Volume 96 — Maine Reports

On report. Bill in equity asking for a discovery and accounting, and heard on bill, answer which included a demurrer, and an agreed statement of facts, which are as follows:— The defendant’s dam is across the Aroostook river about one mile from thé village of Caribou, At tlio west end of the dam tlie defendant lias two water wheels connected by shafting with an electric generator and power pump located in its pumping station, which is also on or near the west end of said dam.

<p>Exceptions by plaintiff.</p> <p>Action for libel. Verdict for defendants.</p>

<p> Trespass. Pleading. Action. Election. Damages. </p> <p>Where several persons jointly commit a tort, the person injured has his election to sue all or any of the joint tort-feasors, and, in an action against one or more may recover the damages caused by all jointly.</p> <p>Persons who act separately and independently, each causing a separate and distinct injury, cannot be sued jointly, even though the injuries may have been precisely similar in character and inflicted at the same moment. Yet if such persons acting independently, by their several acts directly contribute to produce a single injury, each being sufficient to have caused the whole, and it is impossible to distinguish the portions of injury caused by each, they are then joint tort-feasors within the rule, and may be sued either jointly or severally at the election of the plaintiff, and in such an action against one or more the whole damage may be recovered.</p> <p>The defendants, as assessors of the town of Milo for 1898, assessed a poll tax against the plaintiff as an inhabitant of that town; On June 16, 1899, the plaintiff was arrested for non-payment of the tax by the collector upon a warrant issued by the defendants and taken to the jail in Bangor. The plaintiff claimed that he was not an inhabitant of Milo that year, that consequently he was not liable to be assessed for a poll-tax therein, and that his arrest was illegal. Before his. commitment to jail, in order to prevent such commitment and relieve himself from arrest, he paid the collector the tax and the costs of his arrest. In an action of trespass for the illegal arrest, the jury found for the plaintiff and the only question presented by the defendants’ exceptions is as to an instruction upon the question of damages.</p> <p>A poll tax had also been assessed against the plaintiff for 1897 by the assessors of Milo, but not these defendants, and .for the non-payment of it the plaintiff was arrested simultaneously by the same collector of the tax of 1898. The plaintiff paid this tax to prevent his commitment to jail at the same time he paid the tax of 1898.</p> <p>It was claimed, in defense, that the plaintiff having been arrested simultaneously by the same collector upon both warrants, the damages should be divided, and the defendants were liable for a portion thereof. JETeld; that the plaintiff, having been illegally arrested upon the -warrant issued by the defendants, sustained no separate, and, in fact, no additional injury because of his illegal arrest at the same moment by the same person upon another tax warrant issued by other assessors, and continued concurrently with the other arrest, except as to the amount of money which he was obliged to pay to free himself from arrest upon the 1897 tax warrant, and this sum, which appears to have been only the amount of the tax, was expressly excluded by the instruction to the jury, as an element of damage.</p>

Exceptions by defendant. Case for injuries received by plaintiff while in tbe employ of tlie defendant at their mill at Rumford falls. The opinion states the case.

<p> Attachment. Exemptions. Vrat. Ben. Organizations. Hint. 1897, c. 830. </p> <p>The statute of 1897, c. 820, $ 14, relating to Fraterna) Beneficiary Organizations, provides that: “The money or other benefit, charity, relief, or aid to be paid, provided or rendered by any corporation, association or society, authorized to do business under this act, and as herein provided, shall not be liable to attachment by trustee, or other process, and shall not be seized, taken or appropriated, or applied by any legal or equitable process, nor operation by law, to pay any debt or liability of a certificate holder, or any beneficiary thereof.” Held:—</p> <p>That under this statute, money received by a beneficiary from such organization does not continue to be exempt any longer from attachment, or seizure upon execution, after it has come into his possession.</p> <p>The statute gives protection and exemption only to money to be paid, and not to money paid and in a debtor’s possession.</p> <p>The framers of this statute may well be presumed, to have bad good rea son to know the probable construction of the statute, since they followed the language of another statute similar in effect that had long before been passed upon by this court, and in which it denied a debtor’s claim of exemption of pension money after the money had actually gone into the possession of the pensioner.</p>

<p>Exceptions by defendant.</p> <p>Assumpsit on account, annexed to recover for professional services rendered by an attorney at law. The action was brought by the executrix of his will. The ease appears in the opinion.</p>

Exceptions by plaintiff. Trover against a minor for conversion of shoes, taken by the defendant to sell on commission. The ease appears in the opinion.

On report. ’Pliis was a creditor’s bill in equity under R. S., c. 77, § 0, par. IV, against the Monson Maine Slate Company, Otis Martin, deputy sheriff of Piscataquis county, and the First National Bank of Guilford, to enforce the plaintiff’s right, as a judgment creditor, to certain bonds issued by the Slate Company.

On report. Real action against Elizabeth C. Horrigan, Catherine Dugan and Dennis .1. Callahan, heirs of Ann Haley, to recover all of certain premises in the city of Lewiston. The case is stated in the opinion.

<p> InsolveJicy. Inchoate Preferences. Proof of Debt. Ji. S.,c. 70, 30, S3. </p> <p>1. A mortgage given to secure a prior debt, at a time when the debtor was in fact insolvent and the creditor had reason to so believe, does not constitute a preference under the Insolvency Act, It. S., c. 70, § 29, unless it was recorded at least three months prior to commencement of insolvency proceedings.</p> <p>2. Such mortgage, not thus recorded, being invalid as against the assignee, the creditor is not obliged to cancel it upon the record or otherwise, before proving his debt in the court of insolvency.</p> <p>3. The fact that the assignee brought a bill in equity to procure a cancellation of the mortgage and obtained a decree therefor, does not make such cancellation a condition precedent to proving the creditor’s claim. If the assignee desires such -decree enforced, he should proceed in the equity suit.</p>

<p> Deed. License. Trees. Trover. </p> <p>A grantor in a deed reserved “all hard and soft wood growth, with rig-lit of entry upon the premises at any and all times for a period of five years from the date of the deed with men and teams for the purpose of cutting -,u\d removing the same.”</p> <p>Within the five years, the plaintiff, who was the. purchaser of the rights reserved by the grantor, out all of the wood reserved, but some of it had not been removed before the end of the period.</p> <p>Held; that the wood remained a pari of the real estate until severed from the soil ; that as soon as it was severed, within the period limited, it became personal property, that the title then vested in the plaintiff, and that the plaintiff did not lose his title to the wood cut, hut not removed, by failure to remove it within the five year period.</p> <p>The defendant- who was owner of the soil, forbade the plaintiff’s removing the wood from the land. Held; that under the circumstances, this was such an exercise of dominion over the wood as warranted the presiding justice below, before whom the case was tried without a jury, in finding a conversion by the defendant-.</p>

On Report. Bill of interpleader to determine the ownership of a savings bank deposit. The facts were agreed and are stated in the opiniom

<p> Practice. Continuance. New Trial. </p> <p>Before the trial of a cause the defendant’s counsel presented to the court a written motion to have the action dismissed, alleging that anew declara-* t-ion, setting out a different cause of action, had been substituted for that originally filed with the writ, without the knowledge or permission of the court. It appeared from the exceptions that the defendant “offered to support the same by evidence and asked for a postponement of the trial for that purpose.” The presiding judge overruled the motion and required the defendant to proceed to trial. It. did not appear, however, that the defendant offered, or was prepared, to present any evidence at that time, but his motion was for a “postponement of the. trial for that purpose.”</p> <p>Held; that the ruling of the presiding justice denying this motion for a postponement, was clearly a matter of discretion, and in the absence of anything tending to show that this discretion was not properly exercised the ruling was not subject to exceptions.</p> <p>The conclusion is irresistible that the defendant knew before the trial what, the witness Orff, whose evidence was alleged to have been newly-discovered would testify to or by the exercise of due diligence might have known it. Furthermore, her testimony was for the most part essentially cumulative, and after a careful reading of all the evidence in the case it does not seem probable that her testimony would have changed the result. Under such circumstances a new trial should not be granted.</p> <p>Testimony of witnesses, whose evidence is alleged to have been newly-discovered, irregularly taken cannot be considered by the court.</p> <p>A motion for a now trial on the ground of newly-discovered evidence will not be entertained unless accompanied by a .statement under oath comprising the names of the witnesses whose testimony is desired and the particular facts they are expected to prove, with the grounds of such expectation. Evidence taken without such reasonable notice, and information to the opposing party, will not be received in support of such a motion.</p>

<p> Sale. Rescission. 'lime. Demurrage. Recoupment,. </p> <p>The plaintiff bargained with the defendant for a quantity of hay and straw, which was subsequently shipped to him according to order. He paid the freight, and, without examination of the hay, caused one load of it to be removed from the car to his barn. After examination, the same day, he became satisfied that the hay was not of so good quality as the contract called for, and he so notified the defendant immediately, adding, “The car is on the track at your risk.” Six days later the plaintiff returned the the load of hay taken to the car, which in the meantime had become subject to demurrage. The plaintiff has sued to recover the freight paid, and the defendant has filed an account in set-off for the price of the hay and straw.</p> <p>Held; that if the hay was not as good as the contract called for, the plaintiff might have declined to accept the hay; and that after he received a part of the hay, under the circumstances, he had a right to rescind the contract; that to rescind the contract he must restore the hay within a reasonable time; that the delay in this case was unreasonable; and, hence, that the attempted rescission was ineffectual. It follows that the title to the hay and straw remained in the plaintiff, and he cannot recover back the. freight paid.</p> <p>Held; that the defendant may recover on his account in set-off. But as it is evident that the hay received was of a poorer quality than that which the defendant agreed to deliver, the plaintiff may recoup. The defendant is entitled to recover only the actual value of the hay.</p>

On report. Action on the ease brought to recover damages claimed to bave been sustained by plaintiff by reason of the building and maintenance, by the defendant company, of a trestle for its railroad across the channel leading to a tide-water cove in Passamaquoddy Bay, whereby access was cut off from plaintiff's store and mill to the high seas.

