Volume 97 — Maine Reports

<p>Motion by defendant. Overruled.</p> <p>Action to recover pauper supplies, in which the jury rendered a verdict for the plaintiff.</p> <p>The verdict for the plaintiff at a former trial was set aside by the law court, no opinion by the court having been rendered.</p> <p>The case appears in the opinion.</p>

()n report. Motion for set-off allowed. Two actions of debt upon judgments rendered by the Common Pleas Division of the Supreme Court of Rhode -Island. Both of said actions were defaulted.

On report. Judgment for defendant. Assumpsit for pauper supplies furnished one Wallace Heath. The case is fully stated in the opinion. The supplies sued for Avlien received Avere supposed by the pauper to have been furnished by the toAvn of Penobscot and he did not knoAV to the contrary for more than two Aveeks thereafter.

On report. In equity. Bill sustained. Bill, by her administrator with the tvill annexed, for the construction of the will of Harriet W. Norcross, deceased. Heard on bill and answers. Plaintiff’s testatrix made her will before her husband insured his life in her favor. He died intestate nearly ten years after her death, leaving a widow and two children by a second marriage.

<p>Exceptions by defendant. Sustained.</p> <p>Assumpsit on the following account annexed:</p> <p>“Henry Randall,</p> <p>To Joseph G. Davis, Dr.</p> <p>1900.</p> <p>May 27, To services on horse’s mouth, $1.00</p> <p>June 28, To use of stallion on mare, 12.00</p> <p>June 28, To services on horse’s mouth, 1.00</p> <p>$14.00”</p> <p>The controversy was over the item of $12. for the use of the stallion.</p> <p>The case came to this court below on appeal by defendant from judgment of a trial justice in favor'of plaintiff.</p> <p>Some time in the early spring of 1900, one Foster S. Reynolds of Lubec bought the stallion in question of one Perry E. Day of Princeton, in Washington County. He was then called “Black Harry,” and not generally known in Lubec. Reynolds brought the stallion to Lubec and put him in the stable of Joseph G. Davis, the plaintiff in this case, called the “Klondike Stable.” Reynolds then changed the stallion’s name to “Success, Jr.,” and on March 13, 1900, the following notice appeared in the Lubec Herald, a weekly newspaper printed in Lubec:</p> <p>“ ‘SUCCESS, JR.’</p> <p>Weight 1225 lbs.</p> <p>Sired by the imported coach horse ‘Success,’ imported from England, registered in Book 2,500, No. 1,800, color black. Dam full blooded Morgan mare ‘Curfew Bell.’ ‘Success, Jr.,’ has a record of 2.26, and will stand at No. Lubec, Klondike stable, during the season of 1900. Fee, $12 to warrant; $2 at service, the balance at birth of colt. This horse is owned by F. S. Reynolds and handled by J. G. Davis,” (the plaintiff in this case).</p> <p>This notice was continued in the Herald down to August 7, 1900. Printed cards bearing a like notice were circulated through the town of Lubec. These advertisements were with- the knowledge of the plaintiff, but he testified that he ivas not responsible for them.</p> <p>Said stallion was never registered under the name of “Success, Jr.”</p> <p>The plaintiff claimed to have purchased this stallion from F. S. Reynolds sometime in May, 1900. After he purchased him he continued to keep him in the “Klondike Stable,” and the mare was sired there.</p> <p>The plaintiff did not have the stallion recorded in his own name!</p> <p>Plaintiff offered, in evidence, the following record made by Perry E. Day, the former owner:</p> <p>“ ‘Black Harry,’</p> <p>Age nine years, weight 1170 lbs., sired by ‘Success.’ Dam foaled by ‘Lady Polly,’ with the view of keeping said stallion for breeding-purposes within the county aforesaid, I hereby register the same in the Registry of Deeds for Washington County, in accordance with Section 61, Chapter 38, Revised Statutes of Maine.</p> <p>Feb. 1, 1893.</p> <p>Perry E. Day.</p> <p>Attest: H. R. Taylor, Register of Deeds.”</p> <p>To the admission of this record the defendant seasonably objected, but his objection was overruled and the record admitted, to which ruling defendant reserved and alleged exceptions.</p>

On report. Continued for judgment for plaintiff. Assumpsit on a promissoi’y note which plaintiff’s testimony showed to be lost. The case was reported from the Superior Court of Cumberland County for such judgment as the legal rights of the parties might require. The facts appear in the opinion. It is not usual and not required in the Federal Courts to declare specially on a lost note as lost, no special count being necessary in such a case.

On motion and exceptions by defendant. Exceptions sustained. This was a real action brought by T. M. Nicholson against the Maine Central R. R. Company to recover certain real estate situated in the town of Bucksport, and claimed by that company as part of its right of way.

On appeal by defendant. Appeal denied. Judgment for the State. The defendant was convicted by a jury in Piscataquis County for the murder in the first degree of J. Wesley Allen of Shirley. He made a motion in the court below to have the verdict set aside. This motion having been overruled, he appealed to this court. The case appears fully in the opinion.

<p>Appeal from the Municipal Court of Skowhegan, -in Somerset County, for violating the Hawkers and Peddlers Law, Stat. of 1901, e. 277. Judgment for defendant.</p> <p>The defendant having been convicted on the following complaint, to which he demurred, appealed to the court sitting at nisi prius.</p> <p>State of Maine.</p> <p>Somerset, ss.</p> <p>To the judge of our Municipal Court of Skowhegan, in the County of Somerset, in constant session for the cognizance of criminal actions.</p> <p>Hiram P. Thing of Skowhegan, in the County of Somerset, and State of Maine, in behalf of said State, on oath complains, that Charles W. Mitchell late of Skowhegan in said County of Somerset at Skowhegan aforesaid in the County of Somerset aforesaid on the sixteenth day of October in the year of our Lord nineteen hundred and one, not having procured a license therefor, as provided by law and chapter two hundred seventy-seven of the Public Laws of A. D. 1901 of the State of Maine, and not then and there being a commercial agent selling goods by sample to dealers only, did then and there go from place to place in the town of Skowhegan in said County of Somerset exposing for sale and selling goods and chattels other than fruit grown in the United States, fruit, trees, provisions, live animals, brooms, pianos, organs, wagons, sleighs, agricultural implements, fuel, newspapers, agricultural products of the United States, the products of his own labor or the labor of his family, any map made and copyrighted in his name, any patent of his own invention or in which he has become interested by being a member of any firm or stockholder in any corporation which has purchased the patent, to wit, selling patent medicine, against the peace of the State, and contrary to the statute in such case made and provided.</p> <p>Wherefore the said Hiram P. Thing prays that the said Charles W. Mitchell may be apprehended, and held to answer to this complaint, and further dealt with relative to the same as law and justice may require.</p> <p>Dated at Skowhegan, in said Count}' of Somerset this sixteenth day of October in the year of our Lord one thousand nine hundred and one.</p> <p>H. P. Thing.</p> <p>The grounds of demurrer set forth in the Court below were as follows: —</p> <p>1 In that that the complaint in said cause charges no offense;</p> <p>2 That the offense purporting to have been committed by said defendant in said complaint is not set forth with sufficient certainty;</p> <p>3 That said respondent could have done all that said complaint alleges against him and yet have been guilty of no offense, nor violated any statute;</p> <p>4 That chapter 277 of the public laws A. D. 1901 for the State of Maine enacts among other things in section six thereof “Any soldier or sailor disabled in the military or naval service of the United States, or by sickness or disability contracted therein, or since his discharge from service, and any person who is blind shall be exempt from paying the license fees required by this chapter,” and said complaint does not negative these exceptions contained in said statute and cited above, which it should;</p> <p>5 That said chapter 277 among other things enacts in section 4 thereof “But any resident of a town having a place of business therein owning and paying taxes to the amount of twenty-five dollars on his stock in trade, can peddle his goods in his own town without paying any license fee therefor”, and said complaint does not negative this exception contained in said statute, which it should do; said complaint not showing but that said respondent at the time of said alleged offense ivas a resident of said Skowhegan, having stock of goods therein, and owning and paying taxes to the amount of twenty-five dollars on his said stock in trade, and hence not liable to the tax imposed by said chapter 277;</p> <p>6 That said chapter provides among other things said sections 4 and 6 as above referred to and set out, and said complaint does not negative the exceptions therein set forth which it should, said complaint not showing but that said respondent comes within the exceptions therein, and is a soldier or sailor disabled in the military or naval service of the United States, or by sickness or by disability contracted therein, or since his discharge from service, or is blind,— or having said stock of goods and paying taxes to the amount of $25.00 being a resident of said Skowhegan at time of said alleged offense, and hence within the exceptions as contained in said sections Nos. 4 and 6;</p> <p>7 Because the statute upon which said complaint is founded is in conflict with the Constitution of the State of Maine;</p> <p>8 Because said statute is in conflict with the Constitution and laws of the United States;</p> <p>9 Because said public laws of the State of Maine are not uniform, and they discriminate in favor of one class of individuals against another, and are not valid;</p> <p>10 Because said public laws exempt a certain class of persons from the payment of the fees provided by law, which is unconstitutional;</p> <p>11 Because said State of Maine has no right to impose a license or tax as provided by said chap. 277 laws of 1901.</p> <p>And for other and sufficient causes of demurrer, said complaint is not sufficient in law, and this he is ready to verify.</p> <p>The defendant’s demurrer was overruled in this court below and he alleged exceptions.</p> <p>The case is stated in the opinion.</p> <p>Counsel argued: As to the sufficiency of the complaint, Laws 1891 c. 277; State v. Montgomery, 92 Maine, 435; U. S. v. Cool, 17 Wallace, 168; Bish. New Cr. Pr. vol. 1, §§ 631, 632.</p> <p>As to constitutional questions, cases cited in State v. Montgomery, 92 Maine, 436; S. C. 94 Maine, 192.</p> <p>See also Lunt’s case, 6 Maine, 412; Spring v. Russell, 7 Maine, 273; Lord v. Chadbourne 42 Maine, 429; Opinion of Justices, 166 Mass. 589; Stats. 1885, c. 268; 1893, c. 203; 1899, c. 2; Mass. Rev. Laws, c. 65, § 21; People v. Nagle (Cal.) 52 Am. Dec. 313; Leavitt Railway Co., 90 Maine, 153.</p>

