Volume 94 — Maine Reports

On Motion by Defendant. This was an action on the case to recover .damages for injuries received by the plaintiff, a minor, twenty years of age, while in the employ of the defendant eorporatipn at the city of Bath.

Ok Report. . Bill in equity, beard on bill, answer and proofs, alleging that the defendant was not legally entitled to a fund held by the Boston Trust Company and that she had wrongfully obtained said money in violation of an express trust agreement under which it was thus held; also that said fund is charged with a resulting trust in favor of the complainant who is legally entitled to it under and by virtue of an award of an arbitrator made and published December 20, 1886,…

On Motion and Exceptions by Dependant. This was an action on the case for personal injuries, in which the jury returned a verdict of $1623, for the plaintiff. Second count in plaintiff’s declaration.

On Keport. This was an action on the case upon a policy against fire. The case appears in the opinion. Held: in an .action on the latter policy, and in view of the claim of avoidance in the former one, that the former became void on getting the second policy, and the second policy therefore was not void.” The court says: — -“A policy that is to be void on a certain contingency cannot be regarded, where that occurs, as existing for any…

<p> Evidence. Burden of Proof. </p> <p>In an action to recover one hundred dollars which the defendant agreed to pay for the use of a field and pasture, it appeared that the defendant admitted the contract set up by the plaintiff, but said the plaintiff at the same time guaranteed that the field would cut fifteen tons of hay that season.</p> <p>Held; that the burden of proving the guaranty and the breach thereof was upon the defendant; and that an instruction by the presiding justice as to the guaranty set up by the defendant “ while I will not instruct you that the burden lies upon him, I do instruct you, as he sets that up as an independent proposition, that it should fully appear to be a fact” is calculated to give the jury^ an impression that, with respect to the alleged contract of guaranty, there was some peculiar duty resting upon the defendant, other and less than the ordinary burden, of proving it by a greater weight of evidence.</p>

On Exceptions by Dependants. This was an action of trespass quare clausum tried by the justice of the Superior Court, for Cumberland county, without the intervention of a jury, at the December Term, 1898, subject to exceptions in matters of law, who signed a bill of exceptions substantially as follows.

On Exceptions by Dependants. ' The defendant in each case was indicted as a common seller of intoxicating liquors and was also charged in the same indictment with having been previously convicted as a common seller “ under the law for the suppression of drinking-houses and tippling shops.” The defendants demurred to the indictments which were in the following form: State op Maine. Piscataquis ss.

On Report. This was an action on the case to recover damages received by the plaintiff, a boy of seventeen years, while working in the dye-room of a woolen mill of the defendant in South Berwick.

<p>On Report.</p> <p>This was a petition for a writ of certiorari, praying that the board of Police Commissioners of the city of Biddeford be ordered to certify their l’ecords relating to the attempted removal of the petitioner from the office of police officer of the city of Biddeford, to the end that so much thereof as is illegal may be quashed.</p> <p>PETITION:</p> <p>State oe Maine.</p> <p>York, ss.</p> <p>To the Honorable Justice of the Supreme Judicial Court:</p> <p>Respectfully represents Leonard Andrews of Biddeford, in the County of York and State of Maine, that on the third day of July, A. D. 1893, he was duly appointed Police Officer of the City of Biddeford, and was duly qualified as such officer, by the Board of Police, duly constituted and acting, under and by virtue of chapter 625 of the laws of the State of Maine, for the year A. D. 1893.</p> <p>That at a meeting of said Board of Police, held on the fourteenth day of November, A. D. 1898, said Board of Police undertook to remove your petitioner from the office of Police of the City of Biddeford, and served notice on your petitioner that he was so removed.</p> <p>That said appointment and qualification of your petitioner and said attempt to remove him fully appears upon the records to be produced and exhibited herein.</p> <p>And your petitioner represents and shows that said Police Board have no jurisdiction in the matter of said removal, and that their acts in making said removal were erroneous and unlawful, and the records thereof are erroneous and illegal, in the several causes which your petitioner relies on for his support.</p> <p>Wherefore, your petitioner prays that this court will issue a writ of certiorari ordering the said Board of Police to certify their records relating to said attempted removal of your petitioner that they may be presented in court to the end that the same or so much thereof as may be illegal may be quashed, for the several causes which are recited and annexed to this petition and made a part thereof, upon which your petitioner relies for its support.</p> <p>1 st. Because it does not appear, nor is it true in fact, that any charges or complaints were ever filed with said Board of Police against your petitioner.</p> <p>2nd. Because it also does not appear, nor is it true in fact, that any notice was ever given to your petitioner that said Board of Police was to act upon the question of the removal of your petitioner.</p> <p>3rd. Because it does not appear, nor is it true in fact, that said attempted removal was for cause and with notice to your petitioner.</p> <p>4th. Because attempted removal was made without cause and without notice to your petitioner of any cause, and without any opportunity to your petitioner to be heard upon the question of his removal.</p> <p>All in violation of chapter 625 of the private and special laws of the State of Maine of 1893. ,</p> <p>T -, , Leonard Andrews.</p> <p>State oe Maine.</p> <p>York, ss, April 21, A. D. 1899.</p> <p>Personally appeared Leonard Andrews, and subscribed and made oath to the above.</p> <p>Before me,</p> <p>Charles S. Hamilton, Justice of the Peace.</p> <p>ANSWER.</p> <p>State oe Maine.</p> <p>York ss. Supreme Judicial Court.</p> <p>May Term, 1899.</p> <p>Leonard Andrews, Petitioner,</p> <p>vs.</p> <p>Board oe Police oe the City oe Hiddeeord.</p> <p>ANSWER.</p> <p>In the matter of Leonard Andrews petitioner for the writ of Certiorari ordering the Board of Police of the City of Biddeford to certify their records now pending in the Supreme Judicial Court in session in Alfred for the County of York.</p> <p>Your respondent, the Board of Police of the City of Biddeford aforesaid, hereby respectfully certify and answer as follows:</p> <p>First. That if said Andrews was a duly appointed and qualified police officer in said city on July 3, 1893, or after, which your respondent denies, that on the fourteenth day of September, 1898, he became divested of all official or de facto rights, powers and liabilities as a police officer through the action of said board of police by its doings, findings and judgments; and that said doings, findings and judgments were, in all respects, just and without error and within their jurisdiction, under chapter 625, private and special laws of Maine, of 1893, and acts amendatory thereof and additional thereto. That no charge or complaint for an offense under rule 38 of the board aforesaid was ever preferred against said petitioner, consequently, no notice was ever given said petitioner of any charge or complaint as alleged in his bill of particulars. That said Andrews’ removal from the position of policeman, if he ever held that position, was for cause other than for offenses as set forth in said rule 38, and by virtue of the terms of rule 56 of said board and for no other reason.</p> <p>Your respondent further, and with respect, certifies that the following is rule 38 aforesaid: “Any member of the police force may be punished by the board of police, in its discretion, whether by reprimand, forfeiture of pay for not exceeding thirty days, for any one offense, by being reduced in rank, or by dismissal from the force, on conviction of any one of the following offenses, to wit: Intoxication.....</p> <p>Any other act contrary to good order and discipline or constituting neglect of duty, or the violation of the rules of the department.”</p> <p>And that the rule 56 of said board is as follows: “ Whenever the board of police consider the police force ineffective on account of its number, — police officers, regular, reserved or special, — may be removed for the following cause viz,: to make more effective the police force as the board of police consider proper therefor — -no offense being charged against such police officers, and the same may be done whenever said board of police consider the above named cause exists with no personal discredit of officers removed upon order of said board.” That said rule 56 was adopted September 14th, 1898, and that thereafter, upon the same day, certain actions and doings of said board were had concerning which the following is a true copy of the record thereof. “ Upon due consideration and investigation the board of police consider that to make the police force of Biddeford more effective; which said board hereby consider necessary and proper that the following named men, whose names appear upon the records of said board as officers be and hereby are removed by virtue of Rule 56 of this board, and this is the order of the board thereof viz: Leonard Andrews, . ”</p> <p>That the writ as prayed for should not issue; that the doings, findings and judgments and records of your respondent are not illegal and in error; but legal and correct; that no part of said record should be quashed. Respondent further answering says that said petition is not sufficient in its terms and allegations in law for your petitioner to have his prayer granted by this court, and so says not for the purpose of frivolous delay but believing said ground well taken.</p> <p>Wherefore, respondent prays such judgment as is usual and proper.</p> <p>And with due respect said respondent makes the above its answer.</p> <p>June 7, 1899.</p> <p>Board of Police of the City of Biddeford, Respondent, By its Attorney, Jambs O. Bradbury.</p> <p>It was admitted at the hearing on the petition, in the case of Andrews, that Ezra H. Banks, James F. Tarr and Levi W. Stone were the board of police commissioners duly qualified at the time of the removal of Leonard Andrews the petitioner; that Andrews was duly appointed and duly qualified as a police officer, July 8, 1893; that Andrews was removed by said board of police, September 14th, 1898; that no charge or complaint was made against the said Andrews, and that no notice was given to Mm of any proceeding in the premises until after he was removed.</p> <p>The power that appoints, the board of police, has the power to remove for cause. The statute is silent as to what the cause shall be that would justify the removal of a police officer. The board of police is the tribunal that is to hear and determine, and the act of hearing and determining is a judicial act always. Andrews v. King, 77 Maine, 224. There were no charges preferred against the petitioners. Chief Justice Parker says, in Murdock, Petitioner, 7 Pick. 303, 330, “ we hold that by analogy to trials on criminal accusations in courts of justice, and the principles of the constitution, no man can be deprived of his office, which is a valuable property, without having the offense with which he is charged, ‘fully and plainly, substantially and formally described to him.’ This enters so essentially into the justice of the case, and into the character of a fair trial, that it ought not to be dispensed with. Without it, the party charged does not know what to defend against; nor can another body, to which there may be an appeal, ascertain the effect or admissibility of the evidence against him.”</p> <p>There was no specification of the charges made against the petitioner in the administration of his office, and no notice was given him of a hearing, §,nd in fact no hearing was had. The whole proceeding was ex-parte, a Star Chamber performance. Was the removal of the petitioner a judicial act?</p> <p>A cause for the removal of an officer must embrace some act of the officer in the administration of his office. In this case the petitioner is charged with no act of misfeasance or nonfeasance in his office.</p> <p>It is true, that in the statute creating the board of police it is not stated in detail what the causes are that will justify a removal, but it must be such a cause as seems to the board sufficient, after the party has notice and an opportunity to be heard in defense or explanation of whatever may be alleged, as a cause of removal.</p> <p>The statute creating the Biddeford board of police is an exact copy of the Mass, statute and the proceedings of the Biddeford board of police were the same as those of the Boston board in Sam v. Boston Board of Police, 142 Mass. 90. The court held that the board could not remove an officer or member of the police, without assigning a cause for such removal and giving to such officer or member an opportunity to be heard thereon. State v. Donovan, 89 Maine, 448.</p> <p>The question of the efficiency of the force, so far as its number is concerned, cannot be made an issue between the creating power and the officers created. That proposition is one for trial, but rests entirely upon the good judgment and integrity of the police commission under the force of the oath of its members; and that being so, it-takes this case out of the general rule of cases in which the officer is discharged and his position vacated on account of the commission of any offense or misdemeanor punishable under the rules of the board other than Rule 56 by suspension or removal.</p> <p>The petitioners have not alleged in either case that they were qualified officers at the time of the removal. They cannot now prove they were, but are bound by their pleadings.</p> <p>By the terms of c. 625, of the special laws of 1893, the Police Board have authority to appoint, and also authority to remove for cause, and to make all needful rules and regulations for its government, control and efficiency. It is to be borne in mind that the police board have all authority and power, formerly vested in the board of aldermen and common council.</p> <p>The police officers of Biddeford are not appointed for any limited term, nor during good behavior, but their appointment is without limitation of time. Hence, in the appointment of regulars and specials for special business, in a few years the city becomes burdened, and the efficiency of the force greatly lessened, by the accumulation of the appointments of years.</p> <p>That condition of things is the actual experience of the police board of the city of Biddeford. The rules cited indicate how members of the police force may be punished by suspension, or by removal, for various misdemeanors and offenses, and in those cases the charges must be preferred, and a hearing must be had. But with the statutory power to make any rules and regulations for the efficiency of its force, the respondent must have the inherent right, when the board and its force have become unwieldy through the lapse of years, to reduce it to efficiency by the removal of the unneeded accumulation of years and for that purpose Rule 56, of the board, was established. And under that rule, action of the board has been taken, relating to the efficiency of the board of men whose names appeared on the police force records.</p> <p>The rule requiring charges to be preferred, and a hearing had, relates solely to the cases where policemen are to be tried and punished by suspension or removal, by violation of law or of the rules of the board. The matter of regulating the efficiency of the force, so far as number is concerned, must rest in the good judgment, discretion and integrity of the board itself.</p> <p>Ham v. The Boston Board of Police, 142 Mass. 90, was for the removal of a regular policeman and not a special officer, and under the Massachusetts statute it was specially stated, that the officer could not be removed without preferring charges against him.</p> <p>In the case of Andrews v. King, 77 Maine, 224, the contention was relative to the office of city marshal and not in relation to the appointment or removal of policemen either regular or special; the office of city marshal is held not to be a corporate or even a municipal office, but a position affecting the entire state, while the appointment and management of the police force of the city of Biddeford is certainly a purely local and municipal affair.</p>

