Volume 98 — Maine Reports

Appeal. Motion for new trial based on newly-discovered evidence. Motion sustained. The defendant was found guilty of the murder of Mathias Pare March 11, 1901, at or near Misc.y Stream between Brassua Lake and the Canadian Pacific Railroad, by the jury at the following September term of this court in Somerset County.

On report. Judgment for plaintiff. Debt on bond to the judge of probate of Piscataquis County, on the application of Hattie Eveletli widow of John H. Eveleth late of Greenville in said county, deceased. The suit was in common form in such cases against the executor and the American Surety Company of New York which furnished the bond. The plea was the general issue with a brief statement of full performanee.

<p>Pax. Assessment, Supplementary, Erroneous Description. Amendment. Pleading. Demand. Costs. R. 8., c. 6, §14, par. 8; %%24, 85, 9%.</p> <p>A liberal construction will b.e given to the statute for the collection of taxes by an action at law when no forfeiture is involved.</p> <p>Personal property of deceased persons, in the hands of their executors or administrators not distributed, should be assessed to the executors or administrators. E. S., c. 6, $ 14, par. 8.</p> <p>In an action of debt against an executor for the collection of a supplementary tax assessed upon personal property of the deceased in his hands, the assessment was : “Heirs of A. B. or C. D., Executor.” Held; that there is no statute authorizing the assessment of a tax upon personal property to the “heirs of” the deceased; therefore the phrase “heirs of A. B., or ” is surplusage and the executor is liable for the tax.</p> <p>When an original assessment of a supplementary tax is correct, it is the duly of assessors to correct any erroneous transcription to the collector’s book.</p> <p>The plaintiffs declared upon the regular assessment in which the defendants name did not appear ; but under the statute, as held by the decisions of this court, the regular and supplemental assessments for legal purposes become one; and a declaration which intelligibly sets out that a tax is due under either, is sufficient.</p> <p>Costs are not allowed when no demand for payment of a tax has been made before action brought.</p>

On report. Bill to obtain the construction of the will of Herman Elvas Davidson, late of Bar Harbor, deceased. The defendant, one of the two only heirs, answered and joined with the plaintiff in requesting its construction.

Motion by defendant. Case for personal injuries. Plaintiff was a conductor on one of defendant’s electric cars. The car, which was open, was crowded and the conductor was collecting fares on the running board when he was struck by a pole at the side of the track supporting the trolley. The verdict was for plaintiff for $1472.08. Defendant filed a general motion for a new trial alleging the usual grounds. The facts are stated in the opinion.

On report. Case for personal injuries. The terms of the report, amounting practically to an agreed statement of facts, were as follows: This was an action on the case for negligence. The case was opened to a jury. The testimony showed that the plaintiff, sixty-eight years of age, was riding in a carriage with her husband. The husband, who was seventy-two years of age, was driving.

<p>Railroad Commissioners, Appeal. Decree, Temporary, showing indecision — void. Railroad Crossings, Electric Railroad. Stat. 1901, c. 191; 1895, o. 72, 1,2, 3.</p> <p>Under our statutes the whole question of how railroad crossings shall be constructed and maintained is left, in the first instance, to the sound judgment and discretion of the railroad commissioners for determination; and their decision when made is final, unless an appeal is taken.</p> <p>They have no authority to modify or change such a decree once made, except upon a new application, notice and hearing; nor can they, before appeal, make a temporary decree which does not purport to represent their sound judgment and discretion in the premises. Such temporary decree is void.</p>

Appeal in equity. Petition in equity by ten tax payers of the City of Gardiner asking an injunction against the Gardiner Water District, incorporated by an act approved Feby. 26, 1903, for the purpose of supplying that city and the towns of Randolph, Pittston and Farmingdale with pure water for domestic and municipal purposes.

On report. Petition as in equity, heard on bill, answer and evidence reported to the law court, under P. S., c. 4, § 53, as amended by stat. 1893, c. 260. The petitioner claimed that he was elected to the municipal office of collector of taxes of the town of Pichmond at the annual town meeting for 1903, and is now entitled to hold said office, and that the defendant Randlette is now unlawfully claiming to hold said office.

On motion and exceptions by defendants. Assumpsit to recover $6,250 for services alleged by the plaintiff to have been rendered by him for the defendants in procuring a purchaser of real estate. Plea, general issue. Verdict for plaintiff for $2,750. The disposition of the case upon the motion for a new trial made by the law court renders a report of the bill of exceptions immaterial. The case is stated in the opinion.

<p>On report.</p> <p>Action for loss of plaintiff’s baggage by theft from the defendant’s station at Wiscasset.</p> <p>It was admitted that the owner did not accompany it while it was being transported from Boston to Wiscasset, its place of destination. The case appears in the opinion.</p>

Exceptions by defendant. Action of assumpsit on two promissory notes with a count on account annexed. Defendant was sued as executor of the last will and testament of Nancy A. Smith, deceased.

On report. This was a hearing on a petition for a writ of certiorari to quash the proceedings of the County Commissioners of York County who had ordered the town of South Berwick to repair an alleged town way in that place. The facts appear in the opinion.

On report. Petition for mandamus. It was agreed by the parties at the argument of the cause before this court in banc that the petition and answers should be regarded as.the alternative writ and return.

<p>Exceptions by defendant.</p> <p>Assumpsit on a promissory note to which defendant pleaded the statute of limitations. At the close of the testimony the presiding justice directed the jury to return a verdict for the amount due on the note after deducting the indorsements thereon. The defendant after the verdict was allowed exceptions to this direction to the jury. The facts appear in the opinion.</p>

<p>Judgment. Neither Parly, and no further action for same cause. Defendant surrenders nothing. Practice.</p> <p>The entry of “neither party, no further action for same cause” extinguishes the plaintiff’s cause of action. But the defendant thereby surrenders no right of action for any cause, whether it grew' out of the original action or otherwise.</p>

Agreed statement. Action for pauper supplies. Plea general issue, with brief statement that the notices were insufficient, said notices not stating the number; nor whether they were all or part of the children of Alden B. Partridge; neither did the notices state the age, sex or condition; nor whether the children were living with their parents or apart from them, — the only designation being children.

Exceptions by plaintiff, and defendant. Plaintiff’s Exceptions. This was an action of debt brought under sec. 141 of chap. 6, of the Revised Statutes of Maine, for the collection of a supplemental tax assessed by the proper authorities of the town of New Gloucester against the defendant, Solomon H. Chandler, for the municipal year, 1902, as of April 1st of that year, in accordance with sec. 35 of said chap. 6, the writ bearing date of March 23rd, 1903. Plea of general issue.

<p>On report.</p> <p>Debt to recover a tax. The case appears in the opinion.</p>

Facts agreed. Trover by mortgagee under a chattel mortgage for the conversion. of potatoes by the landlord who claimed title under a lease. The case appears in the opinion.

On report. Assumpsit for breach of contract of bargain and sale of a certain quantity of hay, alleged by the plaintiff to have been sold by him to the defendant. Defense, want of delivery.

On report. Real action to recover a parcel of fifteen acres of land in Old Town, lying on the west bank of the Stillwater branch of the Penobscot River east of the Bennoch road, and south of the road leading from Gilman’s Falls to Old Town. The controversy was over the five acres immediately adjoining the river.

<p>Mortgage, oí real estate. Trees and Grass, ’Removal of. License, To cut 15 or 20 M feet of lumber, to pay interest, taxes and insurance. Trover.</p> <p>1. Permission given by a mortgagee of real estate to the mortgagor to out and remove timber for the purpose of paying taxes and insurance on the mortgaged property and back interest on the mortgaged debt, does not authorize the mortgagor to use the timber for the payment of his debts to other parties. Such parties acquire no title to the timber as against the mortgagee.</p> <p>2. A mortgagee taking possession of the mortgaged premises in the absence of the mortgagor is not required by the law to give personal notice thereof to the mortgagor or his assigns.</p> <p>3. After possession taken by the mortgagee, even without personal notice to the mortgagor or his assigns, the latter cannot lawfully remove the grass then growing on the mortgaged premises without the consent of the mortgagee.</p> <p>4. After possession taken by the mortgagee he has all the rights of a mortgagee in possession though his possession is not so visible, notorious and exclusive as is required to acquire a title by disseisin.</p> <p>5. The value of timber and grass taken from mortgaged premises b.y the mortgagor or his assigns is a question which a jury can determine better than the court.</p>

<p>On report.</p> <p>The case is stated in the opinion.</p>

<p>On report. Judgment for plaintiff in action at law.</p> <p>Real action against a purchaser from the guardian of Marie J. Purington, to recover a lot of land claimed to have been conditionally devised to the demandant, one of the legatees, by the second item of the will of Helen J. Purington, deceased; and bill in equity against Selina Purington, Admr., Solomon Haskell, and Albert H. Burroughs, asking for a construction of the will. The prayer of the bill was as follows:—</p> <p>“Wherefore to save a multiplicity of suits, your orator prays that the court will construe the provisions of said will, and will particularly determine:</p> <p>1. “Whether, under said will, such title to these several parcels of real estate described therein vested in said Marie J. Purington as to enable her guardian to sell and convey the same under proper proceedings in the Probate Court, to provide means necessary for the support and education of his ward.</p> <p>2. “If this question is answered in the affirmative, and if the sale of the Burroughs’ lot was otherwise valid, to whom shall the guardian pay the balance in his hands, as stated in the ninth paragraph.</p> <p>3. “And also determine and state whether any, and if any, what interest or estate under the terms of said will vested in said Dora Purington or her heirs.</p> <p>4. “And for such furth.er and other relief as the nature of your complainant’s case may require and to your Honors may seem meet.”</p> <p>The case appeal’s in the opinion.</p>

<p>Costs, Persons entitled. Parties. Practice. R. S. (1883), c. 82, §§ 117, 124, ISO.</p> <p>1. The court lias power to admit a defendant in an action at law to appear and file within the'first two days of the return term a motion to dismiss the action for want of sufficient service of the writ, even though he declares and notes upon the docket that he appears for that purpose only and for no other purpose.</p> <p>2. A defendant so appearing and filing such'a motion to dismiss becomes thereby a party to the action, and if his motion be sustained and the action dismissed, he is the “prevailing party” and is entitled to costs by force of the statute B. S. (1883), c. 82, § 130.</p> <p>3. While the decision in a case at law is the act of the court, the judgment following the decision is the act of the law; and the clerk of the court should record the full consequent judgment of the law as well as the decision of the court. When a party is entitled by law to costs as a consequence of a decision of the court, the record should show a judgment for costs.</p> <p>■4. If the clerk of the court omits to record a judgment for costs in such a case, the court has power at any time (certainly upon notice and hearing and in some cases without either), to cause the omission to be supplied and a full proper record made showing a judgment for costs.</p> <p>Thomas v. Thomas, 96 Maine, 223.</p>

<p>Master and Servant, Liabilities for injuries to third persons. Negligence. Independent Contractor.</p> <p>1. The relation of master and servant does not exist between the owner of land and a contractor, over whom he has no direction or control, whom he employs to move a certain building without designating the route, the contractor to furnish all the needed means, labor and appliances therefor, for a specified price; their relation is that of employer and contractor, and the land owner is therefore not liable for damages resulting to a third person from the sinking by such contractor of a post or deadman in the highway with a chain and hook attached, used in such removal of the building and left in the highway.</p> <p>2. The general rule in such cases is that the sub-contractor alone is responsible.</p> <p>3. Where one employs another to do an act unlawful in itself, he will be liable for an injury caused by such act. Held; that the moving of the building in this case and which had been removed and was no longer in the highway did not cause the plaintiff’s injury, but that the contractor’s negligence in leaving the chain and hook in the highway after the removal' of the building was the proximate cause of the injury.</p>

<p>Equity, Jyiquor nuisance. Practice, bill and petition. Allegation of future illegal use, - R. 8. (1883), c. B7,§ 1; Slat. 1891, c. 98.</p> <p>1. A proceeding in equity, brought under the provisions of R. S. (1883), c. 17, § 1, 'as amended- by ch.' 98 of the Public Laws of 1891, to enjoin a liquor nuisance, is to be governed by the general rules of equity procedure. But it is not subject in every respect to the strictness of equity pleading.</p> <p>2. It is maintainable, although it is not alleged in the bill, that the defendant intends to continue the illegal use complained of.</p>

<p>Receptions, Petition for allowance of. Probate. Appeal, Tinie;of hearing:. R. S. (1903), c. 63, § S3; a. 77, l 66. Slat. 1893, c. 17+. fi. R. S. Mass. (1902), c. 173, § no.</p> <p>A petition to the law court representing that exceptions alleged by the petitioner in the court below were disallowed by the presiding judge, and asking that the truth of the exceptions may be established before this' court, should set forth all the material facts relating to the exceptions and be. verified by affidavit.</p> <p>Such affidavit to verify the petition is not accepted, however, as evidence of the truth of the exceptions, but upon motion of either party a commissioner will be appointed to take the depositions of such witnesses as may be produced on either side.</p> <p>In this case no motion was made for the appointment of a commissioner to take testimony and no testimony w>as taken. The only evidence, therefore, which this court can properly consider respecting the rulings complained of in the court below, is found in the copies of the docket entries made at the time of the rulings, and the admissions of the petitioner contained in the several petitions signed by him.</p> <p>The provision of It. S. (1903), c. 63, ? 33, that a petition for leave, to enter an appeal from a decree of the judge of probate “shall be heard at the next term after the filing thereof” is directory and not mandatory. It is to be assumed that the legislature was not seeking to control the discretion of the court in the discharge of ordinary judicial functions, but to impress upon the minds of the parties as well as upon the court the importance of an early settlement of all questions of which the probate court has jurisdiction. It must be construed to mean that the petition is cognizable and in order for hearing at the next term after filing, and that the parties are entitled to be heard at that term unless in the exercise of a sound discretion, and in the furtherance of justice, the court for good and sufficient cause shall otherwise order.</p> <p>There is no evidence in the case having any tendency to show that the order for the continuance given in Graffam, Admr., Petr., v. Ray et als, now complained of, uas not given in the exercise of the sound discretion of the court and in the furtherance of justice; and, as such, the ruling was not subject to exceptions.</p> <p>A petition for leave to enter such, an appeal is addressed to the discretion of the presiding justice, and his decision is final and not subject to exception. In Grctffam, Guard., Petr., v. Cobb, the other case, the petition was addressed to the sound judicial discretion of the presiding justice, and it was dismissed by him in the exercise of that discretion. His ruling was not subject to exceptions and for that reason doubtless, the petitioner’s exceptions were disallowed.</p>

<p>Negligence, Duty of property owners to employees and visitors. Licensee, Want of due care.</p> <p>It is well settled law that owners of property on which dangerous conditions exist, are liable in damages to persons in their employ who are injured thereby, when ignorant of the danger and in the exercise of due care.</p> <p>In such case persons going upon the property on business of the owner are deemed to do so by an implied invitation of the property owner, who owes them the duty to make their premises and entrance thereto reasonably safe, also to give ample warning of their dangerous condition.</p> <p>These duties of the property owner are not extended to a trespasser or mere licensee. Such person must take the premises as they are in fact, and he assumes all risk of injury from their condition.</p> <p>Upon the question whether the plaintiff’s intestate, who lost his life by falling into a tank in the defendants’ premises and left open by the negligence of their servants, went upon the premises as a trespasser, licensee, or by the defendants’ invitation, it appeared that he was not there on any business connected with the defendants; that he had a gratuitous message to deliver to an employee there but having no relation to the business conducted there; that he was calling socially upon his acquaintances, and at best was indulging his curiosity to look over the place where' he had been on previous occasions.</p> <p>Held; that he was a mere licensee, and the defendants owed him no duty except that they should not wantonly injure him; also that the negligence the defendants’ servant in leaving the tank, with its heated contents open and exposed, imposed no liability upon them to this licensee, and that the case fails to show evidence of an invitation, to the intestate to enter or be on any part of the defendants’ premises, or that he exercised due care.</p>