Motion by defendants for new trial. Action on the case under 11. S., c. 27, § 49, the civil damage act. The defendants were owners in common of a building in Lisbon Falls. Plaintiff claimed that one of the defendants sold liquor to her husband, and that lie, while intoxicated from drinking it, inflicted injuries upon tier person, and for a long time failed to provide her with means of support.

<p>On report.</p> <p>Assumpsit on a promissory note set out in the opinion, which states the case.</p>

<p>On report.</p> <p>Assumpsit on account annexed under R. S., c. 94, § 10, for rent of the booms and boom privileges of tbe plaintiff corporation at Rum-ford Falls on the Androscoggin river. There were items of 12 1 -2 per cent for depreciation, and also items of interest.</p> <p>Tbe contract under which defendants bad occupied and operated the booms was under seal. Tlie case was sent to an auditor, at the bearing before whom defendant did not appear. The report found $34,140.30 in favor of the plaintiff The axiditor also found the net cost of the boom works was $29,300. Defendant filed exceptions to the report in which was incorporated a motion to set it aside. In this court below, the general issue was plead by defendant with a brief statement containing several items, among which was one setting out in effect that the matters referred to in the writ were embraced in a sealed instrument in which no liquidated sum was stated as rental; and that, therefore, plaintiff should be confined to his action on tire covenant for damages to be determined according to the terms of the agreement, the remedy in assumpsit being misconceived.</p> <p>There was also an item in the brief statement setting out in effect that said sealed instrument contained no provision for payment of anything to plaintiff for depreciation of said boom, but that ten per cent on the net cost of said boom including repairs, etc., was specified in said contract as the only pay the plaintiff was to receive as liquidated and stated rental or any rental of said boom.</p> <p>Incorporated with the brief statement was a motion for a non-suit and one to set aside the auditor’s report.</p> <p>■ Those portions of the contract concerning the construction of which there was any controversy are set forth in the opinion.</p> <p>Defendant had no right of exception to the auditor’s report. By 11. S., c. 82, § 7, an auditor’s report may be re-committed, and the auditor may be discharged and another appointed. The parties to the suit have no power in the premises. Whatever action is taken under this statute must be ordered by the presiding justice within his discretion.</p> <p>In the present case the defendant is not a party aggrieved under 11. S., c. 77, § 51, because he voluntarily and unconditionally suffered a default before the auditor, and cannot, therefore, take exceptions to the auditor’s action or to the ruling of the presiding justice ■thereon. Woodman v. Valentine, 22 Maine, 401; Patten v. Starrett, 20 Maine, 145, 147.</p> <p>The commission under which the auditor acted follows the language of B. S., c. 82, § 69, and he was not called upon to state matters of law or evidence in liis report. Jones v. Stevens, 5 Metcalf, 373 ; Newell v. Chesley, 122 Mass. 522. The action was properly brought in assumpsit under R. S., c. 94, § 10.</p> <p>The auditor’s report makes out a prima facie case for the plaintiff which must be overcome by evidence produced by the defendant. The defendant has failed to do this and the auditor’s report should stand.</p> <p>' The action must be dismissed. It is assumpsit when it should have been covenant. The amount was not liquidated. Counsel cited: 1 Chitty on Pleading, 16th Am. Ed. 13, 116, 121, 129, 132. Ilinkley v. Fowler, 15 Maine, 285; Uwnn v. A. E. Motor Co., 92 Maine, 165; Manning v. Perkins, 86 Maine, 419; Pope v. The Machias Water Power .Co., 52 Maine, 535.</p> <p>Plaintiff should be non-suited. Webber v. School District, 45 Maine, 299; Whittemore v. Merrill, 87 Maine, 456.</p> <p>Motion for non-suit may be made after defendant lias introduced evidence. White v. Bradley, 66 Maine, 254 ; Cooper v." Waldron, 50 Maine, 80, 82.</p> <p>The plaintiff has blended in the same count covenant and assumpsit and it would be erroneous to give judgment for plaintiff thereon. Gould’s Pleading, pp. 214, 215, 219, 289, 290; Chitty on Pleading, pp. 199, 222, 315, 353*, 469*, 475. Richardson v. Welcome, 6 Cush., 331 ; Moore v. Knowles, 65 Maine, 497.</p> <p>When the plea sets up misconception, abatement is unusual and unnecessary. Benthall v. Hildreth, 2 Gray, 288 ; Franklin Savings Institution v. Reid, 125 Mass. 365, 367.</p> <p>The points of a brief statement are equivalent to one or more special pleas in bar. Potter v. Titcomb, 16 Maine, 425 ; Moorew Knowles, 65 Maine, 497.</p> <p>Any charge for depreciation is excluded by the terms of the covenant into which the parties entered relative to use of boom by defendant.</p> <p>Even if the action were sustainable, the plaintiff could only recover- — not ten per cent of the cost of booms and piers, etc., which he has sued for, — but oidy such proportion of ten per cent of such cost as the covenant provides defendant shall pay.</p> <p>Supposing, for the sake of this point, that the action could be maintained, plaintiff cannot recover on the merits because he has failed to show in his evidence the net cost of booms and piers yearly and the proportion of ten per cent on cost of booms and piers that defendant should pay, and has failed to show that the same has ever been determined.</p>

Exceptions by appellees. This was a complaint under Stat. 1893, c. 268, § 3, as amended by Stat. 1899, e. 119, § 1, on appeal from the municipal officers of the town of Milbridge, who, it was alleged, refused and neglected to approve; the route and location of tlxe appellant’s street railroad in the streets and highways of tlie town of Milbridge in the county of Washington for more than thirty days after the railroad company’s application to them therefor was presented.

Oil report. .Forcible entry and detainer brought to recover possession of a mill-site adjacent to the dam of the plaintiff company on the Penobscot river at Milford. The case came to this court below on appeal from the Old Town Municipal Court.

Exceptions by respondent. This case came up from the Superior Court of Cumberland county. A.pril 17, 1901, deputy sheriffs of Cumberland County twice searched the premises on Commercial street in Portland known as the “Old Dyer House,” for intoxicating liquors intended for illegal sale, as empowered by the latter portion of 11. S., c. 27, § 39, intending to procure a warrant later.

<p>On report.</p> <p>Assumpsit for services as harbor master rendered the city of Portland. The case appears in the opinion.</p>

On report. Action on tbe ease against tlie city of Kookland to recover damages for injuries, which tbe plaintiff claims be received while lie was at work on a derrick, within tlie city limits and employed under tbe road commissioner in repairing tlie highway.

Case for negligence under stat. of 1891, c. 124, for causing tlie death of one Albion Ward upon tlie defendant’s station grounds at Freeport village. The jury returned a verdict for $2,031.81. The facts appear fully in the opinion. Mr. Ward had a right to go down into that roadway if lie saw fit to do so, but whether it was a prudent thing to do, whether he was in the exercise of due care in so doing, is another question.

<p> Limitations. Stockholders’ Liability. Jleceiver. Foreign Judgment. Jl. S., c. 81, l 82. </p> <p>Í. The cause of action “on any contract or liability expressed or implied” (R. S., c. 81, l 82) does not accrue the moment the contract is made or the ' liability is incurred, but only when there is a breach of duty.</p> <p>2. The statutory duty of a stockholder in a Minnesota corporation to contribute to the payment of the debts of the corporation does not arise at the time of the insolvency of the corporation, nor until it has been judicially determined that a resort to the liability of the stockholders is necessary ' and authority is given to enforce it. There is no breach of duty by the stockholders, and the cause of action upon such liability does not accrue until then.</p> <p>3. Where a Minnesota corporation was adjudged insolvent May 20, 1893,, but the fact and amount of the deficiency of-the corporate assets to pay corporate debts were not adjudicated until Nov. 5, 1897, when a special receiver was appointed to collect the amount of such deficit from the stockholders, the duty of the stockholders to make contribution did not arise till the latter date, and an action begun within six years from that date, Nov. 3, 1897, is not barred by our statute of limitations.</p>

<p>Exceptions by defendant.</p> <p>Defendant was indicted and tried in the Superior court of Kennebee county for obstructing an officer in the service of criminal prov cess. There was a verdict of guilty-by the jury.-</p> <p>Defendant moved in arrest of judgment and took exceptions to the overruling of his motion in the Superior court.</p> <p>The case is stated in the opinion.</p>

<p> Will. Trust. Separated Family. Costs. </p> <p>A testatrix devised certain property to a trustee to lrold during the natural life of her nephew, J. 8., for the benefit of the said J. S., “ so that at the discretion of the trustee the net income, and where circumstances should demand, the principal might be applied to the comfort and support of the said ,T. 8., and his family, and to relieve them from suffering and distress.” She. further provided in case of objection to the trustee by J. 8., or her refusal to act, other trustees should be appointed “to carry out the provisions of such trust for the benefit of said J. S. and his family,” with a devise over after the death of J. S., to his issue then living, and in default of such issue to another nephew. By other clauses of her will, specific and substantial devises and bequests were made to J. 8., without mention of his family. The family of J. S., at the time of the making of the will consisted of his wife and daughter, but before the death of the testatrix they separated from him, and have not since lived or maintained family relations with him.</p> <p>Upon a bill brought by the trustee to determine the construction of the will, and for directions as to the manner of executing the trust, held;</p> <p>That the whole net income of the trust estate is not payable to J. 8:—</p> <p>That the wife and. daughter are independent beneficiaries under the will, and that so much of the income as the trustee in his discretion, exercised in good faith', may determine, is either payable'to the wife, or to be otherwise applied by him to the comfort and support of the wife and daughter:—</p> <p>That their right to have said income so applied is not affected by their separation from J. S. :— . ■</p> <p>That there being no evidence of the abuse by the trustee of the discretion given him, the prayer of the wife and daughter to have the income of the trust estate apportioned and a specific part paid to them, should be denied.</p>