On Report. This was an action of trover brought by the plaintiff as assignee of Oyprien A. Lacroix, an insolvent debtor, against the defendant, Frederick Yates, for the conversion of a stock of goods that were in the possession of Lacroix and, as his property at the time when insolvency proceedings were instituted, and claiming that by virtue of the assignment to the plaintiff by the court of insolvency, the title became vested in him.

<p>Agreed Statement.</p> <p>Tbe case is stated in the opinion.</p> <p>The York Shore Water Co. has never legally taken any land of these appellants. The taking of land by the right of eminent domain must be evidenced by some writing, in which the land is described by metes and bounds. Hamor v. Bar Harbor Water Co., 78 Maine, 184; Lancaster v. Kennebec Co., 62 Maine, 274.</p> <p>The only writing the York Shore Water Co. ever filed as evidence of any taking was a copy of the vote of the corporation passed Oct. 14, 1895. In that vote there was no description at all. The people who “said it belonged” to Worthing may have been mistaken, and the company may have thus had in mind a lot which did not belong to Worthing at all. These appellants are entitled to be apprised of just how much and what land the company claimed to take.</p> <p>The vote to take is only a preliminary step in the taking. It is not complete so as to justify temporary occupancy pending agreement upon, or assessment of damages, until plans and specifications have been filed. Laws of 1889, ch. 284, (Supplement p. 270); Cushman v. Smith, 34 Maine, 247, (260); Lancaster v. Kennebec Co., 62 Maine, 274; Riche v. Water Co., 75 Maine, 91.</p> <p>It is necessary that the company itself shall file plans and description of the land taken. Laws of 1889, ch. 284. Directors have no authority to leave it to the determination of any one officer or member of the corporation what plans, descriptions, certificates and other documents are necessary, and authorize him to file them himself. A corporation, upon which the law imposes the duty of doing some act, cannot delegate authority to another to do that act, on the principle that delegated authority cannot be delegated. York & C. R. R. v. Ritchie, 40 Maine, 425; Orphan Asylum v. Johnson, 43 Maine, 180, (185); Mutual Ins. Co. v. Lowell, 59 Maine, 504.</p> <p>Where private property is sought to be taken against the will of the owner, under statute authority, all the statute requirements must be fully and strictly complied with. In the procedure no step, however unimportant, seemingly, must be omitted, nor will the substitution of other steps in the place of those named in the statute be sufficient. Spofford v. B. & B. R. R., 66 Maine, 26, (39); Leavitt v. Eastman, 77 Maine, 117, (120); Hamor v. Water Co., 78 Maine, 127, (133).</p> <p>Statute makes it necessary for the York Shore Water Co. to file plans and descriptions. They voted to allow the president to determine what were necessary, and then file them himself.</p> <p>The county commissioners had no jurisdiction to assess damages, because there had been no land legally taken for which damages could be assessed. They, upon hearing in damages, could look only to the petition presented to them in ascertaining what land was claimed to be taken, and for which they were to assess damages. To give them jurisdiction the petition must contain a sufficient description of the land claimed to be taken, by metes and bounds. Spofford v. B. & B. R. R., supra.</p> <p>It is no longer an open question in this country that the mode of exercising the right of eminent domain, in the absence of any provision of the organic law prescribing a contrary course, is within the discretion of the legislature. There is no limitation upon the power of the legislature in this respect, if the purpose be a public one, and just compensation be paid or tendered. Secombe v. Milwaukee & St. Paul R. R. Co., 23 Wall. 108.</p> <p>No question can be raised but that a water company to supply pure water for domestic purposes is a public necessity. The right of eminent domain does not rest upon a statute nor on a constitutional enactment. It is an attribute of sovereignty, possessed by the general government as sovereign, to enable it to perform its proper functions. It is an authority essential to its independent existence and perpetuity. The right of eminent domain being thus possessed by the United States the mode of exercising it, in the absence of any express provision in the constitution to the contrary, is within the discretion of the legislature. In Re Rugheimer, 36 Fed. Rep. 369; Kohl v. U. S., 91 U. S. 367; U. S. v. Jones, 109 U. S. 513; Miss. & Rum River Boom Co. v. Patterson, 98 U. S. 403.</p>

<p> False ¿Representations. Contracts. Lavj and Fact. </p> <p>The question whether or not a false representation is material, whether it be relied upon by a plaintiff to support an action for deceit, or by a defendant to avoid a contract because of deceit, is one of law for the court, not of fact for the jury.</p> <p>The defendant entered into a contract relating to a work to be published, entitled “Men of Progress,” providing for the publication of his portrait and biographical sketch therein, the delivery to him of one copy of the work, and for his payment therefor, upon the issue .of the part containing his portrait and sketch.</p> <p>In an action by the assignee of the publisher to recover the amount which the defendant had agreed to pay, the latter contended that the contract was void because he was induced to execute it by means of false and material representations as to the character of the work which was to be published, made by the agent of the publisher at the time of the execution of the contract, and that such false and material representations were relied upon by him.</p> <p>The defendant introduced evidence tending to prove, that the agent of the publisher, who obtained his subscription for this work, represented to him at the time that only three other residents of the town in which the defendant lived would be solicited to be subscribers to this work, and to have their biographical sketches and portraits published therein. And also that the portraits and sketches of only three hundred persons in all would be published.</p> <p>Meld; that these representations respecting a .book of this character to be published were material; that if all of the other necessary elements were proved to exist, a contract induced thereby could not be enforced; and that it was error not to instruct the jury, as requested, that these representations were material.</p>

<p>Fish and Game. Guides. License. Constitutional Law. Pleading. Law and Fact. Stat. 1897, c. 262.</p> <p>The fish in the waters oí the state and the game in its forests are the property of the people in their collective, sovereign capacity, who may permit or prohibit the taking- thereof. When such taking is permitted, the legislature may impose such limitations, restrictions and regulations as it may deem necessary for the public welfare.</p> <p>Chapter 262 of the statute of 1897 requiring the registration and certification of guides by the commissioners of inland fisheries and game, and imposing a penalty upon any person who engages in the business of guiding without such registration and certificate, is constitutional.</p> <p>When the legislature' may require a license for carrying on any business, or engaging in any vocation, it may exact the payment of a reasonable fee therefor.</p> <p>An indictment charging the defendant with “having been unlawfully engaged in the business of guiding, in inland fishing and forest hunting, as the term is commonly understood, said defendant not having caused his name, age and residence to be recorded in a book kept for that purpose by the commissioners of inland fisheries and game of the State of Maine, and had not then and there procured from said commissioners a certificate setting forth in substance that he is deemed suitable to act as a guide either for inland fishing or forest hunting, against the peace, etc., “ is not had for duplicity.”</p> <p>The defendant was charged in an indictment with having been unlawfully engaged in the business of guiding. JJeld; whether he was so engaged as a business is a question for the jury. An instruction that “if he acts as guide one or more times, not being licensed, he falls within the provisions of the statute as being engaged in the business of guiding, — the statute intending to prohibit all guiding unless by licensed guides,” — is erroneous.</p> <p>A single act of guiding with proof of other circumstances may justify the jury of such a charge; while, on the contrary, proof of two or more acts of guiding, with other circumstances proved, may fail to so satisfy them</p>

<p> Burial. License. Evidence. Trespass. </p> <p>The holder of a lot in a cemetery belonging to a town, has a license, exclusive of any or every other person, to bury the dead thereon, and such license once acquired cannot be revoked so long as the cemetery is used as a place of sepulture.</p> <p>The writing of the name of a person to whom a lot in such a cemetery has been assigned in the space designated as such lot upon a plan of the cemetery, is sufficient evidence of license, when such method of perpetuating title has been adopted by the town, or by its selectmen to whom the town has committed the assignment of lots.</p> <p>When an inhabitant of a town has acquired a license to use a lot in a public cemetery for burial purposes, his removal from the town does not constitute a revocation of his license or an abandonment of his lot.</p> <p>Trespass quare clausum is a proper action against one who enters upon and uses for burial purposes a lot in a cemetery which another has the exclusive right to use for such purpose.</p>

On Exceptions by Plaintiee. The case is stated in the opinion. Where there may be uncertainty and difficulty in determining the true intent of the parties respecting the delivery and acceptance from the facts proved, the question of acceptance is to be decided by the jury.