<p>On report. Plaintiff nonsuit.</p> <p>Case to recover the value of two horses belonging to the plaintiff which died while being transported over the defendant’s railway between Montreal and Brownville Junction.</p> <p>It was alleged in the writ and admitted by the defendant that the horses when they left Montreal were apparently in good order and condition, and no question was raised that they died. The plaintiff averred that the injury and death to his horses were caused solely by the gross carelessness of the defendant company.</p> <p>Other facts appear in the opinion.</p>

<p>Officer. Rescuing Prisoner. R. S., c. 12%, § 16; c. 133, § 4.</p> <p>In the trial of the respondent upon an indictment for forcibly rescuing a prisoner lawfully detained for a criminal offense, it is not necessary for the government to prove that the rescued prisoner had been subsequently convicted of the offense for which he was under arrest. It is sufficient for the government to show by any competent evidence that the prisoner -was lawfully detained for a criminal offense.</p> <p>The forcible rescue of a' prisoner may be accomplished without the exercise of physical force, if by threats, menaces or demonstrations, the officer having the prisoner under arrest is compelled to yield thereto and to let his prisoner go.</p> <p>The presiding justice gave the jury the following instruction in regard to the meaning of the word “forcible” in its connection in the statute under which the indictment was found: “Any force, whether physical or mental, or any kind of force that tends to drive or compel or force the officer to let the man go, and the officer yields to that force and lets the man go, not because he thinks it is right to let him go, but because he yields to the force, that is forcible. It is enough that the officer be made to understand that if he does not let that man go there will be force used, and there will be a breach of the peace, impelling the officer to let the man go.”</p> <p>Held; that this instruction is correct.</p>

On report. Decree of Probate Court affirmed. This Avas an appeal from a decision of the judge of probate, for Androscoggin County, dismissing a petition to have the record of the adoption of the petitioner changed. The case appears in the opinion.

Exceptions by defendant. Overruled. Action on a promissory note to which the defendant pleaded that the statute of limitations was a bar after six years — although the note appeared to have been witnessed by the wife of the payee.

<p> Real Action. Judgment. Estoppel. </p> <p>When it appears that the defendant in a real action, has previously recovered a judgment for the same premises that are here demanded, in an action wherein the plaintiff was one of the defendants, held; that the former judgment, so long as it remains unreversed, is conclusive against the plaintiff.</p> <p>In the former action the present plaintiff had an opportunity to set up in defense the facts now relied upon by him. It was his duty in that case to make his whole defense. If he had shown a better title than did the plaintiff in that case, he would have been entitled to a judgment in his favor. The facts now relied upon by him in this new action cannot be shown for the purpose of impeaching the validity of the judgment recovered by this defendant in the former action.</p> <p>The doctrine of estoppel by judgment is applicable although the judgment relied upon was one as of mortgage, and although the present plaintiff was one of several defendants in that suit.</p>

<p>On exceptions by defendant. Overruled.</p> <p>Indictment charging the defendant for knowingly permitting a certain shop, in a building owned by him, to be used for a liquor nuisance contrary to E. S., c. 17, § 4.</p> <p>The defendant’s demurrer having been overruled, he was allowed exceptions to the ruling.</p>

On report. Judgment for defendants. Debt by the judge of probate of Knox Cpunty, on the application of the administrator de bonis non, against the principal and sureties on the bond given September 20, 1898, by the original administrator, for license to make sale of real estate. Besides the general issue, there was, by leave of court, a special plea in bar of full performance of the conditions of the bond. The defendant B..

<p>Physician — Compensation. Board of Health. Municipal Officers. Evidence. Auditing. Stat. 1887, c. 1S3, § 5.</p> <p>AVhere the plaintiff made a claim for services as a physician attending smallpox patients, and was so employed by the defendant’s board of health, but no specific compensation was agreed upon, the presiding justice instructed the jury that if the municipal officers “failed to make any regulation or auditing of his (plaintiff’s) account at the time, and there being, when these services were performed, no regulations touching the fees and charges to which this plaintiff might be entitled, then the plaintiff is entitled to recover a reasonable compensation.” Held; that this ruling was correct.</p> <p>The action of the municipal officers after plaintiff’s services were rendered in attempting to fix the compensation, is not admissible in evidence in such a case.</p> <p>Also an offer to prove amounts previously paid to others for similar services would be rightly excluded. Such payments may have been made under express contracts, or been the result of a compromise, or rendered under peculiar and exceptional circumstances. They cannot be regarded as a criterion for the compensation to which plaintiff is entitled in this action.</p> <p>Held; that the secretary of the board of health had authority.under their rules and regulations to employ the plaintiff.</p>

On report. Judgment for owners of building on which plaintiff claimed a lien for alterations and additions. Case reported from the Superior Court for Cumberland County.

Exceptions by appellant. Overruled. The appellant is the administrator, de bonis non with the will annexed, of the estate of David Torrey, deceased, and in that capacity he'took an appeal from a decree in the Probate Court, which with the other facts of the case, appears in the opinion.

On motion by defendant. Overruled. Action under Stat. 1891, c. 124, by the plaintiff, who is the widow of George W. Thornton, to recover damages suffered by the death of her husband which she alleged was caused by the wrongful act and neglect of the defendant. The jury gave a verdict of $2500 for the plaintiff and the defendant filed the usual motion for a new trial. The case appears in the opinion.

<p> Certiorari. Record. Evidence. Petition. Relationship. </p> <p>The following facts appeared upon a petition for a writ of certiorari to quash the proceedings of the county commissioners of Somerset County in laying-out a winter road:—</p> <p>A hearing was had upon the petition, before a justice of the Supreme Judicial Court, asking for a writ of certiorari to quash the proceedings of the county commissioners in laying out a winter road, upon the ground that the commissioners had no jurisdiction over the case, as it was presented to them, one of the members of the board being related to several of the petitioners within the degree of second cousin. The writ was granted and the case then reported to the law court for its decision. The record of the proceedings of the county commissioners was sent up, as the writ required, but in the records neither the error of which the petitioner complained nor any other error appeared. An inspection of the record sent up showed complete jurisdiction on the part of the court of commissioners and that their proceedings were without error or defect. Held; that the record was conclusive upon all matters contained in it, and that no evidence, dehors the record could be admitted upon the writ.</p> <p>It further appeared, from an inspection of the record sent up, that the petitioner, in her petition, did not allege that she did not know, at the inception of the proceedings, of the relationship of which she complained, nor that, if she did not so know, she could not by the exercise of reasonable diligence have ascertained the fact.</p> <p>Held; that the petitioner should have alleged, in her petition, that she did not have such knowledge and that, by the exercise of reasonable diligence, she could not have ascertained it.</p>

Exceptions by defendant. Sustained. Action of libel for the publication of divers newspaper articles claimed to have been published in the Damariscott-a Herald of and concerning the plaintiff. Defendant filed a general demurrer to the declaration at the first term. The presiding justice overruled the demurrer, pro forma, and the defendant alleged exceptions. The case is stated in the opinion.

Motion and exceptions by plaintiff. Overruled. Action for pauper supplies brought in the Superior Court for Kennebec County. The jury rendered a verdict for the defendant.

On report. Bill sustained. Decree according to opinion of the court. Bill in equity for the construction of the will of the late Mark P. Emery, of Portland. The case appears in the opinion.

<p>Motion and exceptions by defendant. Overruled.</p> <p>Assumpsit on the account annexed for various items of hardware used by defendant in the construction of two buildings; for plumber’s work in one of said buildings done under contract; and on an order for $36.05 paj^able to plaintiff, drawn by one A. S. Wing upon, and accepted by the defendant.</p> <p>The case is stated in the opinion.</p> <p>Counsel contended that, a receipt is evidence of the most satisfactory kind, and to do away with its force the testimony should be clear and convincing. Harris v. Hay, 111 Pa. Sfc. 562; Gleason v. Sawyer, 22 N. H. 85; Gibbon v. Potter, 30 N. J. Eq. 204; Danzig er v. Hoyt, 120 N. Y. 190.</p> <p>On the question of burden of proof counsel cited: Guyette v. Bolton, 46 Vt. 228; Moore v. Korty, 11 Ind. 341; Borden v. Hope, 21 La. An. 581; Neal v. Handley, 116 111. 418, 56 Am. Rep. 784.</p> <p>Counsel also cited: Greenl. on Ev. Vol. 1, § 279; Goss v. Ellison, 136 Mass. 503; Fay v. Gray, 124 Mass. 500; Langdon v. Langdon, 4 Gray, 186; Leddyy. Barney, 139 Mass. 394; Stone v. Vanee, 6 Ohio, 246; Carperter v. Jamison, 75 Mo. 285; Stapleton v. King, 33 Iowa, 28, 11 Am. Rep. 109; Henry v. Henry, 11 Ind. 236, 71 Am. Dec. 354; McKernan v. May hew, 21 Ind. 291; Krutz v. Craig, 53 Ind. 561; Alcom y. Morgan, 77 Ind. 184; Morris v. St. Paul & Chicago Railroad Co., 21 Minn. 91; Greenl. on Ev. Yol. 1, § 305; Taylor on Ev. Yol. 2, § 1037.</p>

<p>Exceptions by defendant. Sustained.</p> <p>Trover for a watch.</p> <p>The case appears in the opinion.</p>

On report. Petition denied. Petition under R. S., c. 51, § 31, asking that the Maine Central Railroad Company be ordered to make a safe and convenient crossing for public travel over its tracks at the foot of Exchange Street in the City of Bangor. Upon the filing of the petition an order was made directing the respondent railroad company to appear and show cause against the petition.

On report. Judgment for plaintiff. Special assumpsit for the failure to deliver logs sold according to agreement. The writ contained three counts. The plea was the general issue. The case is stated in the opinion.