<p>Will. Sanity. Evidence. Undue Influence. 11. S., c. 103, § Í4-</p> <p>In order to establish a will it is not necessary that any of the subscribing witnesses should testify to the sanity of the testator. It frequently happens that the most satisfactory evidence of a person’s state of mind is found in the mind’s own action, as shown by his conversation, claims, declarations, and acts.</p> <p>On the question of undue influence, the fact that the testatrix’s nephew, who drew the will, was named an executor, and received a small legacy, is entitled to little weight, where the legacy is the same as that bequeathed . to all her other nephews and nieces, and there is no evidence that he unjustly used the confidence reposed in him to influence or morally coerce the testatrix, but there is an entire absence of those suspicious circumstances which are usually found where one seeks to impose one’s will upon another and overpower his mind and will, so that he is no longer left free to act intelligently and understandingly.</p>

<p> Will. Intention. Equitable Fee-Simple Conditional. Trust. </p> <p>A testatrix bequeathed and devised her estate to her daughter, provided that her daughter died leaving issue, or did not die before reaching the age of twenty-one years. There was a devise over upon the happening of such contingency, unless the estate should have to be disposed of under the fourth clause^ of the will. By that clause the executrix was ordered and directed to apply all, or whatever was necessary of the rents, profits, and income of the estate to the support and education of the daughter, and should they prove insufficient, to sell the corpus of the estate and apply the proceeds to the same purpose.</p> <p>Upon a bill of interpleader to determine the construction of the will:—</p> <p>Held; That upon the death of the testatrix an equitable fee-simple conditional passed to and vested in the daughter, subject to be devested on her dying under twenty-one years of age, and without issue; which condition was itself subject to the condition that the estate had not already been disposed of for her maintenance and education, as provided in the fourth clause of the will.</p> <p>The daughter died without leaving issue, and before attaining the age of twenty-one years.</p> <p>Held; that the trust created by the fourth clause of the will terminated with the death of the cestui que trust,:</p> <p>That after the death of the daughter her guardian could not convey the estate:</p> <p>That the court will not determine in this case the validity of such sales, if any, made by the guardian in the lifetime of his ward and while there was no one qualified to act as trustee, the persons claiming under such sales not being made parties to the bill.</p>

<p>Warrant. Lord’s Bay. Slat. 1901, o. 301. Jl. /?., c. 37, 40.</p> <p>A search and seizure warrant issued under It. S., c. 27, $ 40, on the Lord’s day, before the enactment of statutes 1901, o. 201, was not thereby rendered invalid.</p> <p>The act of the magistrate in issuing such a ^arrant under that section is ministerial and not judicial.</p>

Exceptions by defendant. ■ Writ of entry for the recovery of a parcel of land in Northeast Harbor on Mt. Desert Island, described as follows:— “Beginning at a large rock marked with a cross near the county road below house formerly of William Roberts; thence running west seventeen degrees south eleven rods; thence south a little eastwardly to a fir tree on the beach at the mouth of Northeast Harbor; thence eastwardly by the shore to a fir tree near the county road, spotted…

Exceptions by plaintiff. Trespass for'breaking and entering plaintiff’s close situated in Kennebunkport and described as follows: “bounded southerly by Beach Avenue, so-called; westerly by lot number twenty-one on the plan of property of the Kennebunkport Sea Shore company; northerly by Fort Lane, so-called; and easterly by lot number eighteen on said plan.” The writ alleged that defendant broke down, damaged and spoiled one hundred and fifty feet of fence and trellis work…

Motion and exceptions by defendants. Motion sustained. Case, for personal injuries. The facts appear in the opinion. Counsel contended, among other things, that the mere fact that the primary object of the presence upon the railway of the rock which caused the injury to plaintiff, was to sink the railway when shoved into the water, is not necessarily inconsistent with plaintiff’s contention that he had a right to step upon the rock in the course of his duty.

<p>Motion by defendant.</p> <p>Case for causing the death of Edwin Day upon a grade crossing of the street with the defendants’ railroad in North Berwick. The plaintiff had a verdict of $4000.</p> <p>The facts are fully stated in the opinion.</p> <p>The train ran at an enormous rate of speed, so that it attracted especial attention of all observers that day. Said train was run towards and over Junkin’s- crossing that day at the rate of sixty miles per hour. Junkin’s crossing being near the compact part of the town of North Berwick and without gates or flagman or automatic signals, the defendant therefore ran its train in violation of the public laws of Maine. Chap: 51, § 75, as amended by chap. 377 of statute of 1885.</p> <p>That was negligence on the part of defendant, per se. State y. B. M. B. B., 80 Maine, 431 and 432, and cases; Hooper v. B. & M. B. 81 Maine, 265, and cases.</p> <p>Though at common law it is not negligence per se to run a train at a rapid rate over a crossing, yet the speed at which a train is run over a crossing may be so great as to be negligence under the circumstances as a matter of fact, and this is a question for the jury on the facts of each case. The speed of a train at a crossing should not be so great as to render unavailing the warnings of its whistle or bell, and this caution is especially applicable when their sound is obstructed by wind, and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming traiii. 1st Am. & Eng. Ency. of Law, Yol. 4, pp. 932 and 933 ; Salter v. Utica 11. li. 88 N. Y. 42; Wild v. Hud. Iiiv. II. li. 29 N.' Y. 315; 14 Am. & Eng. It. It. Cases, 670; Pierce on Railroads, 355 ; Warner v. AT. Y. C. Ti. li. 44 N. Ah 465.</p> <p>Junkin’s crossing is in the village of North Berwick and near the compact part of the town, and crossing the Boston & Maine Railroad, Eastern division, at grade at an angle of forty degrees and thirty minutes. A.t this crossing, at the time of the accident, there were no gates, or flagman, or automatic signals. If defendant run trains faster than six miles per hour, this was in violation of R. S., c. 51, § 75, as amended bye. 377 of the statute of 1885. This was negligence per se. Hooper v. B. & M. li. li. 81 Maine, 266; Webb v. B. & K. Railroad, 57 Maine, 134; Whitney v. M. C. R. R. Co., 69 Maine, 210; Plummer v. East. R. R. Go., 73 Maine, 593 ; State v. B. A 31. R. R. 80 Maine, 431, and cases; Norton v. E. R. R. Go., 113 Mass. 366; Prescott v. Same., 113 Mass. 370; Pollock v. Same, 124 Mass. 158; Eaton v. Fitchburg R. R. Co., 129 Mass. 364.</p> <p>No bell or whistle was sounded on that engine as required by law prior to said trains crossing Junkin’s crossing.</p> <p>In not sounding bell and whistle the defendant violated c. 51, § 33, of R. 8!., and was therefore guilty of negligence per se.</p> <p>Webb v. P. R. R. R. Go., 57 Maine, 134; Whitney v. M. C. R. R. Co., 69 Maine, 210; Plummer v. E. R. R. Co., 73 Maine, 593 ; Com. v. B. & IE R. R. Co., 101 Mass. 202; Sonier v. B. & A. R. R. Co., 141 Mass. 10; Renvick v. N. V C. R. R. Co., 36 N. Y., 132; Smedis v. B. & R. B. R. R. Co., 88 N. Y. 13; Y. & C. U. R. R. Co. v. Loomis, 13 111. 548; 21 Am. & Eng. Ry. Rep. 532 ; Ernst v. Hud. R. R. R. Go., 32 Barb. 159; State v. B. & M. R. R. Co., 80 Maine, 431, and cases ; Hooper v. B. &• 3L R. R. 81 Maine, 265.</p> <p>AYliile it is a general rule that a person about to enter upon a railroad crossing must look and listen for approaching trains, yet the rule is not invariable, and will not be applied when the circumstances were such as to afford the plaintiff a reasonable excuse for not looking, and it may often be a question for the jury to determine whether the conduct of the plaintiff is in fact negligent. Buswell on Personal Injuries, pp. 245/246; Piper v. Chi. Mil. & St. P. R. R. 77 Wis. 247; Breekenjelder v. L. S. & M. S. R. R. 44 N. W. Rep. 957; Bare v. Penn. R. R. 135 Penn. 95; State v. Union R. R. 70 Md. 69; Kane v. N Y. N, H. & PI. R. R. 9 N. Y. Sup. N. E. Rep. 879.</p> <p>,In the case of JJuame v. Chi. & N. W. R. R. where the facts were similar to those stated above, except that it was a train instead of a hand-car, the court said, “That when a train had passed a crossing while the injured person was within a few rods of it and driving at a trot, and had passed on out of sight so as to induce the belief that it was to continue on its course in same direction, and there was no reason to suppose that it would immediately return, the general rule of contributory negligence in a person attempting to cross was held not applicable.” Duame v. C. & N. W. R. R. 92 Iowa, 227; Bus-well on Personal Injuries, p. 247.</p> <p>When there is evidence of negligence upon the part of the defendant, the law will not presume in the absence of proof, that the negligence of deceased contributed to his death. Lehigh V. R. R. v. Plall, 61 Penn. St. 361.</p> <p>The traveler has a right to assume and rely upon the discharge of' duty on the part of the corporation and its servants. Ernst v. H. R. R. R. 35 N. Y. 25; Shear. & Red. on Negligence, p. 31.</p> <p>The fact that a hand-car went by on the single track and that the customary warnings on the engine were not given, were equivalent to Mr. Day to an invitation to cross and an assurance of safety. Smith v. M. O. R. R. 87 Maine, 339, and cases supra.</p> <p>Whether a person injured at a railroad crossing was or not, at the time of the collision, in the exercise of due care, is a question of fact for the jury to determine from the evidence under proper instruction. Whether or not the railroad company is guilty of negligence in not employing a flagman at a certain crossing is a question of fact. Webb v. P. & K. R. R. 57 Maine, 117/ and cases.</p> <p>If it be admitted (which it is not) that this crossing is “near the compact part’ of the town,” manifestly the rate of speed of the train could have had little significance when and where, as here, neither the time of day, condition of weather and atmosphere, or physical surroundings could oppose any obstruction to a very full and liberal opportunity for good “eyes and ears” to have rendered their normal service, and seasonably have informed the traveler along the highway of an approaching train.</p> <p>For no omission of duty on the part of defendant can cancel his obligation to perform his own. To this conclusion authorities all concur. Even in those jurisdictions' — of which this is not one — where it is held that violation of a police ordinance, or statute, is per so negligence, it is also almost invariably held that when contributory negligence is also proved, or, here, when plaintiff fails to prove its absence, the violation of the ordinance or statute is not the proximate cause.</p> <p>See ITorn v. Rio Grande & Western Ry. Co., 19 Am. & Eng. It. It. cases, annotated (new series).</p> <p>The same follows relating to the giving of required statutory signals of approaching trains, or their omission, although defendant here strenuously contends that the giving of these signals was completely proved. Five witnesses — two of whom were women living near, and both wholly disconnected, in all ways, from defendant’s service, and thus entirely relieved from the standing smirch of such relation, and somewhat unwilling witnesses also — testify that they did hear the crossing-signal whistle sounded. That some other people did not hear it has little probative force under any circumstances, still less under these.</p> <p>It has been well settled for a long time, not only in this jurisdiction, but in widely separated jurisdictions, indeed, almost universally, in every court entitled to respect, — State, Federal, Canadian, English, Continental, others, — that he who approaches a grade crossing over the tracks of a steam railroad with which he is familiar (as deceased must have been, a stablekeeper living within one-half mile, cutting and hauling hay across it) is bound to heed the fact of the ever-present peril which confronts him whenever he attempts to cross. His duties are plain, explicit, and never to be omitted with impunity. Whatever the railroad corporation may do, or neglect to do, his duty is constant and abiding.</p> <p>Furthermore, if, as here, examination, comparison, and analysis of all the evidence renders it, if not morally certain, at least extremely probable that deceased did see the approaching train and miscalculated the chance of safety in the attempt to pass over ahead of it, neither he nor his representative can hold defendant responsible for the calamitous consequences of his hazardous speculation. It is fallacious to argue, and untenable alike in logic and in' law, that such a sufferer, deceived by his own estimate of chances, may recover. No modern court of repute lias ever held that a man might, at his option, face such visible danger and be excused because he erroneously estimated its proximity or degree. Merrigan v. 72. & A. 72. .72. 154 Mass. 189, 191; Mott v. Detroit G. II. & M. 72y. Co. (Mich. May 9, 1899), 15 Am. & Eng. It. It. Cases, 118; Chic. &c. 72. 72. Co. v. Houston, 95 U. S. 697, 702; No. Icic. 72. 72. Co. v. Freeman, 174 U. S. 379, 384.</p> <p>See also Central Ga. 72. 72. Co. v. Forshee, 27 So. Rep. 1006; Hop-bins v. So. By. Co., 110 Ga. 85; Baltimore & Ohio S. IF. By. Co. v. Keck, 57 N. E. Rep. 112; Chicago & E. I. 72. Co. v. McElhaney, 87 111. App. 420; Chicago & A. 72. 72. Co. v. Williams, 87 111. App. 511; Petmin v. St. Louis, I. M. & S. By. Co., 156 Mo. 552; Houston & T. C. B. Co. v. Knipstein, 55 S. W. Rep. 754; Getman v. D. L. & W. 72. Co., 162 N. Y. 21: Henavie v. N. Y. Central & H. 72. 72. Co., 60 N. Y. S. 752; and a long array of authorities cited in a note to Elliott on Railroads, § 1168.</p> <p>No legal doubt can exist that the burden of proof to establish the exercise of due care on the part of deceased is upon plaintiff, and that if the evidence is-equally consistent with the exercise of it or the want of it, she cannot prevail. Mwphy v. Deane, 101 Mass. 455; Dowd v. Chicopee, Id. 93; Dyer v. Fitchburg 72. 72. 170 Mass. 148; Walsh v. Boston &■ Maine 72. B. 171 Mass. 52. And while it is true this need not be shown affirmatively, but may be inferred from circumstances, yet if “there is only a partial disclosure of the facts, and'no evidence is offered showing the conduct of the party injured, in regard to matters specially requiring care on his part, the data for such an inference is not sufficient; it can only be warranted when circumstances are shown which will fairly indicate care, or exclude the idea of negligence on his part.” Mayo v. Boston & Maine B. B. 104 Mass. 137; Crafts v. Boston, 109 Mass. 519; Hinckley v. Cape Cod B. R. Co., 120 Mass. 257-262; Gerety v. B. B., 80 Pa. St. 274-277. Nor can this ever be left to conjecture (Barton v. Kirk, 157 Mass. 303), which is not allowed to supply the place of proof. Moore v. Boston & Albany B. B. Co., 159 Mass. 399. And this is as well settled in Maine as elsewhere. Besan v. Maine Centred B. R. 77 Maine, 85; Merrill v. No. Yarmouth, 78 Maine, 200 ■ Allen v. Maine Centred R. 77. Co., supra; Melóme v. Perkins, 92 Maine, 39.</p>

