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+"{\"id\": \"11190841\", \"name\": \"Raymond McGEECHAN et al. v. Mary H. SHERWOOD et al.\", \"name_abbreviation\": \"McGeechan v. Sherwood\", \"decision_date\": \"2000-10-30\", \"docket_number\": \"\", \"first_page\": \"1068\", \"last_page\": \"1082\", \"citations\": \"760 A.2d 1068\", \"volume\": \"760\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:31:29.262210+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.\", \"parties\": \"Raymond McGEECHAN et al. v. Mary H. SHERWOOD et al.\", \"head_matter\": \"2000 ME 188\\nRaymond McGEECHAN et al. v. Mary H. SHERWOOD et al.\\nSupreme Judicial Court of Maine.\\nArgued Jan. 6, 2000.\\nDecided Oct. 30, 2000.\\nBrett D. Baber, Esq., (orally), Baber & Weeks, P.A., Bangor, for plaintiffs.\\nKevin M. Cuddy, Esq., (orally), Pamela D. Chute, Esq., Cuddy & Lanahm, Bangor, for defendants.\\nPanel: WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.\", \"word_count\": \"7627\", \"char_count\": \"44746\", \"text\": \"CLIFFORD, J.\\n[\\u00b6 1] Mary H. Sherwood appeals from a judgment entered in the Superior Court (Penobscot County, Mead, J.) that declares the boundary between two properties located in Hampden, one parcel owned by Sherwood, the other by Raymond and Carolyn McGeechan. Sherwood contends that the trial court improperly decided for the McGeechans on declaratory judgment and quiet title claims by (1) failing to properly apply the standard rules of construction for the location of the boundary lines, and (2) incorrectly concluding that the McGeechans owned the area of land known as the Paper Mill Road. Sherwood also contends that the court erred in finding that the McGeechans' parcel is benefitted by an easement over Sherwood's property. In a cross-appeal, the McGeechans contend that the trial court (Marden, J.) erred in granting a summary judgment in favor of Sherwood and co-defendant Bangor Real Estate on their claim of intentional interference with an economic relationship arising out of Sherwood's purchase of part of her land from the Ellis family.\\n[\\u00b62] We agree with the McGeechans that the trial court properly identified and declared the point at which the east-west boundary between the two properties begins, and we affirm the court's location of the east-west boundary line that runs from the \\\"point of beginning\\\" to the northern terminus of the boundary between the two properties. We also affirm the trial court's conclusion that the McGeechans' land is benefitted by an easement across what is identified as the Old Grist Mill Road and the Paper Mill Road. We agree with Sherwood, however, that the court erroneously concluded (1) that the Paper Mill Road, which lies along the parties' shared north-south boundary, is in the McGeechans' chain of title, and (2) that Sherwood's title does not include the Paper Mill Road.\\n[\\u00b6 3] On the McGeechans' cross-appeal, we vacate the summary judgment entered against the McGeechans on their claim of intentional interference with an economic relationship because there exist genuine issues of material fact that must be resolved by a factfinder.\\nI. BACKGROUND\\n[\\u00b6 4] In the 1800s, a road formed the entire southern and western boundary of what is now the Sherwood parcel, located north and east of property owned by the McGeeehans. The road was single and continuous, but was identified by different names, most commonly the Old Grist Mill Road and the Paper Mill Road.\\n[\\u00b6 5] The parties have established the location of the segment of the road as it runs west along the southern boundary of the Sherwood parcel, forming the parties' shared north-south boundary, frequently referred to in this litigation as the Paper Mill Road. There is disagreement, however, as to who owns that segment of the old roadway, both parties claiming that the Paper Mill Road is in their chain of title.\\n[\\u00b6 6] The parties also agree on the northern terminus of the road. They disagree, however, as to where that road turns from the southern boundary of the Sherwood parcel and heads north, that point being the disputed \\\"point of beginning\\\" located by the trial court. They also disagree on the precise path the road, generally referred to as the Old Grist Mill Road, travels as it runs northerly from the point of beginning to reach the agreed upon northern terminus. That line represents their shared east-west boundary.