Volume 90 — Maine Reports

<p>In Equity. On Appeal by Plaintiff.</p> <p>The case is stated in the opinion.</p> <p>Here is a private corporation with defined powers. An ultra vires act is threatened. Bill is brought, with prayer for injunction and general relief. The act is done. Injunction now would not meet the exigency of this case. Restitution will. What then is the duty of this court? Clearly, a decree for restitution with costs.</p> <p>The plaintiff as a proper party brought this bill. He had a right to ask this court to restrain these acts. Pending the suit, a defendant by an act, which amounts to fraud, cannot constitute a proper plaintiff an improper plaintiff. Pending the suit he can no more change the existing status of the plaintiff than he can impair the power of a court to grant justice for his fraudulent act.</p> <p>The State by its attorney general can intervene only when the corporation or the charitable fund is a public one. In the principal case it is private. The fund was established for disabled seamen and theif families. It is a restricted and private fund. The State is not interested.</p> <p>This cause has been twice heard: first upon the prayer for temporary injunction, and later fully upon bill, answer and proof and judgment and decree for respondents at each hearing.</p> <p>The appellant must show the decree appealed from to be clearly wrong, otherwise it will be affirmed. Paul v. Frye, 80 Maine, 26 ; Crilpatriek v. Crlidden, 81 Maine, 137.</p> <p>Complainant should set out the vote appropriating or authorizing the payment of three hundred dollars, also the fifteen dollars as alleged, instead of stating its purport.</p> <p>Complainant states only Ms fears or apprehension which is not .sufficient to authorize the injunction prayed for. High on Injunction, 3d edition, § 1184.</p> <p>Courts of equity rarely interfere with the exercise of discretionary powers by corporate bodies or their officers. Ib. § 1186.</p> <p>Complainant individually cannot have an injunction of a practice in which he has participated for several years without complaint, as the testimony shows in this case.</p> <p>Complainant cannot have his co-trustees, acting in their corporate capacity, enjoined from carrying out any vote of a majority. Trustees are only required to conduct themselves faithfully and exercise sound discretion. Lovell v. Minot, 20 Mass. 119; Harvard College v. Amory, 9 Mass. 489.</p> <p>Complainant has sustained no injury personally, and cannot have judgment in his favor. He is not a stockholder, but a member of the corporation which he seeks to have enjoined.</p> <p>The fund of the society is a public fund and injunction is not authorized, except by proper process in behalf of the State. The application of Mrs. Annie C. Bowen for aid was passed upon by the society and allowed. The right to its benefits was settled finally by the vote of the corporation, it being the only body authorized to pass upon applications for aid.</p> <p>The action of the society in holding banquets is fully justified by the result.</p> <p>The fund has not been diminished, but has been largely increased by the holding of banquets.</p>

On Exceptions by Plaintiee. This was an action of replevin for four cows, and in which the jury returned a verdict for the defendant. The title was in issue, and both parties claimed under Alphonso S. Rand. The plaintiff claimed title under a bill of sale dated January 20th, 1896. This bill of sale was not delivered on the day of its date, but within a week thereafter, the payment for the cows being made at the time of the delivery of the bill of sale.

<p>On Report.</p> <p>This was an action of trover for the conversion of certain personal assets, viz: a horse, calf, sleigh, robe, blanket, cow, harness, pung, etc., sold by Alfred W. Huston, an insolvent debtor, to Gilbert E. Gay, on January 26, 1894, in fraud of the provisions of the insolvency law.</p> <p>It was admitted that the articles enumerated in the writ, excepting the sleigh, were sold by the insolvent to the defendant; and that the policies of life insurance described in the writ were assigned by the debtor to the defendant on the day alleged. The following question was submitted to the jury and by them answered as a special verdict:—</p> <p>Did the defendant have reasonable cause to believe that Alfred W. Huston was insolvent when he took the bill of sale and the assignments from him in partial payment of preceding debts on the 26th of January, 1894 ?</p> <p>Answer. Yes.</p> <p>A question arose at the trial whether such articles in the sale and assignments, as are exempt from attachment or seizure on execution, could be the subjects of fraudulent preference under the insolvency law, it being admitted that the insolvent did not have at the time of the transfer duplicates of any such articles of property.</p> <p>Tt was admitted that said Huston went into voluntary insolvency on the 24th of March, 1894, and that the proceedings are still pending.</p> <p>One of the policies, dated January 1st, 1894, was a paid up policy at the time of the assignment. The value of the different policies is $153.06 on paid up policy, and the other $192.46, malting $345.52, the total value.</p> <p>The annual premium on each of said policies was $100.36.</p> <p>The case was reported to the full court upon the finding and admissions to say whether the plaintiff can recover, and if so for how much.</p> <p>If a third party may invoke the law of exemption, then a dishonest debtor, possessing two thousand dollars in cash, may, in contemplation of insolvency, purchase five hundred dollars worth of property of the exempted class and make it over to some favored creditor, or perhaps a member of his own family, and then out of the remaining fifteen hundred dollars make another purchase of like amount and kind and make it over to a second favored creditor, and so continue to purchase and make over until his $2000 have been expended and he finds himself penniless, and thereupon file his petition in insolvency, and when other creditors seek redress for the fraudulent acts of the insolvent and the wrongs done them, the favored creditors may offer as a defense that the property so made over to them was at the time of transfer wholly exempted by statute.</p> <p>A debtor may waive this privilege of exemption and consent that exempted property may be attached or applied to the payment of his debts. This waiver may be evidenced by acts or neglect to act. Smith v. Chadwick, 51 Maine, 515.</p> <p>There is no provision by which creditors can deprive the assured of the benefit of such insurance as had been paid for up to a date two years previous to the filing of his petition; and, in addition to that, so much insurance as $150 per annum would pay for after that date and up to the time of filing his petition. Plaintiff seeks to recover the value of these policies, or a certain part of their value, in trover, and to have his money now. This cannot be done, while our statute provision relating to life insurance remains what it now is. It provides for only the usual action in rem.</p> <p>The only suit which can be maintained is a lien suit, and the only judgment that can be recovered is one in rem; and that conditioned to the provisions of the policies, as to date and manner of payment.</p>

On Report. The facts are stated in the opinion. This was an action of assumpsit on an insurance policy issued by the defendant company on Dec. 9, 1892, on a two-story frame dwelling-house and addition and other buildings owned by plaintiff and situated on his farm in Ellsworth. The policy covers the dwelling-house and addition, which was insured for $500, and other out-buildings which were insured for $1250, making a total of $1750.

<p>On Exceptions by Plaintiee.</p> <p>This was an action on the case for negligence. The case is stated in the opinion.</p> <p>Degree of care: — Tobin v. R. R., 59 Maine, 183; Knight y. R. R. 56 Maine, 234; Quimby v. R. R. 69 Maine, 340; Keefe v. R. R. 142 Mass. 251; McDonald v. R. R. 26 Iowa, 124; Weston y. R. R. 73 N. Y. 595 ; Hoffman v. R. R. 75 N. Y. 605; R. R. v. Fillmore, 57 111. 265; R. R. v. Reates, 90 111. 586; Seymour v. R. R. 3 Biss. 43; R. R. v. Harmon, 147 U. S. 571.</p> <p>Admission of evidence: — Filis v. Short, 21 Pick. 142; Farnum v. Farnum, 13 Gray, 508; Maguire v. R. R. 115 Mass. 239; Frown v. Cummings, 7 Allen, 507; Branch v. Libbey, 78 Maine, 321; Parker v. Port. Pub. Co., 69 Maine, 173.</p>

On Exceptions by Defendant. Tbis was a complaint for violating tbe fisb and game law, tried before the Superior Court, Kennebec County, on appeal. The case appears in the opinion. Complaint sufficient: — Bish. Crim. Proced. 4th ed., § 232, and notes; State v. Cor son 10 Maine, 473. The object of this statute is manifestly to prevent the supply of markets and individuals by fishermen in the State of landlocked salmon and trout.

<p>On Report.</p> <p>This was an action of assumpsit on account annexed, with also a special count.</p> <p>The facts are stated in the opinion.</p> <p>Prior judgment is binding on this defendant, although he was not a party of record to the McNally action. The doctrine of the courts seems to be that where the question in issue has been once fairly investigated in court with the knowledge of all the parties, in a,ny way involved or responsible over to the defendant in the case, and a judgment has been obtained in the matter, that judgment is binding on all such persons, although they did not appear as parties of record in the case. Thurston v. Spratt, 52 Maine, 202 ; Veazie v. Railroad, 49 Maine, 119; Portland v. Richardson, 54 Maine, 46; Gband Trunk Railway v. Latham, 68 Maine, 177 ; Boston v. Worthington, 10 Gray, 496.</p> <p>Counsel cited: — Sawyer v. Woodbury, 7 Gray, 499 ; Morgan v. Burr, 58 N. H. 470; Burlen v. Shannon, 99 Mass. 202; Foster v. Busteéd, 100 Mass. 409; Burlen v. Shannon, 3 Gray, 387; Watts v. Watts, 160 Mass. 164; Seddon v. Tutop, 6 T. R. 607; Nashua, etc., R. R. v. Boston, etc., R. R. 164 Mass. 225; Russell v. Place, 94 U. S. 606; Foye v. Patch, 132 Mass. 102; Hooker v. Hubbard, 102 Mass. 239; Dunlap v. Q-lidden, 34 Maine, 517; Sturtevant v. Randall, 53 Maine, 149; Young v. Pritchard, 75 Maine, 513; Hill v. Morse, 61 Maine, 541; Smith v. Brunswick, 80 Maine, 189; Chicago, etc., R. R. Co. v. Northern Line Packet Co., 70 111. 217.</p>

On Exceptions bt Defendants. This was a petition of the Union Water Power Company, of Lewiston, filed in this court sitting below, praying for an abatement of city, county and state taxes assessed by the assessors of the city of Auburn upon a portion of its real estate and property rights in that city.

On Exceptions by Defendant. This action was brought under the provisions of R. S., c. 6, § 175, to recover a tax of ten thousand one hundred dollars assessed against the defendant in the city of… Held: when the record is silent as to whether a constable gave due notice of a sale by advertising it as required or not. Culbertson v. Milhollin, 22 Ind. 362, (85 Am. Dec. p. 428). The burden is on the defendant to^ show that the meeting was illegal.

<p>Railroads. Location. Statutes. Guaranty. Alteration of Contract. R. S., c. 51, § 6; Stat. 1893, c. 193; Spec. Laws, 1895, c. 90, 91.</p> <p>Tlie statute of 1893, c. 193, confers the same authority upon chartered roads to make changes in their location that was previously conferred upon roads organized under the general railroad law. Held; that the change of location in this case was authorized by law.</p> <p>When a later act, extending the time for the location and construction of a railroad, identifies the corporation, eo nomiue, but through error recites a wrong chapter as being the act of incorporation, held; that the later act applies to the railroad therein named, notwithstanding the mistaken number of the chapter.</p> <p>By special act of 1895, c. 91, the county commissioners were authorized to pass upon the sufficiency of the guaranty given by contractors for the faithful performance of their contract to build a railroad. Held; that the commissioners acted judicially in approving the bond, and that their decision is final; also, that the court has no authority in the absence of fraud to revise their judgment.</p> <p>By an act of the Legislature the county of Washington was authorized to subscribe for and take preferred stock in the Washington County Railroad. The charter of the railroad gave its termini as "some point on the Saint Croix river in the city of Calais or vicinity” and "some point on the Maine Central Railroad in Hancock county.” There was no other direction or limitation upon its location, other than it must "pass through the counties of Washington and Hancock by such route as the directors may select.” When the vote to take the preferred stock was had, no location of the railroad had been made. Held; that the location might be anywhere, between the two termini, through the two counties; and that the directors had full and absolute control as to the line of location.</p> <p>Held; that the change in the location in this case, as approved by the railroad commissioners, did not release the county from its liability under its original subscription for stock; and that a second subscription for stock was unnecessary.</p> <p>Also; while a radical, fundamental change in the character of an original enterprise releases the subscriber for stock who does not consent to it, it does not have that effect if consented to. In this case it appears that the county consented to the changed location, as shown by their re-subscription for stock; and there being nothing in the vote of the county to the contrary, the county commissioners had authority to give consent.</p> <p>Upon an objection that work done in grading before January 1, 1890, was done before location of the line which might bo located elsewhere, and therefore cannot be treated as work done upon the road within the terms of the special act of 1895, c. 91, held; that it was known from preliminary surveys where the line would be at that point, and the actual location subsequently made coincides identically with the grading done. These facts must be regarded as a substantial compliance with the statute limitation of time within which the work of construction should be commenced.</p>