<p> Life Insurance. Warranties. Representations. </p> <p>1. When payment of a policy of life insurance is resisted solely on the ground that the statements of the insured made in his application for insurance, as to his bodily health, were not true, it is immaterial whether the statements be regarded as warranties or as representations.</p> <p>2. If regarded as representations only, it still follows that such statements must be substantially true, or the policy will be avoided.</p> <p>3. Substantially true does not mean partly true on the one hand, nor does it mean true in every possible and immaterial respect, on the other. It means true, without qualification, in all respects material to the risk.</p> <p>4. The answers of an applicant for life insurance, as to his present and past condition of health, are material to the insurance risk proposed and must be true.</p> <p>5. In this case, the applicant, in answer to questions, stated that she had had dyspepsia “in light form,” that to her knowledge and belief there was not then existing any disorder or infirmity or weakness, tending to impair her constitution, and that her health was then good. The evidence clearly disclosed that the applicant for more than twenty years had chronic dyspepsia, which continued to the date of her application, that it did not yield easily to remedies, and that at times it was severe and distressing. It further appears that the dyspepsia was accompanied by chronic constipation to an extent which made it necessary for a great many years to resort to artificial means to produce an evacuation of the bowels. At the same time it appears that she was able, until a few weeks before her death, to work, generally did most of the housework for a small family, was an active member of a “club,” and made and received visits as women ordinarily do.</p> <p>6. In view of these facts, the answers before referred to cannot'be regarded as true.</p> <p>7. The fair implication of the answer that she had dyspepsia in “light form” is that she had it only in light form, which is contrary to the evidence.</p> <p>8. The statement in an application for life" insurance, that the applicant is in good health, does not call for a perfect physical condition, an entire freedom from ills, but it does mean that the applicant is free from sensible disease or symptoms of disease, and from any apparent derangement of the functions by which health may be tested. The term is to be construed in its ordinary sense, that is, as people ordinarily understand the term good health.</p> <p>9. Construing the evidence as liberally and as charitably as possible for the insured, the court is of opinion that it is a contradiction of terms to say of a woman afflicted as this woman was, and for so many years, that she was.in good health at the time she applied for membership in the defendant society.</p> <p>10. The facts are not greatly in dispute, but the deductions drawn from them by the jury are so clearly erroneous, that justice requires the verdict to be set aside.</p>

On report. Instructions to appraisers given by the court to determine the valuation of property of the Maine Water Company and acquired by the plaintiff by the exercise of the right of eminent domain.

On report. Bill in equity to redeem a mortgage. Sustained. This was a bill in equity for the redemption of a mortgage of real estate. The bill, answer, notice of foreclosure, record and certificate of the register of deeds, demand for an account and response, were put in evidence.

Motion by defendant. New trial granted. Case for injuries to the fingers of plaintiff’s left hand which were crushed between the frame-work of the platen and the die plate of a printing-press in defendants’ box factory, in North Berwick.

<p>Pauper. Relief by Non-residenl. R. S., c. %4, § 48.</p> <p>No statute of this State creates any liability upon part of a municipality to re-imburse an inhabitant of another town for expenses incurred by him in such other town for the relief of a pauper, whose settlement is in the town sought to be held liable for such expenses. Consequently, an action for such expenses so incurred, not based Upon any contract express or implied with the defendant town, cannot be maintained.</p>

<p> Accident Insurance. Casualty Company. Indemnity. Liability to Third Persons. </p> <p>The plaintiff’s intestate, while in the employ of a gas company, sustained bodily injuries through the latter’s negligence. In an action commenced by Mm against the gas company to recover damages for such injuries, his administrator, he having died pending the litigation, recovered judgment. This judgment has been in no part satisfied, and is now wortMess, the gas company having made an assignment for the benefit of such of its creditors as became parties thereto, and neither the plaintiff nor .Ms intestate ever became a party to this assignment.</p> <p>At the time of the accident wherein the plaintiff’s intestate received his injuries, the gas company had a contract with a casualty insurance company, wherein the latter had agreed to indemnify the gas company, for the period of time named therein, “against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered by any employee or employees of the assured while on duty at the places and in the occupations mentioned in the schedule hereinafter given, caused by the negligence of the assured, and resulting from the work described in the said schedule, subject to the following special and general agreements, which are to be construed as co-ordinate, as conditions.” One of these conditions was as follows: “No action shall lie against the company (the insurer) as respects any loss under this policy unless it shall be brought by the assured himself to re-imburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue.”</p> <p>Upon a bill in equity brought by the judgment creditor against the gas company, the casualty insurance company and others, wherein the complainant prays that the insurance company may be compelled to pay to the complainant the amount of his unsatisfied judgment, held; that the contract of the insurance company was not one of insurance against liability, but of indemnity against loss by reason of liability; that it was not the object or intention of the contracting parties that the insurer should guarantee the gas company’s liability for negligence to its employees; that the undertaking of the insurer was to re-imburse or make whole the assured against loss sustained by it on account of its liability to its employees for negligence; and that independently of the condition in the contract of insurance above quoted, the court would be compelled to construe this contract as one of indemnity only.</p> <p>Also; that there can be no doubt about the meaning of the language of the condition above quoted, and no question about the right of the contracting parties to insert such a provision in their contract for the purpose of making clear the nature and limit of the liability of the parties or either of them ; that by this unequivocal language in the condition above quoted the undertaking of the insurer was expressly limited to liability in an action brought by the insured “ to re-imburse him for loss actually sustained and paid by him.”</p>

Exceptions by plaintiff. Sustained. Action under Stat. 1891, c. 124, to recover for the death of plaintiff’s intestate, who was burned to death in the defendant’s building, on October 16, 1901. It was claimed that the defendant was liable because he had not provided any fire-escape on the building. The defendant filed a general demurrer to the declaration which was sustained by the court below.

Exceptions by plaintiff. Overruled. Case to recover damages sustained by the plaintiff when driving over the defendant’s railroad at a highway grade-crossing at Central Street in Westbrook. The plaintiff claimed that the collision was caused by the negligence of the defendant’s employees in the management of its train. The presiding justice ordered a nonsuit and the plaintiff took exceptions. The case appears in the opinion.

<p>Lease. Railroads. Tax. Franchise. Contract. Spec. Laws, 1872, c. 88. Slat. 1897, c. 75. R. S., c. 6, §§ 41, 48; c. 51, § 60.</p> <p>In determining the intention of the parties to a contract, the interpretation which they themselves by their own acts put upon it is justly entitled to great weight.</p> <p>The court will not adopt a construction of a contract which does not comport with the interest of either party at, the time it is made, unless expressed in clear terms.</p> <p>The plaintiff agreed with the defendant to construct and build the plaintiff’s road as described in its charter in substantial and permanent manner, with, suitable station grounds and buildings, and with the necessary sidings at its terminus in Lewiston. By a subsequent indenture the defendant agreed to construct and complete the railroad as already located and partially constructed in a substantial manner, and in all respects in accordance with the previous agreements of the plaintiff. The next day the plaintiff leased the road to the defendant for ninety-nine years with full power to finish and complete it as previously agreed between the parties, and to make and construct any new buildings and tracks necessary and beneficial to be used for the working of the railroad. A rental of nine thousand dollars was to be paid every six months, and the lease provided that all taxes which might lawfully be assessed upon the corporate property or franchise of the lessor, during the period of the lease, might be paid by the lessee and deducted from the rent. Within a few months after the execution of the lease the defendant purchased for ninety-two thousand two hundred and fifteen dollars and ten cents ($92,215.10) certain parcels of land in Lewiston adjoining, but without the location of the plaintiff’s road. On this land railroad sidings have been constructed and,buildings erected, either leased to the patrons of the road or built upon portions of the premises leased to said patrons. The defendant took the title to this real estate in its own name, enjoys the income from it, and for twenty-three years paid the taxes upon it without making any claim to deduct such taxes from the rent.</p> <p>Held; that construing the two indentures and lease together the defendant was not bound to acquire this land for the plaintiff; that it is not the corporate property of the plaintiff within the true intent and meaning of the lease, and that the taxes so paid cannot be deducted from the rent therein reserved.</p> <p>For eighteen years the defendant paid taxes lawfully assessed upon the corporate property of the plaintiff, but did not deduct them from the rent.</p> <p>Held; that they cannot be deducted now; that the true intent and meaning of the lease is, that as fast as the taxes are paid they should be deducted from the installment of rent falling due next after such payment, and if not deducted then they cannot be taken out at all.</p> <p>The defendant has paid an annual franchise tax to the State, assessed upon the basis of the gross earnings of all the leased lines operated by it within the State divided by the total number of miles so operated.</p> <p>Held; that this is not a tax upon the franchises of such leased roads alone; that it is either a tax upon the franchise of the defendant alone, or upon its franchise and the franchise of its leased roads. If the latter, it is incapable of apportionment in this case, and no part of the tax so paid can be deducted from the rent reserved.</p>

<p> Negligence. Instructions to Jury. Expression of Opinion. </p> <p>L In an action for personal injuries alleged to have been caused by the defendant’s negligence, the question of the plaintiff’s contributory negligence is to be determined by the jury and not by the court.</p> <p>2. The negligence of the plaintiff cannot be considered as proximately contributing to the injury, if it is independent of and precedes the negligence of the defendant, and when the defendant by the exercise of ordinary care might have avoided the injury.</p> <p>3. A requested instruction which withdraws that question from the jury, or which is not applicable to the facts of the case on trial, may properly be refused.</p> <p>4. When the jury have been instructed in full and appropriate language as to what constitutes due care and contributory negligence, it is not error to decline to instruct them further upon those subjects.</p> <p>5. It is not an expression of opinion upon an issue of fact arising in the trial of a case for the presiding justice to state his recollection of the testimony. He has the same right to call the attention of the jury to the existence and non-existence of testimony. If he is wrong in his recollection, his attention should he called to it and the error corrected at the time.</p>

On report. Judgment for the State. Prosecution under P. S., c. 27, § 31, for the illegal transportation of intoxicating liquors. The defendant was convicted of the offense in the Lewiston Municipal Court and took an appeal to this court at nisi prius, sitting January, 1902.

Exceptions by appellee. Overruled. Appeal dismissed. Motions by the appellee to dismiss an appeal taken by the appellant from a decree of the Judge of Probate granting an allowance to the widow of C. B. Abbott, deceased. The case is stated in the opinion.

On report. Bill in equity. Dismissed. Bill in equity praying to have real estate sold free of the widow’s dower, to have the present worth of the dower appraised and paid to her out of the pi’oceeds. The dower was assigned in a special manner to wit: the sum of two hundred dollars annually from the rents and profits, under R. S., c. 65, § 3. The defendant besides her answer filed a demurrer and the case was reported to the law court. The parties are tenants in common.

On report. Judgment for defendants. Assumpsit for rents and profits of one-half of a farm in Fairfield formerly occupied by Benjamin Horn as a homestead, for the six years immediately preceding January 26, 1901. The facts are fully stated in the opinion. Counsel cited: It. S., c. 73, § 7; c. 95, § 20; Buck v. Spqffbrd, 31 Maine, 34; Cutler v. Currier, 54 Maine, 81; Soutter v. Atwood, 34 Maine, 153, 56 Am.

Exceptions by defendant. Sustained. Assumpsit on a promissory note given by defendant to plaintiff A testator. Defendant plead the general issue and the statute of limitations, by way of brief statement.

