Volume 95 — Maine Reports

On exceptions by defendant. After all the evidence had been introduced at the second trial of this case, (see first trial 93 Maine, 439), the presiding justice ruled, as a matter of law, that the facts testified to and the evidence introduced on the part of the defendants would constitute no defense to the note and mortgage in suit, and directed the jury to return a verdict for the plaintiffs, to which ruling the defendants seasonably excepted.

On exceptions by defendant. Two actions on the case to recover damages for false and fraudulent representations of the defendant in relation to the Gardiner Woolen Company, as set forth in two writs and two declarations claiming upon two distinct and separate accounts. The cases were tried together by direction of . the court.

On report. Writ of entry to recover possession of land situate in Hartland, alleged to be in possession of tbe defendant.

On motion and exceptions by defendant. Assumpsit on account annexed to recover commissions due tbe plaintiff on policies of life insurance, procured by him as the defendants’ agent. The case appears in the opinion.

On report. Bill in equity by the administrator with the will annexed, and heard on bill and answers, to obtain a construction of the first and fourth clauses of the will of Mary. M. Stewart, late of Bangor, „ deceased. The case is stated in the opinion. Formal words of trust are not absolutely necessary. Cole v. Littlefield, 35 Maine, 439, p. 444; 27 Am. & Eng. Enc. of Law, p. 26.

On report. Trespass quare clausum, tbe trespass alleged being an entry on tbe plaintiff’s land, and tbe construction of a culvert tbereon in August, 1899. Tbe defendant justified bis acts on tbe grounds that whatever was done, was done by him as road commissioner for tbe town of Jay, in tbe building of a road legally located and established over the locus in quo. The case appears in tbe opinion.

Agreed statement. Action for pauper supplies. The parties submitted the case upon the following agreed statement: Addie Spaulding is the daughter of Elbridge Patten, and was born in Dexter, Maine, in 1856. Her father moved to Pittsfield when she was a few months old, and lived there continuously about fourteen years without receiving pauper supplies.

<p>Agreed statement.</p> <p>Tbe facts of this case will be found in Inhabitants of Winslow vs. Inhabitants of Pittsfield, ante, p. 53.</p> <p>Counsel cited: K,. S., c. 24, §§ 1, 5.</p> <p>A married woman has tbe settlement of her husband if he has any in the state; if he has not, her own settlement is not affected by her marriage. Hallowell v. Augusta, 52 Maine, 216; Howland v. Burlington, 53 Maine, 54; Buohsport v. Rockland, 56 Maine, 22; Augusta v. Kingfield, 36 Maine, 235; Eddington v. Brewer, 41 Maine, 462.</p> <p>In Eddington v. Brewer, the court said: “A married woman shall always follow and have the settlement of her husband, if he has any within the state; otherwise her own at the time of marriage if she then had any, shall not be lost or suspended by the marriage.”</p> <p>In Augusta v. Kingfield, 36 Maine, p. 238, Justice Howard said: “ The settlement of the mother, if she had any, at the time of the marriage, would not be lost or suspended by her marriage with one having no settlement in the state; but she could not gain a settlement in her own right, after marriage, and independent of her husband, while he was living and the marital relations subsisted.” Addie Spaulding had a derivative settlement from her father in the town of Pittsfield.</p> <p>A wife cannot gain a settlement separate from her husband. Hallowell v. Gardiner, 1 Maine, 93; Jefferson v. Litchfield, 1 Maine, 196; Farmington v. Jay, 18 Maine, 376 ; Garland v. Dover, 19 Maine, 441; Gardiner v. Farmingdale, 45 Maine, 540; Augusta v. Kingfield, 36 Maine, 239.</p>

On motion by defendant. This was the second trial of the action between these parties, the first case being reported in 93 Maine, 579. Held: “ that if _ a deed is devoid of any description and contains no definite and certain boundaries it will not have the effect to extend possession beyond actual occupancy definite, positive, notorious.” Where disseizor enters upon and cultivates a part of a tract of land, he does not thereby hold constructive possession of the whole…

On motion by defendant. This was an action by a tenant against a landlord for an alleged defective platform at the head of a set of stairs, leading from the .street to the building. The jury gave a verdict for the plaintiff. The substantial facts appearing in evidence are as follows: The tenement in question is located in Springvale village, in the town of Sanford, and was owned by the defendant who lived in Shapleigh about 12 miles distant.

On report. Writ of entry, wherein the plaintiffs demanded certain real estate situated in Augusta. The case appears in the opinion. The covenant stands entirely upon precedent of common law, is not prohibited by statute and is enforceable. Motley v. Sawyer, 34 Maine, 540, and cases; S. 0., 38 Maine, 68; Davis v. Herrick, 37 Maine, 397; Randall v. Lunt, 51 Maine, 246; Woods v. Woods, 77 Maine, 434, and cases.