<p>On Motion and Exceptions by Dependant.</p> <p>Tins was an action brought by the plaintiffs against the Central Wharf Steam Tow-Boat Company for injuries to Portland Bridge, caused by the three-masted schooner “Yiator” striking the western corner of the bridge seat on the forenoon of November 1, 1895, while in tow of the defendant’s steam tug “ Salem.”</p> <p>The day. following the accident the county commenced an action against the owners of the schooner, which is now pending in the Supreme Judicial Court for Sagadahoc county. On the 15th day of the same month the present action, was brought against the defendant for the same injury.</p> <p>This case was tried at the December term in Sagadahoc county, and a verdict rendered for the plaintiff for the full cost of restoring the bridge, — the suit against the owners of the schooner still pending.</p> <p>The defendant filed a motion to have the verdict set aside as against the evidence, and also filed exceptions to the rulings of the presiding justice.</p> <p>The case is stated in the opinion.</p> <p>Counsel cited: John C. Sweeney, 55 F. R. 536; The Express, Olcott, 258; The Boris Eclchoff, 32 F. R. 555, 557 ; Penn. Ry. Co. v. Baltimore JJ. Y. Ry. Co., 37 F. R. 129, 130; Texarlcano ‡ E. S. Ry. v. Parsons, 74 F. R. 408; Missouri River Packet Co. v. Hannibal cf St. Jo. R. Co., 2 F. R. 285, 290 ; Atlee v. Pack. Co., 21 Wall. 389, 395; Assantee v. Charleston Bridge Co., 41 F. R. 365 ; Carey v. Ellis, 1 Cush. 306, 307 ;. Silver v. Mo. Pac. Ry. Co., 13 S. W. 410, 412; Byer v. Bepui, 5 Whar. (Penn.) 583, 596; Corthell v. Holmes, 87 Maine, 24, 27 ; Brown v. Perkins, 12 Gray, 89, 101; Arundel v. McCulloch, 10 Mass. 70, 71; State v. Anthoine, *40 Maine, 435; Byer v. Curtis, 72 Maine, 181, 186.</p>

<p>Taxes. Constitutional Law. Declaration of Lights, §§ 6, 19 ; L. 8., c. 6, §205 ; Stat. 1895, c. 70, §11.</p> <p>The revised statutes, c. 6, § 205, as amended by statute of 1895, c. 70, § 11, requiring the owner of land sold for non-payment of taxes to deposit with the cleric of courts the amount of all taxes, interest and costs accrued up to that time, before he can be admitted to contest the validity of the tax or sale, is unconstitutional.</p> <p>It infringes upon the constitutional right of the citizen. (1) — Not to be deprived of his property, but by the judgment of his peers or by the law of the land; (2)- — To have remedy by due course of law for any injury done ills property ; and (3) — to have right and justice administered to him freely and without sale.</p>

<p> Verdict. Jury. Practice. </p> <p>In the case of a misdemeanor the jury agreed during the recess of the court, and were allowed to separate after sealing up their verdict. At the next session of the court their verdict was presented indorsed on the indictment in a sealed wrapper, as follows: — "Guilty, as charged in the indictment. Samuel Strout, Foreman.” In response to the 'usual inquiry and request from the clerk, the jury rendered their verdict of guilty, orally in open court, and the sealed verdict .was .also affirmed in the usual manner.</p> <p>Held; that the written verdict, though abbreviated in form, being indorsed on the indictment, could only refer to the respondent therein named.</p> <p>It is unnecessary to determine,.however, whether this form should be deemed "substantially equivalent” to the form prescribed in the "Anonymous” case, 63 Maine, 590. It was sufficient to prove beyond a,doubt that before separating, the jury arrived at the same result which they afterwards announced in open court, and aided by the oral delivery, it was properly accepted by the court.</p>

On Motion and Exceptions by Defendants. This was an action in wbicli the plaintiff claimed to recover for injuries sustained through the negligence of the defendants. At the time of the injury the plaintiff was in the employment of the defendants and was assisting in loading a schooner with paving at the defendants’ wharf.

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

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

<p> Negligence. Boom. </p> <p>In an action to recover damages by loss of tlie plaintiffs’ logs by reason of a defective boom belonging to the defendant, it is incumbent on the plaintiffs to prove that the defendant corporation did not exercise reasonable precaution or due care and diligence either in the construction and repair, or in the management, of the boom.</p> <p>Where the evidence satisfactorily shows that the defendant company failed to perform this reasonable obligation by reason of a radical defect in the method of constructing the boom and for want of proper inspection and repair of its chain, held; that it is the opinion of the court that the verdict should stand.</p>

On Report and Motion. This was an appeal by an insolvent debtor from a decree of the insolvent court denying his petition for a discharge. The ease was tried to a jury in the court below who returned special verdicts on issues submitted to them as follows; 1.

<p>On Motton and Exceptions by Defendant.</p> <p>This was an action to recover damages from the defendant town alleged to have been received on account of a defect in a certain sidewalk witbin tlie town.</p> <p>For the purpose of showing that the sidewalk was within tbe limits of some way in the defendant town, tbe plaintiff introduced a record of a location of a way made in 1818 by tbe county commissioners court, and then, claiming that tbe bounds of tbe way could not be made certain by records or monuments, the plaintiff sought to establish tbe limits of tbe way, under the provisions of R. S., c. 18, §■ 95, by introducing evidence tending to show that certain fences had existed for more than twenty years fronting on said way, and that the sidewalk was between the fences and the wrought or traveled part of the way.</p> <p>The defendants claimed that the statute did not apply to this class of cases; and that so far as this case is concerned, the plaintiff could not establish the limits of the way in the manner above referred to even by sufficient proof to satisfy all the requirements of said statute. There was no other evidence offered to show that the sidewalk was within the limits of any way in the defendant town.</p> <p>Upon this question the presiding justice instructed the jury as followsl “Well, gentlemen, I can only say to you in relation to that, that if you find that this fence which is admitted to have been in existence for a period of more than twenty years, was erected as and for a boundary line of the abutting proprietor’s lot, the boundary line between him and the highway, and has been there more than twenty years, it is to be deemed the true boundary line to-day.”</p> <p>Touching this point the judge further instructed the jury:—</p> <p>“ I can only submit that to you as a question of fact, whether that fence was built there for a boundary line fence. If so, you will be authorized to act upon it as a true boundary line at the present time; otherwise not. If you find that it was a boundary line, it is not in controversy that this sidewalk was within the limits of the highway.”</p> <p>To the giving of the foregoing instructions the defendants seasonably excepted.</p> <p>It was not in controversy that the sidewalk in question was constructed by private persons and that the town had never made any repairs on it or assumed any responsibility for the repairs on it.</p> <p>The defendants asked the court to rule that, under these circumstances, the town was not liable on account of any defect in said sidewalk. The presiding justice declined so to rule, but upon this point instructed the jury as follows: “But another important question arises here, and that is, that it is not in controversy that the sidewalk was not constructed by the officers of the town at the expense of the town. It is not in evidence here that the town officers ever made any repairs on it, or assumed any responsibility for the repairs on this sidewalk; and thereupon the defendants ask that the rule of law should be laid down that the town ought not to be held liable under such circumstances, that they can only be held liable for sidewalks which they themselves construct, maintain and assume to keep in repair. Undoubtedly, as I have already said, the town would not be liable for any walk built by private parties just outside of the limits of the highway. But they have the control of the limits of the highway. The town authorities have it in their power to say to any parties who construct a sidewalk in the limits of the highway: ‘ Unless you keep this in a reasonably safe and convenient condition, you cannot maintain it here; we shall remove it as an unlawful obstruction.’ They have control over it. Therefore I say to you, for the purposes of this trial, as a matter of law, that when private parties, with the knowledge and acquiescence of the municipal authorities, thus construct a sidewalk within the limits of the highway, which has the character and general appearance of a public walk, so that thereby the public are justified in believing that they are invited to walk upon it as a part of the public way — and it is thus used for a series of years by the public, by all who have lawful occasion to travel on the highway — you have a right to regard that as such an adoption of it, on the part of the town, as would render them liable for any defects in that sidewalk precisely the same as if they had themselves constructed it in the first place. If you find that the sidewalk was not of that character, or that there was anything to indicate that it was a pi'ivate walk, it would of course deprive the plaintiff of the benefit of this rule. There is no evidence here, as far as I am aware, tending to show that there was any notice that this was a private walk. If you find those facts to exist, you will be justified in finding that the town was liable to keep it in repair upon the same terms and conditions specified in the statute as though they themselves had constructed it.”</p> <p>To the giving of the foregoing instructions the defendants seasonably excepted.</p> <p>The plaintiff offered the following paper, as evidence that the fourteen days’ notice, required by the statute to be given to one of the municipal officers, highway surveyor or road commissioner, had been given:—</p> <p>“To Henry Boynton, one of the Selectmen of the town of Sullivan, in the County of Hancock, State of Maine:</p> <p>“You are hereby notified that the undersigned, Nancy E. Hutchings, of Steuben, Maine, sustained the following injuries by falling through a defect, being a hole in the sidewalk situated between Hotel Cleaves and Dunbar Brothers’ store, upon town way in said town of Sullivan, on the evening of October 8th, 1895, viz.: right wrist broken, right arm and hip badly bruised, left wrist crushed and both knees badly bruised, and for which injuries she claims a damage of eight hundred dollars ($800).</p> <p>Nancy E. Hutchings,</p> <p>By her Attorney, B. E. Tracy.”</p> <p>The defendants objected to the admission of this paper on the ground that it was insufficient under the statute, because it did not sufficiently describe the location of the defect. The same was admitted subject to objection, to the admission of which the defendants seasonably excepted.</p> <p>1. Primarily the purpose of the statute, B. S., c. 18, § 19, is to provide a method of establishing the bounds of a way as against the adjoining proprietor. Incidentally, it also operates to establish the line as against the public. Holbrook v. McBride, 4 Gray, 215; .Morton v. Moore, 15 Gray, 573 ; JPillslury v. Rockland, 85 Maine, 419. Where a public way is proved to exist within certain limits, the rights and obligations of the town and of the traveler therein are not in any way affected by the manner of the establishment of the way, or the mode of proving its limits and boundaries.</p> <p>2. A town is responsible for the safety of such part of its ways as are fitted for public travel and it cannot escape this responsibility by showing that it has been relieved' of some of the cost of original construction. Aston v. Newton, 134 Mass. 507 ; Estelle v. Lake Crystal, 27 Minn. 248 ; Oliver v. Kansas, 69 Mo. 79.</p> <p>3. Location of the defect: Rogers v. Shirley, 74 Maine, 144; Larkin v. Boston, 128 Mass. 521; Chapman v. Nobleboro, 76 Maine, 427.</p> <p>The condition of the sidewalk as shown by the plaintiff’s witnesses does not in legal effect constitute a defect or want of repair within the meaning of the statute. In Witham v. Portland, 72 Maine, 539, it is said: “Generally, such an issue is a pure ques-</p> <p>tion of fact depending upon the special circumstances of the particular case; but when the facts bearing upon the subject are unquestioned or are sustained by uncontroverted testimony, their legal effect is a matter of law.”</p> <p>There is no evidence in the case of the twenty-four hours’ actual notice of the identical defect or want of repair which is alleged to have caused the injury.</p> <p>There is no evidence in the case that properly shows that the place of the alleged accident was within a town way in the defendant town.</p> <p>The town had performed its duty when it had prepared a well-wrought road of sufficient width running parallel with the sidewalk. Farrell v. Old Town, 69 Maine, 72; Perkins v. Fayette, 68 Maine, 152. The sidewalk was used for a special purpose — for foot-passengers alone and not for general travel, and was what it obviously appeared to be and contained nothing calculated to allure, deceive or entrap the traveler into concealed dangers. Under these circumstances the town is not liable. Hall v. Unity, 57 Maine, 529.</p> <p>Relative to the adoption of ways by towns in cases where such roads were not originally legally laid out, the general rule is that, in order to hold a town liable for injuries occurring thereon, there must have been a user by the public for the prescriptive period of twenty years or a dedication and acceptance by the town; and in all our cases the town had apparently treated it in many ways as one of its highways. Estes v. Troy, 5 Maine, 368; Burns v. Annas, 60 Maine, 288; Mayberry v. Standish, 66 Maine, 342. Where the alleged adoption by the town is that of a sidewalk'built by private parties, as in this case, we see no good 'reason why the period necessary for a full adoption of such walk should be less than twenty years (unless there is some act of dedication, and of acceptance by the towp) and we contend that to make such adoption perfect there must be upon the part of the municipal officers, something more than a mere user for less than twenty years or passive knowledge and acquiescence in the building of the walk. There is no evidence in this case that the walk existed for twenty years, or that the town did any act tending to show that it regarded the walk as part of its public way.</p> <p>The word hole indicates a breaking or perforation of the surface which does not, according to the evidence, exist in this case; a depression is a sinking of the surface without perforation. Hence the notice does not describe the defect which, according to evidence produced by the plaintiff, caused the injury. It describes another and different kind of defect and is not sufficient. See Kaherl v. JRoclcport, 87 Maine, 627.</p>