Exceptions by defendant. Overruled. Indictment for a single sale of intoxicating liquor.

Exceptions by defendant. Sustained. Action of assumpsit on a promissory note. Besides the count on the note there was a money count with a specification making reference to the note. The plea was the general issue with a brief statement of special matter of defense upon which, however, the decision in no way turned. In addition to 'his bill of exceptions the defendant also filed and argued a general motion for a new trial. The case is fully stated in the opinion.

On report. Judgment for defendant. Real action in which plaintiff and defendant each claim title to the property by sale upon executions against the Monson Maine Slate Company a corporation under the laws of Maine. At the time the attachments in this suit were made, there was no authority for the attachment of the reaf estate of manufacturing corporations on mesne process. At common law real estate of corporations could not be attached upon the writ.

<p>On report. Judgment for defendant. Damages for defendant to be assessed according to the opinion. Forcible entry and detainer before a Trial Justice in Waldo County, for the purpose of obtaining possession of a hotel called the Lake House, in Freedom, in that county.</p> <p>The Trial Justice found for the plaintiff, issued a writ of possession upon which the defendant was ejected from the premises. From the proceedings of the Trial Justice the- defendant appealed to this court sitting at nisi prius and, after the testimony before the jury had been taken out, the case was by agreement of the parties reported to this court.</p> <p>The facts are stated in the opinion.</p> <p>As late as June 14, 1901, the defendant used the premises for the illegal sale and keeping of intoxicating liquors, contrary to the provisions pf R. S., c. 27, § 1. He thereby forfeited all his right to the premises; his lease became absolutely void, and can afford him no defense to this action. R. S., c. 27, § 3.</p> <p>Such use annuls and makes void the lease, and without any act of the owner, causes the right of possession to revert and vest in him. Prescott v. Kyle, 103 Mass. 381.</p> <p>The statute of 1858, c. 45, § 3, was not enacted for the benefit of the owner of the property, but that part of it applicable to this case was enacted as a part of the settled policy of the State to outlaw the liquor traffic. The forfeiture is in the nature of a penalty for the violation of law, and to hold that it may be waived by the owner so that it cannot be invoked to invalidate the lease, or affect the tenant’s rights to the premises, is equivalent to holding that an individual may waive the penalty for violation of a criminal law.</p> <p>The rights of the defendant are no better under a lease of premises which he actually took and used for the illegal sale and keeping 'of intoxicating liquors in violation of both the terms of his lease and the law, than they would be under a lease which in terms permitted him-to keep and sell intoxicating liquor on the premises.</p> <p>When a lease is terminated under its own provisions, no notice to quit will be necessary, in order to dissolve the relation of landlord and tenant; for both parties are apprised of their rights and duties, the lease terminates ex vi termini pursuant to the contract, and the lessor may at once enter upon the lessee, and resume the possession of his premises, while the latter becomes a wrongdoer if he withholds such possession. Taylor’s Landlord and Tenant, § 465.</p>

On report. Plaintiff nonsuit. Forcible entry and detainer begun in the Dover Municipal Court to recover possession of the St. Germain House in Greenville. The defendant pleaded the general issue and by way of brief statement that he held a lease of the land upon which the rent had been fully paid, and was owner of the building; and, second, that Rebecca W. Crafts was owner of two-thirds of the real estate, and that he was occupying under her.

<p> Physician. Negligence. Damages. </p> <p>1. A physician who fails to exercise reasonable care and diligence in the treatment of his patient is liable for malpractice, and in finding the defendant thus liable in this case, it is not clear to the court that the jury erred.</p> <p>2. The defendant undertook the case of the plaintiff’s intestate on Monday. The patient died on the following Saturday. The only damages of any amount which the deceased sustained were those resulting from mental and bodily pain; in an action by his administratrix, it is held, that under the evidence in this case, a verdict of §3,000 is unmistakably too large.</p> <p>3. Only such damages can be allowed as the deceased sustained in his lifetime. Nothing can be allowed for his loss of life, nor for what he might have earned had he lived longer.</p> <p>4. Damages in such a case can include only such loss, expense and suffering as was due to the defendant’s'default in excess of what they would have been had the case been properly diagnosed and treated.</p>

<p>Exceptions by defendant. Overruled. Judgment for the State. '</p> <p>Indictment for polygamy in the Superior Court for Cumberland County, to which the defendant demurred. The demurrer was overruled and the defendant took exceptions.</p>

<p> Negligence. Muster and Servant. Fellow-Servant. </p> <p>1. The master’s duty to provide reasonably safe appliances and instrumentalities with which the servants are to do their work is fully discharged if he has furnished a sufficient supply of suitable appliances, with competent men to use them, and it was understood that the servants themselves were to select such appliances from time to time as the particular occasion demanded".</p> <p>2. In such case, if by use or lapse of time an appliance, becomes unfit for use, the master has a right to assume that the servants will use the means for renewal and repair which the master has placed at their hands, or that other appliances will be selected in the place of those which have become unfit, out of the supply furnished by the master.</p> <p>3. If the servant whose duty it is to make the selection is negligent in so doing, it is not the negligence of the master, but of a servant for which the master is not responsible.</p> <p>4. Held.; that there is no evidence to support the contention that the rope in question, the breaking of which caused the plaintiff’s injury, was actually furnished by the defendant for the specific use to which it was put. But if it were a fact that it had been so used by servants before the time it broke, the master would be no more responsible for its condition and use, at the time of the injury than if it had then been so used for the first time. It would simply be a case where the foreman, who was a fellow-servant of the plaintiff, having the right and being under the duty of selecting a suitable rope, selected one lying on the floor, instead of a larger and stronger one placed at his command by the defendant; and if there was any negligence, in its selection and use, it was not the negligence of the defendant, but of the plaintiff’s fellow-servant. Upon the evidence, this raises an insuperable bar to the. plaintiff’s right to recover.</p>

<p> Lands Reserved for Public Uses. Plantations. Towns. Priv. and Spec. Laws, 1901, c. 377; Slats. 1824, c. 280; 1828, c. 393; 1832, c. 39; 1842, C. 33; 1845, c. 149; 1846, c. 217; 1848, c. 82; 1850, c. 196. B. S., 1883, c. 5, H 12-19; c. 12, U 40, 46. </p> <p>By the Act of 1850, ch. 196, it was provided that in all townships or tracts of land unincorporated or not organized for election purposes, sold or granted by the State, in which lands have been reserved for public uses, the land agent should have the care and custody of such reserved lands until such tract or township is incorporated or organized for election purposes. And the land agent was directed to sell for cash the right to cut and carry away the timber and grass from off the reserved lands which have been located, the right to continue until the tract or township should be incorporated or organized for election purposes.</p> <p>The lands so reserved for public uses in Indian Township were duly located, and the right to cut timber and grass thereon had been sold by the land agent and such right had vested in the defendant prior to the incorporation in 1901 of a. portion of Indian Township as the town of Millinocket. The reserved lands as located are all within Millinocket as incorporated. The acts of trespass complained of were the cutting of trees on the reserved lands after the incorporation of Millinocket. Held:—</p> <p>1. That the right of the defendant to cut timber on the reserved lands was terminated by the incorporation as a town of a portion only of Indian Township, but in which portion the reserved lands were located; and therefore that the acts complained of were trespasses.</p> <p>2. But that, although the State is the trustee of reserved lands, and may maintain trespass for injury to them; it is such trustee only until the township is incorporated, and that in this case its interest in the reserved lands in question was terminated by the incorporation of Millinocket. Therefore it cannot maintain this action.</p> <p>8. That when a portion of a township is incorporated, and no exception or provision is made with reference to the reserved lands, it is -to be deemed that the legislature intended the reserved lands within the portion incorporated to follow that portion and vest in it; and that it did not intend the right to cut timber to continue in a grantee thereof, under the Act of 1850, ch. 196, after the title to the land itself had vested in the town by incorporation.</p> <p>4. That the title to the reserved lands and the timber thereon, within the town of Millinocket, have vested in that town.</p>

<p>Motion by defendant for new trial. Sustained.</p> <p>■ Action on the case for injuries claimed by plaintiff to have been received by him in a collision between one of defendant’s locomotives and plaintiff’s team at a railroad crossing in Eastport, on the Washington County Railroad, on January 8, 1901.</p> <p>There was no flag-man at the Washington Street crossing, where the accident is claimed to have occurred, to warn persons using the highway of the approach of trains.</p> <p>The case appears in the opinion.</p>

Exceptions by defendant. Sustained. Case brought by plaintiff to recover damages for an injury suffered by him while employed in defendant’s pulp-mill at Madison, on or about September 13, 1901. At the return term of the writ defendant filed a special demurrer which was joined, but no hearing was then had thereon. At a succeeding term of the court at nisi prius, the demurrer was heard by the presiding justice and overruled; and defendant then noted an exception.

<p>Exceptions by defendant. Sustained.</p> <p>Trespass on the case for removing and carrying away from the plaintiff’s premises a water closet bowl.</p> <p>The evidence showed that on January 8th, 1897, upon an order of one Newcomb, then having a desk, assisted by a female stenographer, in the office described in the plaintiff’s writ, occupied by the defendant and Judge Nose, and under their advice, they paying one-third each therefor, a skilled plumber put in a soil pipe and set up a “wash-down syphon water closet,” in a small closet, a part of the occupied premises, into which the Holly water had previously been introduced for drinking purposes and for a wash bowl. Cost of closet set up, fifty-five ($55.00) dollars, and fourteen ($14.00) dollars for soil pipe and connections with sewer.</p> <p>The evidence showed that said closet was set up in the usual manner, the flanges on the upper end of the soil pipe being flush with the floor of the closet, to which flange the bowl of the new closet was secured by bolts and' nuts.</p> <p>The evidence showed that said defendant and Nose were the tenants till December 31st, 1897, when the said Nose vacated, leaving said defendant sole tenant, he (the said defendant) having purchased the interest of said Newcomb and Nose in the said closet.</p> <p>The evidence showed that the defendant’s tenancy continued till July 1st, 1900, and that on the 28th day of June, 1900, he caused the said water closet to be removed in a manner which the plumber, called by the plaintiff, testified to be the customary, usual and safe method, by the same plumber who set it up, leaving the soil pipe intact but securely plugged with newspaper, (which said plumber testified was the customary method) to which said soil pipe the plaintiff attached another water closet.</p> <p>The only evidence that the defendant did not intend the water closet to remain a permanent fixture was that he erected it upon premises which he might be obliged to quit at any time in thirty days, and the fact that before the expiration of his term of tenancy he did remove it.</p> <p>The following instructions were requested by the defendant:</p> <p>First. “Was this closet so attached that its removal caused material damage to the realty ? ' If it was not so attached, then you will come to the question of the intention of the party or parties when it was set up. Did they intend it should remain as a part of the realty or only for their better convenience and accommodation while occupying the premises?”</p> <p>Second. “If the jury find that its removal did not cause material damage to the realty, and that it was not the intention of the party or parties to leave the closet after the expiration of their tenancy, then as a matter of law, the defendant had a right to remove it before the expiration of his term of tenancy.”</p> <p>The court refused to give the instructions asked for by the defendant and instructed the jury as follows: —</p> <p>“I decline to give you .these instructions, gentlemen, because it seems to me that there being no controversy, no question of fact, as to the method in which the.closet, and the plumbing necessary for the closet were put there, I instruct you as a matter of law that that becomes a fixture, a part of the realty. So that this defendant, Mr. Wentworth, is liable for having removed that closet.”</p> <p>To which instructions and refusal to give instructions the defendant took exceptions.</p>