<p>On report. Information by Attorney General.</p> <p>The proceeding by the Attorney General is as follows: —</p> <p>State of Maine. Lincoln, ss. Supreme Judicial Court, April Term, A. D. 1908.</p> <p>State of Maine. By information of George M. Seiders, Attorney General, vs. Twin Tillage Water Company.</p> <p>Be it remembered that on the twenty-ninth day of October, in the year of our Lord one thousand nine hundred and two, George M. Seiders, Attorney General' of the State of Maine, comes before the court in his proper person and by virtue of his office, and in behalf of said State gives the court to understand and be informed that the Twin Village Water Company did on the first day of October, in the year of our Lord one thousand nine hundred and two, usurp and still continues to usurp the following liberties, privileges and franchises, to wit:</p> <p>In that during the time aforesaid it has exercised the powers, privileges and immunities incident by law to a corporation aggregate, and as such has claimed a franchise to furnish electric lights for lighting streets in the towns of Nobleboro, Newcastle and Damariscotta, and to dispose of electric light and power to individuals and corporations therein, all which liberties, privileges and franchises the said Twin Village Water Company during said time hath usurped upon said State, and still doth so usurp, to the great damage of said State.</p> <p>And the said Attorney General, by virtue of his office aforesaid, and in behalf of said State, further gives the court to understand and be informed as follows:</p> <p>1. By chapter six hundred and seven of the Private and Special Laws of Maine for the year one thousand eight hundred and ninety-three the Twin Village Water Company, then known by the name of the Glidden Water Illuminating and Power Company, was duly authorized by the Legislature of Maine to furnish water for the extinguishment of fires and for domestic, sanitary and municipal uses to the towns of Nobleboro, Newcastle and Damariscotta and the inhabitants thereof, and to furnish electric lights for lighting streets in said towns and to dispose of electric light and power to individuals and corporations.</p> <p>2. That by chapter ten of the Private and Special Laws of Maine for the year one thousand eight hundred and ninety-five the name of said corporation was changed from the Glidden Water Illuminating and Power Company to the Twin Village Water Company, and it was therein provided that in case no portion of the works of said corporation should be put into operation within four years from the date of the approval of said Act, the rights and privileges therein granted should be mill and void, and said Act was approved on the first day of February of said year one thdusand eight hundred and ninety-five.</p> <p>3. That prior to the first day of February, one thousand eight hundred and ninety-nine, the said corporation organized under its charter and the amendment thereof aforesaid, and put into operation a portion of its works within four years from the date of the approval of said chapter ten of the Private and Special Laws of the year one thousand eight hundred and ninety-five by building a waterworks plant and by commencing the furnishing of water for the extinguishment of fires and for domestic, sanitary and municipal uses to the towns of Newcastle and Damariscotta prior to the first day of January in the year one thousand eight hundred and ninety-seven, and has ever since continued to operate the said water plant.</p> <p>4. That the said Twin Village Water Company has neglected since the passage of said chapter six hundred and seven of the Private and Special Laws for the year one thousand eight hundred and ninety-three to furnish electric lights for lighting streets in the towns of Nobleboro, Newcastle and Damariscotta, and to dispose of electric light and power to individuals and corporations therein as by its charter aforesaid provided.</p> <p>And the said Attorney General gives the court to understand and be informed that the said Twin Village Water Company has long since, to wit: on the thirtieth day of September, in the year of our Lord one thousand nine hundred and two, forfeited all its franchises under its charter aforesaid to furnish electric lights for lighting streets in said towns of Nobleboro, Newcastle and Damariscotta, and to dispose of electric light and power to individuals and corporations therein, together with all the rights, privileges, powers, immunities, liberties and franchises aforesaid thereunto appertaining by law.</p> <p>(1.) Because he says that by the acceptance of the aforesaid charter and of the franchise therein created so to furnish electric lights and power as aforesaid, the said Twin Village Company became charged with the public duty of furnishing electric lights for lighting streets in the towns of Nobleboro, Newcastle and Damariscotta, and of disposing of electric light and power to individuals and corporations therein, and of thereby serving the public.</p> <p>(2.) Because the said Twin Village Water Company has neglected and unreasonably refused for a period of more than nine years to perform its aforesaid public duties under its contract with the State so to do.</p> <p>(3.) Because the said Twin Village Water Company has wilfully, intentionally and unlawfully refused to perform its aforesaid chartered duties and has abandoned the same.</p> <p>(4.) Because the aforesaid franchise so to furnish electric lights for lighting streets in said towns of Nobleboro, Newcastle and Damariscotta and to dispose of electric light and power to individuals and corporations therein became the property of the State of Maine on said thirtieth day of September in the year of our Lord one thousand nine hundred and two, when so forfeited as aforesaid, but the said Twin Village Water Company so illegally wrongfully withheld the same from the State since the said thirtieth day of September as aforesaid down to the present day, and has claimed and is still claiming to hold the said franchise as its own, and is illegally and unlawfully preventing the occupation of said streets by any other corporation that might otherwise be lawfully authorized to occupy the same, to the great detriment of the public and in violation of the trusts of its charter, and in wilful perversion of the objects, duties and public obligations thereof.</p> <p>And the said Attorney General further gives the court to understand and be informed that the foregoing illegal acts and doings by the said Twin Village Water Company done and performed, and the failures and omissions to do and perform the acts by the said charter and Act amendatory thereto required, and the forfeiture of all charter rights consequent thereon for furnishing electric lights as aforesaid for said towns, and notwithstanding the expiration of all charter rights as aforesaid, the said Twin Village Water Company has during all the time since said thirtieth day of September, one thousand nine hundred and two, now last past, usurped and doth usurp from said State the liberties, privileges and franchises following, to wit:</p> <p>The powers, privileges and immunities incident by law to a corporation aggregate to furnish electric lights for lighting streets in the towns of Nobleboro, Newcastle and Damariscotta, and to dispose of electric light and power to individuals and corporations therein, all which liberties, privileges and franchises the said Company during said time hath usurped and still doth usurp from said State, to its great damage and injury.</p> <p>Wherefore the said Attoimey General prays the advice of the court in this behalf in the premises, and that due process of law may be awax’ded against the said Twin Village Water Company in this behalf, to answer to this court by what warrant it claims to use and exercise the powers, privileges and franchises aforesaid.</p> <p>Dated this twenty-ninth day of October, in the year of oxxr Lord oix thousand nine hundred and two.</p> <p>Geo. M. Seeders,</p> <p> Attorney General for the State of Maine. </p> <p>(Order of Notice.)</p> <p> </p> <p>Upon the foregoing petition it is ox’dered, that the petitioner give personal notice to the said Twin Village Water Company of the pendency thereof, serving an attested copy of said petition and of this order of Court thereon thirty days at least before the next Term of the Supreme Judicial Coux-t to be lxolden at Wiscasset ixx and for the County of Lincoln on the fourth Tuesday of April, A. D. 1903, that it may thexx and there appear at our said Court and show causé, if any it have, why the prayer of said petition should not be granted.</p> <p>Lucieius A. Emery,</p> <p> Justice, S. J. Court. </p> <p>Oct. 31, 1902.</p> <p>(Officer’s Return.)</p> <p>State oe Maine.</p> <p>Cumberland, ss. November 3d, 1902.</p> <p>I. this day made service of the within petition and order of Court upon the Twin Village Water Company by giving to Herman M. Castner, its President, in hand a copy thereof, said copy being duly attested by Charles L. Macurda, Clerk of Coux'ts for said County of Lincoln.</p> <p>C. L. Bucknam,</p> <p> Deputy Sheriff. </p> <p> Answer of Twin Village Water Company Corporation to said Information. </p> <p>The said Twin Village Water Company Corporation denies that it has usurped on the first day of October, in the year of our Lord one thousand nine hundred and two, and denies further that it does now usurp any liberties, privileges or franchises as alleged in said Information, and asserts that if it has during the time aforesaid exercised the powers, privileges and immunities incident by law to a corporation aggregate, and if it has as such claimed a franchise to furnish electric lights for lighting streets in the towns of Nobleboro, Newcastle and Damariseotta, and to dispose of electric light and power to individuals and corporations therein, it has rightfully done so under power and authority conferred upon it by the Legislature of said State, duly approved.</p> <p>The said Twin Village Water Company Corporation admits and relies upon the several Legislative Acts set out in said Information of said Attorney General, which are mentioned in paragraphs one (1), two (2) and three (3) thereof, and derives its power and authority to exercise the liberties, privileges and franchises before mentioned, under said Acts, and asserts that it has fully complied with and performed all and singular the conditions imposed upon it by said Legislative Acts.</p> <p>And the said Twin Village Water Corporation denies that on the 30th day of September, in the year of our Lord one thousand nine hundred and two, it has forfeited all .of its franchises under its charter aforesaid, to furnish electric lights for lighting streets in said towns of Nobleboro, Newcastle and Damariseotta, to dispose of electric light and power to individuals and corporations therein, together with all the rights, privileges, powers and immunities, liberties and franchises aforesaid, as specified and set forth in paragraph four (4) of said Information and in the four subdivisions or specifications of said paragraph four (4).</p> <p>And the said Twin Village Water Company Corporation further asserts and gives this Honorable Court ’to be informed, that said Twin Village Water Company Corporation is a corporation chartered by special acts of the Legislature of the State, by chapter 607 of the Private and Special Laws of the State of Maine for the year 1893, as amended by chapter 10 of the Private and Special Laws of the State of Maine for the year 1895, and as further amended by chapter 335 of the Private and Special Laws of the State of Maine for the year 1897, all of which Acts, together with the Act of incorporation set forth in and by ch. 239 of the Private Laws of 1887, being herein referred to, are made and form a part of this answer to said Information, and said Twin Village Water Company Corporation asserts that said Act of Chapter 607 of the year 1893, as amended, was a continuation of said chap. 239 of the Private Laws of 1887, with the addition of the right to furnish electric light in said towns, which addition was necessary because of the inability of the incorporators to finance said company unless by its charter it had the right to furnish lights as well as water in and to said towns.</p> <p>And the said Twin Village Water Company Corporation further asserts and gives this Honorable Court to be informed, that by said charter the said Twin Village Water Company Corporation is authorized to furnish electric lights for lighting the streets of Nobleboro, Newcastle and Damariscotta, and to dispose of electric light and power to individuals and corporations therein ; that said company is further authorized by said charter, for accomplishing the purposes of its incorporation, to lay down pipes, set poles, and extend wires in and through the streets and ways in said towns of Nobleboro, Newcastle and Damariscotta, and to take up, replace and repair all such pipes, poles and fixtures as may be necessary for such purposes; and that it is authorized for such purposes to contract with said towns of Nobleboro, Newcastle and Damariscotta, with the village corporations that may exist, or either of said towns, and with other corporations and individuals; and is by said charter authorized to make, generate, sell, distribute and supply electricity in the towns aforesaid.</p> <p>And the said Twin Village Water Company Corporation further asserts and gives this Honorable Court to be informed, that the amendment to the charter of the defendant corporation as made by chapter 10, Private and Special Laws of the State of Maine for the year 1895, among other things provided, “In case no portion of the works of this corporation shall have been put into operation within four years from the date of the approval of this Act, the rights and privileges herein granted shall be null and void;” that the Act containing said clause was approved on the first day of February, A. D. 1895; that the said Twin Village Water Company Corporation began actual operations under said charter and put into operation some portion of its works on or before the first day of January, A. D. 1897, and has ever since said time continued to operate its works under said charter and to perform all duties therein imposed upon it; and that the franchise of said Twin Village Water Corporation now and ever has been in all respects in full force and virtue.</p> <p>And the said Twin Village Water Company Corporation further asserts and gives this Honorable Court to be informed, that by virtue of its said charter, by virtue of the rights and privileges thereby conferred, the performance of its duties therein imposed, and the laws of the State of Maine, the said Twin Village Water Company Corporation has acquired special and exclusive privileges and rights and is authorized to accumulate, store, sell and distribute water, to make, generate, sell, distribute and supply light in the towns and places aforesaid until such rights and privileges shall be abridged by special act of the Legislature of the State of Maine; that under, by virtue of and depending upon its rights and privileges aforesaid, the said Twin Village Water Company Corporation has expended large sums of money in the development of its plant and property, and in performing and preparing itself to' perform and conduct the business which it is, as aforesaid, authorized to do, and the public duties imposed upon it under said charter, and has therefore acquired and has the control of a water privilege and is storing, distributing and supplying water in said towns of Nobleboro, Newcastle and Damariscotta, and has built a power house and other structures sufficient for and with the intention of fulfilling all its purposes aud all business it is authorized to do, and has installed steam power therein; and that the same has been done within the time mentioned in said charter and the amendment thereof, made by chapter 10 of the Private and Special Laws of the State of Maine for 1895, with a purpose and view of exercising all the rights conferred by said charter and the amendments thereof to the fullest extent; and that in the development of its said plant and the exercise of its rights aforesaid it intends in good faith to conduct all branches of business authorized by said charter and the amendments thereto.</p> <p>And the said Twin Village Water Company Corporation further asserts and gives this Honorable Court to be informed, that upon the faith of its rights and privileges aforesaid, and secured by a mortgage of its franchise and property, it has issued, negotiated and sold a large number of its bonds; that the value of the franchise and property of the said Twin Village Water Company Corporation is in large part dependent upon its rights as in this paragraph of this answer is set forth, and upon its right and authority.to generate, sell, distribute and supply light in said towns of Nobleboro, Newcastle and Damariseotta.</p> <p>And the said Twin Village Water Company Corporation further asserts and gives this Honorable Court to be informed, that it has in all things done and performed by it, under and by virtue of its rights, privileges, powers, immunities and franchises aforesaid granted, acted in good faith, and has ever been ready and desirous of installing electric lights in the towns aforesaid, but has never been able to obtain any encouragement from the inhabitants of said towns, or either of them, although it has attempted so to do, sufficient to warrant the installing of an electric plant and equipping the same for the purpose mentioned in said charter.</p> <p>And the said Twin Village Water Company Corporation further asserts and gives your Honorable Court to be informed, that it has complied with every condition precedent, if any, contained in this charter and the amendments thereof, and if there are any conditions subsequent, contained in said charter and the amendments thereof, which this Honorable Court shall find have not been fully performed, this corporation respectfully submits that they are not such as to warrant the Court in sustaining the Information of the Attorney General in this behalf; and the the said corporation respectfully contends that there has been a substantial compliance with and a readiness to perform every condition mentioned in said charter and the amendments thereof on the part of this said corporation, and that it has acted in good faith, not only for the best interests of the corporation but of the public.</p> <p>And the said Twin Village Water Company Corporation further asserts and gives this Honorable Court to be informed, that at the last session of the Legislature of this State, to wit: in the year 1903, the Legislature acting for and in behalf of the State, had its attention called to the question which is raised by this Information, and the Legislature, after a full examination of the question, refused to act or disturb this corporation in the exercise of the powers, liberties and franchises conferred upon it as hereinbefore set forth.</p> <p>And the said Twin Village Water Company Corporation further submits that it has reason to believe and does believe that this proceeding was not instigated by the Attorney General of his own motion,, and solely out of regard to the rights and interests of said State, but that he has simply allowed his name and office, to be used by private parties in bringing this proceeding for their own purposes and for the purposes of competition with the vested rights, liberties, privileges and franchises of this corporation.</p> <p>Wherefore said Twin Village Water Company Corporation denies that since the thirtieth day of September, in the year of our Lord one thousand nine hundred and two, or at any time, it has usurped, or has ever usurped from said State any liberties, privileges or franchises, or that it doth still" usurp the same, but asserts and claims that all the liberties, privileges, powers and franchises exercised by it have been conferred on it by the Legislature of said State, and that all conditions, to the present existence and continuance of all said liberties, powers, privileges and immunities incident by law to a corporation aggregate, to furnish electric lights for lighting streets in the towns of Nobleboro, Newcastle and Damariscotta, and to dispose of electric light and power to individuals and corporations therein, as well as all conditions, to the present existence and continuance of all said liberties, privileges, powers and franchises contained in any of the legislative acts referred to in said Information, or in this answer, have been fully complied with, or if any of them have not been complied witli, the same have been waived on the part of the State.</p> <p>Twin Village Water Company</p> <p>By Enoch Foster \ Attorneys. Arthur S. Littlefield, j :J</p> <p>The plaintiff at the hearing in the court below rested on the information and answer for a prima facie case. After the introduction of evidence by the defendant, the parties agreed that upon so much of the evidence as is legally admissible the full bench were to render such judgment as the legal rights of the parties might require.</p> <p>1. The forfeiture of a franchise is not confined to the franchise as an entirety. It was distinctly decided in the Oldtown Bridge case, 85 Maine, 17, that there may be judgment of forfeiture of a part of a franchise and of re-seizure into the custody of the Slate of that portion of the franchise forfeited.</p> <p>In Comm. v. Sturtecant, 182 Pa. St. 323, it was decided that quo warranto lies to forfeit the exclusiveness of a franchise as well as to forfeit the entire franchise itself. In the following cases judgment was rendered for ouster of part of the franchise. 84 Cal. 118; 10 Conn. 167; 31 Kans. 454; 43 Pa. 301; 35 Ohio, 264; 26 Ohio, 399.</p> <p>2. The ground of forfeiture alleged is such long continued nonuser of the electric light franchise contained in the respondents charter as to raise a legal presumption of abandonment.</p> <p>All charters are granted upon a tacit condition that the grantee shall act up to the end or design for which they were incorporated. Wood on liailroads, Vol. 3, p. 2085. This clearly means within a reasonable time. Territory cannot be occupied by a railroad charter or an electric light franchise perpetually without building, and certainly if not perpetually then the limit must be some reasonable time according to the circumstances of each particular case.</p> <p>It cannot be controverted that all charters of public corporations contain an implied condition that the corporation will within a reasonable time faithfully execute the purposes of the grant, and that if not executed the State as the grantor may re-take its grant for condition broken. The following cases hold that it is the tacit condition in every charter that the State may resume its franchise for non-user. Donald v. State, 48 Ark. 321; Ward v. Farwell, 97 Ill. 593; State v. Minn. Central Railway, 36 Minn. 246; McIntire Poor School v. Zanesville, 9 Ohio, 203; S. C. 34 Am. Dec. 436.</p> <p>Booth, on Street Bailways, § 51, says that a franchise to occupy and use streets for railway purposes may be lost by non-user, and the forfeiture, when not declared by statute or ordinance, may be enforced by proceedings in quo warranto.</p> <p>Morawetz, on Private Corporations, discusses the question of the power of court to compel the construction of a railroad by mandamus, and holds the better rule to be that no such power exists,' upon the ground' that forfeiture of the franchise for non-user is a sufficient remedy for the State.</p> <p>In Heard v. Talbot, 7 Gray, 119, it was held that non-user or failure to perform the express or implied duties of a charter is a cause of forfeiture.</p> <p>3. That the Twin Village Water Company has been so financed in the past as to be unable financially to utilize its electric light franchise is no defense.</p> <p>The court say in People v. Plainfield Avenue Gravel Road Co., 105 Mich. 9, that inability to perform its functions, no matter what the reason is, is one of the most potent grounds for forfeiture. The plea of financial disability is a confession.</p> <p>The court held in Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R. R. Co., 4 Gill & Johns. 1, that non-user, abuse or neglect of franchises is cause of forfeiture, their being a tacit condition in every such grant that a corporation shall act up to the end of its institution. So, too, an inability through misfortune to answer the design for which the body politic was instituted is also a cause of forfeiture: In Penobscot Dam Co. v. Damson, 16 Maine, 231, it was held by way of dictum that franchise may be lost by any neglect of corporate duty.</p> <p>4. No question is raised by the pleadings as to parties, but the authorities are uniform that it is unnecessary in a case like this to bring into court any party save the corporation itself.</p> <p>It is the uniform rule that all parties having an interest in a franchise by way of mortgage, bond, contract, license or title of any kind are bound by causes of forfeiture that happen while the franchise and the duties thereto appertaining are under the control of the corporation.</p> <p>So decided in Com. v. Turnpike Co., 5 Cush. 509, where the court held that the Commonwealth knows no adverse party but the corporation. The court said that all having any pecuniary interest in the loss must use needful vigilance to protect their interests without being made parties. For similar rulings see People v. Globe Mutual Life Insurance Co., 91 N. Y. 174; Silliman v. Railroad Co., 27 Gratt. 119; Campbell v. Talbot, 132 Mass. 174.</p> <p>Necessary allegations: Thompson Corp. §§ 6608, 6793, 6798; State v. Atchison, etc., R. R. Co., 24 Neb. 164, 8 Am. State Rep. p. 181, note. Burden of proof: High Ex. Rem. 2nd ed. § 667, a; Thompson Corp. § 6804.</p> <p>Failure complained of is a condition subsequent and a liberal construction is to be given; performing as near as possible is sufficient: State v. Real Estate Bank, 5 Ark. 595, 41 Am. Dec. p. 113. Failure must be wilful: High Ex. Rem. § 648; Com. v. Commercial Bank, 28 Pa. St. 389; State v. Pawtuxet Corp. 8 R. 1.188; Thompson Corp. § 6608.</p> <p>Reasonable allowance must be made for circumstances and conditions: Commercial Bank of Natchez v. State, 6 Smed. & Mar. 623, 53 Am. Dec. p. 108-9; Thompson Corp. § 6613. Failure to perform the impossible is no ground of forfeiture: People v. Kingston Turnpike Co., 23 Wend. 193, 35 Am. Dec. 555. Duty not absolute; public demand for performance an important element: Com. v. Fitchburg R. R. Co., 12 Gray, 180, 188-189.</p> <p>Discretionary powers of the court: State v. Atchison R. R. Co., supra; Thompson Corp. § 6617. Forfeitures not favored: State v. Atchison R. R. Co., supra.</p> <p>Abandonment: Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 463. Legislative waiver: Stat, 1895, c, 102; 23 Am. & Eng. Ency. Law, 2nd ed. p. 607; State v. Real Estate Bank, supra; State v. Atchison R. R. Co., supra.</p> <p>This proceeding instituted for private purposes: Thompson Corp. § 6812.</p> <p>Quo warranto does not lie upon a simple claim of right to a franchise, but only a usurping it: People v. Thompson, 16 Wend. 654: Atty. Genl. v. Superior & St. Croix R. R. Co., 93 Wis. 614; 23 Am. & Eng. Ency. Law, 2nd ed. p. 601; High Ex. Item. § 602; 17 Ency. Pl. & Pr. 397, note 4; Chincleclamouche Lumber & Boom Co. v. Com. 100 Pa. St. 438.</p> <p>Distinction between franchise and powers: State v. Minn. Thresher Mfg. Co. 40 Minn. 225.</p>