<p> Exceptions. Set-Off. </p> <p>II, is incumbent on an excepting party to show affirmatively, from the facts reported, that the ruling complained of is erroneous.</p> <p>An excepting party must present enough of the case to enable the court to determine not only that the ruling may be erroneous, but that it is so.</p> <p>When a person intrusted with goods as agent, sells them to one who has no knowledge that he is agent, but is led to believe from the manner in which he lias been allowed to deal with the goods that they are his, the other party may oii'set against the principal a debt of the agent. But, it is otherwise, when the defendant appears to have hired the property of one who was not tlie plaintiff's general agent, who, for aught that appears, not only had neither possession nor ownership of the property, nor any authority whatever to deal with it, but one who had never in any manner been held out by the plaintiff as having any interest in or control over the property or any right to make contracts in relation to it.</p>

On Exceptions by Dependant. An indictment for embezzlement, to - which the defendant demurred. The demurrer was overruled and the defendant excepted. INDICTMENT. State op Maine. Knox ss. At the Supreme Judicial Court, begun and holden at Rockland within and for the County of Knox, on the second Tuesday of March in the year of our Lord one thousand eight hundred and ninety-two.

On Exceptions by Defendants. This was an action of assumpsit against the executors of Isaac Carleton, tried to a jury in the court below for Washington County, upon the following promissory note: “$3,000. Columbia Falls, Oct. 29, 1892. One year after date we promise to pay to the order of Abraham Merritt three thousand dollars, with interest at 7 per cent, until paid, value received.

<p>Agreed Statement.</p> <p>The case is stated in the opinion.</p> <p>The statute of 1895 is intended to deprive the insurance companies of all right to indemnity, which they had under the law, before the amendment, and under the uniform line of decisions.</p> <p>It is contrary to § 1 Art. XIY of the constitution of the United States which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.</p> <p>Private corporations are persons within the meaning of that clause of the constitution. Charlotte C. A. Ji. liy. Co. v. Cibbes, 142 U. S. 386.</p> <p>The amendment of 1895 provides in substance that the owner of the property shall be paid the amount of his loss, over and above the amount of the insurance and that the insurance companies shall receive nothing. The insurance companies have an interest in the property insured— a vested interest — to a certain extent an ownership. “ Equality of rights, privileges, and capacities unquestionably should be the aim of the law.” Cooley’s Const. Lim. 391 and notes, 393.</p> <p>On principle it can never be within the bounds of legitimate legislation to enact a special law, or pass a resolve dispensing with the general law in a particular case and granting a privilege and indulgence to one man, by way of exemption from the operation and effect of such general law, leaving all other persons under its operation. Such a law is neither just nor reasonable in its consequences. It is our boast that we live under a government of laws and not of men ; but this can hardly be deemed a blessing, unless these laws have for their immovable basis the great principle of constitutional equality. Can it be supposed for a moment that, if tbe legislature should pass a general law, and added a section by way of proviso, that it never should be construed to have any operation or effect upon the persons, rights or property of Archelaus Lewis or John Gordon, such a proviso would receive the sanction or even the countenance of a court of law? Lewis v. Webb, 3 Greenl. 326.</p> <p>The rights of every individual must stand or fall by the same rule that governs every other member of the body politic or land, under similar circumstances; and every partial or private law, which directly proposes to destroy or affect individual rights or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Walley’s heirs v. Kennedy, 2 Yerg. 554.</p> <p>The clause above named in the policy of insurance — giving to the insurance companies the amount recovered of the railroad company, to the extent of its payment to the assured, was a contract between the parties to the policy. The act of 1895 is open to the objection that it impairs the obligation of that contract. It is not and was not intended to be retrospective, and does not apply in case of insurance effected before the act took effect, as are the policies in this case. Brake, Appellant, 86 Maine, 50, 55; Peabody v. Stetson, 88 Maine, 243.</p>

On Exceptions by Dependants. Tliis was au action on tbe case for wrongfully causing tlie plaintiff to be discharged while an employee of tbe Mount Waldo Granite Company. Tbe defendants took exceptions to overruling a demurrer to tlie declaration. Declaration.

<p> Exceptions. Practice. </p> <p>Exceptions lie to rulings upon questions of law only, and not to findings upon questions of fact.</p> <p>A bill of exceptions, to be available, must show clearly and distinctly that the ruling excepted to was upon a point of law, and not upon a question of fact; nor upon a question in which law and fact are so blended as to render it impossible to tell on which the adverse ruling was based.</p>

On Report. This was an action of debt under tbe statute to recover a tax. Tbe defendant company owns by purchase from tbe Dover and Foxcroft Water Company, its predecessor in title, a plant in tbe villages of Dover and Foxcroft.

<p>Insurance. Accident. Company. Notice of Injury. Waiver. Retroactive Statute. Slats. 1893, c. 223; 1899, c. 46.</p> <p>Ail accident insurance policy, dated October 11th, 1892, contained a provision to the effect that written notice should he given to the defendant within ten days of the accident and injury for which claim to indemnity is made; and that unless such notice was received within the specified time, all claim to indemnity under the contract of insurance should be forfeited to the defendant.</p> <p>Held; that the condition in the contract, at the time that it w'as made, was a valid one.</p> <p>The act of the legislature, approved March 17th, 1893, to the effect that no such stipulation in an accident insurance policy which limits the time within which notice shall he given to a period less than sixty days (amended in 1895 to thirty days) after the accident, shall be valid, does not apply to a contrae* previously made. No legislative ad can make invalid a provision in an existing contract otherwise valid.</p> <p>Held; in this case, that the plaintiff' cannot recover, he having failed to perform his condition of-the contract, as to notice of the injury, and there being no sufficient evidence of a waiver by the defendant of this provision.</p>

On Exceptions by Defendants. This was an action of trover, with a verdict for the plaintiff as against defendants, Standard Granite Company and Cyrus J. Hall for the sum of $607.65. Included in the verdict, according to the jurors’ answers to special questions framed by tbe presiding justice, were tlie following items: “Carr Boarding House,” valued at $800. “Small house on quarry,” valued at $50. “House on land of Mrs. O’Dell,” valued at $102.

On Motion and Exceptions by Defendants. Tliis was an action to recover damages for negligence in the management of the plaintiff’s logs which came into the Penobscot Boom in the spring of 1893.

On Motion by Defendant. The case appears in the opinion. Degree of care: Counsel cited, in addition to the cases on their brief to be found in 87 Maine, 283, Edwards v. Lord, 49 Maine, 279; Knight v. Portland, etc., JR. li. Co., 56 Maine, 234. Proximate cause: Willey v. Belfast, 61 Maine, 569. The conductor chose his own place to stop.

<p>Interest. Mortgage. Bedemption. Costs. B. 8., c. 90, § 22.</p> <p>In this State the law does not allow a creditor to recover interest upon interest that becomes due after the maturity of the principal. And if compound interest is required by a mortgagee, and paid under protest by one claiming under the mortgagor in order to prevent the expiration of the right of redemption, the mortgage having been foreclosed, it may be recovered by the person who paid it under such circumstances.</p> <p>The fact that a demand is made for the interest when it becomes due does not affect the question. Upon an indebtedness without interest, payable at no particular time but upon demand, a demand is necessary to make the indebtedness due, and interest only begins to run from the time of maturity; but a demand does not affect the matter of interest where the debt is payable at a definite time.</p> <p>The general rule is, that whenever the debtor knows what he is to pay and when he is to pay it, he shall be charged with interest if he neglects to pay. The only reason why this rule does not apply in the case of interest due at a stipulated time and unpaid, is because the law regards it as against public policy to allow a creditor to recover compound interest.</p> <p>When a mortgage is foreclosed by publication, one who is entitled to redeem must, before he can do so, pay the necessary expense of such foreclosure. This includes the amount paid for publishing the notice of foreclosure in a newspaper, and the recorder’s fee for recording the same.</p> <p>But the amount paid an attorney for professional services in such matters, however wise such employment may be and sometimes almost absolutely necessary, is not legally a necessary expenditure; therefore the person entitled to redeem is not obliged to pay it.</p>

<p>Way. Towns. Notice. B. S., c. 1.8, § 80.</p> <p>It is settled law in this State that the twenty-four hours actual notice by the municipal officers of a town or road commissioner of defect, in the highway, whereby a traveler may recover damages for an injury received, must be of the identical injury itself. Notice of another defect, or of the existence of a cause liltely to produce a defect, is not sufficient.</p> <p>The words “actual notice” in the statute(R. S., c. 18, § 80,) signify something more than an opportunity to obtain notice by the exercise of due care and diligence. The facts and circumstances in a given case may justify the conclusion that the officers must have had actual notice unless grossly inattentive; but proof of gross inattention is not proof of actual notice.</p> <p>The plaintiff obtained a verdict against the defendant town for a personal injury sustained by reason of a defective plank in the sidewalk. The written notice served on the town, after the injury, stated that the “ defect and want of repair consisted of a board or plank in a sidewalk which had become rotten and decayed on the under side thereof, and unsafe for public travel.” Held; that the verdict must be set aside, there being no evidence to show that the municipal officers or road commissioner of the town had twenty-four hours actual notice of such defect.</p> <p>Hurley v. Bowdoiuham, 88 Maine, 2ÍK5, affirmed.</p>

<p> Insane Paupers. 'Pawns. JSecord. Amendment. </p> <p>It. S., c. 343, §§ 13, 19, 21, 34.</p> <p>In an action of assumpsit, under R. S., c. 143, to recover for sums paid .by plaintiff town for tbe support of an insane pauper at tbe insane hospital, it was admitted that the insane person had a pauper settlement in the defendant town.- Two points were urged in defense, viz : want of proper notice, and failure to keep a proper record of the proceedings respecting tlie examination and commitment of the pauper.</p> <p>Held; that a notice sent to tlie overseers of the poor of the defendant town containing proper facts, from tlie “office of the overseers of tlie poor” of Bangor, by “B. C. Davis, overseer of the poor and secretary,” is sufficient; and thereby the defendant town becomes charged for all sums paid by the plaintiff' town within three months prior, and two years after, tlie cause of action accrued.</p> <p>Tlie record of the proceedings, attending the examination and commitment, will be held valid, although not extended for nearly two years after the commitment, it appearing that it was made during tlie municipal year immediately succeeding- the commitment and by tlie clerk, who continued to hold liis office by re-election.</p> <p>It is established in New England that a clerk, who has made an erroneous or incomplete record while in office or after re-election, may complete such records; and where he continues in office for several years, he may amend former records notwithstanding intervening- re-elections.</p> <p>A record of such proceedings that omits to state, according- to the statute, that the two practicing- physicians who made the medical examination were also “respectable” will be held sufficient when it appears to contain a statement of all facts requisite to establish the regularity of tlie proceedings and a legal commitment, — no evidence being adduced that tlie two physicians, who signed the certificate, were not in fact respectable. In such cases the court is aided by the presumption in regard to public officers, expressed by the maxim, “ omnia presumuntur rite esse acta.”</p>

On Report. Complaint. Waldo ss. State of Maine. To the Judge of the Police Court of the City of Belfast in the County of Waldo : George W. Frisbee of Belfast in said County, on tbe 7th day of November in the year of our Lord one thousand eight hundred and ninety-three, in behalf of said State, on oath complains that John F. Thomas of Morrill in said County of Waldo, laborer, on the 6th day of November in the year of our Lord one thousand eight hundred and ninety-three, with…

<p>Lien. Logs. 11. 8., a. 91, § 38.</p> <p>Tlie defendant contracted to haul certain logs, and in making up Ms team lie hired of the plaintiff a horse, double harness and double sled at an agreed price per month; during part of the time the horse was used alone and part of the time with another horse of the defendant. During all the time the horse was driven by an employee of defendant and was under defendant’s control, hut the plaintiff was not engaged to drive the horse or perform any labor in connection with these logs. Held; that the plaintiff is not entitled to a lien on the logs. He did not within the meaning of the statute labor " at cutting, hauling, rafting or driving,” said logs or lumber and therefore is not entitled to " a lien thereon for the amount due for Ms personal services and for the services performed by his team.”</p>

<p>On Exceptions by Plaintiee.</p> <p>The case appears in tlie opinion.</p>

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

Ón Exceptions by Dependant. This was a proceeding under R. S., c. 8, § 67, to determine the location of a line in dispute between the towns of Winthrop and Readfield. The defendant filed the following motion to dismiss the commissioners’ report : Supreme Judicial Court, Kennebec County. October Term, 1895.

