Volume 91 — Maine Reports

<p> Contracts. Indemnity. Paupers. Towns. Agent. li. S., c. 24, §10. </p> <p>Held; that a contract under seal, wherein the obligor agreed to release a town from the support of a person named, and to maintain such person through his natural life and pay all doctor’s bills and expenses, with the condition that if the obligor indemnified the town from all expenses, costs and damages which might accrue by reason of such person, the contract should be void, and providing also that if the obligor failed to fulfil her obligation, the town should have a right of action against her, is a contract of indemnity merely.</p> <p>The punctuation of an instrument may be disregarded, if the meaning is clear.</p> <p>A town may indemnify itself by proper contract against the contingent liability of furnishing pauper supplies to one who at the time of the contract has a pauper settlement within the town, and this, without regard to whether he is in present need or not, or whether he knows that he is receiving pauper supplies or not. Held; that the contract in this case, being of such a character, is legal and enforceable.</p> <p>The overseers of the poor are the agents of the town in matters relating to the care and oversight of the poor, and as such, have authority to take such a contract for the town, without special instructions.</p>

<p>On Motion by Defendants. '</p> <p>This was an action on tbe case for libel and in wbicb tbe plaintiff, wbo was a deputy sheriff, claimed tbat tbe defendants who were proprietors and publishers of tbe newspaper, called the Kennebec Journal, bad falsely and maliciously accused tbe plaintiff with being guilty of and committing two crimes, viz: tbe crime of voluntarily suffering Foster Nelson, a prisoner in his custody, as a deputy sheriff, to escape, and the crime of bribery, in receiving money as a deputy sheriff, from said Nelson, as an inducement for omitting to perform his official duty, by allowing said Nelson to escape from plaintiff’s custody.</p> <p>The case was tried tó a jury, sitting in Kennebec county, who returned a verdict for the plaintiff of $896.37.</p>

<p> Contract. Usage. Price. </p> <p>The meaning of a contract cannot be varied by local usage unless it be uniform, reasonable and known to the parties, so that they may be presumed to have contracted with reference to it.</p> <p>A usage that might nearly .double the quantity of goods sold is unreasonable.</p> <p>The plaintiff contracted to deliver on or near the premises, where defendant was building a cellar wall, certain stone at an agreed price per cubic yard. He claimed, among other things, that by reason of a local usage the stone were to be measured as solid wall after they had been laid. The defendant claimed that the contract price was by the cubic yard of the stone measured when delivered. Held; that the contract fixed the price per cubic yard delivered, and not as solid wall after the stone had been laid.</p>

On Motion and Exceptions by Plaintiee. Tbis was an action of tbe case to recover damages for personal injuries received by the plaintiff while operating machinery of the defendants. Plea general issue. Verdict for defendants.

On Exceptions by Dependant. In tbis case tlie respondent was indicted in the Superior Court, Kennebec county, for selling butterine contrary to section 3, c. 128, R. S., prohibiting the sale and manufacture of adulterated butter.

On Motion and Exceptions by Dependant. This was an action on the case brought under K,. S., c. 125, § 8, to recover the sum of six hundred and fifty dollars which the plaintiff claimed he had lost to the defendant in certain gambling transactions, and consisting of betting in margins on the future price of corn. The declaration contained a count for each loss thus sustained by the plaintiff.

<p>Way. Mandamus. Cleric. Waters. JR. S-, c. 18, § 23. Spec,. Laws, 1880, c. 239; Act of Congress, Sept. 29, 1890.</p> <p>On appeal to the county commissioners a town way had been located by them in South Thomaston, which crossed navigable tide-waters. The Legislature of 1880 had authorized abridge over tide-waters at that place. South Thomaston failed to build the bridge, and thereupon the county commissioners, on due proceedings, appointed the petitioner an agent to build it. The way on land was constructed principally by the voluntary act of individuals without charge. The agent caused the bridge to be built; rendered his account to the county commissioners which was duly allowed, and judgment entered against " the inhabitants of the town of South Thomaston and against the real estate situated in said town of South Thomaston, whether owned by such town or not,” for the sum of four thousand three hundred and ninety-two dollars and four cents, being the cost of the bridge, and the charges and expenses of the agent. The county commissioners ordered a warrant of distress to issue for the amount. All the proceedings were in accordance with law. The respondent, clerk of the county commissioners, refused to issue a warrant of distress. Upon a petition for mandamus asking that he be compelled to do so, held;—</p> <p>(1.) That the clerk, as a ministerial officer, was bound by law, to obey the order and judgment of the county commissioners—that judgment appearing to be regular, and upon a matter within the jurisdiction of that board. That he cannot justify a refusal, by showing mistake or misjudgment of the commissioners, nor raise the question of the sufficiency of the bridge, which had been accepted by the commissioners.</p> <p>(2.) That the five years in R. S., c. 18, § 23, within which the town cannot affect by any action the location of a town way by county commissioners, commenced to run on August 13, 1892, when the proceedings and judgment of the commissioners were affirmed by the Supreme Court; and that the attempted discontinuance of the way by South Thomaston on May 16, 1896, was premature and inoperative.</p> <p>(3.) That the permission of the Secretary of War to build the bridge over navigable tide-waters was not necessary. The act of Congress of September 29, 1890, which prohibits the erection of a bridge in navigable waters, without permission of the Secretary of War, excepts from its operation bridges, the construction of which has been previously authorized by law. This bridge was authorized in 1880.</p> <p>(4.) That the bx’idge is wholly within the town of South Thomaston.</p> <p>(5.) That the petitioner is the proper party in whose favor the warrant of distress should issue.</p>

On Report. This was an action brought against the Bates Manufacturing Company under the statute of 1887, c. 139, § 4, as follows: “It shall be lawful for any person, firm, or corporation engaged in any manufacturing or mechanical business, to contract with adult or minor employees to give one week’s notice of intention on such employee’s part, to quit such employment under a penalty of forfeiture of one week’s wages.

<p> Verdict. Practice. Exceptions. Pauper. </p> <p>Where in the trial of a cause after the plaintiff has introduced his testimony, the defendant does not contradict it in any material point, and the evidence will not authorize a verdict for the defendant, held; in such case the presiding justice may order a verdict.</p> <p>In this case it clearly appears from the testimony introduced by the plaintiff, which was not contradicted in any material point, that the pauper had gained a settlement in the defendant town by live years continuous residence therein. Held; that the evidence would not authorize a verdict for the defendant; and exceptions will not lie to the order of the court in directing a verdict to be returned in favor of the plaintiff.</p>

On Report. This was an action on account annexed to the writ to recover the sum of $41.34 for groceries and provisions. Date of writ, June 18, 1896. Plea, general issue with brief statement as follows, to wit: That he claims to set off against the plaintiff’s claim the sum of forty-one dollars due him from said plaintiff according to the following account: Lewiston Co-Operative Society No. 1. To George Thorpe, Dr. 1896. Jan. 18.

<p>Indians. Treaties. Attachment. H. S., c. 81, § PC.</p> <p>Tlie incorporation of territory within the boundaries of the state into a town, county, or other political division is a purely political act; and such power of incorporation by the state is unaffected by any stipulations in the Indian treaties between Massachusetts and the Penobscot Indians of June 29, 1818, and between Maine and the same Indians August 17, 1820.</p> <p>White Squaw Island in the Penobscot river above Old Town lies west of the centre line of the river at ordinary pitch of water. It is therefore within the territorial limits of the riparian town of Argyle on the west side of the river.</p> <p>Held; that a certificate of attachment of bulky personal property attached upon White Squaw Island should be filed in Argyle, and not in Greenbush, the oldest adjoining town.</p>

On Exceptions by Defendant. The facts are stated in the opinion.

On Exceptions by Defendant. This was ail indictment for larceny by night in a dwelling-house, under R. S., c. 120, § 2, with an allegation of a previous conviction of larceny as principal, so that the sentence might be given for a common thief, under § 5 of said chapter, if the respondent were convicted.

On Exceptions by Dependant. This was an indictment under R. S., c. 120, § 2, against the defendant for being a common thief. The indictment sets forth a larceny specifically described therein, and alleges a former conviction of the defendant for the crime of larceny in the Municipal Court of Waterville. The object of setting forth this former conviction was to obtain on this indictment a conviction of the defendant for being a common thief, as provided in R. S., c. 120, §5.

<p>Railroad- Fire set by Engine. Negligence. Evidence. R. S., c. 51, § 64.</p> <p>In tlie trial of an action for damages by Are, alleged to have been communicated by a locomotive engine, when the question at issue is whether as a matter of fact the fire was caused by any locomotive, evidence that other fires wore caused^by the defendant’s locomotives, at about the same time and in the same vicinity, is relevant and admissible for the purpose of showing the capacity of locomotive engines to set fires by the emission of sparks or the escape of coals.</p> <p>That other engines of the same company, under the same general management, passing over the same track at the same grade, at about the same time and surrounded by the same physical conditions, have scattered sparks or dropped coals so as to cause fires, appeals legitimately to the mind as showing that it was possible for the engine in question to do likewise. Such testimony is illustrative of the character of the locomotive, as such, with respect to the emission of sparks of the dropping of coals.</p> <p>Ancl this rule is applicable although, before the testimony was admitted, defendant’s counsel claimed that the plaintiff had already identified the engine as one drawing a certain train, which was true; and gave notice that the engine drawing that train would be fully identified by the defendant, and although the defendant subsequently identified the engine by number.</p> <p>This rule is also applicable although, before the evidence was admitted, defendant’s counsel expressly admitted the possibility of an engine setting fires.</p> <p>It does not lie in the power of one party to prevent the introduction of relevant evidence of the other party by admitting in general terms the fact which such evidence tends to prove, if the presiding justice in his discretion deems it proper to receive it. Parties as a general rule are entitled to prove essential facts and present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might.have the eifect to rob the evidence of much of its fair and legitimate weight. Held; that exceptions do not lie to the admission of relevant evidence under such circumstances.</p> <p>The testimony of a witness”that he saw fire in a pile of sleepers beside the railroad track, soon after a locomotive had passed, is admissible and should not be afterwards stricken out upon motion, although upon cross-examination he testified that he didn’t know how the fire caught or how long it had been burning, though " it couldn't have been there a great while.” The weight of the evidence is for the jury.</p> <p>So in regard to the testimony of a witness who testified that he saw a fire soon after an engine had passed, though his statement upon cross-examination respecting the time he saw the fire was inconsistent with his testimony first given.</p> <p>So in regard to the testimony of a witness who testified that he saw certain fires two or three days after the fire in question, although a witness for the defendant recollected these fires as having occurred between two and three months later. Held; that whatever the facts may have been, these are questions which cannot be settled upon exceptions. It is for the jury to consider, in view of all the testimony, whether the witnesses are credible and reliable. The court cannot exclude the testimony of a witness because it is inconsistent or inaccurate.</p> <p>Thatcher v. Maine Cent. B. B. Co., 85 Maine, 502, affirmed.</p>

<p>On Exceptions by Appellees.</p> <p>The case is stated in the opinion.</p>

On Exceptions by Plaintiee. This was an action of replevin of merchandise, in which the plaintiff claimed that he had never parted with his title. The defendant claimed to have purchased the merchandise in good faith, for a valuable consideration, of one Fred A. Dubay, who at the time had the goods in his possession. The case was heard by the presiding justice without a jury, with leave to except.

On Exceptions by Dependant. This was an indictment for embezzlement. After trial and conviction of the defendant, he moved in arrest of judgment because of the insufficiency of the indictment. The presiding justice having overruled the motion, the defendant took exceptions to the ruling. The indictment was found at the April term of this court sitting below, on the fourth Tuesday of April, 1897, at Houlton.

