motion for a new trial, wherein the only questions raised were that the verdict was against law, evidence and weight of evidence, — no question being raised as to the amount of damages.</p> <p>The case appears in the opinion.</p>

On Exceptions by Appellee. The case appears in tlie opinion. There was no indebtedness existing from Haskell, as treasurer, to the company on account of this transaction, and, as assignee, the appellee has no right to call Haskell to account for any alleged shortage, arising in the manner stated.

<p> Will. Vested and Contingent Remainders. </p> <p>A vested remainder is an estate to take effect alter another estate for years, life or in tail, which.is so limited that if that particular estate were to expire or end in any'way at the present time, some certain person who was in esse and answered the description of the remainder-man during the continuance of the particular estate, would thereupon become entitled to the immediate possession, irrespective of the concurrence of any collateral contingency. A remainder is contingent when it is so limited as to take effect in a person '' not in esse, or not ascertained, or upon an event which may never happen or may not happen until after the determination of the particular estate.</p> <p>It is an elementary rule of construction, which has always been uniformly enforced, that .no remainder will be construed to be contingent, which may consistently with tlie intention of the testator, be deemed vested.</p> <p>A remainder is not made contingent by an uncertainty as to the amount of , property that may remain undisposed of at the expiration of the particular estate, the life-tenant having the power of disposal.</p> <p>A testatrix, by the eighth clause in her will, bequeathed and devised all the residue of her estate, real, personal and mixed, to her sons, and the survivor of them, to have and to hold the same in trust for the benefit and support of her husband and her daughter during the lives of the beneficiaries and that of the survivor. By the same clause, the trustees were authorized, "should it become necessary to perform the object of this trust, to sell and convey by good and sufficient deed the real estate, after first using therefor the personal estate, as the necessity for said purpose may require.”</p> <p>By a codicil to her will she made the following disposition of the property mentioned in the clause above referred to: "After the termination of the trust estate mentioned in the eighth article, by the decease of both my husband and Henrietta, I give, bequeath and devise to my son, Moses G., seven-sixteenths of my lot and store on Exchange Street, Portland, to him and his heirs forever. To my daughter, Susan, five-sixteenths of the same lot and store to her and her heirs forever. To my son, Charles M. G., the remaining fourth part of the same lot and store, to him and his heirs forever. And I . make this distinction ancl'fiifference not from the slightest unequal affection, but only in consideration of the present financial differences in the respective conditions of my children. All the remainder of my estate, of every kind and description, I give, ¡bequeath and devise to my son, Charles M. G., Moses G., and to Susan M. G. Newton, share and share alike, to them and their heirs forever; and if either of my children die previous to my decease it is my will and de'sire that my grandchildren shall inherit as the representative or representatives of the parent thus deceased.” ■</p> <p>The testatrix died in 1870, her husband in 1881 and the daughter, Henrietta, the survivor of the beneficiaries in the trust estate, March 8th, 1891. Charles M. G., died February 27th, 1889, without issue, leaving a widow, the plaintiff. The Exchange Street property was not disposed of by the trustees, under their power of disposal, during the lives of the beneficiaries.</p> <p>Held; that it was clearly'the intention of the testatrix to create by her will, a .vested and not a contingent remainder in the Exchange Street property, and that the language used was appropriate for this purpose,:</p> <p>That the trustees took an estate for the lives of the beneficiaries, with a power of disposal if it should become necessary* — That the remainder over, upon the death of the testatrix, vested in her sons, Moses and Charles, and her daughter, Henrietta, of which they might have been divested by an execution by the trustees of their power of disposal during the lives of the beneficiaries, according to the terms of the will.</p> <p>Charles M. G., who took a vested remainder in one-fourth of the Exchange Street property, and who died Februray 27th, 1889, prior to the termination of the particular estate, left a will by which he devised to his. sister, "all the right, title and interests, which I may have at the time of my decease,” in and to the homestead of his late mother. The second clause of his will is as follows: "All the rest, residue and remainder of my estate, real, personal and mixed, wherever found or situated, of which I may die seized or possessed, I give, devise and bequeath unto my.beloved wife, Eliza Jane Woodman [the plaintiff], — and being in lieu of dower, — to have and to hold the same to her, her heirs and assigns forever.”</p> <p>Held; that this language clearly shows an .intention upon the part of the testator to dispose of all of his property, and to give his wife all the residue of his estate, whether in possession or in remainder, and that it was appropriate language to carry out this intention: — That the vested remainder, which the testator took under the will of his- mother, was a part of the estate of which he was in possession at the time of his death and was included in the devise in favor of the plaintiff.</p>

<p> Bills and Notes. Liquors. Indorsee. Burden of Broof. </p> <p>Revised Statutes, c. 27, § 56, provides that no action shall be maintained upon any claim, demand or promissory note, contracted or given for intoxicating liquors; but the same statute contains this clause: "This section shall not extend to negotiable paper in the hands of the holder for a valuable consideration and without notice of the illegality of the contract.”</p> <p>Under this section, therefore, the defense that a note was given for intoxicating liquors cannot prevail against any holder for a valuable consideration without notice of the illegality of the contract; and it makes no difference whether such holder acquired the note before or after its maturity. Nor is the fact that a note was purchased after maturity, whether protested or not, any evidence that it was given for intoxicating liquors or for other illegal considerations.</p> <p>Whenever a defendant sets up and proves as a defense that the note in suit was given for an illegal consideration, it becomes incumbent upon the plaintiff to prove that he is a holder for value without notice of the illegality of the contract. A holder makes out a prima facie case by proving that the note was indorsed to him for value, and can rely upon a presumption arising from his having given value for the note, that he obtained it without notice of the illegality, until this presumption is overcome by rebutting evidence; but where there is evidence upon both sides as to the several propositions necessary to be proved by the plaintiff, then the general burden of proof is upon him to make them out. It is not sufficient to defeat his recovery that the indorsee took the note under circumstances that ought to excite suspicion in the mind of a prudent man. It is simply a question as to whether or not the indorsee had actual knowledge.</p> <p>Held; in this case, that there was ample evidence to authorize the jury to find that the plaintiff acquired title to the note in suit for a valuable consideration without notice of the illegality of the contract in its inception.</p>

<p>On Exceptions by Dependant.</p> <p>This was an indictment for bribery found against a police officer of the City of Portland by the grand jury of. the Superior Court, Cumberland. County, and to which the defendant filed a general demurrer. The presiding justice overruled the demurrer and the defendant took exceptions.</p> <p>(Indictment.)</p> <p>The grand jurors for said State upon their oath present that Dana H. Miles of Portland, in the County of Cumberland, on the fourth day of June,- in the year of our Lord one thousand eight hundred and ninety-four, at said Portland, was a police officer of said Portland, duly and legally appointed and authorized to discharge the duties of that office; that as such police officer, it was then and there the duty of said Dana H. Miles to arrest one John Murphy, the younger of that name, who was then and there, on said -fourth day of June, unlawfully concerned in a certain lottery, scheme and device of chance not authorized by law in said State, by then and there having in his possession, with intent to sell and dispose of the same, certain certificates, tickets, shares and interests in said lottery, scheme and device of chance, as he, the said Dana H. Miles, then and there well knew; nevertheless, the said Dana H. Miles, not regarding the duties of his office as aforesaid, but perverting the trust reposed in him, and contriving and intending the citizens of this State for the private gain of him, the said Dana H.- Miles, to oppress and impoverish and the due execution of justice as much as in him lay to hinder, obstruct and destroy, on said fourth day of June, in said Portland, under color of his said office as a police officer as aforesaid, a certain sum of money, to wit, the sum of five dollars, for-not arresting said John Murphy, the younger of that name, and for not interfering with said John Murphy, the younger of that name, in the prosecution of said business of being unlawfully concerned in a certain lottery, scheme and device of chance not authorized by law in said State as aforesaid, the said Dana H. Miles from the said John Murphy, the younger of that name, unlawfully, unjustly and extorsively did accept, receivé and have, against the duties of his said office, to the great hindrance of justice and against the peace of said State.</p> <p>The second count alleged the same offense to have been committed on the eleventh day of the same month.</p> <p>(Third Count.) . . . that said Dana H. Miles afterwards, to wit, on the tenth day of June, in the year of our Lord one thousand eight hundred and ninety-four, at said Portland, was an officer having power to serve criminal process within said Portland, to wit, a police officer of said Portland, duly and legally appointed and authorized to discharge the duties of that office; that by virtue of his authority as such police officer, he then and there seized in a certain tenement situated on the northerly side of Pore Street, so-called, in said Portland, certain intoxicating liquors, a more particular description of which said intoxicating liquors is to the grand jurors unknown, which said intoxicating liquors were then and there kept and deposited in said tenement and intended for illegal sale in said State, by one Lewis Levi, as he, the said Dana H. Miles, then and there well knew; that it was then and there the duty of said Dana PI. Miles as such officer, to institute proceedings against said Lewis Levi for having violated as aforesaid, the laws relative to the illegal sale and the illegal keeping of intoxicating liquors; nevertheless, the said Dana H. Miles, not regarding the duties of his office as aforesaid, but perverting the trust reposed in him, and contriving and intending the citizens of this State for the private gain of him, the said Dana PI. Miles, to oppress and impoverish and the due execution of justice as much as in him lay to hinder, obstruct and destroy, on said tenth day of June, at said Portland, under color of his said office as a police officer as aforesaid, a certain sum of money, to wit, the sum of ten dollars, for not instituting proceedings against him, the said Lewis Levi, for having violated the laws against the illegal sale and the illegal keeping of intoxicating liquors as aforesaid, he, the said Dana H. Miles, from the said Lewis Levi, did then and there rmlawfully, unjustly and extorsively accept, receive and have, against the duties of his said office, to the great hindrance of justice and against the peace of said State.</p> <p>(Fourth Count) . . . that said Dana H. Miles afterwards, to wit, on the fourteenth day of July, in the year of our Lord one thousand eight hundred and ninety-four, at said Portland, was an officer having power to serve criminal process within said Portland, to wit, a police officer of said Portland, duly and legally appointed and authorized to discharge the duties of that office; that he, the said Dana H. Miles, did then and there on said fourteenth day of July, find in a certain tenement situated on the northerly side of Federal Street, so-called, in said Portland, certain intoxicating liquors, a more particular description of which said intoxicating liquors is to the grand jurors unknown, which said intoxicating liquors were then and there kept and deposited in said tenement and intended for illegal sale in said State; that it was then and there the duty of said Dana H. Miles as such police officer, to endeavor to ascertain the owner and keeper of said intoxicating liquors so then' and there kept and deposited as aforesaid, and to further endeavor to ascertain the person or persons intending to unlawfully sell such intoxicating liquors so then and there kept and deposited as aforesaid, and it was then and there the duty of said Dana H. Miles as such police officer to institute proceedings against the owner and keeper of said intoxicating liquors so then and there kept and deposited as aforesaid, and it was then and there the duty of said Dana H. Miles as such police officer to institute proceedings against the person or persons intending to unlawfully sell such intoxicating liquors so then and there kept and deposited as aforesaid; nevertheless, the said Dana H. Miles, not regarding the duties of his office as aforesaid, but perverting the trust reposed in him and contriving and intending the citizens of this State for the private gain of him, the said Dana H. Miles, to oppress and impoverish and the due execution of justice as much as in him lay to hinder, obstruct and destroy, on said fourteenth day of July, at said Portland, under color of his said office as a police officer as aforesaid, a certain sum of money, to wit, the sum of twenty-five dollars, for not endeavoring to ascertain the owner and keeper of said intoxicating liquors so then and there kept and deposited as aforesaid, and for not endeavoring to ascertain the person or persons intending to unlawfully sell said intoxicating liquors so then and there kept and deposited as aforesaid, and for not instituting proceedings against the owner and keeper of said intoxicating liquors so then and there kept and deposited as aforesaid, and for not then and there instituting proceedings against the person or persons intending to unlawfully sell such intoxicating liquors so then and there kept and deposited as aforesaid, the said Dana H. Miles from one William H. Lord did unlawfully, unjustly and extorsively accept, receive and have, against the duties of his said office, to the great hindrance of justice and against the peace of said State.</p> <p>(Fifth Count) . . . that said Dana H. Miles afterwards, to wit, on the twenty-seventh day of September, in the year of our Lord one thousand eight hundred and ninety-four, was an officer having power to serve criminal process within said Portland, to wit, a police officer of said Portland, duly and legally appointed and authorized to discharge the duties of that office; that by virtue of his authority as such police officer, he then and there seized in a certain tenement situated on the easterly side of Monument Square, so-called, in said Portland, certain intoxicating liquors, a more particular description of which said intoxicating liquors is to the grand jurors unknown, which said intoxicating liquors were then and there kept and deposited and intended for unlawful sale within said State by one Henry A. Harding, as he, the said Dana H. Miles, then and there well knew; that it was then and there the duty of said Dana H. Miles as such officer, to institute proceedings against said Henry A. Harding for having violated as aforesaid the laws relative to the illegal sale and the illegal keeping of intoxicating liquors; nevertheless, the said Dana H. Miles, not regarding the duties of his office as aforesaid, but perverting the trust reposed in him and contriving and intending the citizens of this State for the private gain of him, the said Dana PI. Miles, to oppress and impoverish and the due execution of justice as much as in him lay to hinder, obstruct and destroy, on said twenty-seventh day of September, at said Portland, under color of his said office as a police officer as aforesaid, a certain sum of money, to wit, the sum of ten dollars, as a consideration for using his influence and endeavoring in divers other ways to have such proceedings to be so instituted against said Henry A. Harding, dismissed, he, the said Dana H. Miles, from said Henry A. Harding, did unlawfully, unjustly and extorsively accept, receive and have, against the duties of his said office, to the great hindrance of justice and.against the peace of said State.</p> <p>Since the respondent is not a sheriff, deputy sheriff, coroner or constable, the case does not come within the provisions of R. S., c. 122, § 11, and the indictment is founded upon the common law.</p> <p>Bribery: Am. & Eng. Enc. of Law, Vol. II. p. 530; 3 Greenl. Ev. § 71; 2 Bish. Or. Law, § 25; Watson v. State, 39 Ohio St. 123; State v. Pilis, 33 N. J. L. 102, S. O. 97 Am. Dec. 707, and note; 2 Whar. Cr. Law, § 1572; Walsh v. People, 65 111. 58, S. C. 16 Am. Rep. 569; People v. Markham, 64 Cal. 157, S. C. 49 Am. Rep. 700 ; Com. v. Lapham, 156 Mass. 480.</p> <p>Allegation of “corruptly” not necessary when the act is charged as done unlawfully, unjustly and extorsively. State v. Jackson, 73 Maine, 91.</p> <p>As to the receiver of the bribe the offense is not complete by mere acceptance. The money must be corruptly accepted; that is, he must promise the giver to do a corrupt act; must intend to keep that promise and must perform it.</p> <p>The distinction between the giver and the receiver must be observed in setting out the offense in the indictment, which must allege all the material facts necessary to be proved to secure a conviction. State v. PhiTbrick, 31 Maine, 401.</p> <p>If all the allegations of the indictment may be true, and yet constitute no offense, the indictment is insufficient. State v. Grodfrey, 24 Maine, 232; State v. Chapman, 68 Maine, 477.</p> <p>The indictment against the alleged bribe-taker should set out the corrupt action of the respondent, for which the bribe constituted the inducement, by certain and not indefinite averment and allegation.</p> <p>In no count is it alleged that the money was accepted as a bribe to induce Miles to refrain from doing an official act.</p> <p>The allegations should have been supplemented by further averments that the money was accepted as a bribe to induce the respondent to refrain from doing some specific act which it was his official duty to perform; or by averment of a promise by the respondent that he “would not arrest,” “would not prosecute,” “would use his influence,” &c., and by further allegations that he “did not arrest,” “did not prosecute,” “did use his influence by doing specific acts set out and otherwise,” etc.</p> <p>In the first and second counts it does not appear what lottery scheme, or device of chance Murphy was concerned in. “A certain lottery,” &c., is too indefinite, in an indictment. While the corrupt acceptance of a bribe, by the respondent, is the gist of the prosecution in the case under discussion, yet the facts must be alleged with all the certainty and formality that would be required in an indictment against Murphy for being concerned in a lottery.</p> <p>The same argument applies to the third, fourth and fifth counts. The respondent is not informed by the indictment as to the place where liquors were deposited or seized.</p> <p>In á certain tenement situated “bn the northerly side of Fore street” (as in the third count), “on the northerly side of Federal street” (as in the fourth count), and “on the easterly side of Monument Square” (as in the fifth count), are all insufficient descriptions of the place. Such a description would not convey the premises, and would not confine a search to one building or place, and is therefore insufficient. State v. Robinson, 33 Maine, 564 ; State v. Bartlett, 47 Maine, 388.</p> <p>There is no attempt to identify the place by giving the number of the street, or the name of the occupant of the tenement. There is no allegation that the location of the tenement was “to the grand jurors unknown.” Indictment insufficient. Com. v. Bball, 15 Mass. 239.</p>