<p>Exceptions by defendant from the Superior Court for Cumberland County.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>The case is stated in the opinion.</p>

On report. This was a bill in equity brought by the plaintiff to redeem certain land, located in the town of Vinalhaven, from the defendants. The bill was so amended, by agreement, at nisi prius, after the decision in 95 Maine, 262, as to account for the one-eighth of the premises not claimed by the plaintiff, and by joining Watson V. Barton, the husband of the defendant, who holds, in .one acre of the described premises, the same rights which his wife holds in the remainder.

<p>Exceptions by plaintiff.</p> <p>[exceptions.]</p> <p>This was an action of trespass brought under the Stat. of 1895, c. 115, K.. S. (1903), c. 4, § 52, which provides: “When a dog does damage to a person or his property, his owner or keeper and also the parent, guardian, master or mistress of any minor who owns or keeps such dog, forfeits to the person injured, the amount of the damage done, to be recovered by action of trespass.” Verdict for defendant.</p> <p>The evidence showed that the plaintiff was a peddler; that he called in the day time at the house of the defendant and entered without permission; that the defendant’s wife and young children were in the house alone; that the defendant’s dog, a common hound, was lying behind the stove when the plaintiff entered; that upon the abrupt and sudden entrance, as claimed by the defendant, the dog seized the plaintiff by the leg and bit him as set out in the plaintiff’s declaration.</p> <p>The presiding justice in the course of his charge to the jury gave the following instructions, to which exceptions were seasonably taken:</p> <p>“Now, if you find on the other hand that this plaintiff was mistaken in his version of the story, that this woman, the defendant’s wife, is correct in her statement as to how he entered the house, then I submit to you the further question of whether the entry of that house by the plaintiff without her permission, without her knowledge, if not against her consent, was a wilful and wanton entry. It is said in law that a man’s house is his castle, and I state to you as a matter of law that under ordinary circumstances (of course friendly calls, if I called to your house or you to mine would not come in the category that makes men trespassers), but if a stranger, an entire stranger attempts to enter my house or your house without our permission I say as a matter of law he has no right to enter; and, that I have, or you have, or any other person, has a right to resist such entry with sufficient force to prevent it. Now, applying this principle to the case at bar, if this plaintiff entered this house as the defendant’s wife says he did, rapped and walked in, a strange house, a house whose inmates he says he never before knew, was such entry wanton and wilful? Now what does wilful mean? It means intentional, an act done intentionally, an act done knowingly and stubbornly and of stubborn purpose as Bouvier in his Law Dictionary says.</p> <p>Now, then, I submit to you, whether if this woman’s statement is true the plaintiff in this case entered wilfully, whether he entered intentionally, knowingly and of stubborn purpose, intending to get into that house, If he did he entered wilfully, and was it a wanton entrance? Wantonly, says Bouvier, is recklessly, without regard to propriety or the rights of others. Was this entry of this house, if this woman states the manner of entry correctly, recklessly done and without regard to propriety or the rights of the inmates of the house? If it was, it was done wantonly, and if it was done in both these ways, it was done wilfully and wantonly; and gentlemen, if you find as matter of fact that this wilful and wanton entry of the house px’ovoked the dog to bite this plaintiff, then the defendant is not guilty.</p> <p>To these rulixxgs and instructions axxd refusals to instruct the plaintiff excepted.</p> <p>A trespasser, whether he has entered upon the land or into the bxxildings of another’, (unless he be a criminal wrong-doei-) must be requested to depart from the premises, before force however slight can be applied to eject him; and that the force when necessary, must be reasonable, appropriate in kind, and suitable in degree to accomplish the object for which it is applied. Johnson v. Patterson, 14 Conn. 1; Com. v. Clark, 2 Met. 23; Abt v. Burgheim, 80 Ill. 94; State v. Woodward, 50 N. H. 527; Com. v. Dougherty, 107 Mass. 243; Com. v. Power, 7 Met. 596.</p> <p>The degree of injury which the owner or occxxpant of a house is xxot justified in inflicting on a trespasser cannot by any construction of law be justified whexx inflicted by the owner or occupant’s dog. What cannot be justified when done directly cannot be justified whexx done indh’ectly. Johnson v. Patterson, 14 Conn. 1; Woolf v. Chalker, 31 Conn. 122; Loomis v. Terry, 17 Wend. 496; Hussey v. King, 83 Maine, 568.</p> <p>If a trespasser is injured by the attack of a dog, the owner or keeper of the dog is liable for such injury. Woolf v. Chalker, 31 Conn. 122; Marble v. Ross, 124 Mass. 44; Meibus v. Dodge, 38 Wis. 300; Loomis v. Terry, 17 Wend. 496; Riley v. Harris, 177 Mass. 163; Glidden v. Moore, 14 Neb. 84, 45 Am. Rep. 98; Conway v. Grant, 30 Am. St. Rep. 147. (88 Geo. 157).</p> <p>The owner of a wild animal (and the law in this State is the same in regax-d to a dog), canxxot be relieved from liability by any act of the person injured, unless it be one from which it can be affinrred that he caused the injury himself, with a full knowledge of the probable consequences. Muller v. McKesson, 73 N. Y. 195, and quoted in Hussey v. King, 83 Maine, 568. See also May v. Burdett, 58 Eng. C. L. 99.</p> <p>The jury found the entry to be as the defendant’s wife said it was, under the rule given by the presiding justice to be wanton and wilful; and found that the wanton and wilful entry of the plaintiff provoked the dog to bite him. We have the curious spectacle of a man breaking into the house of another, provoking a dog lawfully therein to bite him, and then suing the owner of the dog for damages. By what principle of either law or justice can a man, who receives an injury solely through his own wanton and wilful act, ask another to pay for it?</p> <p>In the exhaustive opinion of Hussey v. King, 83 Maine, p. 576, this court said: “It should be noticed, however, that we only decide that, in such actions, as this, the plaintiff need not allege and prove in the first instance his own care. Whether the plaintiff’s want of care can be successfully shown in defense or whether only the plaintiff’s wilful provocation of the animal will bar this action we do not decide, as that question is not presented by these exceptions.” It is held in Keigktlinger v. Egan, 65 Ill. p. 235, “If a person provokes or causes a dog to bite him by kicking or other aggressive acts, and not from any mischievous propensity of the dog, no action can be maintained by the party bitten.”</p> <p>In Muller v. McKesson, 73 N. Y. p. 201, the court say: “If a person with full knowledge of the evil propensities of an animal wantonly excites him or voluntarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said in a legal sense that the keeping of the animal which is the gravamen of the offense produced the injury. Citing: Coggswell v. Baldwin, 15 Vt. p. 404; Wheeler v. Brant, 23 Barb. p. 324; Blackman v. Simmons, 3 Car. and P. 138; Brock v. Copeland, I. Esp. p. 203; Bird v. Holbrook, 4 Bing. p. 628.</p> <p>On page 202 of Muller v. McKesson, 73 N. Y. supra, the court say: “ To enable an owner of such an animal to interpose this defense (negligence of plaintiff) acts should be proved .... which would establish that the person injured voluntarily brought the calamity upon himself.”</p> <p>In the same case on page 204 the court say: “I think in view of all the authorities, that the rule of liability before indicated is a reasonable one, and that the owner cannot be relieved from it by any act of the person injured, unless it be one from which it can be affirmed that he caused the injury himself.” The case of Coggswell v. Baldwin, 15 Vt. p. 402, cited above was for a cow hooking a horse and the court say: “If the injury, in such a case, is received by the negligence of the owner of the animal injured he will not be entitled to recover.” The court must assume as the jury found: First, that the plaintiff entered the house of the defendant wantonly and wilfully. Second, that it was the wanton and wilful entry solely by the plaintiff of the defendant’s house that caused the injury. The dog had a right to live, the defendant had a right to keep him. Neither the defendant or his dog was to blame for the dog biting the jdaintiff, but the injury resulted solely to the plaintiff through his own wilful and wanton act. The decisions are unanimous in holding that in such cases the plaintiff cannot recover.</p>