<p>On Report.</p> <p>Tbis was a'bill in equity brought by Charles C. Woodruff against Frank W. Hovey and the Sebasticook and Moosehead Railroad Company to establish a lien on a round house- and the lot upon which it is situated in Pittsfield Village.</p> <p>The bill alleges that on the ninth day of May, 1896, the said Woodruff entered into a contract with the railroad company and the said Hovey to build a round house on the land described, they being owners thereof, furnishing all the labor and material for the same for the sum of eleven hundred dollars; that while erecting said round house he entered into a further contract for additional wort and material therein described ; that the building and extra labor and material were satisfactory and accepted; that the last labor was performed on the seventh of August, 1896, and that within forty days after that date, he filed his lien claim with the town clerk; that there is now due him ten hundred and fifty-eight dollars and twenty-two cents, and then prays that a lien may be established, etc.</p> <p>The bill was dated and filed September 9, 1896.</p> <p>Woodruff further claimed that, from the time he took the contract down to the filing of the bill, he supposed that the Sebasticook and Moosehead Railroad Company owned the land. He made the contract with them alone, but first saw Mr. Hovey and told him he was going to build the round house and asked him if the company owned the land, and Mr. Hovey said they did, for which reason Mr. Hovey was made a co-defendant with a purpose of claiming that he was estopped to deny a joint liability, the record title to the land standing in bis name; but later it was discovered that while the record title was in his name, the real title never was, and an amendment was made, to be allowed if necessary and proper.</p> <p>The amendment discontinues as to Mr. Hovey as co-contractor and sets up instead that he had wrongfully obtained a void deed of said land and by recording same made a cloud on the title, and prays that he be ordered to release or convey same. These allegations were denied by Mr. Hovey.</p> <p>The answer to bill of the defendant Hovey states that he does own the land, but never made the contract with complainant and never promised to pay him: that the work was complete'd long before July 11th, 1896, and that Woodruff did not file his lien claim or bring his suit seasonably; that Woodruff was to wait for his pay until certain bonds were sold and the railroad completed to Harmony; that said bonds have never been sold or road completed.</p> <p>He also alleged that the statement of the lien claim filed in the town clerk’s office was defective.</p> <p>The answer of tbe Sebasticook and Moosehead Railroad Company claims that payment was not to be made until certain bonds were sold and the road to Harmony completed, which has never been done. It admits indebtedness for building the round house, but claims that all extra work has been paid for. It also claims that the round house was completed on or before July 11th, 1896, and that said claim was not filed within forty days; that the statement of the lien was defective as filed with town clerk.</p> <p>Counsel argued:—(1.) That a mechanic’s lien can attach to a round house and land of a railroad company in this 'state as a matter of law.</p> <p>(2.) That Woodruff did such labor and furnished such material for the railroad company as‘were essential to give him a lien.</p> <p>(8.) That for all the purposes of this hearing the railroad company owned the land and building.</p> <p>(4.) That if the railroad company did not own the land, the owners did consent to the building in such a way as to create a lien.</p> <p>(5.) That had it been necessary to file a lieu claim within forty days after the labor was performed, it was done.</p> <p>(6.) That the railroad company being owners of the land and making the contract with Woodruff, it was not necessary to file a lien claim at all if suit was brought within ninety days, and that it was so brought.</p> <p>(7.) Hovey, having represented to Woodruff that the company owned the land and knowing that Woodruff had a right to a lien, by misrepresenting the true condition of things, is estopped to deny his joint liability under the first bill filed.</p> <p>(8.) Or if the ground taken in the sixth claim is not sound, that Hovey never having had title, but fraudulently obtaining a record title, should discharge same.</p> <p>Liens on railroad buildings:—No exception in our statute.</p> <p>A building built for a railroad company is as clearly within the spirit and letter of the statute as any other building. Its object was to furnish a protection to those who expended their labor and material in improving the property of others.</p> <p>“ Is there anything in public policy that requires or should permit railroads to be built at the expense of defeating this object? If there is, we fail to perceive, it, and shall recognize no such policy till the Legislature enacts it into a positive law.” Hill v. Lacrosse 8? M. li. B. Co., 11 Wis. 21. This was an action to enforce a lien on a depot.</p> <p>This is the doctrine invariably followed in New England. Platt v. N. Y. $ Boston R. Co., 26 Conn. 541; Botsford v. New Haven, Middletown 8? Willimantic R. R. Co., 41 Conn. 454; Boston, Concord Montreal R. R. Co. v. Gilmore, 37 N. H. 410.</p> <p>If the railroad was not the owner and could not be so considered, they certainly had an interest in the land enough to subject it to a mechanic’s lien, especially since the claim is made under a bill in equity. The statute states “on any interest that such owner has in the same.” The railroad company had a contract for the sale and purchase of this land. It was such an interest as could be attached. R. S., c. 81, § 56 ; Wise v. Tripp, 13 Maine, 9; Houston v. Jackson, 35 Maine, 520. They had, after making the contract, gone on the land and made expenditures, giving them the right of specific performance. Green v. Jones, 76 Maine, 563.</p> <p>The word “owner” should mean any person who has any contractual interest in land, whether by deed or mortgage, or otherwise, which could be enforced by attachment, either by legal or equitable attachment. Choteau v. Thompson, 2 Ohio St. 125, is especially in point; also Hiclcox v. Greenwood, 94 111. 268; Wagar v. Brisco, 38 Mich. 587; Keller v. Benmead, 68 Penn. St. 449; Atkins v. Little, 17 Minn. 342; Shedcwell v. Carpenter, 27 Iowa, 119; Rollin v. Cross, 45 N. Y. 766; Lyon v. McGuffey, 45 Am. Dec. 676, (4 Pa. St. 126); Stoner v. Neff, 50 Pa. St. 261; Appeal of Borough of Eastern, 47 Pa. St. 265; Munroe v. West, 12 la. 119; O' Brian v. Hanson, 9 Mo. App. 549.</p> <p>Having such an interest to which a lien could attach, when it did attach, it would enlarge as the company’s title enlarged, and be a lien on the complete title as it became complete. Kirby v. Tead, 13 Met. 149.</p> <p>Consent of owners: Shaw v. Young, 87 Maine, 271.</p> <p>Filing of claim: No interest of third parties intervened. If one is obliged on account of the owner to suspend work for more than thirty days, he should not be deprived of his lien. Jones on Liens, § 1439; Gordon v. Torrey, 15 N. J. Eq. 112.</p> <p>Counsel argued that the bill should be dismissed: (1.) Because the claimant waived his lien by giving credit beyond the statutory time for bringing an action to foreclose his lien. (2.) Because the railroad company could not subject the land to a lien without the consent of Thomas N. Drake the owner, and there was no consent. (3.) Because he did not seasonably file notice of his lien claim in the town clerk’s office. (4.) Because the building was erected for railroad purposes and is not subject to a lien. (5.) Because he has intermingled lien claims with non-lien claims. (6.) Because of a variation in the contract alleged as to the time when the contract price was to be paid, and the proof offered. (7.) Because the complainant expressly waived his lien on July 18th, and thereby induced Mr. Hovey to invest his money in this property. Amendment not allowable because of variance in proof and introducing new matter. Whittemore v. Merrill, 87 Maine, 456; Garrison v. Hawkins, (Ala.) 20 So. Rep. 427; Perry v. Watts, 3 Man. & Gr. 775 ; David v. Preeoe, 5 Ad. & El. N. S. 440; Tafts v. Lexington, 75 Maine, 516 ; Clarke v. Gray, 6 East. 564; Penny v. Porter, 2 East. 2; 1 Smith L. C. Part 2, p. 1436; Addis y. Van Buskirk, 24 N. J. L. 218; Cleaves v. Lord, 3 Gray, 66, 71; Bush v. Connelly, 33 111. 447; Baton v. Malatest, (Cal.) 28 Pac. Rep. 54; Dingley v. Greene, 54 Cal. 333; McAuley v. Carter, 22 111. 53; Burkhart v. Resig, 24 111. 529.</p> <p>Bill does not allege contract was made with owner’s consent. Cross v. Theharmy, 39 Ore. 763; Davis v. Alford, 94 U. S. 546; Farnham v. Davis, 79 Maine, 283. Owner is the person holding the legal title. 15 Am. & Eng. Ency. p. 57; Belden v. Gushing, I Gray, 576; Howard v. Veazie, 3 Gray, 233; Worden v. Hammond, 37 Cal. 61; Thaxter v. Williams, 14 Pick. 49; Tompkins v. Horton,. 25 N. J. Eq. 284; Hayes v. Fessenden, 106 Mass. 228; Donahy v. Clapp, 12 Cush. 440; Dustin v. Crosby, 75 Maine, 75; Steele v. Argentine Mining Co., (Idaho,) 42 Pac. Rep. 585; Rollin v. Cross, 45 N. Y. 766.</p> <p>Consent:—•Lyon v. Champion, 62 Conn. 75 ; Hayes v. Fessenden, 106 Mass. 228.</p> <p>Filing of lien claim:—Durling y. Could, 83 Maine, 134; Weseott v. Bunker, Id. 504, 506 ; Cole v. Clark, 85 Maine, 336. No lien on railroads and other public property. 31 Am. & Eng. Corp.. Cases, 296, note; Foster v. Fowler, 60 Pa. St. 27; Comrs. of Buncombe County v. Tommey, 115 U. S. 122; 34 Am. & Eng. Corp. Cases, 135, note; King v. Alford, 9 Ont. 643, S. C. 24 Am. & Eng. Corp. Cases, 331; Breeze v. Midland B.. B. Co., 26 Grant’s Chan. (U. C.) 225; Slcrainka v. Bohan, 18 Mo. App. 340.</p> <p>One single lien cannot cover several distinct contracts or alterations made at different times, and independent of each other, so as to entitle claimant to a lien judgment for the whole. 15 Am. & Eng. Ency. p. 142, and cases cited; Baker v. Fessenden, 71 Maine, 292; Bank v. Buffinton, 97 Mass. 498; Hinchley v. Creany, 118 Mass. 597; Copeland v. Copeland, 28 Maine, 539; Stevens v. McNamara, 36 Maine, 117 ; O’ Connor v. Courant Biver B. B. Co., (Mo.) 20 S. W. Rep. 16.</p> <p>Cases of non-lien:—Truesdell v. Cay, 13 Gray, 311; Pennock v. Hoover, 5 Rawle, (Pa.) 291; Watts-Campbell Co. v. Tuengling, 125 N. Y. 1.</p> <p>Extra work:—Leey. Brayton, 18 R. I. 232; Mulrey v. Barrow, II Allen, 152.</p> <p>When work held completed:—Franksburg v. Smith, 34 Minn. 403; Franklin St. Meth. Church v. Davis, 7 S. E. Rep. 245 ; Cole v. Uhl, 46 Conn. 296; Frost v. Sullivan, 43 Cal. 896.</p> <p>Waiver of lien by giving credit beyond time of construction : 15 Am. & Eng. Ency. p. 104; Scudder v. Balkam, 40 Maine, 291; Mehan v. Thompson, 71 Maine, 492; Pickett v. Buttock, 52 N. H. 354; Wilson v. Douglass, 66 Md. 99.</p> <p>Lien once lost cannot be revived: Darrington v. Moore,'&& Maine, 569; Baker v. Fessenden, 71 Maine, 292; Farnham v. Davis, 79 Maine, 285; dole v. Clark, 85 Maine, 336; Nichols v. Culver, 51 Conn. 177.</p> <p>Estoppel:. Hinchley v. Creamy, 118 Mass. 597; Storrs v. Barker, 6 John. Ch. 166; Bank v. Buffinton, 97 Mass. 498; Copeland y. Copeland, 28 Maine, 539 ; Stevens v. McNamara, 36 Maine, 178.</p>

On Report. This was a bill of interpleader filed April 6th, 1897, by William E. Murdock of Springfield, in the county of Penobscot, against John N. Bridges, administrator of the estate of Ann Banks late of said Springfield, deceased, and against Lewis Thornton, Rosetta A. Thornton and Katherine Hebb. The material portions of the bill are as follows:— First.