\\n[\\u00b6 7] Finally, although the parties agree that Sherwood retains title to the part of the road known as the Old Grist Mill Road, which runs along the parties' shared east-west boundary, the McGeeehans also claim the benefit of an easement in that road. The McGeeehans alternatively assert, in the event they are not determined to be the owners of the Paper Mill Road, that their property benefits from a deed easement in the Paper Mill Road. With this general background in mind, we now turn to the events which gave rise to this appeal.\\n[\\u00b6 8] The McGeeehans purchased a twenty-five-acre parcel of land in Hamp-den in 1981. In July of 1995, they learned that an adjacent four acre parcel was being sold by the Ellis family and that David Caliendo of Bangor Real Estate was the listing agent. They contacted Caliendo and informed him of their interest in the property.\\n[\\u00b6 9] Raymond McGeechan obtained a seller's disclosure for the Ellis property from Sherwood, a real estate broker with Bangor Real Estate, and Sherwood listed McGeechan on the prospect sheet for the property, Sherwood did not inform McGeechan that she, too, was interested in the property. Sherwood informed Calien-do of her interest in the property and arranged to view the property at the same time as the McGeeehans. Neither Calien-do nor Sherwood disclosed to the McGee-ehans that Sherwood was a potential purchaser.\\n[\\u00b6 10] The McGeechans allege that Sherwood remained within hearing distance while they viewed the property. After touring the property, Raymond McGee-chan asked Caliendo if there were any other offers on the property and Caliendo responded in the negative. McGeechan openly discussed with Caliendo the terms of their proposed offer of $30,000, and Caliendo stated that he thought the offer would be acceptable to the seller. McGee-chan also informed Caliendo that the offer was intended to start a dialogue to negotiate with the Ellis family regarding the terms of the purchase. The McGeechans submitted a signed offer that Sherwood also signed as a witness.\\n[\\u00b6 11] One day after the McGeechans signed their offer, Sherwood prepared her own offer of $35,000. Caliendo did not inform the McGeechans of Sherwood's offer, nor did Caliendo inform Mr. Ellis that the McGeechans were prepared to pay more than $30,000 for the property. Cal-iendo submitted the $30,000 McGeechan offer and the $35,000 Sherwood offer to Ellis, and Ellis accepted Sherwood's offer.\\n[\\u00b6 12] Subsequent to Sherwood's purchase of the Ellis property, a survey of the property conducted for Sherwood by Richard Day, a licensed professional land surveyor, concluded that the McGeechans' driveway and utility pole encroached on the Sherwood parcel. Sherwood sent a letter to the McGeechans informing them of the encroachments and giving them permission to continue to use the property for those purposes only.\\n[\\u00b6 13] Believing that the driveway and utility pole were on their own property, the McGeechans hired Michael Avery, also a licensed professional land surveyor, to survey their property. Avery concluded that the McGeechans owned their driveway and the utility pole. He also concluded that Day's survey had inaccurately located the western boundary of the Sherwood parcel and had ignored the fact that title to that part of the road identified as the Paper Mill Road was held by the McGeechans.\\n[\\u00b6 14] The McGeechans filed a complaint in the Superior Court for a declaratory judgment to define the boundary between the two properties. The complaint included a claim for trespass and to quiet title to the property. The McGeechans also alleged that Sherwood and co-defendant Bangor Real Estate intentionally interfered with the McGeechans' economic advantage and relationship with the Ellis family in their attempt to purchase the Ellis property.\\n[\\u00b6 15] Following discovery, Sherwood moved for a partial summary judgment, arguing that the McGeechans could not establish an intentional interference with an economic relationship absent some evidence of fraud, and there was no fraud. The Superior Court (Marden, J.) concluded that the McGeechans had failed to present sufficient evidence to show interference with an economic relationship because, as a matter of law, the alleged Conduct of Sherwood and Caliendo did not rise to the level of \\\"active concealment\\\" that is required to prove fraud. Accordingly, the court entered a summary judgment in favor of Sherwood on that claim, which is the subject of the McGeechans' cross-appeal.