Volume 92 — Maine Reports

On Report. This was a suit to enforce a lien claim and was reported by the presiding justice to the law court upon the facts as agreed by the parties. The parties agreed upon the following facts:— The plaintiff performed the work and furnished the materials described in his writ by virtue of an employment by the defendant, Everett C. Waldron.

On Report. This was an action of assumpsit to recover damages from the defendant for breach of an alleged contract by the defendant to pay six hundred dollars, and take an assignment of a lease. The-writ is dated April 28, 1896.

Agreed .Statement. This was an action of' assumpsit upon an accountable receipt given by the defendant Libby and A. K. P. Dakin to the plaintiff, a deputy of the sheriff of Washington County, and of the following tenor:— ■ . “Washington, ss. Vanceboro, June 20, A. D. 1896.

<p> Negligence. Burden of Proof. Presumption of Fact and, Lav>. Contributory Negligence. </p> <p>In tliis state, it is a long and firmly established rule that in all prosecutions for injuries alleged to have been caused by the negligence of the defendant, the burden is upon the plaintiff to establish by evidence, as an affirmative proposition of fact, that at the time of the injury or accident the person injured was free from contributory negligence.</p> <p>This rule obtains in all suits or prosecutions based on allegations of negligence.</p> <p>There is no presumption of fact or law that any person injured was so careful or acted so prudently in the emergency as to be free from contributory negligence. Such a proposition must be established by evidence.</p> <p>While freedom from contributory negligence can sometimes be inferred from the circumstances shown, the inference must be from circumstances shown by the evidence to have actually existed and cannot be made from circumstances merely conjectured or even probable.</p> <p>Where, as in this case, the evidence fails to show the, circumstances attending the injury,— fails to show how the injury occurred, and fails to show that the person injured was merely passive in his proper place in the care of the defendant,— it does not sustain the essential proposition that at the time he was free from contributory negligence.</p> <p>In this case the course of events after the boat (in which was the plaintiff's intestate as employee) left the shore is utterly unknown and can only be conjectured; but conjecture is never sufficient to sustain a proposition of law or fact.</p>

On Exceptions by Defendant. This was a writ of error to set aside a judgment recovered in the Bangor Municipal Court, against the plaintiff in error on default as trustee. The grounds upon which the suit was sought to be maintained are substantially as follows:— In the action aforesaid the plaintiff in error, then a minor under the age of twenty-one years, was adjudged trustee on default in the sum of $15.00 debt or damage and costs of suit taxed to the amount of $6.38.

On Report. This action was brought to recover the rental of two hydrants from October 1, 1893, to October 1, 1897, four years at forty dollars per year, one hundred and sixty dollars, and for changing water gates by order of the committee on highways of the city of Belfast, twelve dollars and thirty cents, making one hundred and seventy-two dollars and thirty cents in all. The price of the hydrants charged in the account annexed to the writ is fifty dollars per year.

<p>Way. Oulvert. Town. Railroad. R. S., c. 18, § 27; Stat. 1889, c. 282, Spec. Laws, 1845. c. 270; 1856, c. 651.</p> <p>In 1847 the Androscoggin and Kennebec Railroad Company located its road across a highway in Auburn and across a brook known as Barron Brook. Subsequently, having obtained from the county commissioners upon its own petition, a change of location of the highway, to facilitate the crossing of the railroad, it built its railroad across the highway by an over-head bridge, and built a culvert diagonally across the highway to give passage to the waters of the brook. By virtue of Chapter 651, Special Laws of 1856, the defendant company succeeded to the privileges and franchises and became subject to the burdens and liabilities of the first named company. The overhead crossing and culvert were maintained by the Androscoggin & Kennebec Railroad Company until its consolidation with the defendant company and have since been maintained by the defendant company. Held; that the defendant company is liable to the plaintiff for damages sustained by him by reason of the insufficient size of the culvert.</p>

Agreed Statement. The facts appear in the opinion. Under the addition made to the contract April 4th, signed by both parties, a new and different agreement was made. It contains all the essential elements of such a writing as is required to be recorded by B. S., c. Ill, § 6, as amended by Stat. 1891, c. 11. Kelley had paid under this agreement thirty-two dollars, nearly the full agreed price of the goods. The court will avoid a forfeiture and a hardship if possible.

On Exceptions by Defendant. This was an indictment found at the September term, 1897, of the Superior Court, for Kennebec county, against William Coro as principal, and the defendant, Joseph Neddo, as accessory after the .fact.

Petition by Defendant to Establish Exceptions. This was a petition by the defendant and presented to this court sitting as a court of law praying to have exceptions, alleged by him at the trial' in the court below, established by this court sitting as a law court and as provided by the statute of 1898, c. 174, as follows: “Section fifty-one of chapter seventy-seven of the revised statutes is hereby amended by adding thereto the following words: “If the justice disallows or…

<p>Partnership. Administrator. Limitations. 11. 8., c. 69; c. 87, § 12. Stut. 1895, o. 133.</p> <p>The plaintiff was co-partner with Henry P. Bennett who died January 20, 1889. The plaintiff gave bond as surviving partner in March, 1889. The defendant was appointed administrator of the deceased partner in March, 1889, and published notice of his appointment in the same month. The plaintiff settled his first and final account as surviving partner October 23, 1896, by which it appeared that he had paid $1015.81 in settlement of the partnership affairs in excess of the amount received by him from the partnership assets. This action was commenced December 23, 1896, in which the plaintiff sues to recover one-half of said amount from the estate of the deceased partner.</p> <p>Held; that the suit is barred by the special statute of limitations, R. S., c. 87, § 12, which, prior to the amendment of 1895, provides that no action shall be maintained against an administrator or executor on claims against the estate unless commenced within two years and six months after notice has been given of his appointment. -></p>

On Exceptions by Libellee. This was a libel for divorce inserted in a writ of attachment. The libel alleges, and the answer admits the marriage between the parties, both of whom have been previously married and are elderly people, on the seventh day of January, A. D. 1895. The date of the libel is February 3, 1898.

Agbbed Statement. This was an action of trespass to recover damages for an alleged false imprisonment of the plaintiff in the county jail, at Auburn, from the 23rd day of June to the 29th day of June, 1897. The writ is dated January 3, 1898.

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

<p>On Exceptions by Plaintiff.</p> <p>This action is now before the law court for the second time. The opinion in its former appearance is found in 89 Maine, 488. At that time the case showed that an action of assumpsit had been brought on an account annexed by Nettie S. Johnston against her father, Job Hussey, — against him personally, in his lifetime, his death occurring soon after, — and the action being now defended by his son and executor, Norris H. Hussey, who relies on the statute of limitations. The writ is dated November 16, 1896. The last item in the account is dated some seven or eight ye'ars prior, in June, 1879. The plaintiff in the former argument of this case, relied upon a certain letter of considerable length, to be found in the former report at p. 490, signed by Wm. Johnston, the plaintiff’s husband, to remove the statute bar, the letter having also at the bottom the names of Job Hussey, the original defendant, and his wife. The court held that the letter not only did not contain an express acknowledgment of an existing liability, but did not acknowledge that Job Hussey ever was indebted to the plaintiff according to her declaration. The case then went back to the court at nisi prius, when, some time later, in October, 1897, the plaintiff’s daughter, whose name appears as a witness to the signatures to the letter just referred to, offered her affidavit, which is a part of the case as it now appears, and as follows:</p> <p>“To the Honorable Court, setting for the County of Lincoln, at Wiscasset, Me., I would most respectfully make a statement of facts within my knowledge concerning the letter offered before the Court, at the October term, 1895, signed by Wm. Jobnston, Job Hussey, Ruth Hussey and Hattie M. Johnston, as a witness in the Nettie S. Johnston vs. Job Hussey case.</p> <p>“In connection, herewith, will be offered the copy of a letter from “Noll” Hussey to his mother.</p> <p>“The copy I believe to be correct, from my certain knowledge of the original letter, and in no essential does it differ.</p> <p>“It startled and agitated my grandfather and grandmother in whose employ I was at that time. They declared that they were indebted to both my father Wm. Johnston, and to my step-mother Mrs. Nettie S. Johnston.</p> <p>“They instructed me to invite my father and step-mother to come to their residence and upon their arrival at the house of my grandparents, I was told to show them the letter and,, after it was read, Mr. and Mrs. Johnston disclaimed any such indebtedness, declaring, on the contrary, that Job Hussey was their debtor. My grandfather declared that no one of his children had aided him as had Mrs. Johnston.</p> <p>“ A settlement of all accounts was. agreed to be necessary and the various claims of each party were considered; but, as I am informed that my father’s claim has been finally adjusted, I shall say no more about that in my statement.</p> <p>“Mrs. Nettie S. Johnston claimed there was due her on account, as per her book placed in evidence, certain sums of money, advanced at different times, as stated in her letter, also for services rendered to my grandparents in their home during the period in ■which Mr. Wm. Johnston, his daughter, and infant- son boarded with them, from Nov. 12th, 1879, to Apr. 1st, 1881, and that they, Mr. and Mrs. Job Hussey, had agreed to pay for such service.</p> <p>“These claims named, were admitted by Mr. Job Hussey, who declared both his willingness and ability to pay for it in these words: ‘The place is good for it.’ Having considered the several accounts, including that of money she had loaned them at different times, at the request of Job Hussey, her, (Nettie S. Johnston,) board and that of her child, her services to them and his indebtedness therefor to her at a moderate wage, Job Hussey instructed Wm. Johnston to write'Norris Hussey a letter detailing to him the particulars of the agreement of settlement and that when Wm. Johnston had written the letter to bring it to him for his signature.</p> <p>“ The letter was written by my father on the 4th day of February, 1886, he again, with his wife Nettie S. Johnston, visited my grandfather with the. draft of the letter and several books of account for examination.</p> <p>“It was at this time that Nettie S. Johnston made .the proposition to her father, Job Hussey, to off-set any claim for wages due her, as before stated, if, upon his part, he would repay to her such sums of money as she had advanced to them, as stated in the .letter, when she might demand the same, or upon his decease, that his executor should pay the same. His executor, Mr. Norris Hussey, my grandfather declared, was instructed by his will, to ‘Pay my just debts.’ The paper was formally signed. My father then asked my grandfather if he desired the letter witnessed and he said he did and asked me to witness their signatures and his statement which I did.</p> <p>“As to other matter contained in the letter, I refer to its history, I do not think it would be necessary for me to repeat the statements I have already made before the courts.</p> <p>Hattie M. Drake.</p> <p>Commonwealth of Massachusetts. . Worcester, ss. Webster, Oct. 23rd, 1897.</p> <p>Personally appeared the above named Hattie M. Drake and made oath to the truth of the above statements by her subscribed.</p> <p>Before me,</p> <p>Frank E. Deon, Justice of the Peace.”</p> <p>[A Copy of Norris Hussey’s Letter to His Mother.]</p> <p>Boothbay, Jan. 3rd, 1886.</p> <p>“Dear Mother:</p> <p>Received Hattie’s letter Friday. Was very, glad to hear from you all. Mother, you said you would like some money. Don’t you think “Will” would pay father for the horse or part of it so he could get along for a few weeks or has he paid it all up? I should like to know, as it don’t seem, as though anyone pays him. They take his goods and that seems to be the end of it. If he can’t pay him why not sell him to some one that can? I wish father would get some of him if he owes him as I am having a very poor trade, and have got to pay father’s taxes soon, which is nearly $10.00. Please write me and let me know how matters stand between “Will” and father. Your son, Noll.</p> <p>“Tell me all the bills that father has now owing him and the persons who owe him if you can.</p> <p>Hattie M. Drake.”</p> <p>The presiding justice ruled that the evidence was insufficient to remove the limitation bar and ordered a nonsuit. To this ruling the plaintiff had exceptions.</p> <p>The statement signed by Job Hussey setting forth “how matters stand,” explained and elucidated as it is by the affidavit of Mrs. Drake, showing what meaning was intended to be conveyed by this statement and in what sense the expression “how matters stand” was used, shows an express acknowledgment of an existing debt with a declaration of willingness to pay the same, clear and definite.</p> <p>The instrument must operate according to the intention of the parties unless it be contrary to law. Where the meaning is doubtful, the circumstances at the making of the instrument and the subsequent acts of the parties are to be considered in determining the sense of the words. Berridge v. Glassey, 112 Pa. St. 442; Patrick v. Grant, 14 Maine, 233; Tyler v. Pickett, 73 Maine, 410; Gallagher v. Black, 44 Maine, 99; Storer v. Ins. Go., 45 Maine, 175; 1 Am. & Eng. Ency. p. 533, note.</p> <p>Mrs. Drake says that, “these claims named were admitted by Mr. Job Hussey, who declared both his willingness and ability to pay for it in these words: ‘ The place is good for it.’ ”</p>