<p>On report.</p> <p>Assumpsit on the following account annexed: —</p> <p>“ International Paper Company,</p> <p>To Peter A. Fitzgerald, Dr.</p> <p>1900.</p> <p>March 29, To 375 hours! labor in pulp mill at Jay to Bridge, equal 87J days of 10 hours Dec. 24. each at $1.50-1.00 per day, $56.25.”</p> <p>The writ also contained an omnibus count accompanied by a specification that plaintiff would offer the same evidence in support thereof as would be offered in support of the account annexed, averring that they were for the same cause of action.</p> <p>The facts appear in the opinion,</p>

Exceptions by plaintiff. The presiding justice ordered the action to be dismissed for want of sufficient service of the writ upon the defendant.

<p> Pleading. Parties. Contracts. </p> <p>Where the law implies a promise, the consideration for which moves from several persons jointly, the promise so implied will be joint as to the promisees.</p> <p>The same contract cannot be so framed as to give the promisees the right to sue upon it both jointly and separately. They must be entitled under it either jointly only, or separately only, and must sue accordingly. It cannot be treated as joint or several at the option of the promisees, but must be understood to be as to them joint, when the interest is joint, and several, when the interest is several.</p> <p>The law will not imply a contract which the parties themselves cannot make.</p>

<p>Exceptions by plaintiffs.</p> <p>Action on a promissory note, not having an internal revenue stamp.</p>

On report. Bill sustained. Bill in equity brought by tlie Kennebec Water District, a corporation, to procure, by virtue of the provisions of its charter, judicial appraisal and condemnation of tlie entire plant, property and franchises, rights and privileges of the Maine Water Company, a corporation, in Waterville, Fairfield, Benton and Winslow. The case fully appears in the opinion.

<p>On l’eport.</p> <p>Indictment for practicing medicine and surgery without registration.</p> <p>The case is stated in the opinion.</p>

<p> </p> <p>On report.</p> <p>Action on the ease for diversion of water.</p> <p>The facts appear in the opinion.</p>

<p>Arrest. 2h.r Wtvrrant. Jurisdiction. Officer. Damages. 11. S., c. fí, 183, 184; Hint. 1893, c. 155.</p> <p>1. An officer is protected in the service of process, if it issues from competent authority and is legal upon its face. Warrants issued by inferior magistrates must show upon their face legal authority for their issue.</p> <p>2. A tax warrant is illegal which contains no statement that the town had fixed a time for payment, nor directed the officer, before arrest, to deliver to plaintiff or leave at his last and usual place of abode, a summons from the. collector issuing it “stating the amount of tax due, and that it must be paid within ten days from the time of leaving such summons,” as required by statute.</p> <p>3. Held; in this case, that the warrant failed to show authority in the collector to issue it, and Avas upon its face invalid and void. It afforded no protection to the officer.</p> <p>4. The plaintiff was assessed a tax in Caribou in 1807. Not being paid, King, collector of taxes and one of defendants, issued a warrant of distress against him, directed to the sheriff or his deputies. Parks, the other defendant, a deputy sheriff, received the warrant and arrested and committed plaintiff to jail, where he remained thirteen days, when he was released upon payment of a sum more than double the amount of the tax. The statute authorized the issuance of a warrant to distrain the person or property of the delinquent “ after the expiration of the time fixed for payment by vote of the town.” The town had not by vote fixed any time for payment of taxes that year. This was a condition precedent to the right to issue a warrant. King, therefore, had no authority to issue it.</p> <p>o. The arrest of plaintiff was made under the direction of an illegal warrant issued by King, and the actual arrest was made by Parks upon that illegal warrant. Both are therefore liable for the illegal arrest and imprisonment.</p> <p>In assessing damages by the law court as stipulated by the parties, it is considered by the court, that the plaintiff was detained thirteen days, and obliged to pay twenty-three dollars and thirty-five cents in excess of the tax to obtain his release, and was exposed to harsh treatment after his arrest, by being- compelled to ride, on a cold afternoon in December, in wet clothing, without outside wraps, a distance of several miles. In view of all the circumstances, the damages were assessed at one hundred dollars.</p>

Exceptions by defendant. Replevin for several horses. Besides the general issue of non cepit and the four special grounds of defense mentioned in the opinion, each of which was separately stated and numbered, the first item in the brief statement was as follows : — “First: That at the time when said goods and chattels were replevied by the plaintiffs, the property of the same was not in the plaintiffs or either of them ; nor ivas the property of any part thereof in the…

Exceptions by defendant. Action against the defendant company to recover damages for negligently causing the death of William John Cary, one of its employees. The declaration contained three counts, and the defendant demurred generally to the declaration and specially to each count. The presiding justice overruled the demurrers pro forma. The case appears in thé opinion.

On report. The question was whether the funds disclosed in the hands of the trustee, the city of Bangor, belonged to the claimant under an assignment to him by the defendant, or to the plaintiff under his attachment. The ciase appears in the opinion. The writing under which the claimant seeks to recover the fund in dispute is simply a promissory note, not an assignment. A recorded promissory note cannot be construed as an assignment of wages.