<p>On report. Judgment for defendants.</p> <p>Action of debt to recover the penalty provided for in 11. S., c. 3, § 63, as amended by Stat. 1885, c. 334. The plaintiff claimed that the defendants had erected and maintained a fish weir in tide waters below low water mark in front of his shore or flats at Green Island so-called in Jonesport, in Washington County, without plaintiff’s consent and contrary to the statute. The plaintiff further claimed that the weir interfered with his rights as owner of the island.</p> <p>The plea was the general issue.</p> <p>The facts are stated in the opinion.</p>

<p>On report. Judgment for defendant.</p> <p>Trover to recover the value of a dry kiln.</p> <p>The case is stated in the opinion.</p>

Exceptions by defendant. Overruled. This was an action of assumpsit to recover the amount alleged to be due the plaintiff from the defendant for services of the plaintiff as disclosure commissioner and register of probate, done and performed for the defendant. The jury returned a verdict for the plaintiff in the sum of one hundred and fifty-four dollars and ninety cents.

<p>Attorney and Client. Trustee Process. Necessaries. P. S., c. 86, § 55 par. VI.</p> <p>Aside from the exclusion of certain classes of articles or services, of which it may be predicated as a matter of law that they are not comprised in the term “necessaries,” what are necessaries is a question of fact, dependent upon the varying circumstances of each case. '</p> <p>Legal services rendered in the defense of a criminal prosecution, and in defense of a civil action in which the defendant has been arrested, are necessaries.</p> <p>The plaintiffs, attorneys-at-law, brought an action to recover for professional services rendered by them in behalf of the defendant, in defense of an action for an alleged assault and battery. The defendant at the time of the . alleged assault was acting as a police officer. He was not arrested on the writ, and the suit was disposed of by an entry of neither party, no further • action.</p> <p>The defendant was a police officer, and as such liable to prosecutions of the character described in this case. The suit against him affected his reputation,as a citizen and an officer, and he was forced to defend it to avoid consequences more injurious than the loss of property rights. Held; tha't Hie legal services rendered in his defense, under the circumstances, may properly be included in the term necessaries to which the statute R. S., c. 86, § 55, par. VI,' has given preference.</p> <p>In the action for the alleged assault and battery the defendant was not arrested, but the fact that he was liable to arrest on execution after judgment against him is to be considered. It is analogous to cases where original arrests were made.</p>

<p> Contracts. Assent. Exceptions. Waiver. Practice. </p> <p>In an action of assumpsit to recover for work and material furnished to the defendants, the dispute related to an item of spruce stringers and planking not in the memoranda of the contract, but for which the plaintiffs claimed to recover as extra material furnished at the request of the defendants.</p> <p>At the trial the plaintiffs introduced a memorandum which was relied upon by both parties as embodying the final contract, but not signed by the parties. The defendants, while claiming that the plaintiffs were bound to furnish all necessary material for the sum specified in the memorandum of the contract, relied upon the words of the memorandum as conveying that meaning.</p> <p>The presiding justice, calling the attention of both parties to his statement of their position, instructed the jury as follows: ‘‘Both of the parties agree, as I understand it, that the contract that was made between them on that day was embodied in that memorandum.” Held; that the assumption by the presiding justice as to the memorandum was tacitly acquiesced in by the defendants when stated in the presence of a jury, and any objection thereto was thereby waived.</p> <p>It being once determined that the memorandum contained the terms of the contract, held; that it was the duty of the presiding justice to explain to the jury its legal effect; and the following instructions are accordingly correct:</p> <p>1. The plaintiffs were bound to furnish only the amount of lumber specifically mentioned in the memorandum.</p> <p>2. The defendants were liable to pay a reasonable compensation for any additional lumber furnished with their consent.</p> <p>Where the defendants except to the entire charge of the presiding justice, the law court will consider only those exceptions which are specific.</p>

<p> Evidence. Expert Téstímony. Negligence. </p> <p>It is not sufficient to warrant the introduction of expert evidence that the witness may know more of the subject of inquiry, and may better comprehend and appreciate it than the jury. To warrant its introduction, the subject of the inquiry must be one relating to some trade, profession, science or art in which persons instructed therein by study or experience may be supposed to have more skill and knowledge than persons of average intelligence may be presumed generally to have. The jurors may have less skill and experience than the witnesses and yet have enough to draw their own conclusions and do justice between the parties.</p> <p>A mechanical engineer skilled and experienced in regard to the construction of all parts of a projecting stage, designed especially for unloading coal and when not in use for that purpose drawn back upon the permanent stage of the wharf, and the strength both of wood and wire under different conditions, may be competent to answer questions as to the suitability and sufficiency of an iron guy; also qualified to estimate the strain which would be exerted upon iron guys by a given weight at the end of a projecting stage.</p> <p>A carpenter and builder with special experience in the construction of coal stagings and platforms may be permitted to give the jury his opinion as to the proper method of constructing certain parts of the woodwork of a staging. But it is a question for the jury whether, upon all the testimony relating to such a structure, an iron guy is suitable and sufficient for the use to which it is applied.</p> <p>Held; that a witness, who is a carpenter and builder, but not a mechanical engineer or bridge builder, and who has had no special experience in proving the tensile strength of iron wire and cables, is not such an expert as to give his opinion in regard to the strength of wire cables; nor how many pounds a piece of wire rigging three-quarters of an inch in diameter'or an inch in diameter, either old or new, can sustain.</p>

<p>On report. Case to stand for trial upon the evidence offered by defendants.</p> <p>Debt on an administrator’s bond in the name of the Judge of Probate, under R. S., o. 72, §§ 10 and 13, to recover a judgment obtained against his estate after letters of administration were issued. Plea, general issue and brief statement that no estate remained in the administrator’s hand after having paid the expenses of the intestate’s last sickness, expense of administration, and allowance to the widow, as appears by his account settled in the Probate Court since this action was brought. The estate was not represented insolvent, and the plaintiff contended that the administrator’s liability was absolute.</p> <p>The facts are fully stated in the opinion.</p> <p>Not having alleged upon the docket in the original suit the insolvency of the estate, or alleged that the case fell within the provisions of R. S., c. 66, § 1, upon which the offered evidence is based, defendants are estopped to set up the same facts in the present suit. They are estopped to deny assets.</p> <p>The creditor had obtained judgment against the administrator; execution thereon had been returned wholly unsatisfied; and this action had been pending on the bond more than a month, before any proceedings were begun in the Probate Court to defeat it.</p> <p>■ Thus the plaintiff had admittedly pursued all the steps required by statute to' perfect his right to recover. He had acquired that right under the standing laws of the land, and it had become fully vested when this suit was commenced. Plaintiff’s rights so acquired and vested could not be taken away even by act of the legislature subsequently passed, much less by the subsequent acts of the administrator.</p>

On report. Bill for specific performance. Dismissed. Bill in equity praying for a conveyance of certain real estate, under a bond for a deed given by Charles H. Eandall, deceased, to Hugh McMann. The bond had been assigned by said McManu to the plaintiff, Levi H. May, and the defendants are the legal representatives of said Randall. The case was reported for the determination of this court upon bill, demurrer, answer, replication and proofs.

Exceptions by defendant. Exceptions certified from the Bangor Municipal Court to this court. Exceptions overruled. From the bill of exceptions it appears that this was an action of assumpsit on an account annexed, the account having been contracted by the defendant with Hartford Pond. Plea, the general issue, with a brief statement setting up the statute of limitations. The debit items run from April 1, 1889, to August 3, 1889.

<p>On report. Judgment for defendants.</p> <p>Action to recover forty dollars, claimed to be due the plaintiffs, for loss of twenty cents per barrel on two hundred barrels of flour, alleged to have been sold to the defendants and the acceptance of which was refused by them. Plea, general issue.</p> <p>The facts appear in the opinion.</p>

<p> Negligence. Failure of Due Care■ Nature of Liability. </p> <p>In an action on the case to recover damages for negligence in burning the plaintiff’s corn factory, the verdict was for the defendants, and two important questions of fact were presented, first, whether the fire that burned the plaintiff’s buildings was communicated by sparks and brands from the defendant’s sawmill, and second, if it was, were the defendants negligent in permitting the sparks to escape.</p> <p>Held; that by the process of elimination, the evidence all points to but one conclusion, that the spark or cinder which set fire to the plaintiff’s factory was communicated from the defendants’ mill.</p> <p>As to the second proposition, the evidence shows that the defendants’ boiler, flues and smoke-stack were so constructed that they were well calculated, and liable, in a strong wind, to carry sparks and cinders for' a considerable distance through the air, and that a person of ordinary care and prudence, under all the circumstances of this case, should have anticipated such a result.</p>