<p>Taxes. Assessment. Collection. 11. 8-, o. 6, §§ 80, 39, 142. Priv. and Spec,. Laws, 1895, c. 301.</p> <p>The defendants, as assessors of tlie town of Etna, completed their assessment of the tax for the year 1895, including the town’s proportion of the state tax for the same year and committed the same to the tax collector, two days before the state treasurer Issued his warrant as provided by R. S., c. 6, § 36, and as required by the act of the legislature making the assessment of a state tax for the year 1895 -</p> <p>The state tax for the year 1895, was laid by the legislature, the only competent authority, by an act approved March 26, 1895. The proportion of the whole tax that was to be paid by each' city, town and plantation in the state was fixed by that act. The amount apportioned thereby to the town of Etna was §340.14, the precise amount included by the assessors, as the town’s proportion of the state tax, in their assessment and commitment.</p> <p>In an action against the assessors for the arrest of the plaintiff by the tax collector for the non-payment of his tax, held; that the assessors’ authority to assess and commit this tax did not depend upon the state treasurer’s warrant. The issuance of that -warrant was a ministerial act, and such warrant was not the only nor the best evidence of the amount of the state tax that was to be assessed upon the polls and estates in the town of Etna. And that if the assessors saw fit to complete the assessment, including the state tax for the current year and commit the same to the collector before the issuance of the state treasurer’s warrant, the tax-payer, at least, can find no' fault.</p> <p>The tax on the plaintiff's real estate in the record of assessment was assessed at $2.33, while in the lists committed to the collector it was stated to be $3.33. The latter amount is the correct assessment upon the real estate at the valuation placed thereon by the assessors.</p> <p>Held; that this clerical error does not even mate the assessment void, much less render the assessors liable for the plaintiff’s arrest by the tax collector.</p> <p>If the arrest of the plaintiff was unlawful because he offered to show the collector sufficient goods and chattels to pay the tax, still the defendants are not liable. The collector is not the servant of the assessors and they are not responsible for his illegal act, if any be shown.</p>

<p> Will. Contingent Remainder. </p> <p>A remainder is contingent when it is so limited as to take effect to 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. It is contingent if it depends upon the happening of a contingent event whether the estate limited as a remainder s^iall ever take effect at all.</p> <p>While courts have generally adopted the rule of construction that no remainder will be construed to be contingent, which may, consistently with the intention of the testator', be deemed vested, it is equally well settled that in the interpretation of wills the intention of the testator must control.</p> <p>The will which the court is asked to construe contained this clause: “ I give and bequeath to my beloved wife, Elizabeth J. Leavitt, all my estate, .both real and personal, of which I may be possessed at the time of my decease, for her use and benefit during her life, and at her decease, whatever there may be left of said estate or the effect of the same, I hereby order and direct that it shall be apportioned equally among my children, to wit, Elizabeth J. Palmer, Wm. C. Leavitt, Samuel IC. Leavitt and Caroline M. Goddard, if they shall be living, but if they or any of them shall (die) previous to the fulfilment of this or the death of my wife, Elizabeth J. Leavitt,-then his or her portion or share in said estate shall descend to his or her children for their use and benefit forever.”</p> <p>I-Ield; that the devise to the testator’s four children after the death of a life-tenant was of a contingent remainder.</p> <p>Also, that the persons whh were to take this remainder upon the termination of the life estate were not ascertained. They were the four children named, if living. Until the termination of the precedent estate, by the death of the life-tenant, it was impossible to tell who would take under this devise.</p> <p>Three of the testator’s children named in the clause above quoted died during the continuation of the life estate; two of them left children, and one, Samuel K. Leavitt, left a widow, his sole legatee, but no children.</p> <p>Held; that the testator created a contingency but did not provide for it. I-Ie did not dispose of one-fourth of the remainder, in the event of the doatli of Samuel K. without children. And that this one-fourtli part of whatever of his estate was left by the life-tenant at her death must be distributed as intestate estate of Thomas C. Leavitt.</p> <p>And that although Samuel K. took no interest under the will of his father, as an heir of his father," he took one-fourth of the one-fourtli of the remainder that was undisposed oí; and his widow, as Ills solo devisee and legatee, will lie entitled to liis share.</p>

<p> License. Itinerant Vendor. Stat. 1893, c. 259 ; 1895, c. 97. </p> <p>An itinerant vendor, who has obtained the local town license required by Chap. 259 Laws of 1893, as amended by Ch. 97 Laws of 1895, is authorized to do business in such town “so long as such licensee shall in good faith continuously keep, offer and expose for sale the same kind or line of goods specified in his application, except that such license and authority shall in any event terminate and expire on the first day of April next following the date of application.’'</p> <p>But if he packs and removes his entire stock of goods from the town, and closes his store, he abandons all rights under his local license, and if later, during the same municipal year, he again desires to do business in the same town, it is necessary for him to procure a new license in the manner required by statute.</p>

On Exceptions by Dependants. This was an action of assumpsit upon a promissory note. The only question raised was whether the note bore interest at nine per cent from date to the time of judgment or only up to the maturity of the note. The presiding justice ruled that the note bore interest at nine per cent beyond maturity and until time of judgment. To this ruling the defendants excepted.

<p> Sales. Pleading. Exceptions. Non-suit. Evidence. </p> <p>When goods are sold to bo delivered at a place named at a future time and before delivery they are accidentally lost or destroyed, the loss falls upon the buyer if at the time of the loss the title had passed to him; otherwise the seller must bear the loss.</p> <p>When the writ contains a count on an account annexed in which the various hinds of goods sued for are accurately specified, held,; that such a form of declaring is sufficient -when the goods sold have been delivered, and by the terms of the sale the price of the goods was to be paid in money. When the price of goods sold is to be paid otherwise than in money, a special count is necessary.</p> <p>When the defendant’s request for an instruction is equivalent to a non-suit, the court may properly withhold the instruction.</p> <p>A postponement of the admission of evidence during a trial, by order of the court, is not an exclusion, when its admissibility is reserved for further consideration. If such testimony is not offered again, and the attention of the court is not called again to it, an exception will not be sustained on the grounds that it was excluded.</p>

<p>On Motion by Defendant.</p> <p>This was an action on the case for slander, in which there were ten distinct and separate utterances declared on and set out in the plaintiff’s declaration, as follows, viz: (1) “ That he took the note and that Libby had destroyed the note.” (2) “ That Libby signed the note but took it.” (3) “ That Libby knows where that note is.” (4) “You took that note and have got it, or know where it is, or have destroyed it.” ,(5) “ Moses, there is a hard report around town about you. They say you took that note and have got it, or know where it is, or have destroyed it.” (6) “I think Moses stole, or took, or knows where it is.” ,(7) “Libby took; I know it.” (8) “ Dod darn it all, I can’t produce the note, you stole the note and know where it is or destroyed it.” (9) “He knew Mose Libby stole that note, dod darn him.” (10) “ That said plaintiff knew where the note was or had made way with it.”</p> <p>The jury rendered a verdict for $3000 in favor of the plaintiff.</p> <p>The case appears in the opinion.</p> <p>In actions of slander, evidence of words of similar import to those charged in the declaration spoken by the defendant, both before and after the commencement of the action, is admissible to show malice. Smith v. Wyman, 16 Maine, 13.</p> <p>From words, in themselves actionable, the law implies malice and that some damages arise therefrom. In addition to the implication of malice, a plaintiff may prove express malice for the purpose of increasing the amount of damages. For this purpose he may prove that the defendant repeated the slander after action was brought. The repetition is riot to be viewed as a substantive ground of recovery, but only to illustrate the motive of the former speaking. True v. Plumley, 36 Maine, 466.</p> <p>A repetition of slander is admissible to show, malice. Hastings v. Stetson, 130 Mass. 293.</p> <p>The plaintiff is not only entitled to damages, but exemplary, damages are allowable in an action of slander. Harmon v. Harmon.| 61 Maine, 233.</p> <p>When the slanderous words charged were spoken wantonly and maliciously, the plaintiff is entitled to recover punitive or exemplary damages, and the assessment thereof is almost entirely in the discretion of the jury. Cahill v. Murphy, 94 Cal. 29.</p> <p>Exemplary damages may be recovered in an action for slander when defamatory words are spoken with implied malice, as well as when they are spoken with express malice, and malice is implied from the wilful utterances of falsehoods concerning another, whereby injury is done to his character; and whether such damages should be given in any case is a matter within the discretion of the jury. Callahan v. Ingram, 122 Mo. 355.</p> <p>In actions for slander, libel and other personal torts, the court will not grant a new trial on the ground of excessive damages unless the amount be so flagrantly extravagant as to show that the jury must have been actuated by passion, partiality, prejudice or corruption. Coleman v. Southwiak, 9 Johns. 45, and cases cited; Rand v. Reddington, 13 N. II. 72.</p> <p>In cases of tort; the court will not set aside a verdict on the ground of excessive damages, unless, from their magnitude, compared with the circumstances of the case, it be manifest that the jury acted intemperately or were influenced by passion, partiality, prejudice or corruption. Tompson v. Mussey, 3 Maine, 305; Williams v. Grilman, 3 Maine, 276; Jacobs v. Bangor, 16 Maine, 187; Gilbert y. Woodbury, 22 Maine, 246; Kimball v. Bath, 88 Maine, 219.</p> <p>When a verdict is not so clearly excessive as to create a belief that the jury was influenced by improper motives, or fell into some mistake in making their computation, the court, has no right to set the verdict aside. Field v. Plaisted, 75 Maine, 476, and cases cited.</p> <p>In actions of slander, we regard the law as well settled that the defendant’s wealth is an element which goes to make up his rank and influence in society and therefore his power to injure the plaintiff by his speech, and it is a fact not to be overlooked by the jury in estimating damages. Humphries v. Barker, 52 Maine, 502.</p> <p>All of these utterances complained of, with the exception of the sixth, eighth - and ninth set of words,- are not actionable in themselves. There is no distinct averment, in the pleadings, that these words in themselves bear a specific meaning which is in itself actionable. Nye v. Otis, 8 Mass. 122; Snell v. Snow, 13 Met. 278; Fdgerley v. Swain, 32 N. H. 478; Brown v. Brown, 14 Maine, 317; Bullock v. Koon, 9 Cow. (N. Y.) 30.</p> <p>They are only actionable by reason of special damages laid in the declaration.</p> <p>Where words not actionable per se, but actionable because of special damages alleged, such damages must be explicitly claimed on the pleadings, and strictly proved at the trial. Special damages will not be supplied nor inferred argumentatively. Barnes v. Trundy, 31 Maine, 321; Cook v. Cook, 100 Mass. 194; Bloss v. Tobey, 2 Pick. 326; Snell v. Snow, 13 Met. 278; Swan v. Tap-pan, 5 Cush. 104.</p> <p>The testimony of persons to whom the words were spoken is alone admissible to prove such special damages. Bicken v. Shepherd, 22- Md. 399.</p> <p>Special damages alleged in the declaration of plaintiff’s writ are severed from any relationship to defendant’s word or act. Plaintiff was scarcely susceptible of damage in his business standing or credit. His business was small; credit limited to the sum of $250 with the house of Milliken, Tomlison Company, who were his principal creditors; he had twice compromised with his creditors; liis stock of goods was decreasing; he was not meeting his payments to his wholesalers; in short, his business condition and standing invited and provoked his final disaster, to which, as the case shows, this defendant in no wise contributed.</p>

On Exceptions by Dependant. This was an indictment against the Maine Central Railroad for the death of one Brown, killed October 13, 1893. The indictment was brought under R. S., c. 51, § 68. To this indictment the defendant demurred specially on the ground that the indictment statute was repealed by implication by the Stat. of 1891, c. 124. By agreement of parties and leave of the court, this demurrer was filed with the right to plead over.

