Volume 99 — Maine Reports

Agreed statement. Plaintiff nonsuit. This was an action of assumpsit brought to recover the sum of four hundred eighty-six dollars and thirty-three cents ($486.33) which is the sum expended by the plaintiff town, through its local board of health, in providing nurses and other attendants and necessaries for one Charles Nay, a small-pox patient, at Machias during the months of June and July, 1902. The case is stated in the opinion.

On report. Judgment for demandant without damages for rents and profits^ This was a real action brought to recover a lot of land in Dexter Village, entered at the January term, 1901, writ bearing date Dec. 5, 1900.

<p>Deed. Deal Action, declarations of predecessor in title not admissible. Evidence. New Trial.</p> <p>In the trial of an action involving the title to real estate, the declarations of a predecessor in title of either of the parties, made while in possession and against his interest, are generally admissible in evidence when such declarations relate to matters which must be proved or disproved by parol, such as the nature, character or extent of the declarant’s possession, the identity or location upon the face of the earth of boundaries and monuments called for in the deed, or in regard to any material matter concerning the physical condition or use of the property.</p> <p>But such declarations made out of court by the predecessor in title of a party to an action in court, as to the invalidity of a deed which appears to be sufficient in all respects, which bears all the insignia of genuineness and which has been duly recorded, are not admissible.</p> <p>A new trial will be granted, when the court is satisfied that the great preponderance of the evidence was contrary to the finding of the jury, and a consideration of all the circumstances surrounding the transaction and which thr.ow any light upon the question involved, show that the improbability of the demandant’s position is so great that the court is forced to the conclusion that justice requires that the motion should be granted.</p>

Agreed statement. Judgment for defendant, Fred Whitney. This action is on a promissory note dated January 11th, 1892. Case reported from Superior Court, Kennebec County, on the following case stated by the parties:— “On October 7th, 1895, the defendant, Fred Whitney, filed his petition in insolvency in the insolvent court in Kennebec County under the State law, and on March 9th, 1896, received his discharge in the ordinary form.

Exceptions by plaintiff. Trespass quare clausum. From the exceptions and reported testimony it appears that the land described in the writ, and on which the alleged trespass was committed, was originally owned by one Jesse 14. Bean, the deceased husband of Helen Bean.

Motion by defendant. Action of trespass, for an assault and battery, and malicious prosecution, both growing out of the same facts and tried together. The jury returned a verdict of $1,487.50 for the plaintiff in the first case and for the defendant in the second case.

<p>Street Railways. Country Grossings. Contributory Negligence. Traveler. Bank intervening between him and car.</p> <p>The conditions of a country crossing of an electric railway in some respects more nearly resemble the crossings of steam railways than they do the situation in city streets, where persons and teams are constantly traveling across and upon the tracks.</p> <p>If the traveler about to cross the track cannot see an approaching car on account of an intervening bank, he cannot therefore in the exercise of ordinary prudence assume that it is impossible for a car to be behind the bank.</p> <p>In conditions of known peril, prudent men are vigilant for their own safety; and one who drives into a place of known peril as «he would into one of assured safety, doing nothing whatever to safeguard himself or to ascertain if the danger be imminent, does not exercise the measure of ordinary care which the law requires.</p>

Motion by defendant. This was an action on the case to recover on a promissory note for $3,000. The plea was the general issue with a brief statement that the note had been settled by reason of an agreement entered into between the parties, two years previous to the commencement of the action. The verdict was for the plaintiff in the sum of $2,581.75. It came before the law court on a motion for a new trial as against evidence. The case appears in the opinion.

On motion and exceptions by defendant. Action at common law to recover damages for negligence resulting in the death of the plaintiff’s intestate, caused by an explosion of gas August 11, 1900, at the defendant’s works in Portland, and alleging that death was not immediate and that it was attended with conscious suffering. The jury returned a verdict for the plaintiff in the sum of $7,500.

Exceptions by defendant. Indictments for the illegal sale of intoxicating liquors, one being under the nuisance act, R. S. (1883), c. 17, § 1, and the other for being a common seller, under R. S. (1883), c. 27, § 35. The evidence disclosed that the article sold was “Uno Beer,” a malt liquor. The case appears in the opinion. Counsel argued: 1. That the beer in question is admittedly not intoxicating in fact. The State does not claim that it is intoxicating. 2.

Exceptions by appellants. Appeal in probate for York County by the executors of the will of Jotham P. Norton. Upon the hearing of the appeal in the court below the presiding justice dismissed the appeal, and the appellants took exceptions. The case appears in the opinion.

<p>Indictment. Pleading. Larceny, when it becomes Embezzlement, Form of declaring. R. 8. 1883, c. 128, § 13; 1903, c. 121, § 10.</p> <p>When a statute defines an offense and states one or more modes in which it may be committed, and prescribes but one penalty therefor, a single count in an indictment may contain a statement of facts which show that the offense has been committed by all the modes named in the statute.</p> <p>Although it appears upon the face of the indictment that the acts set forth constituted several modes by which the defendant committed the offense, yet if it also appears that the acts were committed at the same time, were connected and parts of the same transaction, the charge is not subject to the objection of duplicity.</p> <p>Larceny by one intrusted with property is declared to be embezzlement by R. S. (1903), c. 121, § 10, as follows : —</p> <p>“Whoever embezzles, or fraudulently converts to his own use, or secretes, with intent to embezzle or fraudulently convert to his own use, moneys goods or property delivered to him, or any part' thereof, which may be the subject of larceny, shall be deemed guilty of larceny, and shall be punished accordingly.”</p> <p>An indictment charged that the defendant “with force and arms took a certain pocket book containing a large sum of money, to wit, the sum of fifty dollars, of the goods and chattels of one A. B. then and there being, did then and there embezzle and fraudulently convert to his own use, and did then and there secrete with intent to embezzle and convert to his own use said pocket book, etc.” The statute under which the indictment is found clearly states that embezzlement or secreting with intent to embezzle are but different ways of committing, one and the same offense, which offense is a statutory larceny and to which is attached but one and the same penalty.</p> <p>The defendant may have committed the offense charged in this statute by one of the modes or both of them. If he secreted with intent to embezzle he would be guilty of the offense charged, and if he executed the intent he would be guilty of no more. The only effect of proving both offenses would be to show circumstances of aggravation.</p> <p>Held; that the indictment is not bad for duplicity.</p> <p>Also; that the indictment sets out every fact required by the statute to constitute the offense charged. It is not necessary that it should allege the offense of larceny, nor specify the value of the pocket book, nor the amount it contained.</p>

On report from the Superior Court for Kennebec County. Judgment for defendant. Assumpsit on account annexed to recover wages earned by one Thomas Landry, Jr. and claimed by the plaintiffs under an assignment dated May 8, 1900, and recorded on that day at 3.30 o’clock 1J. M. The case also disclosed another assignment of these wages by said Landry to one Charles Coro, dated and recorded at the same time.

Exceptions by plaintiff. Action on the case, heard, on demurrer to declaration, claiming damages for unlawfully constructing and maintaining divers sewers upon the plaintiffs premises in the City of Biddeford by the defendant city. The presiding justice sustained the demurrer and the plaintiff took exceptions. The case appears in the opinion.

On motion and exceptions by defendant. Case to recover damages for injury sustained by the plaintiff on the 13th day of June, 1900, by a defect in the highway in the defendant town, leading from Athens Village to Brighton. The jury returned a verdict for the plaintiff for $687.50. The case is stated in the opinion. Charge.

On report. Judgment for defendant. Trover for the alleged conversion of several horses and other goods and chattels. Plea, the general issue. Plaintiff claimed title under a recorded chattel mortgage, the signature to which was, “ M. M. and Sam Grant by Sam Grant.” Defendant claimed as trustee in bankruptcy of the estate of Madison M. Grant. The case is stated in the opinion.

Exceptions by plaintiff. Assumpsit on account annexed. Plea, general issue with brief statement of defendant’s discharge in bankruptcy dated Sept. 11,1901, on proceedings begun June 8, 1901. Replication by plaintiff that the debt declared on was not scheduled with the creditor’s name by the defendant in time for proof and allowance before the discharge was granted; and that the plaintiff had no notice or actual knowledge of the proceedings in bankruptcy before that time.