On Report. A writ of error to reverse the judgment in suit John M. Thompson, Administrator, v. Jeremiah M. Mason, September Term, 1895, Supreme Judicial Court, York county. The plea, the general issue, with a brief statement. The case appears in the opinion.

On Exceptions by Claimant. This was an action of debt on judgment brought by Cornelius Sullivan against Joseph N. Greene, in which the Washington County Railroad was summoned as one of the trustees. Lewis D. Greene appeared as a claimant for the funds disclosed by the Washington County Railroad in their disclosure duly filed. A hearing was held upon said disclosure before a justice of this court at the October term, 1897.

<p>Action. Covenant. Assumpsit. Equity.</p> <p>Upon a covenant of the defendant, made with another corporation " to pay all outstanding debts and liabilities ” of the latter corporation, it is held that assumpsit will not lie against the defendant by creditors of the other corporation, whose debts were outstanding at the time the covenant was made.</p> <p>The beneficiaries’ remedy is in equity.</p> <p>Upon an agreement " to pay all outstanding debts,” without names of creditors, without amounts of debts, without any designation or limit whatever, no action at law lies in favor of a beneficiary, as upon an implied promise. Baldwin v. Emery, 89 Maine, 496, affirmed.</p>

<p> Pleading. Averment that time note was overdue. ' Laws of 1821, c. 63. </p> <p>Tlie want of an averment in the declaration on a note payable five months after date, that the five months have elapsed, or that the note was overdue, is not fatal on demurrer.</p>

On Exceptions by Dependant. This was a bastardy proceeding. The issue was whether or not the respondent was the father of the illegitimate child of the complainant, as alleged in her declaration, and the presiding judge in his charge to the jury stated: “If she has not been constant and has made other accusations and still, if you are satisfied by a preponderance of the testimony that he is the father of the child, then he would be guilty.” To which the respondent seasonably…

On Exceptions by Plaintiff. From tbe bill of exceptions it appeared that this case came before the court for an adjudication of a trustee disclosure. The action was assumpsit on an account annexed to the writ for the sum of §89.98. The account annexed showed that the amount sued for or the principal part thereof was for groceries, provisions and clothing, but otherwise than this there was no affirmative allegation in the writ that the suit was for necessaries.

On Motion by Plaintiff. Assumpsit. The writ in this action contains two counts. The first count is brought on the following contract: “Pittsfield, Mb., Feb. 1, 1893. I this day agree to drive what logs and cedar D. M. Parks has or will have just above Peltoma to put on this winter to be driven to Clinton for 75-100 dollars per M. for the logs and 30-100 dollars per cord for the cedar; to be done in a good workmanlike manner this coming spring.