On HeL’OUT. Bill in equity, heard on bill, answer and testimony.

<p>On Exceptions by Dependant.</p> <p>The defendant having been convicted of an assault, before the Superior Court for Kennebec County, took exceptions wliicli are stated in the opinion of the court.</p>

<p> Negligence. Landlord. Entrance to Cellar. </p> <p>The plaintiff sustained severe personal injuries by falling into the cellar of Bodick Block in Bar Harbor. The first floor of the block is divided into stores, and the second floor into rooms which are leased for offices. The main entrance to the stairway leading to the second floor is about midway of the length of the building, and is closed by double doors opening inward to a short landing at the foot of the staircase. Twenty-two and one-half inches from these doors,, and at the same height from the sidewalk, is a single door opening from the sidewalk inward to the cellar. There is no staircase by which to enter the cellar and no other landing than the top of the cellar wall. A crude ladder, leading from the doorway to the bottom of the cellar, afforded the means of descent. This cellar door was unfastened on the evening of the accident, and when the door was open there was no railing or other safeguard to prevent a person from stepping over the cellar wall and falling into the cellar.</p> <p>One set of offices on the second floor was occupied at the time in question by a practicing physician, and his sign was affixed to the outside of the building between the cellar door and the main entrance. On the evening of the accident the plaintiff was passing along on the sidewalk intending to go up to the physician’s office. She was not familiar with the premises, but seeing the doctor’s sign and supposing that it indicated the cellar door as the place of entrance, she opened the door, stepped over the wall and fell to the bottom of the cellar.</p> <p>Held; that the conditions connected with the approach to the main entrance of the building were misleading and dangerous; that in this respect the building was improperly constructed and negligently maintained; and that the plaintiff was on the premises by the implied invitation of the defendants, on legitimate business, in the exercise of such care and caution as persons of reasonable prudence and discretion usually exercise under such circumstances.</p>

On Motion and Exceptions by Defendant. The case is stated in the opinion. Counsel argued: 1. That there is no evidence in this case to show any express contract to pay for services rendered by plaintiff after majority. 2.

On Motion and Exceptions by Dependant. The case appears in the opinion. The statute does not preclude the owner of lumber, who is otherwise qualified, from surveying his own lumber, as is the case under the statute of Massachusetts. Whitman v. Freese, 23 Maine, 185. If the defendant would avoid his contract, the burden of proof is upon him to establish the fact that there was no legal survey.

<p> Probate Judge. Void Appointment. </p>

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

On Motion and Exceptions by Defendants. • This was an action for slander in which the jury returned a verdict for the plaintiff, and the defendants filed a general motion for a now trial, and took exceptions to the charge of the presiding justice. The view taken by the court of the motion renders a report of the exceptions unnecessary.

On Report. This was a trustee suit tried before the justice of the Superior Court, Cumberland county, and by agreement of parties the liability of the trustee was reported for the determination of the law court. The case appears in the opinion.

<p>Minors. Custody. Enticement. Pleading. Amendment. Costs. B. S., c. 82, §§ 10, 26; Stat. 1896. c. 43.</p> <p>By the statute of this State, Stat. of 1895, o. 43, it is provided that “ fathers and mothers shall jointly have the care and custody of the person of their minor children.” Held; that both parents of a minor are properly joined as plaintiffs in an action for enticing and persuading a minor child from their .custody.</p> <p>The criterion of the parents’ right of action for a wrongful enticing and persuading their minor child from their custody is not the will of the child, but the will of its parents; and it is immaterial that, at the time of the wrongful act, the child was not actually a member of the parents’ household, provided they had a right to recall her to their custody and service.</p> <p>The defendant, filed a general demurrer at the first term to tlie plaintiffs’ writ and declaration which was duly joined and the demurrer was sustained. The plaintiffs then moved to amend their writ by inserting an ad damnum of one thousand dollars, none having been stated before, which amendment was allowed. The defendant excepted to the allowance of the amendment. After this amendment the defendant again filed a general demurrer to the declaration, which demurrer was joined and overruled. To this ruling the defendant excepted.</p> <p>Held; that the proposed amendment by inserting the ad damnum, which had been inadvertently omitted, was clearly allowable.</p> <p>The statute requiring payment of costs as a condition to the amendment of defective declarations (R. S., c. 82, § 25) does not apply to this (¡ase until after a decision of the defendant’s exceptions by the law court. In contemplation of law, the plaintiffs.have not amended their writ, and cannot do so until tlie exceptions are overruled, and it has been finally decided that the proposed amendment is allowable.</p> <p>The right of the defendant to the costs named in the statute is postponed until the action comes on for trial, when they will be fully protected.</p> <p>Held; that the objection that there is no definite averment of the time when, as the plaintiffs allege, tlie “ defendant enticed and persuaded their said daughter to disobey her parents and remain with said defendant” is not open to the defendant on general demurrer. Such omission, it being matter of form, can only be taken advantage of on special demurrer.</p>

On Motion by Defendant. This was an action on the case in which the jury returned a verdict of $3000 in favor of the plaintiff, as administrator of his wife’s estate, for causing the death of his wife at a railroad crossing of the defendant corporation at a place called Warren’s crossing in the town of Wells, York County. The defendant filed a general motion for a new trial. The case is stated in the opinion.

On Report. This was a bill in equity brought by the executors of the will of Mary E. S. Southworth, late of Belfast, deceased, for the purpose of obtaining the construction of the residuary clause of her will, and which will be found in the opinion of the court.

<p>On Report.</p> <p>The case is stated in the opinion.</p> <p>Non-occupancy: R. S., c. 49, § 20 ; White v. Phoenix Ins. Co., 83 Maine, 279, Id. 85 Maine, 97; Lanoy v. Home Ins. Co., 84 Maine, 492; 1 May, Ins. § 249, A; Bonenfantr. Ins. Co., 76 Mich. 654; Ashworth v. Builders Ins. Co., 112 Mass. 422; Keith v. Mutual Ins. Co., 10 Allen 228; Hermann v. Adriatic Ins. Co., 85 N. Y. 162; Kimball v. Monarch Ins. Co., 70 la. 513; American Ins Co. v. Padfield, 78 111. 167; Corrigan v. Conn, Fire Ins. Co., 122 Mass. 298; Moore v. Ins. Co., 64 N. H. 140; Sonnebom v. Ins. Co., 44 N. J. 220; Fehse v. Council Bluffs Ins. Co., 74 la. 676; Liteh y. Ins. Co., 136 Mass. 491.</p> <p>No waiver: It. S., c. 49, § 21 ; 2 May on Ins. § 507.</p> <p>False swearing: Claflin v. Ins. Co., 110 U. S. 81; Sleeper v. Ins. Co., 56 N. H. 401; Wall v. Ins Co., 51 Maine, 82; Linseott v. Ins. Co., 88 Maine, 497; JDolloff v. Ins. Co., 82 Maine, 266.</p> <p>Chattel mortgage: Stewart v. Hanson, 35 Maine, 506 ; Flanders v. Barstow, 18 Maine, 357; Hindi v. Ins. Co., 112 Pa. St. 128; Filis v. State Ins. Co., 61 la. 577; 1 May on Ins. § 291, A; Treadway v. Hamilton Ins. Co., 29 Conn. 68; Sweetser v. Lowell, 33 Maine, 452; Foster v. Perkins, 42 Maine, 174.</p>

<p>On Motion by Deeendant,</p> <p>Tins was an action brought to recover damages resulting from personal injuries sustained by the plaintiff while employed in the defendant company’s paper mill a,t Rumford Falls. At the trial of the case the defendant’s counsel moved for a non-suit, and, the motion being denied, rested upon the evidence already presented. The jury returned a verdict for the plaintiff in the sum of $4250. The defendant company filed a general motion that the verdict be set aside as being against law and evidence, and for excessive damages.</p> <p>Proximate cause: 16 Am. & Eng. Enc. p. 439; 2 Thompson on Negligence, 1805; lake v. Milliken, 62 Maine, 240; Eaton v. Boston B. Co., 11 Allen, 500; Bollard v. M. C. 11. B. Co., 87 Maine, 55.</p> <p>Contributory negligence: Mundle v. Hill Manfg. Co., 86 Maine, 405; Wormell v. M. C. B. B. Co., 79 Maine, 405; Smith v. Peninsula Car Works, 60 Mich. 501, (1 Am. St. Rep. 542, and cases cited).</p> <p>Assuming risk: Miner v. Conn. B. II., 153 Mass. 403; Campbell v. Eveleth, 83 Maine, 55; 4 Am. & Eng. Enc. p. 34.</p> <p>Fellow-Servants: 7 Am. & Eng. Enc. p. 843 ; Flike v. B. A. B. Go., 53 N. Y. 549-553; Thompson on Negligence, p. 1031.</p> <p>Accidental casualty: Elwell v. Hacker, 86 Maine, 417 ; Nason v. West, 78 Maine, 254; Brown v. Collins, 53 N. H. 451; .'Davis v. Saunders, 2 Chit. R. 639; Sheldon v. Sherman, 42 N. Y. 486 ; Richards v. Bough, 53 Mich. 212; Sjorgren v. Hall, 53 Mich. 274; Wormell v. M. C. B. B., 79 Maine, 403; Brown v. E. N. A. Railway Co., 58 Maine, 387; Osborne v. Knox Lin. Railroad, 68 Maine,'51.</p> <p>Proximate cause: Shear, and Redf. Neg. § 26; Whart. on Neg. § 3. The unexpected giving away of the paper, under the force being used by the plaintiff, was the proximate and sole cause of plaintiff’s accident. Conley v. Am. Express Co., 87 Maine, 352; MU. B. B. Co., v. Kellogg, 94 U. S- 469; La. Mut. Ins. Co. v. Tweed, 7 Wall. 44; Washington y. JBalto. etc., R. R., 17 W. Ya. 190; Moulton y. Sanford, 51 Maine, 127; O'Brien y. Mc-Glinchy, 68 Maine, 557; Beven on Neg. 53; Ilofnagle y. N. Y. den. f H. River R. R. Co., 55 N. Y. 611; Vicars y. Wilcox, 8 East, 1; Cuff v. Newark etc., R. R. Co., 35 N. J. L. 32; Ashley v. Harrison, 1 Esp. 48.</p> <p>Contributory negligence: Cooley on Torts, 674; Cassidy v. M. C. R. R., 76 Maine, 489; Pierce on Railroads, 323; Mayor v. Bailey, 3 Denio, 433; Creamer y. Portland, 36 Wis. 92; Hammond y. Muckwa, 40 Wis. 35; Otis y. Janesville, 47 Wis. 422; Strong v. Sac. f PI. R. Co., 61 Cal. 321; Baltimore f Ohio R. R. Co. y. Fitzpatrick, 35 Md. 32; Manley v. Wilmington R. R., 74 N. C. 655; Eerwhacker v. Cleveland, etc., R. R., 3 Ohio St. 172; Bash v. Fitzhugh, 2 Lea, (Tenn.) 306; Houston, etc., R. R. v. Corbett, 49 Texas, 573; Bridge y. Grand Junction Ry. Co., 3 Mee. & W. 244; Terre Haute, etc., R. R. Co. y. Graham, 95 Ind. 286, 291; Monongahela City v. Fischer, 111 Pa. St. 9; Murphy y. Beane, 101 Mass. 455; Irwin v. Sprigg, 6 Gill, (Md.) 200; Richmond,, etc., R. R. Co. v. Anderson's Admr. 31 Gratt. (Ya.) 812; Washington y. B. f O. R. Co., 17 W. Ya. 190; Beach on Cont. Neg. 2d Ed. § 9, p. 10, § 100, p. 128.</p> <p>Fellow-servant: Beach on Cont. Neg. § 115, p. 138; Holden y. Fitchburg R. R. Co., 129 Mass. 268; Boughty y. Penobscot Log Briving Co., 76 Maine, 143 ; Blake y. _M. C. R. R., 70 Maine, 63; Lawler y. Androscoggin Railroad Co., 62 Maine, 463 ; Carle v. B. f P. O. f R. R. Co., 43 Maine, 269; Beaulieu y. Portland Company, 48 Maine, 291; Tunnay y. Midland Railway Co., Law Rep. C. B. 291; Feltham v. Fngland, L. R. 2 Q. B. 33; Gallagher v. Piper, 33 L. J. C. P. 335; Gillshannon y. Stony Brook R. R., 10 Cush. 228; Hurd Admr. y. Vt. C. R. R. Co., 32 Yt. 473; Osborne v. Enox f Lincoln R. R., 68 Maine, 51; Hodgkins y. Fastern R. R., 119 Mass. 419; Shannon v. N. Y. f II. R. R. 62 N. Y. 251; Farwell y. B. f W. R. R. 4 Met. 59; U. S. Rolling-Stock Co. y. Wilder, 116 111. 100; Bavis v. Betroit R. R. 20 Mich. 105; Harkins y. N. Y. R. R. 65 Barb. 129; Hatt v. Nay, 144 Mass. 186 ; Indiana R. R, Co. v. Bailey, 110 Ind. 75; Wright v. N. Y. Cent. R. R. Co., 28 Barb. 80; Russell v. Tillotson, 140 Mass. 201; Fanning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; Lake Shore R. R. Co. v. Knittal, 83 Ohio St. 468; Kansas Pao. R. R. Co. v. Peavey, 34 Kansas, 474; Frazier v. Penn. R. R. Co., 38 Pa. St. 104; Texas M. R. R. Co. v. Whitmore, 58 Tex. 276; Kroy v. Chicago R. R. 82 Iowa, 357; Oregan v. Marston, 126 N. Y. 568; Kaare y. T. S. I. Co., 139 N. Y. 369-378; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31;</p> <p>Assuming risk: Tuttle v. Detroit etc., R. Co., 122 U. S. R. (11 Sup. Ct. Rep. 116) ; Texas <f Pac. Ry. Co. v. Rogers, 6 C. C. A. 403, (U. S. Cir. Ct. App. Fifth Circuit, June 27, 1893) ; Nason v. West, 78 Maine, 258; Coolbroth v. M. C. R. R., 77 Maine, 165; Judkins v. M. C. R. R., 80 Maine, 418 ; Griffiths v. London St. Katherine Docks Co., 12 Q. B. Div. 495; Wheeler v. Wason Manfg. Co., 135 Mass. 298; Sullivan v. India Manfg. Co., 113 Mass. 396 ; Fitzgerald v. Conn. River Paper Co., 155 Mass. 155; Osborne v. Knox Lincoln R. R., 68 Maine, 51; Plant v. Grand Trunk, 27 Up. Canada Q. B. 78; Searle v. Lindsey, 11 C. B. (N S.) 429; Gibson v. Brie Ry., 63 N. Y. 449; Missouri Furnace Co. v. Abend, 107 111. 51; Smith v. Sellers, 40 La. An. 527; Indianapolis, etc., R. R. v. Watson, 114 Ind. 20.</p>