<p>Exceptions by plaintiff.</p>

Specific performance. Bill in equity praying for specific performance of an oral agreement for the conveyance of a lot of land and buildings in the City of Bath. The case is stated in the opinion. Counsel cited: Eulsifer.v, Waterman, 73 Maine, p. 244; Oreen v. Jones, 76 Maine, 563; Rowell v. Jewett, 69 Maine, 301; Knapp v. Bailey, 79 Maine, 195,' 1 Am. St. Bep. 295. Counsel cited: 20 Am. Eng.

<p>Exceptions by plaintiff.</p> <p>Action on the case for alleged negligence on the part of the defendant corporation, causing injuries to Raymond E. Moran while in its service, and from which injuries he subsequently died.</p> <p>The plaintiff claimed that the accident was due to the failure of the defendant corporation to make and enforce suitable rules and regulations, for the protection of those in its employ, regarding the running of the cars over its tracks. He averred that the defendant negligently and carelessly permitted its servants employed in the construction and repair of its machinery, apparatus, poles and wires to run cars at will over its track without ordinary direction and control.</p> <p>The defendant offered no evidence, and at the close of the plaintiffs evidence, the presiding justice instructed the jury to return a verdict for the defendant. The plaintiff took ■ exceptions to this ruling.</p> <p>It is those risks alone which cannot be avoided by the master that the servant assumes. City of Lasalle v. Kostka, 190 111. 135; Pantzar v. Tilly Foster Iron Mining Co., 73 N. Y. 376; Frye v. Bath, Gas & Electric Co., 94 Maine, 17; Noyes v. Smith, 28 Vt. 64; Whittaker v. Del. & Hudson Canal Co., 126 N. Y. 544.</p> <p>Duty to establish and enforce definite regulations for the protection of employees. 3 Wood on Railroads, 2nd ed. 382; 14 Am. & Eng. Enc. of Law, 1st ed. 907; Am. & Eng. -R. R. Cases, 497; Wood on Railroads, Minor’s ed. 1757; Abel v. Del. & Hudson Canal Go., 128 N. Y. 664.</p> <p>Whether the rules are adequate for the safety of others and the management of trains is a question of fact for the jury. Chicago, B. & Q. R. R. Co. v. McLallen, Admr., 84 111. 109. It is the duty of a railroad corporation operating a railroad, not only to adopt and promulgate rules, but after doing so to exercise such a supervision over its servants in the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules. Wabash R. R. Co. v. McDaniels, 107 U. S. 454; Laming v: N. Y. Central R. R. 49 N. Y. 521, 10 Am.'Rep. 417; Dowd v. N. T. Ontario & Western Ry. 107 N. Y. 459.</p> <p>Other facts should have been left to the jury. Lasky v. Canadian Pacific Railway Co., 83 Maine, 461; Nugent v. B. O & M. R. R. 80 Maine, 62; Sherman on Negligence, 19; Cooley on Torts, 669; Thompson on Torts, 38; 2 Wood on Railroads, 2nd. ed. 1433; Gaynor v. Old Colony & Newport R. R. Co., 100 Mass. 212; Mayo v. Boston & Maine R. R., 104 Mass. 143; Hankinson v. Lynn Gas & Electric Co., 175 Mass. 271; Olsen v. Andrews, 168 Mass. 261.</p> <p>Plaintiff’s intestate not a fellow-servant. Shanny v. Androscoggin Mills, 66 Maine, 420; Smith v. Erie R. R. Co., 67 N. J. 636.</p> <p>Statute 1893, c. 268, § 17, applies to cases of this kind, as well to employees as other persons, because the statute makes no exceptions.</p> <p>Condon, in setting the construction car in motion over the defendant’s road, was wholly outside his contract of service, and his acts no longer bind the defendant. Lima Railway Co. v. Little, (1902), 67 Ohio St. 91, 13 Am. Neg. Reports, 431; Demers v. Deering, 93 Maine, at page 280.</p> <p>The injury to the plaintiff’s intestate was brought about not by lack of rules, but by neglect or disobedience, of rules on the part of Condon. These rules are three in number: (1) Forbidding any car</p> <p>to be taken out by any department without express order or permission from Mr. Chisholm. (2) Related especially to the particular stretch of single' track on which Condon placed his construction-car, and on which the accident happened. (3) If any car about to follow another car in the same direction, it was the duty of the conductor of the following car to notify the conductor of the car ahead, that he was about to follow; and then it was the duty of the conductor of the leading car to notify in turn the conductor of the car approaching iü the opposite direction, as soon as he might pass that car at any turn-out; the approaching car, being thus notified that another car was to follow behind the one- just crossed, was under the duty to wait upon that turn-out till the following car also had safely passed.</p> <p>Counsel also cited: Fluhrer v. Lake Shore Ry., 124 Mich. 482, 484; O’Donnell v. Alleghany Valley Railroad Co., 59 Pa. St. 239; Fa., ete., Railroad Co. v. Langdon, 92 Pa. St. 21; Waterhury v. N. Y. Central Railroad Co., 17 Fed. Rep. 671; Galveston H. & S. A. Ry. Co. v. Stinkard, 2 Am. Neg. Rep. 654, 44 S. W. Rep. 35.</p>

<p>Waters. Mills. Dams. Bridge, floated off by extraordinary freshet. R. o. 94, §§ 1-8; S7-48. .</p> <p>1. Under the' Mill Act, R. S., c. 94, the limitation, if any, imposed upon the height of a dam by a prior highway bridge above on the same stream is only that the dam shall not be so high as to injure the bridge at the usual and ordinary stages of the water throughout the year including the usual recurring and to-be-expected freshets at different seasons as they occur in a series of years.</p> <p>2. If a bridge is unfavorably affected by a dam below only in extraordinary and unusual freshets which occur but seldom in a long series of years, the dam is not of unlawful height as to the bridge.</p> <p>3. It is not necessary that a freshet be unprecedented, or higher than any preceding freshet within memory, to constitute it an extraordinary and unusual freshet within the above rule.</p> <p>4. In this case the prior bridge had stood uninjured by the dam below in all the freshets occurring for a decade, and was injured at last only in an -extraordinary and unusual though not unprecedented freshet. The loss, therefore, must remain where it fell. The law does not shift it from the town upon the owner of the dam.</p> <p>5. The case does not seem to be within the “Mill Act” §§ 37-42, providing for cases of flowage of a highway by a dam. The road was not regularly or periodically overflowed.</p>

<p>Drains ancl Sewers. Laying out. Maintenance and Repair. Overflow. Deviation in construction from formal laying out. Evidence. Municipal officers, judicial action by. Record, Evidence"dehors not admitted. Special Assessments, for sewers. City of Bangor. R. S. 1903, c. SI, § 18. Stat. 1850, c. 153, § 1. Priv. & Spec. Laws 1887, c. S42, § 3.</p> <p>In order to recover against a municipality for violation of R. S., c. 21, § 18, requiring proper maintenance and repair of public drains and sewers, the plaintiff must establish the following propositions:</p> <p>1st. That the drain in question was a public drain or sewer, one legally established by act of the municipal officers of the city.</p> <p>2nd. That the plaintiff was a person entitled to drainage through it, not a mere trespasser, but one who had- fulfilled the requirements of law which were conditions precedent to the enjoyment of the right of drainage.</p> <p>3rd. That the defendant had failed to maintain the sewer, or to keep it in repair, so as to afford sufficient and suitable flow for all drainage entitled to pass through it. And on this point, it must be shown that the defect was not in the original system established by the judicial act of the municipal officers, but that there was an actual failure on the part of the city to maintain and keep the drain in repair after its construction.</p> <p>4th. That the plaintiff suffered injury from this neglect of the city to properly repair and maintain the sewer.</p> <p>Judicial acts of such boards as county commissioners or municipal officers, which might result in taking private property for public use, must be done with due formality and entered of record.</p> <p>Presumptively the record of such judicial action by the board of municipal officers shows the full proceedings. Parol evidence cannot supply, extend or modify the record.</p> <p>The board of municipal officers of the City of Bangor passed an order July 13,1889, instructing the superintendent of sewers to cause a public sewer to be constructed in Hammond Street to Pier Street westerly to the lot of one Thompson. No record appears showing any petition to, or precedent action by, the municipal officers for any sewer to be constructed on Wing Street, the location of the drain into which the plaintiff subsequently entered. There was evidence tending to show that in constructing the sewer it was found convenient, owing to a ledge in Hammond Street to deviate from the proposed authorized location and take a more practicable one passing through a portion of Wing Street and past the premises of the plaintiff. There appears no recorded action of the municipal officers authorizing this change. The mayor was allowed to testify that an order was formally passed by the municipal officers directing the construction of the sewer on Wing Street. Held; that this testimony should have been excluded.</p> <p>Since municipal officers in laying out drains and sewers act judicially under authority from the State, they are in no sense the agents of the city.</p> <p>The city or its agents in charge of the maintenance and repairs of a drain or sewer after its completion are not in a legal sense continuing the same work commenced by the municipal officers in laying it out. They are accountable to different authorities and no privity exists between them. There can be no subsequent ratification of a deviation from the original laying out of a sewer in cases where the original proceedings for the same must be in pursuance of statutory requirements. Hence, the recorded action of the municipal officers in accepting the report of the superintendent of sewers showing the completion of the sewer and assessing the benefits accruing to the plaintiff from its construction, cannot- be received in evidence to prove ratification of acts otherwise unauthorized.</p> <p>Subsequent ratification or acquiescence by the city, even to the extent" of accepting payment of the assessment levied on the plaintiff’s premises for sewer purposes, cannot cure a substantial defect or omission in the action of the board of municipal officers in laying out a sewer.</p> <p>The presentation to the board of municipal officers of a petition -signed as required by statute, is a jurisdictional fact which must be made to appear in order to show a proper and legal laying out of a sewer.</p> <p>Held-, that the provisions of Spec. Laws of 1887, c. 242, §'3, relating to the entry of private drains into common sewers in the City of Bangor, have reference to such public drains and sewers as are established and constructed by the direction and in accordance with the formal laying out of the board of municipal officers; and that no subsequent ratification or acquiescence by the city can cure a substantial defect or omission in the action of the board.</p> <p>Held; also, that this special law cannot give the plaintiff any greater or different rights from those accorded by the general laws governing drains and sewers. • .</p>