<p>Agreed Statement.</p> <p>Assumpsit to recover two hundred and fifty dollars paid by the plaintiffs to the defendant for a check which was found to be a forgery, and of which the following is a copy:—</p> <p>g £ d g g £</p> <p>$250.</p> <p>Pay to Dollars.</p> <p>Boston, June 19, 1895. Bay State Trust Company J. W. Crewe or order Two Hundred and Fifty</p> <p>H. C. Haven.</p> <p>No. 1000.</p> <p>[indorsements.]</p> <p>J. W. Crew,</p> <p>E. F. Coburn,</p> <p>Neal & Quimby,</p> <p>Furbish, Butler & Oakes,</p> <p>Plea, general issue and brief statement of special matter of defense that if defendant ever did promise, etc., he, the defendant was relieved and discharged from all liability or obligation before the commencement of this action.</p> <p>The parties agreed to the following statement of facts:—</p> <p>“For the purposes of this trial it is agreed: that the check declared on in plaintiffs’ writ, purporting to have been drawn by H. C. Haven, in favor of J. W. Crew, on the Bay State Trust Company, dated June 19, 1895, for two hundred and fifty dollars, ($250.00) is a forgery; that the defendant received said check from said Crew on the 5th or 6th day of July, 1895; that said Crew was a stranger in the vicinity, boarding at the hotel of the defendant, and gave this check in payment of his board bill, which amounted to ninety-nine dollars and seventy-five cents, ($99.75), receiving from the defendant the balance, amounting to one hundred fifty dollars and twenty-five cents in money; that said Crew is not known or believed by the parties to have ever owned any property in this State, which was attachable; that defendant has never seen or heard from said Crew since taking the said check from him, as aforesaid, and does not know or believe that his real name is Crew, but believes he was an imposter; that said Crew, left immediately upon paying his board bill as aforesaid; that defendant indorsed said check and delivered the same to the plaintiff on July 20, 1895, paying an account which plaintiff had against him of about fifty dollars, ($50.00), receiving the balance in money; that plaintiffs indorsed and delivered said check to Furbish, Butler and Oakes, on July 22, 1895; that Furbish, Butler and Oakes indorsed and deposited said check to their credit for collection, in the Phillips National Bank, on July 23, 1895; that the Phillips National Bank indorsed the same and forwarded it for collection to their correspondent in Boston, the National Bank of the Commonwealth, where it was received on the 26th day of July, 1895; that on the same day it was presented through the clearing house and Merchants National Bank, by the National Bank of the Commonwealth, to the said Bay State Trust Company for collection, (the Bay State Trust Company not being a member of the Clearing House Association, and all checks drawn upon them being received by the Merchants National Bank as an accommodation to them); that said check was received with others by the Bay State Trust Company, in due course of business as aforesaid, marked paid and charged to the account of said H. C. Haven, he being a regular customer of said bank and having an account there; that when said Trust Company received said check it did not discover that it was a forgery, the signature thereto being a close imitation of the signature of said H. C. Haven; that as soon as said Bay State Trust Company discovered that said check was a forgery, namely, sometime from July 27, to July 29, 1895, inclusive, it at once returned said check to the National Bank of the Commonwealth, demanding a return of the amount; that the National Bank of the Commonwealth refused to return the amount unless they first received id from the Phillips National Bank, from which bank they received said check; that said National Bank of the Commonwealth received said check from the Bay State Trust Company, and immediately forwarded it to the Phillips National Bank, demanding á return of the amount, where it was received by said Phillips National Bank, on July 30, 1895; that the Phillips National Bank returned said check to Furbish, Butler and Oakes, on July 30, 1895, demanding the amount thereof of them; that on the same day Furbish, Butler and Oakes returned said check to the plaintiffs, demanding the amount of them, which was then and there paid by the plaintiffs to said Furbish, Butler and Oakes; that said Furbish, Butler and Oakes at once remitted the amount to the Phillips National Bank, and they to the National Bank of the Commonwealth where it was received and paid to the Bay State Trust Company, where it was received and credited to the account of said H. C. Haven on August 5, 1895; that the plaintiffs offered to return said check to the defendant, and demanded a return of the amount of him, on July 31, 1895, and the defendant agreed to pay the same and did pay thereon the sum of one hundred dollars, but subsequently refused to pay the balance; that the defendant required no identification of said Crew, nor his right, or title to said check before taking the same; that said Haven has now drawn upon said Bay State Trust Company about 650 checks, and had at the time of the forgery drawn about 350; that said Crew on June 19, 1895, called at the cottage of said Haven and procured three genuine checks as an accommodation, he said, to send away, one for $50 and two for $25 each, paying the money for the same, and at the same time stole three blank checks from the back of said Haven’s check book, namely, Nos. 998, 999, 1000: that the check in suit is the. blank numbered 1000; that said Crew at the time of transferring said check to the defendant said, that Haven wanted him (said Crew) to hold said check until about the first of August before collecting the same, and that he (Crew) would like to have him (defendant) hold the same until that time; that said defendant did not impart or make known said request to said plaintiffs. Copy of check to be a part of the case and original to. be transmitted to law court. Upon the foregoing-facts it is agreed that the law court may render such judgment as the law and facts require. If the action is maintainable, defendant to be defaulted for $150, and interest from date of writ; if not maintainable, plaintiffs to become non-suit.”</p> <p>It is a general rule that a bank must know the signature of its depositor, and between the bank and the depositor, if no negligence on the part of the depositor, this rule is absolute;' and if money is paid by it on a forged check or instrument it must bear the loss. Price v. Heal, 3 Burr. 1355; Dan. on Neg. Insts. §§ 1359, 1655, and cases there cited.</p> <p>If the suit were between the drawee bank and the depositor, Haven, or between the drawee bank and a party who took the check in the usual course of business, without any suspicions of its forgery, or without suspicious circumstances sufficient to have aroused the suspicions of a prudent man, the loss would fall upon the bank. Levy v. Bank of the United States, 4 Dallas, 234; Bank of St. Albans v. Farmers and Mechanics Bank, 10 Vt. 141; Hational Bank of Horth America v. Bangs, 106 Mass. 441.</p> <p>But this responsibility, based upon presumption alone, is decisive only when the party receiving the money has in no way contributed to the success of the fraud, or' to the mistake of fact under which the payment was made. Hational Bank of Horth America, v. Bangs, supra.</p> <p>If the loss can be traced to the fault or negligence of either party, it shall be fixed upon him. Gloucester Bank v. Salem Bank, 17 Mass. 33, 42 ; Banvers Bank v. Salem Bank, 151 Mass. 280. First National Bank of Grawfordsville v. First National Bank of Lafayette, 4 Indiana, 355 (51 Am. St. Rep. 221), and cases there cited.</p> <p>The check being a forgery was absolutely worthless in the hands of the forger. When defendant indorsed it he guaranteed the genuineness of the signature of the drawer and all prior indorsements and that his title was good. Peoples Bank v. Franklin Bank, 88 Tenn. 299: (17 Am. St. Report, .887) ; 3 Am. and Eng. Ency. page 225, and the same is true of each subsequent indorser.</p> <p>If the drawee paying a forged check within a reasonable time after discovering the forgery returns or offers to return the same to the indorsee from whom it was received, it can recover back the money, if the indorsee is placed in no worse position than he would have been in had the bank refused payment when presented. National Bank of. North Am. v. Bangs, 106 Mass. 441, 445; Ellis v. Ohio L. I. T. Co., (64 Am. Dec. 630.) 4 Ohio St. 628; Welch v. Goodwin, 123 Mass. 77; People’s Bank v. Franklin Bank, supra; Banvers Bank v. Salem Bank,, 151 Mass. 280; Merchants Bank v. National. Bank of the Commonwealth, 139 Mass. 513 ; Star Ice Co. v. New Hampshire Nat’l Bank, 60 N. H. 442 ; Birmingham Nat. ■Bank v. Bradley, 103 Ala. 109, (49 Am. State Rep. 17, and note).</p> <p>The check being a forgery was a nullity from the beginning.</p> <p>Possessed of no commercial life or value. Nothing passed from the defendant to the plaintiffs, as a consideration for the plaintiffs’ money.</p> <p>Being a forgery it was the duty of the bank upon which it was drawn to give the party from which they received it notice within a reasonable time after discovering the forgery. Canal Bank v. Bank of Albany, 1 Hill 291; Dan. on Neg. Inst. § 1372, and cases there cited.</p> <p>The mistake of the bank was no legal prejudice to the defendant inasmuch as the forger departed for parts unknown on the 6th day of July, and had been away nearly one month before check was indorsed by defendant.</p> <p>The plaintiffs together with all subsequent indorser's and the drawee bank had a right to believe that the defendant in taking the check had by the usual and proper investigation satisfied himself of its authenticity.</p> <p>Had the check been presented to the drawee bank direct over its counter, by the forger himself, payment would have been refused until identification of the person presenting the same, had been received by the bank and his title shown.</p> <p>The defendant was negligent in taking the check from a stranger, without inquiring as to its genuineness. Defendant made no investigation or inquiry himself, although living only a short distance from the cottage of the said Haven. At the time of the indorsement and delivery to the plaintiffs, defendant never communicated to them the fact that he was requested to hold the check for a long period of time, to wit: from July 6 to August 1, a circumstance which ought to have aroused the suspicions of any prudent man, but suppressed and concealed his knowledge, and by so doing aided in the fraud.</p> <p>The drawee bank was guilty of no actual negligence in not discovering the forgery, as the signature was a very close imitation of the signature of said Haven. No question can be raised that the bank did not promptly return the check upon discovering it to be a forgery.</p> <p>By the agreed statement Crew is an admitted stranger with never any attachable property in this State; that immediately after passing check to defendant he left the State and has never been seen or heard from since. Such being the facts, defendant is in no worse position than he would have been in had the drawee bank refused payment when the check was presented.</p> <p>It was the duty of the bank to detect the forgery, and if it failed in that duty it should be held accountable to the extent of the injury, but where no loss has resulted to any one through this failure of duty, why should the bank forfeit the money so paid out by it ?</p> <p>There is no justice or propriety in permitting defendant to profit by a mistake which his own negligent disregard of duty has contributed to induce the drawee bank to commit.</p>

On Exceptions by Defendant. Petition for mandamus against the respondent, as clerk of the town of Kittery, praying that the petitioner may be allowed to make examination of all the ballots, votes, stickers and check lists in his custody and which were used and unused at the state election held in said Kittery on the 12th day of September, 1898, and at which election the petitioner was supported as a candidate for representative to the legislature from the classed towns of…

On Report. Two actions,, one assumpsit, and.tbe other trover, involving the same facts, tried together.

On Exceptions by Defendant. This was an action of assumpsit for an alleged breach of warranty in the manufacture of an electric motor. The defendant was a.manufacturer of electric motors in the city of Auburn; the plaintiff was a brick maker and bargained with the defendant for an electric motor to be used to run his brick machines.

<p>Title by descent. Illegitimates, fttat. 1887, c. 14.</p> <p>Under the statute oí 1887, chap. 14, an illegitimate child born prior to March 24, 1864, though never legitimized, can inherit from his maternal grandfather deceased since the enactment of the statute.</p>

On Exceptions by Defendant. This was an action on the case to recover from the defendant damages which the plaintiff claims to have sustained by the falling of a limb from an elm tree, claimed by the plaintiff to be standing on the defendant’s land and overhanging a sidewalk forming a part of the highway, upon which the plaintiff was walking at the time of the accident, said road or highway extending from Hartland village to Palmyra.

On Report. The facts of the case appear in the opinion. The plaintiffs claim through a deed of sale from parties who sign themselves executors of the will of William A. Keteltas,, June 19, 1883, and recorded Dec. 2, 1896, to their ancestor Mary C. Keteltas. It is simply their deed of sale of the premises. It does not announce in it whether it was made for the furtherance of the * provisions of the will or not. It is simply their deed of sale.

On Report. Bill in equity, heard on bill, answers and proofs, to determine who is entitled to the residuum of the estate of William H. Tit-comb, deceased, now in the hands and possession of the… Held: “a limitation ' over is void where there is a clear intention of the testator that the first taker shall have an absolute estate. Absolute property gives absolute dominion.

On Exceptions by Plaintiee. Case for alienating the affections of the plaintiff’s husband.

On Report. Action of trespass q. c. The case appears in the opinion. The road mentioned in the reservation, in plaintiff’s deed, being in existence at the time, did not pass to the plaintiff by the conveyance to him by Aaron Edgecomb, and the plaintiff acquired no title thereto except for purposes of travel beyond the centre thereof from that side of the same next to his land.

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

On Motions and Exceptions by Plaintiee. Two actions of replevin tried together by consent of the parties. The facts appear in the opinion of the court.

On Motion and Exceptions by Defendant. An action on tbe case for deceit, in the sale of an interest in a patent right, a verdict for $500 being rendered for the plaintiff. This case is stated in the opinion of the court. The law requires a purchaser to use some care, to apply some intelligence, and to exercise some diligence, before he can receive protection from even false and material statements by which a venador has deceivéd him to his damage.

On Repobt. Assumpsit to recover dues, etc., from a member of the plaintiff club. The case is stated in the opinion. The club has no legal existence. It cannot sue or be sued. It is a mere myth. Lewis v. Tilton, 64 Iowa, 220, S. C. 52 Am. Rep. 436. No one is responsible for costs if the action fails. Soule v. Winslow, 64 Maine, 518. The action is not in the name of the trustees; they are not made parties.