<p>Motion and exceptions by plaintiff.</p> <p>Trover to recover for the conversion of logs cut by the defendant on Township 3, Range 6, Bingham’s Purchase, West Kennebec River, in Somerset County.</p> <p>The case appears in the opinion.</p> <p>Counsel argued: —</p> <p>First. There is no adverse possession at common law shown on the laud in controversy.</p> <p>Second. There being no adverse possession, upon the record title introduced in this case, the plaintiffs and the defendants are co-tenants, and so chapter 162 of the Laws of 1895 does not apply to this case, as statutes of limitation shall not be applied to cases not clearly within their provisions, and this statute expressly excepts co-tenants.</p> <p>Third. If the court should construe this statute to apply to this case, it cannot affect the plaintiff’s rights to recover in this action, because it is not a limitation law but is unconstitutional for the following reasons:</p> <p>(a) It compels a person in the enjoyment of all his rights to institute proceedings against an adverse claimant to retain those rights, therefore imposing a grievous and expensive burden upon him.</p> <p>(b) It impairs, disturbs, and destroys vested rights by acting retrospectively on titles in existence when it was passed, by changing the principles and the nature of those facts, by means of which those titles had existed, and been preserved in safety.</p> <p>(c) It takes away the seisin in lands from one man and transfers it to another without compensation and thereby directly transfers his property rights to that other; or if not directly, his property rights are subjected to the “government of principles in a court of justice, which must necessarily produce that effect.”</p> <p>(d) It takes away the right of “possessing and protecting property according to the standing laws of the state in force at the time of a person acquiring property and during the time of his continuing to possess property,” because the period of twenty years does not end on the date of the passage of the act but it may end any time before that date, and during the interval between the end of the twenty years and the passage of the act the true owner may have been doing the very acts named as constituting the basis for the running of the statute.</p> <p>(e) It attempts to arbitrarily change the nature of estates by making a person a co-tenant with another against the latter’s consent.</p> <p>(f) By making a man in the possession and enjoyment of his land bring suit to recover that land before he can assert his rights in court as a defense to any injury done his property, it infringes his rights to have justice administered “freely and without purchase, completely and without denial, promptly and without delay.”</p> <p>(g) It is unconstitutional, under the Fourteenth Amendment of the Federal Constitution, because it takes away property without “due process of law.”</p> <p>Fourth. There are no equities in the case which the court can consider.</p> <p>Counsel cited: (1.) Little v. Megquier, 2 Maine, 176; Fleming v. Paper Company, 93 Maine, 110; Hudson v. Coe, 79 Maine, 83; Chandler v. Wilson, 77 Maine, 76; Slater v. Jepherson, 6 Cush. 129; Cook v. Babcock, 11 Cush. 129; Jackson v. Woodruff, 1 Cowen, 276; Thompson v. Burhaus, 61 N. Y. 52; Thompson v. Burhaus, 79 N. Y. 93; Chandler v. Spear, 22 Vt. 405, 406. (2.) Am. & Eng. Enc. of Law, 2nd ed. Vol. 17, p. 682; Duncan v. Sylvester, 24 Maine, 482; Souter v Atwood, 34 Maine, 153; Stanford v. Fullerton, 18 Maine, 229; Souter v. Porter, 27 Maine, 417; Cogswell v. Reed, 12 Maine, 300; Nichols v. Smith, 22 Pick. 316; Brown v. Bailey, 1 Met. 254; Marshall v. Trumbull, 28 Conn. 185; Mattox v. Hightshire, 39 Ind. 95; Shepardson v. Rowland, 28 Wis, 108; Robinett v. Preston’s Heirs, 2 Rob. (Va.) 278; Gates v. Salmon, 35 Cal. 588; Lessee of White v. Sayre, 2 Ohio, 112; Dennison v. Foster, 9 Ohio, 126; State v. Barrett, 15 Cal. 370; Sutter v. San Francisco, 36 Cal. 115; Harlan v. Jjangham, 69 Pa. St. 238; Markoe v. Wakeman, 107 111. 263; Thomas v. Pickering, 13 Maine, 337; Webster v. Atkinson, 4 N. H. 24; Adams v. Frothing-ham, 3 Mass. 352; Jackson v. Livingston, 7 Wend. 136; Donworth v. Sawyer, 94 Maine, 242; Jackson v. Blodgett, 16 Johns. 178; Goodlittle v. Bailey, Cowp. 600; Osman v. Sheafe, 3 Lev. 372; Am. & Eng. Enc. of Law, 1st ed. Vol. 23, p. 324; Campbell v. Thompson, 16 Maine, 117; Merchants Bank v. Gook, 4 Pick, 411; Snell v. Bridgewater Mfg. Co., 24 Pick. 299; Western Union Telegratph Co. v. Scircle, 103 Ind. 229; Buckner v. Real Estate. Bank, 4 Ark. 441; Hillhouse v. Chester, 3 Lay, (Conn.) 211; State v. Engle, 21 N. J. L. 347; Am. & Eng. Enc. of Law, Vol. 1, pp. 801 — 806; Minot v. Brooks, 16 N. H. 378; Farrar v. Eastman, 10 Maine, 195; Blood' v. I Vood, 1 Met. 525; Great Falls Mfg. Co. v. Worster, 15 N. H. 458; Willison v. Watkins, 3 Pet. 51; Dwelley v. Dwelley, 46 Maine, 377; Wing v. Hussey, 71 Maine, 185; ILazell v. Shelby, 11 111. 9, 10; Pease v. Howard, 14 Johns. 439; Jordan v. Robinson, 15. Maine, 167; Bass v. Bass, 6 Pick. 362; Smith v. Lockwood, 1. Wend. 241; Beddell v. Janney, 9 111. 207, 209; Bennett v. Davis 90 Maine, 102; Prop’vs of Kennebec Purchaser. Laboree, 2 Greenl, 286; Bates v. Norcross, 14 Pick. 224; Preston v. Wright, 81 Maine, 306; Millet v. Mullen, 95 Maine, 400; Little v. Megquier, 2 Greenl 176; Ewing v. Burnett, 11 Pet; 54; Fletcher v. Fuller, 120 U. S. 534; Groesbeck v. Seeley, 13 Mich. 329; Case v. Dean, 16 Mich. 12; Baker v. Kelly, 11 Minn. 358; Williams v. Kirkland, 13 Wall. 306; Elbridge v. Kuehl, 27 Iowa, 160, 173; Monk v. Corbin, 58 Iowa, 503; Moingana Coal Co. v. Blair, 51 Iowa, 447; Dingley v. v. Paxton, 60 Miss. 1038; Harding v. Butts, 18 111. 502; Wahn v. Shearman, 8 Serg. & R. 357; Farrar v. Clark, 85 Ind. 449; Hill v. Kricke, 11 Wis. 442; Leffingwell v. Warren, 2 Black, 599; Rowan v. Runnels, 5 How. 134; Douglass v. Pike, 101 U. S. 677; .Raymond v. Longley, 14 How. 76, 77; Smith v. Sherry, 54 Wis. 114; Stearns v, Gittings, 23 111. 387; Lewis v. Webb, 3 Greenl. 335; Given v. Man', 27 Maine, 220; Coffin v. Rich, 45 Maine, 515; Atkinson v. Dunlap, 50 Maine, 117; Adams v. Palmer, 51 Maine, 493; Austin v. Stevens, 24 Maine, 520; Webster v. Cooper, 14 How. 488; Thistle v. Frostbury Coal Co., 10 Md. 147; Cooley, Const. Lim. pp. 68, 444; Slater v. Rawson, 6 Met. 439; Lathrop v. Mills, 19 Cal. 513; Arrowsmith v. Burlingim, 4 McLean, 489; S. C. No. 563, Federal Cases; Millett v. Mullen, 95 Maine, 400; Larrabee v. Ihm6eri, 36 Maine, 444; Williams v. Johnson, 30 Md. 500; Neponsett Meadow Co. v. Frank L. Tileston, 130 Mass. 191; Briggs v. Johnson, 71 Maine, 235; Baker v. Kelly, 11 Minn. 480; Adams v. Palmer, 51 Maine, 489; Gtroesbeclc v. Seeley, 13 Mich. 329; PF/wie v. Flynn, 23 Ind. 46; Abbott v. Lindenbower, 42 Mo. 162; Corbin v. 33711, 21 Iowa, 70; Dunn v. ¿¡hell, 74 Maine, 27; Liathrop v. .Mills, 19 Cal. 513.</p>

<p>On report.</p> <p>Indictment nol prossed.</p> <p>The case appears in the opinion.</p> <p>The statute makes no distinction in the use of the words; they are evidently.used conjointly to cover every contingency; the statute making a technical discrimination in the use of the words impossible, the pleader should not be required to attempt it;. the indictment alleges that the respondent did grant, bargain and sell the encumbered property to Penley without notice; those are the precise words used in tlie instrument introduced in evidence; those words clearly import an act within the meaning and definition of the statute, and whether that act was accompanied by a condition subsequent is absolutely immaterial and need not be noticed in the indictment.</p> <p>Counsel cited: Flanders v. Barstow, 18 Maine, 358; Stewart v. Hanson, 35 Maine, 506, 509; Com. v. Fogerty, 8 Gray, 489, 491, 69 Am. Dec. 264; State v. Casey, 45 Maine, 435; Jones v. Smith, 79 Maine, 448, 450.</p> <p>Strict construction of penal statutes is to be had. Variances:</p> <p>State v. Hussey, 60 Maine, 410, 11 Am. Rep. 209; State v. Gove, 34 N. H. 511; Com. v. Brown, 15 Gray, 189.</p> <p>When the language of a statute is clear and plain, the court has no authority to give a construction different from its natural and obvious meaning. Clark v. Maine S. L. R. R. Co., 81 Maine, 477; Lyon v. Lyon, 88 Maine, 395, p. 404.</p>

<p>Trusts, Acceptance, — Right of election by cestui. Waiver. Estoppel.</p> <p>Where a beneficiary has a cestui que interest in a certain lot of land and consents to its exchange for another lot, he has the option to charge either lot with the trust; and having elected to look to the latter one therefor, he thereby waives and releases his claim to the former. Held; that having made his election with full knowledge of the facts, he is bound by it and is estopped to assert a claim upon the former lot.</p> <p>To perfect a trust,.it must be accepted .by the cestui que trust, when knowledge of its existence is received by the beneficiary. In absence of evidence . to the contrary acceptance is presumed where it is for the benefit, of the cestui, but this presumption may be overcome.</p> <p>Held; that the plaintiff not only did not accept the trust, in this case, but repudiated it.</p>

<p>Assumpsit. Account Annexed. Pleading, Amendment, No promise by defendant.</p> <p>1. In an action of assumpsit upon an account annexed, the items were so phrased as to show that they represented various elements of damages resulting from an alleged breach of contract, or contracts. The plaintiff offered an amendment, which was allowed, by adding a new count in which it was alleged that the plaintiffs “entered into a written contract with the defendants” which contract was there set out in full. Breaches were alleged and damages claimed. No promise on the part of the defendants was directly and positively asserted. Held; that the amendment was itself faulty and demurrable, and that it should not have been allowed.</p> <p>2. In such a case, an amendment may properly be allowed in the form of count upon the special contract, alleging breaches and claiming damages therefor. But such new count must b.e limited in its terms so as to include only such breaches as were embraced in the items in the account annexed. In this case the amendment was not so limited,</p>

<p>Taxes, Assessment of mill privilege. Appeal for overvaluation. Evidence., Record not to be contradicted. 11. S. {1883), G. 6, § 168. Stat. 1895, c. 122.</p> <p>In an appeal from an assessment of taxes, brought under the provisions of chapter 122 of the Public Laws of 1895, it appeared that the assessment complained of described the property assessed as “the mill privilege at Salmon Falls.” The property consisted of land on the shore of a stream, and an unused dam across the stream. Held;</p> <p>1. That by the terms of the assessment neither the water, nor the power created by the dam was assessed.</p> <p>2. That so far as the value of the land was enhanced by the existence of the water and the means of creating the power, it was properly to be considered in the valuation of the land.</p> <p>:•!. That upon the evidence submitted, the court cannot say that the valuation of the mill privilege by the assessors was excessive.</p> <p>4. Testimony of assessors is not admissible to contradict their records.</p>

<p>Exceptions by plaintiff.</p> <p>Assumpsit on account annexed and money counts, to recover for labor and materials furnished to the defendant by the plaintiff in the erection of a set of buildings. There was a written contract, referring to a plan, but not designating the plan by any designating mark. At the trial of the case, the plaintiff offered one plan in two parts, which he claimed as the one referred to in the contract; and the defendant offered a different plan, which he claimed to be the one referred to.</p> <p>It was claimed by the plaintiff that according to the plan offered by him as the true one, certain work done by him was extra, for which he should recover. And, on the other hand, the defendant insisted that the plan offered by him was the true one, and that according to this plan, the several items claimed as extras by the plaintiff were included in the contract, and that the plaintiff should not be allowed for them as extras.</p> <p>The defendant further claimed that under the plan offered by him, certain work required by said plan was left undone by the plaintiff, and was afterwards done by the defendant at his own expense, for which he claimed allowance as against the plaintiff’s demand.</p> <p>The verdict was for the defendant and the plaintiff took exceptions' to the admission of certain testimony introduced by the defendant.</p> <p>Here was a written contract. If the subject matter of 'the question was covered by the contract, clearly the witness could not give parol testimony as to the contract; it would be immaterial. If not covered by the contract, it was manifestly improper.</p> <p>The writing must speak, and cannot be varied, explained or modified by. contemporaneous parol evidence. Sylvester v. Staples, 44 Maine, 496; McLellan v. Cumberland Bank, 24 Maine, 566; Madden v. Tucker, 46 Maine, 367; Stevens v. Haskell, 70 Maine, 202; Knowlton Gar Co. v. Cook, 70 Maine, 143; Chadwick, v. Perkins, 3 Maine, 399; Allen v. Kingsbury, 16 Pick. 235; Goddard v. Cutts, 11 Maine, 440; Marshall v. Baker, 19 Maine, 402.</p> <p>Even if something had been inadvertently omitted from the contract, this omission cannot be remedied by such testimony. The principle has often been stated by our court.</p> <p>“No rule of law is better settled by law, or more easily sustained upon principle, than that where parties have thus committed their bargain to writing, that writing must govern. They will not be permitted to introduce contemporaneous parol evidence that they meant something else, or that other conditions, stipulations, or requirements were inadvertently omitted, or agreed to be incorporated into the contract.” Millett v. Marston, 62 Maine, 477; Williams v. Robinson, 73 Maine, 186, and cases cited.</p> <p>The answer to the question objected to, in this case, gives a contract covering the whole second story of the building in question, a portion which did not appear at all on the defendant’s plan, although shown fully on plaintiff’s plan.</p> <p>The same objections apply to the second question to the same witness.</p> <p>A verbal contract was entered into between the plaintiff and defendant by which the plaintiff was to build a house for the defendant. Later an outline of this agreement was made and signed by the parties, in which details were almost entirely omitted. It was not therein stated whether the house was to be a one story or a two story house, nor were the rooms of the second story shown; the piazza was named but nothing said as to its trimmings or adornment; nothing was said as to the doors or finishing of the stable except that there were to be two box stalls; in other words there was a complete and entire verbal agreement, a part only of which was reduced to writing. Mr. Cook, the plaintiff, built a two story house as far. as he went.</p> <p>Plaintiff must have, at least, agreed upon this outside the contract so-called, and if that much was agreed upon there certainly ivas an agreement as to the rooms, as they were not in the contract even mentioned. The arrangement of the rooms could be proved by parol, showing as it does the whole contract.</p> <p>Neal v. Flint, 88 Maine, 72; Bradstreet v. Rich, 72 Maine, p. 236; Thomas v. Loose, 114 Pa. St. 35.</p>

Action on the case, under R. S. 1903, c. 89, § 9, for personal injuries received on Feby. 11, 1900, by the plaintiff’s intestate, Thomas F. Ryle, in the defendant’s freight yard, and resulting in his immediate death.