<p>On motion for new trial by defendant.</p> <p>Action on the case to recover damages for personal injuries sustained by plaintiff in a collision between defendant’s cars and the team in which plaintiff was riding.</p> <p>Plea, general issue. Verdict for plaintiff for $8,157.50.</p> <p>The facts, so far as material, are stated in the opinion.</p>

On motion and exceptions by defendant. Action on the case for unlawfully persuading and enticing plaintiffs wife to refuse him marital intercourse. Plea, general issue. Verdict for plaintiff for $2,833.33. The case sufficiently appears in the opinion. Exceptions. The evidence was proof of adultery which was not alleged or charged. Defendant was not bound to meet a case for adultery, not being charged with it. The evidence should have been excluded.

On exceptions by defendant. Search and seizure complaint entered in the Supreme Judicial Court, March term, 1904, Somerset county, on appeal from the Municipal Court of Skowhegan. After a verdict of guilty, the presiding justice overruled a motion in arrest of judgment, and allowed exceptions. The case appears in the opinion.

<p> Maintaining Liquor Nuisance. Ownership and control of Building. Evidence. </p> <p>In the trial of- an action for maintaining a liquor nuisance, for the purpose of proving the respondent’s ownership of the building an office copy of a mortgage of the same was introduced against the respondent’s objection. Held-, that he was not prejudiced thereby as he afterwards testified that he executed the mortgage.</p> <p>Parol evidence is admissible to prove that a party has made a contract which is in writing, when such contract is not the foundation of the cause but simply a collateral fact, and the contents of the writing are not involved in the case.</p>

<p>Real Action. — Survey and Plan. Boundary Lines. Conveyances. Evidence.</p> <p>1. Where a land surveyor was directed by the State to run out wild lands in the public domain into ranges and townships, to spot the lines and to make a return of his survey with a plan representing the lines of the ranges and townships ; and enters upon the work and makes and returns to the State a plan of his survey, showing range and township lines; such plan after the surveyor’s death is competent evidence (and sufficient if uncontradicted) that the township lines laid down upon the plan were actually run upon the earth’s surface.</p> <p>2. The fact that after seventy-five years of lumbering operations and forest fires, no spotted trees or other indicia of one such line are found on the surface of wild land is not sufficient to overcome the evidence of the plan that the line was actually run.</p> <p>3. The fact that some streams and ponds are so delineated on the plan as to indicate they were not then actually surveyed in detail does not overcome the evidence of the plan as to lines. The running of the line was essential to the purposes of the survey. The course and contour of ■ streams and ponds were incidental, not essential.</p> <p>4. While such a plan is only a picture of the survey and must give way before satisfactory evidence that it does not correctly represent the actual survey, yet if there be no such evidence the plan must be taken as a correct picture. Hence if the plan shows a given line to have been run in a given direction and at a given distance from a given natural object, as a pond, it is evidence (and sufficient if uncontradicted) that, such was the direction and position of the line run upon the earth, even though no traces are now found to correspond.</p> <p>5. In the case of two or more surveys and plans of the same tract, a conveyance of a lot or township, “ as the same was surveyed by A,” with the date, adopts as boundaries the lines of the lot or township as pictured on the plan of that survey, if the plan be the only existing evidence of the survey, notwithstanding the lines are differently located on the plans of the other surveys.. Even if the lines in the survey named in the conveyance were not correctly run, yet having been run and made the boundaries in the deeds of conveyance, they must stand as such despite the irregularities and inequalities thus produced.</p> <p>6. The question in this case, was the location' of the north and south dividing line between township No. 4 on the east and township No. 5 (now Brownville) on the west, in the 8fch range north of Waldo Patent. If it was west of Sehoodic Lake the demanded land belonged to the plaintiff. In 1794 Samuel Weston was sent by Massachusetts the then owner to run out the tract into ranges and townships. The only evidence of his survey was his plan on which the north and south line between these two townships was laid down as west of Sehoodic Lake. The subsequent conveyance of each township adopted the line, surveyed “by Samuel Weston in 1794.” Held; that the plan was sufficient evidence that Samuel Weston actually ran the line between the townships and ran it west of Sehoodic Lake, and hence that the demanded land must be adjudged to the plaintiff. Held; further, however, that the judgment in this case being based on the evidence in this case, does not fix the dividing line between the two townships named, for any other case between other parties, towns or individuals.</p>

<p>Ob report. Plaintiff nonsuit.</p> <p>Action on the case to recover damages for injuries to the health of the plaintiff alleged to have been caused by the foul, offensive and unhealthy condition of the “lockup” of the defendant town, and in which the plaintiff was confined for several hours, for safe keeping, by a constable of the defendant town, pending plaintiff’s arraignment on a charge of intoxication. Plea, general issue.</p> <p>This action came on for trial at the December term, 1903, of the Supreme Judicial Court, in Aroostook County, and after the plaintiff’s evidence had been taken out, the case was withdrawn from the jury and reported to the Law Court under the stipulation that “if the Law Court is of the opinion that the action is maintainable against the town upon this evidence, the action will stand for trial; but if it is of the opinion that the town is not liable, then the plaintiff is to be nonsuit.”</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Fraudulent Conveyances. Assignment. Action. Equity. Demurrer. Bankruptcy. Bankrupt Act 1898, §§ 67 and 70. Public Laws, 1877, c. 158, R. /S'., c. 79, § 6, Clause IX.</p> <p>The grantor in a conveyance fraudulent as to creditors was afterwards adjudged a bankrupt. His trustee in bankruptcy sold and assigned to the plaintiff all the right, title and interest which vested in him as trustee to the premises fraudulently conveyed “ together with any right to bring action, at law or in equity, to enforce any claim against said premises which was vested in said trustee in the interest” of the bankrupt’s creditors. The plaintiff was one of the creditors of the bankrupt, and as such, might have maintained proceedings to have the fraudulent conveyance set aside.</p> <p>In a bill to set aside the fraudulent conveyance, brought by the plaintiff as purchaser from the trustee in bankruptcy, there was no allegation that the trustee had ever made entry upon the premises, or had possession thereof, or had ever made any election to avoid the fraudulent conveyance, unless the sale and assignment was such an election, or had taken any steps to contest the title of the fraudulent grantee. Nor was there any allegation that the plaintiff was in possession when the bill was brought.</p> <p>Held; 1. That a mere naked right to set aside a fraudulent conveyance is not assignable, and an attempted assignment thereof cannot be enforced.</p> <p>2. By force of the U. S. Bankruptcy Act, the title, to the lands in question become vested in the trustee.</p> <p>3. Whether the conveyance by the trustee under the circumstances recited was a sufficient manifestation of his option to avoid the fraudulent conveyance, quaere.</p> <p>4. Whether a trustee in bankruptcy can sell estate which had previously been conveyed by the bankrupt in fraud of his creditors, until he has obtained an adjudication of the fraud and reduced the estate to possession, quaere.</p> <p>6. If the trustee could not give, and the plaintiff did not obtain, title to the premises by the deed, then the deed conveyed only a mere naked right of action to attack the fraudulent conveyance, and that is not enforceable.</p> <p>0. But if the plaintiff obtained title, he cannot maintain proceedings in equity to have the cloud of the fraudulent conveyance removed, without alleging and proving that he is in possession. If not in possession, he must resort to his remedy at law.</p> <p>7. The remedy given by R. S., c. 79, $ 6, clause IX, by which the court has general jurisdiction in equity to reach and apply in payment of a debt any property or interest conveyed in fraud of creditors, is not applicable in this case; that remedy is limited to creditors. In this bill the plaintiff stands as a purchaser, not as a creditor.</p>