<p> Trustee Process. Set-Off. Assignment. Notice. Attachment. R.S.,c.82,§ 68. </p> <p>The plaintiff by a trustee process attached the principal defendant’s distributive share of personal estate to which he was entitled in the hands of an administrator; he also attached the goods, effects, and credits of the defendant in the hands of another party as the defendant’s assignee.</p> <p>The administrator in his trustee disclosure offered evidence to prove that the plaintiff was indebted to him in his individual capacity and this sum he claimed to set off against such sum as was due to the plaintiff from the intestate’s estate. Held; that this demand, thus due him in his individual capacity, cannot be set off in this action.</p> <p>Where the subject of the assignment is not capable of manual delivery an oral assignment maybe sufficient, if founded upon a valuable and adequate consideration and accompanied by acts which amount to a constructive delivery; and even if the written assignment had never been executed.</p> <p>By the assignee’s disclosure it appeared that the principal defendant was indebted to him and that for a valuable consideration consisting of such present indebtedness and also future advances, the defendant had executed an assignment to him of all sums of money then due and all that might be due him from the estate, then unsettled, and in the hands of the administrator. Held; that the transaction between the defendant and the claimant satisfies the requirements of an equitable assignment.</p> <p>As between the plaintiff and the claimant, equitable considerations must prevail as fully as possible. Held; that the execution of the assignment and its record, in accordance with a previous understanding between the assignor and the assignee, and notice to the administrator, removes the question of its sufficiency from possible doubt.</p> <p>An assignment is not effective to charge the holder of a fund as debtor to an assignee until notice has been given him of the assignment; but it will be complete as against creditors of the assignor if the trustee has notice or knowledge of it in season to disclose the fact of the assignment.</p> <p>Where an assignment is given as collateral security for the amount then due the assignee and for future advancements and is valid between the parties for that purpose, and it does not appear that there was any adjustment by which the fund was applied in payment or as specific security for a stated amount, but transactions between the parties continued and the items of debit and credit were the subject of general account up to the time of the hearing on the assignee’s claim, held; that as against attaching creditors, the assignment is not security for advancements made by the assignee to the assignor after notice of the attachments; and the plaintiff’s attachment thereupon had precedence over subsequent advancements of the assignee and defeated his claims to the fund.</p>

On report. Decree according to opinion of court. Bill in equity to obtain the construction of the residuary clause of the last will anti testament of Josiah Towle, late of Bangor, deceased.

<p>Bill in equity heard on report of agreed statement. Dismissed.</p> <p>Bill by the plaintiff trustee, in bankruptcy against Charles E. Hussey, bankrupt, and his daughter, seeking to hold a policy of insurance on the life of the bankrupt, or its surrender value on March 8, 1901. Date of policy, March 1, 1893.</p> <p>The parties agreed to report the case to the law court upon bill, answer and replication, and the following agreements and statement of facts.</p> <p>On December 12, 1899, Lizzie L. Hussey, the beneficiary named in the policy and mentioned in the plaintiff’s bill, assigned to the defendant, her husband, Charles E. Hussey, or his legal representatives or-assigns, all her interest in said policy. A copy of said assignment was filed with the agent of the insurance company and by him forwarded to the home office of the company, the Travelers Insurance Company, where it was'received as filed on December 19, 1899. A copy of said assignment was annexed to and made part of the statement of facts.</p> <p>On July 10, 1900, Lizzie L. Hussey, having obtained a divorce from her husband the said Charles E. Hussey, claiming that she had not assigned her interest December 12, 1899, executed another assignment of all her interest as beneficiary in said policy to the defendant Charles E. Hussey and a copy of the same was forwarded by him to the home office of the insurance company, where it was received and filed August 7, 1900. A copy of said assignment was annexed to and made a part of the statement of facts.</p> <p>On August 10, 1900, said Charles E. Hussey, without receiving any- compensation or valuable consideration therefor, gave to his daughter, Edith G. Gove, a defendant in this case, the writing of that date by him signed which was forwarded to the same home office of the insurance company, where it was received and filed August 20, 1900.</p> <p>The last named assignment is as follows: “For One Dollar, in hand paid, and for other valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby assign, transfer and set over unto Mrs. Edith G. Gove, daughter, of Biddeford, Maine, (provided said assignee be living at the time of the death of the insured), all the right, title, claim, interest,, and benefit of the undersigned in and to tire principal sum insured in event of death by the Policy of Insurance issued by the Travelers Insurance Co., of Hartford, Conn., on the life of Charles E. Hussey and numbered 73148. In Testimony Whereof, I have hereunto set my hand and seal at Biddeford Me. this tenth day of August 1900.</p> <p>Charles E. Hussey, l. s.</p> <p>In presence of</p> <p>H. G. Hutchinson — to C. E. H ”</p> <p>On said August 10, A. D. 1900, the said Charles E. Hussey was owing a large part of the debts mentioned in his schedule of liabilities and filed in court with his petition in bankruptcy.</p> <p>Said plaintiff demanded of said Charles E. Hussey, to wit, on June 6,1901, said policy of insurance, and said Charles E. Hussey refused to deliver up the same. Said plaintiff thereupon demanded of said Charles E. Hussey the equivalent of the cash surrender value of said insurance policy, and the said Charles E. Hussey refused to pay the same, and has ever since refused and neglected to either deliver said policy of insurance to the plaintiff or to pay him the said cash surrender value.</p> <p>By the written terms of said policy, its cash surrender value was, on March 1, 1898, $287.50, and will be, on March 1, 1903, $712.50. But while said policy gives the right to the insured to surrender his policy only during the thirty days immediately succeeding each five year period from its date, and only provides in terms as to what the cash surrender value shall be at those periods, it is, nevertheless, the custom of said insurance company to waive the strict and literal construction of the clause in its said policy relating to the cash surrender value of said policy, aud allow said policy to be surrendered and can-celled at any time, and to pay in consideration of such surrender an increased sum therefor with each full year’s premium paid thereon. In other words, under said custom, the cash-surrender value of said policy changes on the first day of March of each year during its life, and does not increase on account of anything less than a full year’s premium.</p> <p>Under said custom, the cash surrender value of said policy was, on March 1,-1901, $522.50, and on March 1, 1902, $615.</p> <p>Said policy had no cash surrender value to said Edith G. Gove, the full sum being payable to said Charles E. Hussey at the expiration of twenty years, if he was living. And in order to have a cash surrender value, said Hussey and said Gove (if said writing of August 10, 1900, be valid) must release each of their interests in said policy.</p> <p>Said insurance policy was thereupon filed in court and became a part of this agreed statement of fact, and together with said writing dated August 10, A. D. 1900, there remains, pending the final decision of the case, subject to the trial and final disposition of the court according to the rights of the parties as they should be determined.</p> <p>The said Charles E. Hussey has paid the following sums at the time specified, as premiums upon said policy of insurance, since. the date of his petition in bankruptcy.</p> <p>Date due. Date payment Amount.</p> <p>reported by Agent.</p> <p>Mar. 1, 1901 Apr. 23, 1901 $30.85</p> <p>June 1, 1901 ' Aug. 28, 1901 30.85</p> <p>Sept. 1, 1901 Nov. 27, 1901 30.85</p> <p>Dec. 1, 1901 Jan. 21, 1902 30.85</p> <p>Mar. 1, 1902 May 29, 1902 30.85</p> <p>June 1, 1902 July 31, 1902 30.85</p> <p>The proviso of the bankruptcy act of 1898, sec. 70, (5,) is a specific limitation on sect. 6, which secures to the bankrupt in general terms the benefit of the exemption laws of the State, and the title to such policy vests in the trustee, notwithstanding it is exempt from execution under the State laws. In re Lange, 91 Fed. Rep. 361; In re Saheld, 104 Fed. Rep. 870, 52 L. R. A. 188; In re Slingluff, 106 Fed. Rep. 154; In re Boardman, 103 Fed. Rep. 783; In re Holden, 113 Fed. Rep. 141; In re Willing, 113 Fed. Rep.189; In re Holden, 114 Fed. Rep. 650. The language of the proviso is not limited to a policy of insurance not exempt. It refers to “any insurance policy which has a surrender value, payable to himself (i. e. the bankrupt), his estate or personal representatives.” . Several of the cases already cited by the plaintiff are of the same court, and of more recent date than Steele v. Buel, 104 F. R. 968. A general provision in a statute in regard to a particular subject is controlled by a special provision in reference thereto. State v. Cornell, 54 Neb. 75, 74 N. W. 432; State v. Hobe, 106 Wis. 411, 82 N. W. 336; Rodgers v. United States, 36 Ct. Cl. 266; Kolb v. Reformed Episcopal Church, 18 Pa. Super Ct. 477; Savings Inst. v. Makin, 23 Maine, 360.</p> <p>A provision in a statute must be given some effect differing from that which would exist without it, and withdraw from the operation of the statute that which would otherwise have been included in it. Quackenbush v. United States, 33 Ct. Cl. 355. Counsel also cited: In re Schenck, 116 Fed. Rep. 554.</p> <p>It is immaterial what the State law may be in regard to exemption of insurance policies, if sect. 70, (5,) of the bankruptcy act overrides the State law, as indicated by the above decisions. 1 No person had any interest in the policy except the bankrupt, on Dec. 12, 1899, and it became virtually .and in fact a policy payable to his estate, and so within the express provisions of sect. 70, (5,) in which condition it remained until said Hussey was decreed a bankrupt, unless the writing of August 10, 1900, by which the said Hussey undertook to give his daughter, Edith G. Gove, a valuable and substantial interest therein, without consideration, changed its character.</p> <p>The assignment of August 10, 1900, to the daughter was fraudulent as to existing creditors. The conveyance was to his daughter, was without consideration, and given at a time when Hussey was owing a large part of the debts mentioned in his bankruptcy schedule, amounting in all to $2878.17. Gardiner Savings Inst. v. Emerson, 91 Maine, 535; White v. Bolster, 95 Maine, 458.</p> <p>Even regarding the assignment of August 10, 1900, as valid and effective to accomplish the purpose its language imports, the policy would still be the property of Charles E. Hussey and assets in the hands of his trustee, under the rule laid down in in re SUnglufj" 106 Fed. Hep. 154. “An endowment policy, payable, with accumulated profits, to the insured at the end of a specified term, but providing that in case of his death during the term, the principal sum shall be paid to a beneficiary named, has two features; primarily it is an investment for the benefit of the holder, and secondarily, a policy of life insurance for the benefit of the beneficiary. There is no joint interest between the two, but so long as the holder dives, the policy is his property, and on his bankruptcy, constitutes assets of his estate for the benefit of his creditors, like any other investment of his capital, and the title vests in his trustee, who may dispose of it in any manner by which it can be made of value to the estate.”</p> <p>The right of exemption has been waived. Wyman v. Gay, 90 Maine, page 36.</p>