On Exceptions by Dependant. The case is stated in the opinion. There is no law which directs the use of an interpreter, when necessary, before a grand jury; yet when necessary, the court has never hesitated to use one. ISIo law or constitutional right is infringed in this case, the stenographer not being present during the deliberation of the grand jury. Such is the practice in Illinois, Indiana and in Tennessee, including the federal courts of that state.

On Motion and Exceptions by Dependant. This was an action to recover damages, sustained by the plaintiff, on account of the alleged negligence of the defendant company in not providing suitable machinery and appliances in and about a freight elevator in the defendant’s store, and under their management and control, whereby the said plaintiff, while engaged in the employ of the defendant company, and while passing on to said elevator in the performance of his duty, sustained…

<p>Taxes. Electors. Unincorporated Places. B. S., c. 4, § SS.</p> <p>Electors living in unincorporated places may furnisli lists of tlieir polls and estates to the assessors of any adjacent town, on or before tlie first day of April, and said assessors shall assess state and county taxes upon all such persons. And such electors so presenting their polls and estates may vote in such town in all elections for governor, senators, representatives and county officers.</p> <p>Held; that such elector is not liable to be assessed for a town tax.</p>

<p>In Equity. On Appeal.</p> <p>This was an equitable trustee process, under R. S., c. 77, § 6, cl. X, heard in the court below on bill, answers and proofs,’ and where the bill was dismissed. The plaintiffs appealed to this court.</p> <p>One of the principal portions of the decree appealed from is as follows:</p> <p>“That as Mrs. Lynam owned the real estate, she was entitled to its income, and might justly appropriate to herself from her husband’s remittances an amount equal to a fair rental of the premises occupied by her husband’s family, which were owned by her; and that the amounts remitted to her by her husband' have not exceeded the amount expended for the support of his family, and the fair rental of the premises occupied by his family.”</p> <p>The case is stated in the opinion.</p> <p>Burden of proof on plaintiffs: Stratton v. Bailey, 80 Maine 345 ; Metcalf v. Metcalf, 85 Maine, 473.</p> <p>It would be harsh and inequitable to hold the wife to a strict keeping of accounts with her husband, no fraud being claimed and the wife having no reason for thinking that an account would ever be needed. Business men expect settlements ; a husband does not require it of his wife.</p> <p>Rent: As between husband and wife it is not necessary to decide that rent can be charged and collected. But in equity, as against creditors, a wife living by force of necessity practically apart from her husband, on her own homestead, is entitled to appropriate from her husband’s remittances a fair sum for the premises occupied by herself and her husband’s children. The husband is certainly bound to provide both a home and a living to wife and children. If this house should burn down and the wife and family move into the house of a stranger, the husband would be liable for the rent. If he should send home money for expenses she could certainly appropriate a portion for rent.</p> <p>By the laws of this state a married woman is entitled to the total income and use of her own property, even as against her husband. If, as against creditors of her husband, she cannot appropriate from moneys sent by him for general family expenses, a fair sum for use of her property, then she does not get the whole benefit and income of it; but the creditors of the husband get it.</p> <p>While this proposition is correct, it is incidental to the issue, as outside of rent, all remittances by the husband were required for the support of the family.</p> <p>Cases cited by counsel for plaintiff contain either a strong element of fraud, interest acquired by husband furnishing part of purchase money, or by breach of trust on part of wife, or by contract, express or implied, between husband and wife.</p> <p>Husband’s improvements on wife’s land cannot be taken by his creditors, except in cases of fraud: Webster v. Hildreth, 33 Vt. 457, (78 Am. Dec. 632); Robinson v. Huffman, 15 B. Monroe, 80, (61 Am. Dec. 177) ; JSilers v. Qonradt, 39 Minn. 242, (12 Am. St. Rep. 641); Lewis v. Johns, 24 Cal. 98, (85 Am. Dec. 49); Phillips v. Hall, 28 Atl. Rep. (Pa.) 502; Smith v. Reber, 18 Atl. Rep. 462, (N. J. Eq.) ; Pede v. Brwnmagim, 31 Cal., 440, (89 Am. Dec. 195 and notes); Lynde v. McGcregor, 13 Allen, 182, and note in same (90 Am. Dec. 188).</p> <p>Money and labor expended voluntarily by husband upon his wife’s land gives him no right, title or interest therein: Holmes v. Waldron, 85 Maine, 312; Humphreys v. Newman, 51 Maine, 40; Burleigh v. Coffin, 22 N. H. 118, (53 Am. Dec. 236); Mardble v. Jordan, 5 Humphreys, 417, (42 Am. Dec. 441 and note); Pierce v. Pierce, 25 Vt. 511.</p>

<p>Tbe case is stated in tbe opinion.</p> <p>Waiver: Counsel cited: lewis v. Monmouth Ins. Có., 52 Maine, 492; Nickerson v. Nickerson, 80 Maine, 100; Pay v. Insurance Co., 81 Maine, 247 ; May on Ins. 1st Ed. § 469, p. 573; Tayloe v. Merchants P. Ins. Co., 9 Howard, 191; Clark v. N E. P. I. Co., 6 Cush. 342, and cases; Bartlett v. Union M. P. Co., 46 Maine, 503; Underhill v. Agawam P. I. Co., 6 Cusb. 440; Priest v. Citizens I. Co., 3 Allen, 602; Pranklin I. Co., v. Coates, 14 Md. 385 ; Rogers v. Traders I. Co., 4 Paige, 583.</p> <p>Waiver: a question of fact for tbe jury: Nickerson v. Nicker-son, 80 Maine, 100; Smith v. Cal. Ins. Co., 87 Maine, 190; Piehl v. Adams Co. Ins. Co., 58 Pa. St. 443, (98 Am. Dec. 302) ; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35, (35 Am. Rep. 590); MaPike y. Western Mss. Co., 61 Miss. 37; West v. Platt, 127 Mass. 372; Savage Mfg. Co. v. Armstrong, 17 Maine, 34; 7 Am. & Eng. Enc. of Law, 1056; Parmer’s Ins. Co. y. Moyer, 97 Pa. St. 441; Farmer’s Ins. Co. v. Taylor, 73 Pa. 842; Penn. Ins. Co., y. Dougherty, 102 Pa. St. 568; Brink v. Hanover Ins. Co., 70 N. Y. 591-2; Trask v. Ins. Co., 29 Pa. 198, (72 Am. Dec. 622) ; Patrick v. Ins. Co., 43 N. H. 621, (80 Am. Dec. 197) ; Beatty v. Ins. Co., 66 Pa. 9, (5 Am. Rep. 318); Bennett v. Lycoming Co., 67 N. Y. 274; Underwood y. Farmer’s Ins. Co., 57 N. Y. 500; Norwich ¿- N. Y. Trans. Co. v. Western Mass. Co., 34 Conn. 561; Heath v. Franklin Ins. Co., 1 Cush. 257; Braves v. Wash. M. I. Co., 12 Allen, 361; Aetna Ins. Co. y. Tyler, 16 Wend. 401; Blake y. Exchange Mut. Ins. Co., 12 Gray, 265; Tayloe v. Merchants F. Ins. Co., 9 Howard, 390 — 403; Peoria M. §■ F. Ins. Co. y. Whitehill, 25 111. 382-388; Susquehanna Ins. Co.v. Staats, 102 Pa. St. 529.</p>