\\n[\\u00b6 16] A bench trial was held in December of 1998 to resolve the boundary and title claims. In February of 1999, the Superior Court (Mead, J.) concluded that \\\"Plaintiffs' Exhibit D, the Avery Survey, more appropriately establishes the location of the common boundary,\\\" and incorporated the survey into its judgment. The Avery survey identifies the entire boundary between the parcels and shows the McGeechans as the owners of the Paper Mill Road, which runs along the southern boundary of the Sherwood parcel. The court also agreed with Avery that the McGeechan property benefits from an easement along the Old Grist Mill Road, which runs along the western boundary of the Sherwood parcel. Sherwood appealed the judgment.\\nII. THE BOUNDARY DISPUTE\\nA. THE SHARED EAST-WEST BOUNDARY\\n[\\u00b6 17] The property at issue in this case was originally part of two lots, designated in the early 1800s as Lots 24 and 25. Both Lot 24 and Lot 25 were roughly rectangular in shape and the boundary between them ran-east-west in a straight line. Lot 24 is now owned by the McGeechans and is located directly to the south of Lot 25.\\n[\\u00b6 18]. In the early 1800s, John Crosby Sr. owned all of Lot 25. In 1820, he divided that parcel using a road to mark the boundary between the two properties. That road is the same road the parties are seeking to locate in this dispute. The road begins at the southeasterly corner of Lot 25 and runs westerly along the boundary of Lots 24 and 25. At some point the road leaves that boundary and runs northerly, dividing Lot 25 into an eastern and western parcel. The Sherwood property lies within the eastern portion of Lot 25, and the McGeechans own much of the western portion of Lot 25, as well as Lot 24.\\n[\\u00b6 19] Most of the physical characteristics of the road have since disappeared. The parties and their surveyors have agreed on the location of the historic boundary between Lot 24 and 25 and have located the road along that boundary, now generally known as the Paper Mill Road. They have been unable to agree, however, on the location of the point at which the road (now generally known as the Old Grist Mill Road) leaves the boundary of Lots 24 and 25 and turns to the north dividing Lot 25. This point has been referred to in the litigation as \\\"the point of beginning\\\" and is essential to the location of the parties' shared east-west boundary.\\n[\\u00b6 20] Also part of the title history is the fact that the eastern portion of Lot 25 was later subdivided, creating several smaller parcels. Those parcels, including most recently the Ellis parcel, were later reunited and now comprise the Sherwood parcel.\\n[\\u00b6 21] The parties rely on two deeds in Sherwood's chain of title to establish the east-west boundary between their properties. The parties agree that an 1822 deed from William Gray to Benjamin Crosby describes their shared east-west boundary. That deed reads, in part:\\nBeginning at the north east corner of the Brick store owned by John Crosby Jr. on the southerly side of the road leading to the Old Grist Mill, thence by the southerly side of said road till it strikes said Grist Mill Pond.\\n[\\u00b6 22] The \\\"road leading to the Old Grist Mill\\\" is the same road that begins at the northeasterly corner of Lot 24 and the southeasterly corner of Lot 25, runs along the shared north-south boundary of those lots, and ultimately turns to the north, dividing Lot 25 into an eastern and a western part. Because the McGeechans now own Lot 24 and the western part of Lot 25, and Sherwood owns the eastern part of Lot 25, the \\\"southerly side\\\" of the \\\"road leading to the Old Grist Mill\\\" as described in the 1822 deed is a monument that defines not only the north-south boundary between the parties' properties but also their common east-west boundary.\\n[\\u00b6 23] The court could not locate the monument described in the 1822 deed, the \\\"southerly side of the road leading to the Old Grist Mill,\\\" however, and relied on the description in the later 1875 deed to locate the part of the road that forms the parties' east-west boundary. After obtaining title to the eastern part of Lot 25 in 1822, Benjamin Crosby made several conveyances, two of which are now part of the Sherwood parcel. After his death, the trustees under Benjamin's will conveyed to Barker Emery what remained of the eastern part of Lot 25, which later became the Ellis parcel, and is now the western most of the three parcels comprising the entire Sherwood parcel. That 1875 deed describes the east-west boundary by reference to the same road as the 1822 deed, and the court determined the location of the parties' east-west boundary by locating the point of beginning described in the 1875 deed and connecting that point by means of a sweeping arc to the agreed on northern terminus of the parties' boundary.\\n[\\u00b6 24] The \\\"[determination of property boundaries as ascertained from a deed is a question of law.