<p>On Motions and Exceptions by Dependants.</p> <p>Writ of Entry. Writ dated October 4, 1895.</p> <p>Defendants pleaded nul disseizin as to a part, estoppel as to a part, and disclaimer as to a part. Plaintiff demurred to defendants’ plea of estoppel. The demurrer was joined by the defendants and was sustained by the court.</p> <p>The jury returned a general verdict for the plaintiff, whereupon the defendants filed a motion for new trial on the evidence reported by the presiding justice, and also filed exceptions to certain rulings of the presiding justice in matters of law; and subsequently, at that and the next succeeding term, filed motions for a new trial for newly-discovered evidence.</p> <p>Declaration: In a plea of land, wherein the said plaintiff demands of the said defendants a certain lot of land, with the buildings thereon, situated in said Boothbay, and bounded and described as follows, to wit: Beginning at tbe northeast corner of land of Ella B. Kimball, on the westerly side of Back River, so called; thence northeasterly by said river sixty rods, more or less, to a stone wall; thence northwesterly by said stone wall, and a board fence, to the southerly edge of the Knickerbocker Ice Pond, and thence to a maple stump; thence northwesterly about forty and one-half rods, to a large pine stump at the end of a fence; thence westerly in a straight line to a spruce tree on the east bank of the Sheepscot River; thence southerly by said river to land of Manly Campbell; thence easterly by said Campbell’s land to the westerly edge of said Knickerbocker lee Pond; thence southerly by land of said Campbell, and land of Georgia A. Newcomb, and land of S. C. Hodgdon, and other land of Manly Campbell, to the north line of land of Ella B. Kimball; thence easterly by said Ella B. Kimball’s north line to the point of beginning, etc.</p> <p>Plea, general issue.</p> <p>“ And for brief statement of special matter of defense the defendants say that as to so much of the demanded premises as set forth in the plaintiff’s writ as lies northerly of a line beginning at a spruce tree marked on four sides, standing on the westerly side of Barter’s Island, in Sheepscot River, in Boothbay, in said county, and being the northwest corner of land of said Arietta Kimball and formerly of Sarah Kimball, deceased; thence running easterly by said last named land, fifty-eight rods, to a pine stump; thence southerly on a straight line to a point where an ash tree formerly stood at the end of a stone wall on the bank of Back Rivei', so-called, in said Boothbay, they were in the rightful possession of the same and that the said plaintiff ought not to have or maintain her action against them, because they say, that they, the said Charles S. F. Hilton and Alfreda H. Hilton on the day of the purchase of the plaintiff’s writ, and for more than twenty years then last past, were, and still are, lawfully seized and possessed of' the same; and that the said Arietta Kimball then and there unjustly and without judgment disseized the defendants and put them out of the possession thereof.</p> <p>“ And as to so much of the demanded premises as lies southerly of the line aforesaid, part and parcel of the demanded premises, they say that they have nothing, and at the time of the purchase of the plaintiff’s writ had nothing, nor at any time before or since had anything, nor claim, nor ever heretofore claimed any title or interest therein, and the said defendants wholly disclaim all right, title, interest and claim, of, in, and to the same.” A portion of a plan of the premises in dispute is presented.</p> <p>Exceptions: The defendants pleaded the general issue, with a brief statement setting up inter alia, an estoppel by the judgment of this court, at nisi prius, April, 1893, in an action of trespass, quare clausum, wherein the present defendants were plaintiffs, and the present plaintiff, with others, were defendants; and also claiming title in the land then and now in controversy, as alleged in defendants’ pleadings; and disclaiming as to the residue of the premises demanded by the plaintiff in this action.</p> <p> </p> <p>To so much of the brief statement as relates to the alleged estoppel, the plaintiff demurred. The demurrer was duly joined, and was sustained by the court.</p> <p>The defendants offered in evidence the record of the former judgment and the plan made and returned by Frederick Danforth, the surveyor appointed by the court in the former action, both of which were excluded by the court. But the court allowed Mr. Danforth’s plan, as well as an ex parte plan made by J. H. Blair in behalf of the plaintiff, to be shown to the jury as chalks for the purpose, of illustration, and upon an equal footing.</p> <p>To the rulings of' the court, in sustaining the demurrer and in excluding the evidence offered as aforesaid, the defendants excepted.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>An estoppel sufficiently pleaded, and supported by competent evidence, is an effectual bar to this action. It was sufficiently pleaded.</p> <p>The demurrer is general, thus waiving “ any imperfection, omission, defect or want of form” (if any there be), in the pleading to which it is opposed, and admitting “all such matters of fact as are sufficiently pleaded.” It must be limited in its operation to matters of substance. Stephen on Pleading, 3d Am. ed. pp. 158-160. The defendants, having in the preceding brief statement, described a fixed and definite line (northerly of which they claimed title, and southerly of which they disclaimed any title or interest in the demanded premises) proceed to say “that the plaintiff is estopped by law and by the record and judgment of this court to have and maintain her said action”, etc. They then proceed to say “ that as to that, part of the demanded premises hereinbefore described-lying northerly of the line aforesaid”, describing and identifying the parties as the same in this and the former suit, these defendants recovered judgment. They set forth the record, showing that they, as plaintiffs, declared in trespass, qu. cl. against the present plaintiff and others acting as her servants and agents, with respect, to the piece of land before described, and setting up the same dividing line before specified; and that Arietta Kimball defended, pleading the general issue, and “by way of brief statement said that the title and rightful possession of the locus where the alleged acts complained of, if done at all, were committed, at the time of the alleged trespass, were in her, the said Arietta Kimball ”; and that afterwards the case was submitted to a jury and a verdict was returned under the pleadings for the then plaintiffs, upon which judgment was rendered, etc. Stat. 1831, c. 514; R. S., c. 82, § 22; Trask v. Patterson, 29 Maine, 499, 502.</p> <p>The record of the former judgment between these parties and in support of the plea of estoppel was admissible under the general issue. Green v. Thompson, 5 Maine, 224; Young v. Pritchard, 75 Maine, 518; Washburn v. Mosely, 22 Maine, 160; Sturtevant v. Randall, 53 Maine, 149; Trask v. Patterson, supra.</p>

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

<p>On Report.</p> <p>The first action was debt on a bond, and the other two were suits in equity to enforce lien claims on a dwelling-house of the plaintiff, Emily Moyes.</p> <p>The facts are stated in the opinion. .</p> <p>1. Fitzgerald was surety in the contractor’s bond, which provided that the building should be delivered to the owner on or before Dec. 15, 1896, with all lien claims arising from contracts legally waived, fully discharged or good and sufficient indemnity given.</p> <p>2. Fitzgerald furnished materials which went into the construction of the building.</p> <p>3. Fitzgerald brought a bill in equity to enforce his lien.</p> <p>4. The remaining sureties contest the claim because it costs them less if the claim is disallowed, than it would to have their liens allowed and completed.</p> <p>5. All the parties in interest are before the court and the entire matter can be disposed of under this report.</p> <p>6. A fair interpretation of the bond, in the light of the circumstances, the conduct of the parties, and the language used show that neither the owner, the contractor nor the sureties, intended to provide that no liens should be placed upon the building, but that they should be discharged.</p> <p>7. That on the part of Fitzgerald .there was no waiver, no estoppel, and no covenant against his lien.</p> <p>8. That a disallowance of his lien would be a hardship upon him that parties in interest do not have in contemplation.</p>

<p>On Report.</p> <p>Action on account for rents and profits under foreclosure' of mortgage. The jury returned a verdict of $75.by agreement for the plaintiff, subject to the opinion of the court as to whether the action is maintainable. Thereupon the parties agreed to report the case to the law court. They stipulated “that if the law court shall be of the opinion that the action is not maintainable, the verdict for plaintiff is to be set aside and judgment rendered for defendant; otherwise the verdict for. plaintiff is to stand.”</p> <p>The case appears in the opinion.</p> <p>The defendant Cheviott has in his hands $75 that belong justly to the plaintiff; money that he cannot hold in equity and good conscience; and there ought to be, and is, power in the court, sitting on the common law side, to compel him to pay it back. Wiseman v. Lyman, 7 Mass. 288; Arms v. Ashley, 4 Pick. 71; Moore v. Marshall, 76 Maine, 168; Brady v. Harvath, 64 111. App. 254.</p> <p>It would be ,an exceeding hardship to compel the mortgagor seeking redemption to resort to a suit in equity and remain out of possession of his home perhaps for a period of years while his suit dragged along its slow length through the court.</p> <p>An action at law may be maintained under the laws of Maine. By a statute of Mass. 1818, c. 98, § 3, it is provided that if a mortgagor overpay the debt secured by the mortgage, by rents and profits or in any other manner, he shall be entitled to recover such excess in an action for money had and received. . This statute still subsists in Mass. (Vide c. 181, § 43, Public Statutes of Mass.) By our Constitution, Article X, Section 1: “All laws now in force in tbis State, and not repugnant to this Constitution, shall remain and be in force, until altered or repealed by the Legislature, or shall expire by their own limitation.” The laws of 1821, c. 180, called the “Repealing Act,” do. not repeal this statute of the Commonwealth of Mass, nor are we able to find that it has been subsequently repealed. Nor is it in any way inconsistent with the provision of our statutes, § 61 of ch. 81, giving the mortgagor a remedy by a bill in equity, but it rather affords a concurrent remedy. If concurrent actions are found desirable in Mass, what reason can be perceived why they should not be allowed here? It should seem that the cases of Nugent v. Riley, 1 Met. 117; Wood v. Felton, 9 Pick. 171; Qazenove v. Outler, 4 Met. .246, are decisive of plaintiff’s rights.</p> <p>This action of money had and received, may be maintained if the defendant has made himself legally liable for the amount claimed, although he has in fact received no money. Floyd v. Ray, 8 Mass. 403; Randall v. Rich, 11 Mass. 494; Fmerson v. Baylies, 19 Pick. 55; Appleton v. Bancroft, 10 Met. 237.</p>

Agreed Statement. Appeal from the Municipal Court of Portland to the Superior Court, for Cumberland County, where the parties made the following agreed statement: “It is agreed that the plaintiff is a non-resident of Maine, the defendant a resident of Portland, Maine. “ On the writ following the words ‘ from the office of ’ is the signature of ‘James A. Connellan’ who is an attorney at law in Portland.