<p> Negligence. Master and Servant. Defective Machinery. </p> <p>1. Ail inexperienced laborer is not held to assume the risk of perils which are not called to his attention and of which he has no knowledge, but of such only as he knows, or by the exercise of ordinary care ought to know.</p> <p>2. The plaintiff was directed by the assistant superintendent to take a position near the capstan on the left-hand side of a wTire cable seven or eight feet from the mill, used in drawing logs from a large pile into the water, and communicate to the operator of the drum-winder the signals received from the man at the log pile. But all the power that could be applied proved insufficient to move the logs to which the cable had been attached, and there was evidence to justify the plaintiff’s contention that at the last attempt the cable slipped off of the capstan, vibrated against the corner of the building, rebounded over the head of the plaintiff, and then mvept back with resilient force against the plaintiff’s left leg, causing a fracture of both bones below the knee.</p> <p>3. After a patient study of all the evidence in the case, it is the opinion of the court that the conclusion of the jury cannot be deemed unmistakably wrong in finding that such a capstan or winch-head, without an effectual guard to hold the cable in place, was not a reasonably suitable appliance to perform the work required under the circumstances existing at the time of the accident. It might reasonably have been anticipated by those in charge of the work, who had frequently seen the cable fly off from the capstan under similar conditions, and observed its tendency to vibrate to some extent after it left the capstan, that an accident would happen to the signalman either in the way it did happen or in some similar manner.</p> <p>4. Held; that there was sufficient evidence to support the conclusion which the jury probably reached, that the plaintiff had not performed any regular service as a signalman in connection with the working of this cable prior to the day of the accident; that his knowledge of the working of it prior to that time was only of that general and indefinite character which might be derived from the casual observation of a laborer who was not charged with any special duty in regard to it; and that he did not comprehend and fully appreciate the perils incident to the operation of it under the conditions existing at that time, but unhesitatingly assumed that no danger would be incurred in following the directions of his superior. Under these circumstances his conduct is entitled to be viewed in the light of reasonable charity, and he should not be deprived of the benefit of a verdict in his favor which is not shown to be clearly wrong.</p>

<p> Jiqaiii/. Rescission. Fraud. Undue Influence. </p> <p>On appeal in equity by the defendant from the decroe of a single justice, confirming the facts found by the jury under issues framed and submitted to them by the court, that the plaintiff, was induced and compelled by undue influence, duress and fraud to execute a deed and bill of sale for a grossly inadequate, consideration, it was ordered, adjudged and decreed by the justice in the first instance that the deed and bill of sale specified in the bill of complaint be cancelled and annulled ; and that the defendant execute and deliver to the'plaintiff a sufficient deed and a sufficient bill of sale to convey and transfer to her all the property purported to be passed to the defendant by said instruments.</p> <p>The plaintiff’s title to the property in question was derived from the will of her grandfather, ¡áilas K. Tribou, deceased, she having by law succeeded to the bequest, being one-third of the residue of the estate, given in said will toiler father, Charles II. Tribou, who had deceased before the death,of the testator. The plaintiff had no definite knowledge of the nature or amount of her grandfather’s.property or of flic value of her share therein. The defendant knew that her interest uuder said wt.11 was worth at least twenty thousand dollars, and immediately after filing the will for probate he invited the plaintiff to come from her home in New York and make him a family visit in Paris, Maine, and began, immediately upon her arrival, to negotiate with her for a conveyance of her interest for the sum of ten thousand dollars. The defendant at the time of the negotiations did not notify the plaintiff of the value of her interest under the will of her grandfather, but gave her to understand that a codicil had been executed, under which she would receive nothing, lie employed an attorney to prepare the instruments and superintend their execution.</p> <p>In determining the character of these acts of the defendant, the relation of the parties at the time is to be considered. The plaintiff was the niece of the defendant, and upon his invitation was an inmate of his house, and she had a right to rely upon his good faith, and it was his duty to inform, her fully of her rights and to protect her against inconsiderate business acts in reference to her property. In the relation of confidence he was the superior party ; and the inadequacy of the consideration of the deed and bill of sale, the postponement of the payment of the purchase price without security, the execution of the instruments by the plaintiff without professional advice, her inexperience and his extensive experience in business affairs, and his concealment of the material facts subject the transaction to impeachment for fraud,</p> <p>Held; that the decision of the court below be affirmed with additional costs for the plaintiff.</p>

<p> k’tat. of Frauds. Payment. Evidence. Amendment. li. S., c. 111. War Rev. Law, 1898. </p> <p>A memorandum in the following form: —</p> <p>“Lewiston, Me., August 31, 1899. This is to certify that I bought a hack of Wade & Dunton, June 5, 1899, for which I promise to pay said Wade & Dunton §275.00 within three months. Thomas Curtis,” is sufficient to satisfy the statute of frauds ; and being a non-negotiable note is not presumed to have been taken in payment.</p> <p>Even if regarded as a note, it does not require an internal revenue stamp to be affixed to it.</p> <p>The TJ. S. statutes which prohibit the introduction of unstamped notes in evidence, apply only to courts of the United States, and has no application to state courts.</p> <p>In an action upon account annexed, the court may properly allow as an amendment to the declaration another count for goods bargained and sold.</p>

Exceptions and motion by defendant. Assumpsit for pauper supplies, furnished by the overseers of the poor of Atkinson to one Charles 11. Ayer. The opinion states the case.

<p> Way. Defect. Notice. Contributory Negligence. R. S., c. 18, \ 80. </p> <p>1. A town is made chargeable by statnte with the consequences of the neglect of its officers to make necessary repairs of its highways after receiving notice of the defect; and it is immaterial whether the notice is to one of the officers for the municipal year in which the accident occurred, or for some previous year, provided the defective condition of the way remained unchanged.</p> <p>2. It is provided by g 80 of c. 18, K. S., that, “ if the sufferer had notice of the condition of such way previous to the time of the injury, he cannot recover of a town unless he has previously notified one of the municipal officers of the defective condition of such way.”</p> <p>3. In an action to recover damages caused by a defect in the highway, there was evidence tending to show that the driver, who had control of the carriage in which the plaintiff was riding, prior to the accident, had not given notice of the defect to any one of the municipal officers; but there was no claim that the plaintiff who was the “sufferer” had any notice of the condition of the way prior to the accident.</p> <p>4. Held ; that while this requirement of the statute imposes upon the traveler a distinct personal duty, as a condition precedent to his right to recover for injuries suffered on account of such defect, yet with respect to the discharge of this particular statutory obligation, it would be an unwarranted construction of the act to hold that the sufferer was chargeable with the knowledge of the driver of a public carriage in which the plaintiff was a passenger, and thus responsible for his failure to notify the municipal officers.</p> <p>5. This express statutory duty is, of course, clearly distinguishable from the obligation imposed by the doctrine of contributory negligence or concurring causes, which, under the construction placed upon the statute by our court, has uniformly been held specially applicable to this class of actions against towns for defective highways.</p> <p>6. U pon this question of contributory negligence the plaintiff was held responsible for the conduct of the driver, and in that respect she was chargeable with his knowledge of the existence of any defect at the point where the accident happened. But a breach of this distinct statutory duty of the traveler to give to the municipal officers the benefit of any knowledge he may have of the existence of the defect, is sufficient to defeat his right to recover independently of the doctrine of contributory negligence or concurring causes. In that respect the “sufferer” in this case was not chargeable with the knowledge which the driver had, but which she did not have, and was not responsible for his failure to communicate it to the municipal officers.</p> <p>7. Held; that while a declaration made by the driver out of court is admissible for the purpose of impeaching his credibility as a witness, it cannot be considered by the jury as evidence of the fact stated tending to show how the accident happened. Said declaration was made three or four minutes after the accident happened. The driver was not then performing any act. The occurrence had terminated. His statement was not a spontaneous exclamation accompanying an act and tending to explain or illustrate it, but a simple narration of a past event. It was not a part of the res gestae.</p> <p>8. Whether the condition of the way at the point of the accident, in this case, was reasonably safe and convenient within the meaning of the statute as construed by our court, is a question of fact not entirely free from difficulty. A jury of practical men, a majority of whom had doubtless had experience in repairing highways, evidently found the road defective for want of an appropriate railing or guard to prevent travelers from driving into the ravine in the night-time, and the court considers that their conclusion was not unmistakably wrong. The evidence appears to have satisfied the jury that the municipal officers must have observed the condition of the road at that point unless grossly inattentive to their duty, and in the absence of any positive testimony to the contrary from these officers the jury drew the inference that they had actual notice of the defective condition which caused the accident. It is the opinion of the court that this question of notice is attended with less difficulty than that respecting the existence of a defect, and that the verdict of the jury .should not be disturbed on this ground.</p>

Oil report. Action of tort to recover damages sustained by the plaintiif, by being thrown from her carriage while traveling on the highway in Guilford adjoining the defendant’s railroad. The cause of the accident, as the plaintiif alleged, was due to her horse taking fright at some culvert pipe placed in close proximity to the highway.

On report. Case, for destroying easements claimed by plaintiffs in a building and party-wall and for obstructing a passage-way.

Exceptions by claimant. Petition to enforce a lien on a horse the property of Jonas Edwards, of Auburn, Androscoggin county, for food and shelter under R. S., c. 91, § 41, as amended by statute of 1887, c. 1, and begun in the Bath Municipal Court, where the claimant moved its dismissal for want of jurisdiction by that court. His motion was overruled and the lien sustained. The claimant appealed to this court, sitting at nisi prius, where the motion to dismiss was overruled.

<p>On report.</p> <p>Assumpsit for money lent by the plaintiff to the town of Greenfield upon a town order. There were special counts upon the order, also counts for money lent and advanced, money due upon account stated and for money had and received. Plea, the general issue.</p> <p>The facts appear in the opinion.</p>

Oil report. Bill in equity, heard on bill, answers and proofs, praying, among other -things, that the defendant Manson may be required to assign the mortgages and the notes thereby secured, held by him, to the plaintiff. The case appears in the opinion.