<p>On motion by defendant.</p> <p>This was an action at common law by the plaintiff, as administratrix of the estate of Jesse A. Fairbanks, to recover damages for the death of her intestate caused by a collision September 17, 1898, with one of the cars of the defendant company on Central street in the city of Bangor. The accident took place about 6.30 A. M., at the foot of the steep down grade on the street northerly of Norombega Hall and about one hundred feet below the intersection of Harlow and Central streets. The case was tried at the January term, 1900, and a verdict rendered for the plaintiff for $5200.</p> <p>Counsel cited: Atwood v. B. O. O. By. Co., 91 Maine, 399; Kilbane v. Winchester Flee. B. B. Co., 43 N. Y. Sup. Ct. 278; Whitehouse v. C. T. By. 2 Hast. p. 189; Calumet Flee. St. By. Co. v. Christenson, 170 111. 382; S. C. 3 Am. Neg. Rep. 537; Meisch v. Boehester Flee. B. B., 72 Hun, 604; Sears y. Seattle St. By. Co., 6 Wash. 277; S. C. 33 Pac. Rep. 389, 1081; White v. Worcester St. By. Co., 167 Mass. 43; Benjamin v. Holyoke St. By. Co., 160 Mass. 3 ; Montgomery y. B. B. Co., (Mich. Sup. Ct.) 5 Am. Elec. Cases, p. 471; Thompson v. Holyoke St. By. Co., 170 Mass. 365.</p> <p>Plaintiff guilty of contributory negligence. His attempting to cross when and where he did was a negligent act. Rights of a traveler, crossing the track in front of a car approaching behind him are wholly different from those at a regular crossing. O'Neil v. Dry Bock, etc., B. Co., 129 N. Y. 125. “A horse car can not be handled like a rapier” per Holmes, J., in Hamilton v. West Fnd St. By. Co., 163 Mass. 199; Flewelling v. L. A. H. B. B. Co., 89 Maine, 593; Atwood v. B. O. O. By. Co., 91 Maine, 402; note to Western, etc., Co. v. Citizens St. B. B. Co., 128 Ind. 5215, reported in 25 Am. St. Rep. p. 477, and cases cited; Briscoll v. By. Co., 97 Cal. 553; Be Lon v. By. Co. (Ind. May, 1899) 55 N. E. Rep. 847. Many courts have held such failure to look or listen to be negligence in law after the analogy of steam railroad cases; Sonnenfeld Co. v. By. Co., 59 Mo. App. 668; OnslaerY. By. Co., 168 Pa. St. 518; Smithy. Traction Co., 187 Pa. St. 110; Boherty v. By. (Mich. 1898) 7 N. W. 377; Webster v. By. (La. 1899) 25 So. Rep. 77; Smith v. By. 29 Ore. 539; McGreey. By. Co., 102 Mich. 107 ; Fritz v. By. Co., 105 Mich. 50. We submit it was negligence in fact. Hayes v. Norcross, 162 Mass. p. 548, and cases. Such sudden crossing is contributory negligence and defeats the action. Thomas v. By. 132 Pa. St. 504; Carson v. Federal St. By. Co., 147 Pa. St. 219 (gross negligence); Ry. Go. v. Stammers, (Ky. 1898) 47 S. W. Rep. 841; Hall v. Ry. Go., 168 Mass. 461; Borsohall v. Ry. 73 N. W. Rep. 551.</p>

Bill in equity, heard on report. The parties submitted the case upon an agreed statement of facts which will be found in the opinion. Statute of assignments has been repealed. Smith v. Sullivan, 71 Maine, 150; Pleasant Hill Cemetery v. Davis, 76 Maine, 289. Assignees’ rights at common law. Counsel cited: Burrill on Assignments, c. 32, p. 538, § 391, and cases; Jones Chat. Mtges. § 241, and cases; 3 Am. & Eng.

Bill for cancellation. The bill was brought against Shubael A. Baker, Benjamin Spaulding, administrator of Aaron S. Cobb and E. Adron Gammon, to annul the cancellation of a mortgage, and was heard on bill, demurrers, answers and proofs. The justice who heard the case, sustained the demurrers, and made the following findings: Florinda Cobb, the complainant, was the wife of Aaron S. Cobb, late of Buckfield, who died September 29, 1895.

On exceptions by defendant. Indictment for selling oleomargarine. The jury returned a verdict of guilty. The defendant moved in arrest of judgment, which being overruled, he took exceptions. The court was requested by the defendant to charge the jury: (1.) That the statute, under which this indictment was brought, is unconstitutional and void.

<p>Death. Damages. Stat. 1891, c. 124.</p> <p>In an action under statute of 1891, c. 124, to recover damages for the death of a person “ caused by the wrongful act, neglect or default” of another, the earning capacity of the deceased, including not only physical ability to labor, but the probabilities of obtaining profitable employment, is an element to be considered in estimating damages.</p> <p>The deceased had been by trade a milliner. Held; that evidence of the wages received by her when last so employed was properly admitted as tending to show an ability and capacity on her part to obtain continuous profitable employment.</p> <p>Under this statute the damages cannot be punitive; neither can they be given for the physical pain and suffering of the deceased or the grief and sorrow of the beneficiary. The sum given must be the present worth of the future pecuniary benefits of which the beneficiary has been deprived by the wrongful act, neglect or default of the defendant.</p>

Exceptions by plaintiff. Action on the case against husband and wife for slander committed by tbe wife alone. The husband demurred for misjoinder and the presiding justice sustained the demurrer.

<p>On motion by defendant.</p> <p>Assumpsit for pauper supplies. Verdict for plaintiff.</p> <p>The case is stated in the opinion.</p>

On motion by defendant. Action on tbe case to recover damages wbicb tbe plaintiff claims be bas sustained in his property on account of a collision between bis carriage, in wbicb he was riding, and an electric car of tbe defendant company at tbe junction of Bi’oadway and Cumberland streets, in the city of Bangor, caused by the alleged negligence of tbe defendant company, in tbe evening of November 21, 1899. The jury returned a verdict for tbe plaintiff for $117.00.

On report. Writ of entry brought to recover possession of certain real estate situate in Searsmont, Waldo county. Plea, the general issue. The plaintiff claimed title under a tax deed; the defendant claimed title under a sheriff’s deed, dated November 5, 1896, and under which he took possession. The tax was assessed in April, 1895. The tax sale was on December 8, 1896.

Exceptions by plaintiff. Action of debt. The defendant filed a plea in abatement on the second day of the first term, to which the plaintiff demurred. The court overruled the demurrer and ordered the writ abated; the plaintiff moved to amend, but this motion was denied by the court for the reason that the declaration was not amendable at this stage of the proceedings. The plaintiff took exceptions to both rulings. The case appears in the opinion.