<p>Evidence, Exceptions to admission. Grounds of objection to be stated at trial. Way, Injury from defect. Notice of claim and description of defect. Pleading, Variance.</p> <p>1. A party objecting to the admission of evidence offered in the trial of a cause must state at the time the ground of his objection, and upon exceptions to a ruling admitting the evidence, he is confined to the ground stated.</p> <p>2. Where the written notice of an injury received upon a highway, required by the statute R. S. (1883), c. 18, § 53, is offered in evidence and is objected to on the ground of the insufficiency of its contents, no other ground being stated, that ground only can be considered at the hearing on the exceptions.</p> <p>3. Held; that the written notice in this case contains enough to satisfy the statute and the exceptions must be overruled.</p> <p>4. The location of the defect was stated in the written notice, as, “ at the corner of Main and Hincks Streets in front of the dwelling-house of Calvin O. Rage.” The evidence was of a defect on Main Street twenty or thirty feet from Hincks Street, but in front of the dwelling-house of Calvin O. Page. The evidence sufficiently corresponded with the notice.</p> <p>5. A witness described the defect as a rock raised some eight inches above the surface in the traveled part of Main Street about eighteen or twenty feet from Hincks Street, and testified that he told the road commissioner of the town, “there was a rock there.” This was evidence from which the jury could rightfully infer that the road commissioner had notice of the defect described.</p> <p>6 In the plaintiff’s declaration the only allegation of notice was notice to the municipal officers. The only evidence of notice was notice to the road commissioner. No objection of variance was made at the trial, however, and hence it cannot avail the defendant on his motion for a new trial, since an amendment to the declaration can be allowed to conform to the evidence.</p> <p>7. Where it was assumed at the trial that the written notice which was actually given was given within the statutory time, fourteen days, and there was no evidence that it was not and no objection to lack of positive evidence as to time was made at the trial, held; that the objection comes too late after verdict.</p>

<p>On motion and exceptions by defendant. Exceptions sustained.</p> <p>Case for personal injuries which the plaintiff alleged she sustained while driving upon a public street, April 22, 1902, in the City of Portland, by reason of the defendant’s negligence in the operation of his automobile. The jury rendered a verdict for the plaintiff and assessed the damages at six hundred dollars. After the verdict the defendant, besides the usual motion for a new trial, excepted to the rulings of the presiding justice in refusing to admit in evidence, upon defendant’s request, a certain letter in the plaintiff’s possession. The letter was written by the defendant to the plaintiff’s husband and from it the defendant claimed that plaintiff’s counsel had cross-examined him in such a manner as to get a part of it before the jury, to his prejudice.</p> <p>The exceptions appear in the opinion.</p> <p>The letter was never at any time offered in evidence by the plaintiff. It was not even inspectéd by the defending attorney, nor did lie ask to inspect it. During that cross-examination not a word of the letter was read, either to the presiding justice, the jury, or the witness. He was not asked, a single question about the letter, and the examining attorney distinctly disclaimed during the course of the examination any reference to the letter in asking his questions. He propounded to him certain statements of fact and received from him appropriate answers, at no time asking him what was in the letter. Had he by the least inference asked him what he had written in that letter, the proper course and practice would have been to object to the answer and ask that the letter go in as evidence instead of the defendant’s own testimony. We fail to understand upon what principle of law the defendant can waive his rights to object to what he seems to have regarded as an improper question and require us to put in evidence a self-serving (not self-disserving) lettqr written to a third party. Wharton on Evidence, Vol. 2, par. 1101, and cases there cited. Carter v. Clark, 92 Maine, 225; Wright v. Boston, 126 Mass. 161.</p> <p>This letter was merely used as a memorandum, the same as any ordinary memorandum could be used to elicit certain facts to prove which, if they had not been admitted by the • defendant, the letter would have been competent evidence as we understand for the purpose of contradicting his testimony. Lewis v. Hodgdon, 17 Maine, 267.</p> <p>Certain questions of fact were asked the witness in that cross-examination in a leading way, all of which were perfectly proper and all of which he admitted to be facts; and we submit that a verbal admission against the party’s own interest can be used as primary evidence of the writing against him. 1 Greenleaf on Evidence, §§ 96, 97. State v. Stoyell, 70 Maine, 360; Smith v. Palmer, 6 Cush. 513; Loomis v. Wadhams, 8 Gray, 557.</p>

<p>On report.</p> <p>Case remitted for amendment as to parties, according to the stipulation agreed on.</p> <p>Bill to redeem a mortgage. The facts appear in the opinion.</p>

<p>Corporations, Gas & Electric Companies. Franchises, Special Rights. Legislative Consent. Stat. 1885, c. 378; 1895, c. 10%. Priv. & Spec. Laws, 1893, c. (¡07.</p> <p>1. When a corporation, person or firm, is already authorized to do an electric lighting business in a town, another corporation, organized under chapter 102 of the Laws of 1895, cannot lawfully do a gas lighting business in the same town, until specially authorized by the legislature.</p> <p>2. Nor is the result different, even if the electric light company has not done, and is not doing, business as such.</p> <p>3. Under the provision of section 1, chapter 102, of the Public Laws of 1895, that no corporation organized thereunder “shall have authority, without special act of the legislature, to make, generate, sell, distribute or supply gas or electricity, or both, for any purpose, in or to any city or town, in or to which another company, person or firm, are making, generating, selling, distributing or supplying, or are authorized to make, generate, sell, distribute or supply gas or electricity, or both, without the consent of such other company, person or firm,” it is held; that authority in one company to supply either gas or electricity, or both, is prohibitive of the right of another company to supply either, unless by consent, or by special legislative authority.</p> <p>4. Prior to 1895, no general franchise rights, such as franchises to dig up the streets, to lay pipes for gas, and to erect poles and string lines of wire for electricity, existed in any company or person, except by special authority of the legislature.</p> <p>5. The permissive rights given by chapter 378 of the Public Laws of 1885, “regulating the erection of posts and lines for the purposes of electricity” were not such franchises.</p> <p>(i. Prior to 1895, the legislature reserved to itself the right, in each instance, to determine whether the public good demanded that such franchises should be granted at all to any one, and in case such franchises were already lawfully exercised in a given place or had previously been granted, to determine whether or not it would be for the public good to permit indiscriminate or destructive competition.</p> <p>7. By chapter 102 of the Public Laws of 1895, the policy of the legislature was modified to this extent: In towns where no gas or electric company is supplying, or is authorized to supply, gas or electric light, new corporations, organized under that chapter, can supply either gas or electricity, or both, and use the streets therefor, by first obtaining the statutory permit from the municipal officers, and without special legislative authority. But in towns where a gas or electric company is supplying, or is authorized to supply, either or both kinds of light, another corporation, organized under the general law, cannot operate until the legislature has determined whether the public good requires it, and has authorized it, just as it did prior to 1895.</p> <p>See State of Maine by Information of Attorney General v. Twin Village Water Company, ante, p. 214.</p>

<p>Attachment. Exemptions. Erat. Ben. Assoc. Trustee Process, voluntáis Appearance. Poor Debtor, Disclosure. Trusts. P. P. (1883), c. 86, §§ 2, 4. Stat. 1897, c. 320, § 14 ; c. 330, § 9.</p> <p>The voluntary appearance, without the statutory service upon him, of one named as trustee in a trustee process does not attach the funds of the principal defendant in his hands.</p> <p>At a debtor’s disclosure before a commissioner, he disclosed having in his pocket money enough to satisfy the judgment. The creditor was entitled to have this money applied to his judgment unless, as claimed by the .debtor, it was exempt from seizure upon execution. To obtain an adjudication of the question the parties arranged that the money should lie placed in the hands of a third party and trustee writ made in w'hich the creditor should be named as plaintiff, the debtor as defendant and the depository as trustee, and be entered in court, and all the parties appear without service and thus present the question whether the money was exempt. This was done and the court held the money -was not exempt. Hathorn v. Robinson, 96 Maine, 33.</p> <p>After the death of the principal defendant, the trustee still holding the funds declined to pay them to plaintiff. Thereupon the plaintiff filed this bill against the executor of the defendant and the trustee to determine the status of the fund in question. It was held, by a majority of the court:—</p> <p>The money was not by these proceedings attached or put in the custody of the law, Wiswell, C. J., Stbou'I’, Powebs, JJ., dissenting.</p> <p>It having been decided that the money was not exempt from seizure, the creditor was entitled to receive it from the depository under the agreement of the parties.</p> <p>The death of the debtor and the insolvency of his estate did not affect the right of the creditor to receive the money.</p> <p>See Hathorn v. Robinson and Trustee, 96 Maine, 33.</p>

<p>In! o.r. Liquors, “ Don’t Know Beer 2% per cent.” Question for Jury. Jim den ce. JR. 8. (1883), c. 17, 11; c. 27, \ S3.</p> <p>. Whether any other pure or mixed liquor not enumerated in It. S., c. 27, § 88, is intoxicating is a question of fact to be proved by any competent evidence, and the force and effect of such evidence are for the jury to determine.</p> <p>The composition and character of the liquor, the amount of alcohol it contains, and in what quantities it produces intoxication, are all competent evidence tending to determine the question.</p> <p>The court cannot say as a matter of law that a liquor, which contains three per cent or more of alcohol, is intoxicating, and that one which contains a less'percentage is not, but the question must be determined by the jury from all the evidence in the case. '</p>

Motion by defendant. Case for personal injuries sustained by the plaintiff Jany. 1, 1902, while in the defendant’s employ at, work upon an extension ladder at a house on Congress Street, in the City of Portland.

On motion and exceptions by defendant. The gist of the claim as set out in plaintiff’s declaration is the alleged negligence of defendant, or its failure; (1) “To use proper diligence to provide a safe and suitable place for the plaintiff to work in, and to surround the plaintiff with proper and suitable safeguards to shield him from danger in the performance of his duty as aforesaid, and especially to see that all dynamite which had been in the holes as aforesaid was…

<p>On report.</p> <p>This was an action of assumpsit to recover one hundred and eighty-nine dollars, the amount of a check given the plaintiff by the defendant on March 6th, 1902, as part of the purchase price of a piece of land situated in Madison, Somerset County, sold by the plaintiff to the defendant.</p> <p>The defendant pleaded the general issue and a brief statement setting out that the check was obtained by deceit, concealment of material facts, and fraud, practiced on the defendant by the plaintiff.</p> <p>The case is stated in the opinion.</p> <p>The check obtained by a designed concealment of the truth; by deceit and fraud practiced by the plaintiff upon the defendant.</p> <p>What is the difference between stating to a party what is absolute false at the time, or stating what is true at the time, then secretly doing what makes it untrue, and afterward by silence and evasive statements inducing the person to whom the statement was made to rely upon it, when at that time it has become, by the act of the deceiving party, absolutely untrue?</p> <p>“He is guilty of a fraud who secretly changes a state of affairs, and then, without revealing this fact, procures another to do an act into which the true state of affairs enters as a motive.” Bigelow on Fraud, p. 46; Prentiss v. Russ, 16 Maine, 30; Baglehole v. Walters, 3 Camp. .154; Millihen v. Chapman, 75 Maine, 306, 321; Lewis v. Gamage, 1 Pick. 346, 350; Fay v. Winchester, 4 Met. 513; Kidney v. Stoddard, 7 Met. 252; Marcotte v. Allen, 91 Maine, 74; Short v. Currier, 153 Mass. 182; 1 Story Fq. Jur. §§ 192, 217, and intervening sections, and cases cited.</p> <p>There was no consideration for the check. It was given as inducement for plaintiff to do what had already been done. It was a promise founded on past consideration and therefore nudum pactum.</p> <p>Whether in escrow or not, the deed was in Small’s hands to be delivered to defendant upon payment of $3786. This direction was never countermanded. And defendant never consented to its being withdrawn. He simply gave the $189 check in order to obtain from plaintiff the execution and forwarding of the deed to Small. Plaintiff’s promise to do this was the real consideration for the check. And as the deed had been already executed and sent to Small, and was then in Small’s possession, by the familiar rule of law, this bygone transaction did not constitute a good and legal consideration for defendant’s promise as evidenced in the check in suit. 1 Addison on Contracts, 16; Bishop on Contracts, 90; Greene v. Malden, 10 Pick. 499; Dodge v. Adams, 19 Pick. 429; Dearborn v. * Bowman, 3 Met. 155; Sanderson v. Broum, 57 Maine, 308, 313.</p> <p>The check was additional compensation to plaintiff for carrying out his verbal contract. This he was under legal obligation to do. It was, therefore, no legal consideration. Jennings v. Chase, 10 Allen, 526, 527; Wimer v. Worth Township, 104 Penn. 317, 320.</p> <p>Plaintiff’s letter to Small constitutes a sufficient memorandum to satisfy the statute requirement. Hurley v. Brown, 98 Mass. 545; Mead. v. Parker, 115 Mass. 413; Giles v. Swift., 170 Mass. 461; Walker v. Walker, 175 Mass. 349; Browue on Statute of Frauds, 5th ed. 482; Spangler v. Danforth, 65 111. 152; Moss v. Atkinson, 44 Cal. 3; Owenv. Thomas, 3 Mel. & Keene, 353; Drury v. Young, 58 Md. 546, 42 Am. Hep. 343.</p> <p>Therefore, for the plaintiff’s refusal to carry out the verbal contract defendant would have a claim against him for damages, so far as lie had to pay more for the property.</p>

<p>Taxes. Place of Taxation. Stock manufactured, but not employed in trade where stored. “ Store-house,” and “Store.” Ii. S. (1883), c. 6, § 14-</p> <p>A finished manufactured product, which had been entirely completed in the fall of one year, and as to which nothing further remained to be done, except to be sold when the opportunity offered, and which is stored because not sold, until the following April, is not employed in the mechanic arts on the first day of that April, so as to come within the meaning of the first paragraph of I¿. S. (1883), c. 6, § 14, for the purposes of taxation. Where starch has been manufactured in a town other than that in which the owner was an inhabitant, and was stored in the town where manufactured, until after the first day of the following April, awaiting shipment by rail out of that town as the same should be sold, -no sales being made or intended to be made in that town, and all of the sales and correspondence in relation to sales being made in the town where the owner lived and conducted his business, it is not employed in trade in the town where stored, within the meaning of the section above referred to, for the purposes of taxation.</p> <p>Held; further, that the defendant did not occupy any store or shop in the plaintiff town for the purpose of the employment of this starch in trade. While a store-house may, under some circumstances, come within the. meaning of the word “store” as used in the statute, it does not in this case, because the defendant's store-house was not occupied by him for the purpose of employing this starch in trade in the plaintiff town. The starch was not in a store for trade but in a store-house for storage.</p>

Exceptions by plaintiff. Case for slander. The defendant filed a general demurrer to the declaration, which having been sustained, the plaintiff took exceptions.

Agreed statement. Indictment for taking dams by the defendant, a non-resident, within the limits of the town of Lamoine, Hancock County, March 18, 1903. The case was reported upon an agreed statement of facts and portions of the records of the town of Lamoine showing such municipal regulations as the town had made concerning the taking of clams within its limits.