<p> Equity. Former Suit. Laches. Le Minimis. </p> <p>In a former suit in equity where the facts were substantially the same as in this case, except dates and amounts, praying the court to restrain the defendant society from contracting for a dinner or enjoin payment therefor from the funds of the society, the court dismissed the bill.</p> <p>Upon a second bill praying that the treasurer of the society may be ordered to pay to the defendant company the money paid out by him from its funds for such dinner, held; that the decision and judgment of the court in the former suit between the parties is a bar to this case.</p> <p>Also; that there is no error in the conclusions of law by the justice in the first instance who heard this case, which are as follows :</p> <p>“Without deciding that such expenditures come within the scope and purpose for which said society was incorporated, in view of the decision of a similar question in a bill in equity between the same parties in relation to a dinner held by the society in the year 1895, and in view of the lapse of time between such expenditures and the commencement of this proceeding, and the comparatively small amount of the expenditure involved, it is considered by the court that this particular bill, under the circumstances, should not be sustained; and I therefore decide that the bill be dismissed with costs.”</p> <p>See Woodbury v. Portland Marine Soc., 90 Maine, 17.</p>

<p>On Exceptions by Defendant.</p> <p>Action of debt brought under chapter 285, statute of 1897, to recover the penalty of five dollars for each and every lobster less than ten and one-half inches in length, alleged to have been found in the possession of the defendant, to the number of 108, amounting in all to $515. The verdict was for the plaintiff for the sum of $250.</p> <p>The evidence at the trial showed that the one hundred and three lobsters seized were all plugged with wood and were afterwards liberated alive in George’s river, a portion of them at least, if not all, between Gay’s Island and Caldwell’s Island, the distance between said islands being about a half mile.</p> <p>At the trial the defense claimed that the lobsters seized were of sufficient length, but were unfairly and illegally measured.</p> <p>The defendant took exceptions to the ruling of the court upon matters of evidence, to the failure to give requested instructions and several instructions given to the jury, which with the facts of the case, are found in the opinion.</p> <p>Constitutional law: Thorpe v. Rutland R. R. Co., 27 Vt. 150; Beer Company Case, 97 U. S. 38; Boston & Maine R. R. v. Co. Com. 79 Maine, 394; Haverty v. Bass, 66 Maine, 71; State v. McCann, 59 Maine, 383; Cole v. Co. Com. 78 Maine, 538; State v. Miller, 48 Maine, 581; State v. Plunkett, 64 Maine, 537.</p> <p>The requested instruction is a speculative question of law not relating to the case on trial. Gilbert v. Woodbury, 22 Maine, 246. The exceptions do not state the facts upon which the requests were based.</p> <p>Penalties not excessive: State v. Qraig, 80 Maine, 88.</p> <p>Testimony having a tendency to prove the issue is admissible for the consideration of the jury. State v. McAllister, 24 Maine, 139; Trull v. True, 33 Maine, 367; State v. Witham, 72 Maine, 531. The evidence of the fraud of the commissioner in measuring lobsters that he threw away, if any existed, had been destroyed; and no direct evidence could be produced, except the surrounding circumstanees connected with the whole transaction. The evidence of the plaintiff does not show other lobsters had been plugged in that vicinity.</p> <p>The constitutionality of this law affects the proceedings in this case, because the state has no authority to use unlawful means to accomplish lawful ends.</p> <p>The officer is given, by the statute, discretionary powers to pursue one method or the other. He may simply seize the illegal lobster and stop there, and prosecute or sue for the penalty; or he may under the provisions of section 47, seize the car and all the lobsters in it; but he must pursue one method or the other, not both or a part of each. There can be but one penalty for the same offense, unless as in the liquor law, the same fact may by statute amount to another offense. But it is not so here. The offender may be prosecuted by either of the methods provided by law, either by seizure and libel or by prosecution direct for the offense, but not by both, or part of each, as above said. 1 Bishop, Grim. Proe. pp. 89 and 92. The state having selected one method and entered upon it, that one and no other can be resorted to, and that one must be pursued to the end.</p> <p>Excessive fines shall not be imposed. There must be a limit somewhere. It is excessive to impose a fine of five dollars on a person having in his possession a lobster worth three or four cents, which he believed to be of lawful length ; or even if he did know it was not.</p> <p>Burden of proof: In a civil action where a criminal act is so set out in the pleadings as to raise that distinct issue before the jury, the crime charged must be proved beyond a reasonable doubt before the plaintiff is entitled to a verdict. Sinclair v. Jackson, 47 Maine, 103; Hobbs v. Monmouth Ins. Oo., 35 Maine, 227 ; Thayer v. Boyle, 30 Maine, 475.</p>

On Exceptions by Plaintiff. This was an action on the case for damages for breach of a contract of bailment. Held: that the plaintiff might still. recover for damage accruing subsequent to delivery of the ship.

On Report. This was a bill in. equity, heard ou bill, demurrer, plea, answers and proofs, brought to enforce contributions from the members of an alleged partnership or syndicate formed to purchase a certain-tract of land in the city of Sioux Falls, South Dakota, known as the Phillips Avenue property. The case appears in the opinion.

On Report. Action on the case for damages caused by a defective street or sidewalk, under R. S., c. 18, § 80, as amended by statute of 1895, c. 164, and submitted by the parties upon a report of the testimony by Mr. Justice Strout to the law court, damages, if any, to be assessed by the full court. The case appears in the opinion.

<p>Railroad. Fire. Negligence. Mmdence. R. 8., c. 61, § 64.</p> <p>The liability of a railroad company to make compensation for injury to property along its route by fire communicated by a locomotive engine in its use, created by statute, R. S., c. 51, § 64, is co-extensive with the right given to the railroad company by the same statute to insure such property.</p> <p>Por the company to be liable there must be such elements-of permanency in the situation of the property that the railroad company may have a reasonable opportunity to protect itself against its liability by insurance. Upon this principle a railroad company is not liable for the destruction of property, under the statute, temporarily located along its route and which may be so soon and so readily moved that the company can not, by the exercise of reasonable diligence, protect itself against liability by insurance; but the company is liable under the statute for merchandise, lumber or other chattels regularly and permanently located along its route.</p> <p>Held; that the property of the plaintiff destroyed by fire communicated by a locomotive engine, in the defendant’s use, had such elements of permanency in its situation and other conditions as to place it within the protection of the statute.</p> <p>The plaintiff testified that shortly before the fire he had taken an account of the ship-knees, the property destroyed; that in the first instance he made his memoranda upon a shingle, and subsequently, upon the conclusion of his account-taking, he transferred the result of his account to a small memorandum book. In answering a question as to the number and sizes of those ship-knees destroyed, he was allowed by the court to refer to the small memorandum book for the purpose of refreshing his recollection, against the defendant’s objection as stated that, "this book is not a book of original entry.” Held; that the ruling was correct; that for this purpose it was not necessary that the writing should have been an original one.</p> <p>■ Where objection is made because the witness after referring to his memoranda had no independent recollection of the facts that he testified to, held; that this objection is also unavailing. A witness may be allowed to assist his memory by referring to writings, when he recollects having seen the writing before, although he has at the time of testifying no independent recollection of the facts mentioned in it, if he remembers that at the time he saw the writing before, he knew the contents to be correct.</p>

On Motion by Dependant. This was an action on the case to recover for personal injuries received by the plaintiff while in the employ of' the defendant company as a locomotive fireman. It was tried at the March term in Somerset county, and the jury returned a verdict of $3,391.25. The defendant thereupon filed a motion to set aside the verdict.

On Report. Action of debt to recover a license fee on lime manufactured by the defendants, by means of the apparatus and methods of the plaintiff for burning lime, as set out in two patents granted to one Gran-ville E. Carleton for calcining stone in the manufacture of lime and cement, and by him set over and assigned to his wife, the plaintiff. The case appears in the opinion.

On Exceptions by Dependant. This was a complaint before the Municipal court of Farming-ton, for a violation of the statute of 1889, e. 298, as amended by laws of 1893, c. 282 and c. 306. The case was originally tried before that court and has been once before this court in the form of a report upon facts agreed. The case was argued at the July term, 1898, and is reported in 92 Maine, p. 433.

<p>On Exceptions by Plaintiee.</p> <p>The case is stated in tbe opinion.</p> <p>Counsel cited: R. S., c. 77, § 6, cl. XI; Stat. 1897, c. 322; Byles on Bills, § 350; Waterman on Set-Off, pp. 18, 23, §§ 17, 18; Richardson v. Parker, 2 Swan. 529; Holmes v. Robinson, 4 Ohio, 90; Burns v. Thornburgh, 3 Watts, 78; New Haven Copper Co. v. Brown, 46 Maine, 418; 2 Par. Con. p. 240 (Set-Off) ; Simmons v. Williams, 27 Ala. 507; Bevall v. Squires, 3 T. B. Monroe (Ky.) 372; Byman v. JEstes, 1 Maine, p. 182.</p> <p>In Byles on Bills, p. 412, the defect of which Lord Mansfield speaks, and which the complainant quotes, was supplied by statute later on. These statutes “ only give a set-off in case of mutual debts, that is, of ascertained money demands.” “Hence it follows that there can be no set-off unless the demand for which the action is brought and the counter demand sought to be set off are both of them for specific sums of money.” In the matter now presented one demand is for money and the other is for land.</p> <p>In Richardson v. Parker, 2 Swan. 529, the set-off was allowed because of the mutuality of the accounts. The court says: “ It cannot be doubted that it was the intention of the parties that the latter should discharge the former account.” In Holmes v. Robinson, 4 Ohio, 90, the motion to setoff was denied. In order to warrant the set-off it seems to be equally well settled that the actual debts must exist in the same right.</p> <p>In Simmons v. Williams, 27 Ala. 507, again the mutuality of accounts exists. The court holds that “the mere existence of mutual and independent debts” would not allow the set-off. Stat. 1897, c. 822, does not apply to pending actions.</p> <p>The plaintiff’s claim is to set off a judgment for money against a judgment for land. The claim had been outstanding almost twenty years when his action for damages was commenced. He neglected to enforce it until after the decease of Dexter. Plaintiff’s debt rests on no other ground than that of a general creditor of this insolvent estate. There was never any express agreement that Dexter should give, and Harrington receive, damages for breach of covenant in payment of this debt. That being so, it cannot be allowed.</p> <p>“In a foreclosure suit no claims or debts against the complainant can be setoff against the mortgage debt, except such as have been expressly agreed to be payment.” Dudley v. Bergen, 23 N. J. 397. Counsel also cited: Bird v. Davis, 1 McCarter, (N. J. Eq.) 467; Dolman v. Cook, lb. 56; Puller v. Eastman, 81 Maine, 286; White v. Williams, 3 N. J. Eq. 376.</p> <p>Equity must certainly put the plaintiff in the same and on equal footing with the general creditors of this estate, and the allowance claimed, would be most inequitable and unjust, not only to the administrator, but to all other creditors.</p>

On Report. This was a bill in equity, heard on bill, answer and proofs, brought by the plaintiff corporation against the defendant to restrain him from carrying on a public telephone business over the line which he had constructed in the towns of Readfield and Wayne. The plaintiff corporation was duly chartered under the general laws of the State of.