<p>In Equity. On Exceptions and Appeal.</p> <p>The case appears in the opinion.</p> <p>Plaintiffs’ stage line: Marsh v. Billings, 7 Cush. 322; Stone v. Oarlain, 2 Sandf. 738; London Geni. Omnibus Co. v. Turner, 38 Solic. Jour. 457; Croft v. Bay, 7 Bevan, 84; Knott v. Morgan, 2 Keen, 213; Boulnois v. Péake, L. R. 13 Ch. Div. 513, n.</p> <p>The arm of a court in equity will not be shortened because this is a sale of transportation and not of merchandise. If amusements and hotels are protected against unfair competition, there would seem to be no reason why transportation may not be.</p> <p>It is no answer to say that the plaintiff can change its stage line to the defendant’s station, and that the latter is nearer Danville Junction. The plaintiff has a right to be protected against unfair competition in the stage route which it has for years operated. It has a right to receive its passengers at a point which they can reach most conveniently. Fraud will be presumed from the intentional use or simulation of a name rendered valuable by another. Glen $ Hall Mfg. Co. v. Hall, 19 Am. Rep. 278; S. C. 61 N. Y. 226. See Browne on Trade-marks, §§ 96 to 1Q1. The name of an amusement will be protected, i. e. Christie’s Minstrels. Christie v. Murphy, 12 Howard Pr. 77.</p> <p>The name of a coal company, though not a trade-mark. The Pall Mall Guinea Coal Co. an infringement on The Guinea Coal Co., though both in Pall Mall. Lee v. Haley, L. R. 5 Ch. App. 155.</p> <p>Though the name “ Stone Ale ” could not be protected as a trade-mark, it was protected because defendant’s use of the name was unfair competition and likely to mislead the public. Thompson v. Montgomery, 41 Ch. D. 35.</p> <p>So of Colton Dental Association, Colton v. Thomas, 2 Brews. 308.</p> <p>So of New York' Dental Rooms, wliicli was protected against Newark Dental Rooms. Saunders v. Jacobs, 20 Mo. App. 96.</p> <p>So of “Golden Lion” on a dry goods house. Walker v. Alley, 13 Grant, Up. Can. Ch. 366.</p> <p>So of bronzing horseshoe nails without any name. Putnam Nail Co. v. Bennett, 43 Fed. Rep. 800.</p> <p>So of uames of hotels. What Cheer House. Woodivard v. Lazar, 21 Cal. 448; Irving House. Howard v. Henriques, 3 Sandf. 725.</p> <p>“Keystone Line.” Winsor v. Clyde, 9 Phila. (G. P.) 513.</p> <p>Browne on Trade-marks, 2 ed. § 528; Harvard Law Review, Vol. IV. 321. Title on Certain Cases analogous to Trade-marks.</p> <p>Injury to Trade-Mark: Taendslicksf abrióles Atkaibolaget Vulcan v. Meyers, 139 N. Y. 364; Wheeler v. Johnson, 3 L. R. Ireland, 284.</p> <p>Whatever the law may be generally in regard to the use of a geographical name as a trade-mark, (McAndrew v. Bassett, 4 Do G. J. & S. 380), the law is well settled that when the plaintiff is the sole owner of the entire tract to which the name in question is applied, his use of that name as a trade-mark will be protected. Wotherspoon v. Currie, L. R. 5 II. L. 508; Xa Republic Francais v. Schultz, 57 Fed. Rep. 37; Parkland Hills, etc., Go. v. Hawkins, 26 S. W. 389; Braham v. Beachim, 7 Ch. Div. 848; Carlsbad, etc., v. Kut/now, 71 Fed. Rep. 167, affirming 68 Fed. Rep. 794.</p> <p>As used,the word “Poland” is a geographical word, being the name of a town, and as such is free to every one to use as he sees fit. Canal Co. v. Clark, 13 Wall. 322; Mill Co. v. Alcorn, 150 U. S. 460.</p> <p>Not only is the name of a town free to all, but likewise the name of a locality or region, although .it has no distinct political existence, as “ Green Mountains” and “ Genesee Valley.” Hoyt v. Lovett, 71 Fed. Rep. 173; Q-enesee Salt Co. v. Burnajo, 67 Fed. Rep. 534.</p> <p>The words are used by the defendant in a strictly geographical sense, — not as part of a trade-mark or trade name, or for indicating the place of manufacture of an article offered for sale, or the locality in which it is produced, but for giving a name to a particular placé, and a> station upon its railroad, representing as such stations do the surrounding locality. Hence the rules of law applicable to trade-marks and trade names do not govern such a use of geographical terms. But even if the question were as to the right to the use of these words in a trade name, the same rule would apply as to such use. The cases cited above were trade name cases. The name of a state, town, or city can never be protected except under special circumstances. Carlsbad v. Tibbetts, 51 Fed. Rep. 852; Candee v. Deere, (5 Am. Rep. 125,) 54 111. 439; Connell v. Reed, 128 Mass. 477; Nebraska Loan Trust Co. v. Nine, 27 Neb. 507, (20 Am. St. Rep. 686).</p> <p>There never can be an exclusive property in a geographical name. The only rights in connection therewith are to have the improper use of it enjoined. Chadwick v. Coveil, 151 Mass. 190; Pomeroy’s Eq., § 1354.</p> <p>The underlying principles of all these cases is fraud, unfair competition in business as opposed to fair competition. Dover, etc., v. Fellows, 163 Mass. 191.</p> <p>If the public were unfairly deceived by tickets and route advertised by defendant, it would be a matter between the public and the defendant, — a question of damage. This plaintiff could not maintain a bill to enjoin such tickets and advertisements unless he could show in himself exclusive right to transport passengers to Poland Springs. N. Y. Rosendal Cement Co. v. Cochley Cement Co., 44 Fed. Rep. 277; affirmed 45 Fed. Rep. 212. •</p>

In Equity. On Exceptions and Appeal. This was a bill in equity, brought by and in behalf of the several heirs at law of Ira P. Farrington, late of Portland, deceased, against the executors of said Farrington’s estate and the Maine Eye and Ear Infirmary, of said Portland, such of said heirs at law as were not made plaintiffs in the bill being joined as defendants therein.

<p>On Report.</p> <p>This was a search and seizure process. The case came into the court below upon appeal from a trial justice and was reported to the law court upon an agreed statement. The law court, among other things, was to determine what effect, if any, the fact that the warrant dated July 20, 1895, was served July 23, 1895, may have upon the complaint and warrant or the evidence of the identity of the liquors seized necessary to authorize a conviction under it.</p> <p>The case appears in the opinion.</p> <p>In State v. Hale, 81 Maine, 34, the court decided that “the return implies that the liquor ordered to be seized and the liquor seized are the same.” In Oom. v. Intox. Liquor, 110 Mass. 182, it was held that “ the jury is warranted in finding that the liquors seized were the liquors described, although the officer who made the complaint and the seizure testified that at the time of making the complaint he had no knowledge of the quantity, kinds or packages of the liquors.” See also Com. v. Certain Intox. Liquors, 13 Allen, 52. The service of a writ by arrest of the defendant, will not be ground of abatement, or illegal, simply because he was not a resident, nor within the state, when the writ was made, and the oath that he was about to depart, etc., (required by the R. S., c. 113, § 2, to authorize the arrest,) was taken. Adams v. MoFarlane, 65 Maine, 143.</p>

On Motion and Exceptions by Plaintiee. • This was an action of assumpsit, writ dated August 6, 1896. The writ contains two counts; one for goods sold and delivered; and one for not accepting the goods sold. And also for goods bargained and sold.

On Report. This was a petition for partition. The petitioner claimed one-undivided sixth of the premises described. The defendant denied the title of the petitioner and claimed to own the whole premises. Three brothers, Elbridge, Henry and Joseph, were once seized of the premises, one-third each.

On Report. This was a writ of entry to recover the • lower story of the Wilson store in Cherryfleld. Plea, the general issue. The question at issue was whether Emery S. Wilson, husband of the late Deborah S. Wilson, took an estate under the will of his wife that passed by assignment to the defendant.

<p>Equity. Practice. Exceptions. B. S., a. 77, §§ 22, 25.</p> <p>Under tlie rules regulating equity practice in this state, as provided in R. S., c. 77, §§ 22 and 25, it is irregular to bring exceptions in an equity cause to the law court before final hearing; and such hearing will not be allowed, unless the question does not admit of delay until then.</p> <p>A demurrer to a bill was overruled and exceptions were taken. The bill was then amended, and a demurrer interposed to the amended bill, which was overruled and exceptions taken. Without further proceeding the case was brought to the law court. Held; that this is irregular. The defendant should have answered, and after final hearing before a single justice, and appeal taken from his decree, the exceptions to the previous interlocutory decrees would then be properly before the law court.</p>

On Motion and Exceptions. This was an action of assumpsit, tbe original writ containing three counts; one upon an account annexed for services amounting to $1057; the second to recover the sum of $5000, for money had and received; and the third upon an account annexed for $988 for board.

On Report. Tbis was a petition for mandamus. The parties agree that tbe petition and answer should be reported to the law court, for its determination of all questions of law involved therein, the petition and answer to be taken as tbe alternative writ, and such special acts of the legislature as either party may rely upon to be also taken as part of the case.

<p>On Exceptions by Defendant.</p> <p>This was an action on the case to recover for damages sustained by plaintiff, on account of the alleged defective condition of Sherwiu street in the city of Waterville. The plea was the general issue and defendants particularly relied upon plaintiff's failure to prove legal notice of the alleged defect to the municipal officers. Upon that point the presiding justice instructed the jury as follows : “ I feel it my duty to say that there is sufficient evidence here, uncontradicted and uncontroverted, to hold that the street commissioner had twenty-four hours actual notice of the condition created by his order. Therefore, you will consider that the evidence here shows that the street commissioner must be deemed to have had twenty-four hours actual notice of the condition created by his order.” The jury returned a verdict for the plaintiff, and to these rulings and instructions defendants excepted.</p> <p>The defendant city by its own act having created the defect, which caused the injury, is estopped to set up want of notice ; or to shield itself from liability because there is a failure to meet the statute requirement of notice. That statute does not apply to cases of this kind. The street commissioner, having created this defect by his orders to his employees acting under him, had twenty-four hours actual notice, as required by the statute. Holmes v. Paris, 75 Maine, 559; Buck v. Biddeford, 82 Maine, 483; Haines v. Lewiston, 84 Maine, 18. The acts of the foreman and the laborer, who built the cross-walk were as much the acts of the street commissioner as if he had performed them with his own hands. Otherwise, a city might escape all liability for structural defects by having its street commissioner issue orders for work and then avoid the inspection of it.</p> <p>In Dillon Mun. Corp. Yol. 2, § 1024, 4th Ed. it is stated: “ Where streets have been rendered unsafe by the direct act, order, or authority of the municipal corporation, not acting through independent contractors — the effect of which will be considered presently — no question has been made or can reasonably exist as to the liability of the corporation for injuries thus produced, while the person suffering them is without contributory fault or is using due care. Even in those States in which a municipality is not held impliedly liable for a private action for neglecting to keep its streets in repair, it is yet held to be liable if its officers, under its authority, by positive acts, place obstructions on the streets, or, by such acts, otherwise render them unsafe, whereby travelers are injured.” Stoddard v. Winchester, 157 Mass. 567, and cases cited ; Wendall v. Troy, 39 Barb. 329 ; Oonrad v. Ithaca, 16 N. Y. 158; Storrs v. Utica, 17 N. Y. 104; Turner v. Newburgh, 109 N. Y. 301; Bressau v. Gity of Buffalo, 90 N. Y. 679; Springfield v. Le Glair, 49 111. 349 (68 Am. Dec. 553) ; Detroit v. Gary, 9 Mich. 165 — 186; Glantz v. South Bend, 106 Ind. 305 ; Houston v. Isaaeks, 68 Tex. 116 ; Baltimore v. P&ndleton, 15 Md. 12; Gregg y. 'Weathersjield, 55 Vt. 385; Spearbroeker v. Larrabee, 64 Wis. 573; Adams v. Oshkosh, 71 Wis. 49; Studley v. Oshkosh, 45 Wis. 880.</p> <p>The old statute simply required reasonable notice to the city or town. The new statute requires actual notice to some one of an enumerated list of officers.</p> <p>The cases cited by the plaintiff arose under statutes, by the terms of which a town or city may be held liable if they had “ reasonable notice of the defect, or might have', had notice thereof by the exercise of proper care and diligence.” These cases in other states, arising under different statutes, do not apply to the case at bar.</p>

<p>Tax. Supplemental Assessment. Omission. Evidence. Exors. and Admrs. B. S., c. 6, § § 35, 36, 92, 93, 142.</p> <p>In an action of debt, under tlie statute, to recover a tax upon personal estate, assessed to “ Samuel J. Bridge, Est. of,” for tlie year 1894, it appeared that after Hie death of Samuel I. Bridge and the appointment of the defendant as his executor, the assessors adjudged the personal estate of said Samuel, in gross and which was liable to taxation, to be eiglity-eiglit hundred dollars, (no list of the personal estate having been furnished to the assessors according to the statute) and they assessed a tax upon that valuation, which was paid. In November following, tlie assessors made a supplemental assessment upon personal property of the estate, in gross, of the amount of $359,503.94, and certified to the collector, in their committal of tlie tax, that this estate was omitted from the April assessment “by mistake.”</p> <p>Held; that the assessors had not “ omitted” any item “by mistake” but had undervalued the gross amount; and that their supplemental assessment was unauthorized by law.</p> <p>The “omission”, mentioned in the statute, does not mean that an erroneous judgment of the value of an estate can be corrected by a supplemental assessment; and the assessors cannot afterwards enlarge their estimate of the value of property under the form of a supplemental assessment.</p> <p>The statute provides that “ the personal property of deceased persons in the hands of their executors or administrators not distributed, shall be assessed to the executors or administrators.” An executor or administrator becomes personally liable for a tax so assessed and a suit may be brought against them personally, and not against the property of the deceased in their hands. But the tax must be assessed ag'ainst such executor or administrator to render them personally liable.</p> <p>Held; that this tax was not assessed against the defendant, and he is not liable therefor.</p> <p>Parol evidence is not admissible to show that the assessors meant the assessment should apply to the defendant as executor. It is not competent for the plaintiff to change the form and character of the assessment, and to make an assessment to “Samuel J. Bridge, est. of” a personal assessment to the defendant.</p>