On Exceptions by Boston and Maine Railroad Company, and by Silas W. Milliken and Frank W. Nutter, Remonstrants. The case is stated in the opinion. So long as there is either a' public or private crossing at Old Salt-road, the decision of the railroad commissioners as to the crossing at Temple Avenue has no effect; and no permission was granted by them to cross at grade so long as tbe Old Salt-road exists as a public or private way.

Agreed Statement. The facts are stated in the opinion. The statute c. 104 of Act of 1891, under which the defendant claimed that the Superior Court for Kennebec county had jurisdiction of his appeal to that court is as follows:—■ “Within said county, said superior court has exclusive jurisdiction of civil appeals from municipal and police courts, and trial justices, exclusive original jurisdiction of actions of scire facias on judgments and recognizances not exceeding five…

<p>Lien on Animals. Mortgagee. Tender. Trover. JR. S., c. 91, § 41.</p> <p>A mortgagee of animals may subject them to a lien for feeding or sheltering them under R. S., c. 91, § 41, by his consent.</p> <p>The defendant, a livery stable keeper, claimed to hold a horse against the plaintiff, who had a chattel mortgage thereon, by virtue of the statute R. S., c. 91, § 41, for its keeping, etc. The plaintiff denied that the defendant had such a lien because the feeding and sheltering were not furnished" by virtue of a contract with or by consent of the owner.” It appeared that the horse had been left with the defendant by the mortgagor on January 18, 1896, and that subsequently the defendant notified the plaintiff of his claim. On March 9, the plaintiff replied: "The horse is holden for his feed, you can proceed legally to get your pay from the horse.” Held; that the horse was thereafter held by the defendant by virtue of the plaintiff’s consent; and that the defendant had a valid lien for all food and shelter after March 9; but that the defendant acquired no lien, as against the plaintiff, before that day.</p> <p>The defendant refused to surrender the horse to the plaintiff until the whole bill for its keeping was paid, including the time for which he had no lien as well as that for which he had a lien. Held; that the plaintiff was thereby excused from making a tender of the amount secured by the valid lien, and could maintain an action of trover without proof of such tender.</p>

<p>On Report.</p> <p>This was an action on a six months poor debtor bond, the plaintiff claiming a 'forfeiture because the poor debtor’s oath was administered by two justices who, as is claimed, had no jurisdiction to grant to the principal debtor his discharge. The following facts were found by the justice presiding, the case having been referred to the court:—</p> <p>The citation, to appear at the time and place of disclosure, was duly served upon the creditor, who appeared accordingly with counsel and a justice who was selected by him to act for the purpose of such disclosure.</p> <p>After the parties got together within the hour after the time prescribed by the notice, there being present the debtor and creditor and their respective counsel, and also the two justices selected by the parties, and after an examination of the citation and the officer’s return thereon, some one remarked that the funeral of the late Judge Dutton would occur at eleven o’clock (the persons above named having met at ten o’clock) and that the members of the bar were invited to attend, when it was remarked that an adjournment might be made for that purpose, after an organization was effected. Thereupon the attorney for the debtor said “we will consider this an organization,” and no one objected to it or said a word to the contrary. And then the attorney for the creditor remarked that “the counsel for the parties had the power to assent to an adjournment and that he was always ready to adjourn either for the marriage or burial of a brother lawyer ”; and so without further words or action, the disclosure was adjourned until two o’clock in the afternoon for the purpose of attending the .funeral.</p> <p>Promptly at two o’clock all the same parties were present at the place where they met in the forenoon, excepting the creditor and his attorney, who however came in about thirty minutes later.</p> <p>On their reassembling, the justice for the creditor was paid his fees and those of the justice for the debtor were arranged satisfactorily by the debtor’s attorney, and the proceedings were announced to be in readiness for hearing the disclosure, when the attorney for the creditor announced that the justices had no jurisdiction in the premises, in his opinion, because the disclosure was adjourned in the morning without any authority therefor before the court of disclosure was duly organized; and he withdrew his justice and said he was not authorized to act for him, and that the proceedings were in his judgment utterly void. Whereupon the justice for the creditor, under the advice of the creditor’s attorney, declined to further act, and refused to pay back the fees which had been prepaid to him. And thereupon both the creditor and counsel, as well as the justice selected by the creditor, went away.</p> <p>After the creditor’s attorney had withdrawn the creditor’s magistrate and refused to participate in the hearing, the debtor proceeded to the house of a deputy sheriff of the county, a resident of Ells-worth, but found that he was in Bar Harbor, and would not return until the next day, and as there was no other deputy then living in Ellsworth who could be called in to select a new justice, the justice selected by the debtor adjourned the proceedings until the next forenoon at ten o’clock A. M., when the deputy sheriff’s presence was secured, and he selected a justice for the creditor; when the two justices thus constituting the court heard the disclosure of the debtor, administered the statutory oath, and granted him a discharge; the proceedings being conducted as indicated by the records and papers put in evidence at the trial.</p> <p>The defense pleaded the disclosure and discharge of the debtor as regularly obtained; and claimed that the damages should be chancered and that actual damages, or nominal damages only, be recovered, if the actual disclosure and discharge be irregular in any way,, and the court should find that the plaintiff was entitled to recover any damages.</p>

On Repobt. This was an action of assumpsit to recover the sum of two thous- and dollars. Held: comprised all of the stock of the company outstanding, and that by the purchase of it, the Elm Farm Milk Company would be acquiring the New England Milk Company as thoroughly as by a transfer of its property.

<p> New Trial. Beal Action. </p> <p>In a real action the question to be determined was the location upon the face of the earth of the dividing line between the southeastern and southwestern quarters of township No. 19 Middle Division in Washington county. The line was described by the commissioners who made the partition as " beginning at a pine stake three miles distant from the easterly line and two and one-half miles from the south line of the township and running south 2° 15' west to the south line of the township.” The jury returned a verdict in favor of the defendants, and the plaintiffs move to have this verdict set aside as against the evidence, and on the ground of newly-discovered evidence.</p> <p>Held; that the question of fact which the jury were called upon to settle was neither complex nor difficult. They heard the witnesses and saw the sections of trees with the " spots ” exhibited, and they could hardly fail to comprehend the true relation and force of the evidence. Even if there now appeared to be a greater weight of evidence in favor of the plaintiffs, that fact would not necessarily authorize the court to set aside the verdict of the jury; but a careful examination of all the evidence reported discloses a clear preponderance in support of the conclusion reached by the jury.</p> <p>Newly-discovered evidence that does not seem to be of such vital importance as to induce the belief that a different result would have been reached if it had been presented at the trial, is not sufficient to grant a new trial. The same result follows where it is fairly to be inferred, from the circumstances disclosed, that by the exercise of proper diligence this evidence might have been seasonably procured.</p>

<p>On Motion by Plaintiff.</p> <p>This was an action of assumpsit upon account annexed tried to a, jury in the Superior court, for Kennebec county, and brought to the law court on the plaintiff’s motion to set aside the verdict rendered against him at the trial.</p> <p>The case appeal’s in the opinion.</p> <p>Novation is subject to all the rules concerning contracts in general. 16 Am- & Eng. Enc. of Law, 862.</p> <p>The case does not show “ a full discharge of the original debt, by express terms of agreement, or acts of the parties with clear intention” to that effect. Cuxon.v. Chadley, 3 B. & C. 591.</p> <p>Counsel also cited: 2 Whar. Cont. §§ 855, 858; Owen v. Bowen, 4 C. & P. 93; Lee v. Porter, 18 Mo. App. 377; Kelso v. Fleming, 104 Ind. 180 ; Scott v. Atchison, 36 Tex. 76 ; Pollock Cont. (2nd Ed.) 189; Conquest’s Case, 1 Ch. D. 334, 341.</p>

<p> Deeds. Monuments. Plans. </p> <p>Of monuments in deeds. The lines of a survey, if ascertainable, govern plans.</p> <p>It is well settled in this state that a survey once placed upon the face of the earth must control a plan that is made from it, although the plan vvlien placed upon the earth would locate the line elsewhere.</p> <p>The plaintiffs and defendants were owners of adjoining townships, and the controversy was over the dividing line between them. The plaintiffs contended that it should be located where the plan by which these townships were conveyed would locate it when placed upon the face of the earth. The defendants contended that the line was not where the plan would now locate it, but where it was in fact located by an actual survey from which the plan was made, and the jury found in favor of the defendants’ contention. Upon a motion for a new trial, held; that the law makes the line where the survey marked it upon the ground; and therefore the verdict ought not to be disturbed.</p> <p>Exceptions to a refusal of the court to give instructions to the jury, substantially declaring a doctrine adverse to the rule laid down above, will be overruled.</p>

On Report. Bills in equity heard together, upon bills and proofs, in the court below, upon prayers in the bills for a preliminary injunction, to restrain the defendant from constructing its road over and upon the highway leading through York Harbor, where it was alleged the construction of the same would interfere with the plaintiffs’ rights as abutting owners, and owners of the fee to the centre of the highway.

On Motion by Defendant. The case appears in the opinion. Besides the facts stated in the opinion, it appeared that the defendant claimed that the parties in the trial justice writ settled before the return day and the debtor agreed to take and move his goods from the store, the rent for which was, as the defendant claimed, the cause of action set forth in the writ.

<p>On Exceptions by Dependant.</p> <p>The case appears in the opinion.</p> <p>The demurrer should be sustained because (1st.) the declaration does not declare that Thompson knew of the crime charged. (2nd.) In point of law the words fall short of charging the crime of bigamy. (3rd.) The court in an examination of this case, coming before it on a demurrer, must find that it appears upon the whole declaration that the words are clearly defamatory: and if they are ambiguous they cannot be pronounced defamatory. (4th.) Taking the whole article together and considering its scope and purpose—the legal effect of the very, words of divorced wife and only by magnifying the true meaning of the words—can a libel be invented; and such a course is contrary to the universal rule governing the interpretation of libels.</p> <p>It is the duty of the court in an action for a libel to understand the publication in' tbe. same manner as others would naturally do. The construction which'it behooves a court of justice to put on a publication which is alleged to be libelous is to be derived as well from the expressions used as from the whole scope and apparent object of the writer, (loo-per v. Grreeley. 1 Denio, 358 ; St. James Mil. Acad. v. Q-aiser, 125- Mo. 517, (46 Am. St. Rep. 502).</p> <p>If the above rule is applied, and the construction is to be derived from the whole scope and apparent object of the writer, when we consider his article, but one thought could have arrested the minds of the reader acquainted with the plaintiff’s surroundings and that.was, Thompson had had three wives—been divorced by two and was living with the third;—and the writer was giving the history of the arrest and not intending and trying to write a libel on his family relations. While the different cases reported do not give aid in the determination of the case at bar from similar words, still in principle involved the following seem to sustain this rule. Adams v. Stone, 131 Mass. 433; York v. Johnson, 116 Mass. 482; Chase v. Sherman, 119 Mass. 387; Young v. Cook, 114 Mass. 38 ; Brettun v. Anthony, 103 Mass. 37: Emery v. Prescott, 54 Maine, 389; Wing v. Wing, 66 Maine, 62.</p> <p>Counsel also cited: 13 Enc. of Law, pp. 378, and note, 386; World Pub. Co. v. Mullen, 43 Neb. 126, (47 Am. St. Repl 737); Odgers on Libel and Slander, 1st Am. Ed. by Bigelow, p. 85, note to § 94. Hemmenway v. Woods, -1 Pick. 524 ; Marsh v. Davison, 9 Paige (N. Y.) 580; Simpkins v. Justice, 1 Ind. 558; Q-riggs v. Vickroy, 12 Ind. 549.</p>

<p> Exceptions. Bule XVIII. Practice. Instructions. </p> <p>When the presiding justice unqualifiedly allows a' bill of exceptions which does not disclose that the exceptions were not seasonably noted, the presumption is that the exceptions were seasonably noted in accordance with the rule.</p> <p>When the bill of exceptions does not affirmatively show that, but for the rulings excepted to, the finding of the jury might reasonably have been different, the excepting party does not show that he is aggrieved, and hence his exceptions must be overruled.</p> <p>The presiding justice in his instructions may properly assume even a disputed proposition of fact to be established, if all the evidence thereon can lead to no other reasonable conclusion.</p> <p>Unless it appears from tlie bill of exceptions that there was substantial evidence against the proposition of fact assumed by the presiding justice to be established, the exceptions to such ruling or assumption must be overruled.</p>

On Exceptions by Defendant. This was an action of assumpsit to recover the sum of $1,821.47 for driving 3235 cords of poplar from Ship Pond Stream to Milo boom, at 75 cents per cord. ■ Plea, the general issue. The plaintiffs introduced in evidence a written contract signed by themselves, also a written contract signed by the defendant’s agent, of the following tenor:—■ Boston Excelsiob Company. Manufacturers and dealers in Excelsior and Upholsterers’ Supplies.