On Report. This action was brought on an indenture, entered into between the Winterport Water Company and the town of Winterport, on the 9th day of May, 1896, to recover the sum of two hundred and fifty-eight dollars, and interest thereon; being the amount of the money tax assessed by the town on the property of said company for the year 1897.

<p>On Exceptions by Plaintiee.</p> <p>The case appears in the opinion.</p> <p>Counsel cited: Blaekington v. Rockland, 66 Maine, 332; Bradbury v. Benton, 69 Maine, 194; Wadleigh v. Mi. Vernon, 75 Maine, 79; Low v. Windham, 75 Maine, 113; Noonan v. Lawrence, 130 Mass. 161; Spellman v. Chicopee, 131 Mass. 443; Donnelly v. Fall River, 132 Mass. 299; Cronin v. Boston, 135 Mass. 110; Canterbury v. Boston, 141 Mass. 215; Savory y. Haverhill, 132 Mass. 324; Buswell Personal Injuries, § 186; Burghardt y. Van Deusen, 4 Allen, 374; Perry v. Botsford, 5 Pick. 189; Cunningham y. Kimball, 7 Mass. 65; Hastings y. Lovering, 2 Pick. 214; Little v. Blunt, 16 Pick. 359; Holt y. Penobscot, 56 Maine, 15; Liffin v. Beverly, 145 Mass. 549; Kaler y. Tufts, 81 Maine, 63; Chapman v. Nobleboro, 76 Maine, 427; 16 Am. & Eng. Ency. Law, p. 792; Rogers v. Shirley, 74 Maine, 144;- Smiley v. Merrill Plantation, 84 Maine, 322; Hutchings y. Sullivan, 90 Maine, 131; Master v. Troy, 50 Hun, 485.</p> <p>The intention of the statute is evidently to protect the town by requiring the party complaining to put the town in possession of the necessary facts for a full enlightenment on what claim it is required to meet! The numerous cases which have interpreted this statute requirement of written notice show this plainly. ■</p> <p>No objection was made to the plaintiff’s amending his declaration, which alleged that the accident took place on the 12th of February; but the objection is to his amending his notice to the municipal officers, or, what amounts to the same thing, introducing evidence of an accident happening on the 13th of February.</p> <p>Under the Massachusetts statute which required the party complaining to set forth in his notice the “time, place and cause” of the accident, the court held the time of the accident to be as essential as the place and cause; and stated that the reason why the plaintiff is bound to be specific, as to time as well as to cause and place, is in order that the notice may be of substantial assistance to the proper authorities in investigating the question of their liability. Noonan v. Lawrence, 130 Mass. 161; Donnelly v. Dali River, 132 Mass. 299; Cronin v. Boston, 135 Mass. 110.</p> <p>It is a hardship on the defendant to be obliged to meet a case materially different from what is expected from the notice which it received.</p>

<p> Referee. Arbitration. Pleading. Rule X. Assignment. </p> <p>When parties agree that a referee, under rule of court, may find and report the facts, and thereupon his findings may be reported to the law court to render such judgment as the legal rights of the parties require, held; that the referee is the final judge of all matters of fact and questions of law relating to the introduction of testimony; and it is within his discretion to insist upon a compliance with Rule X, or to receive evidence without complying with it.</p> <p>In such case, the only duty imposed upon the court by the report of the referee is to apply the law to the facts found and reported by him.</p> <p>Rule X, relating to the denial of signatures and partnership, does not apply to hearings before referees, even when acting under a reference reserving exceptions in matters of law.</p> <p>It is competent for a referee, in conducting hearings before him, to adopt any reasonable method which seems best calculated to promote the convenience of the parties and secure the ends of justice.</p> <p>The defendants filed a plea of abatement in the court below for the non-joinder of other defendants, which was adjudged bad on demurrer, and the defendants were ordered to plead over. Reid; that the ■ defendants were not estopped from pleading and showing the truth in regard to their membership in the voluntary association alleged in the writ and declaration.</p> <p>An assignment of an account made without consideration, and for the sole purpose of collecting it by suit in the name of the assignee for the benefit of the assignor, is deemed colorable only and inoperative to transfer the property in the account to the assignee, or the right to maintain an action upon it in his own name.</p>

On Report. Trover for the conversion of logs cut, removed and sold by the defendant from Township 13, Range 7, westerly of the east line of the State, in the season of 1897 and 1898. The plaintiffs were then the owners of said township and of all rights appertaining thereto, except 1000 acres, public lots, already set out and except to the extent of the grant contained in a deed from the Commonwealth of Massachusetts to Jewett and March, dated December 3d, 1850.

On Exceptions by Plaintiff. This was an action on the case to recover damages for personal injuries received through a defect in the defendant’s highway. After both plaintiff and defendant had presented all their testimony, the presiding justice ordered the jury to return a verdict for the defendant. To this order the plaintiff was allowed exceptions.

On Motion and Exceptions by Dependant. The case appears in the opinion. The court should not have left the question of what the aider-man had notice of under the admission to the jury; but should have instructed them as a matter of law, the facts being admitted. When the facts in a case are found by uncontradicted and unquestioned testimony, or by agreement, or by special verdict, their legal effect is a matter of law to be determined by the court.

<p> Shipping. Negligence. New Trial. </p> <p>The owners of tow-boats are not common carriers nor insurers. Those who have the management of such boats are required to exercise reasonable care and caution and maritime skill. The tug is the dominant mind and will of the adventure. The master of the tow has no voice or volition in the construction of the tow or in its management.</p> <p>It is the duty of the master of the tug to see that the tow is properly constructed, and that the lines are sufficient in quality and in length and , securely fastened.</p> <p>While employed in the waters, of the home port of the tug, her officers are bound to know the channel, the shoals, the currents and the state of the tides and all risks and dangers incident to the employment and whether, in the state of the wind and water, it is safe and proper to come in with the tow.</p> <p>A new trial will not be granted to permit the introduction of cumulative testimony, newly-discovered.</p>

On Motions and Exceptions by Dependants. Action on tbe case for alienating tbe affections of tbe plaintiff’s wife by tbe defendants, wbo are her parents. Tbe plea was tbe general issue. The action was tried to a jury in this court below at tbe October term of 1899, in Kennebec County, when the jury returned a verdict of $1154.00 for the plaintiff. The case appears in the opinion.

On Report. Bill in equity, in which the plaintiffs allege, in substance, that they are the owners of the water power in the northern and southern channels of the Kennebec river, at Skowhegan; that the defendants’ rights come wholly from the deed of James Bridge and are subject to its reservations; that they hold title under James Bridge to the benefit of those reservations, principally to all the water running in the southern channel and the right to erect a dam in the…

On Report. Real action. Plea, general issue, with tbe following brief statement of further defense under tbe Law and Equity Act, Stat. 1893, c. 217 : And for a brief statement of special matter of defense to be used under the general issue pleaded, tbe said defendant further says: 1st. That tbe title, if any, of tbe plaintiff to the premises in question arises out of a seizure and a sale on execution of the same as the property of one Stephen D. Blaisdell upon a judgment…

<p> Trusts. Equity. Law. Will. Charge on Realty. </p> <p>A testator bequeathed his personal estate to a trustee in trust for the support of the testator’s minor son, and bequeathed his real estate to the same trustee upon other trusts. The personal ¡estate was exhausted in the payments of debts and charges and no part thereof came into the hands of the trustee.</p> <p>Held; that the trustee cannot provide for the support of the child from the proceeds of the real estate.</p> <p>.The enforcement of trusts is, of necessity, within the jurisdiction of courts of equity, and an action at law will not lie against a trustee to recover a trust fund, or any portion thereof, so long as the trust remains open.</p>

<p> Equity. Practice. Trusts. Belinquishment. Estoppel. Evidence. </p> <p>The decision of a single justice upon matters of fact in an equity hearing should not be reversed unless it clearly appears that such decision is wrong. The burden to show the error falls upon the appellant. He must show the decree appealed from to be clearly wrong; otherwise it will be affirmed.</p> <p>Held; in this case, that the appellant has failed to sustain this burden; and that, on the contrary, the finding of facts by the court below is amply sustained by the evidence in the case. _</p> <p>Upon a bill to enforce an express and resulting trust in land, the appellant alleged that, at the time of the purchase and conveyance of the lot in question, he made one-half of the cash payment; that the other half was made by John W. Lane, the defendant’s testator; that subsequently the income received from the land was shared by them equally; that payments'upon the note and mortgage given back by Lane, to secure a part of the purchase price, were made from the income of the land and by contributions equally made by them. Thereupon, the appellant claims that a trust resulted-in his favor by implication of law, as to one-half in common of the premises, and that defendant’s testator became seized thereof in trust for him. He further alleges in his bill that Lane made written declarations of trust, on three different dates, in which he acknowledged the trust. The defendant in his answer denied all the important allegations relied upon by the plaintiff.</p> <p>At the hearing before a single justice, upon bill, answer, replication and proof, the appellant introduced evidence tending to prove the existence of a trust in his favor, both as resulting by implication of law, and by reason of the declarations , of trust made by the defendant’s testator. The justice who heard the cause did not decide whether or not the facts relied upon by the appellant did create a trust in his favor, but decided that whatever rights the appellant may have had earlier in or to this property, either as beneficiary or otherwise, had been voluntarily released and abandoned by him on or before June 1, 1889, in and by virtue of a new arrangement with the defendant’s testator. A decree was consequently rendered by him dismissing the bill.</p> <p>Assuming that the evidence introduced by the appellant was sufficient to show that a trust had once existed in his favor, as to one undivided half of the property in question, it is considered by the court that the evidence in the case, fully sustains this finding of fact, and warrants the decree dismissing the bill. v</p> <p>No question is raised by the plaintiff, and it is unnecessary to decide, as to what extent the acts and conduct of the trustee and the cestui que trust, they being sui juris, are competent for the purpose of showing that a trust, which had once existed, had been voluntarily relinquished by the cestui que trust in, and in consideration of, some subsequent transaction between them, because the acts and conduct of the appellant in this case subsequent to June 1, 1889, and the reliance thereon by the defendant, are sufficient to estop the appellant from denying that he had so relinquished his equitable interest in this property, whatever that interest may have been.</p> <p>The appellant offered in evidence one of the memoranda, or declarations of trust, which had an unsigned paper, prepared after the death of Lane and attached by mucilage, and containing, among other things, an agreement that this property should be held by the defendant as trustee, etc., and also an assignment to a third party of all the appellant’s “right, title and interest in and to the within agreement and declaration to which this is annexed and the property therein described.” Objection hkving been made to the admission of the memorandum while this paper remained attached to it, the court excluded it until the unsigned paper was detached, which was finally done. The memorandum, signed by Lane, was then admitted without objection and the appellant took exception to the exclusion of the other paper. Held; that the ruling was unquestionably correct.</p>

On Exceptions by Defendant. This was a real action to recover a certain piece of land on India street in Portland. Plea, the general issue with a brief statement.