On Exceptions by Dependants. This was an action of debt on poor debtor’s six months bond. The bond is dated December twenty-first, A. D. 1896. The six months named therein expired at midnight June twenty-first, A. D. 1897. The execution of said bond was admitted.

On Exceptions by Petitioner. Petition for leave to enter air appeal from the decision of the judge of probate, York county.

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

On Report. The case is stated in the opinion. The plaintiff is entitled to recover, upon the principle stated in Littleton v. Richardson, 34 N. H. 179, 189, and approved in cases in Maine and Massachusetts.

In Equity. On Appeal. Bill in equity, heard on bill, answers and proof. The presiding justice who heard the cause dismissed the bill with costs, and the plaintiff appealed from his decree. The bill was inserted in a writ and dated March 80, 1896. Bill. To the Supreme Judicial Court. In Equity.

<p>Bamjor Jlun. Court. Unmoral of Case. Stat. 1895, c. 211, § 4.</p> <p>An action was brought against the defendant in the Bangor Municipal Court, the amount claimed in the writ exceeding twenty dollars. On the return day lie pleaded in abatement and on the third day the plaintiff demurred and the defendant joined in the demurrer and moved to remove the cause, but this motion of the defendant having been denied the defendant took exceptions. Held; That when the motion to remove the case was filed, the court liad no further power over it than to grant the motion with appropriate orders; and that the exceptions must be sustained.</p> <p>The proper construction of Stat. 1895, c. 211, § 4, is to allow defendants in the Bangor Municipal Court to file such pleadings as they wish at the return term of the writ, and then remove the case; or to remove the case without pleading and thereby be debarred of all matters that should have been raised within the first two days of the return term. In other words, all matters in abatement must be pleaded in the lower court or waived.</p>

<p>On Report.</p> <p>In this action the plaintiff sought to recover from the defendant company under a policy of insurance issued to him, insuring him from loss and damage by fire on certain premises in Wells. The writ is dated August 8, 1894, and the action was made returnable to the September term in York County.</p> <p>The policy of insurance covered two dwelling-houses; the plaintiff claims to recover for a loss sustained on the dwelling-house and L No. 2, insured for $800, tbe barn insured for $700, and hay therein insured for the sum of $200. The policy is dated September 4th, 1889, and it expired at twelve o’clock noon on the 4th day of September, 1892. The plaintiff claimed that the house, barn and hay were destroyed by fire on the first day of September, 1892, at about the hour of twelve o’clock midnight. The policy expired within two or three days after the date of the fire.</p> <p>The written portion of the • policy relating to the buildings claimed to have been destroyed reads as follows: “$800 on frame dwelling-house and L No. 2. $700 on frame barn situate about 100 feet from said dwelling, and $200 on bay therein. Situate in School Dist. No. 6, Wells, Me., and also occupied by the assured.” The first printed condition in the policy provides that the policy shall be void if “ any false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an over-valuation, or any misrepresentation whatever, either in a written application or otherwise; .... or if the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain without notice to, and consent of, this company in writing .... endorsed hereon.”</p> <p>Printed condition 9 in the policy requires that persons sustaining loss or damage by fire shall forthwith give notice of loss to the company, and shall within thirty days render a particular account of such loss, signed and sworn to by them, setting forth certain particulars named in said 9th condition, and provides that the assured shall also produce a certificate under the hand of a magistrate or a notary public nearest the place of the fire. It is also a condition of the policy that “ all fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy.”</p> <p>The proof of loss filed by the plaintiff with the defendant company, bears date of October 11th, 1892, was not accompanied by a certificate of a magistrate or notary, but has a certificate certifying to certain matters, signed by a deputy sheriff, under date of October 17th, 1892, and which was later in October filed with the company. The plaintiff claimed in this proof of loss that the buildings destroyed were occupied by him as a residence and for his stock of cattle, hay, etc., and that there was a total loss to the extent of $2,875; $1,700 thereof being the value of the house and L; $1,100 the value of the barn, and $75 for hay; and he made claim for the entire amount of the insurance on the house and barn, and for $75 loss on bay.</p> <p>In November, 1892, Mr. C. M. Slocum, the general agent of the defendant company, notified plaintiff that the proof of loss could not be accepted or recognized by the company as evidence of claim under the- policy; and that if the property mentioned in the policy had been burned the company did not recognize or admit any liability therefor; and further stated that the house had been unoccupied at least sixty days prior to the time of the fire, and called plaintiff’s attention to the conditions of its policy. The company claimed that this was a denial of all liability under the policy.</p> <p>Under date of June 12, 1898, and nearly seven months after this notice from Mr. Slocum, plaintiff signed a written statement under oath, directed to the defendant company, and in which he stated: “That said dwelling-house at the time of said fire was occupied by me not as a residence.” Plaintiff in his proof of loss, stated that the buildings in question were occupied by him as a residence, and does not deny this in his statement of June 12, 1893, but claimed that they were occupied by him, though not as a residence, but as occasion might require; and he admitted in his statement that at the time of the fire, no person was living in the said buildings. The company thereupon claimed that this last statement filed by the plaintiff plainly shows he fully understood' the policy was avoided if the buildings were unoccupied, and the inference intended to be conveyed by this statement as well as by his proof of loss, was that the buildings were occupied in compliance with the terms of the policy.</p> <p>The plaintiff claimed that Mr. George F. Plaisted acted as the agent of the defendant company in the matter of the issuance of the policy, and put in testimony of certain conversations between plaintiff and Mr. Plaisted. But on the other hand, the defendant claimed such conversations were between the plaintiff and his own broker, who was not an agent of this defendant company.</p> <p>Other facts appear in the opinion.</p> <p>Agency: In Pottsville Mut. Fire Ins. Go. r. Minnequa Springs Improvement Go., 100 Penn. St. R. 137, it is said that: “It is the well settled law that where one engages another to procure insurance for him, the person thus employed is the agent of the employer, and not of the company.” Standard Oil Go. v. Triumph Ins. Go., 64 N. Y. 89; May on Insurance, 3rd Ed. § 122; Richmond v. Phoenix Assurance Go., 88 Maine, 107.</p> <p>Occupied as a dwelling or residence: Agricultural Ins. Go. v. Hamilton, (Md.) 30 L. R. A. 633; Hanscom v. Ins. Go., 90 Maine, 333; Ashworth v. Ins. Go., 112 Mass. 422; Keith v. Quincy Mut. Ins. Go., 10 Allen, 228.</p> <p>Vacant buildings: Jones v. Granite State F. Ins. Go., 90 Maine, 40; Fancy v. Home Ins. Go., 82 Maine, 492; White v. Phoenix Ins. Go., 83 Maine, 279, S. C. 85 Maine, 97.</p> <p>Agent’s knowledge: May on Ins. 3d Ed. § 122 ; Richardson v. Maine Ins. Go., 46 Maine, 394; Ryan v. World Mut. F. Ins. Go,, 41 Conn. 168; FT. T. F. Ins. Go. v. Fletcher, 117 U. S. 519.</p> <p>Fraud and false swearing: Atherton v. Assurance Go., 91 Maine, 289; Bolloff v. Ins. Go., 82 Maine, 266; Williams v. Ins. Go., 61 Maine, 67; Barnes v. TJn. Mut. F. Ins. Go., 51 Maine, 110; IAnscott v. Ins. Go., 88 Maine, 497; Marston v. Ins. Go., 89 Maine, 266; Dumas v. North Western Natl. Ins. Go., 40 L. R. A. 358.</p>

On Report. This was a bill of interpleader filed by the plaintiff as trustee under the will of Robert W. Traip, deceased, to obtain the instructions of the court in the discharge of his duties as trustee. The defendants are the administrators and heir of a deceased brother and two sisters of the testator, who were in their lifetime beneficiaries under the will, and the trustees of a fund, provided in the will, for the erection of an academy in Kittery.

On Report. Bill in equity, heard on bill, answers and proof. The bill was brought by the plaintiffs, being twelve taxable inhabitants of the city of Waterville, against the City, the City Hall Commission, created by special laws of 1897, c. 523, and M. C. Foster &Son, who were alleged to have contracted with .the City Hall Commission for the erection of a city building in the city of Waterville.

<p>On Exceptions by Defendants.</p> <p>This was an action on the case brought by the plaintiff against the defendant for money paid to the use of the defendant. The case was heard by the presiding justice without a jury at the April term, 1898, the right to except being reserved.</p> <p>The court ruled as matter of law that upon the evidence the plaintiff was entitled to recover, and ordered judgment for the plaintiff in the sum of $6,053.69 with interest from May 26,1897, when demand was made for payment of the same.</p> <p>To this ruling and to the exclusion of the evidence offered by defendants, as appears in the opinion of the court, the defendant took exceptions.</p>

On Exceptions by Claimant. Assumpsit to recover twenty dollars due the plaintiff for the use and service of his horse in the employ of the defendant hauling spruce logs and lumber. The log owner assumed the defense of the action.

On Exceptions by Claimant. This was an action of assumpsit brought to recover a lien claim for the plaintiff’s personal labor in cooking for certain persons engaged in cutting and hauling certain spruce logs from Mt. Abram to Sanders’ Mills in the town of Madrid from December 3, 1895, to April 5, 1897. The amount of wages due was $55.00. After due notice the log owner appeared and assumed the defense in the action.