<p>Malicious Fence. Stat. 1893, c. 188.</p> <p>By the common law a man may build a fence on his own land as high as he pleases, although by so doing it may obstruct his neighbor’s light and air.</p> <p>But by statute, " any fence or other structure in the nature of a fence, unnecessarily exceeding eight feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be 'deemed a private nuisance.”</p> <p>The gist of an action against a party for maintaining such a structure is that it is " maliciously kept and maintained.” The plaintiff must show that malevolence was the dominant motive.</p>

<p> Negligence. Master and Servant. Assuming Risk. </p> <p>Although between joint employers, one of them takes upon himself the function of a workman, the relation of master and servant nevertheless continues to subsist.</p> <p>Where a defendant standing in the relation of master, knows, or by the exercise of ordinary care ought to know, that the plaintiff is in a place of danger, it is the duty of such defendant therefore to exercise ordinary care on his part so as not to expose the plaintiff to perils that might by the exercise of such care have been avoided.</p> <p>The servant, though employed in a place of'more or less clanger, has a right to expect the exercise of due care on the part of his employer.</p> <p>The servant in assuming the ordinary risks of an employment does not assume a risk which is the consequence of the employer’s negligence.</p>

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

<p> Negligence. Malpractice. Damages. Repeating of Instructions.' </p> <p>Upon a motion for a new trial in a case where the jury returned a verdict against the defendant, a surgeon, for alleged malpractice in treating the plaintiff’s dislocated shoulder, the court holds; that the plaintiff has established, by a fair preponderance of the evidence, that the defendant did not ' exercise the care and skill which the law requires in diagnosing the injury; and that the long delay before the dislocation was reduced, was the proximate cause of the paralysis, from which the plaintiff suffers; and that the defendant is in fault for that delay.</p> <p>In estimating- damages for such an injury, much must be left to the sound judgment of the jury; and in this case the court is unable to say that the jury erred.</p> <p>Where a requested instruction that is sound has already been given, and its repetition at the close of the charge, instead of aiding is likely to mislead, held; that it may be properly refused.</p>

<p> Probate. Devastavit,. Jurisdiction. Suits for Legacies. </p> <p>The Probate Court has exclusive jurisdiction, subject to appeal to the Supreme Court of Probate, of the estate of decedents, and their final settlement and distribution, including the settlement of the accounts of the personal representative.</p> <p>The Supreme Judicial Court, as a common law court, does not have jurisdiction in a common law action of negligence brought by a residuary legatee against a former executor for wasting- the assets of the estate.</p> <p>A residuary legatee alleged a devastavit by the defendant, executor of the will, in failing to collect and account for certain debts due the estate and claimed to recover their amount of the defendant in an action at common law in this court sitting below. Held; that the action cannot be maintained.</p> <p>Also; that the plaintiff’s remedy, if the defendant is in fault as claimed, is in the Probate Court, and not by suit at common law. The fact that the executor has rendered his final account in probate and resigned does not change the result. He may still be cited into the Probate Court.</p> <p>The statute right to sue for a legacy does not confer a right upon a residuary legatee to sue for a devastavit for his private benefit.</p>

<p> Indictment. Pleading. Time. Evidence. </p> <p>In the trial of an indictment, containing but a single count, the state introduced competent proof of the assault alleged to have been committed on the third day of January, and more specially identified the occasion as the evening of the second Sunday after Christmas, when the defendant’s wife was at church. The complainant was then permitted, against the defendant’s objection, to give testimony to prove three other subsequent assaults upon her by the defendant. Held; that before this testimony of other assaults had been heard, it was not error for the presiding judge to refuse the defendant’s request that the prosecuting attorney be compelled to elect upon which assartlt he would rely, especially as rulings upon such requests are ordinarily within the domain of judicial discretion.</p> <p>It did not appear, however, that at any later stage of the trial the state ■ expressly elected, or was required to elect, upon which one of the four separate assaults it would rely to substantiate the charge in the indictment. Held; that under these circumstances, in justice to the defendant, the state should be deemed to have elected by implication to rely upon the first assault proved, which was alleged to have been committed January third, and identified as the one intended to be described in the indictment.</p> <p>Evidence of other crimes of a precisely similar nature to that charged and not connected with it, though deemed inadmissible to prove the commission of the act involved in the substantive charge, is yet uniformly received for the limited and specific purpose of aidipg to determine the quality of the act, and the legal character of the offense, by illustrating the intent with which the act was committed. But, in this case, the evidence of other assaults appears to have been received, not simply for the .secondary purpose of showing the nature and intent of the first one, but as proof of other substantive offenses upon each one of which a conviction might have been had; and in this state of the evidence the jury were instructed that if they were satisfied that on any date while the complainant lived in the defendant’s house he was guilty of the charge, it was their duty to convict him. Held; that under this instruction upon evidence showing four independent assaults, some of the jury may have been satisfied that an assault was committed on one of the occasions specified, and others, of an assault on a different occasion, and thus a verdict rendered -without unanimity respecting- either of them.</p> <p>Held; that the ruling admitting- evidence of other similar assaults without explanation of its limited purpose and effect, and the foregoing instruction to the jury upon that state of evidence, were erroneous.</p>

<p>Conditional Sales. Record. R. S., c. Ill, § 5; Stat. 1891, c.' 11; Stat. 1895, c. 82.</p> <p>Where a written agreement dated August 23, 1894, was a conditional sale- of personal property, operating a transfer of title if the payments specified in it were made, and until payment was made the vendor retained the title,—no note having been given for the purchase money, nor any express promise of payment made,—held; that the agreement was not required tobe recorded under the statute existing at its date. (it. S., c. Ill, § 5, as amended by stat. of 1891, c. 11.)</p> <p>Held; that under the Stat. of 1895, c. 32, an instrument like the above would not be valid, except as between the original parties, unless recorded.</p>

<p> Benefit Society. Sick and Death Benefits. Misrepresentations. Age. Intemperance. Forfeiture. Waiver. </p> <p>The by-laws of the defendant corporation, a religious, social and beneficial society, prohibited the admission of a person more than fifty years of age. A member of the society at the time of his admission, in answer to the question propounded by the president, in accordance with the by-laws, declared that his age was then forty-nine years. He was, in fact, at that time fifty years, nine months and seventeen days old. Held; that the declaration of the member in regard to his age was a misrepresentation of a material fact, and that such misrepresentation rendered invalid the contract with the society.</p> <p>The plaintiffs husband became a member of the St. John Baptist Benevolent Society of Waterville, an unincorporated association, July 15, 1877. The members of this society were incorporated December 21, 1878, under the provisions of R. S., c. 55. The by-laws of the association were adopted by the corporation. April 5, 1887, the members of the Waterville Society, residing in Fairfield, withdrew by consent of the parent society and organized the defendant corporation. The plaintiff’s husband was one of these members. The old and the new societies made a " contract and alliance, so that the member of each of the societies should pay at the death of each member the sum of one dollar to his widow, the same as before their separation.” At its organization, the defendant corporation adopted the constitution and regulations of the Waterville society, and which are identical with those in force when the plaintiff’s husband became a member. These bylaws absolutely prohibited the admission of a person who was more than fifty years old. Held; that the defendant corporation assumed the obligations pertaining to the membership of the plaintiff’s husband only upon the implied condition that his declaration to the Waterville society, in regard to his age, was true. The defendant corporation continued the contract undertaken by the parent society, and it is liable, in this particular, only when the old society would have been. Also ; that any fact which rendered the contract invalid, when so adopted, furnishes a good defense by the defendant corporation to the plaintiff’s action upon it.</p> <p>The laws of the defendant society provided that a member while retaining his membership should forfeit temporarily his right to sick benefits if his illness is due to intemperance, or if lie failed to pay the monthly contribution promptly in advance, and in such ease, if he afterwards paid, the forfeiture would extend through the month succeeding his payment. These laws further provided that the defendant society should not be liable to a beneficiary for a death benefit, unless the member at the time of his death was entitled to sick benefits. Held; upon the facts reported, that there was a forfeiture of the contract in this case upon both grounds, and that therefore the beneficiary cannot recover the death benefit.</p> <p>Held; that the plaintiff’s right under the contract to recover the expenses of worship and burial is contingent upon a valid membership of the deceased. His widow, therefore, is not entitled to recover under this claim, it appearing that her husband’s membership was invalid by reason of his age at the time of joining the society.</p> <p>One cannot be said to waive that which he does not know. Held; that the defendant corporation did not waive its defenses by attending the funeral of the deceased, pursuant to a vote of the society, as a body and in uniform. The society did not have any knowledge of the true age of the member until long after his funeral. Also; that the attendance at the funeral is -not a waiver of the other defenses. While intemperance and failure to make prompt payments work a forfeiture of benefits, they do not work a forfeiture of membership.</p>

<p> Practice. Plea in Abatement. Verification. </p> <p>Tlie rules of practice in our courts in reference to the necessity of verification to pleas of abatement are only an affirmance of the common law doctrine, as modified by 4 and 5 Ann. c. 16, § 11, (in 1705) and which has become the common law of this State by adoption.</p> <p>Such verification is necessary not only in civil actions, where a plea in abatement is filed, but in criminal proceedings also.</p> <p>In a judgment upon a demurrer to a plea in abatement as an issue of law, not upon an issue of fact found upon such a plea, the entry must be that the respondent answer over.</p>

<p>On Motion by Defendant.</p>

On Motion by Dependant. This was an action of tort in which the plaintiff alleged he was injured by defective machinery while employed by the defendant in its pulp-mill. The case appears in the opinion.

On Exceptions by Defendant. The case is stated in the opinion. The plaintiff cannot recover unless protected by a license, because he was performing acts foi'bidden by statute. Harding v. Hager, 60 Maine, 341. Burden of proof on plaintiff to show license. State v. Churchill, 25 Maine, 306.

On Motion and Exceptions by Defendants. This was an action of assumpsit brought by the plaintiff, who was an oil merchant in Boston, against the defendants to recover the value of certain oil purchased of him during the years 1894 and 1895 all of which is admitted to have been paid for except the item of October 4, 1894, for twenty barrels of kerosene oil amounting to $87.28. The verdict was for the plaintiff for the sum of $95.50.