On Repobt. This was a bill in equity, heard on bill, answer and proofs to compel the defendant, who is the present owner of a lime quarry, known as the Blackington farm and quarries, in Thomaston, to… Held: that no new lease was necessary. In Livingston v. Eilmback, 10 Johns. 336, held that an instrument containing words of a present demise will amount to a lease though it provide for a future lease; this would be deemed a covenant for future assurance.

<p>Intox. Liquors. Inter-State and Gonst. Law. JR. S., c. 27, § 81.</p> <p>The Act of Congress of August 8, 1890, commonly known as the “Wilson Act,” was not intended to, and does not cause the power of a state to, attach to interstate commerce shipments whilst the merchandise is in transit under such shipments, until its arrival at the point of destination and delivery there to the consignee.</p> <p>Intoxicating liquor was shipped from Portsmouth, N. H., in October, 1899, by the Boston and Maine, and the Grand Trunk Railroads, accompanied by a continuous way-bill, and was consigned to a person in Lewiston, Maine. While it was in the car, standing on the siding at Auburn, it was seized by the Auburn police officers, taken from the car and removed to the depository where seized liquors are kept. At the time of its seizure it was in transit, not having reached its destination nor having been delivered to the consignee.</p> <p>According to the authority of the Supreme Court of the United States in the case of Rhodes v. Iowa, 170 U. S. 412, in a similar case, it follows that this seizure was made while the liquor continued to be an interstate shipment, and before it had become subject to the operation of the laws of the state of Maine.</p> <p>Reid; that the seizure was therefore premature and unauthorized.</p> <p>Whether, after actual notice to the consignee of the receipt of the goods in the freight warehouse, and neglect on his part to remove them after the lapse of a reasonable time, the warehouseman may under some circumstances be deemed to hold them as agent of the consignee, and the act of interstate commerce accordingly be held .complete, is a queston which was not considered by the federal court, nor does it arise in the case at bar; for it distinctly appears here that the liquor was seized before it had reached its destination, and before its delivery to the consignee.</p> <p>Reid; that while, therefore, intoxicating liquor continues tobe recognized by federal authority as a legitimate subject of interstate commerce, that clause of § 31 of chap. 27 of the revised statutes of Maine which declares that “no person shall knowingly bring into the state .... any intoxicating liquor with intent to sell the same in the state in violation of law,” must be held inoperative as repugnant to the constitution of the United States.</p>

On Report. Bill in equity, heard on bill and answers, to obtain the construction by the court of the residuary clause of the will of the late Abner Coburn; also to obtain the directions of the court respecting the termination of the trust contained therein, and for the protection of the trustee in the disposal of the trust property. The case appears in the opinion.

On Exceptions by Dependant. Assumpsit upon a certificate of deposit, issued to one Olive Hodge by the defendant bank, and claimed by the plaintiff as a gift by indorsement and delivery before the death of the donor. The case appears in the opinion.

<p>Taxes. Assessment. JR. S., c. 3, § 10; c. 6, §§ 38, 97, 100, 142.</p> <p>A supplement to the invoice and valuation and list of assessments for taxation purposes, under R. S., c. 6, § 35, before such supplemental assessments are committed to the collector, must be accompanied with a certificate under the hands of the assessors, stating that they were omitted by mistake.</p> <p>Held; that the list of supplemental assessments, in this case, is not shown by the record evidence to be duly authenticated by the signatures of the assessors. The healing provisions of R. S., c. 3, § 10, and c. 6, § 142, relating to errors and omissions, are not applicable until a tax-list is first shown to be in existence, under the hands of the assessors.</p> <p>The court considers that the practice of interpolating in the record of original assessments an unsigned list of supplemental taxes without a certificate that they were “omitted by mistake” from the first assessment, as was done in this case, would induce an unwarrantable laxity in the performance of official duties which would result too often in oral controversies, uncertainty and doubt in regard to the regularity and validity of the assessment.</p> <p>An original assessment was duly signed by the assessors, but a supplemental list was written into the original record upon a blank page between the last item of the original assessment and the concluding certificate and signatures of the assessors under the following caption, viz: “Resident supplemental. Committed Nov. 13, 1897.” This supplemental list against the defendant was not accompanied by any certificate that it was omitted from the original list by mistake, nor was it authenticated by the signatures of the assessors, apart from the fact of its insertion in the original record. A warrant committing supplemental assessments was signed by the assessors who described themselves as selectmen and contains a recital that they were omitted by mistake.</p> <p>Held; that the record evidence does not show that the list of supplemental assessments in this case are duly and sufficiently authenticated by the signatures of the assessors; nor is there requisite proof of the existence of a supplementary list of taxes signed by the assessors, as the law requires, supplied by the warrant to the collector issued afterward for the collection of certain sums set against the names therein written.</p>

<p> Sales. Warranty. New Trial. </p> <p>In an action for breach of warranty of soundness of a horse, it is not necessary that the proof should be in the identical language of the allegation in the declaration. '</p> <p>It is sufficient if it is the same in substance, if it means the same.</p> <p>Held; in this case, that the evidence did tend to support the plaintiff’s allegations ; and, further, that it was sufficient to justify the verdict for the plaintiff.</p> <p>A new trial on the ground of newly-discovered evidence will not be granted when it appears that the evidence taken under the motion, so far as it is properly open to consideration, is not newly-discovered; or when the evidence is not properly open to consideration, because it is not stated in the motion itself what is expected to be proved; and, also, because it is nowhere alleged or shown that it was unknown to the moving party at the time of the trial, and could not have been discovered by him by the exercise of reasonable diligence.</p>

<p>Action. Trespass. Limitations. B. S., c. 81, §§ 84, 88.</p> <p>When the statute of limitations has once begun to run, it is not interrupted by a subsequent disability.</p> <p>Actions of assault and battery must be commenced within two years after the cause of action accrues.</p> <p>The plaintiff’s ward was assaulted September 12, 1894, and soon after became insane. The plaintiff having been appointed guardian June 27, 1899, begun his action subsequently to recover damages. Held; that the action is barred by the statute of limitations.</p> <p>As the injured party was not insane when the cause of action accrued, the plaintiffs action is not taken out of the general rule of limitations by R. S., c. 81, § 88, which provides that “if a person entitled to bring any of the aforesaid actions is . . . insane . . . when the cause of action accrues, the action may be brought within the time limited herein, after the disability is removed.”</p>

On Exceptions by Claimant. Trustee process. At a hearing on the question as to whether or not the alleged trustee should be charged, the presiding justice adjudged the trustee chargeable for the funds in his hands; to this adjudication the claimant of the funds took exceptions and asked that the whole case be considered on the exceptions.

On Motion by Dependant. This was an action on the case for disturbing the plaintiff’s right of way. The facts are stated in the opinion.

<p>In Equity. On Appeal.</p> <p>Bill in equity, heard by the court below, upon bill, answer and replication, where a decree was entered dismissing it with costs. The facts appear in the opinion.</p> <p>Counsel argued:</p> <p>First. That by-law 15 and the resolution of the directors passed Nov. 2, 1892, were valid and binding upon the company.</p> <p>Second. That the transaction would not impair the assets of the company nor injure the rights of the other stockholders or creditors.</p> <p>Third. That the by-law and resolution added to the stock a power it would not have had but for them, and the company cannot repudiate this; that no one but creditors or other stockholders, by becoming parties to this bill can do so, and then only by showing that their interest will suffer.</p> <p>Fourth. That the tender was sufficient.</p> <p>Fifth. That by no other means than by the granting of the relief prayed for can the plaintiff obtain his rights.</p> <p>Counsel cited: (1.) Cook, Stock & Stockholders, §§ 311, 312; Dock v. Cordage Co., 167 Pa. St. 370, (citing City Bank of Columbus v. Bruce, 17 N. Y. 507; Coleman v. Oil Co., 51 Pa. St. 74; Clapp v. Paterson, 104 111. 26); Vent v. Duluth Coffee, etc. Co., 67 N. W. Rep. 70, (citing Browne v. Plow Works, 64 N. W. Rep. 66); Currier v. Lebanon Slate Co., 56 N. H. 262; Republic L. Ins. Co. v. Swigert, 25 N. W. Rep. 680; Piscataqua P. f M. Ins. Co. v. Hill, 60 Maine, 178; Thompson v. Moxey, (N. J.) 20 Atl. Rep. 854; Franco Texan Land Co. v. Bouseelet, 7 S. W. Rep. 761; Thompson, Corp. $ 1557; Dupee v. Boston Water Power Co., 114 Mass. 37.</p> <p>(3) Creditors alone can impeach a sale of stock to the company.</p> <p>Under the theory of the following cases, the preservation of the rights of the creditors being the only reason for a limitation upon the power of corporations to purchase their own stock, it has been held that creditors alone may impeach such a transaction. And since, where a l’eceiver is appointed to take charge of the property and assets of the corporation, he is, for the purpose of determining the nature and extent of his title, regarded as representing only the corporate body itself, and not its creditors and shareholders, and is vested by law with the estate of the corporation, and for purposes of litigation takes only the rights of the corporation such as could be asserted in his own name, — a, resolution of the company, duly passed, canceling all certificates for stock not fully paid, and issuing new paid up certificates for the amount of the surrendered stock actually paid, was held to be, in effect a purchase by the company of the unpaid stock at its par value, and binding between the corporation and the stockholders, so that it could not be avoided by a l'eceiver of the company. Thompson on Corporations, § 2063; Republic Life Ins. Co. v. Swigert, 135 111. 150.</p> <p>The company cannot object. It is estopped.</p> <p>This provision of the contract constituted a material, substantial part of the consideration and inducement for the purchase of the stock. Vent v. Duluth Coffee, etc. Co., 67 N. W. Rep. 70. In that case the court held that the agreement added to the stock the power for a stockholder to return his stock and recover the price paid for it in money. In the case at bar we ask its cost in land according to agreement. -In New England Trust Oo. v. Abbott, 162 Mass. 148, the court held an agreement that the corporation should have the right to buy the stock valid and shows the reason for allowing corporations to buy their own stock, and that the stockholder was bound by the agreements. See Franco Texan Land Qo. v. Bouseelet, supra.</p> <p>If the minds of the parties did not meet upon the payment of stock, but did meet upon the payment of cash, yet the plaintiff when he obtained the stock had a right to offer it in lieu of cash, because the stock had attached to it the right and power to pay for land, and the mind of the defendant and the mind of the original purchasers of the stock met upon the proposition that it would be received as cash for the purchase of land, and after that without the consent of the stockholder and action by the defendant that power could not be taken from it.</p> <p>A purchase by the corporation does not amount to a reduction of the capital stock. Western Improvement Company v. Bank, 72 N. W. Rep. 657; note to § 283 Cook on Stock and Stockholders; also N. E. Trust Oo. v. Abbott, 162 Mass. 148; Bupee v. Boston Water Power Oo., supra; Leland v. Hayden, 102 Mass. 542.</p>

On Exceptions by Plaintiff. Action on the case against a steamboat company, as a common carrier of passengers, for damages arising from the non-delivery of a telegram. Held: for instance, that where a third party wrongfully prevents the agent from the performance of his'duties as agent, the principal, if his interests are injured by such wrongful act, may recover from the third party to the extent of his loss caused by such injury. 1 Am. &Eng.