Exceptions by defendant. Tlie defendant was indicted, tried and found guilty under IÍ. S., of Maine, e. 1 L9, § 1, for wilfully and maliciously setting fire to the dwelling-house of another with intent to bum and burning the same in tlie night time.

Exceptions by plaintiff. This was an action to recover of the defendant money paid by the plaintiffs to the Maine Insane Hospital for the support therein of his wife, an insane person committed to said hospital by the selectmen of said Kittery. It was admitted by defendant' that his wife was insane when committed, and that the defendant was then, and is still resident in said Kittery, and that the plaintiffs had paid to said hospital the money sued for.

<p>Judgment. Pleading. Rent. R. S., c. 94, $ 10.</p> <p>The law doe» not permit a party to bring one suit and recover damages for a part of the injury resulting from a single breach of contract, and after obtaining judgment and satisfaction for that, to institute another suit for another part of the injury from the same cause.</p> <p>In a former suit plaintiff recovered judgment for the same breach of contract complained of here, which has been paid. There was but one breach of ■ contract, and only one suit for that breach .can be maintained. In the absence of fraud or concealment by defendant, which is not shown, plaintiff could have recovered her full damages in her first suit. If she neglected to include therein all items which she could have recovered for, she cannot subject the defendant to another action therefor. ITeld ; that the judgment in the prior suit is a bar to this.</p>

On report. Trespass q. c. involving title and boundary lint's of town-house lot in Eincolnville. The ease appears in the opinion.

On report. Beal action, both parties claiming under Napoleon B. Turner, deceased, the defendant as devisee under his will, and the plaintiff by a sale on execution against his estate.

Exceptions by plaintiff and defendant. Case to recover damages for the injury to the plaintiff’s dwelling-house and land, by reason of rooks thrown upon the plaintiff’s premises by tlie use of explosives in blasting in defendant’s slate quarry. Tlie case was tried to a jury, and the plaintiff obtained a verdict. The defendant filed exceptions, tlie plaintiff also filed exceptions. The exceptions appear in tlie opinion.

<p> Negligence. Evidence. Presumption. Eellow-Servant. </p> <p>In an action to recover damages by the plaintiff, who was injured by the falling of a stage upon which he was at work, the declaration alleged that “ the staging was insecure and unsafe, the iron rods were unable to sustain the weight and broke and precipitated the plaintiff a distance of fifteen feet to the floor of the room.”</p> <p>After verdict for the plaintiff, and on motion for a new trial it appeared that there was no affirmative’proof of culpable negligence on the part of the defendant company. Held; that no presumption of such negligence arises from the mere fact that an accident happened. If there is any presumption in such a case it is that the defendant has complied with the obligations resting upon it equally with other men.' The fact that tivo of the dependent hooks broke may be some evidence tending to show that they were not suitable for the use to which they were applied, but it is not - alone sufficient to establish negligence on the part of the defendant company.</p> <p>The defendant kept in its store-house sufficient materials for the construction of the staging required by the workmen in painting the ceilings, and there was no direct evidence that these materials were not suitable for that pur- • pose. There was no evidence that the defendant undertook to furnish the staging in question for the workmen as a completed structure. The company did not assume the responsibility of adapting specific hooks or planks to the construction of a particular staging. The plaintiff’s fellow workmen obtained the hooks and the planks from the company’s store-house, and erected the staging themselves, and there was no suggestion that they were not competent workmen. Held; that if tire plaintiff’s fellow workmen failed to exercise due care in the adjustment of the planks to the hooks, and the accident resulted from that cause, the defendant company is not responsible.</p>

Agreed statement. The ease appears in the opinion. The ease at bar differs from Hunt v. Card, 94 Maine, 386, since here there is one provision in the condition of the bond which was not called in question in the Hunt case. The undertaking here is to pay such judgment as should be awarded on account of land owned by Enoch E. Pennell.

On report. Petition by Lorenzo L. Sliaw, tbe sole surviving surety on the bond of E. Dudley Freeman, trustee under tbe will of Cyrus F. Sargent, asking that a rehearing be granted upon the appeal of John H. Humphrey, trustee, from the decree of the probate court for Cumberland county, rendered March 14th, 1.899, allowing the final account of E. Dudley Freeman, trustee in said estate, as rendered and settled by Thomas L. Talbot, Admr., in said probate court on Febuary 27th,…

Exceptions by defendant. This was an indictment found at the May term, 1901, of the superior court for Cumberland county, against the respondent, alleging that lie kept and maintained a nuisance at number 55 Middle street in Portland, where he kept an eating house. The case was tried before a jury on the twentieth and twenty-first of May, and the jury returned a verdict of guilty.

<p>Exceptions by defendant.</p> <p>This was a search and seizure complaint entered at the May term, 1901, of the superior court for Cumberland county on appeal from the municipal court of the city of Portland. During the term a trial was had before a jury, and the respondent was found guilty. He seasonably filed a motion in arrest of judgment:—</p> <p>1. Because there was no return signed by the officer showing a seizure of any intoxicating liquors on said warrant.</p> <p>2. Because authority to search the person on said warrant was illegal.</p> <p>Alter the filing of the motion in arrest of judgment, the county attorney asked leave that the officer amend his return on the original complaint in the municipal court in accordance with the fact and that a new copy of the complaint, warrant and reiurn as amended be filed in the superior court, which motion the presiding justice allowed over the objection of the respondent’s counsel. To the allowance of the amended return the respondent seasonably excepted, and the matter came before this court on the motion in arrest of judgment and on exceptions.</p> <p>After a verdict has been returned, a motion in arrest of judgment, founded upon want of proper service, is too late. Com. v. Gregory, 7 Gray, 498; Com. v. Henry, 7 Cush. 512; Gilbert v. Bank, 5 Mass. 97; Brown v. Webber, 6 Cush. 560.</p> <p>The defect is' cured by verdict. 11. S., c. 27, § 40; State v. Stevens, 47 Maine, 360; State v. Plunkett, 64 Maine, 534; Spencer v. Overton, 1 Conn. 3, note c.</p> <p>Return amendable. Anon. 1 Pick. 196; State v. Clough, 49 Maine, 573; Bing v. Nichols, 91 Maine, 478; Com. v. Parker, 2 Pick. 549 ; Briggs v. Hodgdon, 78 Maine, 514; Com. v. Carney, 153 Mass. 444.</p> <p>The order in the warrant to search the person was not acted on and is surplusage. State v. Chartrand, 86 Maine, 547. Hence it is no ground for discharging respondent found guilty of the offense charged in the complaint, viz: having intoxicating liquors in his possession on the premises in question, with intent of selling them illegally. State v. McCann, Q1 Maine, 116; State v. Plunkett, 64 Maine, 537, 538; State v. Bennett, 95 Maine, 197.</p> <p>Direction to search the person, whether the officer does so or not, renders the entire warrant void. State v. Chartrand, 86 Maine, 547; Hussey v. Davis, 58 N. H. 317; Lhitick v. Carrington, 19 Howell’s State Rep. 1030; Grumon v. Raymond, 1 Conn. 40, 44; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80; McLeod v. Campbell, 26 Nova Scotia, 458; Com. v. Lntox. Liquors, 109 Mass. 371; Com. v. Lntox. Liquors, 115 Mass. 145; Com. v. Lntox. Liquors, 116 Mass. 342.</p> <p>Provision in warrant for search of person, if officer has reason to believe, etc., is unconstitutional. Bill of Rights, § 5; Com. v. Certain Lottery. Tickets, 5 Cush. 369; State v. O’Neil, 58 Vt. 140, 162, 56 Am. Rep. 557; Collins v. McLean, 68 Cal. 284, 288; State v. Grames, 68 Maine, 418; State v. Therrien, 86 Maine, 425, 427, 41 Am. St. Rep. 564; State v. Chartrand, 86 Maine, 547.</p> <p>Requisites of an officer’s return. State v. Grames, 68 Maine, 418, 421; Perry v. Dover, 12 Pick. 211; Wellington v. Gale, 13 Mass. 483; Swinney v. Johnson, 11 Ark. 534; State v. 25 Packages of Liquor, 38 Vt. 387, 388.</p>

Exceptions by defendant. Search and seizure process in the superior court for Cumberland county.

Exceptions by plaintiff. Assumpsit on account annexed. The principal defendant was defaulted for the amount claimed in the writ and interest. In this court below the order was, trustee discharged; and plaintiff alleged exceptions. The trustee’s disclosure showed $45.00 due from it to the principal defendant for personal labor ■ performed by him within thirty days next prior to the service of the writ.

Agreed statement on appeal by claimants from the Lewiston municipal court, in a search and seizure process under E. S., c. 27, against certain intoxicating liquors deposited in the freight-house of the Maine Central Eailroad Company in Lewiston. Condemnation sustained. The case appears in the opinion. The contract for shipment of the goods was a lawful contract, one which the Maine Steamship Company might properly make.

<p>Exceptions by petitioner.</p> <p>Petition for review.</p> <p>The opinion states the case.</p> <p>Where a petitioner for review stated that he intended to have made a defense in a former action, and that he was defaulted by accident, a review was granted. Judd v. Buchanan, 4 Mass. 579.</p> <p>The granting of the petition is merely a determination that the • petitioner shall not be precluded from making a defense to an action brought against him. Coffin v. Abbott, 7 Mass. 252.</p> <p>Counsel cited: Shurtleffiv. Thompson, 63 Maine, 118; N. P. Mut. Accident Ass’n v. Varían, 151 Mass. 17; Thayer v. Goddard, 19 Pick. 60; Richering v. Cassidy, 93 Maine, 139.</p> <p>Counsel cited: Richer v. Joy, 72 Maine, 106; Boston v. Robbins, '116 Mass. 313; Sherman v. Ward, 73 Maine, 29; Berry v. Titus, 76 Maine, 285; Smith v. Smith, 93 Maine, 253.</p>

Exceptions by plaintiff. Action by the plaintiff as assignee of F. A. Blaekington, of Rock-land, insolvent debtor, to recover a preference under .the insolvent law of Maine. Held: that state insolvent laws are not superseded or suspended by the bankrupt law; and that jurisdiction might be exercised under the insolvent law until proceedings had been commenced under the act of Congress. Damon’s Appeal, 70 Maine, 155; In re Seholtz, 106 Fed. Rep. 835.