Exceptions by plaintiff. Bill in equity under R. S., c. 87, § 19. An action at law, see p. 128, ante, was pending between the same parties. On motion .of the defendant, the plaintiff was ordered to elect between the two suits. To this order the plaintiff excepted.

Exceptions by defendant. Assumpsit upon a promissory note. At the close of the testimony the presiding justice ruled that no defense had been made and directed the jury to return a verdict for the plaintiff for $2946.67, the amount agreed to be due, if anything.

<p>On report.</p> <p>Appeal by the Washington County Railroad, as claimant, from a decree of forfeiture of intoxicating liquors, and from whose possession tbey were seized. The case appears in the opinion.</p> <p>Counsel cited: State v. Intox. Liquors, 88 Maine, 158, and cases; Rhodes v. Iowa, 170 U. S. 412; Vance v. W. A. Vandercook Co., lb. 438,</p>

Agreed statement. Action for money had and received. The case appears in the opinion. Money had and received: Keene v. Savage, 75 Maine, 138. Title of assignee: Rogers v. Whitehouse, 71 Maine, 222.

On motion by defendant. Action on the case for negligence, wherein the plaintiff sought to recover, under the statute of 1891, c. 124, pecuniary damages sustained by the widow and seven children of Thomas Conley, deceased. The accident was on September 9, 1899, and was due to a collision between a row boat propelled by the deceased and the defendant’s ferry-boat Hercules, proceeding from Woolwich to Bath. The case is stated in the opinion.

Action on tbe case, beard on demurrer. This was an action brought by the plaintiff, as administratrix, to recover damages for the killing of her intestate. After the former decision in this case, 98 Maine, 17, the plaintiff amended the declaration in her writ, to which the defendants demurred. The case is stated in the opinion. Counsel cited additional authorities: City of Tiffins.

Agreed statement. Action on the case for negligence of the defendant in breaking a pane of plate glass in the store window of Gr. S. & Gr. L Rogers, city of Gardiner, who upon receiving the insurance on same assigned their claim to the plaintiff. The case was reported to the law court by the presiding justice of the Superior Court, for Kennebec County, upon an agreed statement.

<p>Taxes. Assessment. Heirs and Devisees. B. S., c. 6, §§ 24, 27. Stat. 1826, o. 337, § 4.</p> <p>Harriet J. Morrill, of Boston, the owner in her lifetime of the real estate in question, died in 1889. The real estate had been assessed to her up to the time of her death. Afterwards, in 1890 and 1891, the assessors continued to assess taxes on this real estate to Harriet J. Morrill as a non-resident owner. Eor non-payment of these taxes the property was sold at tax sale. The defendant is the grantee of the purchaser at the tax sale. The complainant is the devisee of Harriet J. Morrill.</p> <p>Held; that the taxes assessed to Harriet J. Morrill after her death were utterly void, and that the tax sale and deed and the deed to the defendant constitute a cloud upon the title of the complainant.</p> <p>Held; further, that, inasmuch as the taxes were entirely void, the owner was under no duty to pay them, and hence that there is no reason in equity for requiring the owner to reimburse the defendant, as a condition to having the cloud upon his title removed.</p> <p>Held; that the complainant is entitled to a decree below by which the tax deeds and conveyances, under which the defendant claims, shall be declared to be null and void, and the defendant, and all persons claiming by, through or under him shall be perpetually enjoined from asserting any title under such deeds and conveyances, and from making any entry upon the real estate in question, and from in any manner disturbing the title or possession of the complainant.</p>

On report. Case for diverting water. The defense was, that whatever water was drawn, or diverted, was done by right and by authority of the Franklin Company, the plaintiff’s predecessor in title, and by mutual agreement between the parties, by lease and other, writings, for which it paid the sum of $200,000.

Exceptions by defendant. Indictment found in tbe Superior Court for Kennebec County, charging tbe defendant as a guardian with embezzling tbe funds of his ward’s estate. The defendant filed a general demurrer which was overruled by the court, and he was allowed exceptions.

<p>On motion by plaintiff and exceptions by defendant.</p> <p>Assumpsit on account annexed and the common counts, for use of excess water by the defendant in its mill at Rumford Falls.</p> <p>The case appears in the opinion.</p>

On report. Real action against defendants as trustees under the will of Henry E. Prentiss.

Exceptions by defendants. Appeals by the defendants from the municipal court of Portland to the Superior court upon complaints and warrants against them under R. S., c. 27, §§40 and 43, for having intoxicating liquors in their possession with the intent to sell the same in violation of law. The defendants in each case demurred to the complaints. The demurrers were overruled by the presiding justice and the defendants excepted. The facts appear in the opinion.

<p>Exceptions by defendant.</p> <p>Action for pauper supplies. The case appears in the opinion.</p>

<p>On report.</p> <p>Assumpsit on account annexed to recover $3,418.86 for yellow metal furnished to sheatbe the defendant’s ship.</p> <p>The case appears in the opinion.</p>

<p>On report.</p> <p>Case for damages sustained by plaintiff through a defective highway.</p>

On report. Bill in equity praying that the defendants may be restrained from perfecting foreclosure of a chattel mortgage, and claiming, first, that there is nothing due upon it; and, second, praying that if anything be due, then that the plaintiff’s may be allowed to redeem. The case appears in the opinion.

On report. Trustee process by creditors, to enforce their claims against Samuel E. Delano, by an attachment of his interest under his father’s will and administered by trustees of the will. The case is stated in the opinion. To impeach a deed of trust the proceedings should be by bill in equity, and in which defendant’s wife and children should be parties. Nichols v. Eaton, 91 U. S. 716; Broadway Nat. Bank v. Adams, 133 Mass. 170.