On Exceptions by Plaintife. This was an action of replevin tried in tbe Superior Court, in Kennebec County by the presiding justice without tbe intervention of a jury, at tbe September term, 1895, subject to exceptions in matters of law. Plea, tbe general issue, with brief statement denying title in tbe plaintiff and alleging title or right of possession in tbe defendant William H. Libby, in bis capacity of deputy sheriff.

On Exceptions by Defendant. This was an action of debt to recover taxes due from the defendant to the town of Wellington for the years 1889, ’90, ’91, ’92 and 1898. The declaration contained a separate count for the taxes of each year, and mutatis mutandis were the same.

Agreed Statement. The case is stated in the opinion. The non-payment by Williams of assessments Nos. 90 and 91 on or before September 15th, 1893, did not simply operate a mere suspension or temporary cessation of his interest, but per se, without any affirmative act or proclamation by the defendant corporation, worked an absolute forfeit of any benefit to be derived from the association. Richards v. Maine Benefit Asso. 85 Maine, 101.

<p>Trusts.. Dead. Gifts Gausa Mortis. JR. 8., c. 73, § 11.</p> <p>It is provided by statute that "there can be no trust concerning lands, except trusts arising by implication of law, unless created or declared by some writing signed by the party or his attorney.” R. S., c. 73, § 11.</p> <p>Oral evidence is undoubtedly admissible to establish a fact from which a trust may arise by implication of law, such as the payment of the consideration by one for land conveyed to another; but in the absence of any allegations of fraud or of facts which, would constitute an equitable estoppel, such evidence cannot be received to prove any declarations of a trust, without violating the explicit provisions of the statute.</p> <p>Declarations of the grantee that he holds the property in trust are not sufficient to show a trust estate.</p> <p>Neither can a gift of real estate .be sustained as a donatio causa mortis, for that only extends to the personalty.</p> <p>An absolute conveyance of real estate cannot be thus safely employed to accomplish the purpose of a last will and testament. Such a doctrine would be destructive of all certainty and security respecting titles to landed property.</p> <p>In this case the deed of warranty from the plaintiff to her daughter was absolute on its face, containing no allusion to any trust or defeasance.</p> <p>It was not alleged or suggested that any trust was subsequently created or declared by any writing signed by the party. It was not claimed that any trust resulted from the transaction by implication of law. Held; that the testimony reported tends to prove an oral agreement to reconvey the property, if the grantor recovered, that is void under the statutes of this State.</p>

<p>Exceptions by Dependants.</p> <p>The case appears in the opinion.</p> <p>In a suit against a foreign defendant in personam and in rem against the lumber attacked, in order to maintain tbe action or get a valid judgment against either, tbe defendant should appear in court, or be legally and properly summoned to appear in court, and the owners of tbe lumber attached should be properly and legally notified. In other words, tbe court should have jurisdiction over both.</p> <p>This contention is sustained by practice and precedent ever since the earliest statute was enacted, giving the lien. Other methods are provided for enforcing other kinds of liens, but the method always adopted in proceedings to .enforce liens on logs and lumber, under the statute, has been by suit against the operator, the employer, and an attachment of the lumber upon which the labor was performed. No case can be found where a log-lien judgment has been rendered, unless the court had jurisdiction over the defendant in the suit.</p> <p>The authorities throw very little light upon the question here involved, but the judgment of the court in Parks v. Crockett, 61 Maine, 489, would seem strongly to indicate that the defendant must be in court or summoned into court, as a condition precedent to the entry of final judgment. There the judgment was to be “final unless the sum is reduced, or the action defeated upon an issue between the plaintiff and the defendant.” This would seem to indicate the necessity of an adjudication of the rights of plaintiff and defendant either by hearing or default of defendant, — of course after he was duly summoned into court.</p> <p>The statute seems to indicate throughout that a defendant must be legally in coimt. R. S., c.' 91. Section 38 provides for apportioning costs; § 42 for summoning in the administrator of the employer, or debtor, if deceased; § 45 provides for a judgment against the defendant.</p> <p>It is true, that judgment may be issued against either, provided both are in court, and justice requires it; but nowhere is there any provision for entering judgment against the lumber unless there is a defendant in court, or one legally summoned into court. The provisions for issuing separate execution against defendant for excess above amount protected by lien, and for the apportionment of costs and discontinuance as to any defendant, are all upon the assumption that there must be a defendant, or defendants, in court.</p> <p>The defendant was not in court, nor legally summoned into court. There was no personal service on him. R. S., c. 82, § 2T -</p> <p>In order to justify the court in ordering notice by publication, two things must appear: the necessary failure to get personal service, and an attachment of his goods or estate. The court must be satisfied of these facts.</p> <p>But whether or not it should appear that the defendant is not within the officer’s precinct, it should appear of record, by the notice published or otherwise, that he had no tenant, agent, or attorney within the state. That is, it should appear that the court so found. In this case it does not appear in the notice or elsewhere.</p> <p>There was no adjudication upon any of the matters upon which the court must be satisfied before issuing the statute order of notice to defendant.</p>

<p>On Motion and Exceptions by Plaintiee.</p> <p>The case appears in tbe opinion.</p>

<p> Architect. Agent. Compensation. </p> <p>An architect is not a contractor who enters into an agreement to construct a house for its owner, but is his agent to assist him in building one.</p> <p>The responsibility resting on an architect is essentially the same as that which rests upon the lawyer to his client, or upon the physician to his patient, or which rests upon any one to another where such person pretends to possess some skill and ability in some special employment, and offers his. services to the public on account of his fitness to act in the line of business for which he may be employed.</p> <p>The undertaking of an architect implies that he possesses skill and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply in the given case his skill and ability, his judgment and taste, reasonably and without neglect. But the undertaking does not imply or warrant a satisfactory result. It will be enough that any failure shall not be by the fault of the architect. There is no implied promise that miscalculations may not occur. An error of judgment is not necessarily evidence of a want of skill or care, for mistakes and miscalculations are incident to all the business of life.</p> <p>The plaintiff, a professional architect, was employed by the defendant to prepare plans and specifications for a house. In an action to recover compensation for services so rendered, the defendant, not relying on any charge against the plaintiff of fraud or negligence, set up at the trial that the services were not beneficial to him for the reason that they were performed in a manner contrary to his express direction and wishes; Upon this contention by the defendant the court instructed the jury that if the architect was explicitly told by the defendant, in addition to other things, that the building he was designing must not exceed a certain named cost, the architect should have made plans accordingly or stated that he could not do it and thereupon declined to do it; and that if he undertook to make plans with the restriction as to the cost of the building, he must do it before he could recover any pay. Held; that tlie instruction was erroneous. It punishes the plaintiff for what might be merely an honest mistake, or miscalculation.' It leaves out the elements of care and good faith. It does not require that the plaintiff bound himself to the agreement set up by thé defendant. The ruling implies a guaranty or warranty, when none was testified to or really pretended.</p>