<p>Exceptions by plaintiff.</p> <p>Action on the case to recover damages for injuries received by plaintiff by reason of an alleged defect in the highway in defendant town. At the conclusion of the plaintiff’s testimony, on motion of the defendant’s counsel, the presiding justice ordered a nonsuit on the ground that the foregoing evidence on the question of due care of Gertrude E. Perry, the person who was driving the team in which the plaintiff rode, was insufficient to wai’rant sending the case to the jury.</p> <p>The term “due care” is a relative one. It would have added no probative force to the plaintiff’s case if Gertrude E. Perry and a dozen witnesses had testified at the hearing that she was in the exercise of due care. Whether or not she was in the exercise of due care must be inferred by the jury from all the facts and circumstances in the case. French v. Brunswick, 21 Maine, 29; Garmon v. Bangor, 38 Maine, 443. The question of due care is for the jury, 64 Maine, 541. Where evidence had been introduced tending' to prove all the points required by law to be proved, in order to maintain the action, although circumstantial in character, and by way of inference from facts proved, a nonsuit ought not to be ordered, but the case should be submitted to the determination of the jury. Foster v. Dixfield, 18 Maine, 380. The question of negligence either of plaintiff or of defendant is one of fact for the jury, when the facts ai’e in controversy, and even when they are not, if fair minded and unprejudiced persons may differ in the conclusions to be drawn from the facts. It is a question of law for the court when the facts are undisputed, and but one inference can properly be drawn therefrom. Blumenthal v. B. & M. JR. JR., 97 Maine, 260.</p> <p>In an action against a town for personal injuries from a defective highway, it is necessary for the plaintiff to show due care on her part, and also due care on the part of the driver, before the defendant will be required to introduce any evidence, and if all the evidence, as a whole does not show said due care, the presiding justice should order a nonsuit. Merrill v. Hampden, 26 Maine, 234; Dickey v. Maine Tel. Co., 43 Maine, 492; Benson v. Titcomb, 72 Maine, 31; Whitman v. Fisher, 98 Maine, 575.</p> <p>If the plaintiff knew that the hole was there and that the highway was dangerous at that point, she would be required to exercise greater care, and the lack of same would be contributory negligence. Wormwell v. M. C. R. R. Co., 79 Maine, 397 Walker v. Redington Lumber Co., 86 Maine, 191.</p> <p>A person driving into a place of known peril and doing nothing to safeguard himself, does not exercise the measure of care which the law requires. Whitman v. Fisher, 98 Maine, 575.</p>

On report. Judgment for plaintiff. Action of assumpsit at common law brought by the. plaintiff for the benefit of the London, Liverpool & Globe Insurance Co., to recover the sum of two thousand dollars paid by said Company to the plaintiff under a policy of insurance on certain buildings of the plaintiff which were destroyed, as alleged, by fire set by an engine of the defendant negligently constructed, managed and operated by the defendant on its road.

<p>Motion for new trial by defendant.</p> <p>Case for personal injuries sustained by the plaintiff August 6th, 1900, while at work in an excavation in a certain street in the city of Rockland.</p> <p>The jury returned a verdict of $600.00 for the plaintiff.</p> <p>The facts appear in the opinion.</p> <p>The only question involved was whether given a derrick situated upon the top of a bank thirty or forty feet above the place where the men were at work, with the lower end of the boom of that derrick in no way secured to its place in the socket, and one of the hazards and things which was likely to happen being that the topping lift which held the outer boom was likely to get loose and run down, the inevitable result that when that run down the boom would come out of its socket, and in all probability fall into the quarry, reasonable care had been exercised in providing for that place a derrick of that construction ?</p> <p>While a derrick of this construction might be reasonably safe and a proper derrick to be used where all the work was to be done on the same level on which the derrick was set, and where if the boom should come out of the socket it would only drop three or four feet to the ground at the base of the derrick, it would be an entirely improper and unsafe appliance to use at the place where the lower end of the boom, becoming separate from the mast it would drop a distance of thirty to forty feet and put in jeopardy not only the limbs but the lives of those who were at work with it.</p> <p>On all branches of the question the jury were certainly warranted in arriving, on the undisputed facts to a conclusion in favor of the plaintiff. They were to pass, as a matter of fact, upon the question whether it was reasonable care to provide such a derrick for that place.</p> <p>The conclusion was for them, and the facts certainly justify the conclusions drawn. We submit it would be impossible for them to come to any other proper conclusion.</p> <p>If it should be thought that as a matter of precaution the end of the boom should have been fastened to the mast, still if such want of fastening was not the direct cause of the accident or injury, the plaintiff could not recover because the undisputed evidence shows that an intervening cause and the real cause of the boom coming out of that chock and falling into the quarry was the loosening or casting off of the topping lift. It is well stated in 16 Am. & Eng. Enev. of Law, 1 Ed., page 433, “ Where there can be found an independent, efficient, probable cause, the law will ascribe the injury to this probable cause rather than to the negligence which was not its likely and probable cause, but only to be held so in the absence of any other.”</p> <p>If the jury could, by any process of reasoning find that the derrick was defective because the boom was not lashed or fasten'ed to the mast and into its chock, and that that was the proximate cause of the accident, whose duty was it to so fasten it? Was it the defendant's? Was that not a part of the selection of a competent person to set it up? The evidence shows that he selected a suitable derrick, with no imperfections in it. He then employed a proper and experienced man to set it up. If it were the proper thing, or necessary to fasten the boom to the mast, wasn't it this man’s duty to do so, and see to it that it was lashed or fastened to the mast?</p>

<p>Board of Health. Towns. Action. Words and Phrases. R. 8. 1903, c. 18, § 51.</p> <p>Revised Statutes, Oh. 18, § 51, provides in substance that when any person is infected with any disease or sickness, dangerous to the public health, the local board of health may remove him to a separate house, and there care for him at his charge, “ if able.” Held:</p> <p>1. That such a person is not chargeable with any part of the expense incurred, if he is not able to pay the full amount.</p> <p>2. Such a person is not chargeable with the expense incurred, if he is not financially able at the time of liis discharge, although he was able to labor, and did labor, and afterwards accumulated sufficient money to pay the expense.</p> <p>3. The phrase, “if able,” relates to the pecuniary ability of the party at the time the expenses were incurred.</p>

Exceptions by plaintiff. This was a suit in equity to remove a cloud upon title to real estate in Knox County. The law court being of the opinion that the plaintiff’s remedy was at law, sent to that county the rescript, “Bill dismissed with costs.” The rescript was received, entered and filed March 17, 1904, but no costs have been taxed or execution issued.