<p> Deed. Trees. License. Contract. </p> <p>Growing timber forms a part of the realty and, like any other part of the estate, may be separated from the rest by express l’eservation or grant. When so separated it retains its distinctive character as an incident of real property as long as it remains uncut; but when cut and severed from the soil, it becomes personal property to which title may be acquired, as in case of other chattels by simple contracts either oral or written.</p> <p>It has accordingly become settled law under the decisions of this court, and by the great weight of authority elsewhere, that parol or simple contracts for the sale of growing wood or timbex-, to be cut and removed from the land by the purchaser, are not to be construed as intended by the parties to convey any interest in land, but as executory contracts for the sale of the timber after it shall have been severed from the soil and converted into chattel property, together with a license to enter upon land for the pxxx-pose of cutting and removing it.</p> <p>It is equally well settled that while the license to enter and cut timber, thus created by parol or simple contracts, is irrevocable as to that pai’t of the timber which has been severed from the land in execution of the contract, yet while it remains executory, as to the wood or timber not yet severed from the land, it is revocable not only at the will of the owner, but by his death or by his conveyance gf the land without reservation.</p>

Exceptions by defendant. Assumpsit for services rendered by plaintiff. Tbe court ordered • tbe jury to return a verdict for tbe plaintiff. Tbe case appears in the opinion.

Exceptions by defendant, Demurrer to a real action because tbe declaration did not sufficiently allege an ouster or disseizin. The case was certified to the Chief Justice by the presiding justice on the ground that the exceptions were frivolous and intended for delay.

On report. Assumpsit upon account annexed and a promissory note. The defendant duly pleaded a discharge in-bankruptcy, under the act of 1898, upon his petition filed. September 28, 1899. The plaintiff, admitting that the discharge was a bar to a personal judgment and claiming an attachment was made by him more than four months prior to the proceedings in bankruptcy, moved for a special judgment against the property so attached.

Exceptions by defendants. Bill in equity by Lucy M. Flint of Cornish, in the county of York, administratrix of the goods and estate of Fred T. Flint, late of said Cornish, deceased, against Robert Comly of Philadelphia, and William Flanigen of Woodbury, New Jersey, co-partners in business under the firm name and style of Comly and Flanigen, and against Charles E. Perkins of Portland.

Exceptions by defendant. Real action to foreclose a mortgage. Tbe tenant in possession is tbe widow of tbe mortgagor and claimed that tbe action should be against tbe administrator of tbe mortgagor. Tbe case appears in the opinion.

<p>On report.</p> <p>Bill to redeem a mortgage claimed by the defendant to be foreclosed and action barred by adverse possession.</p>

On report. Bill in equity alleging a constructive trust, growing out of a mistake in certain deeds under which the defendants claim title; and praying that the trust be executed for the plaintiff’s relief and benefit. The facts are stated in the opinion. The plaintiff asks that lot 21 be eliminated from the Fickett deed.

<p>French Spoliation Claims. Title by Descent. Next of Kin.' B. S., c. 75, §§ 1, 8 ; Acts of Congress, 1891, Mar. 3, 1891; Mar. 3, 1899.</p> <p>The appropriation of money for the payment of so-called French Spoliation claims by the Act of Congress approved March 3, 1899, was a mere gratuity and payments made from such appropriation were payments as of grace, and not of right, and Congress had the right to make tile gift upon its own terms. Money paid by the United States in payment of any such claim does not form a apart of the estate of the original sufferer from the French depredations, but inures to the benefit of, and is to be distributed among, the next of kin of the original suft'erer living at the date of the passage of that act of Congress. As Congress prescribed no method for the distribution of money so paid, it is to be distributed by the proper court and in accordance with the statute of distribution of the state of the domicile of the original sufferer at the time of his decease.</p> <p>In this case, John Storer, the orginal sufferer, at the time of his death had his domicile in Wells, in the county of York in this State, and the money was paid by the United States to his administrator de bonis non, who was legally appointed as such by the probate court of the county of York. The judge of probate of that county had, therefore, jurisdiction in the distribution of the fund in the hands of the administrator de bonis non.</p> <p>There were living at the date of the approval of the act of Congress as next of kin of said Storer, five grandchildren and the descendants of eleven deceased grandchildren. The judge of probate by his decree of distribution, from which this appeal is taken, divided the fund to be distributed into sixteen equal parts, decreeing one-sixteenth to each of the living grandchilden, and one-sixteenth to the descendants of each of the deceased grandchildren.</p> <p>Held; that such distribution is in accordance with the laws of the United States and of this state.</p> <p>Held; further, that the appellee, the administrator de bonis non, should be reimbursed from said fund the expenses incurred by him in this suit, including reasonable counsel fees.</p>

On report. Action for assumpsit to recover rent under a written lease. The facts will be found reported in 91 Maine, 334.

On report. Bill of interpleader by tbe executor of the will of Isaac Mace of Aurora, deceased, against his son George H. Mace and all said Isaac’s heirs to obtain a judicial interpretation of said will, and heard on bill, answers and testimony by the presiding justice of the first instance, who reported the case to this court. The case is stated in the opinion.

Agreed statement. Trespass for tearing down and removing telephone lines, brackets and insulators put up in the highway by tbe plaintiff, and claimed to have been bought by it as personal property at sale on execution against the Dirigo Telephone Co. The case was reported to this court from the Superior Court for Kennebec county. Fixtures becoming real property: 8 Am. & Eng.