<p>Exceptions by Plaintiee.</p> <p>This' was an action to recover damages for injuries sustained by reason of an alleged defective condition of tbe defendant’s borse railroad.</p> <p>The plaintiff claimed that while he was driving across the track of the railroad, in the street of. the city of Lewiston, the runners of his sleigh entered a depression between the rails, and as the runners struck against the further rail, and which he alleged was elevated above the road-bed between the rails, he was thrown from his sleigh and injured.</p> <p>The verdict was for the defendant.</p> <p>The case appears in the opinion.</p> <p>A street railway company is bound at common law, as well as by statutes, to keep and maintain its entire road including rails and road-bed in a reasonable condition of repair with the rest of the highway, so that the public may use the whole way with as little inconvenience and liability to injury as possible; and is liable for damages.</p> <p>Counsel cited: Western Paving ¿j* Sup. Co. v. Citizen St. R. Co., 10 L. R. A. 770; 128 Ind. 525, 540 ; McKenna v. Met. R. R. Co., 112 Mass. 55; Memphis P. P. B. R. Co. v. State, 87 Tenn. 746; Oshlcosh v. Mil. # L. W. B. Co., 74 Wis. 534; Am. & Eng. Ency. of Law, Yol. 23, pp. 978 — 9, 983 and note; Osgood v. Lynn Boston B. B. Co., 130 Mass. p. 493; Cent. B. Co. v. State, 52 N. J. L. 220 ; Gillett v. West. B. Corp., 8 Allen, 560 ; Elliott on Roads & Streets, p. 594; Boehwell v. 3d Ave. B. B. Co., 64 Barb. 434, aff. in 53 N. Y. 625; Fash v. 3d. Ave. B. B. Co., 1st Daly, 143 ; Worster y. J$d St. etc. B. B. Co., 50 N. Y. 205 ; Conroy v. S3d St. B. B. Co., 52 How. Pr. 49; Cline v. Ores. City B. B. Co., 43 La. Ann. 327, (26 Am. St. Rep. 187); Woodman v. Metrop. B. B. Co., 149 Mass. 335; Schild v. Cent. Park B. B-Co., 133 N. Y. 446, (28 Am. St. Rep. 658). Penn. etc. Canal Co. y. Gtraham, 63 Pa. St. 296; Carpenter v. Cent. Park etc. B. Co. 11 Abb. Pr. (N. S.) N. Y. 416 ; Elliot on Roads and Streets, p. 594; Schild v. Cent. Park etc. B. Co., 16 N. Y. Super. Ct. 701; Ashland St. B. Co. v. Ashland, 78 Wis. 271; Osgood v. L. B. B. B., 130 Mass. 493.</p>

<p> Sales. Contracts. Burden of Proof. Pleadings. </p> <p>On April 2, 1890, the plaintiffs and the defendant entered into a written contract wherein the plaintiff's agreed to sell and deliver to the 'defendant, and the defendant agreed to purchase and receive all of the ice in a certain ice house, the quantity of which was agreed by the parties to be three thousand and thirty-six tons. The ice was to be delivered by the plaintiff's, and at their expense, on board vessels to be furnished by the defendant at Hallowell. where the .ice was stored, properly dunnaged for a voyage to New York.</p> <p>One of the provisions of the contract was as follows : "Said ice and house in which it is stored shall be under the care of the party of the first part, [the plaintiff's] until said ice is all shipped, without charge or expense to the party of the second part, or until July 1st, 1890, after which date the expense of the care of said ice and rental of the wharf where it was stored shall be at the expense of the party of the second part.” Subsequently the contract was modified by the parties to the extent that the defendant should himself transfer the ice from the house to the vessel and be allowed therefor the actual cost of the same. The defendant commenced taking and shipping ice in the latter part of June and completed the shipments about the 19 th of July, 1890.</p> <p>The plaintiff's sued to recover the contract price for the ice, less the amount of payments made upon account and the cost of taking the ice from the house to tlie vessel. Tlie plaintiffs’ declaration contained two counts, in one of which the contract was declared upon; the other was the common count upon the account annexed for ice sold and delivered. It was contended by the defendant and set up in his brief statement under the general issue, that by reason of the plaintiffs’ failure to take such care of the ice and the house in which it was stored up to July 1st, as the contract called for, a large quantity of the ice was lost by wasting and melting. This was one of the principal issues at the trial, — much evidence being introduced upon both sides as to the manner in which the ice and house were cared for between the date of the contract and the first day of July following.</p> <p>The presiding justice instructed the jury that the burden of proving that the plaintiff's had not taken reasonable and proper care of the ice was upon the defendant. Held; that this instruction was erroneous.</p> <p>Also; that the obligations assumed by the plaintiffs in the written contract were not only to sell and deliver the specific ice therein referred to, but also to exercise reasonable diligence in taking care of the house and its contents until July 1st, and that the agreement of the defendant was not simply to pay the sum named in the contract for the ice, but that this sum included compensation for the care of the ice during the period named.</p> <p>Also; that the burden was upon the plaintiffs to satisfy the jury, by a reasonable preponderance of the whole evidence, that they had performed this substantive portion of their contract.</p> <p>Also; That the allegation in the defendant’s brief statement, that the plaintiffs’ care of the ice was of such a negligent, careless and unskilful character that a large quantity of the ice wasted and melted away, was unnecessary; and that the defense could have been made under the general issue. The defendant’s plea and brief statement set up no new matter in confession and avoidance, but was simply an allegation that the plaintiff's had not performed an important obligation which the contract imposed upon them; it was a denial of the allegation of due care contained in the plaintiff's’ writ.</p>

<p>Game. Possession. Marhet-Man. B. S., c. 30, § 20; iStat. 1891, c. 95.</p> <p>Under R. S., c. 30, § 20, as amended by Chap. 95, Stat. of 1891, the possession of but one moose during the whole of one open season is not sufficient evidence of a violation of law by its illegal capture so as to throw the burden upon the respondent of explaining such possession.</p> <p>A market-man who deals in game, as permitted by this statute, has the same right that every other person has of killing not exceeding one moose in one year. And the possession by him of the carcass of a moose, at a place other than his market, is not evidence that the same was illegally taken or killed, notwithstanding that he has had other moose, during the same open season, at his established place of business for sale to local customers.</p>

<p>Deeds. Evidence. Judgments. Town-Lines. B. S., c. 3, § 67.</p> <p>Tbe adjudication of commissioners appointed by the court, under R. S., c. 3, § 67, to ascertain the lines in controversy between adjoining towns, can in no way affect the ownership of private property or determine controversies between individuals.</p> <p>That statute provides a method for ascertaining the location of a line in controversy between adjoining towns and makes the determination of commissioners appointed by the court conclusive upon the towns as to the location of the town line for all purposes; but a proceeding under it was never contemplated for the purpose of passing upon and determining private controversies.</p> <p>The constitution of this State guarantees to every one injured in his property, a remedy "by due course of law,” and in all controversies concerning property a trial by a jury and a right to be heard by himself or his counsel. Held; that a proceeding under B. S., c. 3, § 67, is not a "due course of law” for the settlement of controversies concerning property of private land owners, whose land was upon either side of the town line, who were not parties to the proceedings, and were not heard and could have had no opportunity to be heard upon the question of their respective ownerships, because that question was not involved.</p> <p>Where a line described in a deed or charter by course does not correspond with that indicated by monuments, either referred to in the deed or charter, or established in the original survey, the latter will control, because monuments are the best evidence of the true line; and the course must yield, whenever the monuments are certain or are capable of being made certain. But if the monuments cannot be found or their locations established, then resort must be had to the course as the only other description given.</p> <p>Evidence of the recognition of one or the other of two lines respectively claimed by the parties to be the true line, by monuments erected since the line was originally located, and by fences and occupation, is admissible as having some tendency to show where the line was first established; but the value and weight of such evidence, as w'ell as the identity of disputed monuments and their original locations, are questions of fact for the jury.</p> <p>Where the testimony upon these questions is conflicting, the verdict of the jury will not be disturbed unless the court is satisfied that it was clearly wrong.</p>

<p>On Exceptions by Plaintiff.</p> <p>This was an action on the case for personal injuries caused, as the plaintiff alleged, by a defective elevator. At the close of the plaintiff’s testimony the presiding justice ordered a nonsuit, and the plaintiff took exceptions to this ruling.</p> <p>The facts are stated in the opinion.</p> <p>(Declaration) “ . . . for that said defendants, at said Sanford on the twenty-fifth day of June, 1891, were the owner of certain mills and buildings in said Sanford with the machinery therein used by said Sanford Mills in the manufacture of. carriage robes, horse clothing and mohair plushes; that an elevator ran from the ground floor of one of said mills or buildings, called old number two up through the building to the floor above and was used by said defendants to get their stock and goods from the floor above down to the ground floor; that said elevator and the machinery running the same were by the negligence and default of the defendants, constructed unsafely, and with defective and improper materials, and were defective, out of repair and in unsafe condition and thereby dangerous and unfit for the purposes for which they were used as aforesaid, which the defendants well knew, but of which the plaintiff was ignorant; that the plaintiff on the twenty-fifth day of June, A. D. 1891, was employed by defendants as a laborer, that it was a part of the work and , labor for which said plaintiff was employed by said defendants as aforesaid to use and operate said elevator in carrying and getting goods and stock from the upper floors of said building to the ground floor, and by reason of said defective and dangerous condition and want of repair of said machinery and elevator as aforesaid, on the twenty-fifth day of June, 1891, and while the plaintiff was employed by said defendants as aforesaid, and while acting in the line of his duty under said employment, using due care, the elevator fell, striking upon the left hand of the plaintiff, breaking, crushing and mangling his said hand in such manner that it was necessary for said hand to be amputated, thereby rendering him unfit and unable to do any manual labor, whereby he suffered great pain and was put to a large expense for surgical and medical attendance and medicines.”</p> <p>The facts upon which court ordered nonsuit were not so clear that, as matter of law, plaintiff could not recover. Court was not to pass upon weight of evidence, but only to determine whether there was evidence which should be submitted to the jury. Lawless v. Conn. River R. R., 136 Mass. 5; Polley v. Lenox Iron Works, 4 Allen, 333; Forsyth v. Hooper, 11 Allen, 419; Hough v. Railroad Co., 100 U. S. 223 ; Caynor v. Old Colony R. R. Co., 100 Mass. 208; Wood, Master and Servant, pp. 771 and 777.</p> <p>There is no controversy about the facts, but only a question whether from certain facts proved, the plaintiff can be charged with competent means of knowledge of the danger, sufficient to charge him with having assumed the risk. Whether the plaintiff had competent means of knowledge of the danger, and knew and appreciated the risk, should have been left to the jury. Railroad Company v. Stout, 17 Wall. U. S. 657 ; Packet Company v. McCue, 17 Wall. U. -S. 508; Scanlon: y. B. $■ A. B. R. Co:,- -147-Mass. 487; Patnode v. Warren Cotton Mill, 157 Mass. 288. ,</p> <p>Servant is under no obligation to' make close inspection to discover defects. Wood, Master and Servant, pp. 773-4.</p> <p>Court cannot hold that plaintiff was in fault- for not assuming that the defendants had neglected their duty to him when-it was more reasonable and likely that the cause of elevator not moving,- - when shipped, was not-' through the negligence of any person, but that the speed or power had been shut off for good reasons.- •• •</p> <p>When the plaintiff réaclied the bottom floor and sawthe chain hanging loose, he had a right to assume that the dogs were, in repair and had caught and was holding the elevator, and that there was no danger- in. working under and around 'the elevator. Northern Pacific R., R. Co. v. Herbert, 116 ,U. S. p. 655; Wood, Master and Servant, p. 763, § 375.... - .</p> <p>It must appear that plaintiff understood and appreciated the risk and danger of injury before he can be said to have assumed the risk. Prendible v. Conn. River Manuf. Co. 160..Mass. 131 — 13.9; Fitzgerald v. Conn. River, Paper Co. 155 Mass.,155 ;.. Mahoney v. Bore, 155 Mass. 513.</p> <p>It is only when the servant, with full notice of risk he assumes, chooses to enter the employment, that’ the master is relieved from liability. No assent can be implied when there is no knowledge of hazard; there must be an intelligent choice to assume the danger. Wood, Master and Servant, pp. 729, 741.</p> <p>One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without appreciating the danger. Mundle v. Hill Mfg. Co. 86 Maine, p. 405.</p> <p>Allowing machinery to remain out of repair, when its condition is brought to the master’s notice, and not known by the servants operating it, is culpable negligence.</p> <p>It is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performance of this service, and another thing to know or appreciate the risk resulting, or which may follow, from such defects. The mere fact that servant knows the defect may not charge him with contributory negligence or the assumption of the risk growing out of it: the question is did he know, or ought he to have known, in the exercise of ordinary common sense and prudence' that the risk, and not merely the defect, existed.</p> <p>When a servant enters upon service with dangerous machinery, he has a right to rely upon it that the master will discharge his duty fully, both as to the selection of the appliances and his watchfulness in keeping them in repair; and while he is bound to see defects which are obvious, yet he is under no obligations to make a close .inspection of the appliances to discover whether it is defective. As he has a right to presume that his employer had done his duty in that respect, therefore, in all cases, the risk assumed by the servant is to be measured by this duty on the master’s part. ' 14 Am. & Eng. Ency. pp. 841, note, 896; Wood, Master and Servant, page 773-4. . ■</p> <p>The more rude and cheap the machinery, and the more liable on that account- to cause.-injury to. servant, the greater the obligation of the master to make up for its defects, by attention necessary to prevent, such injury. Dixon v. RanJcin,. 14 Court of Sess. 420, cited from Buzzell y. Laconia Manuf. Qo., 48 Maine, p. 119.</p> <p>Plaintiff had notice that the elevator'was out of repair. Counsel cited: Walker v. Redingtón Lumber Qo., 86 'Maine, 191; Qonnors v. Morton, 160 Mass., 333; Scanlon v. B. $ A. R. R., 147 Mass. 484, 487; Myers v. Hudson Iron Qo., 150 Mass. 125. 134; Lothrop v. Ditch. R. R., Id. 423; Anderson v. Qlark, 155 Mass. 368 ; Qoombs v. Ditch. R. R., 156 Mass. 200; Derren v. O. Q. R. R.,' 155 Mass. 513, 519 ; Gtoldthwait v. Haverhill ¡fe., Ry., 160 Mass. 556-7; Wormell v. Me. Qent. R. R., 79 Maine, 405-6 ; Wood, Master and Servant, p. 638; 14 Am. & Eng. Ency. p. 859; Buswell, Personal Injuries, 215; Mellor v. Merch’ts Mfg. Qo., 150 Mass. 362 ; Qonley v. Am. Exp. Qo., 87 Maine, 352 ; Shanny v. Andró. Mills, 66 Maine, 420 ; Mundle v. Hill Mfg. Qo., 86 Maine, 400.</p>

On Report. This was an action of trespass brought by the assignees in insolvency of Frank W. Lincoln against the defendant, as sheriff of Penobscot County, for the act of his deputies in attaching, seizing on execution, and selling a certain building situated on leased land in Indian Township, Number 4, known as the Frank W. Lincoln Hotel, and owned at the time of the attachment by Lincoln.