<p>On report. Judgment for defendant.</p> <p>Indictment under chap. 118, § 23, of the Revised Statutes of 1883, charging the defendant with extortion. By agreement the case was withdrawn from the jury and reported to the Law Court upon so much of the evidence as was legally admissible. If the decision of the court is that the act of the respondent charged in the indictment, which it was agreed was performed by order of the Fish Commissioner, was a violation of section 23 of chapter 119 of the Revised Statutes of 1883, then judgment is to be entered for the state, otherwise for the respondent.</p> <p>To extort under statutes of this kind means to obtain such money or other advantage by means of the wilful and malicious threatening. Commonwealth v. Coolidge, 128 Mass. 55.</p> <p>If the threat was wilfully made, with the intent to extort money, it was a malicious act, and the fact that the charge was true would be immaterial. Commonwealth v. Buckley, 148 Mass. 27.</p> <p>The wilful doing of an unlawful act without excuse is ordinarily sufficient to support the allegation' that it was done maliciously and with criminal intent. Commonwealth v. Scott, 122 Mass. 33.</p> <p>The form of the words alleged to be a threat is unimportant if they sufficiently convey the idea. State v. Patterson, 68 Maine, 473.</p> <p>Not the accusation, but the threat to make it, constitutes the crime. Bishop New Crim. Law, Par. 1201.</p> <p>Immaterial whether person threatened is guilty or not, for in either case there is an attempt to pervert justice. The threat needn’t be successful. Bishop as above.</p> <p>Whether the purpose and intention of the defendant was to extort money is purely a question of fact. Commonwealth ,v. Coolidge, supra ; Commonwealth v. Buckley, supra.</p> <p>Evidence that the person threatened, in fact committed the crime inadmissible on question of intent and malice. Commonwealth v. Coolidge, supra.</p> <p>The threat may be of a general character, indicating not the accusation of any particular crime or offense, but the accusation of some ofEense or other. Commonwealth v. Goodwin, 122 Mass. 31; State v. Robinson, 185 Maine, 195.</p> <p>The Statutes of Maine present the authority under which the warden and the commissioner have acted. Have they usurped their powers? The provision of section 71 seems to be specific wherein it sets out, “And all offenses under, or violations of, the provisions of this statute, may be settled by the commissioner of sea and shore fisheries, upon such terms and conditions as he deems advisable.”</p> <p>I take these words to mean that the commissioner may do just what the letter in this case purports; that is, he may settle all offenses under or violations of-the provisions of said chápter, whether such offenses and violations have been brought before the courts or not. In other words, it is left with the commissioner to dispose of all offenses and violations of said chapter as he deems for the best interest of the state so to do. This would allow him to sift the case and to take into consideration the enormity of the offense, the situation of the parties, and in short the best interests of the state and all concerned with the one end in view to stop the handling of short lobsters.</p> <p>The giving of this power to the commissioner, probably arose from the fact that there are a large number of seizures of small importance for violations of the laws, where it seems best for the commissioner to dispose of them without reference to the courts where he can properly do so, rather than to present them to the courts and by such process the interest of the state be better served. Whether it is a wise policy is not the question raised here, although from the nature of the offenses under said chapter it would seem to be for the interest of the state to grant this power to the commissioner as it has.</p> <p>The nature of the business makes it obligatory on the commissioner to delegate his authority to his subordinates. It would be an impossibility for the commissioner to cover the entire state in person and to do the entire work of his department. The law does not intend that he shall be so restricted, and provides specifically for the use of subordinates and what the authority of the subordinates shall be.</p> <p>“No act, carefully performed, from motives which the law recognizes as honest and upright, is punishable as a crime. And it has always been held, that extortion proceeds only from a corrupt mind.” Bishop on Criminal Law, Yol. 2, § 396.</p> <p>“In this, as in every other crime, the intent is an essential ingredient. The extortion must be knowingly and with a corrupt motive.</p> <p>Under the statutes it seems to be generally held there must be knowledge and corrupt intent whether the statute in terms requires that such should be the case or not.</p> <p>In morals it is an evil mind which makes the offense; and this, as a general rule, has been at the root of criminal law. The consequence is, that it is not to be intended that this principle is discarded merely on account of the generality of statutory language.</p> <p>It is highly reasonable to presume that the law-makers did not intend to disgrace or to punish a person who should do an act under the belief that it was lawful to do it.”</p> <p>“In an indictment charging the defendant with maliciously threatening to accuse a person named of a crime with the intent to extort money, the evidence offered as to the truth of the accusation might have an important bearing upon the question of the defendant’s intent and should be admitted.</p> <p>If the wrong which he offered to prove had in fact been committed, the demand which the defendant made for payment may have been without the intent to extort money necessary to constitute the crime alleged in the indictment.” Commonwealth v. Jones, 121 Mass. 57; Commonwealth v. Coolidge, 128 Mass. 59.</p>

<p>Health Insurance. Notice. Waiver. Stat. 1895, c. 46. R. 8., c. 49, § 95.</p> <p>Plaintiff was insured against loss resulting from sickness caused by various diseases, among which was dysentery. The policy provided that failure to give written notice as therein provided within ten days of the date of the beginning of any sickness, should invalidate any and all claims under it. The plaintiff fell sick October 17,. 1903, and no notice was given to the company or its agents of the sickness, until December 30, 1903. Within thirty days after plaintiff became sick with dysentery, but not within the first ten days of his being sick, he became insane. Held:—</p> <p>1. The condition in the policy was a valid one, and by its terms the failure to give notice within ten days of the date of the beginning of the plaintiff’s sickness invalidated all claims under the policy.</p> <p>2. The provisions of Public Laws 1895, ch. 46, (R. S., ch. 49, § 95) to the effect that notice of accident, injury or death may be given to a foreign or domestic casualty or accident insurance company insuring, at any time within thirty days after the happening of an accident or injury or death, and shall be valid and binding on the company, do not extend to cases of health insurance.</p> <p>3. Where a health insurance company, after the expiration of ten days from the time a party insured became ill, but before it knew the date when he did become ill, sent blank forms for proof of claim to him to be filled out, such conduct did not constitute a waiver on its part of the provision requiring the plaintiff to notify it within ten days from the beginning of the sickness.</p>

<p>Way. Notice of claim. Evidence. R. S. 1903, c. S3, § 76.</p> <p>1. The statute, It. S., ch. 23, § 76, provides that a party injured by a defect in a way cannot recover of a town unless he shall, within fourteen days thereafter, notify one of the municipal officers of the town by letter or otherwise, in writing, setting forth his claim for damages, and specifying the nature of his injuries.</p> <p>2. A notice is sufficient which describes the nature of the injury with sufficient particularity to enable the town to inquire into and ascertain the true condition of the sufferer.</p> <p>3. But the injured party, in his notice, must specify such injuries as he knows of, and for which he claims damages. If he can do no more, he must state the apparent physical condition caused by the iujury, and he. may do this by comprehensive terms. If he does so, it is notice of such results as actually follow from the injury.</p> <p>4. In a case where such notice in writing described the injury as “said injury consists of a fracture of both wrists,” and the claim for damages was stated in these words, — “I claim five hundred dollars damages against said town for my injuries above specified;” held:—</p> <p>That it was error to permit the jury to allow the plaintiff damages for an injury to her shoulder.</p>

<p>Motion and exceptions by defendant.</p> <p>Action against defendant company for negligently causing death of plaintiff’s intestate. There was a verdict for the plaintiff for $5000. Defendant filed a motion for a new trial, also exceptions to the admission and exclusion of certain evidence and to the refusal of the presiding justice to give certain instructions.</p> <p>The facts appear in the opinion.</p>

<p>Intoxicating Liquors. Search and Seizure. Warrant. R. S. {1883), c. 21, §§ 39, 40.</p> <p>An officer who seizes property without a warrant, is held to a strict compliance with all the requirements of law authorizing such proceedings.</p> <p>When an officer seizes intoxicating liquors without a warrant and a warrant is thereafterwards obtained, and the name of the person keeping the liquors is stated in the complaint, the warrant should contain a command to arrest such person and hold him to answer as keeping said liquors intended for unlawful sale.</p> <p>If the warrant contains no such command, it is unauthorized and void upon its face and can afford no protection to the officer seeking to justify under it.</p>

<p> Equity. Corporation. By-Laws. Ultra Vires. </p> <p>1. The implied powers of a corporation are not limited to such as are indispensably necessary to carry into effect those which are expressly granted, but comprise all that are necessary, in the sense of being appropriate, convenient and suitable for such purposes, including the right of a reasonable choice of means to be employed.</p> <p>2. If a corporation or mutual association has for one of its lawful purposes the mutual aid and protection of its members, and has the power to raise and expend money for the payment of sick benefits to members, the power to afford relief to its members by furnishing them the care of a physician in time of sickness may be fairly implied from the general scope of the corporate purposes.</p> <p>3. But when one of the by-laws of a benevolent and protective society provides that “the funds of this society shall be appropriated for no other purpose than that necessarily incurred for the maintenance of wages, burying the dead, and other incidental expenses” the payment of a salary to a physician, is not thereby authorized, but is forbidden, although another by-law provides for the payment of sick benefits.</p> <p>4. When such a society, by another by-law, provided that “resolutions adopted at any general or special meeting of this society for any special purpose shall be as binding on its members as if they were embodied in its by-laws,” it is held that by fair construction such resolutions are intended to have, and do have, the effect of by-laws, only when they are not inconsistent with the by-laws, and do not have the effect of amending or repealing them.</p> <p>5. A society having such by-laws as those stated cannot lawfully vote to pay a salary to a physician for the benefit of its members. To hold otherwise, would be to give to such a vote the effect of amending the by-law's.</p> <p>6. By-laws are the rules of corporate government. While they aid in the orderly transaction of the corporate business, they also serve as a protection of the corporation itself, or of minority members, against ill advised or illegal acts of the majority.</p> <p>7. A member of such a society has an interest in its funds, and is entitled to the protection of the by-laws, and he may maintain a bill to enjoin a violation thereof.</p>

On report. Judgment for defendants. Debt on bond. This action was brought in the Superior Court, Cumberland County, and at the hearing- thereon it was agreed that the case should be reported to the Law Court and that upon so much of the evidence “as is competent and legally admissible, the Law Court is to render such judgment as the legal rights of the parties may require.” The case is stated in the opinion.