<p>On motion by defendant.</p> <p>Case for personal injuries. Verdict for plaintiff for $950.</p> <p>The facts appear in tbe opinion.</p>

On report. Bill in equity for review. Bill of review brought for error of law in an original bill against William H. Glover, Edward K. Glover, Charles L. Smith and Ambrose Mills, copartners under the firm name of W. H. Glover & Company, to settle and adjust the partnership after dissolution. Smith and Mills were not made parties to this bill.

On report. Case for default and negligence of the city of Biddeford to keep in proper repair and maintain a sewer running through the plaintiff’s premises.

In equity. On appeal. Bill in equity, heard on bill, answer and testimony, praying to-have a cloud on the plaintiff’s title removed. The Chief Justice, who heard the ease, in the first instance, made the following findings and entered his decree accordingly.

<p> Waters. Dams. Mowage. Damages. B. S., c. 92. </p> <p>1. Under the mill act (R. S., ch. 92) and subject to its provisions, the owner of a mill and dam can at any time appropriate, for raising and maintaining a head of water for vrorking his mill, so much of the space in the river valley as has not. already been appropriated by some other mill owner for his own mill.</p> <p>2. Such an apppopriation, however, cannot be made effectual by mere proclamation, nor by merely marking limits, nor by mere casual, intermittent and irregular flowage. It must be by an actual occupation of the space by a head or pond of water raised by dams and their appliances, actually constructed or fitted, of the requisite height and efficiency to raise such head.</p> <p>3. Such occupation need not be of uniform height throughout the year, but may vary with the seasons and the amount of flow in the river. So the movable parts of the dam, such as dashboards, gates, etc., may be alternately set in place or removed to meet the variations in the flow of the river, without losing the right to the space acquired for flowage.</p> <p>4. Movable flashboards placed on top of the dam to preserve the head of water in the seasons of low water, and removed to keep down the head of water in seasons of high water, become part of the dam and effectual to rightfully appropriate space in the river valley for flowage.</p> <p>5. The use of such flashboards, however, to operate as a part of the dam and effectual to made such rightful appropriation of flowage space, must be of definite height and be set in place and removed with approximate regularity so as to preserve the uniformity of the head of water, rather than occasionally increase or diminish.it.</p> <p>6. Whatever has been the height and the regular use of flashboards upon a dam before the erection of amill on the river above, the height cannot be increased, nor the time of their use be lengthened after the erection of such upper mill, to its injury.</p> <p>7. In this case, the flashboards put upon the lower mill after the erection of the upper mill were of greater height, and kept on for a longer time than before the erection of the upper mill, and so increased the flowage as to injure the upper mill, by lessening its efficiency.</p> <p>8. In estimating the damages suffered by the owner of the upper mill from lessening its efficiency by the unlawful increased flowage from below, there should be included the loss of the profits he was reasonably certain to have made but for the decrease in the efficiency of his mill caused by the unlawful flowage, — but speculative profits cannot be included.</p> <p>9. In this case, the owner of the upper mill had built up an established manufacturing business in connection with the mill and the plant, which business at the time of the injury appeared to be regular and permanent, with a fair and regular demand for the product at prices affording a definite profit. Such profits were not speculative but, so far as appears, were reasonably certain to have been earned but for unlawful flowage, and hence shonld be included in the damages awarded.</p> <p>10. So much of the interruption of the operation of the plaintiffs’ millas was caused by the lawful height or use of flashboards, or by other causes than the unlawful extra use of the flashboards, cannot be considered in awarding damages. The damages must be limited to those shown to have resulted exclusively from so much of the height and use of the flashboards as are shown to have been unlawful.</p>

Ou motion by defendant. Action of assumpsit brought for the recovery of the amount of a life insurance policy, issued by the defendant corporation on the life of Eugene A. Arnold, the plaintiff’s intestate, in 1886. The verdict was for the plaintiff, and the defendant moved for a new trial, on the ground that the verdict was against law, evidence and the weight of evidence.

On report. Action against defendant as one of the original makers of a promissory note. The facts appear in the opinion.

<p>On report.</p> <p>Action on promissory note. The case is stated in the opinion.</p>

On report. Trover for the conversion of property claimed by the .plaintiff under two chattel mortgages. The facts are stated in the opinion.

On motion and exceptions by plaintiff. Action for libel, in which the jury gave a verdict for the defendant. The case appears in the opinion.

On report. Bill in equity heard on bill, answer and testimony, seeking to establish a trust and follow its proceeds under the will of Benjamin G. Clifford, late of Biddeford, deceased. The case appears in the opinion.

On exceptions by plaintiffs. Assumpsit for the recovery of two hundred and fifty dollars for the non-delivery of 250 barrels of flour. At the close of the testimony the justice presiding instructed the jury as follows: Gentlemen of the jury: — Upon this evidence the plaintiff is not entitled to recover, and it will be your duty to return a verdict for the defendant. The plaintiffs thereupon excepted.

<p>Street Bailroaüs. Location. Appeal. Stat. 1899, c. 119, § 6.</p> <p>An electric railroad company in accordance with, the provisions of Public Laws of 1899, ch. 119, § 6, applied to the municipal officers of a town for their approval of a proposed route and location. The municipal officers neglected and refused to approve and the company appealed to the Supreme Judicial Court. While that appeal was pending in court, the company made a second application to the municipal officers, identical with the first, except that a portion of the proposed route in the first application described as “ thence over and along said Big Bridge and Draw Bridge to Bridge Street,” was omitted from the second. Upon the second application the municipal officers neglected and refused to give their approval, and the company again appealed, the former appeal still pending.</p> <p>Held; that the pendency of the former appeal is not cause for the abatement of the latter.</p> <p>A route or a location of a street railroad presented to the municipal officers for their approval cannot be considered with reference to particular streets one by one, but must be viewed as a whole. The municipal officers are vested with a judicial discretion. They may consider the width and other conditions of the streets, the convenience and safety of the public, and in case where it is proposed to cross a bridge, they may also consider whether the bridge has the requisite strength to support a street railroad and moving cars.</p> <p>The omission in the latter application of a single street or a bridge may put an entirely different phase upon the questions presented, and action of the municipal officers, or their refusal to act, might thuá be put upon new and different grounds; in short, the location as a whole, as presented to the municipal officers for their action, is not the same.</p>

On exceptions by defendants. Indictment against tbe defendants for abortion, found at tbe May term, 1899, York county. The jury returned a verdict of guilty, and tbe defendants took exceptions to portions of tbe charge to tbe jury, which are recited fully in the opinion.