<p>On Motions by Defendant.</p> <p>Tbe defendant claimed a new trial upon tbe following grounds, besides those stated in the opinion, and which are stated in bis motion and based upon newly-discovered testimony:</p> <p>“ The defendant avers that since said trial, and by reason of tbe publicity caused thereby, be has discovered new and material facts, tending to show tbe falsity of tbe plaintiff’s testimony given in said trial, which be expects to prove by tbe witnesses hereinafter named, being advised by said witnesses that they will so testify, and that said newly-discovered evidence is as follows:</p> <p>1. He expects to prove by William H. Fisher, Esq., and by Melvin S. Holway, Esq., both of Augusta, in Kennebec County and State of Maine, that said Joseph Foye, in tbe month of December, A. D. 1895, having been duly summoned appeared before said Holway, as a Disclosure Commissioner, and did then and there submit himself to an examination under oath concerning bis estate and effects, under tbe provisions of chapter 137 of tbe laws of 1887 as amended by chapter 313 of tbe laws of 1893; and that in said examination and disclosure said Foye stated that there was nothing due to him from any person; and being particularly interrogated as to his services performed at the Kennebec Ensor Institute in Gardiner, and whether there was anything due him for said services, he declared there was nothing due him therefor, and that no one was indebted to him for said services.</p> <p>2. He expects to prove by said Fisher and Holway that said Joseph Foye was again summoned and did appear before said Holway on the 18th day of September, A. D. 1896, to submit himself to examination under oath concerning his estate and effects, under the provisions of the. law before referred to, and in his disclosure said Foye did again declare that there was nothing due and owed to him by any person; and he particularly denied that there was anything due him for his labor or services performed at the said Kennebec Ensor Institute at Gardiner, and that there was anything due him from this defendant.....”</p>

<p>Insurance. Ownership. Increase of Sisk. Fraud. S. /S'., c. 49, § 20.</p> <p>A policy of insurance contained a provision that it should he void if the subject of insurance be a building on ground not owned by the insured in fee simple.</p> <p>But the statute provides that erroneous descriptions of value or title by the insured shall not prevent a recovery upon the policy unless the jury find that the difference between the property as described and as it really existed contributed to the loss, or materially increased the risk; and that a breach of any of the terms of the policy by the insured do not affect the policy unless they " materially increase the risk.”</p> <p>In a suit upon the policy the question of enhanced risk is properly one for the jury rather than the court.</p> <p>Fraud and false swearing imply something more than some mistake of fact, or honest misstatements on the part of the insured.'</p> <p>They consist in knowingly and intentionally stating upon oath what is not true, or the statement of a fact as true which the party does not know to be true, and which he has no reasonable ground for believing to be true.</p>

On Report. This was an action on the case to recover damages for'an injury to the plaintiff on June 18, 1896, while driving easterly along Pine Street in the city of Lewiston, caused by the fright of his horse at a road machine being propelled by steam westerly along the street, under the direction of the street commissioner of the city of Lewiston, and being used in repairing the street.

On Motion and Exceptions by Dependant. The plaintiff in this action is the administratrix of the estate of her husband, who was in the employ of the Bangor Pulp & Paper Company, the lessee of the defendant company, and was injured, while so employed, by the explosion of a digester in its mill and afterwards died from the effects of the injury.

<p>Indictment. Pleading. Perjury. B. S-, c. 122, §§ 4, 6-</p> <p>While the statute relating to indictments for perjury requires only the allegation of materiality, yet if the recited testimony in an indictment for perjury is clearly not material, held; that the indictment will be bad.</p> <p>When such an indictment alleges a thing 'to be material, and shows on its face ' that it is not material, held; that the allegation of materiality, although in the words of the statute, cannot save the indictment.</p> <p>In an indictment for perjury, the common law requires that there must be some proceeding, matter or thing to which the oath was taken; and such an indictment must set forth the issue ■ in which an alleged false affidavit was made, as well as the character and the jurisdiction of the court or magistrate. Held; that an indictment for perjury is bad which fails to set forth the issue between the parties in which the affidavit was made or does not show the materiality of the testimony.</p> <p>The defendant was indicted for making a false affidavit to the effect that lie had made a careful search among his own papers, etc. The indictment contained no assignment of perjury of any part of the affidavit, hiit charged the whole to be false and the whole to be material. Held; that it cannot all be false. If no search was made then it is true that nothing was found. If search was made, and the papers were found, which the defendant denied, then the affidavit was true in part and false in part. Held; that the allegation of falsehood in its entirety is contradictory.</p> <p>Several assignments may be made, and if one is sustained by the proof, a conviction may follow; but each' assignment must be specific.</p> <p>The defendant was indicted for making a false affidavit and the perjury assigned in one clause was as follows:—" I cannot take a single step in making more definite account.” The indictment further showed that the defendant was not a party to the proceeding,— being the settlement of an account in probate,— and therefore could not render an account. Held; that the indictment is bad. There is no allegation in this count from which the court can see its materiality to the issue, whatever it was, then pending.</p>

On Report. This was an action of debt brought by the plaintiff to recover from the defendant county the statutory fee of fifty cents for the service of each search warrant enumerated in the plaintiff’s declaration. The plaintiff was a regularly appointed and duly commissioned deputy sheriff for the county of Cumberland.

On Exceptions by Plaintiee. Bill in equity, heard on bill and demurrer. The facts in this case as set forth in the bill, filed August 7, 1896, are substantially as follows: ’ The plaintiff bought a horse on May 16, 1896, of one Prank J. Stairs, then a resident of Washburn, Aroostook County, having been informed and believing that the horse was the property of said Stairs and free from incumbrance. And thereupon she hired the horse out to one Ered O. York.

On Report. The ease appears in the opinion. The mortgage did not become operative as a conveyance until it was actually delivered to the plaintiff, which was either on the afternoon of the 19.th, or at the latest, on the morning of the 20th of November, long before which time the tea in controversy was in the store, and thus covered by tbe mortgage.

<p>On Report.</p> <p>The case is stated in the opinion.</p> <p>The land conveyed was bound by the covenant to have its stone product shipped over the wharves of the respective parties. The covenants run with the land; and the clause in question is not a condition subsequent upon breach of which forfeiture could be claimed and entry made. These covenants were inserted in the deeds for the express purpose of giving the parties a right of action for damages in case of breach. Such restrictions are to be fairly and reasonably interpreted according to their apparent purpose. A restrictive covenant runs with the land if created for the benefit of the land conveyed, or of that of which the grantor remains the owner, and intended to be annexed to such land. 1 Jones, Law of R. P. etc. §§ 647,648, 736, 784, 816; Jeffries v. Jeffries, 117 Mass. 184; Attorney General v. Gardiner, Id. 492; Ayling y. Kramer, 133 Mass. 12; National Bank v. Segur, 39 N. J. L. 173; 2 Wash. R. P. (5th Ed.) p. 316.</p> <p>It makes no difference that Blaisdell did not sign the latter deed. He accepted it according to its terms and the land was already bound by the deed of the whole. 2 Wash, on R. P. (5th Ed.) p. 299; Burbank v. Pillsbury, 48 N. H. 475; Kellogg v. Robinson, 6 Vt. 276; Atlantic Bock Go. y. Leavitt, 54 N. Y. 35; Finley v. Simpson, 22 N. J. 311.</p> <p>Before the partition the covenant was binding upon the whole land undivided; after the partition it was still binding upon the whole land in its divided interests between Blaisdell and Bragdon.</p>

<p> Seasonable Time. Waiver. Estoppel. </p> <p>Where facts are clearly established or are undisputed or admitted, a reasonable time within which an act should be done is a matter of law; but, under other conditions, is a matter of fact for the jury; and so also is waiver. In the latter case, held; that it is not error to submit both questions to the jury, or for the court below to refuse to decide either one as matter of law.</p> <p>The defendant sold on August 22, a horse to the plaintiff, with an alleged warranty of soundness. The plaintiff attempted a rescission and sued for the purchase money, and claimed that he returned the horse for the purposes of rescission in a few days thereafter, and introduced testimony tending to prove the fact. The defendant said that the rescission was some two weeks after the sale, or not until September 8th, and introduced evidence tending to prove it. Held; that the court below properly instructed the jury that the rescission must be made within a reasonable time; and exceptions do not lie to a refusal to rule that September 8th was not within a reasonable time.</p> <p>Estoppel raises an issue of law, but waiver an issue of fact. Waiver is the voluntary surrender or abandonment of a right; but if the conduct misleads, and deceives, then the law declares an estoppel upon him who caused the mischief and thereby misled and deceived the adverse party.</p> <p>Held; that the defendant was not entitled to the following instruction to the jury: that if the plaintiff from September 8th, when the horse was tendered to the plaintiff and refused, continuously used the horse in his business for driving and work until the trial, he thereby waived his right to rescind the sale. This was a question for the jury, for waiver is a matter of fact.</p>

On Report. There were two actions reported to the law court upon the same evidence. The first case was upon a demand for rent under a lease May 7, 1888, given by Charles Gay to the American Light and Power Company, the plaintiff claiming as assignee of the rights of Charles Gay by virtue of three assignments:— First: Assignment by acts of law under insolvency proceedings in case of Charles Gay, the assignment being dated February 20, 1895.

On Exceptions by Plaintiff and Defendants. Bill in equity, heard on bill, answers arid proof. This was a bill in equity brought by Mary E. Bradley against Sherburne R. Merrill, John W. Lane, John F. Proctor and Edward Hasty, for the redemption of the house and lot, No. 776 Congress street in Portland, from equitable mortgages. The bill was sustained and a master appointed to state the account.

<p>On Report.</p> <p>Bill in equity, heard on bill, answer and proofs.</p> <p>The plaintiffs alleged that they are the exclusive owners of a valuable fishing privilege upon the flats at the confluence of the Kennebec and Eastern rivers, in the town of Dresden, which privilege the respondents entered upon in the fishing season of 1896 and used to the exclusion of the plaintiffs and in derogation of their alleged rights and of the rights of their alleged lessee.</p> <p>The bill prayed for the granting of a temporary injunction, upon the filing of a bond, restraining the respondents from building a weir upon said flats, or in any way, interfering with the complainants’ lessee.</p> <p>The respondent made answer to the bill and defended on two grounds:—</p> <p>I. That they had built no weir on any flats, whether owned by the complainants, or others, but, on the contrary, they had built their weir for the season of 1896, and for several preceding seasons, entirely below low water mark, as they believed they had á legal right to do. And</p> <p>II. That their weir was not subject to the restrictive provisions of R. S., c. 3, §§ 60—63, particularly § 63.</p> <p>From the testimony introduced by the parties it appears that the locus is the peninsula formed by the confluence of the Kennebec and Eastern rivers. The southern end of this peninsula is owned by the plaintiffs, their farm containing about seventy-five acres.</p> <p>From the lower end of this peninsula, and extending southerly in the Kennebec river, are several hundred acres of flats, the flats being about one and three-quarters miles long and from one-quarter to three-quarters of a mile wide, all of said -flats being exposed at low water. On these flats are several valuable shad fisheries, some of which, including the one occupied by these defendants, the plaintiffs and their predecessors in title claim to have used themselves, or leased to others, since 1868. .</p> <p>Beginning with 1893, and in each year since, the respondents have erected a weir on practically the same spot, on the Kennebec side of the peninsula. These weirs are mere temporary structures, being erected about the first of May in each year and used during the months of May and June, and removed immediately after the twenty-fifth of June, because the taking of shad in weirs, after that date, is forbidden by law.</p> <p>There was evidence tending to show that the plaintiffs had leased this privilege for the season of 1896 to one James A. Robinson, but Robinson had not occupied it, and it was entirely unused when the defendants began the erection of their weir. Robinson, as the alleged lessee of the plaintiffs, forbade the defendants from erecting a weir on this privilege, but showed them no lease, and neither of the lessors ever intimated to the defendants that they claimed to own, or control this privilege.</p> <p>The real question before the court is, have these plaintiffs any rights under the testimony in this case which § 63 of c. 3, R,. S., is bound to protect.</p> <p>It may be claimed that this section of statute does not apply, as they had no rights by common law below low water mark. But it should be observed that sections 2 and 3 of c. 239, laws of 1883, dealt only with rights below, or as construed in Donnell v. Joy, 85 Maine, 121, beyond low water mark.</p> <p>Judge Virgin in Donnell v. Joy, p. 120, supra, in discussing the purpose of the legislature says: “In view of such an obvious mischief, and for the purpose of protecting the owner'of flats in the full, practicable enjoyment of his proprietary rights, the legislature took the subject matter in hand, and provided, among other things, in substance, that no one of the public should, upon land whether constantly or periodically overflowed by the tides, in which he had no proprietary interest but over which the State had control, plant a weir the natural operation of which would interfere with the rights of the owners of flats. And to make the statute efficient a penalty of $50 for each offense (statute 1885, c. 334). was provided, not, however, in the nature of a qui tam remedy—giving the penalty in part to whomsoever would sue therefor (Bouv. L. D.), —but wholly to the owner as a compensation for the injury to his proprietary rights. Statute 1883, c. 334.”</p> <p>This statute then was to protect “ the owner of flats in the full, practicable enjoyment of his proprietary rights,” against one having no proprietary interest.</p> <p>These plaintiffs did not get the full, practical enjoyment of their proprietary rights in this fishing privilege. If let alone they would have received $25. By the interference of these defendants they lost it.</p>

On Motion by Plaintiff. This was a real action in which the plaintiff sought possession from the defendant, her sister, of a lot of land and the buildings thereon situate on Blake street in Lewiston. Plea, the general issue with a brief statement, also, alleging the further defense of adverse possession. The jury returned a verdict for the defendant. The facts are stated in the opinion. Mere possession and receiving rents is not evidence of an ouster.