<p>On report. Judgment for appellant.</p> <p>Appeal by plaintiff corporation from assessments of taxes in defendant town for the years 1901 and 1902. After the evidence had been taken out in the Court below, the case was sent to the Law Court on report “for determination upon so much of the evidence as is legally admissible.”</p> <p>The case appears in the opinion.</p>

On exceptions by plaintiff. Assumpsit upon a policy of fire insurance issued by the defendant company to the plaintiff on May 15, 1900, against loss by fire, and fire caused by lightning, for the term of three years, covering $1350 on- buildings and $450 on personal property.

<p> Negligence. Master and Servant. Evidence. Exceptions. </p> <p>1. It is not strictly accurate to say that the law, in measuring the care incumbent upon a master and that owed by a servant, recognizes different standards of care or negligence. Oare in every such case is to be measured by reasonableness under all the circumstances of the particular injury. And reasonable care is synonymous with “ ordinary ” or “due ” care.</p> <p>2. It is the duty of a master to use reasonable care in furnishing his servants reasonably safe appliances with which to work, and in keeping them reasonably safe thereafter, and if the appliances are of such a character as to be likely to become weak, or worn, or out of order by time or use, reasonable care requires the master to make examinations or inspections at reasonable intervals, in order that defects may be discovered and remedied. While the servant is bound to use his eyes and his mind, and to see the things before him which are obvious, and is chargeable with knowledge of the conditions and things which he sees, or ought by the exercise of reasonable care to see, he is not ordinarily bound to examine or inspect appliances, or to discover dangers not obvious, unless charged with that duty by the master, or by the character of his work. He may rely upon the presumption that the master has inspected. It follows therefore that the care which the master owes cannot be measured by the care which the servant owes. A greater degree of diligence is incumbent upon the master, and that is only reasonable care on his part.</p> <p>3. A request for instructions that the jury find for the requesting party, based upon a part only of the issues involved, is properly refused.</p> <p>4. Whether a servant assumed a risk or was guilty of contributory negligence with respect to defective appliances he was using, depends not upon the mere fact that he saw or handled the appliances, but rather upon whether he saw, or ought by reasonable care to have seen, — or knew, or ought by reasonable care to have known,- — their defective condition.</p> <p>5. Re-direct examination of a witness calling out a repetition of a matter which was elicited in a proper cross-examination, is not exceptionable.</p> <p>6. It is not improper on cross-examination to test a witness by calling for his opinions and conclusions, for the purpose of affecting his credibility, and if the cross-examiner happens to elicit an opinion unfavorable to his view of the case, it cannot be said that he is prejudiced if his adversary on re-examination obtains a repetition of the opinion.</p> <p>.7. An inadmissible question was asked, and against objection, answered. But the Justice presiding, expressing doubts as to its competency, immediately framed another question to be asked in its stead, all of which was in the presence of the jury.</p> <p>Held; that under the circumstances of the case, the error was sufficiently remedied, and that the defendant received no harm.</p> <p>8. Also; that the evidence is sufficient to warrant the jury in finding that the defendant was negligent, and that the plaintiff’s intestate neither knew nor by the exercise of reasonable care ought to have known of the defect in the appliance which caused his death. In such a case, he assumed no risk, and was guilty of no negligence.</p>

Motion and exceptions by defendant. Action under chapter 124, Public Laws of 1891, brought by the plaintiff as administratrix of her late husband, Dennis D. McCarthy, to recover for personal injuries to him, received on August 18th, 1908, caused by the falling of a staging upon which he was engaged in laying brick on the walls of the Empire theater, located in Lewis-ton, and then in process of construction, and by reason of the falling of said staging, the plaintiff’s…

Motion and exceptions by defendant. Exceptions overruled. Action for personal injuries sustained by the plaintiff while in the employ of the defendant corporation. The verdict was for the plaintiff in the sum of $2750. Before opening his case to the jury the plaintiff asked leave to amend his declaration by adding a second count thereto. Defendant objected but the amendment was allowed.

<p>Action by Assignee. Pleadings. Demurrer. Amendment. R. S., 1908, c. 84, § 146.</p> <p>Where, in an action by the assignee of. an account, the declaration alleges a debt due from the defendant to the plaintiff’s assignor according to the account annexed, the bill of items annexed has the same effect as if copied in the body of the declaration.</p> <p>To entitle the assignee to sue in his own name, he must file with his writ, the assignment or a copy thereof.</p> <p>Where the assignment of an account is made on the bill of items annexed to the writ, it is a sufficient filing with the writ. It is not necessary to have such assignment made on a separate paper.</p> <p>It is no ground for demurrer in an action of assumpsit on account annexed that the items of account are written on paper which has the business card of a firm printed on one corner thereof.</p>

<p> Negligence. Way. Independent Contractor. Verdict. </p> <p>1. An independent contractor is one who carries on an independent business, and, in the line of his business, is employed to do a job of work, and in doing it, does not act under the direction and control of his employer, but determines for himself in what manner the work shall be done.</p> <p>2. An employer is not released from liability and cannot avoid responsibility by an independent contract when such contract involves acts which will constitute a nuisance unless properly guarded against, or involves a duty to the public or a third person, or which will necessarily bring wrongful consequences, or that cannot be performed except under the right of the employer who retains the right of access.</p> <p>3. It is the duty of those whose work necessarily makes dangerous a public, street, to give notice by means of proper signals, warnings or barriers, to passers-by that the work is going on.</p> <p>4. But if the situation of things, regardless of signals, warnings or barriers, is such as to warn a person who is in the exercise of ordinary care, of what is going on, such person, if injured, cannot recover.</p> <p>5. When the evidence is conflicting upon the question of negligence and contributory negligence, the verdict of the jury upon the questson of liability must stand.'</p>

Motion by plaintiff. The verdict in the court below was in favor of the defendant, and comes to this court on a motion by plaintiff to set aside the verdict because of alleged misconduct of a witness for defendant, and of certain jurors. The material facts appear in the opinion.

Exceptions by defendant. Bill in equity by the plaintiff against the defendant to redeem a mortgage of real estate from a foreclosure commenced by said defendant Littlefield as administrator de bonis non of the estate of Hiram Bliss, late of Washington, deceased. The defendant Littlefield filed a general demurrer which was overruled by the presiding justice, and the defendant excepted. The causes of demurrer fully appear in the opinion of the court.

On report. Judgment for the defendants. Three actions brought by the plaintiff as trustee in bankruptcy to recover certain payments made to the defendants by the bankrupts, which payments the plaintiff alleged to be preferences under the Bankrupt Act of 1898.

Exceptions by defendant. Judgment arrested. The defendant, at the January term, 1904, of the Supreme Judicial Court, York County, was indicted for attempting to break and enter a certain car of the Boston & Maine Railroad “for the purpose of commiting a felony,” and upon trial was found guilty; thereupon he moved in arrest of judgment. The motion was overruled, and the defendant excepted.

Bill in equity. Sustained. Decree according to opinion. On report. Bill in equity brought by the widow of Bernard McGuire, late of Portland, and executrix of his will, for the construction of said will. The case is stated in the opinion.

On report. Judgment for plaintiff. Action on the case to recover the increased cost of transportation which the plaintiff was obliged to pay on three cars of potatoes shipped by him from Fort Fairfield, Maine, to Philadelphia, caused by the defendant forwarding the potatoes from Boston to Phiadelphia by a route other than that designated by the plaintiff.