<p>Indictment for Murder. Verdict. Degree of Crime. S. 8., c. 118, § 4.</p> <p>A person on trial for murder must be considered as standing upon all Ms legal rights, and waiving nothing.</p> <p>In the trial of a person upon an indictment charging him with murder, an instruction to the jury by the presiding justice, that their verdict should be not guilty, or guilty of murder in the first degree^ is repugnant to § 4, of chapter 118, R. S. which provides that: “The jury, finding a person guilty of murder, shall find whether he is guilty of murder, in the first or second degree,” and is, therefore, erroneous.</p>

On motion by defendant. Action for damages sustained by an alleged defective way in the city of Lewiston. The case is stated in the opinion.

<p> Contracts. Consideration. New Promise. Sales. </p> <p>The mere agreement to perform an existing contract obligation, by one party to a contract, is not a valid consideration for a new promise by the other party.</p> <p>The plaintiff and defendant by a contract, prior in time to the one in suit, agreed that the defendant should have an option to purchase the plaintiff’s interest in the shares of a certain railroad corporation. Subsequently, by a contract which is described by recitals as being explanatory of and supplemental to the former one, and intended to make that contract conform more clearly to the “ original understanding” of the parties, the defendant agreed to purchase and pay for the same stock. In an action for.breach of this agreeement, the defense to which was a want of consideration, held; that the second contract must be regarded as supplemental to the first one, rather than explanatory of it, so far as the defendant’s agreement to purchase is concerned.</p> <p>Also; no consideration is shown for the defendant’s promise, for breach of which the suit is brought, beyond the agreement of the plaintiff to perform obligations existing under the first contract.</p>

Motion and exceptions by defendant. Action on promissory note against the defendant as surviving partner of tbe firm T. J. Southard & Son. After the testimony had been adduced, the presiding justice ordered the jury to return a verdict for the plaintiffs, with four per cent interest after maturity of the note.

On report. Assumpsit on two promissory notes to wbicb the defendant, as maker, pleaded a composition agreement under insolvency proceedings as a bar. The case appears in the opinion. Held: that the plaintiffs were precluded from saying that they had received it on account of the original debt and that it must be taken to have been paid as a composition under the deed.

On report. Real action against Charles W. Mullen, James Rice, Millard E. Mudgett, Clarence S. Lunt and Joseph P. Bass to recover lots 4 and 16 of wild land, each containing two hundred acres, in Township No. 3, Indian Purchase, Penobscot County. The case appears in the opinion. Defendants’ claim that title is in the State: 1. It must be proven that the land to be forfeited was “not taxable by the assessors of any town or organized plantation.” R. S., 1840, c. 14, §§ 1-10. 2.

On report. Real action against Charles W. Mullen, James Rice, Millard E. Mudgett, Clarence S. Lunt and Joseph P. Bass, to recover lot 5, in Township Three, and lot 82, in Township Four, Indian Purchase, Penobscot county, and the mesne profits. The case appears in the opinion. The only authority to convey Lot 82 was expressly limited to lots to be distributed by draft in such manner as the Governor and Council might direct.

On report. Real action against Wilson Crosby and others, devisees of William C. Crosby, deceased, and Clara W. Gibson and others, devisees of Thomas N. Egery, deceased, to recover lot 29, Township 2, range 7, West from the East line of the State, Penobscot county, and containing 200 acres.

Assumpsit by plaintiffs as co-tenants in common and undivided against the defendant co-tenant, Harriet Griswold, devisee of Wm. H. McCrillis, deceased, to recover their share of stumpage money collected by the defendant from the common land. The premises are wild land, being the North half of T. 2, P. 8, W. E. L. S. in Penobscot county. Action is at common law. Richardson v. Richardson, 73 Maine, 405 ; Hudson v. Qoe, 79 Maine, 83. Levy by State against Redington.

On report. Petitions for habeas corpus and certified by the presiding justice to the chief justice for immediate decision.

Agreed statement. Trover for 3010 lbs. of hay, valued at §12.04; action brought in Bangor Municipal Court and reported to the law court by the presiding justice on an agreed statement of facts. The material portions of the agreed statement are as follows: The plaintiff claimed title to the hay in question by virtue of a chattel mortgage given to him by Frank W. Oakes of Brewer, on August 18, 1898, for a valuable consideration, duly executed and properly recorded on that day.

On motion and exceptions by claimant. Action by surety on a probate bond against a co-surety for contribution, begun by trustee process. The issue was between the plaintiff and the claimant, wife of! the defendant. The case appears in the opinion.

On exceptions by defendant. The defendant was indicted and tried in this court, in Kennebec county, for the murder of Mamie Small. The only issue raised in defense was the defendant’s insanity. In support of this defense, certain instructions to the jury were requested. They are found in the opinion of the court. Exceptions were also taken to instructions actually given. The case appears in the opinion.

On exceptions by plaintiff. Assumpsit on account annexed to recover for plaintiff’s services • as road commissioner, for use of bis horse, harness, wagon and sleigb, also for other items furnished by him. The case was tried in the Superior Court, for Cumberland county, and brought to this court on the plaintiff’s exceptions to a non-suit ordered there.