On Report. This was an action of assumpsit to recover $617.98 for rafting and booming the defendants’ logs and for wedges and raft rope furnished at Machias, during the season of 1894. The case is stated in the opinion.

On Report and Exceptions by Plaintiee. This was an action of trespass q. c. against the street commissioner of the city of Rockland for removing certain trees, digging up the soil, and other trespasses in front of the plaintiff’s house on Main street, while constructing a sidewalk in the month of October, 1894. The defendant justified his act as road commissioner of Rockland, alleging that the trees were within the located limits of the highway.

<p>On Exceptions by Plaintiee.</p> <p>This was an action on a promissory note given by tbe defendant to tbe plaintiff for tbe service of a stallion. Tbe case was tried to a jury in tbe Superior Court for Kennebec county. Tbe presiding justice ordered a verdict to be returned for tbe defendant, and tbe plaintiff took exceptions.</p> <p>Tbe case appears in tbe opinion.</p>

On Report. The case appears in the opinion. Prior rejection: The clauses of R. S., c. 49, § 90, relied on by-defendant, relate to fire and not life insurance, as shown by the context of the entire section. The words “risks,” “omission” and “ misdescription ” are applicable only to fire insurance. It is not possible to include within the word “misdescription” a false statement.

On Motions and Exceptions by Defendant. This was an action on the case for personal injuries received by the plaintiff on the thirteenth day of July, 1894, by the fall of a derrick while in the United States government employ in the construction of fortification work at Cape Elizabeth. The case was tried to a jury in the Superior Court, Cumberland County, where a verdict was rendered for the plaintiff for $3,100.

Exceptions by Defendant. This was an indictment for libel found in the Superior Court, for Cumberland County, and to which the defendant filed a demurrer. The presiding justice overruled the demurrer and the defendant excepted.

<p>Elections. Ballots. Stickers. Stat. 1891, c. 102, § 10.</p> <p>The statute of this State regulating voting requires the name of the person desired to be voted for, and not printed on the ballot, to be inserted in the blank space left for that purpose.</p> <p>A sticker placed over one of the printed names is not a compliance with the statute.</p>

<p>Attachment. Record. R. S., c. 81, § 26.</p> <p>When an attachment of personal property is made in an unincorporated place, it may be recorded in the office of the clerk of the oldest adjoining town in the county. R. S., c. 81, § 26.</p> <p>Held; that an attachment made in Township 36, Washington County, will not be preserved by recording it in the clerk’s office of the town of Wesley, which being' the oldest and nearest town to Township 36 nowhere adjoins it.</p>

On Report. Tbe case appears in tbe opinion. Tbe fact tbat tbe parties were tenants in common of tbe logs does not affect tbe plaintiff’s rights bere. Tbis was a contract respecting labor bestowed upon tbe common property and “the law imposes no disability upon part owners of personal property to make such a contract with each other.” Chapman v. Barnes, 67 Maine, 452.

On Report. The case is stated in the opinion. Held: “ tbat tbe abutter owned tbe fee to tbe center of tbe street, tbat to maintain a private action for a public nuisance, tbe injury sustained must be such as not merely differs in degree but in kind, from tbat which is sustained by tbe public.” Tbe remedy sought was denied and tbe court said, “tbat it is difficult to perceive bow such…

On Motion by Dependant. This was an action in which the plaintiff sought to recover damages resulting from the publication of certain libellous newspaper articles by the defendant.

On Exceptions by Defendants. Tbe case appears in tbe opinion. We rely upon two propositions in support of tbe exceptions; one of law and one of fact. Tbe proposition of law is tbis: a party cannot recover damages for tbe taking of land in tbe laying out or alteration' of a bigbway, to wbicb be bad no title at tbe time of the adjudication by tbe county commissioners. That is, be cannot recover damages for tbe taking of land wbicb be purchased after their adjudication.

<p> Trespass. Mortgage. ITusband and Wife. Trusts. </p> <p>In an action of trespass for breaking ancl entering tlie plaintiff’s close and carrying away the crops, the question was whether, at the time of the alleged trespass, the plaintiff' or his wife, under whom the defendants justified, had the better title to the close. It appeared that the land in question consisted of two parcels. The first, previously owned by the husband, had been conveyed by him to his wife. The second was then purchased and the deed taken in the wife’s name; and to secure the purchase money both husband and wife gave their notes — the wife giving a mortgage of both parcels to secure these notes. The notes were paid, but whether wholly by the husband, or partly by the husband and partly by the wife, was a disputed question between them. The husband made the last payment and the notes were given up to him; but instead of having the mortgage discharged, he took an assignment of it to himself and had it recorded. The wife afterwards procured a discharge by the mortgagee and had it entered of record. The husband claimed title and possession under his assignment, and his equitable title to the land; the wife, denying any equitable title in her husband, claimed title and possession upon the ground that the assignment of the mortgage to her husband, after the notes to secure which it had been given were paid, was inoperative and void; and that the discharge of the mortgage obtained by her was valid.</p> <p>Held; that the wife had the better title and the right of possession; and that as the defendants acted under her authority, their justification was complete.</p> <p>Also, that when the debt was contracted, the husband was not a mere surety for his wife but expected to pay the debt himself, and thus extinguish the mortgage and leave his wife’s title to the land unincumbered ;■ — hence, the assignment of the mortgage to him was inoperative and void.</p> <p>The presumption of the law is against an implied trust in favor of a husband who has paid for lands conveyed to his wife. To overcome this presumption the proof must be strong and clear.</p>

On Exceptions by Defendant. Tbis was an action of debt brought in the name of the Inhabitants of Bucksport against the defendant, Joseph L. Buck, to recover the sum of $259.57 for taxes assessed against the defendant upon his poll, personal property and real estate in the town of Bucks-port for the year 1888. At the April term, 1894, the case was referred to Hon. William P. Whitehouse, with right to except regarding matters of law.