<p>On report.</p> <p>Action to enforce a lien claim. The case was reported to the law court upon the following facts, found by the presiding justice:—</p> <p>In August, 1901, the defendant John Grady made a contract with the Higgins Classical Institute to build a school building and a dormitory building. The plaintiff Bryant contracted with the defendant Grady to supply him with certain wood-work for those buildings. Under this contract the plaintiff did furnish labor and material to the amount of $1692.42 which was used in the construction of the school building with the consent of the Institute. They were charged on his boobs to Grady. The plaintiff seasonably filed his lien claim in proper form and seasonably began this action and attached the school building for his lien claim. The regularity of these proceedings is admitted.</p> <p>In his writ the plaintiff gave a credit of $451.93 and at the hearing gave a further credit of $465.12 received afterward making a total credit of $917.05 which deducted from the $1692.42 leaves a balance of $775.37 for which the plaintiff now claims a lien on the school building, the defendant Grady having been defaulted.</p> <p>The plaintiff’s account in this action began Nov. 1, 1901, but is only a part of his general account for both buildings. On January 24, 1902, he applied to the defendant for a payment on general account and after some correspondence he received the defendant’s negotiable promissory note for $1000 on thirty days which he credited on the account on his ledger at that date as follows, “1902 January 24, Or. by note 30 ds “$1000.” This note Bryant discounted at the bank. On March 14, 1902, Mr. Mansur, the architect, certified that Grady, the defendant, was entitled under his contract with the Institute to a payment of $1000. Grady indorsed this certificate to Bryant and also gave him an order on the treasurer of the Institute for $1000 which sum was paid by the treasurer direct to Bryant, and charged by the treasurer to Grady. Bryant applied this $1000 to the payment of Grady’s $1000 note of Jany. 24, preceding and did not enter it on his books or account.</p> <p>Again on April 22, 1902, in response to requests for payment Grady sent to Bryant a negotiable promissory note for $500 which Bryant credited on his books and account on that date as cash and discounted at the bank. May 22, 1902, the architect gave Grady another certificate for a payment of $1000 which Grady turned over to Bryant with an order for payment to him as before. The $1000 w'as paid on this order by the treasurer direct to Bryant who applied $500 of it to pay Grady’s note of April 22 preceding, and credited the remaining $500 to the account. Both of these applications were assented to by Grady. In the same way $2500 more was paid by the Institute direct to Bryant on account of Grady making $4500 in all so paid on general account.</p> <p>In taking these two notes Mr. Bryant did not intend to release or reduce his lien claim on the building nor did he suppose he had done so. Mr. Grady did not claim that any lien had been affected thereby. None of the officers of the Higgins Classical Institute, however, knew anything about these notes till sometime in September following, nor did either of them know that the first payment of $1000 and the half of the second payment of $1000 were applied to any notes.</p> <p>In September Bryant submitted his account with Grady for both buildings to Mr. Mansur, the architect, in order to get a certificate for a further payment, but it appearing to Mr. Mansur that by crediting on the whole account the entire $4500 paid by the Institute direct to Bryant, the account appeared upon its face to be fully paid, he declined to give any further certificate for Bryant’s benefit. Whereupon Bryant proceeded to enforce his lien claim on the school building.</p> <p>To recapitulate: of the $4500 paid by the Institute direct to Bryant on Grady’s orders only $3000 was credited by Bryant directly to his account with Grady; the remaining $1500 was applied to the negotiable promissory notes previously given by Grady to Bryant. This disposition of those payments, if allowable against the Institute, left a balance due Bryant of $775.37 for which he had a lien on the school building. If, however, the application of the $1500 to the notes of Grady was not allowable against the Institute, and the Institute is entitled to have the $1500 credited on the account as reduced by the notes, then, as to the Institute, Bryant’s account is paid. If only the $500 is to be thus credited then ther'e is a balance due as against the Institute of the $775.37 less the $500 or $275.37.</p> <p>The original certificate of the architect on which the various payments were made by the Institute direct to Bryant were to be presented for inspection by the law court, if desired by either party.</p> <p>Tt is contended by the Higgins Classical Institute that the notes given by Davis & Grady to Bryant & Co. were accepted as payment pro tanto; that the application of the $1500 to the notes of Davis & Grady was not allowable against the Institute; that the Institute is entitled to have the $1500 credited on the account as reduced by the notes, and that, so far as the Institute is concerned, Bryant & Co. are paid.</p> <p>This contention is urged for the following reasons:</p> <p>(1.) Because the money was sent by the Institute direct to Bryant & Co. for the express purpose of protecting itself against any lien that Bryant & Co. might have for material furnished, which fact was well known, or ought to have been known, by Bryant & Co.</p> <p>(2.) That the money so sent was the money of the Institute, and that as such the Institute alone could "have the disposal of it for its exclusive benefit, and that no arrangement or understanding between Bryant & Co. and Davis & Grady could in any way affect the rights of the Institute in the disposition of its funds as it saw fit.</p> <p>A note accepted for a pre-existing debt is prima facie payment of that debt. Varner v. Nobleborough, 2 Maine, 121; Wade v. Curtis, 96 Maine, 309, 311; Mehan v. Thompson, 71 Maine, 492; Brewer Lumber Go. v. B. & A. R. R. Co., 179 Mass. 228; Wetherell v. Joy, 40 Maine, 325; Lescadillas v. Harris, 8 Maine, 298; Newall v. Hussey, 18 Maine, 249; Fowler v. Ludwig, 34 Maine, 455; Shumway v. Reed, 34 Maine, 560; Bunker v. Barron, 79 Maine, 62.</p> <p>The debtor has the undisputed right to dispose of his money as he desires, and when a debtor makes a payment and his intention of its application is brought home to the creditor, the creditor must make the intended application, and if he does not the law will. Am. & Eng. Cycl. Law, (Payment) 2nd ed. p. 447, note 3; Boutwell v. Mason, 12 Vt. 608; Barker v. Green, 8 Met. 144; Joy v. Foss, 8 Maine, 455; Starrett v. Barber, 20 Maine, 457; Bangor Boom Corp. v. Whiting, 29 Maine, 123; Treadwell v. Moore, 34 Maine, 112.</p>

Exceptions by defendant. This was an indictment under R. S. (1883), c. 17, § 1, wherein the defendant was charged with keeping and maintaining a liquor nuisance in the town of Lisbon between October 1st, 1902, and the date of the indictment. The intoxicating liquors in question consisted of six dozen bottles of Jamaica Ginger found on the defendant’s premises.

On report. This was an action of debt, begun July 1, 1899, and tried in the Supreme Judicial Court for Lincoln County in the October term, 1902, and reported by the justice presiding to this court for determination upon so much of the evidence as was legally admissible; this court to have jury powers and to determine questions of fact and to render final judgment. The facts are stated in the opinion.

On report. Appeal from Probate Court dismissed. Appeal from the Probate Court, Androscoggin County, to the Supreme Judicial Court sitting in probate, and reported by the presiding justice to the law court for determination upon the reported evidence. The right was reserved to each party to make any objection in- the law court to the admissibility of any of the evidence so reported, as if made at the production of the same in the court at nisi prius.

<p>Probate Court, Decree of Distribution Annulled, — No action for distributive share.</p> <p>After a decree of distribution made by the Probate Court has been annulled by that court, which annulment, under the circumstances of the case was within the power of that court, as decided in the preceding case, an action brought after the decree had been annulled to recover a distributive share under that decree, cannot be maintained.</p> <p>See case ante p. 415. Bergeron, Applt., Estate of Caroline Cote.</p>

<p>Exceptions by defendant.</p> <p>This was an indictment of the defendant for assault and battery under K.. S., c. 118, § 28.</p> <p>Before pleading thereto, the defendant first having reserved and been granted the right to plead over in case the indictment should be held sufficient, demurred to the indictment, which demurrer was joined and a hearing had.</p> <p>The presiding justice overruled the demurrer, granting at the same time special leave to the defendant to plead over in case the demurrer was not ultimately sustained, to which ruling the defendant excepted.</p> <p>INDICTMENT.</p> <p>Lincoln, ss.</p> <p>At the Supreme Judicial Court, begun and holden at Wiscasset, within and for the County of Lincoln, on the fourth Tuesday of October in the year of our Lord one thousand nine hundred and three.</p> <p>The grand jurors for said State upon their oath present, that James E. Creighton of Thomaston in the County of Knox, at Waldoboro in said County of Lincoln, on the seventeenth day of October, in the year of our Lord one thousand nine hundred and three, in and upon Brinton H. Penwarden of Casco in the County of Cumberland, State aforesaid, an assault did make and him, the said Penwarden did then and there beat, wound and ill-treat, and other wrongs to the said Penwarden then and there did to the great injury of him, the said Penwarden, against the peace of said State and contrary to the from of the statute in such case made and provided.</p> <p>Counsel cited: State v. Ham, 54 Maine, 194; Com. v. Kirby, 2 Cush. 577, 1 Bishop’s New Crim. Prac. §§ 599, 601, 2 lb. § 55; 1 AVhar. Crim. Law, § 413, and cases; R. S., c. 131, §§ 4, 12.</p> <p>The indictment is framed upon the statute and sets out no offense.</p> <p>Counsel cited: State v. Goddard, 69 Maine, 182; Arch. Crim. Plead. *41, *50; State v. Philbriok, 31 Maine, 401; State v. Leavitt., 87 Maine, 80, and cases; State v. McKenzie, 42 Maine, 393; State v. Collins, 48 Maine, 217; State v. Skolfield, 86 Maine, 152; State v. Hussey, 60 Maine, 410; State v. Stevenson, 91 Maine, 112; State v. Wright, 52 Ind. 308; Cranor v. State, 39 Ind. 65; State v. Hubbs, 58 Ind. 416; Adell v. State, 34 Ind. 545; Heard Crim. Plead. 254; State v. Hart, 34 Maine, 40; State v. Leonard, 47 Maine, 429.</p>

Exceptions by plaintiff. Trustee suit upon account annexed in the Superior Court for Cum-' berland County, and in which the funds' attached were claimed by Fred H. Johnson, an alderman of the City of Portland. The case was submitted to the presiding justice without a jury, the parties reserving the right to except.

Exceptions by defendants. Indictments for burglary in the night time. The respondents were each indicted for breaking and entering the dwelling-house of one John Vehue in'the night time, a person being then and there lawfully therein, with intent, etc., and then and there in said dwelling-house, sixty pounds of pork of the value of six dollors, etc., did take, steal and carry away, etc., on the eighteenth day of April, 1903.

<p>Mechanic's Lien, none on public buildings. Public Library. Statutes, — interpretation of; when public not bound. Action at law not convertible into equity. R. S. {1883), c. 84, § SO; c. 91, § 30; Stai. 1893, c. 817, § 8. Spec. Laws, 1901, c. 866.</p> <p>1. In construing statutes it is to be assumed that the legislature in framing statutes and settling their phraseology does so with reference to established canons of statutory interpretation.</p> <p>2. It is an established canon of statutory interpretation that the State, the public, is not to be considered as within the purview of a statute unless expressly named therein, however general and comprehensive the language otherwise.</p> <p>3. As a corollary, public buildings, buildings constructed by the State or by a political subdivision of the State for public purposes and not for pecuniary profit, are not to be considered as within the purview of a statute imposing a lien on buildings in certain cases unless they are expressly named as included.</p> <p>4. In the statute of this State known as the Mechanic’s Lien Law, and-imposing liens in certain cases on “a house, building or appurtenances” R. S. (1883), c. 91, § 30, et seq. — public buildings are not named as included, and hence no lien is imposed by that statute on such buildings.</p> <p>5. To constitute a building a public building, it is not necessary that it be erected or purchased by legislative command, or be used solely for the performance of governmental functions. A building voluntarily erected by a town, under legislative permission merely, to be held and used for a free public library, is a public building and exempt from the operation of the lien statute above cited.</p> <p>6. The fact that the building was erected by a town under legislative permission entirely from funds donated to the town by other parties for that purpose, does not make the building any less a public building, or subject it to the lien statute.</p> <p>7. An action at law brought under the lien statute to enforce a lien on such a building will not be converted, even under statute of 1893, c. 217, § 8, into a suit in equity to reach the donated funds remaining in the treasury of the town,</p> <p>8. The rules for the interpretation of statutes are the same in equity as at law.</p>

<p>Deed, Reservation of crops on Rand or to Re raised. Evidence, in case of ambiguity admissible. Eeplevin.</p> <p>In giving construction to a reservation of crops in a deed, due effect will be given, as to the intent of the parties thereto, to their contemporaneous ' acts and the fact that the grantor did not own the crop at the time the deed was delivered.</p> <p>Held; that the expression contained in a reservation clause of a deed that the grantee, the defendant in replevin, “is to have all the hay” related to the future occupation and subsequent production of the farm, and not to the old hay then in the barns.</p> <p>If such phrase in the deed, taken in connection with the reservations and provisions immediately preceding, raises an ambiguity, it may be explained by oral evidence as to what hay it applied.</p>

Agreed statement. Assumpsit by the trustee in bankruptcy of the Standard Granite Company against the Belfast National Bank to recover a deposit of $800 made in the bank on Sept. 6, 1902, after the Granite Company had become insolvent. Date of writ, August 4, 1903.

Exceptions by defendant. Search and seizure process against intoxicating liquors under R. S. (1883), c. 27, alleged to be in the defendant’s possession with intent to sell them unlawfully. The defendant demurred to the complaint and warrant on the ground that no such offense existed by the statute, by reason of the repeal of section 38. His demurrer was overruled and the case brought to the law court on his exceptions.

<p>On report.</p> <p>Appeal from. Eumford Municipal Court, Oxford County, upon the condemnation of four bottles of whiskey bought by the defendant in Kentucky and shipped by express C. O. JD. by his order to this State. :</p> <p>The parties in this court below submitted the case to the decision of the law court upon an agreed statement of facts, which will be found in the opinion.</p> <p>The order is explicit in its terms and so far as anything before the court shows, was accepted and complied with in strict accord with those terms. If the court find that the prepaying of the express charges under this order, taken in connection with the other circumstances of the case, is sufficient evidence to warrant the conclusion that the vendor undertook to deliver the liquor to' the vendee at Rumford Falls, and that the carrier to which the liquor was delivered by the vendor was the agent of the vendor, then, it would seem that the sale was not made in Kentucky, but was to be made at Rumford Falls, in which case no title to the liquor ever passed to the vendee, because there was never any delivery either actual or constructive to him. — Suit v. Wood-hall, 113 Mass. 394. Under such facts the liquor was liable to seizure while in the possession of the express company which would be constructively the possession of the vendor, because it was intended for sale in this State in violation of law.</p> <p>The title passes when the goods are delivered to the carrier and this is so even where no carrier is selected by the consignee.</p> <p>Creek v. Cowan, 64 N. C. 743; Pilgreen v. State, 71 Ala. 368; State v. Carll, 43 Ark. 353; Breehwald v. People, 21 111. App. 213; Ramsey & Gore Manf. Co. v. Kelsea, 22 L. R. A. 415, and note, (55 N. J. L. 320); State v. Cairns, (Kan.) 58 L. R. A. 55; U. S. v. The Orene Parker Co., recently decided by the U. S. District Court for Eastern District of Kentucky; U. S. v. Express Co., 119 Fed. Rep. 240.</p> <p>Our own court has followed this view of the law.</p> <p>If the order is carefully analyzed we find that the word “ship” means “put on board.” “The words ‘shipment’ and ‘shipped’ are now used indifferently to express the idea of goods delivered to carriers for the purpose of being transported from one place to another, over land as well as water, and imply, with respect to carriage by land, a completed act, irrespective of the time or mode of transportation.” Ledon v. TTavemeyer, (N. Y.) 8 L. R. A. 245.</p> <p>“The word ‘shipped,’ in common maritime and mercantile usage, means ‘placed on board of a vessel for the purchaser or consignee to be transported at his risk;’ and such a delivery is a constructive delivery to the purchaser.” Fisher v. Minot, 10 Gray, 260. Considered in the light of the well known meaning of the language employed the conclusion is irresistible that the order was for a delivery to the carrier in Kentucky.</p> <p>The initials C. O. D. have a fixed and definite meaning, well understood. State v. Intox. Liq. 73 Maine, 279.</p> <p>Federal question. Counsel cited: Rhodes v. Iowa, 70 U. S. 412, in which the Supreme Court says:—</p> <p>“ We think that, interpreting the statute by the light of all its provisions, it was not intended to and did not cause the power of the state to attach to an interstate commerce shipment, whilst the merchandise was in transit under such shipment, and until its arrival at the point of destination and delivery there to the consignee.” See also Vcmee v. Vandercooh, 170 U. S. 438.</p> <p>We are aware that our court in State v. Intox. Liq. 95 Maine, 140, has declared this language to be dicta and not necessary to the decision of the question involved, but in that case the carrier was a railroad company transporting freight and we do not think the same principle would apply to an express company whose business is to deliver at the door of the consignee.</p>

<p>Fraud. Fraudulent Conveyance, No proof that debtor owned the property. Evidence, When failure to contradict is not an admission. R. S. 1903, c. 114, § 77.</p> <p>In an action against the defendant for knowingly aiding her son, Alvah C. Usher, in making a fraudulent transfer of his property to her for the purpose of securing it from creditors, it appears that the lumber which formed a part of the property alleged to have been fraudulently transferred wag cut on the defendant's land, that Alvah O. Usher conducted the lumbering-operation and sold a portion of the lumber; but whether in' so doing he was acting as the agent of his mother, or whether he had contracted with her to cut the lumber upon shares, and sold his portion of it, the evidence failed to show. On report of the evidence to this court,</p> <p>Feld; that these facts have no necessary tendency to prove that Alvah O. Usher was the owner of the property in question.</p> <p>It further appears that in a suit brought by the plaintiff against this defendant in the Municipal Court of Biddeford, in which he sought to hold her directly responsible for the amount of his claim, Alvah O. Usher appeared as a witness and testified that he was the owner of the lumber in question, and that his mother, this defendant, was present in court at the time and made no denial of these statements made by her son. But the evidence entirely fails to show what the issue was at the trial in the Municipal Court. Whether the plaintiff sought to hold the defendant liable for his claim in an original or collateral undertaking, or upon any ground involving an inquiry into the ownership of the property in question, does not appear. With respect to the plaintiff’s contention that the defendant’s failure to contradict this testimony in the Municipal Court, must be deemed an admission on her part by silence and acquiescence, of the truth of her son’s statements.</p> <p>Held; that before the silence of a party can lie taken as an admission of what is said in his presence, it must appear that the fact admitted, or the inference to be drawn from his silence, would be material to the issue;</p> <p>That; the declarations of Alvah C. Usher in the Municipal Court, not shown to have been material to the issue before that court, cannot be deemed to have been admitted by the silence of the defendant and are not competent evidence to prove that Alvah C. Usher was the owner of the property alleged to have been fraudulently transferred.</p>

This was an action on. the case to recover damages for injuries received by the plaintiff on the 18th day of February, 1901, by reason of his right hand being burned on an electric wire in the Oakland Manufacturing Company’s shop but supplied with electricity from the defendant company’s station, and sustaining a compound fracture of the collar bone as he fell after being burned. It was claimed that these injuries were caused through the negligence of the defendant company.