On Exceptions by Defendant. This was an action of debt on a certificate of membership issued by the defendant to John Kelley promising to pay within sixty days after due notice and proof of Ms death “to Mrs. Annie Y. Kelley, Ms wife, or in event of her death, to Ms legal representative, the amount of one assessment made upon the surviving members of the association ”....“ provided, however, that such payment shall not exceed three thousand dollars.” The plaintiff in her…

<p>On Motion and Exceptions by Dependants.</p> <p>This was an action in which the plaintiff sought to recover of the defendant town damages for an injury to his horse received on the thirtieth day of January, 1895, while he was driving the same upon a highway in the said town.</p> <p>The injury was inflicted by a defect in the highway and consisted of a ridge or hummock of ice with a broken and uneven surface extending across the traveled part of the road. The jury returned a verdict for the plaintiff of $144.97.</p> <p>Upon the proposition that the municipal officers or highway surveyor of the district had had at least twenty-four hours actual notice of the defect causing the injury, the following admissions were made in court by the defendant. “It is admitted upon behalf of the defendants that George P. Davis was at the time one of the selectmen of the town of Parsonsfield, and that on or about May, 1895, the selectmen of the town placed in his [Merrill’s] hands the surveyor’s book for the district in which this road was located and that the book contained the written appointment of Merrill as surveyor of that district and signed by a majority of the selectmen. It is also admitted that George P. Davis, P. W. Benton and Brackett T. Lord were selectmen of the town at this time.” The plaintiff introduced evidence showing that the highway surveyor’s book remained in Merrill’s possession until after the injury complained of and until the taxes therein contained were worked out under his supervision; also, that Merrill had actual personal knowledge of the defect complained of at least twenty-four hours before the injury occurred and in fact for several days and had done some work in attempting to remedy the defect. Also that complaints had also been made to him relative to this identical piece of road some days prior to the injury; also that George P. Davis, one of the municipal officers, had knowledge of the defective condition of the road at that point; also that Peleg W. Benton, one of the selectmen of said town knew and appreciated the dangerous character of this piece of road as shown by a witness, Roberts, who quoted Mr. Benton as saying a few days prior to the injury complained of: “There is the worst piece of ice I ever saw on Merrill</p> <p>hill near Liston Merrill’s and I shall break my devilish neck if I don’t get there before the moon goes down.” Mrs. Pease, wife of the plaintiff, testified to this same conversation and it was not denied by Mr. Benton.</p> <p>Mr. Merrill had not taken his official oath, and the presiding justice instructed the jury that actual notice to Merrill, under the facts disclosed and admitted, would be a sufficient compliance with the statute and the defendants excepted to that instruction.</p> <p>The defendants also filed a general motion for a new trial.</p>

On Exceptions by Dependant. This was an indictment found and tried in the Superior Court for Kennebec County, charging the defendants with the crime of assault and battery upon Albert Hodges. There was an affray at the time and place alleged in the indictment, in the public highway: . The two defendants and said Hodges were present. Sidney K. Fuller, one of the defendants, testified that he took no part in the affray whatever.

On Exceptions by Dependants. This was a petition for leave to file a probate appeal under R. S., c. 63, § 25.

On Report. This was an action on tbe case for diversion of water from Eagle Lake, a great pond, in Eden, Hancock County, containing five hundred and six acres. The water of Eagle Lake flows into Frenchman’s Bay through Duck Brook, a stream about two miles in length. The plaintiff is tenant of the mill situated at the mouth of Duck Brook, about two miles from Eagle Lake and below the high tide mark of Frenchman’s Bay.

<p>Attachment. Lien. Seizure. Judgment. Laws of 1821, e. 60, §§ 1,17; Jt. S c. 81, § 67; c. 76, § 38.</p> <p>An attachment on mesne process of a right in equity to redeem real estate from mortgage will not continue for more than thirty days after final judgment in the suit unless the attaching creditor causes the right attached to be seized upon execution and notice of sale given within the thirty days after the final judgment.</p>

On Exceptions by Dependant. Assumpsit brought to recover the purchase price of certain bottles alleged to have been sold by the plaintiff to the. defendant. The bill of exceptions shows the following material facts: At the time of these transactions the plaintiff carried on the business of a wholesale and retail liquor dealer in Boston, Mass.

On Exceptions by Defendant. This was a writ in error, wherein the plaintiffs ought to annul a scire facias judgment obtained by the defendant against the plaintiff in the Lewiston Municipal Court. The case was heard before the presiding justice at the April term, 1898. The presiding justice ruled that no errors appear of record as alleged in the writ, and ordered the writ dismissed with single costs, and judgment of the court below affirmed.

On Exceptions by Dependant. This was an action of assumpsit, in which the plaintiff claimed the sum of thirty-five dollars due from the defendant on an account annexed. Defendant admitted an indebtedness of eighteen dollars and offered to be defaulted for that sum. The parties were at issue as to the alleged payment of seventeen dollars, for which no credit was given on the plaintiff’s books.

On Exceptions by Dependant. Petition for partition. By agreement of parties the case was submitted to the presiding justice with the right to except. The petitioner is the widow of Josiah P. Longley, who died testate October 24, 1897, seized of the premises described in the petition. By his last will and testament said Josiah P. Longley devised said premises to the l’espondent, Josiah B. Longley. The petitioner seasonably waived the provisions of the will.

On Motion and Exceptions by the Dependant. This was an action of trespass for false imprisonment. The plea was the general issue with a brief statement justifying the imprisonment, on the ground of a lawful arrest of the plaintiff for fraudulently evading the payment of his fare as a passenger on one of the defendant’s trains. There was evidence tending to show: That at the time alleged the plaintiff was a passenger on the defendant’s train from Rockland to Brunswick.

Agreed Statement. Money had and received to recover $37.50 paid to defendant under protest and claimed by him as a lien due for storage of a printing press. • The case was reported to the law court .by the presiding justice of the Superior Court of Kennebec County upon an agreed statement of facts. They are sufficiently stated in the opinion of the court.

On Exceptions by Dependants. Replevin to recover a .lot of furniture and fixtures, valued at $319, and situated in the St. Elmo saloon, on Exchange street, in the city of Bangor, the plaintiffs claiming title under a mortgage by virtue of an assignment thereof, which said mortgage and assignment, bearing date November 2, 1896, were duly recorded. Writ dated May -3d, 1897.

<p>On Exceptions by Defendant.</p> <p>This was an indictment against the defendant in which he was charged with being a common seller of intoxicating liquors, and also alleging a prior conviction for the same offense. The indictment following the form prescribed by statute is as follows:—</p> <p>State of Maine.</p> <p>Piscataquis, ss.</p> <p>At the Supreme Judicial Court, begun and holden at Dover, within and for the County of Piscataquis, in said state, on the last Tuesday in February, in the year of our Lord one thousand eight hundred and ninety-eight.</p> <p>The jurors for said State upon their oath present that James Bartley of Greenville, in said county of Piscataquis, at Greenville, aforesaid in said county of Piscataquis, on the first day of October, in the year of our Lord one thousand eight hundred and ninety-seven, and on divers other days and times between said first day of October aforesaid and the day of the finding of this indictment, without lawful authority, license or permission therefor was a common seller of intoxicating liquors, against the peace of said state and contrary to the form of the statute in such case made and provided; and the jurors aforesaid upon their oath aforesaid further present that said James Bartley has been once before convicted as a common seller under the laws for the suppression of drinking houses and tippling shops in said county of Piscataquis. A true bill. Elbiudge T. Douglass, Foreman.</p> <p>Charles W. Hayes, County Attorney.</p> <p>The defendant demurred to the indictment, but the court overruled the demurrer and the defendant took exception to this ruling of the court.</p> <p>The case is stated in the opinion.</p> <p>The legislature has an undoubted right to modify and simplify the forms of pleading both civil and criminal, provided in criminal pleadings the essential elements which constitute the offense, the substance of it, are retained. State v. Learned, 47 Maine, 43-3; 10 Am. & Eng. Ency. p. 460. In State -v. Learned, the court gives a very full opinion of the powers of the legislature in such cases.</p> <p>The offense for which the respondent is indicted, is that of being a common seller on a certain day and on divers other days ending the last Tuesday of February. For the crime of which it is alleged he has been formally convicted, he has already been punished. He cannot be tried nor punished for the old crime again, but it is the new offense for which he is being tried, and the crime is aggravated by the fact of the former conviction. The former conviction, therefore, is not such an act, or part of the crime, as to require it to be set forth with a time certain. State v. Dolan, 69 Maine, 577. The crime is the acts charged during the period alleged. The rest is only an aggravation.</p> <p>Respondent says the time should have been laid with certainty, and proved as laid, so that he could better defend. He would be in no better condition as to his defense, had the time of the former conviction been alleged with certainty, had it been done so in such manner as not to have had the time descriptive of the record, for the government could prove any conviction during the whole lifetime of the respondent. The statute of limitations does not apply. State v. Dolan, supra.</p> <p>Respondent says further that the indictment should have alleged that he had been before convicted as “common seller of intoxicating liquors” under the laws, etc., the words “of intoxicating liquors,” not being in the allegation of former conviction. The whole law from its inception has always been known as the law for the suppression of drinking houses and tippling shops. The crime of being a common seller, under that law, has acquired a technical meaning during the forty years it has been on the statute books, and no uncertainty can possibly arise because the words are those of the statutory form.</p> <p>An unbroken line of decisions in this State from the. time of the enactment of the law to the present time supports the above positions. State v. Learned, 47 Maine, 426; State v. Wentworth, 65 Maine, 284; State v. Gorham, Ibid. 27 0; State v. Dolan and 'Hurley, 69 Maine, 576, 577: State v. Wyman, 80 Maine, 117; State v. Hall, 79 Maine, 501.</p> <p>In State v. Gorham, the time of the former conviction was not alleged and the indictment was sustained. See also Gom. v., Miller, 8 Gray, 484; State v. Lashus, 79 Maine, 504.</p>