On Repobt. Action of debt upon a bond executed by tbe defendants and delivered to the plaintiff, to secure the payment of damages for his land taken by the Wiscasset & Quebec Railroad for the extension of said road from Burnham to Pittsfield.

<p> Evidence. Experts. Negligenee. Fire. Jury. </p> <p>In an action for negligently setting fire on defendant’s land which communicated to plaintiff's land and did damage, defendant offered “expert testimony as to the course and direction of the fire across land intervening between plaintiff and defendant, and that the surface of said intervening land, and the trees and objects thereon indicated that the fire which went over said intervening land went from the south toward said burnt piece of the defendant, and not from said burnt piece of said defendant,” which was excluded, and exception taken.</p> <p>A jury of practical men are fully capable of judging the course of the fire from the appearances on the ground, direction of the wind, indications upon the trees not wholly consumed, and all other existing conditions. No special skill, study or training, beyond that of the ordinary man of common intelligence and experience, is required- or involved. It is not a subject for expert testimony.</p>

<p>On Exceptions by Dependant.</p> <p>Assumpsit by an indorsee against the maker of promissory notes.</p> <p>The plaintiff claimed, and offered evidence tending to show, that the notes were indorsed and sold to him before maturity, for a valuable consideration, and without notice of any illegality in the contract. No evidence appeared in the case that the notes or any of them were ever presented at the First National Bank of Lewiston, for payment, the place specified thereon as the place of payment. The court, against the seasonable objection of the defendant ruled that presentation at said First National Bank for payment was not a condition precedent to recovery thereon.</p> <p>The defendant, the maker of said notes, offered himself as a witness to prove that the consideration for the notes was the price of intoxicating liquors bought by the defendant of the payee in Boston, and intended for unlawful sale within the state of Maine. The presiding justice excluded his evidence upon this point. The defendant excepted to both of these rulings.</p> <p>Counsel cited: Daniel, Negotiable Instruments, (4th ed.) § 1217 : “The better opinion is, that negotiable instruments enjoy no immunity from the general doctrines of evidence, and that any party to a written contract, negotiable or otherwise, is competent to testify as to its invalidity.”</p>

On Report. This was an action of assumpsit brought by the plaintiff (formerly Sturgis) against the defendants upon the following promissory note. “$400. Durham, Maine, July 7th, 1891. For value received the Trustees and Treasurer, or their Successors in office, of the Durham Agricultural and Horticultural Society promise to pay Ada C. Sturgis, or order, the sum of four hundred dollars in one year from date, with interest. Leroy S. Bowie. Rufus Parker.

<p> Negligence. Verdict. Railroads. </p> <p>Whether the injury received by plaintiff was caused by the negligence of the defendant, without fault on the part of the plaintiff, is an issue to be submitted to the jury.</p> <p>Where the evidence is conflicting, and the jury find the issue in favor of the plaintiff, and it may be that the court would have arrived at a different conclusion, yet the court is not at liberty to substitute its judgment for that of the jury, which is the constitutional tribunal to determine the facts, there being no suggestion of bias or undue influence on their part, and the evidence being such that different minds might reach different conclusions.</p> <p>The rule that a rapidly moving train has a precedence, over the traveler, at a crossing on the highway, does not apply to stationary trains. As to these, neither has precedence, but each should act with due regard to the other, the right of passage being equal to each.</p>

<p>Coiporations. Directors, — Acts of, how proved.</p> <p>Directors, individually, cannot bind or affect the rights of a corporation.</p> <p>While it is not necessary that the votes of the directors of a corporation should be formal ones, nor necessarily in formal meetings, nor that they should be proved by record,' but may be shown by circumstances or conduct, the directors must act as a board and not as individuals. Whatever the directors may do, the source of their authority must be found ultimately in some action of the board as such.</p> <p>Held; in this case, that it was incumbent on the plaintiff to show either that Charles B. Brown had authority as agent of the defendant to make the contract relied upon, or was held out by the directors as having authority, or that- the contract was assented to and ratified by the directors after it was made.</p> <p>The acts and conversations of the various directors, which are relied upon by the plaintiff, were not those of the board, or under any authority of the board, which has been shown. They were rather the acts and conversations of some but not all of the individual directors, acting separately; on the plaintiff’s own version, the corporation was not bound.</p>

<p> Life Insurance. Belease. Fraud. Duress. Fquity Verdicts. </p> <p>A mother, who was the beneficiary in a life insurance policy, and her son, the insured, gave a release under seal, to the defendant company, of all their rights under the policy. The complainant, after the son’s death, now asking for a restoration of the policy, and claiming that the release on her part was obtained by duress and through the false and fraudulent representations of the agent of the defendant company who procured it; it is held, that the release by the insured did not bind the complainant.</p> <p>The moment a policy is issued, the beneficiary obtains a vested interest in it, and in the money which may become due upon it, which the insured cannot release without the assent of the beneficiary..</p> <p>Held; also, that the evidence falls far short of showing duress. The threat relied upon, giving it the broadest possible significance, was not a threat which carried with it any reasonable sense of impending danger. Mere threats of criminal prosecution do not constitute duress.</p> <p>Held; further, that the statements of the agent to the complainant, that the insured had obtained the policy through false and fraudulent representations in his application, were made upon a reasonable belief that the statements were true, and that the company had a lawful right to attempt to secure a release of the policy. Under the circumstances developed by the evidence, for the agent to state to the complainant as a fact, that the representations in the application were false, was not fraudulent, though it might hav'e been untrue.</p> <p>Held; further, that whatever was the character of the agent’s statements, the complainant has failed to satisfy the court that she was deceived by them, and without proof of this she cannot be permitted to disregard her release. She knew, as well as the agent claimed to, whether the statements of the insured in his application which were claimed to be false and fraudulent, were so, or not. She may not have known them to be false, but the court is of opinion that she was uot deceived.</p> <p>In the trial of an issue in equity, the verdict of a jury is only advisory, and must be so considered in this case.</p>

On Exceptions by Appellant. This was a petition for adoption. Samuel Young the grandfather of the child, six years old, consented to the adoption. On the petition notice was ordered on Adelia M. Moore, the mother of the child. A copy of the petition and order was served on her. She appeared and claimed her child and objected to its adoption. The judge of probate decreed that the prayer of the petition be granted. From this decree she appealed.

On Report. This was an action of assumpsit for alleged failure of the Western Union Telegraph Company to deliver seasonably a message sent from Eastport to Boston April 18th, 1899, relative to a contract for stocks. The plaintiff claimed special damages to the amount of $145, claiming that he lost this sum, because, under the special and peculiar terms and usages of his contract, his three-point margin was exhausted and his stock was sold at a loss instead of a profit.

<p>On Report. In Equity.</p> <p>Bill of interpleader, beard on bill and answers, to obtain tbe construction of the will of Rufus Jones, late of Veazie, deceased. The case is stated in the opinion.</p>

<p>On Exceptions by Dependant.</p> <p>Forcible entry and detainer against defendant as disseizor. Plea, general issue with brief statement of title in defendant.</p> <p>It was admitted that tbe defendant was the original owner in fee of the land described in the writ, and that she has lawful title thereto, unless the evidence in this case shows that she has parted with the same. /</p> <p>The court ruled that the proceedings upon the execution were sufficient in law to pass the title from defendant to plaintiff’s grantor, and that therefore the plaintiff should recover. To this ruling the defendant excepted.</p> <p>The case is stated in the opinion.</p> <p>A seizure upon the execution is a necessary step in divesting the defendant’s title. There was no subsisting attachment in the suit on which the execution was issued. The sale, therefore, depends solely upon the proceedings after the execution was in the hands of the officer, to be satisfied. This is the sale of the land, and not of an equity of redemption. • “ Real estate attachable,” . . . . “ may be taken on execution and sold, as rights of redeeming real estate mortgaged, are taken on execution and sold.” R. S., c. 76, §42. -</p> <p>This statute reads substantially the same as section 32 of the same chapter, providing for the taking and selling on execution of rights to redeem.</p> <p>The officer can only sell the property seized; is only authorized to sell real estate after having advertised it for at least thirty days. He must necessarily sell the real estate owned by the debtor at the time he seized and advertised it. If the debtor had no title at that time, the proceedings of the officer would convey none, even though the debtor might, before the sale actually took place, have acquired title to the premises.</p> <p>“ Subsequent proceedings, in order to vest the title in the purchaser, have reference to the time of the seizure, and depend upon the state of the title, as it then was. Bagley v. Bailey, 16 Maine, 153.” Benson v. Smith, 16 Maine, 426.</p> <p>“ The title is not changed, unless what the statute requires to produce this effect, appears of record. If it does not, the land remains the property of the debtor, and the judgment is unsatisfied.” Chandler v. Furbish, 8 Maine, 410; Ladd v. Blunt, 4 Mass. 403.</p> <p>Our court have specifically held in Qarleton v. Ryerson, 59 Maine, 438, that “to constitute a valid attachment of real estate,” . . . . “ the officer’s return on the writ must show that the ‘ attested copy ’, required to be filed in the office of the register of deeds, was in fact filed.” Bessey v. Vose, 73 Maine, 217.</p> <p>If an attachment of real estate is not valid unless the officer’s return shows the filing of the copy in the registry of deeds, surely a seizure made under a provision of the statute using the same language, cannot be valid, unless the officer’s return shows that the necessary certificate was filed with the register of deeds. This is the one thing which distinguishes a seizure of real estate upon execution in the case where there is no subsisting attachment, from a seizure where the attachment made on the original writ has not yet expired.</p> <p>No return was ever, in fact, made of this seizure, to the registry of deeds, and it is not, therefore, a question solely of a deficient return, but it is, in fact, a failure to do some of the acts made necessary by the statute as preliminary to a valid sale of real estate upon execution.</p>

In Equity. On Appeal. This was a bill in equity brought to procure the cancellation and discharge of a mortgage of real estate. The case was heard below on bill, answer and proofs, where it was sustained and a decree made sustaining the bill. The defendants appealed to this court. The facts are stated in the opinion. A transfer of notes does not assign the mortgage given to secure them.