On report. Bill in equity, heard upon bill, answer and testimony, to recover the proportional part of the plaintiff’s earnings of the schooner James \r. Bigelow, alleged to be in the hands of the defendant. The facts are stated in the opinion.

On report. Assumpsit on a promissory note in the superior court for Kennebec county. The case is stated in the opinion. Besides 11. S., c. 91, §§ 57, 58, counsel also cited Fisher v. Bradford, 7 Maine, 28, and Waterman v. Merroio, 94 Maine, 237, 242.

<p> Double Voting. Elections. It. S'., c. 1, cl. IV;-c. 4, ll 13, 25, 72. Slat. 1887, c. 91. R. S'., 1841, c. 6. </p> <p>L. Upon an indictment for illegal voting, held; that the statutory requirement that a list of voters shall be kept and used at a meeting is directory only, and its omission will not invalidate the proceedings of a town meeting or exonerate a respondent from the penalty of violating the law.</p> <p>2. If the use of a check list is not essential, its necessity need not be alleged.</p> <p>o. Double voting, which is an offense at common law, may be committed in the absence of a list of voters, both at a meeting where it is not required, or where its use is improperly omitted.</p> <p>4. In an indictment for illegal voting, at an annual town meeting for the choice of town officers, it is sufficient if the indi ctment alleges the meeting is the annual meeting. The words “annual meeting” applied to towns mean the annual meeting required by the statute for choice of town officers.</p>

Exceptions by defendants. Scire facias upon a bail bond. The bond was returned to court with the writ, but the clerk failed to note on the writ of mesne process that it was so filed, as required by B. S., c. 85, § 1, as follows: — “The bond shall be returned with the writ, and the clerk shall note on the writ that a bail bond is so filed.” The justice of the superior court, where the case was tried, ruled that this statute is directory only and that the omission to note the…

On report. Assumpsit by a creditor of a Kansas corporation to enforce the double liability against a stockholder resident in Maine. The facts are stated in the opinion. Besides many Kansas cases counsel cited: Fairfield v. Gallatin, 100 U. S. 47; Flash v. Conn, 109 U. S. 371; Jones v. Sisson, 0 Gray, 288; Penobscot and Kennebec 11. 11. Co. v. Bartlett, 12 Gray, 244, 71 Am.

Exceptions by defendant. Action for money had and received, brought under It. S., c. 66, § 14. The plea was the general issue with brief statement setting up the general statute of limitations and also that specially applicable to actions against executors and administrators. There was a verdict for the plaintiff for $1,078.85.

<p> Into*. Liquors. Druggist. Presumption. Evidence. Intention. Practice. E. E., c. 87, l 56; c. 88, 1 5. </p> <p>Druggists are authorized to keep “all medicines and poisons authorized by the United States Dispensatory and Pharmacopoeia as of recognized medicinal utility.” Intoxicating liquors are within this description.</p> <p>In the absence of evidence of the extent or magnitude of the defendant’s business as a druggist, no presumption of an intent to sell in violation of law arises from the quantity of liquors purchased by him. Innocence is presumed till the contrary is proved.</p> <p>A finding by a justice of the superior court in an action to recover for the sale, of intoxicating liquors, that the liquors were not intended for illegal sale in this state, is conclusive, when there is any evidence upon which it can be based. Whether there is any evidence in support of the finding, is a question of law; but whether it is sufficient, is a question of fact.</p> <p>Held; that the significant circumstance, — that defendant knew what his intention was and could have testified, if true, that he intended to sell the liquors in violation of law, but did not so testify, — ■ is some evidence to sustain the finding. Since he asks to have imputed to him an illegal intention which he declines to avow, and this against the legal presumption of innocence.</p> <p>It is immaterial whether the seller knew of the intention or not. Our statute forbids collection of a claim for intoxicating liquors sold in another state to an inhabitant of this, if the purchaser intended to sell them in this state contrary to law.</p>

<p> Deed. Boundary. Flats. Upland. Shore. Bank. Evidence. Ancient Records. Colonial Ordinance, 1641-7, </p> <p>1. By virtue of the Colonial Ordinance of Massachusetts, 1(541-7, the owner of upland adjoining tide-water owns to low water mark, not exceeding- one hundred rods from high water mark.</p> <p>2. Such an owner may separate the Hats from the upland, and convey the one and retain the other.</p> <p>3. Flats pass by a grant of the upland, unless they are excluded by the terms of the grant.</p> <p>4. In construing a grant, effect is to be given, if possible, to the intention of the parties.</p> <p>5. Ordinarily the intent which is effective in a grant is the intent expressed in the language of the grant, and such intent is ascertained by giving suitable effect to all the words of the grant, read in the light of the circumstances attending the transaction, the situation of the parties, the state of the. country and of the estate granted, such as its condition and occupation.</p> <p>6. Ancient records of towns and proprietors which tend to throw light upon ’ the intention of the parties to a grant in any of the before mentioned particulars may be admissible and relevant when such intention is in issue.</p> <p>7. Whether such records so far as they relate to transactions with persons other than the owner of the land in question, or to lots of land which were neither contiguous to, nor in any way connected with the lot whose title is in issue, are admissible to show the intent of .the parties with respect to the grant of the latter lot, quaere.</p> <p>8. It being claimed that such records offered in this case do show historically and by reference to the terms of the original grants, by vote and by other proceedings of the town and the proprietors, that in the distribution of upland along Fore river, by the town of Falmouth and the proprietors of Falmouth, the town and the proprietors treated the flats as reserved for common property, and that flats were not conveyed or intended to be conveyed by grants of upland, the court is of opinion' that these records do not show any such general intent in 1721, the date of the grant particularly in question,— certainly not as affecting the flats adjacent to the lot described in this grant, nor those in the immediate vicinity, whatever may have been the intent afterwards, and as to other places on Fore river.</p> <p>9. Held; that, by the grant by the inhabitants of Falmouth to Deborah Mills in 1723, of “ the first thirty acre lot toward the Round Cove as it is now laid out, with a road to bo allowed upon the bank, front thirty rod, and northeast and by east into the woods eight score rod,” the adjacent flats did pass to the grantee and that the demandant, who is her successor in title, has shown a better record title than the tenant has to so much of those flats as is embraced by the demanded premises.</p> <p>10. Held; that, by the grant by the inhabitants of Falmouth to James Dueneven in L729 of a lot with the following boundaries : — “ Beginning at a white oak stump adjoyning on James Mills thirty acre lot and thence” by sundry courses “till it comes to the Cove or Marsh and thence round by the bank to the first bounds mentioned,” the fiats adjacent to the upland described are expressly excluded by the terms of the grant properly construed, and did not pass to the grantee; that the demandant, claiming title under the grant to Dueneven has shown no record title to any of the flats adjacent to the Dueneven lot, and that the tenant in possession, holding under a warrantee deed expressly conveying those flats, has the better record title thereto.</p> <p>11. The word “ bank ” in the Dueneven grant, though not strictly appropriate to land adjacent to tidal waters, is to be construed in this connection after the analogy of its use in relation to fresh water streams, meaning, not the shore, but the land adjacent to the shore.</p> <p>12. In the Dueneven grant, the “ bank ” was a definite monument, and the phrase “round by the bank” marked the specific boundary of the Dueneven lot on the seaward side.</p>

Action of trespass vi et armis, for injuries to plaintiff's waterworks situated on defendant’s land thus depriving plaintiff’s dwelling-liouse in Skowliegan of its water supply.

Agreed statement. Judgment for plaintiff. Assumpsit for beef and packing-house products sold and delivered between September, 1891, and October, 1892. The plaintiffs were doing business in Bangor under the style of the Bangor Beef Co. The facts are stated in the opinion. The case at bar falls directly within the principles established by this court in French v. JRobinson, 86 Maine, 142, 41 Am.

<p> Fence Viewers. Election. Appointment. JR. S., c. 22, $ 6; c. 3, $$ 12, 13, 14, 25. Slot. 1897, c. 280. </p> <p>Under the statutes of this state, as they existed in 1898, the selectmen of a town were not authorized to act as fence viewers.</p> <p>The office of fence viewer, since the act of 1897, chap. 280, must either be filled by election at the annual town meeting, or by appointment by the selectmen.</p>

<p> Pleading. Slander. </p> <p>In a declaration for slander, the plaintiff alleged in the first count in the writ that “Mima stole the inn.” In her testimony the plaintiff'said the language was “ Mima stole the buckle.” A variance was claimed. Held; that in actions for slander, the law requires strict proof of the words as alleged ; any material variance being fatal.</p> <p>But in this writ there was a second count, which averred that defendant charged the plaintiff with the crime of larceny, in which the specific words spoken were not stated. Held ; that a declaration in this form is good.</p> <p>Under this count any language which charged larceny would sustain it. Whether the language was “Mima stole the pin” or “Mima stole the buckle,” was immaterial, as in either form larceny was charged. As applied to this count, the instruction excepted to, that “it would be sufficient compliance if in this case the allegation was, Mima stole the pin, and the proof was, Mima stole; those two words being sufficient to impute to another the commission of this crime of larceny,” is correct.</p> <p>The verdict -was general, and can be sustained upon the second count, and the defendant has not been harmed.</p>

Motion by defendant. Assumpsit for the salary of the office of city marshal of Biddeford, from January 24, 1899, the day after plaintiff filed a voluntary petition in bankruptcy, to the date of the writ, being 422 days at $2 per day.