On Motion and Exceptions by Defendants. This was an action of tort for loss of services of the plaintiff’s minor daughter alleged to have'been injured by the defendants’ negligence in setting her at work on a machine claimed to be dangerous, without having been instructed by the defendants as to its dangerous character.

<p> Slander. Damages. </p> <p>The court refused to grant a new trial in an action for slander, brought by a young man of good reputation against a country trader, who discharged the young man from his employ and afterwards accused him of theft; and the plaintiff recovered a verdict of $437.50.</p> <p>The court cannot say that the verdict is either against the evidence or too large. The jury saw the parties and could best judge what damages would fit the case, and the court cannot discover that they were actuated by prejudice or any other improper motive.</p>

<p> Slander. Evidence. Burden of Proof. </p> <p>In an action for slander, where the defendant justifies the supposed slander as true, it is error to charge the jury that the defendant must satisfy them by a preponderance of the evidence by clear and convincing proof that the 'words were actually true in order to exonerate himself from liability for having uttered them.</p> <p>French v. Day, 89 Maine, 441, affirmed.</p>

<p>On Report.</p> <p>These were all actions upon promissory notes given by tbe treasurer of tbe defendant town and in its name, and all of tbe same general form. Tbe note in the first action was in tbe following form:</p> <p>“$300. Foxcroet, Feb. 15, 1883.</p> <p>For value received, we, tbe inhabitants of the town of Foxcroft, by Elias J. Hale, treasurer thereof, duly authorized by vote of said town to hire money, promise to pay Hartwell Love joy, or order, three hundred dollars on demand and interest at four per cent. Payable at the treasurer’s office in Foxcroft.</p> <p>Elias J. Hale,</p> <p>Treasurer of Foxcroft.”</p> <p>“(Indorsements.)</p> <p>Foxcroft, Feb. 17th, 1887, rec’d four years’ int., $48.00</p> <p>Foxcroft, Feb. 27th, 1890, rec’d four years’ int., ' $36.00”</p> <p>Plea, general issue. The defendants also filed a brief statement in which they set up the statute of limitations as a further defense.</p> <p>The cases are stated in the opinion.</p>

On Report. Tlie case appears in tbe opinion. Tbis was not a willful cutting, and the damages to be recovered, if any, are only the value of tbe timber before any labor was expended upon it.

On Exceptions by Dependant. 'The case appears in the opinion. The state simply offered this paper, without any explanation as to what it was, without any testimony to show to what part of the internal revenue department it referred, for the purpose of proving an indictment charging this respondent with keeping a liquor nuisance.

<p> Negligence. Proximate Cause. Railroad. </p> <p>Generally, it is a defense to an action, of tort that the plaintiff’s negligence contributed to produce the injury. But, where the negligent acts of the parties are distinct and independent of each other, the act of the plaintiff' preceding that of the defendant, it is considered that the plaintiff’s conduct does not contribute to produce the injury, if, notwithstanding his negligence, the injury could have-been avoided by the use of ordinary care at the time by the defendant.</p> <p>The contributory negligence of an injured party that will defeat a recovery must be such as proximately contributed to the injury.</p> <p>A person may recover damages for an injury caused by the negligence of the defendant, although the negligence of .the plaintiff first exposed him to the risk of injury, if such injury was proximately caused by the defendant’s negligent act, committed after he had become aware of the plaintiff’s danger.</p> <p>If one discovers another to be negligent he must take precautions accordingly, omitting which he is liable to the other for the damages which flow from such new want of care.</p> <p>In this case the jury found that by the exercise of reasonable and ordinary care and caution on the part of the motor-man a street railway car might have been so managed as to avoid a collision with the plaintiff’s team. Held; that this finding is peculiarly a question of fact within the province of the jury; and the law court declines to set aside a verdict for the plaintiff'.</p>

<p>On Exceptions by Dependant and Agreed Statement.</p> <p>The case appears in the opinion.</p> <p>Exceptions: The declaration contains a special count upon each note, and the money counts. The demurrer being general, if one count be good, the exceptions must be overruled. Dexter Savings Bank v. Copeland, 72 Maine, 220: Concord v. Delaney, 56 Maine, 201, 204; Blanchard v. Hoxie, 34 Maine, 376, Skolfield v. Skolfield, 88 Maine, 254.</p> <p>Form of indorsement: 1 Daniel Neg. Ins. (3rd Ed.) § 688; Adams v. Blethen, 66 Maine, 19; Markey v. Corey, 66 N. W. Rep. 493; Maine T. B. Co. v. Butler, 45 Minn. 506; Sands v. Wood, 1 Iowa, 263; Sears v. Dante, 47 Iowa, 658; 1 Edw. Bills & Notes, § 398; Morton Bills & Notes, (2d Ed.) 109; Henderson v. Ackelmire, 59 Ind. 540; Fassin v. Hubbard, .55 N. Y. 470; Vanzant v. Arnold, 31 Ga. 210; Dixon v. Clayville, 44 Md. 573; Shelby v. Judd, 24 Kan. 166; Mary v. Dyer, (Ark.) 21 S. W. Rep. 1064; Randolph Com. Pap. § 704.</p> <p>Negotiability: 1 Daniel Neg. Ins. § 868, and cases cited; Bell v. Packard, 69 Maine, 105; Milliken v. Pratt, 125 Mass. 374; Cook v. Litchfield, 9 N. Y. 279.</p> <p>Contract to be performed in Indiana and interpreted according to its laws: Lindsay v. Hill, 66 Maine, 212; Thompson v. Beed, 75 Maine, 404; Bond v. Cummings, 70 Maine, 125; Scudder v. Union Nat. Bank, 91 U. S. 406; Wright v. Andrews, 70 Maine, 86. Notes negotiable in Indiana: R. S., 1881, § 5506; Melton v. Gribson, 97 Ind. 158; New v. Walker, 108 Ind. 365; Pool v. Anderson, 116 Ind. 88; Depauw v. Bank, 126 Ind. 553; Davis v. MeAlpine, 10 Ind. 137.</p> <p>Negotiability of note not affected because payable “on or before.” Walker v. Woolen, 54 Ind. 164; Woollen v. Ulrich, 64 Ind. 120; Noll v. Smith, 64 Ind. 511; Grlidden v. Henry, 104 Ind. 278; Smith v. Ellis, 29 Ma.ine, 422; Mattison v. Marks, 31 Mich. 421; Lamb v. Story, 45 Mich. 488; Helmer v. Krolicle, 36 Mich. 373; Jordan v. Tate, 19 Ohio, N. S. 586; Charlton v. Reed, 61 Iowa, 166; Curtis y. Horn, 58 N. H. 504, and cases; 1 Daniel Neg. Ins. §§ 43, 44, 45, 45 a; Bates v. LeClair, 49 Vt. 229; Ernst Y- Steekman, 74 Penn. St. 13; Capron y. Capron, 44 Vt. 410; Cisne y. Chideéter, 85 111. 523; First National Bank v. Skeen, 101 Mo. 683; Albertson y. Laughlin, 173 Penn. St. 525; Palmer y. Hummer, 10 Kansas, 464; Buchanan v. Wren, (Tex.) 14 S. W. Rep. 732. Contra: Richards v. Barlow, 140 Mass. 218, and cases. But see Act of 1888, c. 329.</p> <p>A stipulation for attorney’s fees in a promissory note does not destroy its negotiability: Stoneman v. Pyle, 35 Ind. 103; Hubbard y. Harrison, 38 Ind. 323; Sinker v. Fletcher, 61 Ind. 276: Carver v. Pontius, 66 Ind. 191; Maxwell v. Morehart, 66 Ind. 301; Proctor v. Baldwin, 82 Ind. 370; Farmers’ Nat. Bank v. Sutton Mfg. Co., 52 Fed. Rep. 191.</p> <p>Counsel also cited:—1 Daniel Neg. Ins. § 62 a; 1 Randolph Com. Paper, 205; Sperry v. Horr, 32 Iowa, 184; Hurd v. Dubuque, 28 Neb. 10; Dietrech v. Bayhi, 23 La. Ann. 767; Seaton v. Scoville, 18 Kan. 435; Overton y. Matthews, 35 Ark. 147; Gaar v. Bank, 11 Bush, 180; Nickerson v. Sheldon, 33 Ind. 372; Trader v. Chidester, 41 Ark. 242; Davidson v. Norse, 52 Iowa, 384; Merchant v. Moreno, 7 Fed. Rep. 806 ; Adams v. Addington, 16 Fed. Rep. 89.</p>

Agreed Statement. This was an appeal from a decree of the judge of probate for Hancock County, disallowing and refusing to admit to probate an instrument purporting to be the last will and testament of Mehitable S. Rogers late of Castine, deceased. The case was submitted to the decision of the full court upon the following agreed statement of facts : First. That the following is the olograph of Mehitable S. Rogers, to wit: In the name of God—Amen.

In Equity. On Appeal. This was a suit in equity brought under tbe provisions of chapter 30 of the statute of 1895, for the enforcement of a lien for labor performed and material furnished in plastering a dwelling-house in Portland, It came to this court on an appeal from the decree of the justice of this court sitting below who heard the case and dismissed the bill.

<p>Insolvency. Discharge. Corporation. Besidence. XI. S. Const. 14th. Amend. B. S., c. 81, § 19; Stat. 1893, c. 278.</p> <p>A corporation created by tbe laws of another state has its residence in such state, and does not gain a citizenship in this state by doing business here, although it occupies a store here, which is managed by clerks and agents residing here, and pays taxes on its stock of merchandise here.</p> <p>The presumption that the citizenship of stockholders is identical with that of the corporation is one of law, not to be defeated by averment or evidence to the contrary.</p> <p>A corporation is a “person” within the meaning of the Fourteenth Amendment to the Federal Constitution of the United States and other constitutional clauses.</p> <p>A debt due a corporation created in another state is not barred by the debtor’s discharge in insolvency here,—the creditor not participating in such proceedings, nor accepting a dividend, although all the usual notices to creditors ' be served on its resident agent in the manner described for service by sections 19 of chapter 81 of the revised statutes; and notwithstanding the act of 1893, providing that no action shall be maintained by any creditor against any debtor, who has received his discharge in insolvency, upon any demand of claim that would have been discharged by insolvency proceedings if proved against such debtor’s estate.</p>

<p> Slander. Privileged Communications. Honest Belipf. </p> <p>To justify the speaking of slanderous words on the plea of privileged communication it must appear not only that the defendant believed he was speaking the truth, but that there were reasonable grounds which induced such belief.</p>

On Report. This was an action of assumpsit, as permitted under the statutes of Maine, to recover rent due upon a sealed lease between the parties. The Case is stated in the opinion. ' By the common law, in the absence of any stipulation in the lease to the contrary, the duty to repair leased premises is cast upon the tenant, and that too, notwithstanding the premises may be destroyed by flood, fire 'or tempest.

Agreed Statement. This was a real action in which the plaintiffs sought to recover a lot of land on Sea street in the city of Rockland and claimed to have been taken by the city as a part of the street, June 2, 1890, and for the purpose of widening the street on its north side.