On Motion and Exceptions by Dependant. Action to recover for the death of the plaintiff’s intestate, brought under chap. 124 of the statute of 1891. The plea was the general issue. The verdict, for the plaintiff in the sum of $ 15Q0.

On Report. The first case was an action of assumpsit for money had and received. The issue presented by the pleadings was the ownership of a deposit in the Biddeford Savings Bank of $1151.87 and interest from October, 1889, which then stood in the name of Martha M. Moore.

<p>Sales. Stat. of Frauds. Entire and Separate Contracts. B. 8., c. Ill, § 4.</p> <p>The application of the statute of frauds in the case of the purchase of a number of articles at the same transaction, may depend upon whether there is one contract or more.</p> <p>The mere fact that a separate price is agreed upon for each article, or even that each article is laid aside as purchased, makes no difference so long as different purchases are so connected in time or place, or in the conduct of the parties, that the whole may fairly be considered as one transaction.</p> <p>But whether there is one entire contract for the whole, or whether the contract for each remains separate and distinct, may depend upon many circumstances, and presents a question of fact to the jury.</p> <p>Where there are two separate contracts of sale, one for herring and one for hake, the acceptance and receipt of the herring will not take the contract for the hake out of the statute of frauds.</p> <p>But if there is in fact only one contract, for both herring and hake, negotiated for, it may be successively, a delivery followed by an acceptance and receipt of the herring will take the hake out of the statute.</p> <p>An instruction in such a case which withdraws from the jury the consideration of other facts and circumstances, having a tendency to show the character of the contract, is deemed erroneous.</p> <p>Whether negotiations, under all the circumstances, constitute one contract or more is a question of fact, and'should be submitted to the jury.</p>

Agreed Statement oe Facts. This was an action of assumpsit brought in Portland Municipal Court for the sum of forty-two dollars, on an account annexed in the writ for board, care and clothing of Mary E. Glynn the minor child of plaintiff and defendant from December 21, 1898, to June 1,1899; writ dated June 10,1899. The general issue was pleaded, and on July 25, 1899, judgment was rendered for plaintiff for the amount sued for.

Agreed Statement. Assumpsit under R. S., c. 142, § 5, to recover tbe sum of one dollar per week for the expense of clothing and subsistence of one George Barlow in the state reform school, from the date of the boy’s commitment, June 2, 1893, to the date of the writ. The case was submitted by the parties to the law court upon the following agreed statement of facts :— “This is an action of assumpsit, brought under the provisions of R. S., c. 142, § 5.

On Report. The case appears in the opinion. Difficulty of partition no objection. If they would avoid the difficulty they ought to agree to buy, or sell. Hanson v. Willard, 12 Maine, 146 ; Wood v. Little, 35 Maine, 107. A man is deemed to have seizin of the land co-extensive with the boundaries stated in his deed. Brackett v. Persons Unknown, 53 Maine, 228, 230, 231.

<p>On Report.</p> <p>The first of these two actions was assumpsit to recover back money paid by tbe plaintiff, on account of taxes claimed to be due tbe town of Wellington, and fees paid to the defendant for arresting the plaintiff and committing him to jail.</p> <p>The second action was trespass, involving the same facts.</p> <p>By consent of the parties, the case in trespass was reported to the law court upon the same evidence that was introduced in the action of assumpsit between the same parties; wherein the testimony was taken out at the same term. But as the counsel for the defendant claimed that, if judgment was rendered against him in the action of assumpsit, it could be pleaded in estoppel in this action, it was stipulated by the parties that, if decision should be rendered against the defendant in the action of assumpsit, the defendant should have the same benefit as if judgment in such case had been previously rendered against him and said judgment pleaded as an estoppel in the case.</p> <p>If, in the second case, the court decided that the action could be maintained, notwithstanding the disposition of the previous case, then the case was to come back for trial for the assessment of damages only; otherwise judgment to be for the defendant.</p> <p>The case appears in the opinion.</p>

<p>On Exceptions by Plaintiff.</p> <p>The facts appear in the opinion.</p> <p>This is not an action to recover for the death of a person, for which no action is given at common law for such an injury; nor is this an action brought by the personal representative under our recent statute. But it is merely an action brought to compensate the plaintiff for the loss of that to which he was entitled, viz: the services of his minor son during minority. The case involves two propositions: first, has a parent or master any right of action for the loss of services of his minor child or servant; second, what would be the amount of such damages.</p> <p>Counsel cited: Wilton v. Middlesex R. R., 125 Mass. 130; Morgan v. Southern Pacific R. R. 17 L. R. A. p. 71; Texas P. R. R. Co. v. Morin, 66 Texas, 133; Ford v. Munroe, 20 Wend. 210; Caldwell v. Brown, 53 Penn. 453; Lehman, Admr., v. City of Brooklyn, 29 Barb. 234; Hartman v. Bergen County Traction Co., 61 N. J. L. 682; Baker v. Flint, etc., R. R. Co., 16 L. R. A. 154.</p> <p>Counsel cited among other cases: Sawyer v. Perry, 88 Maine, 46; McKay v. Dredging Co., 92 Maine, 458; Gulf, Colorado §• Sanie Fe Ry. Co. v. Beall, 41 L. R. A. 807, and note.</p>

On Report. Bill in equity, heard on bill, answer, replication and proof. This was a bill in equity brought by the plaintiffs, as assignees of Galen C. Moses of Bath, against the defendants as assignees of the Richards Paper Company of Gardiner. Both assignments were at common law. The case appears in the opinion.

<p>Limitations. Foreign Judgment. U. 8- Const. § 1, Art. 4. B. 8., of V. 8. e. 81, § 101. Minn. Statutes.</p> <p>Statutes of limitations are laws of process, and wliere they do not extinguish the right itself, are deemed to operate upon the remedy merely, and all questions arising under th<em must be determined by the law of the state where the action is brought and not by the law where the contract is made.</p> <p>Meld; that the statute of limitations of Minnesota, prescribing the effect of absence from the state with respect to the time when an action may be commenced, pertains solely to the remedy, and neither interprets, qualifies nor extinguishes the right. It does not constitute a part of the judgment, and cannot follow it beyond the bounds of Minnesota. Its field of operation is in the enacting state, and it cannot be asserted in support of an action in a sister state.</p> <p>Under section 1, of Art. 4 of the U. S. Constitution, and the act of Congress approved May 26, 1790, the judgment of a foreign court is made in an action upon the same in another court a debt of record, not examinable upon its merits; but it does not carry with it into another state the efficacy of a judgment upon property or persons to be enforced by execution. To give it the force of a judgment in another state, it must be made a judgment there and can only be executed in the latter as its laws may permit. It is therefore put upon the footing of a domestic judgment; by which is meant, not having the operation and force of a domestic judgment, but a domestic judgment as to the merits of the case, or subject matter of the suit.</p> <p>The plea of the statute of limitations, in an action instituted in one state on a judgment obtained in another state, is a plea to the remedy; and consequently the lex fori must prevail in such a suit.</p>