\\\" Baptist Youth Camp v. Robinson, 1998 ME 175, \\u00b6 7, 714 A.2d 809, 812. \\\"If the language of the deed is ambiguous, and the intention of the parties is in doubt, the court may then resort to rules of construction and may examine the deed in light of extrinsic circumstances surrounding its execution.\\\" First Hartford Corp. v. Kennebec Water Dist., 490 A.2d 1209, 1211 (Me.1985). The rules of construction must be applied here, at least to the extent that they \\\"are not absurd or manifestly inconsistent with the parties' intentions apparent from the face of the deed.... \\\" Snyder v. Haagen, 679 A.2d 510, 513 (Me.1996). The rules of construction require a court to establish boundaries \\\"in descending order of control by monuments, courses, distances and quantity.\\\" Id.\\n[\\u00b6 25] The location of monuments on the face of the earth is an issue of fact, and \\\"the trial court's findings as to such locations will not be disturbed on appeal unless they are clearly erroneous.\\\" Harborview Condo. Ass'n v. Pinard, 603 A.2d 872, 873 (Me.1992). \\\"The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained.\\\" Theriault v. Murray, 588 A.2d 720, 722 (Me.1991) The trial court \\\"has a duty to determine, if possible, the original location[ ] .\\\" of the monument. Id.\\n[\\u00b6 26] The initial call in the 1875 deed refers to several monuments that can be used to locate the point of beginning. The deed refers to the intersection of \\\"the southerly side of the Paper Mill road\\\" and \\\"the land of the heirs of Major Crosby.\\\" The deed also locates the point of beginning along the southerly side of the Paper Mill Road 1074 ^io feet west of the General Crosby old brick store.\\n[\\u00b6 27] The trial court found that the physical characteristics of the road had disappeared, and the evidence was insufficient to indicate where the road intersected with the \\\"land of the heirs of Major Crosby,\\\" and concluded that that monument could not be located.\\n[\\u00b6 28] The MeGeechans introduced extensive evidence, including several deeds and historical photographs, to establish the location of the old brick store, leading the court to find that they had proven its location \\\"with some precision.\\\" We find no clear error in that factual finding. See Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981).\\n[\\u00b6 29] Even after locating the brick store, however, the court was unable to locate the point of beginning using monuments alone. Accordingly, the court adopted the Avery survey conclusion that gave effect to the distance and course call of \\\"1074 6/io feet westerly from the Geni. Crosby old brick store\\\" to locate the point of beginning referred to in the 1875 deed. That point is located along the historic boundary line of Lot 24 and Lot 25. Using this point of beginning, the court also adopted the approach taken in the Avery survey and established the western boundary of the Sherwood parcel by connecting the point of beginning and the agreed upon northern terminus using a sweeping arc.\\n[\\u00b6 30] Sherwood contends that the court erred in its location of the point of beginning. She contends that the intersection of the \\\"southerly side of the Paper Mill Road\\\" and \\\"the land of the heirs of Major Crosby\\\" is the true point of beginning, and is a monument that she has located through her surveyor. Her evidence consists of prior surveys of her properties and abutting parcels, as well as historical maps and physical evidence, such as wheel tracks in the area. Sherwood also claims to have found other evidence indicating the presence of the roadway, including a stone wall, and barbed wire fencing.\\n[\\u00b6 31] The MeGeechans, however, offered evidence that Raymond McGeechan cut trees in the area and was responsible for the wheel tracks found where Sherwood claims there was physical evidence of a road bed. Moreover, their surveyor, Michael Avery, testified, that he could find no physical evidence of the road. Such evidence casts doubt on Sherwood's location of that part of the road, and the trial court was not compelled to accept Sherwood's point of beginning location.\\n[\\u00b6 32] Because the trial court's determination of the point of beginning reflects a proper application of the rules of construction, giving effect in descending order to located monuments, the distance call, and finally the course call, we affirm that determination as well as the line connecting it to the agreed on northern terminus of the boundary between the two properties to establish the east-west boundary.\\nB. OWNERSHIP OF THE PAPER MILL ROAD\\n[\\u00b6 83] In the 1822 deed, the road is described only as \\\"the road to the Old Grist Mill.