<p>On Motion and Exceptions by Plaintiff.</p> <p>The case will be found in the opinion of the court.</p> <p>Exceptions: State v. Bartlett, 47 Maine, 395; Douglass v. Trask, 77 Maine, 35; Page v. Alexander, 84 Maine, 84.</p> <p>The bailee is presumed to have been negligent and the burden of proof rests on him showing the exercise of such care as was required by the nature of the bailment when the bailor shows, in an action against the bailee to recover damages for an injury to or a loss of goods, that the goods were placed in the hands of the bailee in good condition, and that they were returned in a damaged state. Cumins v. Wood, 44 Ills. 416, (92 Am. Dec. 189). Counsel also cited Eunkhouser v. Wagner, 62 Ills. 60; Mooers v. Larry, 15 Gray, 451; Briggs v. Oliver, 4 Hurl. & C. 403.</p> <p>Where the cause of injury can easily be traced to the bailee’s want of care, then he is liable. Eastman v. Sanborn, 3 Allen, 594; Banfield v. Whipple, 10 Allen, 27.</p>

On Report. These were bills in equity, heard on bills, answers and testimony. The purpose of the bills, both being alike, was to restrain the defendants from excavating, grading and draining and also building a sidewalk upon a strip of land ten feet wide in front of the plaintiffs’ premises and being a part of a private way fifty feet in width as originally laid out by the former owners, and known as the “Livingston Road” at Bar Harbor.

<p>Intox. Liquors. Beplevin. Libel. B. 8., o. 27, § 50.</p> <p>Intoxicating liquors which have been seized by an officer in accordance with the provisions of the statutes in relation to the seizure of liquors intended for unlawful sale within the state, are in custodia legis and can not be taken from the custody of the officer upon writ of replevin or other process, while the statutory proceedings are pending. K. S., c. 27, § 50.</p> <p>Intoxicating liquors were seized by an officer without a warrant upon October 18, and a warrant was procured upon the next day. The officer’s return upon the warrant states that the liquors were seized upon October‘25. Held; that the incorrect statement in the officer’s return of the day when the liquors were seized does not so affect the legality of the proceedings as to permit the owner of the liquors to maintain a replevin for them against the officer. The point should have been made in the court where the proceedings were pending, when the officer would have been allowed to amend his return'in accordance with the fact.</p> <p>A description of the liquors seized in the libel, monition and notices that is sufficiently specific to notify the owner of the fact of seizure and the identity of the'liquors seized, is all that is required.</p> <p>The following description held to be sufficient: " 1 bbl. filled with intoxicating liquors. 1-5 Gal. keg filled, with intoxicating liquors. Marked to-M. P. Colbath, North West Carry, Moosehead Lake, Maine.”</p>

On Eeport. The case is stated in the opinion. The jailer was not bound to receive the debtor without an ’ attested copy of the execution and return thereon, or of the bond. Jones v. Emerson, 71 Maine, 207. To hold otherwise would place the power in the hands of the jailer to prevent or defeat the remedy provided by statute, and prevent the discovery of property by disclosure in cases where a bond is given.

<p> Bank. Deposit. Mistake. New Trial. </p> <p>In an action to recover the amount of a deposit claimed to have been made by the plaintiff in the defendant bank, and which was disputed by the bank, the issue being exclusively one of fact, the court considers, taking into consideration the evidence offered in support of the motion for a new trial upon the ground of the defendant’s newly-discovered evidence, as well as that introduced at the trial, that the verdict for the plaintiff was clearly wrong and that a new trial should be granted.</p> <p>In this case it appeared that the plaintiff having an account with the bank made a deposit of $100, on October 13, 1892, which was duly credited to him upon his pass-book and upon the books of the bank. Under the same date an entry of another item of the same amount was made by the bank officer upon the pass-book to the plaintiff"s credit but was not credited to him on the bank’s books, and is the item here in suit. The plaintiff did not claim that this second sum of $100 was deposited on the day of its date, but did claim that in the fall of 1893 when he made a deposit of $35, he sent the sum of $100 by his wife to be deposited; that this sum was deposited, but that it was never credited to him upon the bank’s books. The plaintiff and his wife were people of limited and few financial transactions, and had no recollection ■whatever whether this claimed deposit was made in currency or by check. He was a light-house keeper and lived with his wife on an island at such a • distance from the bank that the wife’s journey tliere and back to make the deposit could not be completed in one day; but neither was able to fix the time, nor even the month, when, astliey claimed, the deposit was made.</p> <p>On the other hand, the system of book-keeping, and the manner of doing business, including the use of deposit tickets, used at the bank, rendered it improbable that an honest error could long remain undiscovered; and a deposit that liad been omitted through inadvertence would have shown itself in the cash, when the books and casli were balanced daily at the close of business. During this period of time there was no cash over, or deposits entered by mistake to the credit side of another person’s account. The newly-discovered testimony showed that the statements of both the plaintiff and his wife were inconsistent with their position and testimony at the trial.</p> <p>By reason of this newly-discovered testimony in its connection with all the circumstances of tlie case, the unsatisfactory character of the plaintiff’s testimony and the extreme improbability that such a mistake could have been made by the employees of the bank and remain undiscovered, held; that the verdict for the plaintiff was wrong.</p>

On Exceptions by Dependant. Tbe case is stated in tbe opinion. Tbe bill of exceptions in tbis case shows that tbe presiding justice, before whom it was tried without tbe intervention of a jury, filed a written decision in which he gave judgment for the plaintiffs.

On Motion and Exceptions by Defendant. This was an action of assumpsit brought by the plaintiffs to recover the price of certain supplies furnished to construct a plant and introduce a process for the manufacture of gas in Rockland.

On Exceptions by Deebndant. This was an action of replevin to recover a piano which one Spencer sold to the defendant for $125 in cash and a horse worth from $10 to $25. The jury returned a verdict for the plaintiff, and assessed damages in the sum of one cent.

<p>On Report.</p> <p>The case appears in the opinion.</p> <p>The plaintiff saw fit at the outset to grant the mortgagor the right to “barter, sell and exchange” his stock, not even restricting him to “retail” or the “usual course of trade” and the law will not now allow him when he cannot demonstrate his claim to come in and at random, demand satisfaction from one who has dealt with his mortgagor. Grriffith v. Douglass, 78 Maine, 532; Jones v. Richardson, 10 Met. 481.</p>

On Exceptions by Plaintiee. This was an action to recover back money paid for a tax claimed to have been illegally assessed and claimed to have been paid under protest. The facts appear in the opinion. On April 1, 1893, when the tax was assessed, the plaintiff occupied Storer’s wharf in Bremen in the manner and for the purposes contemplated by the statute under which we justify, and no action to recover it back can be maintained.

<p>School Districts. Stat. 18¿>3, c. 216. Dist. Aro. 1, in Gorham. Spec. Acts, 1889, c. 454, c. 461.</p> <p>A school district organized by tbe town and not by special act .of the legislature, is not within the proviso in section 1, of chap. 216 of the laws of 1893 abolishing school districts, although the legislature by special acts subsequent to its organization conferred upon it special powers; and hence is not entitled to receive for its own expenditure any part of the town’s money raised for the support of schools. :</p>

<p> Towns. Way. Negligence. New Trial. </p> <p>A verdict clearly wrong will be set aside.</p> <p>As the plaintiff was driving in the evening over a road with which she was perfectly well acquainted, she saw an electric car approaching her. She testified that her horse “ was under full control all the time and did not seem to be alarmed at all.” When she saw the approaching car, she turned her horse toward the side of the road away from the car track and continued driving in that direction until her carriage wheel dropped down over the end of a culvert, when she was thrown out of the carriage and sustained certain injury. The road at this point was smooth and nearly level and twenty-one feet in width between the end of the culvert and the nearest rail of the car track. She also testified that “objects were plainly visible,” that she could see the car tracks and the width, of the road perfectly well. Yet, although she was an expert driver of twenty years’ experience, as she says, and had a horse that showed no signs of alarm and was.under perfect control, she continued to drive away from the track and towards the side of the road until the wheel of her carriage dropped down over the end of a culvert twenty-one feet distant from the track. It does not appear that she gave any thought or attention to the side of the road that she was all the time approaching, although, with a safe horse under perfect control she had ample opportunity to do so.</p> <p>.Held; that a verdict in favor of the plaintiff was clearly wrong; that the plaintiff’s own testimony and that introduced in her behalf, showed conclusively that the accident was caused, in part at least, by her own negligence.</p> <p>The court adheres to its former opinions in the same case in 85 Maine, 523, and 88 Maine, 103.</p> <p>See Tasker v. Farmingdale, 85 Maine, 523; S. C. 88 Maine, 103.</p>

<p> Corporations. Meetings. Quorum. Insolvency. Jurisdiction. Equity. Inter-pleader. </p> <p>The court of insolvency has sole jurisdiction, in the first instance, over the distribution of funds in the hands of an assignee in insolvency; and this court has neither original nor concurrent jurisdiction over the same.</p> <p>Held; that a plaintiff, as assignee in insolvency, who is himself a claimant of a fund in his possession cannot be awarded an interpleader.</p> <p>A sale and conveyance of corporate property duly authorized by the stockholders will be sustained and declared valid.</p> <p>At the organization of a corporation, the capital stock was fixed at $30,000, and was divided into shares of $50 each. Subsequently the corp'oration adopted the following by-law: “At all legal meetings of the company there must be present at least one-third of the stockholders holding at least one-third of the shares of stock, to constitute a quorum to do business.” Only 96 shares of stock were ever subscribed for or issued.</p> <p>Held; that the presence at a stockholders’ meeting of one-third of the stockholders in number holding at least one-third of the 96 shares issued or subscribed for, was sufficient to constitute a quorum; and that a conveyance authorized at such a meeting was valid.</p> <p>Ellsworth Manufacturing Co. v. Faunae, 79 Maine, 440, distinguished; and, in so far as it is in conflict with the opinion in this case, it is overruled.</p> <p>See Miller v. Kenniston, 86 Maine, 550; Miller v. Waldoboro Faeldng Co., SS Maine, 605.</p>

<p>Interpleader in Equity. Costs. Fraudulent Conveyance. Jt. 3., c. 65, § 36.</p> <p>In cases of interpleader, tlie money should be paid into court, and if an inter-pleader be awarded, a decree should be made discharging the plaintiff from all liability to either party, and directing' the claimants to interplead. Thereby the court takes jurisdiction, and retains the possession and control of the fund, and tlie'plaintiff ceases to be a party to the litigation.</p> <p>Where the proceedings have been irregular in these respects, it is considered, for this reason, that costs should not be allowed.</p> <p>A conveyance made with express intent to defraud, hinder or delay creditors is void as to them. A voluntary conveyance from father to son is prima facie fraudulent and void as to existing creditors. Such a conveyance is to be considered not only in the light of all surrounding circumstances, but in the light of necessary consequences. Whether the property conveyed was all that the grantor owned or not, and if not, the amount and value of what remained relative to existing debts, its situation, its availability for the purpose of being got at to be applied to the payment of debts, whether by the conveyance, the creditor is necessarily subjected to a loss of remedy for the collection of all or a part of his debt, or is necessarily hindered or delayed in his ability to collect his debt,—all these circumstances are to be weighed in determining whether the conveyance was fraudulent in intent, or worked out a fraudulent result; and one of these is.as fatal as the other. When such a ■ conveyance must necessarily result in defeating, hindering or delaying creditors, as well as when such a result was expressly intended, it is to be regarded as fraudulent and void as to them. The intent to defraud is sufficiently proved.</p> <p>A non-resident debtor owing a creditor in this state, gave to Ms son all Ms property in this state. He died soon after, leaving an estate in California, sufficient to pay the claims of the creditor here. But in California a large part of the claim, at the date of the gift, was barred by the statute of limitations. In this state none of it was barred.</p> <p>Held; that the necessary effect of the gift was to utterly deprive the creditor 1 of the ability to recover a large part of his debt, and for the recovery of so much as remained collectible, in spite of the statute of limitations, to remit him to the tribunals of a distant state; and that the gift was void as against creditors in this state, and that the fund should be administered, in this state as tlie estate of a deceased non-resident.</p>

On Motion and Exceptions by Defendant. This was an action of assumpsit on account annexed for a quantity of kiln wood. The writ was against William P. Hurley and Frances E. Hurley, who are husband and wife, as copartners under the firm name and style of “ The Rockland Lime Co.” Both defendants seasonably filed their affidavits denying the partnership alleged in the' writ.