On exceptions, by plaintiff and defendant in trespass action and by defendants in real action. Real action and an action of trespass quare clausum for an alleged trespass upon the premises demanded, tried together by order of the presiding justice. At the close of. the evidence the presiding justice ordered a verdict for the plaintiff in each action. The jury returned verdicts as directed, assessing damages in trespass action at $63.

On report. Assumpsit on a promissory note of $2957. Defense failure of consideration. At the hearing in the court below, the case was reported to the law court for determination upon so much of the evidence as is legally admissible. The case sufficiently appears in the opinion.

Agreed statement. Judgment for defendant. Action of debt brought by Charles F. Curtis, Collector of Taxes for the City of Auburn, to recover from the defendant lodge certain taxes assessed thereop for the year 1903, and for which the said lodge claims an exemption. The writ was entered at the April term of the Supreme Judicial Court for Androscoggin County, and by agreement, reported for the decision of the Law Court. The case is stated in the opinion.

<p> Attachment. Fraudulent Conveyance. Levy. Practice. Bankrupt Act 1898. </p> <p>A general attachment of all of a defendant’s real estate and interest in real estate, in a certain county, made more than four months before the filing of a petition in bankruptcy by or against the defendant, in an action wherein the cause of action is provable in bankruptcy, is sufficient to entitle the plaintiff to a special judgment against the property claimed to have been attached, where the defendant had the title to certain real estate after the debt sued was contracted, which had been conveyed prior to the commencement of the suit, but which conveyance is claimed by the plaintiff to have been made in fraud of creditors and therefore void as to him, a creditor at the time.</p> <p>If the real estate which the defendant owned prior to the attachment, was conveyed by her for the purpose of defrauding her creditors, such conveyance was void as to this plaintiff, a creditor at the time of the conveyance. If void, as to creditors, it was a nullity and should be entirely disregarded in these proceedings. That question we do not and cannot now decide. After the plaintiff has judgment against the property claimed to have been attached, has taken out execution, and levied upon this property the question as to whether or not the conveyance was fraudulent, and as to whether or not it was in fact the property of the defendant at the time of the attachment, can then be raised and decided in appropriate proceedings, in which all persons interested may be, and necessarily must be, made parties.</p> <p>As a matter of practice, inasmuch as the record does not show what real estate is claimed to have been covered by the attachment, the plaintiff should make a written motion for the judgment desired, particularly describing the property against which judgment is desired, and which, it is claimed, is covered by the attachment, because conveyed in fraud of creditors, supported by the affidavit of the plaintiff or his attorney that it is believed that such property was fraudulently conveyed and was covered by the attachment.</p>

Exceptions by plaintiff. Action on the case under the Civil Damage Act, B>. S. 1883, c. 27, § 49, now it.

<p> Water Company. Eminent Domain. Instructions to Appraisers. Franchise. Valuation. Damages. Evidence. Private and Special Laws, 1908, c. 158. </p> <p>In a proceeding for the condemnation and appraisal of a portion of a system of water works by the exercise of the right of eminent domain, under a statute which created a water district composed of two towns, with power to take a specified portion of an entire system, being operated in those two and other towns, and which provided that appraisers appointed by the court should fix the valuation of the plant, property and franchises taken, so that the owner should receive just compensation therefor; and further that the appraisers should assess damages for the severance of that portion of the plant, property and franchises taken from the owner’s entire water system and franchises, the declared intent of the. act being that the amount of the valuation of the property taken, and of the additional damages for severance, if any, taken together,- should be so fixed as to equal the difference between the valuation, before severance, of the entire plant, property and franchises, and the value after severance of that portion of the plant, property and franchises not taken, both of the last named valuations to be determined under the principles of eminent domain ; and it was further provided that the act itself should take effect when approved by a majority vote of the inhabitants of each of the towns which were to compose the water district, and that such an approval should constitute an acceptance by said water district of the methods of appraisal prescribed by the Act, and should bind the water district and the water company thereto, it is held that the appraisers should be instructed, among other things, in accordance with the following principles:</p> <p>1. In applying the rale that the basis of all calculations as to the reasonableness of rates to be charged by a public service corporation is the fail-value of the property used by it for the service of the public, franchise values are not to be disregarded, that the element of going concern value is not to be considered only as involved in structure value, and that property value, in this connection, is not merely structure value.</p> <p>2. The fact that the structure taken is in use, and the further fact that it may lawfully be used where it may properly enhance its value.</p> <p>3. The direction of the statute to the appraisers to fix the valuation of the plant and of the franchises is in substance a direction to fix the valuation of the plant as affected by the franchises.</p> <p>4. While actual cost bears upon reasonableness of rates, and as well, upon the present value of the structure as such, in estimating structure value, prior cost is not the only criterion of present value. If by the rise of prices, the present value of the structure is greater than the cost, the owner is entitled to the benefit of it; if less than the cost, the owner must lose it. And the same factors should be considered in estimating the reasonableness of rates.</p> <p>5. Reasonable is a relative term, and what is reasonable depends upon many varying circumstances. But in determining what are reasonable rates so as to produce a reasonable return’ to the owner upon his invest„ment, the amount of money which has been actually and wisely expended in producing the plant is a primary consideration.</p> <p>6. The question of the reasonableness of rates relates to both, the owner and the customer. But in case of conflict, they must be reasonable to the customer in any event.</p> <p>7. A public service company cannot lawfully charge more than the services are reasonably worth to the public as individuals, even if charges so limited would fail to produce a fair return to the owner upon his property or investment.</p> <p>8. Profits which in the aggregate exceed a fair return on the owner’s property and franchises do involve unreasonable rates, and furnish no criterion of either franchise values or going concern values. But what would be a fair return must depend upon the circumstances of each particular case.</p> <p>9. The issue of the reasonableness of rates charged, as well as all other issues affecting value, are to be determined by a preponderance of the evidence.</p> <p>10. The value is to be fixed as of January 1, 1904, and in determining the value on that day, market prices of materials and labor on that day or during a period long enough before that time for construction, are the standards, rather than former prices. And as to be completed on that day, the construction of the plant must have been begun before, interest upon the money invested in the plant during construction, and before completion, is a part of the cost of construction.</p> <p>11. Damages for severance are to be allowed as prescribed in the plaintiff’s charter.</p> <p>12. While it is not constitutionally competent for the legislature to prescribe a rule of damage, the rules prescribed in this case are to be deemed effective, not because they were established by the legislature, but because by the approval of the charter they were assented to by the. inhabitants of the water district.</p> <p>13. In estimating the value of a public service to the public or the customers, one of the elements necessary to be considered is the expense at which the public or customers, as a community, might serve themselves, were, they free to do so, and were it not for the practically exclusive franchises of the supplying company. Water is to be regarded as a product, and the cost at which it can be produced or distributed, is an important, though not the only, element of its worth.</p> <p>14. The worth of a water service in such connection, is the worth to the customers as individuals, but as individuals making up a community of water takers.</p> <p>15. Communities are entitled to the benefit of existing natural advantages. If there is more than one source of supply, other things being equal, the community is entitled to have the least expensive one used, and the supplying company is not entitled to charge an enhanced rate based in part, at least, upon the cost of using a more expensive source.</p> <p>Id. When the fates which furnish a basis for estimating value are earned in part by property taken and in part by property not taken, the appraisers nnlst discriminate, and so far as value may depend upon rates, they should charge the property taken for only its fair proportion of the earnings.</p> <p>17. While the award of the appraisers must be made under the principles of eminent domain, it must be made upon such principles of eminent domain as were agreed to by the voting constituents of the water district, by approving the charter.</p>

On report. Judgment for defendant. Action of debt on a policy of insurance issued by defendant company against accident and disease. The case was reported from the Supreme Judicial Court, for Sagadahoc County. The facts are stated in the opinion.

On appeal and motion. This was an appeal from the Probate Court of Cumberland County-approving, allowing and admitting to probate a certain instrument purporting to be the last will and testament of Foster Lee Randall, late of Lewiston, in the County of Androscoggin, deceased.

On report. Judgment for plaintiff. Assumpsit on policy of fire insurance issued by defendant company to the plaintiff. In the court below, upon the completion of the evidence offered by the plaintiff, the defendant offering no evidence and by agreement of the parties, the case was “reported to the Law Court to order such judgment or further proceedings in the case as the rights of the parties may require.” The case appears in the opinion.