\\\" It is clear that at that time, the road was fully contained within Lot 25. The eastern portion of Lot 25 was subsequently subdivided.\\n[\\u00b6 34] Three of the parcels created by that division, including the Ellis parcel, now comprise the Sherwood parcel and border the MeGeechans' property. The two parcels lying to the east of the Ellis parcel were conveyed by Benjamin Crosby during his lifetime, and those conveyances did not include ownership of the part of the Paper Mill Road that runs along their respective southern boundaries. Until his death, Benjamin Crosby remained the owner of (1) that part of Lot 25 that was later owned by Ellis, (2) the Old Grist Mill Road that runs along the western border of the Ellis parcel to where the road is now identified as the Paper Mill Road, and (3) all of the Paper Mill Road that runs along the north-south border of Lots 24 and 25. By the 1875 deed, the Estate of Benjamin Crosby conveyed the Ellis parcel to Barker Emery. The trial court found that the conveyance did not include title to the Paper Mill Road. The court further found that the McGeechans own the Paper Mill Road.\\n[\\u00b6 35] Because both parties claim title to the Paper Mill Road, they each bear the burden of establishing title to the parcel. See McGrath v. Hills, 662 A.2d 215, 217 (Me.1995).\\n1. SHERWOOD'S CLAIM OF OWNERSHIP BY DEED\\n[\\u00b6 36] Sherwood's claim of title to the Paper Mill Road is based on the conveyance of what became the property of Ellis, bought from Ellis by Sherwood, described in the 1875 deed from the Estate of Benjamin Crosby to Barker Emery. We review for clear error the court's determination that the boundaries described in the 1875 deed do not include the Paper Mill Road. See Coombs v. Grindle, 1998 ME 230, \\u00b6 7, 718 A.2d 1107, 1108. In construing a deed, we seek to give effect to the intent of the parties to the deed. St. Pierre v. Grondin, 513 A.2d 1368, 1370 (Me.1986). \\\"To ascertain that intention, we take the instrument as a whole, and apply the positive rules of deed construction.\\\" Kinney v. Cent. Me. Power Co., 403 A.2d 346, 349 (Me.1979). The rules of construction require that \\\"every call in the description of the premises in the deed must be answered,\\\" Herrick v. Hopkins, 23 Me. 217, 219 (1843), unless absurd results are achieved thereby. Kinney, 403 A.2d at 350. When a deed contains competing calls, all ambiguities are resolved \\\" 'against the grantor and in favor of the grantee.' \\\" St. Pierre, 513 A.2d at 1370 (quoting Kinney v. Central Me. Power Co., 403 A.2d at 350).\\n[\\u00b6 37] Further, in reviewing the deed, rebanee is placed not only on the language of the deed, but also on \\\"the inferences which may properly be drawn from stipulated or undisputed facts.... \\\" Kinney, 403 A.2d at 350. Our review of the record leads us to conclude that the conveyance described in the 1875 deed to Sherwood's predecessor in title includes the Paper Mill Road.\\n[\\u00b638] The boundary description in the deed begins with the disputed point of beginning on the \\\"southerly side of the Paper Mill road\\\" 1074 % feet from the General Crosby old brick store, a point that the trial court properly located. From that point, the boundary runs north, then east, and then:\\nsoutherly by . the heirs of Hodgman to Hodgman south-west corner and the old Grist Mill road. Thence by the north line of the old Grist Mill road to the Paper Mill road. Thence across said Grist Mill road to the southerly line thereof and land of J.R. Holt. Thence westerly by said Holt land to the point begun at.\\n[\\u00b6 39] The trial court correctly determined from the 1875 deed the location of the point of beginning, but whether the description in that deed includes the Paper Mill Road involves a different analysis.\\n[\\u00b640] In concluding that the 1875 conveyance did not include the Paper Mill Road, the trial court disregarded the final call in the 1875 deed that describes the southerly boundary of the parcel as running \\\"westerly by said Holt land to the point begun at.\\\"\\n[\\u00b6 41] The trial court adopted the Avery plan that depicts the boundary of the 1875 conveyance as crossing what is referred to as the Grist Mill Road from its northerly to its southerly side directly to the point of beginning, excluding from the conveyance, and thus from Sherwood's ownership, the entire portion of the Paper Mill Road that the Avery survey depicts as lying east of the point of beginning.\\n[\\u00b6 42] Such a reading construes the deed against the grantee, disregards the deed's final call, and is inconsistent with what the other evidence shows to be the apparent intent of the grantor.