<p> Insurance. Arbitration. Pleading. Condition. </p> <p>A stipulation in a contract providing for the settlement by arbitration of all controversies and disputes that might subsequently arise between the parties is invalid, because its effect would be to oust the courts of their jurisdiction; but if the arbitration ageeement relates only to the determination of some preliminary matter, such as the amount of damages to be recovered and does not apply to the whole question of liability, such provision, when a reasonable and definite method is provided for- choosing the arbitrators, is valid and enforceable.</p> <p>A provision of this kind in a contract may make such determination by arbitration a condition precedent to the maintenance of an action upon the contract, or it may be simply a collateral and independent agreement which will not prevent the maintenance of a suit upon the principal contract, but which would be the basis of a separate action in case of its breach. This depends upon the construction of the arbitration provision. When the contract provides that no action upon it shall be maintained until after such an award, then the award is a condition precedent to the right of action.</p> <p>A policy of fire insurance contained this provision: — “In case of loss under this policy and the failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other and the third to be selected by the two so chosen; the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference, unless waived by the parties, shall be a condition precedent to any right of action in law or equity to recover for such loss; but no person shall be chosen to act as referee, against the objection of either party, who has acted in a like capacity within four months.”</p> <p>The property covered by the insurance policy having been destroyed by fire, the plaintiff and the defendant company selected arbitrators in the manner provided in the arbitration clause above quoted. These arbitrators fixed a time and place for hearing, gave notice to the parties, heard them together with their counsel and witnesses, and made an award in writing, fixing the amount of damage sustained by the insured by reason of the destruction by fire of the property covered in the policy.</p> <p>In this action upon the policy, the plaintiff sought to recover damages irrespective of the amount awarded by the arbitrators upon the ground that the award was invalid and void by reason of the misconduct of the referees during and prior to tie hearing before them. The declaration contained no averment to the effect that the alleged failure of the arbitration was through any fault of the defendant.</p> <p>Held; that the determination by arbitration of the amonnt of loss having been specially made by the parties a condition precedent to any right of action, it was incumbent upon the plaintiff to prove performance or a valid excuse for non-performance. That if the award of the arbitrators was invalid as claimed by the plaintiff, for reasons set out in the declaration, it was the duty of the plaintiff to seek a new determination of the amount of his loss in the manner provided by the contract. That the action can only be maintained to recover the amount determined upon by the arbitrators; or, if their determination and award were invalid, then the plaintiff must allege and prove, either, that the amount of the plaintiff’s loss has been determined by other arbitrators chosen in the manner stipulated by the parties, or some sufficient reason why such a determination has become unnecessary or impossible.</p>

On exceptions by plaintiff. Assumpsit to recover thirteen weeks sick benefits, from January 4, to April 5, 1898, at four dollars per week. The declaration contained two counts, one on account annexed to the writ, and second a special count in assumpsit. The case was first tried in the Municipal Court for the City of Lewiston. It was then appealed by the plaintiff to this court, for Androscoggin county, and was there tried by jury at the January term, 1900.

On exceptions by defendant. Action to enforce tbe statutory or double liability of tbe defendant, as a non-resident stockholder in tbe Bank of New England, a corporation organized under the laws of Minnesota. The case, argued on demurrer, is stated in tbe opinion.

<p>On exceptions by claimant.</p> <p>Search warrant under R. S., c. 125, §§ 11 and 12, against Soucie’s hotel, in the city of Brewer, for gambling implements. A nickel-in-tbe-slot machine was seized and claimed by its owner, one Charles W. Hayes, who prayed for its return. The judge of that court ruled that the machine was subject to condemnation and ordered it to be destroyed by burning. The claimant excepted, and under Stat. 1895, c. 211, § 6, his exceptions were certified to this court.</p>

<p>Insolvency. Discharge. Pleading. B. 8., c. 70, § 49.</p> <p>1. A discharge in insolvency may be pleaded in bar by a special plea in bar as well as by simple averment with copy of discharge as provided in R. S., c. 70, § 49.</p> <p>2. When thus pleaded by special plea in bar the plea must conform in all particulars to the rules governing special pleas in bar.</p> <p>3. Special pleas in bar must state facts, not conclusions of law, so that a traverse of the statement will present an issue for the jury.</p> <p>4. A statement that the debt sued for “ is not a debt which is by said chapter 70, R. S., excepted from the operation of the defendant’s discharge in insolvency,” is a statement of a conclusion of law. A traverse of that statement does not raise an issue of fact for a jury.</p> <p>5. A demurrer that is general as well as special will reach a fault in pleading not pointed out by the special demurrer, if such fault is amenable to a general demurrer.</p>

On exceptions by legatee. Appeal from probate court, Sagadahoc county, heard in this court below upon the allowance of a claim against the estate of Mary E. Ayer. The bill of exceptions state: Mary E. Ayer was a widow. Her estate consisted of chattels worth ten dollars and a house and lot which her executor sold under probate license for one thousand dollars.

Agreed statement. Assumpsit to enforce a lien under K,. S., c. 91, § 38, for plaintiff’s services on certain logs that were attached on the writ. The ease appeal’s in the opinion. The court can render judgment against the logs, this being a proceeding in rem and no judgment in personam being claimed, without notice to the principal defendants or their appearance.

Exceptions by defendant. Assumpsit against the defendants as indorsers and guarantors of a promissory note made by one Dippert February 21, 1888, at Crawford, Nebraska, payable to John H. Barron and Williams Souther, the defendants, or tbeir order, for $744 in three years from date.