<p>On Appeal by Dependant.</p>

<p>On Exceptions by Defendant.</p> <p>This was a proceeding begun by petition of tbe Maine Central Railroad Company, January 21, 1896, to tbe Railroad Commissioners in wbicb tbey represent tbat it possesses and operates a line of railroad from Portland to Skowbegan, passing tbrougb tbe town of Fairfield in tbe county of Somerset; tbat its railroad is crossed in tbe town of Fairfield by tbe electric railway of tbe defendant company; tbat tbe location of tbe crossing in question is at grade by means of crossing-frogs; that tbe crossing-frogs have heretofore been furnished and put in place at tbe sole expense of defendant company; that the existing condition of said frogs is suck as to make the construction and manner, of such crossing dangerous to public safety, including travelers upon tbe petitioner’s raikoad and on tbe defendant company.</p> <p>Tbe petitioner thereupon prayed tbe board of railroad commissioners for a change in tbe existing condition, construction and manner of such crossing; and tbat' the board would decide what changes are necessary, and bow such crossings shall be constructed and maintained, and bow tbe expense thereof should be borne, according to tbe provisions of tbe statute of 1895, c. 72, § 1.</p> <p>A hearing was had upon the petition by the board of commissioners January 31, 1896, who rendered the following decision:</p> <p>Decision oe Railroad Commissioners.</p> <p>“It was alleged upon the part of the Maine Central Railroad Company, and admitted on the part of the Waterville and Fair-field Railway and Light Company, that the crossing-frogs at the place named in the petition were in a -condition dangerous to public travel, and should either be repaired, or replaced, by new ones. It was contended on the part of the Maine Central Railway Co., that there is a well-recognized custom in relation to this matter, and that where electric railways have crossed steam railroads, the crossing-frogs have been invariably paid for by the electric railway company, and some evidence was introduced tending to show such a custom. It may be, and probably is, true, that electric railways have paid for crossing-frogs in the first instance, when electric railways have been constructed across steam* railroads, and when the electric railway was the last one located. We think such has been the custom.</p> <p>“But the electric railway claims that however that may be, this is a new and different question; that in this case the electric railway company paid for the crossing-frogs several years ago. The present claim is presented under section 1, chapter 72, of the Public . Laws of 1895, which provides that ‘any corporation or party operating such railroad may apply to the board of railroad commissioners for a change in the then existing condition, construction or manner of any such crossing, and said board shall determine what changes, if any, are necessary and how such crossing shall be constructed and maintained. The expense thereof to be borne as the railroad commissioners may order.’</p> <p>“It appeared in evidence that this electric railroad company, in the first instance, did pay for the crossing-frogs which are now used at this place. But said frogs having- become worn and, (we are satisfied) dangerous to public travel, we are asked, under the ■ statute to determine what changes, if any, are necessary, and how such crossing shall be constructed and maintained, and how the expense thereof shall be borne.</p> <p>“ There seems to have been no statute in relation to the expense of crossings, where one railroad crosses another, until 1885, chapter 336 ; but that statute evidently had relation to the crossing of steam railroads only, and the statute of 1895, chapter 72 now gives the railroad commissioners jurisdiction where one railroad of any kind crosses another; so the question presented here is under this last statute.</p> <p>“ But the counsel for the Electric Railway Company goes further, and in argument claims that by its charter, his company has the right for its electric cars to pass and repass across the rails of the Maine Central Railroad Company, and over the highway, the same as any other vehicle on said highway, and that the Maine Central Railroad Company is obliged, under the law, to make proper provisions for the passage of electric cars across its railroad tracks. He argues that the car of the electric railway is nothing more than the team or vehicle of any other person, or corporation, which has a right to pass and repass within the highway. He argues that the building of an electric railway along the highway in this state is not a new servitude upon the street, and is not a new use of the way, but is only a new and later mode of using the way. And he cites Briggs v. Horse Railroad Company, 79 Maine, 363.</p> <p>“The court in that case was called upon to decide simply whether the owner of the fee, over which the street was built, was entitled to additional compensation for the building of a street railway; and the court held that the building of such a street railway through the public street was not a new servitude upon the land, because it was only a new and later mode of using the way, for which the owner had once received compensation. We perceive no reason why we should attempt to extend the decision of the court in that case. The court could not have intended to hold that the street car had the same rights in the street that a vehicle of any other kind would have, for if so, what becomes of the law of the road, chapter 19, § 2, of the revised statutes, which provides that persons traveling with teams, when meeting another traveling in an opposite direction, shall turn to the right of the middle of the traveled part of the way; because tbe word ‘team,’ by section one means all kinds of conveyances on sucb ways for persons and property.</p> <p>“ If, in tbe later case, tbe court intended to lay down any such rule, as is bere contended for, why does it become necessary to obtain a charter from tbe legislature, or under tbe general law, for persons or corporations to run electric cars in tbe streets and ways of cities and towns?</p> <p>“We assume tbat tbe legislature, by P. L. of 1895, chap. 72 intended to give tbe board of railroad commissioners full jurisdiction in relation to tbe matter of crossings of railroads of any kind, subject to tbe appeal provided in tbat statute, and we bave heretofore acted upon tbat assumption.</p> <p>“Under this statute tbe matter of apportioning the expense of constructing and maintaining such crossings of electric railways with steam railroads has been before this board at eight different locations since this statute of 1895 was in force, and in every instance tbe board has put tbe whole expense, not only of constructing but of maintaining sucb crossings, upon tbe electric railway company, when such electric railway company was tbe one last located; and in no instance has there been any objection upon tbe part of tbe electric railway company to paying tbe expense of constructing and maintaining sucb crossing-frogs.</p> <p>“At three of these crossings, which were considered unusually dangerous, tbe board has ordered signal officers to be stationed, at tbe joint expense of tbe two companies; but tbe expense of constructing and maintaining tbe crossing-frogs has been in each case put upon tbe railway last located.</p> <p>“Tbe legislature of this State, by cbap. 336 of tbe P. L. of 1885, deemed it equitable when steam railroads cross each other at grade, to put tbe expense of constructing and maintaining a suitable signal station at sucb crossing upon tbe parties operating tbe railroad last located, but tbat tbe signal officer should be kept at tbe joint expense of tbe parties operating tbe railroads.</p> <p>“While tbe statute does not control tbe question bere presented, we think our decisions in relation to this matter bave been in line with, the equitable rule laid down by the legislature; and no reason has been presented to us in this case why we should change it.</p> <p>“We are, therefore, of the opinion, and so decide, that the expense of constructing and maintaining this crossing shall be borne by the Waterville and Fairfield Railway and Light Company. That the said company shall provide new, good and substantial crossing-frogs, the angle of which shall conform to the angle of the several tracks at point of crossing as now established. The rails in said crossing-frogs shall be of like metal, pattern and weight as the rails now in use by the Maine Central Railroad, and the Waterville and Fairfield Railway and Light Company respectively.</p> <p>“Said crossing shall be laid in a first-class manner, on good ties, correctly aligned and surfaced.</p> <p>“The work of laying and maintaining shall be done by the Maine Central Railroad Company, but the whole expense thereof shall be borne by the Waterville and Fairfield Railway and Light Company.</p> <p>“Dated at Augusta, this fifth day of February, A. D. 1896.</p> <p>Joseph B. Peaks, \ Railroad Benj. F. Ghadbourne, V Commissioners Frederic Daneorth, ) of Maine.”</p> <p>The defendant company took an appeal from this decision to the March term of the court below, sitting at Skowhegan; and the presiding justice upon hearing the case ordered that the report and decision of the Railroad Commissioners be accepted and recorded. Thereupon the defendant company took exceptions.</p> <p>This court will treat this appeal as a review of the decision of a subordinate tribunal. In re, New Hamburg, etc., JR. R. Oo., 83 N. Y. 76; In re, Amsterdam, etc., R. R. do., 93 N. Y. 678. The burden is on the defendant to show any error in the decision below.</p> <p>The electric road has no greater rights in the highway than the steam road. The street road can have no greater right in crossing a steam road than a steam road can have in crossing another steam road not in a highway. Where one steam road crosses another steam road, the law is settled by legislative act. Why should there be any distinction between roads of any kind in crossing another road? In other words, there should be no difference as between steam or electric roads. The railroad commissioners have made no difference. The locus, so to speak, is a part of the highway, and lying between the steam rails.</p> <p>When the plaintiff company built its road, it was required to pay damages for its right of way, and in that way obtain its possession. Stat. 1848, c. 186. •</p> <p>The defendant, like all other street railways, belongs to the more privileged class. It is wholly in the street from Waterville to Fairfield. It paid nothing for this privilege. When the defendant, in constructing its line, crossed a street in its way, it adapted itself to crossing such street or way; it adapted itself to the various grades of the highway. The defendant is a new-comer. It is the “railroad last located,” and has no greater rights in a highway than the steam railroad.</p> <p>Prior to the act of 1895 street railways under their charters had the same right in highways as any other traveler, modified by the mode or means of travel. Briggs v. Horse By. Co., 79 Maine, 363. Act made no change in parties’ right. Highway-crossings by railroads: P. f B. B. Co., v. Beering, 78 Maine, 61; B. B. Co. v. Co. Com. 79 Maine, 386; Mayo v. Veazie, 45 Maine, 560; Boxbury v. Boston B. B. Co., 6 Cush. 424; Little Miami B. B. Co. v. Creen, 31 Ohio St. 383; Com. v. Hartford B. B., 14 Gray 379; Welcome v. Leeds, 51 Maine, 313; North Cent. B. B. Co. v. Baltimore, 46 Md. 425'; State v. St. Paul B. B. Co., 35 Minn. 131, S. G. 59, Am. Rep. 313; 1 Rorer on Railroad, 541; R. S., c. 51, §§ 28, 31; Stats. 1885, c. 310; 1889, c. 282; 1895, c. 312. '</p> <p>Statutes have increased the obligations of railroads to the public, and enlarged none of their rights.</p> <p>Prior rights: Cin. etc., By. Co. v. City etc., Tel. Asso. 27 N. W. Rep. 890 and cases; End. etc., Tel. Co., v. Watervliet, etc., R. R. Co., 135 N. Y. 393; Railivay v. Railway, 30 Ohio, 604; C. A. R. R. y. J. L. if A. Ry. Co., 105 111. 388, and cases; Cooke v. B. if L. R. R., 133 Mass. 188; Norwood v. N. Y. tf N. E. R. R. Co., 161 Mass. 266; Davis v. Co. Com. 153 Mass. 218; In re, R. R. Com. 87 Maine, 247; 2 Wood on Railroads, p. 1171; Mass. Cent. R. R. Co. v. Boston, etc., R. R. Co., 121 Mass. 124.</p> <p>Before the act of 1895, the expense of crossings must have been borne by the steam railroad and according to the principles in above cases. Statute of 1895, at most, contemplates that the expense should be apportioned between the two roads using the highway. It nowhere indicates that the total expense of making and maintaining crossings shall be put on street railways; to do so would be unconstitutional, because it would be taking private property without compensation. It being in derogation of common law, the statute should be construed strictly.</p> <p>The decision seems more like taking private property for private use than for public use. If the crossing-frog was not required then the steam railroad would require fifty feet of rail. Thus the steam railroad is relieved of maintaining fifty feet of track that it was compelled to maintain before the crossing-frog became necessary.</p>

<p>Agreed Statement.</p> <p>Tbe case is stated in tbe opinion.</p>

On Motion by Defendant. This was an action brought by the plaintiff, as administratrix of the estate of James Giberson, of Mars Hill,… Held: “where a person is killed at a crossing and the evidence shows that an approaching train could have been seen three hundred feet away, when he was thirty-three feet from the track, he will be presumed to be guilty of contributory negligence in failing to look.” In Gardiner v. Detroit B. N. R. Co., 97 Mich. 240, (56 N. W. Rep. 603) it…

<p>Will. Fee. Life-Estate. Vested and Contingent liemainders. Trusts. Insurance. B. 8., a. 74, § 16.</p> <p>A testatrix appointed her son James the executor of her will, to act without giving bond, and made the following disposition of her estate :</p> <p>“ Second. During the lives of my son James Keazer, and his wife Mary Elizabeth Keazer, I give and bequeath to them one-half of the income of my store and the land connected therewith, situated on the Northwesterly side of Middle Street, in said Portland, and now numbered 203. Said James and his wife, so long as they, or the survivor, shall have and enjoy the income of said one-half of the above described premises, shall be charged with and pay one-half part of the repairs, insurance, taxes, and other legal expenses. Upon the decease of the said James and the said Mary Elizabeth Keazer, I give and bequeath the income of said one-half of said premises to my children, or child then alive, charged with the payment of said taxes, insurance, repairs and expenses : Said balance of said income of said one-half of said premises is to be divided equally among my children, and upon the death of all my children, I give and devise said one-half of said premises to my grandchildren then alive, said grandchildren receiving the share the parent would have received if distribution thereof had been made under the laws of Maine.”</p> <p>“Third. I give and bequeath to my daughter Mary Helen Yeomans, the other half of the income of said premises'on said Middle street during her life, charged with said half of the repairs, taxes, insurance and other legal expenses; and upon the death of my said daughter Mary Helen, I give and devise said one-half of said premises on Middle street to the child, or children of my daughter Mary Helen Yeomans.”</p> <p>“Fourth. Inasmuch as my late daughter Mrs. Caroline Hopkins, received from her father, property on Gray street, in Portland, I therefore give and bequeath to my granddaughter, Gertrude Emma Hopkins, the sum of three hundred dollars. This amount is to be invested by my executor, for the said Gertrude, but shall not be paid to her until she shall become twenty-one (21) years of age; when of that age this sum with its accumulations shall be paid to her. Should my grandchild Gertrude die before that period, I give and bequeath said sum with its accumulations to my children then alive.”</p> <p>“Fifth. I give and devise to my daughter Frances Eva Webb, now of said Portland, during her life, the use and income of the brick dwelling-house with the land connected therewith and being now numbered 81 on the Northeast side of State street, and in which she now resides. My daughter is to pay all taxes, insurance, repairs, and other legal charges thereon. Upon the decease of my said daughter, Prances Eva Webb, I give and devise said premises to the children of said Prances Eva Webb, and to their survivors or the survivor. If either of said children should die leaving issue then alive, such issue shall have the parents’ share, and if there is no such issue, said share or shares shall descend to the survivors or the survivor.”</p> <p>“ Sixth. I give and bequeath to my daughter, Mrs. Emma S. McDuffie, now of Chicago, during her life, the use and income of the brick dwelling-house with the land belonging thereto, situated at the corner of Gray and State streets in said Portland, together with the use of all the household furniture of every description in said dwelling-house. My daughter, Emma S. McDuffie, is to pay all taxes, repairs, insurance, and other legal charges thereon. Upon the death of my daughter Emma, I give and devise said premises above mentioned with the said household furniture, to the children, or child of said Emma S. McDuffie.”</p> <p>“ Seventh. It is my wish, and I therefore make this request of my grandchildren, that none of them who become seized and possessed of any of my estate, shall sell and convey such interest until he or she shall have owned and controlled said interest at least for ten years, unless from sickness, accident, or some unforseen circumstance he or she is obliged to dispose of the same.”</p> <p>“Eighth. After payment of taxes, repairs, insurance, and other legal charges from the income of the rest, residue, and remainder of my estate, I give and bequeath the balance of said income to my children, and to the survivors, and survivor of them, and when all my children are deceased, I give, devise and bequeath said rest, residue and remainder to my grandchildren, the same to be distributed in accordance with the laws of Maine.”</p> <p>Upon the question whether, under items two and eight, the children of the testatrix are entitled- to an absolute fee in the estates described in those items, — in item two upon the termination of the prior estate, and in item eight, residuary clause, at the death of the testatrix,- — disregarding in both instances the devise over to their children, her grandchildren : —</p> <p>Held; that the testatrix intended to give the enjoyment of her estate to her children so long as they might live, and to give the estate itself, subject to this first charge, absolutely to her grandchildren; that instead of there being a clear intention, by these bequests, that her children are to take an absolute property, it is on the contrary clearly evident that she intended they should not have any such property; her scheme being that the fee in all her estate should vest in her grandchildren; Also; that the real intention and the judicial intention are not inconsistent with each other.</p> <p>Held; that the children of the testatrix, not taking an estate in fee simple, are entitled to a life estate, the income of which is bequeathed to them.</p> <p>Held; that the grandchildren, under items two and eight, take a contingent and not a vested estate;</p> <p>Also ; that they take their interests in their vested remainders, per stirpe, the child or children of each parent taking by representation what would have been such parent’s share had the estate been inherited by the children instead of being given to the grandchildren.</p> <p>Held; that the executor'is appointed by the will trustee of the fund provided for Gertrude Emma Hopkins, and he may properly be regarded as an implied or quasi trustee of the estates vesting in the children of the testatrix until they see fit to go into possession of such estate themselves.</p> <p>The life-tenant shall, at the risk of committing waste if neglected, insure for the benefit of the whole estate, — its principal or corpus, — so that in case of loss, the proceeds may be either expended in the way of repairs, or be. preserved as a substitute for the property lost.</p>

Agreed Statement, This was an action of covenant broken, submitted to the law court on an agreed statement of facts which are found in the opinion.