\\n[\\u00b6 43] Not only is there nothing in the record to indicate that the grantor would have intended the final call in the 1875 deed to have no meaning, there are strong indications that it would have been the intent of Benjamin Crosby's estate to convey title to the Paper Mill Road in that 1875 deed.\\n[\\u00b6 44] The parcel conveyed by the 1875 deed would be landlocked without access to the road, yet the deed makes no reference to reserving any easement across the road, leading to an inference that the grantor intended to convey the road along with the parcel. That conclusion finds further support in the fact that Benjamin Crosby, who owned the parcel until his death, had conveyed the two adjacent parcels and had explicitly excluded the road from those conveyances. At the time of Benjamin Crosby's death, the land conveyed by the 1875 deed was the only parcel along the entire road that he still owned. It would make little sense for his estate to convey the parcel without also conveying title to, or at least an easement to use, the Paper Mill Road. Accordingly, the likely intent of the grantor of the 1875 deed would be to include the Paper Mill Road in the conveyance.\\n[\\u00b6 45] The construction given to the deed by the trial court ignores that likely intent and disregards the final call. There is, however, a plausible reading of the description that is consistent with that intent, and that gives meaning to the final call in the deed. That reading takes into account that over the years the roadways in the area have been known by a number of different names.\\n[\\u00b646] The single, continuous roadway that divides what are now the Sherwood and McGeechan properties was originally known as the Old Grist Mill Road. Over time, portions of the road were referred to in deeds and records by different names: the Mill Road, the Paper Mill Road, and the Town Road. There is another road with a similar name that borders the Sherwood parcel and intersects with the road with the differing names. That other road, referred to in an 1834 deed as \\\"a new road,\\\" had become known as the Little Paper Mill Road by 1864, and is depicted on the Avery survey as \\\"The Little Paper Mill Road.\\\" The Little Paper Mill Road runs north and south, and intersects with what is now referred to as the Paper Mill Road, at the southeast corner of the Sherwood parcel.\\n[\\u00b6 47] Recognizing that the natural intent of the grantor would be to convey the entire strip of road that ran along what has now become the parties' shared boundary, the most plausible reading of the last reference in the deed to the Paper Mill Road, where the line runs by the north line of the Old Grist Mill Road and crosses from the north to the south side of the Old Grist Mill Road, is that the reference was intended to be to the Little Paper Mill Road. See St. Piere, 513 A.2d at 1370. In other words, the true intent of the grantor is reflected in the deed being read as follows:\\nOne parcel beginning on the southerly side of the Paper Mill Road 1074 6/io feet westerly from the Geni. Crosby old brick store at the land of the heirs of Major Crosby . [Description of the northern boundary], [T]hence southerly . by the heirs of Hodgman to Hodg-man southwest corner and the old Grist Mill road. Thence by the north line of the old Grist Mill road to the [Little] Paper Mill road. Thence across said Grist Mill road to the southerly line thereof and land of J.R. Holt. Thence westerly by said Holt land to the point begun at.\\n[\\u00b648] Such a reading of the deed resolves the ambiguity in the deed in favor of the grantee, in this case Sherwood's predecessor in title, gives effect to each call in the deed, and effectuates what the evidence strongly suggests to be the intent of the grantor. That reading gives Sherwood title to the Paper Mill Road, the strip of road that runs along the parties' north-south boundary.\\n[\\u00b6 49] Although we realize that no construction of this deed fully resolves all ambiguities, this result comports with the requirements at law that ambiguities be construed in favor of the grantee and best reflects what the evidence indicates to be the intent of the grantor and harmonizes all the calls in the deed.\\n2. THE MCGEECHAN CLAIM OF OWNERSHIP BY DEED\\n[\\u00b6 50] The McGeechans contend that their title to the Paper Mill Road derives from a deed or deeds in their chain of title. Although the deeds in the McGeechans' chain of title contain language that could be read as conveying ownership of the Paper Mill Road, they point to no deed that expressly conveys into their chain of title ownership of any part of the Paper Mill Road. Lacking such evidence, the McGeechans cannot rely on \\\"extrinsic surrounding circumstances . to prove conveyance of something not expressly included in [a] deed.