<p>On Report.</p> <p>This was an action brought in the Superior Court for Kennebec County to recover a trotting premium which the plaintiff claimed had been won by his horse “ Combination,” and reported by the presiding justice to the law court. It was not denied that the contract was valid under the Stat. 1891, c. 70, which authorizes competition for such premiums.</p> <p>The case is stated in the opinion.</p> <p>(Declaration.)</p> <p>In a plea of the case, for that the said defendant is a corporation, duly incorporated under the laws of the State of Maine, and is the owner and controller of the Monroe Trotting Park Company, and all the appurtenances thereto belonging; that during the year A. D. 1894, to wit, July 4th, A. D. 1894, the defendant advertised for and gave a race meeting, for which purpose, among other things, was the purpose of its incorporation; that at said meeting it offered to the public in general, and owners of horses eligible to the 2.80 class, at the gait of trotting, a purse or premium of $200, the conditions of said race being that a horse winning three heats out of not less than five, should have 50 per cent of the purse thus offered for contest of speed, at the trot on said course.</p> <p>The plaintiff avers that he was on said 4th day of July, A. D. 1894, and for some time prior thereto, the owner of a horse, known by the name of “ Combination,” and that said horse was eligible to the 2.30 class trotting; that the plaintiff in good faith, and in strict compliance with all the rules and regulations of the defendant, for its trial and contest, to be held on its park at Monroe, Maine, duly entered said horse “Combination” in the 2.30 class, so-called, of said exhibition, to contend with other horses for the purse or premium of §200 offered as aforesaid by the defendant ; that he also paid the defendant, as required by the rules and conditions of said contest of speed, the sum of §20, or, as is commonly known, 10 per cent entrance fee; that said defendant received said §20, entered the name of said horse “Combination” in its list, among the other horses contesting for said purse, on said 4th day of July, A. D. 1894; that on said 4th day of July, A. D. 1894, at the defendant’s said race course at said Monroe, the plaintiff’s said horse “Combination” started in the 2.30 class in said race or contest of speed, and was driven in said race by the plaintiff; and the plaintiff charges that his said horse “ Combination” was able in said race to show, and actually did make the greatest and fastest flight of speed in three heats of said contest viz, the sixth, seventh and eighth heats thereof, having trotted faster in each of said three heats than any other horse contending for said purse.</p> <p>And the plaintiff avers that his said horse “ Combination ” won the sixth, seventh and eighth heats of said race; and that Bancroft H. Conant, Chas. E. Lane and B,. A. liobinson, agents and servants of the said defendant, were the judges, in the judges’ stand, of said race and contest, and that when the last heat of said race had been trotted, the said judges, acting within the scope of their lawful authority as agents and servants of the said defendant, decided, announced and declared from the judges’ stand of said race-course, that the plaintiff’s said horse “ Combination ” had won said last heat and had won the race and first money, the plaintiff’s said horse “ Combination ” having won two previous heats, which decision of said judges thereby entitled the plaintiff to have and receive of the said defendant the sum of $100, the same being 50 per cent of said purse of $200; that after said exhibition of speed had terminated, and said horse “ Combination” had merited and was entitled to and had won said $100 of said purse or premium of $200, the defendant through said judges, its servants and agents, and for whose illegal acts the defendant is, and on said 4th day of July, A. D. 1894, was liable, wrongfully, unlawfully, and without any reasonable or just grounds therefor, and without the knowledge or consent of the plaintiff, took away from plaintiff’s said horse “Combination” said last heat and race and said first money, and awarded and agreed to give the said race and. first money, viz, $100, to a mare called “Ilipponna,” which mare was one of the horses duly entered and started in said 2.30 class and race, in competition with said horse “Combination” and other horses.</p> <p>Whereby by reason of said illegal and wrongful acts of the said defendant, the said plaintiff’s horse “Combination” was declared by said judges to have won only second money, or 25 per cent of said purse or premium of $200, viz, the sum of $50. Whereas, in truth and in fact, said horse “Combination” did win and he was entitled to $100, the same being 50 per cent of said purse of $200; by reason whereof the plaintiff has lost said sum of $100. And the plaintiff avers that he duly demanded payment of said sum, of • said defendant, on July 4th, A. D. 1894.</p>

<p> Way. Adjacent Owner. Easement. Driveway. B. S., c. 18. </p> <p>Whenever public necessity or convenience requires that the whole of a highway, or any portion greater than that previously traveled, should be built as a road for public travel, the duty and exclusive authority for doing such work as may be necessary for such purpose, is given by statute to road commissioners or highway surveyors.</p> <p>Held ; that entering upon land within the limits of the highway although outside of the wrought portion, and widening the road by excavations or embankments to the prejudice of the adjacent owner or in disturbance of his soil, is an unlawful act.</p> <p>The parties were owners of adjoining lots of land, both on the highway. For the purpose of passing between his lot and the wrought portion of the highway, the defendant constructed a driveway by making excavations and piling up rocks and refuse across the plaintiff’s land, but outside of the wrought or traveled part of the highway.</p> <p>Held ; that the defendant had no right to build the driveway upon the land of the plaintiff, although it was within the limits of the highway, for his private use and convenience, notwithstanding there was difficulty in passing directly from his land to the highway.</p>

<p>On Report.</p> <p>Bill in equity, beard on bill, answer, demurrer and testimony.</p> <p>Tbe case is stated in tbe opinion.</p>

<p>State Paupers. Plantations. B. S., c. 24, § § 29, 33, 43.</p> <p>The obligations of tOAAms ancl plantations in reference to the support of paupers result from provisions of positive law.</p> <p>They have no elements of contract, express or implied.</p> <p>Revised Statutes, c. 24, § 33', provide that : “Persons found in plantations having a population of more than two hundred, . . . and a state valuation of forty thousand dollars, and needing relief, are under the care of the assessors of such plantations ; and the duties and powers of such assessors relative to such persons, are the same in every respect as overseers of the poor in towns have in like eases ; and such plantations shall assess and raise all moneys necessary to defray the expenses incurred in the care of such persons ; and plantations so furnishing relief, have the same remedies against towns of their settlement, that towns have in like cases. Hut this section does not extend to or affect the laws concerning so-called State paupers or paupers’ settlements.”</p> <p>The effect of this section is to impose upon the assessors of such plantation tiie duty of looking after that class of paupers for the support of whom they have tlieir remedy against the towns where is to be found their legal settlement.</p> <p>It does not impose on such assessors the duty of looking after so-called State paupers.</p> <p>That duty is imposed upon the assessors of the “ oldest incorporated adjoining' town, or nearest incorporated town where there are none adjoining” as specified in § 29.</p>

On Report. The case is stated in tbe opinion. The transaction shows only an unexecuted, collateral agreement to accept payment of the note in a different manner than is provided for in the note itself; the certificates of stock were never transferred by the defendant to the plaintiff; the payment by the “surrender” thereof was not made prior to the commencement of this action.

On Motion and Exceptions by Plaintiee. This was an action of trover for forty-five barrels of apples, tried to a jury in the Superior Court for Kennebec County, where a verdict was returned for the defendants. The plaintiff, in addition to a general motion, took exceptions to a part of the charge to the jury as follows :— “But the defendants raise another legal point, and that is based upon a question of fact for you to determine.

<p> Deed. Description. Boundaries. Monuments. </p> <p>Plaintiff claimed title to the premises demanded under three mortgages of different dates, the last two of which have been foreclosed. Defendant, under a fourth mortgage from same mortgagors, and also under a deed from the assignees of the mortgagors, in which the mortgagors join, the description in the deed being such, as the defendant contended, as to embrace a larger tract than that covered by the plaintiff’s mortgages.</p> <p>The land described in the several mortgages was bounded in each as follows : “ On the north by the street sometime called West End Avenue; on the east by land formerly of James Hamor, deceased; on the south and west by land of John A. Rodick.”</p> <p>The premises demanded were conveyed to the mortgagors by three separate conveyances, the last two being additions to the first purchase.</p> <p>The descriptive words of the bounds contained in the title deeds, of the first purchase, to the mortgagors, are identical with those contained in the several mortgages. But the boundaries, although identical in each mortgage, and although the mortgages were given at different times, are true and correct as applied to the facts existing at the times when the several mortgages were given.</p> <p>The mortgages are not to be construed together, but as separate instruments, and in reference to the facts existing at the different times when they were given.</p> <p>The same terms, or words of description, therefore, although identical in the several mortgages may properly cover and include distinct and different tracts, being descriptive of such tracts as bounded at the date of the different mortgages, and hence may cover more land in one case than in another and follow a receding line.</p> <p>The boundaries may have receded, and yet the same words may be aptly used to meet the changed conditions at the time when the mortgages were written.</p> <p>A particular description of premises conveyed, when such particular description is definite and certain, will control a general reference to another deed as the source of title.</p> <p>Nor will a clause in a deed, at the end of a particular description of the premises by metes and bounds, “meaning and intending to convey the same premises conveyed to me,” etc., either enlarge, or limit, the grant.</p> <p>When a deed gives a boundary by land of another, the true line of the ownership of the adjoining land is the monument.</p> <p>And it matters not whether the deed of the land referred to is recorded or not.</p>

<p>On Report.</p> <p>The case is stated in the opinion.</p> <p>The plaintiff claims that under R. S., c. 94, § 2, an alienation of the premises did not terminate his tenancy, and that as there was no mutual agreement to terminate his tenancy he was entitled to thirty days’ notice in writing.</p> <p>When the case of Fsty v. Baker, 50 Maine, 325, was decided, the statute was as follows: “A tenancy at will maybe terminated by a written notice to quit, served on the tenant thirty days before the time named for its termination, but if no rent is due when a rent is payable, it shall not be terminated, except at the option of the tenant, until rent shall become due.” The case of Fsty v. Baker, decided in 1862, held that the statute did not change the common law rule that an alienation terminated the tenancy. This caused the legislature the next year, 1863, to enact chapter 199, which is entitled: “An act additional to chapter 94 of the Revised Statutes relating to tenancies,” which reads as follows: “All tenancies at will may be determined by either party by thirty days’ notice in writing for that purpose, given to the other party, and not otherwise except by mutual consent, and except in cases where the tenant is liable to pay rent and no rent is due at the time the notice expires, and no further notice shall be required to entitle the landlord to the process of forcible entry and detainer.”</p> <p>This statute was construed by the court in Cunningham v. Horton, 57 Maine, 420, to supersede the mode of determining-tenancies at common law.</p> <p>The statute of 1868, c. 199, as far as it relates to the issues in this case, has not been changed, except in the revision the first word of the act, “all,” has been omitted.</p> <p>It was undoubtedly passed because the court, in Esty v. Balter, supra, had given a different construction to the statutes than the court did in Young v. Young, 36 Maine, 133, in which case the court held that alienation did not deprive the tenant of the right to written notice.</p> <p>This case depends upon the statutes; and Massachusetts decisions do not apply, the statutes in that state being different.</p> <p>The words in the original act can mean nothing but “ all.” The words “not otherwise” are prohibitive words and exclude all other ways (except those enumerated and which do not affect this case.)</p> <p>It has been the law in this state for a long time that an estate could be burdened with the rights of a tenant, which the purchaser of the estate would be obliged to respect. 11. S., c. 73, § 8.</p> <p>Hoivard v. Merriam, 6 Cush. 532, recognizes the right of the legislature to change the rights as they existed at common law of landlord and tenant.</p>

On Report. This was a writ of entry to recover one-sixth part of a piece of sea shore and flats lying in Milbridge. It was admitted that William Freeman, father of the plaintiff, on July 6, 1837, owned the shore and flats claimed by the plaintiff, together with the upland connected therewith.

On Report. This was a bill of interpleader, brought by the Fairfield Savings Bank against the defendants, to determine the ownership of a deposit in that bank. Both defendants claimed the fund and after a decree, requiring the defendants to interplead, was made in the court below, the case was reported to this court to be heard on bill and answers of the defendants and the testimony.

On Report. This was an action on the case in which the plaintiff claimed damages from the defendant corporation, chartered by the State of Maine to improve the navigation of Penobscot river, and its tributaries, to facilitate the driving of logs. The plaintiff claimed that he was injured by withholding of the water needed to drive his logs; that he was entitled by law to enough of the water stored by the dams of the defendant corporation to drive his logs.

<p>Dower. Assignment. Practice. R. 8., c. 103, § 22.</p> <p>When the report of commissioners selected to set out clower on a writ of seizin, under R. S., c. 103, § 22, is not accepted "because of irregularities of procedure disclosed therein, it is not error for the court to re-commit the report to the same commissioners to set out dower anew, in accordance with law.</p> <p>In such case, the commissioners act by virtue of their original appointment and under their original oaths.</p> <p>When the commissioners set out to the demandant certain parcels of land “ as and for dower,” it is held to have been a sufficient assignment.</p> <p>It is not necessary that the writ of seizin to set out dower should contain specific directions to the commissioners. Their duties are prescribed by law. It would be inconvenient, not to say impossible, to incorporate them all in the writ of seizin.</p> <p>See Skolfield v. Skolfield, 88 Maine, 258; Same v. Robertson, Ibid.</p>

On Report. This was an appeal of the city of Auburn from the award of the county commissioners assessing damages to the Union Water Power Company of Lewiston, in the sum of $24,500 for the taking by the city of Auburn of water for public purposes under the provisions or chapter 82 of tbe Private and Special Laws of the State of Maine of 1891.