<p> Bailment. Burden of Proof. </p> <p>The plaintiff left in defendants’ store-house, with their consent, a quantity of beans. There was no agreement for compensation, and, so far as the case shows, neither of the parties expected that any compensation for the storage would be required. The defendants were not ware-house men, the storehouse being used by them for their own purposes in connection with their business as retail traders. The plaintiff alleged that the defendants refused to deliver to him the property stored, upon demand.</p> <p>Held; That the burden was upon the plaintiff, in the first'instance to prove such a refusal, and that if this had been done he would have made out a prima facie case; and it would have been incumbent upon the defendants to explain the cause of their refusal, such as by showing the loss of the property by theft or burglary, or its destruction by fire or otherwise. Then it would have been incumbent upon the plaintiff to show that the loss or destruction occurred by reason of the defendants’ failure to exercise such a degree of care of the property as the law requires of a gratuitous bailee.</p> <p>Also held; That the plaintiff had failed to sustain the burden resting upon him and that the verdict in his favor was not authorized.</p>

On Exceptions by Dependant. Tbe facts appear in tbe opinion. In Parsons on Bills and Notes, Vol. 2, page 539, that author saysr“ A contemporaneous memorandum on tbe note, or as we bave just seen, even on a separate paper, if made by agreement of all tbe parties before signing, will bind all parties, and all wbo bave, or are legally presumed to bave, notice thereof, and may be pleaded either by plaintiff or defendant.” Bonney v. Morrill, 57 Maine, 373.

<p>On Report.</p> <p>The facts appear in the opinion.</p>

On Exceptions by Defendant and Trustee. The case appears in the opinion. The words “due” and “due absolutely” as used in the statute, do not have the same signification as the word payable, for R. S., c. 86, § 61, provides that any money or other thing due absolutely to the principal defendant may be attached before it has become payable.

On Report. This was an action of debt brought for the recovery of a tax assessed against the defendant corporation, for the year 1894, and to enforce the lien provided by chapter 314 of the statute of 1893.

<p>On Exceptions by Plaintiff.</p> <p>This was an action of assumpsit on an account annexed for board of defendant and family, washing, mending, clothing and labor for five years, amounting to one thousand dollars. The plaintiff testified that, for a period of about four months, the defendant and his four children lived at her house, during which time she entirely carried on the house, furnished the table, etc., and that after said period, on various occasions, he stayed at her house through a period of several years, from Saturday until Monday and upon holidays; that she furnished more or less clothing for the defendant and his family, did their washing and rendered other services; that she also let him have various sums of money. The action was to recover for this board and for these services and for clothing and other things furnished. She testified that during all of this túne she and defendant were engaged to be married, and it was admitted that on the 24th day of December, 1895, the defendant did marry another woman. Upon cross-examination and upon interrogatories by the court she testified as follows:</p> <p>By Mr. Brown: And as I understand you, all these acts of kindness to him, and all these acts of letting him have money, and all that you did for him and his children by way of board and care and clothing, and everything of the kind, you let him have because you were going to marry him ?</p> <p>Ans. Yes, sir.</p> <p>Ques. You didn’t intend to charge him for it?</p> <p>Ans. No, sir.</p> <p>Ques. Never expected pay only that you were to be married ?</p> <p>Ans. I thought I was going to be married.</p> <p>Ques. And that was the ground on which you let him have it ?</p> <p>Ans. Yes, sir.</p> <p>Ques. And all these acts were of that character, all these acts you did?</p> <p>Ans. Well, I guess it is.</p> <p>By the Court: You say that during the four months before you went to Manchester, while the defendant and the four children were living with you, you didn’t expect he would pay you any board for it?</p> <p>Ans. No; the bargain was for him to come and live to the house and we should be married, and I took care of the children.</p> <p>The Court: And all the services you rendered him during his sickness and in performing washing for him, etc., you did without any expectation of pay ?</p> <p>Ans. No, without being married.</p> <p>The Court: • That is the only thing you expected ?</p> <p>Ans. Yes, sir.</p> <p>The Court: And that was so in regard to every item you have sued for, is it?</p> <p>Ans. Yes, sir.</p> <p>The Court: All of your services and board and clothing ?</p> <p>Ans. Yes, sir.</p> <p>She subsequently said that this statement in regard to the money furnished by her to him was a mistake, and that this money was loaned under an expectation of payment. The court ruled that in regard to the board, washing and all services rendered and clothing furnished by the plaintiff to the defendant for himself or his family without any charge or expectation of payment, she could not recover; that so far as those services and board and articles furnished were concerned, the law implied no promise upon the part of the defendant to pay therefor, if they were rendered and furnished without any expectation of payment other than her marriage to the defendant.</p> <p>To this ruling of the presiding justice, the plaintiff took exceptions.</p> <p>When one person performs services for the benefit, and with the knowledge and tacit consent of another, that the law implies a promise to pay a reasonable compensation for them, is, of course, 'a well established doctrine. Weston v. Davis, 24 Maine, 374; Abbot v. Sermon, 7 Maine, 118.</p> <p>Whenever one person furnishes anything valuable to another, not being under legal obligations to do so, generally the presumption or implication is, that the thing furnished is to be paid for. The relationship of the parties is an element of importance in determining whether the services were gratuitous or not. Codfrey v. Saynes, 74 Maine, p. 96.</p> <p>Counsel also cited: Cooler. Bates, 88 Maine, 455.</p> <p>Counsel cited: Holmes v. Waldron, 85 Maine, 312; Withee v. Brooks, 65 Maine, 14; Shepherd v. Young, 8 Gray,-152.</p>

<p> Officer. False Return. Attachment. </p> <p>The false return of a levy or sale upon execution by an officer makes him liable to an attaching creditor who has thereby lost his attachment.</p>

<p>On Exceptions by Dependant.</p> <p>Tbe case appears in tbe opinion.</p>

<p> Official Bond. Alteration. Surety. Release. Mistake. </p> <p>One wlio signs an official bond at the request of. the principal, thereby, qua the obligee, gives him implied authority to procure additional sureties to make the bond satisfactory to the obligee, and it makes no difference when the additional sureties are obtained; and any representations by the principal to a surety that certain other persons are also to sign as sureties who do not, will not release such surety.</p> <p>When a surety has once signed an official bond, and the bond has been accepted by the obligee, nothing short of information to him of such a character that, in the exercise of prudence would require a withholding of official duties from the principal, can release the surety.</p> <p>Notice by sureties of their claim to be relieved from an official bond by reason of the principal having procured an additional surety, will not have any effect after the approval of the bond.</p> <p>When all parties agree, in a case submitted on report, that a mutual mistake exists in the condition of the bond in suit, it may be corrected in equity before damages shall be assessed.</p>

On Exceptions by Defendant. This was a complaint which was instituted in the Bangor Municipal Court by Benjamin Atwood of Winterport, on the 18th day of November, A. D. 1895, in which the said Atwood complains that “Jonathan Darling of Lowell, in the County of Penobscot, laborer, on the fifteenth day of January, A. D. 1894, with force and arms, at Lowell. aforesaid in the county aforesaid, then and there being a fish and game warden in and for the State of Maine, and by law…

<p> Deeds. Trees. Sales. </p> <p>When a grantor in a deed conveys hemlock bark and trees upon a certain tract of land " with the right to enter upon said lot of land at any and all times during the term of ten years to cut any trees and make necessary roads to remove said bark and trees during said term without being liable for trespass,” there is not an absolute sale of all the bark and trees upon the land, but only so much as the vendee may cut and remove within the term mentioned.</p>

<p> Way. Laying Out. Notice of Searing. </p> <p>On petition for a town way which the selectmen refused to locate, the petitioners appealed to the county commissioners and that board located the way. On appeal therefrom by the appellants to the Supreme Judicial Court, a committee appointed by that court, made report, wholly reversing the action of the county commissioners. The original petitioners excepted to the acceptance of that report. Seld; that a careful examination of all the objections raised fails to disclose any legal objection to the doings of the committee, or the acceptance of their report.</p> <p>The objection most relied on, that the court did not order notice, has no merit. The objecting parties attended at the hearing before the committee and were fully heard. In their written objections they say that "having appeared before said committee at the hearing, upon proper notice as set forth in said report,” of the committee. No objection to the notice was made at the hearing. Seld; that they cannot now object.</p>

On Exceptions by Dependant. This was an action of assumpsit brought- to recover for' the personal services of the plaintiff and his crew, teams and machinery, while cutting the hay of the defendant’s intestate in the season of 1894. The verdict was for the plaintiff. During the trial both the defendant and the plaintiff were allowed to testify as to matters occurring after the death of the intestate without objection.

On Report. Bill in equity, beard on bill, answer, decree appointing receiver and master, master’s special report and receiver’s report. Tbe bill was filed by tbe insurance commissioner in tbis court, in Cumberland County, and prayed for an injunction and tbe appointment of a receiver.

On Agreed Statement. These were three suits in equity; the first two to recover the interest, and the third to recover the principal and interest, due on a mortgage, given by the Winter Harbor Land Company to Alice I. Hammond.

On Motion and Exceptions by Defendants. This was an action of assumpsit on account annexed. Tbe action was tried in tbe Superior Court, Kennebec county, where the plaintiff recovered a verdict of $21.17. The case is stated in the opinion.

In Equity. On Defendant’s Appeal, Exceptions and Motion for New Trial.

<p>Insolvency. Evidence. Fraud. Indirect Preference. B. 3-, c. 70, § 52; Stat. 1887, c. 132.</p> <p>In an action of replevin against an assignee of an insolvent debtor, by a purchaser of chattels from the insolvent before insolvency, the question before the jury was whether the purchase by the plaintiff was in fraud of the insolvent law. Held; that the plaintiff may be inquired of as to his knowledge of the insolvent’s financial condition and the property that he held and disposed of, both before and after the sale, to the plaintiff.</p> <p>Also; that the witness’ knowledge of the insolvent, his business, his property and his disposal thereof, as well as his habits, attention to business, soberness and thrift, are all material and sometimes vital, as to whether a pretended purchaser of property knew the condition of his vendor, and under the insolvent law should be held chargeable with a fraudulent purpose to aid the insolvent in disposing of the property.</p> <p>Deeds, given by the insolvent or recorded during the same year, some before and some after the pretended sale of chattels to the plaintiff', are admissible in evidence, as bearing upon a contemplated insolvency.</p> <p>When exceptions fail to state what the testimony is that is excluded under objection, held; that such exclusion of testimony is not error.</p> <p>Held; that evidence of the state of the insolvent’s bank deposits about the same time of the pretended sale is admissible, upon the foregoing issue.</p> <p>The insolvent law of this State inhibits conveyances, etc., of two kinds, first, those made to creditors within four months of the commencement of proceedings, known as preferences; second, conveyances, etc., made to third persons within six months of the commencement of the proceedings with the view of preventing the property from being distributed among creditors.</p> <p>Held; under the second clause, that an assignee may recover the property, when it appears that the conveyance was made in contemplation of insolvency, and with a view to put the property beyond the reach of creditors, and the defendant, the grantee, had reasonable cause so to believe.</p>

<p> Burden of Proof. Exceptions. Practice. </p> <p>Objections to the admission and exclusion of testimony in a trial are not considered by the law court when tlie exceptions fail to state what the evidence was thus admitted or excluded.</p> <p>In trespass de bonis, where the defendants justify tlie asportation, an instruction " that it is incumbent upon tlie defendants to show by a clear preponderance of the evidence and by convincing proof their right to do so ” is erroneous.</p>

On Exceptions by Dbeendant. This was an action of assumpsit for board and lodging furnished at tbe Cony House, in tbe city of Augusta, between April 26,1894, and May 10, 1894. Tbe plea was tbe general issue. Tbe case was tried to a jury in tbe Superior Court for Kennebec County. That tbe plaintiff boarded a lady at bis hotel, tbe Cony House, in Augusta, Maine, for fourteen days from April 26, 1894, to May 10, 1894,-was admitted.

On Exceptions by Defendant. This was an information in the nature of quo warranto filed by the Attorney General, at and by the relation of Thomas J. Holmes, against the respondent for usurping the office of city marshal of the city of Ellsworth.

On Motions and Exceptions by Defendant. These were four actions for trespass quare clausum brought on the same day, August 2, 1893, to recover for trespasses upon the same lot of land in Palmyra during the summer of 1893. The jury returned a verdict for the plaintiff in each action for nominal damages. The presiding justice directed the parties, against the objection of the defendant, to try the four cases in a group to the same jury at the same time.