\\\" Cushing v. State, 434 A.2d 486, 497 (Me.1981). The McGeechans failed in their burden of proving ownership by deed to that part of the road.\\n3. THE MCGEECHANS' CLAIM OF TITLE BY ADVERSE POSSESSION\\n[\\u00b6 51] The McGeechans also contend, and the court agreed, that they established title in the Paper Mill Road by adverse possession. In order to establish title by adverse possession, the McGee-chans had to present evidence that they possessed the land for a twenty year period, and that the possession was \\\"actual, open, visible, notorious, hostile, under a claim of right, continuous, and exclusive.\\\" Dowley v. Morency, 1999 ME 137, \\u00b6 19, 737 A.2d 1061, 1068 (footnote omitted). Whether the McGeechans' \\\"acts of dominion\\\" were sufficient to create title by adverse possession is a question of law. See id.\\n[\\u00b6 52] To support their claim for adverse possession of the Paper Mill Road, the McGeechans offered evidence that they (1) used their driveway, which runs across part of the Paper Mill Road to the McGee-chans' property; (2) they plowed and graded in the driveway area; (3) they installed a culvert; and (4) their predecessor in title granted to Bangor Hydroelectric Company an easement to place a utility pole. The court found that the McGeechans had sufficiently established title by adverse possession to the entire Paper Mill Road.\\n[\\u00b6 53] Although the direct evidence presented by the McGeechans went to their use of the driveway area since the time they purchased the land in 1981, the court could properly infer that the driveway was in existence when the property was owned by the Chiaparas family, from whom the McGeechans purchased, for a sufficient period of time to reach the requisite time period. See Blackmer v. Williams, 437 A.2d 858, 861 (Me.1981). Accordingly, we affirm the trial court's conclusion that the McGeechans have acquired title by adverse possession to a portion of the Paper Mill Road, i.e. the driveway, to which most of the evidence was directed.\\n[\\u00b6 54] The driveway, however, is only a small part of the Paper Mill Road. Except for the utility pole placed by Bangor Hydro Electric, there is scant evidence of the use of the entire Paper Mill Road by the McGeechans or by anyone else. The trial court's finding that the McGeechans have proven title by adverse possession to the entire Paper Mill Road lacks support in the evidence. See Dowley, 1999 ME 137, \\u00b6 20, 737 A.2d at 1068 (allowing title by adverse possession to limited area of driveway and parking area used without granting title to entire area). Accordingly, the court's judgment must be amended to reflect that the McGeechans have acquired title by adverse possession only to the area of the Paper Mill Road over which they have maintained a driveway.\\n[\\u00b6 55] Accordingly, we vacate that portion of the judgment that declares ownership of the entire Paper Mill Road in the McGeechans. We remand to the Superior Court for a declaration that the area on the Avery survey referred to as the Paper Mill Road a/k/a Town Road is owned by Sherwood, except that portion of the Paper Mill Road in the driveway area, which portion, by reason of adverse possession, is owned by the McGeechans.\\nIII. THE DISPUTED EASEMENTS\\n[\\u00b6 56] The trial court found that the McGeechan property is benefitted by an easement over the Old Grist Mill Road and the Paper Mill Road. Deeds in the McGee-chans' chain of title refer to an easement running across the Paper Mill Road as well as the Old Grist Mill Road. The absence of any deed in the record granting the McGeechans an express easement to use either road does not prevent a finding that an easement was created either by implication or estoppel. See Frederick v. Consol. Waste Servs., Inc., 573 A.2d 387, 389 (Me.1990). The McGeechans have offered no evidence of an easement by estop-pel, but the trial court found an easement by implication benefitting the McGeechans.\\n[\\u00b6 57] \\\"An easement over conveyed property, although not expressly reserved, may nevertheless be impliedly created in favor of the grantor of the servient estate.\\\" LeMay v. Anderson, 397 A.2d 984, 987 (Me.1979). There are two types of implied easements. \\\"An easement may also be impliedly created without a preexisting use when access to the property conveyed requires trespass.\\\" Id. at 988, n. 3. An implied easement may also arise when, at the time of conveyance, \\\"existing use is made of the servient portion to benefit the dominant portion....