<p> Accord and Satisfaction. Offer and Acceptance. Payment. Ii. S.,c. 82, §•45■ </p> <p>If an offer of money Is made to one, upon certain terms and conditions, and tlie party to whom it is offered takes the money, though without words of assent, the acceptance is an assent de facto and he is bound by it. The acceptance of the money involves the acceptance of the condition. Under such circumstances the assent of the creditor to the terms proposed by the debtor will lie implied, and no words of protest even can affect this result.</p> <p>In an action to recover a balance due on a cargo of paving blocks sold by the plaintiff to the defendant, it appeared that a controversy existed between tlie parties as to the amount due the plaintiff. In the original written contract tlie price was fixed at $45 per thousand for blocks to be delivered by the plaintiff on board vessels at a particular wharf, at which the plaintiff stipulated that there was a certain ■ depth of water. After the first cargo had been shipped and paid for, the defendant complained that there was not the depth of water at the wharf that the contract called for, and that by reason thereof it was put to additional expense in relation to the first cargo and could not procure vessels for subsequent cargoes at reasonable freight rates. Considerable correspondence between the parties resulted, during which the president of the defendant company wrote the plaintiff: "You may charter a vessel to your own liking so that the blocks will not cost me exceeding §58 per M. alongside of the dock in Phila. exclusive of -insurance. I will insure them myself. You can have a chance to get a vessel of the draught you desire, and the size, and to come on a hightide, etc.” Subsequently, on November 22nd, 1894, the plaintiff procured a vessel and shipped to the defendant the cargo of blocks sued for. On December 20, 1894, the defendant sent a statement of account to the plaintiff charging itself with this quantity of blocks at §58 per M. less §17 per M. freigktpaid and showing a balance due the plaintiff of $1046.67. Accompanying this statement, the defendant sent the plaintiff a check for $1046.67 which check contained these words, written into the body thereof: " Being payment in full balance for cargo Gr. pav. Blks. per schr. J. Henry Edmunds, shipped Nov. 22, 1894.” The plaintiff received this check, indorsed it and collected the proceeds on December 25, 1894 and has since retained the amount.</p> <p>Held; that the payment by tlie check of December 20th in view of all of the circumstances of the case, must be considered a full satisfaction of the plaintiff’s claim; that the amount having been offered in full settlement and having been accepted as such, impliedly at least, the plaintiff cannot treat this sum as a payment pro tanto and recover the balance as due on the original claim; and that under our statute, R. S., e. 82, § 45, payment so made and accepted is in full satisfaction whether the claim is liquidated or unliquidated.</p>

On Report. This was a complaint made in the Farmington Municipal Court under the Hawkers and Pedlers Act of 1889, c. 298, as amended by.Stat. 1893, c. 282, and c. 386, in which the. material averments were as follows: — “that W. C. Montgomery commorant at Farmington, within the county of Franklin at Farmington, on the fifteenth day of January, A. D. 1898, then and there without any authority, license or permission therefor, did go about from place to place in said town of…

On Report. This was a creditor’s bill in equity, heard, on bill, answers and proofs, to enforce the liability of the stockholders of the Southern Loan & Trust Company under section 6 of its charter, which reads as follows: “The shareholders of this corporation shall be individually responsible, equally and ratably, and not one for the other, for all contracts, debts and engagements of said, corporation to a sum equal to the amount of the par value of the shares owned by…

<p>On Motion and Exceptions by Defendant.</p> <p>This was an action brought by an administrator to recover damages for the loss of the life of his intestate by reason of the alleged negligence of the defendant corporation. The action is brought under the provisions of chapter 124 of the public laws of 1891, for the benefit of the father and mother, they being the sole heirs of the intestate.</p> <p>The verdict was for the plaintiff for $2,000.</p> <p>At the conclusion of the charge of the presiding justice, counsel for the defendant requested the following instruction to the jury, which was refused:</p> <p>“That the plaintiff not having proved facts and circumstances sufficient to enable the jury to return a verdict which would approximate reasonable certainty, the plaintiff is entitled to recover only nominal damages.”</p> <p>To the refusal to so instruct the jury the defendant took exceptions.</p> <p>“ The damages recoverable for negligently causing the death of a person must in every case depend largely upon what would probably have been the earnings of the deceased if he had not been killed. Other elements enter into the calculation; but the earning capacity of the deceased is always an important factor.” Per Walton, J., in Welch v. M. Q. li. JR. Co., 86 Maine, 570.</p> <p>The pecuniary damage, which, as we have shown, can alone be recovered in most of the states for the death of any person must be something of definite and almost commercial value. It is not necessary, however, to show that the deceased was under legal obligations to the next of kin. If they had reasonable expectation of pecuniary advantage from the continuance of his life, they may recover it. Thus if he was in the habit of making them presents at regular intervals, this would constitute a valid basis for damages. 2 Shear. & Redf. on Neg. 769; Dalton v. Southeastern R. R. Oo., 4 C. B. N. S. 269.</p> <p>The statute does not limit the recovery to the actual pecuniary loss proved on the trial. Ihl v. The Forty-second St. Ry. Oo., 472 N. Y. Ct. of Appeals, -321. The court say in the case of Oldfield v. N. T. Harlem R. R. Oo., 14 N. Y. 810: “The jury are not limited to the assessment of damages for the actual present loss that may be proved, but they may go further and compensate for the relative injury with reference to the future. .They may compensate for'pecuniary injuries present and prospective.” “The jury who had all the circumstances of the casualty, and the precise condition and relationship of the parties before them, should give such a compensation as they deem fair and just, keeping in view that it was to be measured by the injury done to the next of kin.” The statutes of New York and Maine are almost precisely alike.</p> <p>In an action for death by wrongful act, the jurors’ common knowledge as to life expectancy is sufficient for the admeasurement of damages, on proof of deceased’s age, habits and earning capacity, and tbe disposition of his earnings. Louisville $ Nashville R. R. Oo. v. Morgan, 22 Ala. 20.</p> <p>Counsel also cited: Kelley v. Old. Mil. St. P. Ry. Oo., 50 Wis. 381; Berket v. Knick. Ice Oo., 110 N. Y. 504; Armour v. Qzeschki, 59 111. 17; Antonio St. Ry. Oo. v. Renkin, (Texas Civ. App.) 38 S. W. 829; Johnson v. Old. Northern Ry. 64 Wis. 425; Railroad Oo. v. Barron, 5 Wall. (U. S.) 90.</p> <p>Counsel argued: (1.) The verdict of the jury was against the whole evidence in the case, and against the instruction of the presiding justice. The evidence did not warrant any verdict for the plaintiff, as no pecuniary loss was shown to the survivors.</p> <p>(2.) If the court should allow any damages to be recovered in the case, it must be merely nominal damages.</p> <p>The whole theory upon which the statute is founded is that the basis of the action is pecuniary damage and not solace, not penalty. The legislature provided distinctly that the damages should be with reference to the pecuniary injuries, and it thereby negatives any other consideration for a jury in assessing damages.</p> <p>■ The only cases sustained are cases where the verdict had been distinctly formulated upon exact,'positive testimony as to the amount of pecuniary loss which the plaintiff’s intestate was capable of rendering to his survivors. Hutchins v. St. Paul M. f M. Ry. Co., 44 Minn. 5; Hall v. Galveston, H. S. A. R. R. Co., 39 Fed. .Rep. 18; Chicago v. Major, 18 111. 349; Demarest v. Little, 47 N. J. L. 28; Blake v. Midlcmd Ry. Co., 18 Q. B. 93; Chicago, etc., R. Co., v. Harwood, 80 111. 88; Wynning v. Detroit, etc., R. Co., 59 Mich. 257; Richmond v. Chicago, etc., Co., 49 N. W. Rep. 621 ; Houston and T. C. Ry. Co. v. Cowser, 57. Texas, 293; Winnt -v. International G. N. Ry. Co., 74 Texas, 32, (11 S. W. Rep. 907); Cooper, Admr., v. Lake Shore, etc., Ry. Co., 66 Mich-. 261; Balch, Admr., v. Grand Rapids, etc., Ry. Co., 67 Mich. 394; State v. M. C. R. R. Co., 76 Maine, 369. See Tiffany’s Death by Wrongful Act, § 168, and cases cited, especially Mo. Pacific Ry. Co. v. Lee, 70 Texas, 496.</p> <p>Since the damages are based upon the pecuniary loss of the beneficiaries, where no pecuniary loss is shown the action cannot be maintained for the recovery even of nominal damages. Tiffany, § 180; Duckworth v. Johnson, 4 Hurl. & N. 653, and cases cited; Hurst v. Detroit City Ry. Co., 84 Mich. 539.</p> <p>Nominal damages: Chicago ¡j Northwestern Ry. Co. v. Swett, 45 111. 205; City of Chicago v. Scholten, 75 111. 471; Quincy Coal Co. v. Hood, 77 111. 68; Tiffany, § 180.</p>

Agreed Statement oe Facts. The case appears in the opinion. The plaintiff, in this action, is not seeking to use his minority as a means of holding goods for which he has not paid. It is not a case where the minor disaffirms and tries to hold the consideration for his debt. It is simply a case where this minor seeks to recover the value of goods for which he has fully paid and owned and which the defendant converted to his own use and sold.

On Motion by Dependant. Action on the case brought by the plaintiff to recover damages for injuries claimed to have been received by him, in the evening of February 6, 1897, while walking upon a sidewalk on Nortli street in the city of Calais, by striking his left knee against a hydrant maintained by the defendant. Plea, general issue, and a verdict of 1874.75 for the plaintiff.