Agreed statement. This was an action to recover damages for an injury to the plaintiff, on the evening of March 3, 3902, while traveling along Elm Street toward Oak Street in the City of Lewiston, caused by her feet striking against a plank laid crosswise of the Elm Street sidewalk at its junction with a private driveway, — the plank being placed there edgewise or perpendicularly for the purpose of retaining in place the bricks composing a stretch of sidewalk whose…

<p>Exceptions by plaintiff.</p> <p>The case is stated in the opinion.</p>

This was an action of debt for a balance of tax assessed against the defendant for the year 1900.

<p>Pauper. Evidence, Declarations when not res gestae. P. S. (1883), c. 24.</p> <p>The home which a person must have in a town for five successive years to acquire a pauper settlement therein is equivalent to domicil which depends upon residence and intention.</p> <p>A person’s intention can only be shown by his acts and words, but a mere expression of intent disconnected with any relevant circumstances would be too remote to be admissible as evidence.</p> <p>A pauper’s intention is a question of fact. He may testify himself to it, but his declarations to others can only be received in evidence when accompanied by acts which they explain, so that they will be regarded as a part of acts from which his intention may be inferred.</p>

<p>Bill in equity praying for an injunction. Submitted on agreed statement.</p> <p>The case appears in the opinion.</p>

<p>On report. Bill for construction of will and foreclosure of mortgage.</p> <p>Bill in equity against Isadore G. Kimball, individually and as executrix and trustee of the will of Harriet H. Greenlief, late of Augusta; Harry W. Kimball and M. Kimball, minors, Charles H. Greenlief, Minnie M. Greenlief and Lendall Titcomb, trustee of said Charles, praying for a construction of the will of said Harriet H. Greenlief and also a decree of foreclosure of a mortgage given by Isadore G. Kimball to the plaintiff.</p> <p>The principal provisions of the will, omitting certain specific legacies, are as follows: —</p> <p>“Be it remembered, that I, Harriet H. Greenlief of Augusta in the County of Kennebec in the State of Maine, being of sound and disposing mind and memory, but mindful of the uncertainty of this life, do make, publish and declare this my last will and testament, hereby revoking all former wills by me made. After the payment of my just debts, funeral charges and expenses of administration, I dispose of my estate as follows: . . . I direct that all my debts, funeral expenses and charges of administration be paid out of my funds now deposited in the savings bank. I give and bequeath to my daughter Isadore G. Kimball one-half of all money I have in the savings bank remaining after payment of my debts, funeral charges and expenses of administration in trust during the life of my son Charles H. Greenlief to keep the same in the savings bank and to pay therefrom as occasion may require not exceeding two dollars a week toward the board or other necessary living expenses of my said son Charles H. Greenlief.</p> <p>“I give to my said daughter Isadore G. Kimball the use of my house and lot of land on which it stands in said Augusta where I live during her life or until such time as she shall deem it best to sell the same, and I authorize her to sell and convey said real estate at any time at her discretion.</p> <p>“In case she shall sell said real estate one-third of the proceeds of such sale is to be added to the trust fund aforesaid to be deposited in the savings bank as required of said trust fund, to become a part of said trust fund as above provided in favor of my said son Charles H. Greenlief.</p> <p>“All the rest; residue and remainder of all my property and estate both real and personal, I give, bequeath and devise unto my said daughter Isadore G. Kimball if she shall survive me, otherwise unto the said Carrie M. Kimball and Henry W. Kimball if both living in equal shares, if not both living at my decease, then all to the survivor of them. . . .” Dated Feby. 26, 1900.</p> <p>The bill alleges that said Harriet H. Greenlief died on the first day of March, 1900, leaving a will which was duly proved and allowed by the Probate Court for Kennebec County; that on the 26th day of March, 1900, said Isadore G. Kimball was duly appointed and qualified as executrix of said will; that on the 23d day of December, 1901, said Lendall Titcomb was duly appointed trustee of Charles H. Greenlief under said will; that on the 25th day of May, 1901, said Isadore G. Kimball conveyed the house and lot described in the will to said Fred W. Spencer in mortgage to secure the loan of $700, payable in one year from that date with interest at the rate of twelve per cent per annum, payable annually until paid; that nothing has been paid upon the debt secured by mortgage, and that the same is long over due.</p> <p>The prayer of the bill is as follows:</p> <p>First. That it may be ordered and decreed unless the amount now due upon the note and debt secured by said mortgage shall be paid to the plaintiff by said Isadore G. Kimball within such reasonable time as the court may appoint, the defendants shall be forever foreclosed from all right of redeeming said premises.</p> <p>Second. That the court will construe and interpret the provisions of said will and particularly determine what interest in said real estate said Isadore G. Kimball received thereby.</p> <p>Third. That unless the amount now due on said note and debt shall be paid by the defendants to the plaintiff within such reasonable time as the court may appoint, that such premises may be ordered sold at public auction and the proceeds thereof applied as the court may determine.</p> <p>The defense to the bill as set up by the answers is:—</p> <p>“Whatever obligations were created or assumed by the mortgage set forth in complainant’s bill, if true as alleged, are binding against Isadore G. Kimball alone, and the complainant has his plain and adequate remedy at law, either by suit and attachment, or by foreclosure, and to such suit or foreclosure this respondent would not be a proper party. That such alleged mortgage was not a sale in contemplation of the authority given in said will, but a security given by the Isadore G. Kimball for the payment of her personal debt not contemplated by the will. But if the court is of the opinion that the alleged mortgage is a species of sale, inchoate or contingent, authorized by the will, and -endangering the whole property, then this respondent asks that the court order a sale of said property and that one-third of the proceeds including the said sum of seven hundred dollars be given to Charles H. Greenlief.”</p> <p>The cause came on to be heard on bill, answer and replication, and it appearing to the justice presiding that questions of law were involved of sufficient importance and doubt to justify the same,- by consent of the parties, the cause was reported to the law court for hearing and decision at the December term, 1903.</p>

<p>Specific Performance, Agreement to convey land. Payment, Terms' of. Bond for a Deed. Words, "Before or at the time the same shall become due.” Trust. Contempt. Dower, Release of. Title by descent. R. S. 1903, c. 77, § 17; c. 79, § (>. Slat. 1895, c. 157.</p> <p>The clause in a bond for a deed giving the dates of maturity of the notes to be paid by the obligee to entitle him to a conveyance, is not necessarily repugnant to a later clause in the bond requiring the obligor to convey the property upon payment of the sum agreed upon “before or at the time the same shall become due.”</p> <p>Even if the payee could not be compelled to surrender the notes, until he had received the full amount of principal and interest to maturity, the obligation to convey the property “before or at the time the same shall become due,” is a distinct one, and can be enforced by specific perform- - anee in equity.</p> <p>To entitle the obligee in such a bond to receive a conveyance of the property, he need only pay or tender to the obligee the amount of the principal and the. accrued interest to that date, and not to maturity of the notes.</p> <p>Quaere: Whether the obligor may still have a valid personal claim for interest on the unmatured notes from the date of tender to maturity.</p> <p>One who takes a conveyance of land which the owner has previously agreed to sell to another, with full knowledge of the existence and terms of the bond and the conditions which prevail as to payments thereon, holds the legal title as trustee of the obligee in the bond.</p> <p>Where the obligor in a bond for a deed has agreed that the deed shall include a release of dower, it is no injustice or hardship for the decree for specific performance to require the obligor to make every reasonable exertion to comply with his contract.</p> <p>If the obligor has a wife who refuses to release her dower or right by descent, proof of such refusal would be a sufficient cause for staying contempt proceedings against the obligor, until he could have an opportunity to apply to the court to have the wife’s appropriate share of the approved price deposited with the clerk under the provisions of R. S. 1903, c. 77, § 17.</p> <p>Proof of full compliance with the provisions of the statute whereby the wife’s “interest or right by descent” has been barred will be accepted to purge all contempt of court by the obligor for not delivering a deed containing a release of dower or title by descent by his wife in accordance with the decree.</p>

<p>Agreed statement.</p> <p>Action to recover the statute penalty for failing to erect and maintain a sufficient fence.</p> <p>The case is stated in the opinion.</p>

Action to recover an alleged loan evidenced by a check. The jury gave a verdict for the plaintiff, and the defendant filed a motion for new trial. The case appears in the opinion.

On report. This was an action brought by the plaintiff as trustee in bankruptcy of the estate of Edgar F. Hodsdon of Roxbury, to recover of the defendant the sum of one hundred and fifty dollars, alleged by the plaintiff to have been paid by said Hodsdon to the defendant on an existing debt, within four months of the filing of petition in bankruptcy by said Hodsdon, and while said Hodsdon was insolvent.

Case for alleged negligence arising from defective machinery. After verdict for the plaintiff the defendants filed a general motion for a new trial. The case is stated in the opinion.

<p>On report. Motion in equity.</p> <p>The case is stated in the opinion.</p>

<p>Exceptions by plaintiff.</p> <p>This was an action of assumpsit upon an alleged promise by the defendant to reimburse the plaintiff town for such judgment debt and damage and costs, as the plaintiff town might incur in assuming the defense of an action by one Walker against the town of Strong for supplies furnished one Dorcas Dodge, the mother of the defendant, who had fallen into distress in the town of Strong. There was evidence tending to show the following facts:</p> <p>The said pauper, Dorcas Dodge, had a pauper settlement in the town of Freeman, where she generally lived with her son, the defendant, when not visiting her other children. In the spring of 1901, while visiting her daughter in Strong, she fell into distress and was supplied by one Walker, who called upon the town of Strong for reimbursement. At this time the defendant was absent in Massachusetts, but, hearing from his family that his mother had been thrown upon the tow'n of Strong, wrote to one of the selectmen of the town of Freeman, Mr. Burbank, the following letter, dated May 6, 1901: “I just received word that my mother had been thrown on the town. If you will keep the expenses as low as possible I will pay the bill. As soon as I get home I will see you.” On arrival-home he made an effort to have his mother removed from Strong to Freeman, but objections being made by the Walkers with whom she was staying, no removal was made. Walker brought an action against Strong, of which the overseers of the poor of Freeman assumed the defense,, and the case was tried at the May term, 1902, and resulted in a judgment against Strong for the sum of $74.20 debt or damage, and $36.11 costs of suit, which judgment the town of Freeman paid. The town of Freeman also paid for counsel fees and witnesses in the defense of the suit $89.03.</p> <p>The town introduced evidence tending to show that in February, 1902, the defendant told one of the selectmen and overseers of the poor of the town of Freeman that if they would go ahead and defend the suit of Walker vs. Strong on account of his mother, he would pay all the bills and expenses. There was also evidence to the contrary.</p> <p>The presiding justice instructed the jury that' the promise contained in the letter, if any, was without consideration and that in this action nothing could be recovered from the defendant Dodge for any sum actually paid for supplies furnished his mother. The presiding justice also instructed the jury that if the defendant Dodge-requested one of the overseers of the poor to assume the defense of the action of Walker vs. Strong, and promised to reimburse the town of Freeman for all costs and expenses incurred therein, and the overseers of the poor of Freeman did upon the strength of that request and promise defend the suit, then the town of Freeman could recover the amount of the costs in that suit, and also the expenses incurred by Freeman in defending the action, and he submitted to the jury the question, whether or not the defendant made the request and promise in February, 1902, as alleged. Upon this issue the jury found for 'the defendant, and returned a general verdict of did not promise.</p> <p>To the ruling that the plaintiff could not recover in this action under the evidence for the supplies furnished Dorcas, or what it paid Strong for those supplies, the plaintiff excepted.</p> <p>By B. S. (1903), c. 27, § 18, the defendant if of sufficient ability was liable to contribute for the support of his mother, but that support could be recovered of him only for a period of six months prior to the petition to the court. The selectmen had his written promise that he would pay. The suit of Walker against Strong was pending and before that was tried the six months had elapsed so that there was no liability on the part of the defendant under the statute. The town are injured by reason of the promise. Without that they could and would have made application to the court for an assessment against the defendant. By reason of the promise that proceeding was not begun, and it is wrong to allow the defendant to thus injure the town and then escape liability as he is attempting to do.</p> <p>A benefit to one party or injury to the other is a sufficient consideration. Mascolo v. Montesanto, 61 Conn. 50, 29 Am. St. Rep. 170, and cases cited.</p> <p>Loomis v. Newhall, 15 Pick. 159, overrules Mills v. Wyman, 3 Pick. 207 and Cook v. Bradley, 17 Conn. 57, 18 Am. Dec. 79, 82, as explained in Kendall v. Kendall, 7 Maine, 171.</p> <p>The waiver of any legal right at the request of another party is a sufficient consideration for a promise. But the promise must have been accepted and acted upon. There must be the understanding between the parties, that the consideration for the promise is some waiver of a right or forbearance to enforce a claim on the part of the promise. Benson v. Hitchcock, Admr. 37 Vermont, 567.</p> <p>The selectmen of Freeman waived no rights in consequence of the defendant’s promise, and did nothing except that which by law they were legally bound to do. A promise to do that which one is already bound to do is not a consideration. Pool v. Boston, 5 Cush. 219; Jennings v. Chase, 10 Allen, 526; Smith v. Bartholomew, 1 Met. 276, 35 Am. Dee. 365; 3 Am. and Eng. Enc. Law, 1st ed. 834'.</p> <p>Plaintiffs denied all liability for the Walker claim and contested the suit. There is nothing to point to any reliance upon defendant’s promise until long after the occurrences which gave rise to the suit Walker vs. Strong.</p> <p>Even if it should be contended that there was an implied acceptance of the defendant’s proposition the latter was not in terms in return for the waiver of any rights, or for any service or detriment, which the town was not already bound to assume. The defendant requested the selectmen to do only that which the laws of the State imposed upon them as their duty.</p> <p>He asked no exemption from his liabilty to support as one of the pauper’s kindred, under the statute, and no reference was made to it. It was open to the plaintiffs to pursue the remedy provided by statute for contribution by kindred, and their failure so to do should not be attributed to defendant’s promise made for another consideration, expressly stated.</p>

<p>Liens, on land and buildings. Lost by delay in filing notice or bringing action within time provided by statute. R. S. 1888, C. 91, §§ 88 — 84-</p> <p>Proceedings to enforce lien claims upon land and buildings for materials furnished will become invalidated by delay in bringing the action for more than ninety days after notice of the claim has been filed, as provided in B. S. 1883, c. 91, l 34.</p> <p>The same result follows from failure to file the notice of a lien claim within forty days after the lienor ceases to furnish materials. Ib. c. 91, § 32.</p>

On report. Two actions of replevin, between the same parties, to recover possession of certain store fixtures, etc., from the defendant, the trustee in bankruptcy of F. Elbridge Drake, a bankrupt. The property was in the bankrupt’s possession at the time of bis adjudication in bankruptcy and was taken by the plaintiff by writs of replevin from the trustee subsequently appointed.

On report. ’Indictment for unlawfully packing and canning 3277 cans of sardines at Boothbay Harbor, Lincoln County, on the 13th day of December, 1901, and between the first day of said December and the tenth day of May following. By agreement of the parties the case was reported to the law court, the penalty to be fixed by the court below if the judgment should be for the State.