<p>Exceptions by defendant.</p> <p>This was an action brought by Daniel G. Wing, Receiver of the Globe National Bank of Boston, against Charles Martel to recover the amount of twelve promissory notes, given by the defendant to one Charles E. Maxwell, of Boston, and by him discounted at the Globe Bank. Tbe bank, between tbe dates of discount of tbe several notes and their maturity became insolvent and Daniel G. Wing, the plaintiff in this action, was appointed receiver.</p> <p>The plea was the general issue with a brief statement “ that the notes declared upon were given for intoxicating liquors sold in violation of the law, and for liquor purchased outside of the state of Maine and intended to be sold within the state contrary to law, and that the said Globe National Bank had notice of the illegality of the consideration.”</p> <p>At the conclusion of the testimony, the presiding justice directed the jury to find a verdict for the plaintiff. To this instruction the defendant excepted.</p>

Exceptions by plaintiff. Trover for a crop of potatoes claimed by defendants under a mortgage. Tbe material facts appear in tbe opinión.

<p> Will. Perpetuities. Trusts. </p> <p>1. The law permits the vesting of an estate or interest, and also the power of alienation, to be postponed for the period of a life or lives in being, and twenty-one years and nine months thereafter. If postponed for a longer period, it is obnoxious to the rule against perpetuities, and the devise or grant is void.</p> <p>2. Whenever lives in being do not form any part of the time of postponement, the only period under the rule against perpetuities is twenty-one years absolute.</p> <p>3. The limitation, in order to be valid, must be so made that the estate or interest not only may, but must necessarily, vest within the prescribed period.</p> <p>i. The rule concerns itself only with the vesting, and not with the termination of estates.</p> <p>5. The rule does not apply to vested estates or interests, but only to remote future and contingent estates and interests.</p> <p>6. A testator by his will devised to trustees all of his estate, except debts due him from his son which he forgave. The trustees were given full power to manage and control the estate, to sell the whole or any part thereof. The receipts and profits of the real estate, and the proceeds of the sales of land, together with all personal and mixed estate, and the proceeds thereof were to be invested and re-invested by the trustees, and allowed to accumulate for a period of thirty years from the testator’s death. During that period, the trustees were authorized in their discretion to pay from the principal or income of the fund such sums as they deemed expedient for the education and maintenance of the testator’s two grandchildren, and for the support and maintenance of his son and his son’s wife, and for the education and maintenance of the issue of either or both of the grandchildren. The will then provided as follows : “At the expiration of said thirty years the whole of said fund or estate, in whatever form said fund or estate shall then be, shall become the property of my said two grandchildren in equal shares to have and to hold to them and their heirs and assigns forever, or if either of said grandchildren is then deceased leaving no issue of his or her body living at 'the time of his or her decease, the survivor is to take the whole of said fund or estate, or if either of said grandchildren is then deceased leaving issue of his or her body living at the time of his or her decease, such issue take the parent’s one-half, or if both of said grandchildren are then deceased both leaving issue of his or her body living at the time of his or her decease, such issue take the parent’s half, or if both of said grandchildren are then deceased only one of them leaving issue of his or her body living at the time of his or her decease, such issue take the whole of said estate and fund, or if both of said grandchildren are then deceased neither of them leaving issue of his or her body living at the time of his or her decease, in that event the whole of said estate and fund is to become the property of my son, Erank W. Lincoln, to have and to hold to him and his heirs and assigns forever. It being my intention moreover that in event that said estate and fund is to become the property of said Erank W. in manner above stated, it is to be held by my said trustees for thirty years as afore provided.”</p> <p>7. The court holds that the will under consideration provides for an accumulation of the trust fund for the gross period of thirty years, without reference to any life or lives in being, and that this result is not changed by the discretionary authority in the trustees to expend money for the education, support and maintenance of various beneficiaries.</p> <p>8. As there is no intervening limitation, the estate must have vested, if at all, at the death of the testator.</p> <p>9. The estate did not so vest, and could not vest until the termination of thirty years, and that until then no cestui que trust has any interest.</p> <p>10. Not only is the enjoyment of the fund postponed, but also any interest in it is postponed beyond the period of twenty-one years, and even then the postponed interest is contingent.</p> <p>11. Therefore this attempted trust offends the rule against perpetuities in that it postpones the vesting of the equitable interest of the cestui beyond the period limited. The whole trust is void.</p> <p>12. The trust being void, nothing valid is left in the will except the provision relating to debts due from the testator’s son. All the estate which was devised to trustees must be treated and administered as intestate property.</p>

On report. Assumpsit for money had and received against the defendant as administrator of Thomas K.. Heatb, deceased. The case was reported to this court by the presiding justice of the Superior Court, Cumberland county.

On report. Assumpsit on an order drawn by Charles E. Hurd upon tbe defendant, payable to tbe order of Harry Carter, and by him indorsed to the plaintiff. In defense it was contended that tbe order was never delivered or intended to be delivered, but was stolen from the drawer by Carter.

Agreed statement. Action to recover damages, under R. S., c. 27, § 49, for injury to the plaintiff’s means of support by reason of the intoxication of her husband, resulting in his death, caused by the defendant by giving or selling to him intoxicating liquors. The case is stated in the opinion.

<p>Article VI, § 3, of the Constitution of Maine does not require the Justices to give their opinion upon all questions that may be ashed of them by either of the branches of goverment named. They are not obliged, and it would not be proper for them, to answer questions of policy or expediency, or any questions other than “important questions of law.”</p> <p>It is equally essential, in order that the Justices be required to give their opinion, that the questions be submitted upon a solemn occasion; and, however important may be the questions of law submitted, if it clearly appears to the Justices that such an occasion does not exist, it is their duty to decline to give their opinion in answer to such questions.</p>