<p>Deed. Tax Title. Sale. Beiurn by Town Treasurer. Insolvent Law. B. S., c. 6, §§ 188, 189; c. 70, § 88.</p> <p>1. In making return of Ms doings in selling land of a non-resident for nonpayment of town taxes, the town treasurer should state facts showing that no bid could be obtained for less than the whole land and that it was necessary to sell the whole land in order to obtain the amount of the tax and costs.</p> <p>8. A statement in such return that “it became necessary to sell the whole amount of the real estate ” without any statement of facts showing such necessity, is a statement of the treasurer’s opinion only, and is not sufficient to sustain a title under such sale.</p> <p>4. An assignment under the insolvent law R. S., c. 70, § 33, does not require a seal.</p> <p>5. In a real action where no rents or profits are sued for, no allowance can be made for taxes paid by the defendant.</p>

<p>On report. Bill in equity; Sustained. Decree according to opinion.</p> <p>This was a bill in equity brought by Charles Bradbury, the only surviving son of James "VV. Bradbury, late of Augusta, for the construction of his father’s will, and especially under items ninth, tenth and eleventh. These items are set forth in full in the opinion of the court. The case came before the law court'upon report.</p> <p>The questions raised under these items of the will were:</p> <p>1. Whether under the provisions of the will the plaintiff takes an absolute estate at law or in equity in one undivided half of the residue, both principal and income, subject only to a trust as to the income during his lifetime; or whether he takes a life estate only in the income; or, if neither, what estate he takes in the principal and income.</p> <p>2. In the event of the death of the plaintiff without will and without issue by his present wife, to whom should the trustees deliver the principal in final disposition under the terms of the will.</p> <p>Counsel argued the following points: (1) The intention of the testator which is to govern must be gathered conclusively from the language used, and not from any supposed intention, which finds no legal expression in the will itself.. (2) The general intent of the testator, his general plan of disposition of his estate as a whole, is always of leading importance. (3) The general intent of the testator here, as to the disposition of his estate as a whole, is to divide it equally between his two surviving heirs, his granddaughter Eliza and his son Charles. (4) The particular intent of the testator here, as shown in the disposing clauses to his granddaughter and his son, respectively, preserves and enforces this same equality of division. (5) The two opening clauses in items tenth and eleventh, being thus the principal and effective disposing clauses of those legacies, must be given their full and exact legal meaning, if they have one, regardless of results to either party. (6) The language used in each of these two disposing clauses admits but one legal interpretation, and to that end the language used is legally apt, exact and exhaustive, and if the will stopped there, would pass instantly on the testator’s death through the trustees to the beneficiary, in each case, the full beneficial title both to the corpus and the income of the property bequeathed, the trust being but a dry or passive one. (7) If the disposing clause has first, by apt and unmistakable words, conveyed a fee, legal or equitable, that grant will not be cut down or diminished to something less than a fee by any subsequent words, unless those words also have a meaning as definite and unmistakable as the principal disposing clause. (8) The subsequent clauses of item eleventh, completing the bequests to Charles, contain simply restrictions on the mode of enjoyment of the income, but contain no words which, either expressly or by implication, cut down the equitable fee in the corpus already granted by the principal disposing clause.</p> <p>The residuary clause in item ten cannot operate to strip from Charles, and transfer to Eliza, the entire property or corpus of the fund left for Charles, because the general nature of the clause forbids it; the clause is strictly a residuary clause, and nothing more.</p>

<p>,Deed. Description. Sea-Shore. Flats. Fish Weir. Colonial Ordinance, 1641-7. JR. S., c. 8, g 63.</p> <p>In construing the description in a deed of land upon the sea-shore, upon the question as to whether or not the shore is included in the conveyance, certain well established general principles must be applied. By reason of the Colonial Ordinance of 1641-7, the owner of the upland adjoining tidewater prima facie owns to low water mark; and does so in fact, unless the presumption is rebutted by proof to the contrary.</p> <p>It is, of course, true that the owner of upland and shore may separate the ownership by the conveyance of the one and the retention of the other. Where, in the conveyance of land upon the sea-shore, the side boundary line is described as running “to the shore,” and the boundary is thence “by the shore,” the side line terminates at the inner side of the shore, and shows, in the absence of other calls or circumstances showing a contrary intention, that the inner side of the shore is intended as the boundary. A call in a deed which describes a line as running to a strip of land whether shore or upland, does not carry the line over, across or onto the strip referred to, because the word “ to ” is a word of exclusion rather than.of inclusion.</p> <p>But it does not by any means follow from the mere fact that the shore of land is made a boundary, or that the boundary is “by the shore” that it is by high water mark. The space between high and low water mark, properly called the shore, is frequently of many rods in width, it has an outer or seaward side and an inner or upland side, and, nothing else appearing, a boundary by the shore may be as well intended to mean the one as the other. To determine which side of the shore is intended as the boundary it is necessary to look'for something further. It follows, that the starting point of a boundary “by the shore” is one of the important elements in throwing light upon the question as to which margin of the shore was intended.</p> <p>While a boundary which is described as commencing at high water mark on the shore, and thence runs by the shore to another point at high water mark, will, in the absence of other calls or circumstances showing a contrary intention, be construed as excluding the shore, it is equally true that when both the termini of a boundary by the shore are at its outer margin, the shore will be included. This is the necessary and logical resuit when both the starting and ending points of the boundary by the shore are at the same margin of the shore. The grantor’s intention may not be so apparent when one of the termini of the shore boundary is at one margin and the other at the other. But even in such a case when nothing appears in the case showing any motive for a separation of upland and shore, and it does not appear that the shore has any value apart from the upland, and there can be no reason why an owner of both should convey the one and retain the other, if one of the termini of the boundary by the shore is at low water mark, and the other, according to the technical construction of a call in the deed, is at high water mark, the shore will be regarded as included in the conveyance, because of the strong presumption under these circumstances, that such was the intention of the grantor.</p> <p>In an action under R. S., c. 3, l 63, to recover the penalty therein provided for maintaining a fish weir below or beyond low water mark in front of the shore or flats of the plaintiff, it appears that the plaintiff is the owner of a large tract of land,, containing about seventeen hundred acres, known as Petit Manan Point, which extends almost exactly south into the sea. The water upon the east side of the Point is known as Pigeon I-Iill Bay, and that upon the west side as Dyer’s Bay. The Point is nearly separated from the rest of the mainland upon the north by a long narrow inlet, known as the Carrying Place Cove, which extends from Dyer’s Bay on the west side of the Point, in a south easterly direction towards, and to within one hundred rods of the eastern shore of the Point.</p> <p>The plaintiff put into the case a chain of deeds commencing with one in in 1820 and continuing until the conveyances to him as trustee. These deeds admittedly conveyed the upland and brought the title thereto into the plaintiff. The question is whether or not they included and conveyed the shores, and especially the eastern shore in front of which the weir complained of is maintained. The earlier deeds, prior to 1827, unquestionably included the shore. Whether or not the form of description adopted in the various deeds from 1827 up to the timé of the conveyance of an undivided portion of the Point by quitclaim deed in 1867 and the conveyanee of the remainder by a warranty deed in 1874, included the shore, may be doubtful.</p> <p>But in the warranty deed of 3874, under which the plaintiff claims, the material calls are as follows, — “ Beginning at a blue ledge at the southeast corner of the E. A. Hilton lot, so-called,” the boundary is then described as extending westerly and northerly by some small lots, “ to the Carrying Place Cove, thence following the shore of said Cove northerly and westerly to the waters of Dyer’s Bay, thence southerly by the shore to the southern extremity of Petit Manan Point, thence following the shore easterly and northerly to the first mentioned bound.”</p> <p>Ifwill be noticed that in this description the starting point is on the eastern shore of the Point, and the termination of the first boundary line, which extends across the Point to the Carrying Place Cove, is at low water mark, according to the invariable construction of the language of this call. The next boundary, which commences at low water mark and extends by the shore “ to the waters of Dyer’s Bay,” is necessarily by the outer margin of the shore, because both termini are at that margin. Erom this Point, low water mark at the junction of Dyer’s Bay and the Carrying Place Cove, the boundary is described as extending by the shore “to the southern extremity of Petit Manan Point,” which means, when considered in connection with the starting point for this last boundary, the southern extremity of the Point at low water mark. So that when the boundary commences to run northerly, “following the shore” from the southern extremity of the Point, it starts at the outer margin of the shore. The form of the description above quoted was followed in substance and effect in all the subsequent deeds until the title to the Point came to the plaintiff.</p> <p>In accordance with the general principles above stated it is considered by the court that this description discloses an intention on the part of the grantor to include the shore upon the eastern side of this point of land, and that the result is the same whether the southeast corner of the Hilton lot, the point of beginning on the eastern shore, and the terminus of the boundary after it has extended around the whole point, is at high or low water mark. That it is unnecessary to determine the location of the blue ledge referred to in the deed as at the southeast corner of the Hilton lot, because this ledge was evidently selected as a convenient monument for the purpose of indicating the point of beginning at the shore, rather than the identical starting point on the shore with reference to high or low water mark.</p> <p>It is further considered that this record title to the shore in the plaintiff, which extends back to 1867, and 1874, coupled with evidence showing a possession by the owners of the upland for the entire period entirely consistent with the joint ownership of upland and shore, and showing that no claim to or possession of the shore was ever made or had by previous owners of the upland or by anybody else, is sufficient to authorize the maintenance of this action against these defendants, who do not claim to have any title whatever or right to the possession of the shore. And that consequently it is not necessary to determine the construction of the descriptions in the prior deeds.</p> <p>Upon the issue of facts presented as to the character of the weir complained of, held; that this weir is not one “the materials of which are chiefly removed annually;” and that consequently the statute under which the action is brought is applicable.</p> <p>The language of this statute, “in front of the shore or flats of another” cannot be taken literally; the statute must contain some limitation other than is expressed therein; the criterion to be applied, in determining whether or not a weir is in front of the shore of a plaintiff, within the meaning of the statute, is whether or not it causes injury of some kind to the plaintiff in the enjoyment of his rights as shore owner; the action cannot be maintained unless it appears that the weir complained of is so near or is so situated, with reference to plaintiff’s shore that it in some way injures or injuriously affects him in the enjoyment of his rights as owner.</p> <p>Held; that it sufficiently appears from the situation, and from the evidence, that the defendants’ weir injuriously affects the rights of the plaintiff as the shore owner.</p>

<p>On report. Judgment for plaintiff against Canton.</p> <p>Actions of assumpsit for pauper supplies furnished by the plaintiff town to a man and his family who fell into distress in Carthage.</p> <p>The pauper had never gained a settlement in his own right either in any of the three towns concerned or elsewhere.</p> <p>The case appears in the opinion.</p>

Appeal in equity. Appeal dismissed. Bill in equity brought by the plaintiff, Seth Sterling, in which he alleged that he is the owner of certain premises on Peaks Island, to which premises is appurtenant a right of way over land now owned by the defendant Littlefield, across which way the defendant Rounds, as tenant of Littlefield, has erected a building which wholly obstructs this way and completely cuts off the plaintiff from access to the sea shove on Peaks Island.