<p>Trial Justice, — liesidence of. Criminal Appeal. H. S., c. 88, $ 1; c. 132, \ 15. Slat. 1860, c. 164-</p> <p>The appointment of a resident of one county to act as a trial justice for another county is authorized by the statute of this state.</p> <p>The defendant was adjudged guilty upon a liquor search and seizure warrant on March 11,1901, by a magistrate in Franklin county, before whom he was arraigned, and thereupon he took an appeal to the September term of the supreme judicial court for that county; but the next term of that court and this one to which he should have taken his appeal, as required by R. S., c. 132, § 15, was the June term.</p> <p>Held ; that it was the duty of the defendant, if he desired to appeal from the judgment of the magistrate, to appeal to the proper court and the proper term of court; and having failed to do so, his attempted appeal was a nullity, and the judgment of the magistrate below, stands against him unreversed and unaffected by his ineffectual attempt to appeal therefrom.</p>

Oil report. Writ of entry for the recovery of a parcel of land on Chestnut street in Camden. The plea was the general issue. The case is stated in the opinion.

<p>Pavper. Settlement — 1ms of. Residence withoutthe State. R. S., c. 84, \ 3. Rtat. 1893, c. 869.</p> <p>Hinco the statute of 189.'!, c. 209, amendatory of Li. 8., c. 24, $ 3, a pauper, who had derived a settlement in Auburn, through her husband, loses her settlement there, when her husband has lived live consecutive years beyond the limits of the state, without receiving pauper supplies from any source within the state.</p> <p>It makes no difference that this residence of the husband beyond the limits 'of the state commenced before the enactment of the statute of 1893.</p> <p>The validity of the statute and the power of the legislature to change the statutory provisions, in relation to pauper settlements and the liability of towns for the relief of paupers, are beyond question.</p>

Motions by plaintiff. Case for personal injuries to plaintiff, whose liorse became frightened at defendant’s rotary snow plow. There was a general motion for a new trial which was not urged in argument; also a motion on the ground of newly-discovered evidence. The facts are stated in the opinion.

On report. Assumpsit for the amount of a savings bank deposit. The facts are fully stated in the opinion. Counsel cited, among other cases : Joehumsen v. Suffolk Savings Bank, 3 Allen, 87; Kimins v. Five Cent Savings Bank, 141 Mass. 33, 55 Am. Rep. 441; Sullivan v. Lewiston Savings Inst. 56 Maine, 507,96 Am. Dec. 500; Hayden v..Brooklyn Savings Bank, 15 Ah. Pr.

<p> Savings Bank Deposit. Lost Book. Notice. Negligence. Forged Order. By-Laws. Contracts. </p> <p>The contract between a savings bank and its depositors, in the absence of any by-law or regulation limiting the bank’s liability, is the ordinary one of debtor and creditor.</p> <p>Where payments are made by the officers of a savings bank on orders purporting to be signed by a depositor, but in fact forgeries, accompanied by the deposit book, of the loss of which the bank has not been notified, no question of negligence, either of the depositor or the bank, is involved in a suit by the depositor to recover his money, in the absence of any regulation requiring notice of the loss of the book.</p>

<p> Building Contract. ■Committee. Principal and Agent. Specialty. Parol Modification. Waiver. Oral Substituted Agreement, li. S., c. 73, % 15. </p> <p>\. A written contract was signed by tlie defendants, with the words “ Building Committee of the M. IS. Church of Thomaston” after their names ; it contained an express promise on their part to pay, without any statement in the contract, itself that such promise was made for or in behalf of another, and no authority to bind another was shown.</p> <p>Held; that it was the personal contract of the defendants.</p> <p>2. Where a contract provides that neither party thereto shall have any claim for alterations or additions unless first particularly described in writing, and the valuation agreed upon, committed to writing, and signed by the parties before such alterations or additions are made, it is competent for either party to waive this provision intended for his benefit; and it is for the jury to determine from the evidence whether it in fact has been waived.</p> <p>o. However evidenced, a contract remains in force until it is superseded by a later one inconsistent with it, and no longer ; and one who has agreed that he will only contract in writing in a certain way docs not preclude himself from making a parol bargain to change it.</p> <p>4. The refusal to give a requested instruction, in itself a correct statement of the law, but which has already in substance been given in' the charge of the presiding justice, affords no ground for exception.</p> <p>5. To sustain exceptions it is not sufficient that an instruction may have been erroneous. The exceptions must contain within themselves sufficient to show that the excepting party was thereby prejudiced.</p>

On report. Forcible entry and detainer to obtain possession of a certain stable situated on a portion of village lot No. 40 in Dover, Piscataquis county. It appeared that the stable in question was built by the defendant on the land above described, which was then owned by his wife, under an agreement that when erected it should be his. The case is stated in the opinion.

Exceptions by plaintiff*. Trover for logs. Defendant demurred specially to the declaration “because . . . the property mentioned is not described with sufficient particularity.” The presiding justice sustained the demurrer and plaintiff alleged exceptions. The opinion states the case. The declaration does not state the number of spruce, or the number of hemlock logs. The values of the different kinds oí* logs are not stated.

<p>Ultra Vires Contract. Village Corporation. Water-Works. Subsequent Legislative. Ratification. Taxation. Spec. Laws, 1863, c. ¿6%; 1887, a. 31; 1887, c. ¿60; Maine Const., Art. IX, ?¿ 8.</p> <p>The legislature may grant to any public corporation, whether its mnnici¡)al powers and purposes be general or limited, power to construct, or to purchase, and maintain a system of water-works for the purpose of furnishing water for its municipal purposes and for use by its inhabitants for domestic and sanitary purposes.</p> <p>On November 27, 188(1, the Dover and Foxeroft Village Fire Company, a public Corporation created by an act of the legislature approved March 20, E808, (chap. 262, special laws 1803) with certain powers and for certain limited municipal purposes, entered into a written contract with the Dover and Foxeroft Water Company for a hydrant service for protection against fire. The contract also contained a provision giving the village corporation the right at its option to purchase, within the limited time stated in the contract, all of the property and all of the corporate rights and privileges of the Water Company at a price to be agreed upon by the parties, or, in case of the failure of' the parties to agree, at a price to ho determined by three disinterested appraisers to be appointed by the chief justice of the supreme judicial court.</p> <p>The legislature of 1887 passed an act (chap. 260, special laws of 1887) entitled : “An Act to amend the charter of the Dover and Foxeroft Village Fire Company,” by the first section of which, all of the proceedings of the village corporation at the meetings when the latter considered and finally voted lo make this contract, were “ratified, confirmed and made valid.” By the second section, the village corporation was authorized “to raise money for an annual supply of water for lire and other municipal purposes, and for an annual rental of hydrants, in addition to the purposes now authorized, to be levied and assessed in the manner provided by its charter and by this act.” By the third section the contract above referred to between the village corporation and the Water Company under date of November 27, 1886, was “ratified, confirmed and made valid”, and the village corporation was “authorized lo raise such sums of money from time to time as maybe necessary for the purposes thereof.”</p> <p>In a bill in equity against the village corporation brought by certain of its taxpayers, asking for an injunction to restrain it from proceeding further under this contract to purchase the property of the Water Company, and to have the price thereof determined as provided by the contract, held; that although the contract when made was ultra vires, it became valid by reason of the subsequent legislative authority and the acquiescence in the contract after such authority; that it was the plain intention of the legislature, in the passage of this act, to give plenary authority, by way of ratification, to the village corporation to make this contract, including the important provision relating to the purchase of the water company's property, and that it must be assumed that the legislature, when it passed this act, the main purpose of which was to ratify this contract, had knowledge of what the contract was and of this particular clause in question.</p> <p>Subsequent ratification by the legislature, under such circumstances as are here involved, is equivalent to previous authority. It is a permission to the municipal corporation to enter into the contract if they do not choose to reconsider their former action, and none the less valid because it is known to the legislature what the proposed contract was.</p> <p>Municipal corporations can, not only exercise such powers as are granted by their charters, or by general law, either expressly or by implication, but also such as are incidental to the powers expressly granted ánd such as are essential to the objects and purposes of the corporation.</p> <p>Where a water-works system is purchased in good faith by a municipal corporation for the main and primary purpose of supplying water for its own municipal wants, and for domestic use by its inhabitants, under legislative authority, such legislation and, the action of the municipal corporation under it in making the purchase, and in raising money by taxation therefor, are not in violation of that clause of the state constitution which requires equal taxation, because of the fact that incidentally the purchasing municipality may be compelled to assume the obligation of the original water company to provide water for some individual takers who reside outside of its territorial limits.</p> <p>If the village corporation, as purchaser of this property of the Water Company, should be obliged to furnish water for a few takers -who reside outside the limits of the corporation, it must be assumed that it will receive a reasonable, compensation therefor, so that the taxation of property within the village corporation will not be increased in the slightest degree by such purchase. But, im any event, this is merely incidental and subsidiary to the main and primary object of furnishing water for its lawful public purposes under legislative authority.</p> <p>Held; that the acts of the legislature of 1887, were sufficient to ratify and make valid the contract between the village corporation and the water company; that the act amending the charter of the Dover and Foxcroft Village Fire Company gave to that corporation, by express grant or by necessary implication, the authority to carry, out that contract by a pureha.se of tlio water-works system, and, subsequent to such purchase, to maintain and operate the same; and that this legislation was not in violation of the provisions of our state constitution.</p>

<p>Partition. Notice. Unknown Owners, li. S., c. 88, § 4.</p> <p>A petition for partition cannot bo hoard, when notice has not been ordered or given to co-tenants, who are not named, but who arc described as “ unknown.”</p> <p>On such a petition, notice, such as the court orders, to all co-tenants not named, is indispensable.</p>

In Equity. On appeal and exceptions by defendants. Petitions by twenty tax-payers of the city of Bath under It. S., c. 17, § 1, as amended by statute of 1891, c. 98, against the owners and occupiers of certain buildings in that city; and praying for injunctions, both temporary and perpetual, against the defendants, and to restrain them from using or allowing said places to be used for the illegal sale or keeping for sale intoxicating liquors.

Exceptions by appellee. Petition of Isaac ,L. Elder, administrator de bonis non with the will annexed of Submit C. liussell, praying that a new license may be granted him to sell at private sale, in accordance with an offer, the real estate described in the original petition of John H. liussell, which latter petition was dated April 13th, 1898.