<p>Partnership. Actions, by partners — all to join ex contractu. Pleading.</p> <p>It is a general rule of pleading that all persons, who are partners in a firm when a contract is made with it, should join in an action for the breach of such contract.</p> <p>The defendant was indebted to a firm consisting of the plaintiff and T. for lumber purchased of the partnership. T. in fraud of the plaintiff settled the account by taking the defendant’s check for part and the application of the balance in discharge of T.’s individual debt to the defendant.</p> <p>Held; that the innocent partner cannot alone maintain a suit to recover the amount so applied.</p>

<p>On report.</p> <p>Tliis was an action of assumpsit in which there were four counts, two to recover damages for an alleged breach of a written contract, the third on an implied warranty of title, and the fourth for money had and received. They were all founded on a written permit to cut timber on lot 22 in the town of Medford, Penobscot County, given by the defendant Herbert J. Banton and the defendant Ada M. Fiske’s intestate, Fred J. Fiske, to Harry J. Bailey, the plaintiff’s assignor.</p> <p>The second count, treated by counsel as a count for breach of an implied warranty of title, is as follows:</p> <p>“Also, for that whereas heretofore, to wit; on the 9th day of December, A. D. 1899, at Bangor aforesaid, by a certain agreement then and there made by and between the said Herbert J. Banton and Fred J. Fiske, in his lifetime, and Harry J. Bailey, it was agreed that the said Herbert J. Banton and Fred J. Fiske should deliver during the season then next following to the said Harry J. Bailey, certain large quantities of pine, spruce and fir lumber to be cut from lands described in said agreement by the said Harry J. Bailey under a license given to him, the said Harry J. Bailey, by the said Herbert J. Banton and Fred J. Fiske, said lumber to be cut and removed upon certain conditions and restrictions fully set forth in said agreement at a price per thousand feet for stumpage which was stipulated and agreed upon in said agreement, to wit: for spruce $2.25 per M. for pine $4.50 per M and for fir $2.25 per M, and the said agreement being so made as aforesaid, afterwards, to wit, on the first day of June, 1900 at Old Town in said County of Penobscot, in consideration thereof that the said Harry J. Bailey at the special request of the said Herbert J. Banton and said Fred J. Fiske had then and there undertaken and faithfully promised the said Herbert J. Banton and Fred J. Fiske to perform and fulfill the said agreement in all things on his part and behalf to be performed and fulfilled, they, the said Herbert J. Banton and Fred J. Fiske, undertook and then and there faithfully promised the said Harry J. Bailey to perform and fulfill the said agreement in all things on their part and behalf to be performed and fulfilled; and the plaintiff saith that the said logging season of 1900 hath long since passed and although the said Harry J. Bailey was always ready and has offered between the 6th day of December, 1899 aforesaid and the day of the purchase of this writ to accept and take all of the lumber that he cut under said license and agreement during the loggiug season of 1899 and 1900 aforesaid and to pay the said stumpage of $2.25 per M for spruce and fir and $4.50 per M for pine, yet the said Herbert J. Banton and Fred J, Fiske in his lifetime nor the said Ada M. Fiske since his decease, not regarding their said agreement nor their said promise and undertaking so by them made as aforesaid, but contriving and fraudulently intending to deceive the said Harry J. Bailey in this behalf, did not deliver to the said Harry J. Bailey 884 pine logs and 906 spruce and fir logs making in all 1790 logs of the lumber so cut by the said Harry J. Bailey under said license and agreement, but wholly neglected and refused so to do.</p> <p>“And the plaintiff avers that the said Harry J. Bailey hath been put to great expense of time, money and labor in cutting said lumber and hauling the same and driving the same to market, to wit; at Stillwater in the Penobscot river, and that by reason of the neglect and refusal of the said Herbert J. Banton and Fred J. Fiske in his lifetime or the said Ada M. Fiske since his decease, to deliver said lumber as aforesaid, the said Harry J. Bailey hath wholly lost the time, money and labor expended in cutting and hauling and driving said logs and hath lost the opportunity to sell said logs at an advanced market price, to wit, fifteen hundred dollars ($1500) for said logs and lumber.</p> <p>“ And the plaintiff further avers that on the 12th day of June, A. D. 1901, all of the right, title and interest in and to said logs and lumber and right to maintain an action for a breach of said contract was transferred and assigned to him, the said Isaiah M. Pierce by the said Harry J. Bailey, as will appear by the assignment to be filed in court with this writ, wherefore and by force of the statute- in such case made and provided the defendants became liable and promised the plaintiff to pay him the sum of fifteen hundred dollars ($1500) on demand.”</p> <p>It appears from the reported testimony in the case that on the 9th day of December, 1899, Herbert J. Banton of Lagrange and Fred J. Fiske of Bangor gave to Harry J. Bailey of Howland a permit called an agreement and conditional license to cut and remove spruce, fir and pine timber from lot 22 in the town of Medford. Under said license Harry J. Bailey entered upon the lot during the winter of 1899 and 1900 and cut and removed the logs which form the subject of controversy in this suit. The title to lot 22 was claimed by William M. Eldridge of Dexter and, during the winter of 1899 and 1900, he asserted his title to the premises in various ways, by forbidding the cutting of the logs on the part of Bailey and finally by going on to the logs in the spring, marking them over, rolling them into the river and driving them. By the terms of the permit Harry J. Bailey was to pay stumpage for spruce and fir $2.25 per thousand, and for pine $4.50 per thousand, the stumpage to be paid on the 1st day of June, 1900. Prior to that day said Harry J. Bailey, having lost possession of said logs by the assertion of a superior title on the part of William M. Eldridge, did not pay or tender to the said Banton or Eiske the stumpage due on said logs, but claimed that he has ever held himself in readiness to do so.</p> <p>On the 24th day of August, 1900, the said William M. Eldridge caused to be replevied the logs which were cut from lot 22 on a replevin writ dated June 21, 1900; said action was entered at the October term, 1900, the action being tried at the April term, 1901. A verdict was rendered for the plaintiff, William M. Eldridge, and the jury made a finding that the property described was the property of Eldridge, and not of the defendant. That replevin suit against Harry J. Bailey was defended by Banton and Eiske, the defendants in this action. A motion for a new trial was submitted to the full court and judgment was rendered on the verdict. Judgment rendered March 8, 1902.</p> <p>On the 11th day of December, 1899, Harry J. Bailey assigned the permit mentioned in this case to I. M. Pierce, of Montague, as security for supplies and money advanced to carry on the lumbering operation, and by an assignment dated June 12, 1901, said Harry J. Bailey made absolute the conditional assignment.</p> <p>On the 27th day of June/1901, Isaiah M. Pierce, the assignee, brought this action against the defendant, Herbert J. Banton and Ada M. Eiske, administratrix of the estate of Fred J. Fiske, for breach of contract in the non-delivery of the logs.</p> <p>The plaintiff was excused from making a tender or payment, and it is sufficient that he has always been ready to pay the agreed price of stumpage upon delivery of the logs. Law never requires useless formalities. Ward v. Fuller, 15 Pick. 190; Southworth v. Smith, 7 Cush. 393; and Mowry’s ease, 112 Mass. 400.</p> <p>Payment of the purchase price, or the stumpage, and the delivery of the logs and the title to the same were to be simultaneous, and on June first the defendants could not have delivered the logs because they were in the possession of Eldridge; they could not have given title to them because they did not have title themselves, but it was in Eldridge as has been shown by the result of the case in court. It would be unreasonable to expect the plaintiff to make a tender of the stumpage. If tendered, it would have been accepted by the defendants, and if they were irresponsible then the plaintiff’s loss would be just so much the greater. 2 Pars. Cont. 7th ed. p. 811.</p> <p>Counsel also cited: Lake Shore & M. S. It. Co. v. Richards, 152 111. 59, 30 L. R. A. p. 45, and notes; Skinner v. Tinker, 34 Barb. 333; Bond v. Carpenter, 15 R. I. 400; Salvo v. Duncan, 49 Wise. 215; Corbett v. Anderson, 85 Wise. 218; Grandy v. Small, 5 Jones Jj. 51; Slum v. Grandy, 5 Jones L. 57; Abrams v. Sutiles, Busbee, L. 90; Woods v. Cooke, 61 Maine, 215; Duffy v. Patten, 74 Maine, 396; Richards v. Allen, 17 Maine, 296; Bassett v. Bassett, 55 Maine, 127; McCarthy v. Mansfield, 56 Maine, 538.</p> <p>Banton and Fiske, were in actual possession of lot 22; they had all the possession that the nature of the property permits; and that is all that the law requires. The property was wild land; no one ever stays upon wild land except for temporary purposes.</p> <p>The possession of Bailey was the possession of Banton and Eiske, and but for the permit the sale would have been completed when the logs were severed from the soil. The licensee of Banton and Eiske was in possession of the land at the time that the sale was made. In Shattuck v. Green, 104 Mass, on page 42, the court holds “If a tenant in common of personal property, which is in the possession of a third person as bailee of all the owners, sells his individual share, the possession of the bailee is his constructive possession so as to attach to the sale an implied warranty of title,” and in Grose v. Hennessey 13 Allen, p. 389, the court holds, “If a chattel is sold to which the vendor had no title, the purchaser may maintain an action against him to recover damages therefor; and it is immaterial that the purchaser has not been deprived of possession of the chattel.” The defendant, Hennessey, was in possession of real estate under a lease. He sold to the plaintiff, Grose, a building located on the land as personal property. At the same time he transferred to Grose the lease of the land. He had no title to the building as personal property because it was a part of the realty, and the title to the realty was in another.</p> <p>On page 390 in the opinion by Hoar, J., in the above case is the following: “By the sale of it as a chattel no title passed. In every sale of personal property there is an implied warranty of title; here there was no expressed warranty.” So far as the case discloses it is exactly similar to the case at bar. The case does not disclose whether the defendant, Hennessey, held the land under a lease from the true owner or not; if he did not, the two cases are exactly parallel.</p> <p>A sale of personal chattels implies affirmation by the vendor that the chattel is his and, therefore, he Warrants the title unless it is shown by the facts and circumstances that the vendor did not intend to assert ownership but only to transfer such interest as he might have in the chattel sold. Benj. Sales, § 639.</p> <p>If there was an assertion of ownership by the vendor in the property sold, then there would arise a warranty title even though he were not in possession. Huntingdon v. Hall, 36 Maine, 501.</p> <p>Damages: Bush v. Holmes, 53 Maine, 417, and 5 Am. & Eng. Ency. of Law, p. 30, and notes.</p> <p>Eirst: The permit in this case is simply an executory contract for conditional sale of standing timber coupled with a license to go upon the land and remove the logs.</p> <p>Second: After the trees were cut and removed from the land the license was executed, but the contract of conditional sale was not executed, because the stumpage never was paid and the title to the personal property did not pass until the payment of the stumpage money, and the performance of the other conditions precedent.</p> <p>Third: There is no implied warranty of title, because a warranty is an incident of completed sales only, and second because the vendors were not in possession of the property sold.</p> <p>Counsel cited: Banton v. Shorey, 77 Maine, 48; Comstock v. Smith, 23 Maine, 202; Putnam v. White, 76 Maine, 551; Brown v. Haynes, 52 Maine, 578; Crosby v. Iiedrnan, 70 Maine, 56; Osbourne v. Gantz, 60 N. Y. 540; Huntingdon v. Hall, 36 Maine, 501; Pratt v. Philbroolc, 33 Maine, 17. Damages: Ripley v. Mosely, 57 Maine, 76; Washington Ice Co. v. Webster, 62 Maine, 341; Winslow v. Lane, 63 Maine, 161.</p>

Exceptions by defendant. The defendant was found guilty by a jury in the Superior Court for Kennebec County of “assault and battery with a dangerous weapon” and thereupon filed a motion in arrest of judgment on'the ground that the verdict so rendered was for an offense not known to the laws of the State. The presiding justice having overruled the motion, the defendant took exceptions.

Exceptions by plaintiff. Complaint for flowage of plaintiff’s land by defendant’s mill dam under the mill acts. The defendant was defaulted at the March term, 1903, and commissioners were appointed who seasonably made their report. At the request of the plaintiff a jury was impanelled to try the cause and the report of the commissioners was under the direction of the court given in evidence to the jury.

On motion and exceptions by defendant. Action on the case to recover damages for injuries received by reason of an obstruction in the highway on Main Street, in the City of Lewiston. The obstruction and accident are the same which formed the basis of the action in Whitman v. Lewiston, 97 Maine, 519. The verdict for the plaintiff in that case was set aside by the law court on the defendant’s motion as being against the law and evidence.

<p>On report. Bill in equity.</p> <p>Bill in equity asking that respondent railroad corporation be enjoined from constructing a branch track across plaintiff’s premises, and for general relief.</p> <p>The facts appear in the opinion.</p> <p>Pursuing the policy adopted throughout the country to develop resources and encourage enterprise, our legislature in passing the Mill Act then “push the power of eminent domain to the very verge of constitutional inhibition.” Jordan v. Woodward, 40 Maine, 317, 323.</p> <p>Plaintiffs contend that in sustaining railroad legislation too, the court went “to the very verge of constitutional inhibition” in respect to the main line of this very enterprise. ■ Farnsworth v. Lime Rook R. R., 83 Maine, 440.</p> <p>Yet the decision in that case was not in respect to a spur track to one quarry merely, as here; but was in relation to the general enterprise itself, to taking a right of way for the main line. The court said “though not so significant an example as many railroad enterprises, it falls on the side of public use. It is of that stamp.”</p> <p>The plaintiff contends that the stamp is now obliterated. The reasons then given for holding this defendant corporation to be a public enterprise do not now exist. At the time of the decision the interests of the community were to be subserved. Today, under the present ownership and control, as the evidence shows, the design is directly to the contrary. All the reasons then given by the court for holding this corporation to be a public enterprise, related to the enterprise itself. Today this railroad is designed to' reach the quarries and kilns of its chief stockholder, the Bocldand-Bockport Lime Co., and none other if the latter company can prevent it.</p> <p>In the case at bar a private business corporation has by purchase acquired the stock and control of a railroad corporation, chartered ostensibly for a public purpose, and having the power of eminent domain. It now asks to exercise and enjoy the privileges granted to the railroad corporation which it has absorbed, for its own advantage and gain.</p> <p>The Ohio court in a case similar to the one at bar, held that “a railroad used exclusively for transportation of coal or freight for its stockholders, and which had no depots, freighthouses or. facilities for doing a public business, is a private enterprise.” State v. By. Go., 40 Ohio, 504; Vol. 2 Wood on Railroads, p. 835; In re Niagara Falls & W. R. Go., 108 N. Y. 375.</p> <p>In a West Virginia case where a railroad corporation sought to condemn land to build a switch and a branch track to reach a private manufactory, a steel mill, for the purpose of transporting freight to and from said steel mill, it was held that the use to which the land was to be subjected, was a private, not a public use. Pittsburg, Wheeling & Kentucky Railroad Go. v. Benwood Iron Works, 31 W. Va. 710, 2 L. R. A. 680.</p> <p>Counsel contended that one body corporate having the right of eminent domain cannot sell or lease to another their corporate powers and privileges and thereby disable themselves from performing their public duty without legislative authority. Brunswick Gas Light Go. v. United Gas, Fuel and Light Go., 85 Maine, 532, 35 Am. St. Rep. 385; R. S. 1903, c. 52, § 30.</p> <p>Counsel contended that such abuses of corporate rights and privileges under the conditions of control shown by the case, takes from this railroad corporation its former character of being a public enterprise, and subverts it franchises to private use for purposes of private gain.</p> <p>The question presented in the case at bar is whether trade combinations created for private purposes shall be permitted to buy up and absorb public franchises and avail themselves of the powers and privileges of eminent domain to further their own private interests.-</p>

Exceptions by plaintiff. Assumpsit on account annexed by one tenant in common against another for use and occupation. The case appears in the opinion. The effect of the ruling of the presiding justice was to take the question of the relation of the parties, whether that of landlord and tenant or not; entirely from the jury.