<p>On Exceptions by Defendant.</p> <p>Indictment against the defendant for erecting, maintaining and continuing a nuisance, to wit, a certain piazza on the front of th,e Penobscot Exchange hotel in Bangor, which obstructed a certain public highway known as Exchange Street in Bangor.</p> <p>To the indictment, respondent pleaded not guilty.</p> <p>The alleged nuisance is set out in the indictment as follows: “And the jurors aforesaid, upon their oath aforesaid, do further present that Flavius O. Beal of Bangor, in the County of Penobscot aforesaid, on the first day of October, A. D. 1898 did unlawfully and injuriously erect and build and cause to be erected and built in and upon the easterly side of said (Exchange) street a certain piazza sixty-three feet long and six and sixty-five one-hundredths feet wide with a platform three and one-half feet, high and with a roof over the same supported by pillars and steps leading from the sidewalk upon said street to the platform of said piazza on the north and south ends thereof, and steps leading from the sidewalk to said platform on the westerly side thereof, said piazza being attached to and built upon the westerly side of a certain hotel located upon the easterly side of said (Exchange) street known as the Penobscot Exchange.”</p> <p>It was admitted that the easterly bounds of Exchange street can be made certain by records or monuments. That May 6, 1886, said Exchange street was widened by the city of Bangor eighteen feet — eight feet of land being taken on the easterly side of said street and ten feet being taken on the westerly side of said street, and that the easterly line of said Exchange street, as widened, ran parallel to the westerly wall of said Penobscot Exchange and distant five inches therefrom.</p> <p>The defendant offered testimony tending to show that three flights of stone steps upon the westerly side of said Penobscot Exchange, leading up into said hotel from Exchange street, and two flights of stone steps or roll-ways leading down from said street into the basement on said westerly side of said hotel, one flight or roll-way being located near the northwesterly corner of said hotel and the other flight or roll-way being located near the southwesterly corner of said hotel, had existed from the time said hotel was built in 1828 until 1880, and that in consequence thereof and by virtue of the statute the line of said stone steps and roll-ways became the true bounds of Exchange street so far as the territory covered by the steps and roll-ways was concerned.</p> <p>The defendant also offered testimony tending to show that portions of the said piazza, described in said indictment as constituting a nuisance, were erected within the limits of the territory covered by said stone steps and roll-ways.</p> <p>It was admitted by the defendant that so much of said piazza as was not erected within the limits of the territory, covered by said stone steps and roll-ways, was within the limits of said Exchange Street.</p> <p>The court instructed the jury as follows: “On the other hand, the contention of the government is, in the first place, that the steps are not a part of the building, and no matter for what period they existed, they could not change the bounds of Exchange Street; and, in the second place, that, even if it were true in law that the steps were a part of the building, and true in fact that they existed for a period of forty years, so that the bounds of the street as to the territory covered by the steps would be thereby changed, that as a portion of this piazza was still within the limits of the street as claimed by the State, and as admitted in substance by the defense^ that the position on the part of the respondent would constitute no defense to this indictment. Now, gentlemen, I instruct you, as a matter of law, that if you are satisfied,— and I understand it is admitted, or that there is no substantial contention about it, — that the bounds of Exchange Street can be made certain by records as has been testified to by Mr. Coombs, and that a portion of the piazza was erected by Mr. Beal within the limits of Exchange Street, then all the evidence introduced by the defense in this ■ case admitting it to be true, would constitute no defense to this indictment.”</p> <p>The jury returned a general verdict of guilty.</p> <p>The defendant requested the following instructions:</p> <p>1. That the stone steps leading to the Penobscot Exchange constituted a part of the building itself and although the jury should find that the bounds of Exchange Street were made certain and that said stone steps stood within said bounds, yet if said steps had so stood for forty years subsequent to May 6, 1836, then the erection and continuance of said steps on Exchange Street until they were torn down (in 1880) were legally justified and said steps did not and could not be deemed a nuisance.</p> <p>2. That if the jury find that the stone steps stood and were maintained within the line of Exchange street for a period of forty years subsequent to May 6, 1836, then said steps as located became the bounds of said street at the points of their location; and if upon removal thereof in 1880, other steps were erected in their place, such new steps so far as they covered the territory embraced within the limits of the stone steps are not and cannot be deemed a nuisance.</p> <p>3. That so much of the present structure as is built and maintained upon the land covered by the stone steps leading to the Penobscot Exchange is lawfully there, and is not and cannot be deemed a nuisance.</p> <p>4. That in order to convict, the government must prove the nuisance as laid in the indictment. That the nuisance as laid in the indictment is a certain piazza 63 feet long, and 6 and 65-100 feet wide, with a platform 3 and 1-2 feet high and with a roof over the same supported by pillars and'steps leading from the sidewalk upon said street to the platform of said piazza on the north and south ends thereof, and steps leading from the sidewalk to said platform on the westerly side thereof. That the whole structure just described is indicted as an entity and in its entirety as constituting the nuisance, but if the jury find that any portion or portions of said structure are within the limits of the stone steps as aforesaid and that said stone steps had existed for forty years subsequent to May 6, 1836, then such portion or portions are legally there and do not constitute a nuisance.</p> <p>5. The alleged nuisance being described in the indictment with exactness and particularity as a piazza 63 feet long, 6 and 65-100 feet wide, with a platform 3 and 1-2 feet wide, etc., etc., and it being impossible to strike out the whole averment without taking from the indictment the part essential to the allegation of the offense intended to be charged, it is necessary that the whole description should be proven exactly as it is set forth; and if you are satisfied that the stone steps or any flight thereof existed continuously for a period of forty years after May 6, 1836, and that any portion of this piazza is within the area covered by said steps, then I instruct you that such part is legally there and does not constitute a nuisance, and that this respondent cannot be held upon this indictment.</p> <p>6. The alleged nuisance being described in this indictment as a piazza 63 feet long, 6 and 65-100 feet wide, etc., etc., and attached to and built upon the westerly side of the Penobscot Exchange Hotel and in and upon the easterly side of Exchange Street, if you are satisfied that the easterly line of said street is situated five inches westerly from the westerly wall of said hotel, and that any portion of this piazza is within the five inches between said line and said wall, then I instruct you that this respondent cannot be held upon this indictment.</p> <p>The presiding justice refused to give the requested instruction except so far as they were already embraced in the instructions given by him to the jury. To the instructions and refusals to instruct the defendant excepted. The indictment, docket entries, charge of the presiding justice to the jury and the evidence taken in the cause were made part of the exceptions.</p> <p>Counsel argued: (1) The indictment is sufficient and there is no variance;</p> <p>(2) That the steps are no part of the building, but are simply appurtenant thereto, and that even if defendant acquired title to the land upon which the steps rested, under the statute, it gave him no title to the intervening spaces, and is no defense to this indictment against the present structure, which is an entirety covering the entire area:</p> <p>(3) The evidence offered would constitute no defense, because an individual cannot acquire, against the public, a prescriptive right to maintain a nuisance, no matter for what length of time he may continue the same.</p> <p>(4) Defendant cannot justify the present nuisance by showing that he has acquired a prescriptive right to maintain another nuisance dissimilar in character and extent.</p> <p>So far as the territory covered by the steps and roll-ways is concerned, and so much of the piazza as is erected within said line, it cannot be deemed a nuisance. Commonwealth v. Blaisdell, 107 Mass. 234; Hyde v. Middlesex, 2 Gray, 267; Farnsworth v. Rock-land, 83 Maine, 508.</p> <p>Buildings fronting on public ways when the bounds can be made certain, when they have been continuously maintained for a period of more than forty years, shall not be deemed nuisances. The stone steps and roll-ways attached to the hotel were constituent parts of the building itself and therefore manifestly fall within the meaning of the word “buildings” as used in the statutes. The exterior lines, therefore, of these steps and roll-ways became the bounds of the easterly side of Exchange street at the respective points where the steps and roll-ways were located; and their erection being legalized by lapse of time, and the eastern boundaries of Exchange street at these points by force of the statute being defined by the line of the steps and roll-ways, the steps and the roll-ways thereby ceased to be within the limits of the highway. Stetson v. Bangor, 73 Maine, 359. 1</p> <p>So much of the present structure as rests upon the territory covered by the stone steps and roll-ways is rightfully and legally there, and under the statute is not a nuisance and cannot be abated as such. So much of the structure as rests upon the intervening land, we admit is unlawfully there; but the trouble with this indictment is that the whole structure as an entity and in its entirety is indicted as a nuisance — not merely the portion of the structure that is unlawfully there, but such portions of the structure as are innocently and legally there, and for this reason, in brief, we contend that this indictment cannot be maintained. State v. Sturdivant, 21 Maine, 13.</p> <p>It being impossible to strike out the whole averment without taking from the indictment the part essential to the allegation of the offense intended to be charged, it is necessary that the whole description should be proven exactly as it is set forth. States v. Howard, 3 Sumner, 14; Commonwealths. Wellington, 7 Allen, 299.</p> <p>What would ensue, if upon a general verdict of guilty in this case, an abatement of the nuisance should be ordered by the court? By the language of the warrant, the form of which is prescribed in R. 'S., c. 17, § 13, the sheriff is commanded to forthwith cause the nuisance as particularly described in the indictment and of which the respondent was adjudged guilty to be abated; so that under such a warrant, the sheriff would be compelled to abate as a nuisance this whole' piazza, although certain parts of it were legally and rightfully maintained, and were declared by the statutes not to be a nuisance. It would seem at least to be illogical, if not unauthorized, for the court to order these portions of the piazza to be destroyed and removed which are legally and rightfully there under the law. What is unlawfully theré, the court could order abated if it knew, or could ascertain from the indictment or the verdict, what portions of the structure were unlawfully there; but we are . unable to see how it could order to be abated such portions of the structure as were lawfully there.</p> <p>The statute does not authorize the removal of a building fronting on the public way, when the bounds can be made certain unless it has been there less than forty years; if it has been there forty years, or more, its continuance is justified and it cannot be removed. This indictment condemns the whole structure as a nuisance — the innocent as well as the offending part — the lawful as well as the unlawful portions.</p> <p>In a criminal case, the court cannot direct a verdict of guilty-even when the facts are admitted beyond dispute, and the question of guilt or innocence depends wholly upon a question of law which the court must determine. U. S. v. Taylor, 11 Fed. Rep. 470.</p>

<p>In Equity. On Appeal.</p> <p>The case appears in the opinion.</p>

On Motion by Defendant. This was an action brought by the administrator of one Daniel T. Dooley, who was killed at Calais, May 27th, 1898, by falling from a car belonging to a construction train used by the defendant in certain parts of the works of building the Washington County railroad. The jury returned a verdict for the plaintiff of $3,000. The case appears in the opinion.

<p>Agreed Statement.</p> <p>The case appears in the opinion.</p>

<p> Bailroad Crossing. Equity. Law. </p> <p>Before a court in equity should grant a decree of specific performance of an alleged contract and compel a railroad company to build and maintain a grade crossing over its track, except in cases where public convenience may require it, or perhaps where there might be very great individual inconvenience if it were not ordered, the court should be satisfied that the danger to public travel will not thereby be substantially increased, or that the additional burden placed upon the railroad company would not be greatly disproportionate to the benefit that would be derived by the individual.</p> <p>A grade crossing over a railroad track is a place of recognized danger, and every additional crossing necessarily increases to some extent, that danger. Although the time has not yet arrived when such crossings can be altogether dispensed with, they should not be unnecessarily increased for the mere inconvenience of an individual. And the court should not compel the maintenance of such a crossing, unless good and sufficient reasons exist therefor.</p> <p>It is considered by the court, that the situation in.this case is such that, if a decree were granted, the benefit that would be derived by the plaintiff would be slight in comparison with the additional burden placed upon the railroad company, and that the danger to travel upon the railroad would be considerably increased if the construction and maintenance of this crossing were ordered.</p> <p>If the plaintiff is right in his contention as to the existence of the contract relied upon, he may recover adequate pecuniary compensation for all damages that he has sustained by reason of the failure of the company to perform such contract.</p>

On Exceptions and Motion by Plaintiee. This was an action of trover for the conversion of a quantity of apples and grass, cut by the defendant on the Coughlin farm in New Vineyard in July 1893. The defendant pleaded the general issue. The fee of the farm since November 8th, 1890, had been in the plaintiff, Look, by warranty deed. Look resided in Starks, about eight miles distant from the Coughlin farm.

On Motion by Defendant. Action on the case to recover for personal injuries, tried to a jury in the Superior Court, for Cumberland County. The plaintiff obtained a verdict of $500. Held: it is stated that a negligent servant, acting under the direction- of- the - master, is the representative of the master, and not a mere co-servant with the one who sustains the injury.

On Report. This was an action of trespass quare clausum, in which the plaintiff sought to recover damages of the defendant for a wilful and malicious trespass upon her private lot in Mount Auburn Cemetery; the digging up and carrying away by the defendant of the remains of her sister recently buried there, to some place to the plaintiff unknown. The case appears in the opinion. Counsel cited, with other cases: 3 Am. & Eng.

Agreed Statement. The case appears in the opinion. The power of am executor to convey the real estate of his testator is a power which is strictly construed. Such conveyances being in derogation of the rights of heirs and devisees, the purchaser has always been held to be bound to show strict compliance with statutory requirements if his title is called in question. Campbell v. Knights, 26 Maine 224; Parker v. Nichols, 7 Pick. Ill; Snow v. Russell, 93 Maine, 362, p. 374.

On Exceptions by Portland and Rochester Railroad. This was an appeal filed in this court below by the Portland Extension Railroad Company from the decision of the board of railroad commissioners that public convenience did not require the construction of a proposed electric railway from Westbrook to Gorham.

On Exceptions by Defendant. The case appears in the opinion. Counsel cited: Arts v. Robertson, 50 111. App. 27; Oonant v. Burnham, 133 Mass. 505. The services of the attorneys in defending the husband’s wife do not fall witbin the rule of necessaries which can or may be provided at the husband’s home. The services are necessaries under a rule which does not apply to any other necessaries. Warner v. Heiden, 28 Wis. 517, (9 Am.

On Report. The appellant, a member of the bar of Aroostook county, having been employed by the assignee, in insolvency of tbe estate of Eben E. Seates, presented to tbe judge of tbe court of insolvency a bill for services rendered by him in preparing for trial and trying a case against tbe estate of the said Eben E. Seates.

On Report. Agreed statement. The case appears in the opinion. Counsel cited: Westbrook Mfg. Co. v. Grant, 60 Maine, 88; Bigelow v. Wilson, 1 Pick. 485; Wilton Mfg. Co. v. Butler, 34 Maine, 440. The trustee took the property of the bankrupt Weymouth subject to the lien under our attachment, if the lien attached more than four months prior to the filing of the bankrupt’s petition, as we claim it did in this case. Voyles v. Parker, 4 Fed.