<p> Sales. Agent. Contract. </p> <p>Persons dealing with a merchant’s traveling salesman have a right to presume that his agency is general touching the business he is engaged in.</p> <p>If such agent sells goods upon terms not authorized by his principal he cannot reject the terms of sale and recover for goods sold. He cannot enforce part of a contract and reject the remainder of it; nor can he recover upon an implied contract where there was an express one.</p> <p>In such case the rights of the parties do arise from contract, but the goods remain the property of the vendor.</p>

<p> Beal Action. Lost Deed. Adverse Possession. B. 8-, a. 104, § 10- </p> <p>In a real action the plaintiff must recover, if at all, upon the strength of his own title. When he attempts to do so by proving a lost deed under which he claims title, held; that in such cases the law is very strict.</p> <p>Titles to real estate pass by deed, and when such deed has not been recorded and cannot be produced and no copy of it is in evidence, the testimony of witnesses as to the existence of such deed and of its contents must be so clear and convincing as to almost preclude the possibility of mistake.</p> <p>It would be dangerous to allow record titles to be destroyed by the testimony of witnesses, unless the testimony be very clear and explicit; and in this case held; that the testimony is not of that character.</p> <p>When the existence of a lost deed has already been considered by the court in another case between the same parties, and while that case was disposed of by nonsuit and decided nothing but that action, held; that.it is proper to refer to the opinion of the court in the former case, as bearing upon this case; and the court concludes, as it did in the former case, that the existence of such a deed as claimed in this case, is not satisfactorily shown; nor is such conduct shown on the part of defendant as to raise an equitable estoppel upon him to deny its existence.</p> <p>Plaintiff claimed title by twenty years’ adverse possession of the land that he sought to recover in this action; but, during such twenty years, the plaintiff had brought suit against the defendant to recover the same land and in that action he alleged that the defendant had disseized him and held him out of possession of the land. Held; that such disseizin and possession by the defendant would interrupt the plaintiff’s continued possession. He cannot acquire title by adverse possession while he has been disseized by the true owner of the land; and this fact he has admitted by his former writ.</p>

On Exceptions by Plaintiff. This was an action on an award, the agreement to submit to arbitration being under seal, and the award of the arbitrators thereon being in writing. The action was “of the case,” in assumpsit. The plea of defendant was the general issue. The plaintiff moved to amend the writ from assumpsit to debt, The presiding justice refused the amendment, and ordered a nonsuit. The plaintiff excepted. The cause of action is not changed by the amendment.

<p> Deed. Covenant. Damages. Interest. </p> <p>An action for a breach of the covenants of warranty in a deed of real estate is maintainable by the grantee although the deed in question and the mortgage back from the grantee to the defendant were a part of the same transaction and contained the same covenants of warranty; and although the relation of mortgagor and mortgagee still subsists between the parties. t</p> <p>The exercise by a stranger of his paramount right of flowage is an interruption of the grantee’s full enjoyment of the premises. It is a permanent subtraction from the substance of the estate. Held; that all the damages resulting from the encumbrance created by a covenantor’s former grant of a perpetual easement to flow a portion of the land are suffered by the grantee, in contemplation of law, on the day of the conveyance to him.</p> <p>The rule of damages in this class of cases, as in all others, is designed to give the aggrieved party a fair indemnity for the damages sustained, — an exact equivalent for the loss or injury. He is to be made whole as far as money is a measure of just compensation. IleM; in this case that the defendant must make good his warranty; he must pay a sum of money which will put the plaintiff in as good condition as if the defendant had kept his covenants.</p> <p>Where the cause of action is not only a breach of the covenant against encumbrances but also of the covenant to warrant and defend; and it appears that by the exercise of an outstanding right to flow, a portion of the land was flooded and covered with water, and the plaintiff was deprived of the use of such land, as well as of the possession, held; that there was substantially an eviction; and it may properly be deemed an eviction pro tanto.</p> <p>In such case, the measure of damages are as follows :—</p> <p>The plaintiff is entitled to recover as damage the difference between the value of the farm as it was in fact, and its value as it would have been without the encumbrance of the paramount right to flow, with interest thereon from the date of the conveyance to the plaintiff.</p>

<p>Payment. Stat. of Frauds. R. S., c. Ill, § I, par 2.</p> <p>A person who receives a consideration may be bound by any lawful promise founded upon it, and that promise may as well be to pay another’s debt as to do any other act. This promise may be absolute or conditional; to pay money or perform labor; and having a valuable consideration to rest upon, it is a new, original and independent undertaking, and may be enforced.</p> <p>The plaintiff had a preferred claim against the insolvent estate of Jacob Bradbury. His widow, Mrs. Bradbury, was his administratrix, and in that capacity, sold real estate of her intestate to the defendant, and at the same time released her dower to him. For the dower interest the defendant paid one hundred dollars and agreed to pay plaintiff’s preferred claim against the intestate estate when he sold the land purchased. In effect he agreed to pay her for her dower interest two hundred and thirty-two dollars and fifty cents — one hundred to her directly, and the balance to the plaintiff. Defendant sold the land before suit brought, and his promise of payment to the plaintiff had matured. Held; that this promise, though oral, was not a promise to pay the debt of another, within the statute of frauds, but was a promise to pay his own debt to the appointee of Mrs. Bradbury, the plaintiff.</p> <p>Also; that as she directed the payment to the plaintiff, it is immaterial whether she was indebted to him or not; nor does the fact that the payment operates to discharge the estate of the intestate, render the payment by defendant any the less a payment of his own debt.</p>

On Exceptions by Defendant. This was an action of debt to recover the sum of twelve hundred and sixty dollars, the amount of a tax assessed in the city of Rockland for the year 1894 upon the personal estate of the defendant, together with interest thereon from October 15th of that year at the rate of eight per cent. The tax upon defendant’s real estate had been paid prior to the commencement of this action.

<p>On Report.</p> <p>This was an action on the case, under R. S., c. 46, §§ 46 and 47, to recover a judgment from the defendant obtained October 18, 1894, in the Municipal Court of the Dorchester District, Boston, against the Dorchester Press Company, a corporation organized under the laws of Maine, but doing business in Massachusetts, and where the parties resided.</p> <p>The plaintiff claimed that the defendant was liable under the statute for the debt of the corporation, because he was a stockholder in the Dorchester Press Company.</p> <p>The case is stated in the opinion.</p> <p>The defendant acquired, by assignment, numerous shares from Pitman who never paid anything for the stock, which the defendant knew. It is in evidence that this was done to give the defendant a majority of the stock, and he had a controlling voice in the corporation, which he managed as his own private business. In fact, the defendant was the corporation, according to his own testimony, during the time the plaintiff’s bill was contracted.</p> <p>These shares, except one, had been issued to others, but were surrendered to the corporation which issued them to the defendant.</p> <p>Shares of stock in a corporation are not necessarily extinguished by being transferred to the corporation, so that they cannot be reissued. Com. v. Boston Albany Railroad Co., 142 Mass. 146; Crease v. Babcock, 10 Met. 525-556; American Railway Frog Co. v. Haven, 101 Mass. 398-402; Rupee v. Boston Water Power Co., 114 Mass. 37-43; 1 Morawetz on Corp. § 114.</p> <p>This rule prevails in this country generally.</p> <p>City Bank v. Bruce, 17 N. Y. 507; Coleman v. Columbia Oil Co., 51 Penn. St. 74; State v. Smith, 48 Vt. 266-285; Williams v. Savage Manufacturing Co., 3 Md. Ch. 418-452; Taylor v. Miami Exporting Co., 6 Ohio, 176-219; Robinson v. Bealle, 20 Ga. 275.</p> <p>When a subscriber fails to take his stock, and never intends to pay for the same, the corporation, having incurred no liabilities, may accept his surrender of the stock.</p> <p>Where a subscription is not paid, and the stock is transferred to the corporation as “ treasury stock,” and then sold below par, the purchaser is liable for the unpaid par value. Ailing v. Wenzell, 133 111. 264.</p> <p>The defendant, as assignee of Pitman’s stock, is subrogated to the liabilities, as well as the rights, of the original holder thereof. R. R. Go. v. Boorman, 12 Conn. 530; Angelí & Ames on Corp., § 534; 1 Redf. Railw. § 42, n. 3; Webster v. Upton, 1 Otto, 65-72; 2 Morawetz on Corp., § 824.</p> <p>As the defendant took the stock from the corporation, and it was not paid for by Pitman, or the others to whom it was issued originally, he received it subject to all liabilities and for all debts incurred since it was first issued to them. As this covered the entire period when the plaintiff’s services were performed, she is entitled to recover. 1 Cook on Stock and Stockholders, § 258.</p>

<p>Stat. Limitations. New Promise. B. 8., o. 81, § 97.</p> <p>No acknowledgment or promise by a debtor will defeat or postpone tlie operation of the statute of limitations, "unless the acknowledgment or promise is express, in writing, and signed by the party chargeable thereby.” R. S., c. 81, § 97.</p> <p>Held; that the acknowledgment must be in writing,- — must be contained and found in the writing. It must be an "express” acknowledgment also. It is not enough that the original promise is proved. The new promise or acknowledgment must be proved to have been expressly made; and the proof of this must be found in the signed writing.</p> <p>Held; in this case, that there are no words in the writing indicating that the person sought to be charged promised to make a money payment for the services and supplies sued for, or that he expressly acknowledged any liability therefor. An acknowledgment of a mere moral obligation, however strong is not sufficient.</p> <p>Also ; that the interpretation of such writing is for the court, and not for the jury.</p>

<p>On Report.</p> <p>The case appears in the opinion.</p>

On Report. The case appears in the opinion. Tbe reports abound in cases relative to transfer of stock, but almost invariably they involve tbe question of equities as between two alleged transferees, third parties to tbe corporation, or tbe right .of tbe bolder of an unrecorded certificate either to be admitted to tbe corporation as a stockholder on tbe books, or to recover damages for a refusal to make a transfer of record.

On Report. Tbis was a bill in equity praying for specific performance of an oral contract to convey a lot of land, and was beard by tbe law court on bill, answer and proofs. Tbe case is stated in tbe opinion. The plaintiff does not allege in bis bill that be has not a “plain, adequate and complete remedy at law.” Such an allegation is necessary, and its absence is fatal to tbe maintenance of tbis complaint.

On Motion by Defendant. This was an action brought against the defendant corporation to recover damages for alleged negligence on its part in placing a cooking-car together with a sleeping-car on its spur-track, in the city of Old Town, in such close proximity to the mill of the plaintiff that a spark from a funnel in the cooking-car, as the plaintiff alleges, communicated fire to his, the plaintiff’s mill, whereby and on account of which it was burned and consumed.

On Exceptions . by Defendant. This was a complaint for fishing for smelts with a drag seine in Damariscotta river in violation of the special laws of 1895, c. 28. The complaint was heard January 15, 1896, before a trial justice in the county of Lincoln, and the respondent was found guilty and fined one hundred dollars. An appeal was taken to this court below, where the case came on for trial at the April term, 1896.