Law on agreed statement. Complaint and warrant dismissed. This was a complaint under Stat. 1885, c. 366, § 8, and originated before the Sanford Municipal Court, York County. The statute is as follows:— Sect. 8. “ Whoever advertises or gives notice of the sale or keeping for sale of intoxicating liquors, or knowingly publishes any newspaper in which such notices are given, shall be fined for such offense the sum of twenty dollars and costs, to be recovered by complaint.

Bill in equity heard on bill and demurrer. Demurrer sustained. Exceptions by plaintiffs. This was a bill in equity praying for the conveyance of certain real estate alleged to have been conveyed in fraud of the plaintiffs.

<p>Bill in equity by an execution creditor to compel the grantee, in a conveyance claimed to be fraudulent, to execute a deed of certain real estate in Warren, Knox County, and thus remove a cloud from the title obtained by plaintiff by levy of an execution issued on a judgment founded on a debt existing at the time of making the deed.</p> <p>The case is stated in the opinion.</p>

Motion by defendant for new trial. Sustained. Case for alleged negligence and want of care and prudence in moving the plaintiff from Mechanic Falls, where she fell into distress, to Norway. The defendant was employed to remove plaintiff by the overseers of the poor of Norway.

On report. Judgment for defendant lumber owners. Action for enforcing a lien claim for cutting, hauling and sticking 265,300 feet of logs and lumber by the plaintiffs, by virtue of a contract with one Frank A. Morrill, and by and with the consent of lioscoe K. Morrill, the supposed owner. The case appears in the opinion.

On report. Judgment for defendant. Action on the case under R. S., c. 16, § 9, to recover damages for failure to maintain and keep in repair a public drain, with which the plaintiff alleged she had the right to connect her premises. The case appears in the opinion. Counsel cited: Blood v. Bangor, 66 Maine, 154; Franklin Wharf Co. v. Portland, 67 Maine, 46, 24 Am. Rep. 1; Estes v. China, 56 Maine, 407; State v. Portland, 74.Maine, 268, 43 Am.

<p>On report. Judgment for defendant.</p> <p>Assumpsit on an alleged agreement by defendant insurance company to pay $400 as a compromise settlement of plaintiff’s claim of $500.</p> <p>Plaintiff made his claim as mortgagee of the wife of the insured to whom the destroyed premises were conveyed without the consent of the company required by the terms of the policy.</p> <p>Plaintiff’s declaration was as follows: —</p> <p>“In a plea of the case — For that whereas the said defendant company on the thirteenth day of January, 1897, in consideration of a premium in money, then and there paid to it by one Simon P. Baker of Andover, in said county, made a policy of insurance, number 80,285, upon a certain dwelling-house of the said Baker, situated on Farmer’s Hill in said Andover, at the corner of the Andover and Bumford roads: and the said defendant company by said policy promised the said Baker to insure five hundred (500) dollars thereon from the said thirteenth day of January, 1897, until the thirteenth day of January, 1900, against all loss or damage by fire originating from any cause except invasion, foreign enemies, civil commotions, riots, or any military or usurped power whatever: and the plaintiff avers that afterwards, and before the expiration of the time limited in said policy, to wit: on the second day of August, 1899; to wit: on the second day of August A. D. 1899, the said dwelling-house was accidentally and by misfortune totally consumed by fire; and the plaintiff' avers that he was then, and still is, interested in said real estate as mortgagee, and that the amount of the debt secured by said mortgage was, and is, the sum of seven hundred (700) dollars and interest, which mortgage is still unpaid or satisfied; and the plaintiff further avers that after the destruction of the said dwelling-house by fire as aforesaid that he duly notified the said defendant company that he held a mortgage of the said real estate and claimed a lien on the said policy of insurance, by virtue of the statutes in such case made and provided, for the full amount of the insurance, to wit: five hundred (500) dollars: whereupon a dispute arose between the said plaintiff and the said defendant company as to the liability of the said company to pay said claim, and also as to the amount that should be so paid; and the said plaintiff was about to sue said company to recover said five hundred (500) dollars; and the said defendant company on, etc., to wit: on the eleventh day of October, 1899, and on divers other days and times, at, etc., to wit: at said Paris, with full knowledge of the premises, and after due investigation of the plaintiff’s claim, in order to settle and compromise the same, and to avoid litigation, and in consideration of the said plaintiff’s promise to forbear to sue said claim, and to forever relinquish and release to the said defendant company all his right of action by reason of the same, promised the said plaintiff, both orally and in writing, to pay him the sum of four hundred (400) dollars, which offer the said plaintiff agreed to accept in settlement and in compromise of his said claim of five hundred (500) dollars against said defendant company; and the plaintiff avers, that confiding in the said promise of the said defendant company, he has hitherto foreborne to sue the said defendant company, and never commenced an action against the said defendant company on this behalf; and, although a reasonable time for the payment of the said sum of four hundred (400) dollars, so owing by the said defendant company has long since elapsed: yet the said defendant company, though often requested, has not paid the same, but neglects and refuses so to do, to the damage of said plaintiff) as he says, the sum of eight hundred dollars.”</p> <p>The plea was the general issue with no brief statement.</p> <p>The facts are stated in the opinion.</p>

Motion by defendant. Sustained. Action on the case, under R. S., chap. 18, § 80, to recover for bodily injuries sustained by plaintiff by reason of the overturning of the one-horse open wagon in which plaintiff was traveling with her husband, who was driving. The wheels next to the northerly sidewalk curbing struck a pile of dirt extending into the traveled portion of Main Street in Lewiston. Both occupants of the wagon were thrown out.

On report. Bill in equity. Dismissed. Bill of interpleader by the executor of the will of Joseph M. Heseltine, late of Dexter, deceased. The case appears in the opinion. Counsel cited: Baldwin v. Bean, 59 Maine, 481 ; Richardson v. Richardson, 80 Maine, 585; Baxter v. Baxter, 62 Maine, 540.

Exceptions by plaintiff. Overruled. Upon a second trial of this case granted by the court, as reported in 96 Maine, 207, the presiding justice ordered a verdict for the defendant. Tlie parties agreed that if a verdict in favor of the plaintiff would have been authorized by the evidence, judgment should be rendered for the plaintiff for such sum as the law court believe the plaintiff was entitled to. The case is stated in the opinion.

<p> Negligence. Master and Servant. Road Commissioner. Public Officer. Pleading. </p> <p>The relation of master and servant is not created between a road commissioner and the men employed by him in repairing a street, although he has the right to select and discharge them, and to determine what work shall be done, and the way and manner in which it shall be done.</p> <p>Sound public policy forbids that public officers should be held responsible for the negligence of those whom they are obliged to employ in the discharge of their duties in the execution of public works, when such officers are not chargeable with any want of diligence or due care on their.part.</p> <p>The defendant, a road commissioner, supplied to the plaintiff and other men emiffoyed by him in repairing the street a derrick as a completed appliance, to be used in doing the work in which they were engaged. While he may have been under no obligation to furnish the derrick, yet having done so he assumed the obligation towards those who were to use it of exercising reasonable care to see that it was safe and suitable, and so maintained.</p> <p>In the execution of public works, he' who selects the place in which the work is to be done, and invites and directs the workmen who labor therein, assumes towards them the obligation of seeing that such place is reasonably safe.</p>

Motion by defendant for new trial. Motion sustained. Case for negligence. This was an action brought by Walter Cowett against tlie American Woolen Company for an accident resulting in tlie loss of tlie fourth finger of his left hand, while in the employ of said company in its mill at Skowliegan, Jan. 12th, 1901.

On report. Judgment for plaintiff. Action of debt on a policy of life insurance. Plaintiff claimed under an assignment executed both by the assured and his wife who was the beneficiary named in the policy.

Exceptions by respondent. Sustained. Indictment for a nuisance under R. S., c. 17, § 5. Respondent was charged with raising the water in Webb’s Pond in the town of Weld, in Franklin County, by means of a dam, to such a height that the highway around the head of said pond was overflown, obstructed and rendered impassable. The indictment was as follows:— “State of Maine. Franklin, ss.

<p> New Trial. Warranty. Sale. Horse. Whistler. </p> <p>When it is obvious that the jury reached their conclusion by inferences not sustained by facts proved, a new trial will be granted.</p> <p>In a case where the evidence consists principally of testimony which is neither discredited nor conflicting, and the cross-examination of the witnesses indicates no distrust of their truthfulness, the law court lias the same opportunity as the jury to weigh the evidence.</p> <p>In such a case, on a general motion for a new trial, the questions in dispute will be examined by the law court by a review of the evidence from the point of view of the parties.</p> <p>The disease of whistling in a horse sold with a warranty was not known to the parties or any of their witnesses, until nearly two months after the sale, although nearly all of them were experienced horsemen, and the usual tests were applied.</p> <p>Within a few days after the symptoms were first recognized the disease resulted fatally.</p> <p>Held; that a theory that the disease existed in the horse in question, in a primary stage, at the date of the sale and warranty, is not well founded.</p>

Exceptions and motion by defendant. Motion sustained. Exceptions overruled. Action on the case for slander uttered by defendant concerning plaintiff.

On report. Bill sustained and decree according to the opinion. Bill in equity asking for the construction of the will of Edward A. Marwick, of Portland, deceased. The case appears in the opinion.

Motion by plaintiff for new trial. Sustained. Assumpsit brought to recover the amount due on two promissory notes given by the defendant to the plaintiff, in part payment for the transfer to him of plaintiff’s holdings in the capital stock of the Gate City Lumber Company of Port Angeles, on Puget Sound, in the State of Washington. A witness whose deposition was taken on behalf of defendant testified in answer to one of the direct interrogatories as follows:— “8.

<p>The Legislature is not inhibited by any provision in the Constitution of the United States, or of this State, from exercising the power of limiting incorporated insurance companies to the issuance of one standard fire insurance policy, even though such standard form contain a clause that there shall be no right of action on the policy until the amount of the loss or damage be determined by three arbitrators, or there be a waiver of such clause by both parties.</p>

<p>In levying a State tax, the Legislature is prohibited by the Constitution, Section 8, Art. IX, from fixing a higher rate of taxation upon lauds outside of corporated cities, towns and plantations than the rate upon lauds within such municipalities.</p>