On Exceptions and Report. This was an action at law brought by the Maine Shore Line Railroad Company against the Maine Central Railroad Company to recover damages in the sum of $300,000 for violation of an alleged contract, relating to the construction of the Maine Shore Line Railroad from a point in connection with the Maine Central Railroad in the town of Hancock to the water front in the town of Eastport, now the city of Eastport.

On Report. Bill in equity, beard on bill, answers and proof, brought for the recovery of $509.16, and interest alleged to be wrongfully diverted from the estate and heirs of Emeline Williams.

On Exceptions by Plaintiff. The ease appears in the opinion. This is not the case of error in judgment when the defendant corporation decided when and where they would lay the sewers. That was a judicial determination.

On Exceptions by Appellants. This was a petition for the discontinuance or alteration of a highway. It was submitted to a committee, wbo have beard tbe parties and filed their report, affirming the doings of the county commissioners. And thereupon, upon motion that the same be accepted, the appellants filed objections thereto, and introduced in support thereof a copy of the record of the petition and return of the commissioners thereon in locating said way.

On Motion and Exceptions by Dependant. This was an action of tort, brought by the mother, as administratrix of the estate, of Mark W. Cunningham, to recover damages for injuries sustained by her son while in the employ of the defendant, and as a result of which he died on the sixth day of June, 1896. The plea was the general issue.

<p>Deed. Estate Tail. Vested Bemainder. Children. ; B. c. 73, § 4.</p> <p>A father conveyed certain real estate to his two sons Stephen and George "their.heirs and assigns forever, one-third to Stephen and two-thirds to George.” The habendum was to the same effect. Among the provisions in the deed Were these: " Said Stephen and George to come into'possession of said property after the decease of me and my wife Margaret, and not before. This deed is. to take effect and go into operation on .the decease of me and my wife, and not before; and if my son Stephen die without children, then Stephen’s third part is to go to my son George.” . Stephen died leaving an illegitimate child, but no legitimate children.</p> <p>Held; that the estate in Stephen created by the deed was a vested remainder in fee simple, determinable upon the contingency of Stephen’s dying without legitimate children, which contingency happened, and therefore that the title vested in George and -passed from him to his grantee.</p> <p>Held; that the word " children” in the deed is to be construed as meaning legitimate children.</p> <p>See Watson v. Cressey, 79 Maine, 381.</p>

On Motions by Defendant. This was an action of trover, commenced by writ, September 4, 1896, to recover the value of a mare, claimed to have been the property of the plaintiff, and alleged to have been converted by the defendant on October 31, 1894. The case was tried to a jury in Piscataquis county on the second day of the September term, 1897, and resulted in a verdict for the plaintiff, for $33.10.

On Exceptions by Plaintiff. Action on the case, under R. S., c. 6, § 142, against the town of Sanford to recover special damages by reason of the… Held: a certain vote was passed, to wit: “On motion, voted to exempt from taxation for ten years or abate the taxes for ten years on any lands, buildings, machinery or stock, raw, manufactured or in the process of manufacture, anywhere in the town of Sanford which shall be constructed within five years from the date hereof.

On'Report. This was a real action brought to recover possession of a lot of land with the buildings thereon, situated in the village of Gape Neddick, in the town of York. Plea, general issue. The plaintiff introduced evidence to show that on the 20th day of October, 1869, Gersbam O. Freeman and George M. Freeman by warranty deed conveyed the premises in dispute to Asahel Goodwin; but not recorded until after alteration.

On Exceptions by Appellee. Exceptions by the defendant appellee to a decree of the Supreme Court of Probate, sustaining an appeal from the allowance of an account by tbe probate court, for the county of Cumberland. The appeal arose in the following manner: Dr. Horatio N. Small, a resident of Portland, died in 1887, testate, possessed of certain real and personal property, and of certain life insurance policies.

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

<p>On Exceptions by Dependants.</p> <p>The case is stated in tbe opinion.</p>

<p>On Report.</p> <p>This case was certified to the law court under R. S.; c. 77, § 48, by the justice of the Superior Court, for Cumberland county. It was an action of assumpsit, originating in the Municipal Court for the city of Portland, to recover against an alleged guarantor forty-one dollars and fifty cents for clothing sold to F. H. Dyer. The declaration is as follows:</p> <p>In a plea of the case, for that the plaintiffs sold and delivered certain goods according to the account annexed to one F. H. Dyer, formerly of Portland on or about the twentieth day and eighteenth day of July A. D. 1896; that on or about the seventh day of November A. D. 1896, an effort was made to collect said account whereupon and upon the said seventh day of November the defendant in consideration of forbearance from enforcing the collection of said claim and of giving more time to the said Dyer in which to pay said account, guaranteed to pay said account with interest to the said plaintiffs by a written guaranty delivered to the plaintiffs through their agent, of the following tenor, to wit:</p> <p>Portland Theatre, Nov. 7-96.</p> <p>Friend Geo. (meaning George Goold, the agent of the plaintiffs.)</p> <p>“Pop” Dyer (meaning F. H. Dyer) was up to see me about a bill that he owes your concern (meaning the plaintiffs.) lie is having a “ fit.”</p> <p>If they (meaning the plaintiffs) will give him time I will see that the bills is paid with int. (meaning interest.) Now that McKinley is elected he has got a sure thing and I know it.</p> <p>Yours, O. C. Tukesbury.</p> <p>And the plaintiffs aver that on account of said guaranty they delayed collecting said claim giving said Dyer more time in which to pay the same, but that the said Dyer has never paid said account and that since the giving of said guaranty the said Dyer has left the State and that his whereabouts are unknown to the plaintiffs; that the plaintiffs have notified the said defendant since the giving of the said guaranty of the failure of the said Dyer to pay the said account and of the departure of the said Dyer from the State and have frequently requested the said defendant to pay the said account according to the terms of his said guaranty but he has refused to do so, whereby and in consideration of the facts above stated at said Portland on the' day of the purchase of this writ the said defendant being indebted to the plaintiffs in the sum of forty-three dollars and fifty-seven cents according to the account annexed then and there promised the plaintiffs to pay them said sum on demand.</p> <p>Portland, Maine, May 27th, 1897.</p> <p>F. H. Dyer</p> <p>To Haskell & Jones, , Dr. 1896.</p> <p>July 18. To one suit, ...... $35.00</p> <p>20. “ two Negl. Shifts, ..... 6.50</p> <p>Interest to date, ..... 2.07</p> <p>$43.57</p> <p>Plea, general issue, and brief statement that the statute of frauds is a bar to the action.</p> <p>Counsel cited: Williams v. Robinson, 73 Maine, 186; Stewart v. Campbell, 58 Maine, 439, 444, & 449; O’Donnell v. Leeman, 43 Maine, 158; Jenness v. Mount Hope Iron Co., 53 Maine, 20; 1 Chitty on Contracts, p. 96 and note pages 146 & 147; 1 Greenl. Evidence (14 Ed.) pp. 361 & 354; Myer v. Casey, 57 Mississippi, 615; 1 Addison on Contracts, (Morgan’s Ed.) pp. 309 & 324; Stone v. Symmes, 18th Pick. 467; Curtis v. Brown, 5 Cush. 488; Harrington v. Rich, 6 Vt. 666.</p>

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

<p> Probate. Practice. Seasons of Appeal. </p> <p>In probating a will, the sanity of the testator must be proved and is not to be presumed. The burden of proving it lies on the proponent.</p> <p>Where a proponent of a will is an appellant from the decree of the- judge of probate disallowing such will, the reasons of appeal are invalid, if they do not contain an allegation that the testator was of sound mind when the will was executed.</p>

On Motion by Defendant. This was an action brought under tbe Death-Liability Act of 1891, c. 124, to recover damages for the death of Fred Poitras while in the defendant’s employment at Madison, March 17, 1897. The deceased was killed by a log falling upon his head from a hoisting apparatus which he was tending. The hoisting apparatus or elevator was used for taking pulp-wood logs from freight cars into the second story of the defendant’s mill.

See Sawyer v. Rumford Falls Paper Co., 90 Maine, 354. On Report. Action on a policy issued by a casualty company against employers’ liability. The case was reported by the justice of the Superior Court, for Cumberland county, and the facts will be found in the opinion of the court.

<p>On Exceptions by Defendants.</p> <p>The bill of exceptions in this case certified from the January term, 1899, of York county, to the Chief Justice under R. S., c. 77, § 43, is sufficiently stated in the opinion of the court.</p>

<p>Pleading. Puis Darrein Continuance. Plea in Bar. Beal Action. Bents and Profits. B. 8., c. 104, § 11.</p> <p>(1) It is a well-settlecT rule of pleading that, after the filing of a plea puis darrein continuance, all former pleas are regarded as stricken from tlie record and everything is confessed except the matter contested by this plea.</p> <p>(2) Under the rules of special pleading established in the earlier stages of the common law great technical exactness and certainty were undoubtedly required in both the form and substance of such a plea.</p> <p>Held; in this case, that the defendant’s plea, both in substance and in form, fulfills all the requirements indicated by the most approved forms, and obviates all the objections which have been held fatal in any of the cases to which the attention of the court has been called.</p> <p>(3) It is the established rule of law in this state that if, pending a real action, the title to the land and the right of possession become rested in the defendant by operation of law, without the concurrence of the plaintiff, this fact may be pleaded in bar of the further prosecution of the suit.</p> <p>(I) The right to recover damages for rents and profits is a mere incident to the right to the land itself; and 7ield; that the plaintiff’s right to recover rents and profits, in this action, is defeated by the failure of the suit itself. (5) Whether the character of the defendant’s occupation was such as to entitle the plaintiff to recover lier proportion of the income of the premises by virtue of R. S., ch. 95, § 20, or otherwise, is a question not now before the court.</p>