On Appeal in Equity. This was an equity appeal from a decree of the court sitting below dismissing a bill filed by the plaintiff to enforce a lien under the statute upon land and buildings for materials furnished by him in the construction of a building owned by Percy A. and Wesley L. Gribben, two of the defendants in the bill.

<p> Way. Defect. Notice. B. S., c. 18. </p> <p>This court has always held that the statute which requires cities and towns to keep their ways “safe and convenient for travelers” means reasonably and not absolutely safe.</p> <p>Held; that it would be unreasonable and impracticable to require cities and towns to so construct all their sidewalks that, at the junction of rectangular streets, they should meet upon exactly the same level.</p> <p>In an action to recover damages caused by an alleged defective way in the city of Lewiston, the defect complained of was that the sidewalks at the junction of Main and Park streets were not on the same level. The Main street walk was of brick, constructed about a month prior to the accident, with a plank at the outside of the walk at the junction, and set upon edge, with the top of the plank flush with the surface of the walk, for the purpose of retaining the brick in place. ' The Park street walk was of earth with ashes placed next to the brick sidewalk and extending back on the Park street sidewalk about six feet.</p> <p>This latter sidewalk at the junction was slightly lower than the surface of the brick sidewalk. The difference in level varied somewhat because the dirt sidewalk was rounding, being higher in the middle, and on one side, than the other. It was upon one side, and in the middle, from one to two inches lower than the Main street walk, and upon the extreme outside the Park street walk was five and one half inches lower than the top of the plank. Two feet in from this extreme outside the difference in level was but two and three-fourth inches,—the whole width being about six feet.</p> <p>Held; that the condition of the street above described is not a defect within the meaning of the highway statute; also, that persons unacquainted with the locality ought to anticipate that, at the junction of two sidewalks in such a place, there might be such a condition in the sidewalks.</p> <p>Where in such an action the statute requires the person injured to set forth his claim for damages, it does not mean that the damages must be specified or that the amount claimed must necessarily be stated. The notice is sufficient in this respect if the sufferer sets forth in his notice that he makes claim for damages.</p> <p>Sawyer v. Naples, G6 Maine, 453, and Lord v. Saco, 87 Maine, 231, considered and discussed.</p>

<p>On Exceptions by Dependant.</p> <p>This was an action of assumpsit brought in the Bangor Municipal Court, in which plaintiff, a resident of Orrington, Penobscot county, declared against the defendant, a resident of Kennebec county, on an account annexed to the writ for twelve dollars and twenty cents. There was also an account in quantum meruit covering the same cause of action and alleging a value of fifteen dollars. But one recovery was claimed under the two counts. The ad damnum in the writ was fifty dollars. On the return day of the writ, defendant appeared specially by counsel, for the purpose of pleading in abatement to the writ and for no other purpose whatever, and on said return day his counsel filed a plea in abatement to which plaintiff demurred. Defendant joined the demurrer. The presiding justice sustained the demurrer, adjudged the plea' bad, and ordered the defendant to answer further. To these rulings of the presiding justice the defendant excepted without pleading anew.</p> <p>The exceptions were certified to the Chief Justice under section 6 of the act establishing the Bangor Municipal Court.</p> <p>The plea in abatement is as follows:—</p> <p>State oe Maine.</p> <p>County of Penobscot. Bangor Municipal Court.</p> <p>" At the term thereof begun and held at Bangor within and for said County of Penobscot on the third Monday of June, A. D. 1897. Joseph F. Smith v. Sumner Hunt.</p> <p>And now Sumner Hunt, the defendant named in the above entitled action, comes and defends at the time and place aforesaid and prays judgment of the plaintiff’s writ and declaration aforesaid, because he says that at the time of the purchase and service of said writ and long before and ever since his residence has been and now is Yassalboro, in the county of Kennebec, and not in any place in the county of Penobscot, and that none of his goods were attached within the county of Penobscot, nor was service of said writ made upon him within said county of Penobscot, and that the amount sued for in this action as appears by the account annexed is less than twenty dollars; and he further says that the ad damnum in said writ was fraudulently placed at a sum greater than twenty dollars, to wit, at the sum of fifty dollars, for the sole purpose of giving jurisdiction to this court, and for no other reason or purpose whatever; and he further alleges that at the time of the purchase and service of said writ and long before there was a court duly organized and existing under the laws of Maine at Waterville, in the county of Kennebec, called the Municipal Court of Waterville, and that said Municipal Court of Waterville still exists and ever had and now has full jurisdiction over his person and property and the subject matter involved in this action. And this he is ready to verify. Wherefore he prays judgment of said writ that it may be quashed, and for his costs. Sumner Hunt by Harvey D. Eaton, his attorney and agent.</p> <p>(Here follows the affidavit of said Eaton.)</p> <p>There is no statute or law which compels us to go into another county, outside of our own county to bring a personal action, as in the present case. There can be no doubt or question, but what we could bring our action in the Supreme Judicial Court, in Penobscot county; and if so, we could bring our action before the Bangor Municipal Court, which has concurrent jurisdiction with the Supreme Judicial Court in all personal actions, where the debt or damage demanded, exclusive of costs, is over twenty dollars, and not over three hundred dollars. It is less expensive for us to bring suit in our county, and a more convenient tribunal is open to us.</p> <p>Statutes, prescribing the counties in which transitory actions may be brought, and tried, do not, in the least, change their legal character; but over such, the court has jurisdiction, in any county in which they are commenced. Webb v. Garland, 46 Maine, 505.</p> <p>The defendant’s plea in abatement is defective in the following particulars:—It is argumentative; it is double; it is uncertain which class of dilatory pleas he intended to plead. In the commencement “ he prays judgment of the writ and declaration.” In the conclusion he prays “judgment of writ,” that it may be quashed. It also may be, as to jurisdiction of the court, as he points out another Court at Waterville, and says it has full jurisdiction over defendant’s person and property, does not say it has exclusive jurisdiction, but full jurisdiction.</p> <p>The plea in abatement is ambiguous, uncertain which class of dilatory pleas he intended. It may be to the fourth class of dilatory pleas, viz: the writ; it may be to the third, viz: declaration; or to the jurisdiction, which is the first class. If he intended it to the jurisdiction, it is bad, as the affidavit should have been signed and sworn to, by the defendant in person, and not by attorney. 1 Chit. PL 452; Grant v. Sands, 2 Bl. R. 1094; Hunter v. Nash, 3 M. & G. 184.</p> <p>The material allegation in defendant’s plea in abatement is “ that the ad damnum in said writ was fraudulently placed at a sum greater than $20, to wit, the sum of $50, for the sole purpose of giving jurisdiction to this court, and for no other reason or purpose whatever;” and plaintiff by his demurrer has confessed that this is true. The admission of the truth of this allegation is absolutely fatal to the maintenance of the action. The fraudulent allegation of an excessive ad damnum for the purpose of giving jurisdiction to a court in a distant county is not only an imposition upon the defendant but an abuse of legal process such as courts are quick to condemn whenever the objection is correctly presented at thé proper stage of the proceedings.</p> <p>In Ridlon v. Emery, 6 Greenl. 261, the objection was properly presented by a plea in abatement and was carefully considered by the court. The court found in that case that under the statutes then in force, justices of the peace had only concurrent and not exclusive jurisdiction where the value did not exceed $20, and for that reason alone the plea was adjudged insufficient. And in Small v. Swain, 1 Greenl. 133, at p. 135, it is squarely stated “if an excessive value had been alleged in the writ, for the purpose of giving jurisdiction to the court, that fact should have been shown in abatement.” And these decisions of our own court are supported by the decisions of all other courts which have ever considered the question.</p> <p>“It is a well settled rule, and of course in harmony both with reason and justice, that one can not knowingly allege a fictitious amount for the sole purpose of bringing his case within the jurisdiction of a court, as such would manifestly be a fraud upon that jurisdiction.” Ency. of Pleading & Practice, Yol. 1, p. 710, citing cases in Alabama, Georgia, Michigan, Mississippi, New Jersey, North Carolina, Pennsylvania, South Carolina, Texas, Yermont, West Virginia and various Federal Courts. See also same volume, p. 4, note on “Fraud in obtaining jurisdiction.”</p> <p>Pleas in abatement may be filed by attorney. Atwood v. Higgins, 76 Maine, 423, p. 425. Counsel also cited State v. Flemming, 66 Maine, 142, pp. 150, 151.</p>

On Exceptions by Claimant. This was an action brought by tbe plaintiffs, the Biddle & Smart Co., against Robert T. Burnham the principal defendant, and the Queen Insurance Company and the New… Held: by the said trustees by virtue of tbe same assignments as those in this suit. Judgment in the Dennett case was for the plaintiff, and it was held by the court that the assignments from Burnham to Stilphen were illegal and fraudulent as against the general creditors of Burnham.

On Exceptions by Plaintiee. This was a suit for injuries sustained by the plaintiff wbo was thrown from the platform of the defendant’s car at Knightvillé, June 16, 1896, by reason of the car on which he was riding being carelessly run, as he alleged, upon an open switch leading from the main line to the car-barn at a rapid rate, the angle of the switch being fifty degrees. Tbe jury returned a verdict for tbe plaintiff, being ordered to do so by the court.

<p> Equity. Appeal. Trust ex maleficio. Deed. </p> <p>The parties are brothers. Their father conveyed all his real estate to the complainant, an, unmarried son, taking back a life-lease secured by mortgage. There was also a contemporaneous oral agreement that such son should contribute towards the support of his aged parents during their natural lives; the expectation being that the son and the parents would live together upon their earnings and the income of the property. The son’s marriage afterwards prevented their longer living together as a common family. At a later date, there being two mortgages on the estate, the respondent received an absolute deed of the property from the complainant, under a verbal agreement that the former should hold the title solely as security for the money he might advance for paying off the mortgages, promising to send to the latter a written agreement to that effect when he got home, being then away from his home, but never keeping such promise. Having sold one parcel of the estate for enough to pay off the mortgages and have eight hundred dollars of money besides, he assumed the position that he was the absolute owner of the remaining land and the money, which he should apply to the future support of the parents as he pleased; denying that the complainant had or could have any legal or equitable right in the present or future thereto.</p> <p>On these, and other less important, facts it is by the court held, that the respondent be required to release all the remaining real estate, and pay over the money in his hands, to a trustee, to be appointed by the court, who is to be empowered to hold the land and money and administer the same, in the manner indicated in the opinion of the court, for the use and benefit of the parents as long as they may live, and to transfer any balance remaining nnconsumed at their decease to the complainant. The court observes that, now as the control of the estate is judicially submitted to its hands, it becomes its duty to substitute for their benefit new equities for equities that are lost; equal but not entirely the same.' •</p> <p>While it is a general rule of equity procedure that the decision of a case upon the facts by a single justice should not be overruled unless the appellate court is clearly satisfied of its incorrectness, especially when the credibility of witnesses whom such justice has seen and heard is an issue, still a hurried examination of a complicated case below may sometimes be less satisfactory than a deliberate re-examination of the case afterwards with the aid of a printed record.</p>

<p>Taxes. Non-Besident Trustees. B. S., c. 6, § 14, el. 6. Stat. 1889, e. 175. Pub. Stat. of B. I., e. 42, § 12.</p> <p>When the estate of a Maine decedent has been fully administered, and has vested in non-resident testamentary trustees, and the property has been removed by them from the state, they cannot be directly taxed in this state for such property, although they have qualified as such trustees in the Maine Probate Court which confirmed their appointment by the decedent, and although the beneficiaries under the trust reside in this state.</p> <p>Semble: The beneficiaries under such a trust resident in this state can be directly taxed here upon their beneficial interest in the trust estate.</p>