<p>Insolvency. Fraudulent Conveyance. B. 8., c. 70, § 52.</p> <p>The assignee of an insolvent debtor may recover in an action of money had and received, under R. S., c. 70, § 52, the proceeds of notes and claims that have been transferred by the debtor while acting in contemplation of insolvency and with the view of preventing the property from coming to the assignee, when it appears that the person so receiving the property had reasonable cause to believe the debtor was so acting and with that view.</p> <p>Of the facts that constitute such reasonable belief.</p>

<p>On Exceptions by Defendant.</p> <p>The case appears in the opinion.</p> <p>The mittimus being regular upon its face, it is not open to the defendant to show irregularities in the original proceedings.</p> <p>Process regular upon its face, issued by a magistrate having jurisdiction of the offense charged, is a complete justification to the officer to whom it is directed. Chase v. Fish, 16 Maine, 132; Fooler v. Reed, 75 Maine, 488; 7 Am. & Eng. Ene. p. 672, note and cases; Wilmarth v. Burt, 7 Met. 257; Donahue v. Shed, 8 Met. 328 ; Twitchell v. Shaw, 10 Cush. 46; Dwinnels v. Boynton, 3 Allen. 310; R. S., c. 80, § 10; Scammon v. Wells, 50 Maine, 587.</p> <p>It would be absurd to hold that the state superintendent was compelled to receive a boy into his custody, and that the instrument, which was sufficiently regular upon its face to bring about that result, would not be a sufficient justification for him in establishing' the right of the state to recover of the town from which the boy was committed: and a fortiori, the plaintiff town.</p> <p>In the case of a commitment to the reform school, the town in which the boy resided at the time of the commitment is not a party to the proceedings; neither the town in which the boy resided at the time of the commitment or the town in which he has his settlement is a party to the proceedings ; and they have no right or power to collaterally attack or impeach them. It is the judgment of an independent tribunal against a third party, and being-regular on its face, is conclusive as to all persons not parties to the proceedings. Cases of commitment to the insane hospital do not, therefore, apply.</p> <p>Counsel argued:—</p> <p>(1.) That the mittimuses were not admissible to prove conviction of the boys. (2.) That the plaintiffs, failing to offer any other proof of such conviction, were not entitled to recover. (3.) That if the mittimuses shall be held to be evidence of conviction, they are only prima facie and may be rebutted. (4.) That the records of the cases were admissible to rebut the recitals of the mittimuses.</p> <p>The present defendants could introduce no testimony before the magistrate; could not have been permitted to raise the point of the sufficiency of the complaint; could not have taken an appeal. A record of conviction is not conclusive in a civil suit. Freeman on Judgments § 319. I. Greenl. Ev. § 537.</p> <p>A town cannot recover of another town in which the insane person has a pauper settlement unless it appear that the municipal officers by whom he was committed followed the directions of the statute. Naples v. Raymond, 72 Maine, 213.</p> <p>Complaint void: — A complaint for truancy can be made only by a truant officer. Previous to making such complaint he is required to notify the truant or absentee, and also the persons having him under control, of the offense committed and the penalty therefor, and if he can obtain satisfactory pledges that the child will conform to the statute, he shall forbear to prosecute so long as such pledges are faithfully kept.</p> <p>Not only, therefore, must the complaint be made by the truant officer, but such officer, before he is authorized to make complaint, is obliged to perform that preliminary duty.</p> <p>The jurisdiction must appear upon the face of the record and unless the record discloses jurisdiction the proceedings are void. State v. Whalen, 85 Maine, 469-472 and cases.</p> <p>To give the magistrate jurisdiction, the complaint should not only be made by a truant officer but should allege that such officer had complied with the provision of the statute in relation to giving notice, etc.</p> <p>The trial justice had no jurisdiction and his proceedings and sentences are void: (1.) Because the complaints do not allege that the complainant was a truant officer. (2.) Because the complaints do not allege that the complainant notified the respondents or the persons having them under their control of the offense and the penalty, etc. (3.) Because the complaints do not set forth any offense punishable by any- law. Freem. Judg. §§ 619, 622.</p> <p>Evidence of the father inadmissible, his declarations not being accompanied by any act. Baring v. Calais, 11 Maine, 463 ; Corinth v. Lincoln, 34 Maine, 310 ; Ltna v. Brewer, 78 Maine, 377 ; Leer Isle v. Winterport, 87 Maine, 37 — 42.</p>

On Exceptions by Plaintiee. This was an action to recover for pauper supplies, being for the board of a minor duly committed to the reform school. No question was raised about the payment for the supplies and the necessity for the same or proper notices from the reform school and notices and denials between the parties.

<p>On Motion by Plaintiee.</p> <p>The ease appears in the opinion.</p>

On Motion and Exceptions by Defendant. This was an action of assumpsit on account annexed to recover the price of certain lumber and materials alleged to' have been sold and delivered to defendant through her husband. The case was tried to a jury in the Superior Court, for Kennebec County, who returned a verdict for the plaintiff.

Agreed Statement. This was a complaint for taking clams April 16, 1895, in the town of Brooklin, Hancock County, heard before the Western Hancock Municipal' Court, where the defendants were convicted and appealed to this court sitting at nisi prius,' below.

<p> Insolvency. Proof of Debt. Judgment. Bankruptcy. B. 8-, c. 70, § 25. </p> <p>If, after proceedings in insolvency have been instituted, judgment is recovered upon a debt provable under those proceedings, the original debt is thereby-merged in the judgment, so far as to defeat any claim for an allowance under it against the insolvent estate.</p> <p>The judgment is not provable against the estate of the debtor, because it did not exist at the time of the commencement of insolvency proceedings.</p> <p>The original claim ceased to be provable, because it was extinguished by the judgment, sq far as to defeat any allowance under it.</p> <p>The court observes that, for constitutional reasons, a different rule applies .in bankruptcy under the decisions of the Supreme Court of the United States, as laid down in Boynton v. Ball, 121 U. S. 457, and which holds that such a judgment is barred by a discharge in bankruptcy.</p>

On Motion by Defendant. This was an action of assumpsit for money had and received. The case was tried to a jury in the Superior Court, for Cumberland County, and a verdict of thirty-nine dollars was rendered for the plaintiff. The case appears in the opinion. Counsel argued: 1. The entire contract was rendered voidable by fraud and the plaintiff having elected to avoid is entitled to recover. The real oral contract was a sale outright.

On Exceptions by Defendant. The case appears in the opinion. The matter was within the province and jurisdiction of the justice presiding. Lothrop v. Page, 26 Maine 119 ; Woodcock v. Parker 35 Maine, 138; Lewis v. Ross, 37 Maine, 230. The entry had not gone to final judgment. The defendant could not be injured, as all his costs of witnesses, etc., would have to be paid by plaintiff before another action could be instituted.

On Report. Tbe case is stated in tbe opinion. Tbis matter arose upon tbe decision of tbe Railroad Commissioners between tbe Maine Central Railroad Company and tbe Bangor, Orono and Old Town Railway Company as to a change in a crossing at grade by botb railroads, and' over a bigbway, in tbe town of Veazie.

On Report. This was an action of assumpsit upon a policy of insurance, issued by the defendants to the plaintiff, insuring him against accidental injuries, to recover twenty-five dollars per week for an injury which wholly and continuously disabled him from transacting any and all of the duties pertaining to his occupation under which he was insured.

<p> Probate.. Bond. Surety. Decree. </p> <p>In an action upon a probate bond, the sureties cannot be heard to question the validity of a decree regularly passed by the probate court against their principal in matters covered by the bond.</p>

<p>On Repobt.</p> <p>Tbe case appears in tbe opinion.</p>

<p>On Exceptions by Dependant.-</p> <p>The case appears in the opinion.</p>

On Motion by Defendant. This was an action on tbe case to recover damages for personal injuries sustained by tbe plaintiff in.a collision between one of tbe defendant’s electric cars; and also by tbe plaintiff’s borse and road-cart wbicb be was driving along Pine street, in tbe city of Lewis-ton, April 25, 1895. Tbe jury returned a verdict for tbe plaintiff, damages 12797.85.

<p>On Exceptions by Dependants.</p> <p>This was an action on the case to recover for damage to the plaintiff’s barn.</p> <p>The case^was heard and tried before the jury at the October term of this court sitting at nisi prius 1895. The defendants pleaded the general issue, not guilty, and a brief statement alleging that they occupied the said barn by leave and license of the plaintiff. The verdict was for the plaintiff, and the jury assessed damages in the sum of $48.00.</p> <p>At the trial the plaintiff’s counsel admitted that the burden of proof was on the plaintiff to show that the barn was carelessly and negligently injured by the defendants; but disclaimed any intention or expectation of satisfying the jury that the defendants maliciously intended and contrived to injure the plaintiff’s barn; or that the defendants did maliciously injure it as alleged in the plaintiff’s writ. There was no evidence offered by the plaintiff to prove these allegations, but he claimed that the declaration was drawn in the usual form, and that the allegation of intent to maliciously injure the plaintiff should be regarded as surplusage; and that if the jury were satisfied that the defendants were negligent and careless in putting their hay in the barn and were not in the exercise of due care, the plaintiff was entitled to recover.</p> <p>The defendants’ counsel, on the other hand, took the position that as the defendants were charged with a criminal offense, and as the action was one at common law instead of one brought under the statute, the allegation of intent must be proved beyond a reasonable doubt; that the allegation “ contriving and maliciously intending” to injure the plaintiff as set out in the declaration, should not be regarded as surplusage, but being alleged against the defendants must be proved.</p> <p>The presiding justice, among other things, charged the jury as follows:—</p> <p>“ Although it is alleged that the defendants maliciously and wilfully put the hay into this barn and maliciously contrived to injure the same, I instruct you that there is enough aside from those allegations contained in the declaration to support an action of negligence upon which the plaintiff relies.....It was unnecessary to aver the maliciousness and viciousness on the part of these defendants, because it is for an action of tort and the gist of it being negligence, those averments will be dispensed with as surplusage.....</p> <p>Something has been said as to the burden of proof. In this case, as in all civil actions, the burden of proof is upon the plaintiff to satisfy you of his case; that he is entitled to recover. He must satisfy you not by evidence that satisfies you beyond a reasonable doubt, as in a criminal case, although the allegations contained in the writ are that it was done maliciously and wilfully, contriving and intending to injure the plaintiff. The rule does not change and throw upon the plaintiff a burden greater than in any other civil action, namely: to satisfy you by a preponderance of evidence that he is entitled to recover.”</p> <p>To these rulings and instructions the defendants excepted.</p> <p>This is claimed to be an action on the case. The plaintiff’s declaration substantially alleges that the defendants contriving and maliciously intending to spoil and damage, did maliciously and without leave or license injure the plaintiff’s barn or building.</p> <p>Wilful and malicious injury to a building is a crime under § 17, c. 127, R. S., of Maine. An action of trespass also lies under this statute to the party injured for the amount of injury so done, and for a further sum, not exceeding in all three times such amount, as the jury deems reasonable.</p> <p>Plaintiff does not claim to recover under the statute, but in an action of case at common law grounded on negligence. The defendants are charged with the commission of a criminal act.</p> <p>The plaintiff’s declaration contains all the averments necessary and essential in an action of trespass upon the statute. Its language conforms more to a declaration of trespass than to one of case for negligence.</p> <p>The words “ contriving and maliciously intending to spoil, etc., did maliciously and without leave or license, injure the plaintiff’s barn,” is equivalent to those of the statute: “ Whoever wilfully and maliciously injures any building, etc., without consent of the owner, etc.”</p> <p>Whenever such averment is made it must be proved. The act is made a part of the issue tried and raised by the pleadings, and the allegation must be proved as set out in the declaration. Sinclair v. Jackson, 47 Maine, 107 ; Paul v. Gurrier, 58 Maine, 526 ; Knowles v. Scribner, 57 Maine, 497.</p> <p>Says Walton, J., in the latter case: — “The amount of evidence required must depend, in a great measure, upon the character of the issue to be tried. The proof must be stronger to support a charge of wilful and malicious burning, than one of negligent burning merely.</p> <p>By dispensing with the averment in this case we destroy the substance of the charge and alter the issue set out in the pleadings. The same evidence would not support trespass that would support case. The defense would be different. The material averments, in a legal sense, would not be the same.</p> <p>The verdict is equivalent to saying that defendants are guilty of maliciously and wilfully intending to injure the plaintiff’s bam, etc., which is a criminal offense under the statute, though no evidence is produced to support it. Judgment is prejudicial to the defendants.</p> <p>The plaintiff should satisfy the jury of his ease. His allegations should be proved.</p> <p>Compare Thayer v. Boyle, 30 Maine, 475, with Knowles v. Scribner, 57 Maine, 495; and' with that of Paul v. Currier, 53 Maine, 526.</p> <p>See also Beclcer v. Somerset Mutual Pire Ins. Co., 66 Maine, 408, as to amount of evidence required in civil actions.</p>

<p> Taxes. Officer. Negligence. Burden of Proof. Bailment. </p> <p>In an action by the owner of a horse against a collector of taxes, who had distrained the horse from the collector for a tax subsisting against such owner, in which action it is charged that the collector had been guilty of negligence in allowing the horse to get injured while in his possession between the date of the seizure and the date of the sale, the general burden of proof is on the owner to establish the alleged negligence; and this is so upon the ground that officers of the law are presumed to do their duty and are presumed to have no motive to avoid or neglect any duties imposed on them.</p> <p>But to throw such burden on the owner or bailor, there is a preliminary duty or burden of explanation cast, from the nature of the relation of the parties, upon the officer or bailee to explain the circumstances of any injury occurring during his custody of the horse, so far as he has any knowledge of them superior to the knowledge of the owner in the matter; and this duty is imposed on the officer because he would naturally be supposed to be possessed of more means of information than the owner would have.</p>