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

On motion-and exceptions by plaintiff. Action for money had and received, brought under the statute to prosecute an appeal from the report of commissioners appointed by the Judge of Probate for the County of Kennebec, to pass upon the plaintiff’s claim. (R. S. 1883, c. 64, § 53.) The commissioners returned an award for the plaintiff for the sum of $303.70. The plaintiff then appealed.

On report. Judgment for plaintiff. Action of assumpsit to recover loss under a policy of fire insurance, issued by the defendant. At the hearing in the Superior Court for Cumberland County, by agreement of the parties the evidence was reported to the Law Court to render such judgment upon so much of the evidence as is competent and legally admissible, as the rights of the parties may require. The case is sufficiently stated in the opinion.

On exceptions by defendant. Assumpsit to recover balance due on account annexed, and also to recover damages occasioned by the refusal of tlie defendant to accept certain brick, which, it was alleged, the defendant agreed to purchase of the plaintiff. The ease is stated in the opinion.

<p>On report. Judgment for defendants.</p> <p>Action of debt on a bond given by the defendants to Elizabeth City Lodge, No. 114, Independent Order of Odd Fellows of Maine, located in South Portland, Cumberland County. In the court below, by consent of the parties, the evidence was reported to the Law Court to render such judgment as the rights of the parties require. The case is sufficiently stated in the opinion.</p>

Motion and exceptions by defendant. Statutory action by the administrator of the estate of Mary F. Carrigan, his intestate, to recover damages for the death of the said Mary F. Carrigan, who was burned to death in a fire which destroyed a certain three story building, in Bangor, owned by the defendant, and in which said building the said deceased was employed at the time of her death.

On exceptions by defendant. Indictment for manslaughter wherein the defendant was charged with causing the death of one Leander Bartlett, who died of diptheria at the community known as Shiloh, located at Durham, in the County of Androscoggin, on the twenty-fifth day of January, 1903. The jury rendered a verdict of guilty. The case is sufficiently stated in the opinion.

In Equity. On exceptions by defendant. Petition by plaintiff company for the appointment of commissioners pursuant to provisions of chapter 174, Private & Special laws of 1903, to determine the value of certain property alleged to have been owned by said company, and to have been taken by the defendant company by virtue of the right of eminent domain conferred on said defendant company by said act.

<p> Will. Annuity. Fund, Set Apart to Meet Annuity. Distribution of Residuum of Fund at Cessation of Annuity. </p> <p>Where an annuity is given by will the executor is authorized to set apart from the residue of the estate a sufficient sum to meet it, and the fund is subject to distribution, according to the will, when the annuity ceases.</p> <p>As it is part of the residuum the executor never parts with the title, and even if treated as a trust fund for the benefit of the annuitant, it must be returned to the executor for administration and distribution when the quasi trust terminates.</p> <p>A will which among other bequests gives a legatee “one hundred dollars, each year, for her own personal use as long as she may live,” and provides that “the residue of my property after the above amounts have been paid and provided for to be divided equally between my heirs” is to be construed as giving the residuum to those who were the heirs of the testator at the time of his death in the absence of words indicating a clear intention that it should go to those who might be the heirs at the time of the happening of the contingency upon which the estate is to be distributed.</p>

<p>Appeal. Trustee Disclosure. Practice. R. 8.1903, c. 88, § 30.</p> <p>After a default, an appeal does not lie and should not be allowed.</p> <p>An appeal does not lie from a judgment charging a trustee, unless the case discloses that an issue was joined upon the disclosure of the trustee.</p> <p>A trustee disclosure is taken to be true with respect to the amount with which the trustee should be charged and judgment upon it is conclusive upon the plaintiff and the defendant. If either of the parties desire to contest the truth of the disclosure, they should do so at the proper time by alleging and proving facts to the contrary.</p>

<p>On report. Judgment for plaintiffs.</p> <p>The case sufficiently appears in the opinion.</p>

<p> Equity. Resulting Trust. Decree of Single Justice. </p> <p>1. A resulting trust arises by implication of law when the purchase money is paid by one person out of his own money, and the land conveyed to another. It may be paid by the cestui que trust himself. It may be paid by another for him. It may be paid for him by the trustee. But the money must belong to the cestui que trust in specie, or by its payment by the hands of another he must incur an obligation to repay, so that the consideration actually moves from him at the time.</p> <p>2. The trust arises from the circumstance that the money of the real purchaser, and not that of the grantee in the deed, formed the consideration of the purchase. In this case the evidence warrants the finding that the transaction between the alleged trustee and cestui que trust was a loan and that the cestui que trust was bound to repay the trustee' for the money loaned on his account.</p> <p>3. On an appeal in equity, unless the decision of the presiding justice as to the facts is clearly wrong, it must be affirmed.</p>

<p>Negligence. Legislative Powers. Statutory Construction. 27 U. S. Stai. at Large, 1890, c. 907, §§ 4, 6, 7, 10. U. S. River and Harbor Act, approved March 8, 1899, §§ 9, 10.</p> <p>1. A water pipe, laid across the Kennebec River at Bath, by authority of an act of the legislature, and in accordance with plans recommended by the Chief, of Engineers and authorized by the Secretary of War, is not an unlawful obstruction to the river.</p> <p>2. Under section 10 of the River and Harbor Bill of Congress, approved March 3, 1899, a water pipe across the Kennebec River at Bath, if built according to plans recommended by the Chief of Engineers and authorized by the Secretary of War, is deemed to be affirmatively authorized by Congress, and is a lawful structure without any further action by Congress, although the affirmative authority arises by implication.</p> <p>3. When only one inference touching negligence can reasonably be drawn from undisputed facts, negligence is a question of law7.</p> <p>4. When the captain of a schooner which has been taken in tow by a tug boat from its place of anchorage in a river, knew that a water pipe across the river w7as in his path, and knew where it was, and did not know how much anchor chain he had out when the tug commenced to tow his schooner down river, and took no precaution not to foul the pipe, whether his vessel be towed over it by the tug, or being cast off, drifted over it, and, without protest or notice to the captain of the tug, permitted his vessel to be taken 1500 feet from its anchorage nearly down to the pipe, where the haw'ser was cast off, the anchor being then at or near the bottom of the river, — Held, that the inference of negligence is so unmistakable that no reasonable inference can be drawn to the contrary.</p> <p>5. In such case it is no defense that the tugboat was also negligently managed. When an injury is the result of concurring negligent acts of two parties, one is not exempt from full liability, although the other was equally culpable.</p>

In Equity. On appeal by plaintiffs. Petition of twenty legal voters of the town of Skowhegan under B. S. 1883, chapter 17, section 1, as amended by statute of 1891, chapter 98j — now B. S. 1903, chapter 22, section 1, — against the tenant or occupant of a certain room in a certain building, in said town, praying for injunctions, both temporary and perpetual, to restrain the defendant from using or allowing said room to be used as a place of resort for gambling.

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

In Equity. Equity. On report. Bill in equity to obtain the construction of the will of Joseph M. Haseltine, late of Dexter, Maine. After demurrer by defendants the parties agreed to report the same to the law court for determination. All questions of law and fact to be open upon this report as fully as upon appeal and exceptions. The opinion states the facts.

<p> Replevin. Contract. Rescission. Tender. </p> <p>The plaintiff exchanged a cow with the defendant, receiving of him a heifer and 58.00 in money. After examining the heifer, the plaintiff claimed that the defendant had misrepresented as to her size and qualities, and undertook to rescind the trade by restoring to the defendant the heifer and the money. The plaintiff returned the heifer and left her in the defendant’s barn and offered to repay the identical money which he had received of the defendant with the heifer in exchange for the cow, but the defendant refused to accept the money. The plaintiff did not bring this money into court with his writ nor produce the same at the trial.</p> <p>A party rescinding a contract must do all that is practicable to place the other party in statu quo. What he cannot restore on account of opposition he must put in custodia legis, so that it can be had upon request at least before verdict.</p> <p>A tender must be kept good so that the other party shall know that he can at any time get his money or goods back without being put to an action to recover the same.</p> <p>Held: That the plaintiff, after having made a tender and done all that was necessary to affect a rescission of the contract and authorize an action, failed to keep his tender good by bringing it into court with his writ,- or at least at the trial, and that by reason of this failure he cannot maintain his action.</p>

On motion for a new trial by defendant. Case to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. Verdict for plaintiff for $1644. Defendant filed a general motion for a new trial, and also a motion for a new trial on the ground of newly discovered evidence. The latter motion was not considered. The case is stated in the opinion.