\\\" Id. Such use is termed a quasi-easement. Where a quasi-easement exists, an easement over the servient estate will be implied when, at the time the dominant and servient portions of the property are severed, \\\"it is reasonable to infer that the parties to the conveyance had regarded the continuation of the use as so obvious that it would go without saying.\\\" Bowers v. Andrews, 557 A.2d 606, 609 (Me.1989); LeMay, 397 A.2d at 987. Relevant to this inquiry is the nature of the use of the quasi-easement prior to severance from the dominant estate and whether the continued use of the quasi-easement is \\\"important for the enjoyment\\\" of the retained parcel. Bowers, 557 A.2d at 609 (quoting 3 Powell on Real PropeRty \\u00b6 411(2) (1985 & Supp.1988)); LeMay, 397 A.2d at 988.\\n[\\u00b6 58] In the early 1800s, John Crosby owned all of Lot 25. In 1820, he divided that parcel, retaining the western portion for himself. At trial, Michael Avery testified that the western parcel of Lot 25 could be accessed only by the Paper Mill and Old Grist Mill Roads and the trial court found that the western parcel of Lot 25 was landlocked without such, access. Because the use of the road to access the western portion of Lot 25 was apparent and open at the time of conveyances, and because that parcel was carved out of the larger parcel containing all of Lot 25, the trial court's finding that the western parcel of Lot 25 was landlocked supports its determination that the parcel is benefitted by an easement reserved by implication. That easement, although not expressly contained in the original deed, has appeared in all subsequent deeds conveying the western parcel of Lot 25, and Sher wood has offered no evidence to indicate that the easement has been terminated. Accordingly, the court's conclusion that the western parcel of Lot 25, currently owned by the McGeechans, is benefitted by an easement over the Old Grist Mill Road and the Paper Mill Road as those roads appear on the Avery survey adopted by the trial court is not clearly erroneous.\\nIV. TORTIOUS INTERFERENCE WITH AN ECONOMIC RELATIONSHIP\\n[\\u00b6 59] The McGeechans' cross-appeal from a summary judgment entered against them on their claim for tortious interference with an economic relationship. When we review a summary judgment, we \\\"view the evidence in the light most favorable to the party against whom the judgment has been granted, and review the trial court's decision for error of law.\\\" Estate of Althenn, 609 A.2d at 714. If the evidence favoring the nonmoving party is \\\" 'merely colorable, or is not significantly probative, summary judgment' \\\" may be appropriate. Bouchard v. Am. Orthodontics, 661 A.2d 1143, 1145 (Me.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).\\n[\\u00b6 60] In order to demonstrate tortious interference with an economic relationship, the claimant must show either intimidation or fraud. Petit, 688 A.2d at 480. If the claim is based on fraud, the claimant must also show that the claimant justifiably relied upon a false representation. Id.\\n[\\u00b6 61] When a plaintiff, as here, \\\"alleges a failure to disclose rising to the level of a misrepresentation, the plaintiff must prove either (1) active concealment of the truth, or (2) a specific relationship imposing on the defendant an affirmative duty to disclose.\\\" Fitzgerald v. Gamester, 658 A.2d 1065, 1069 (Me.1995).\\n[\\u00b6 62] \\\" 'Active concealment of the truth' connotes steps taken by a defendant to hide the true state of affairs from the plaintiff.\\\" Kezer v. Mark Stimson Assocs., 1999 ME 184, \\u00b6 24, 742 A.2d 898, 905 (quoting Fitzgerald, 658 A.2d at 1069). In Fitzgerald, the plaintiff sought to recover for fraud based on the claim that the seller of certain property had induced the plaintiff to buy the property by concealing the fact that a well on the property had been contaminated and was unsafe. Fitzgerald, 658 A.2d at 1068. Upholding the judgment in favor of the plaintiffs, we concluded there was sufficient evidence to allow a finding of active concealment. Id. at 1069. Those factual elements included: \\\"(1) [a failure to] disclose; (2) the material fact that the well had been abandoned due to contamination; (3) with knowledge of the non-disclosure; [and] (4) for the purpose of inducing [the plaintiff] to purchase the farm.\\\" Id. Ultimately, we also concluded that the evidence supported a finding that the plaintiff had justifiably relied on the failure to disclose, and suffered damage as a consequence. Id.\\n[\\u00b6 63] Taking the facts alleged in a light most favorable to the McGeechans, Sherwood was present as the property was being shown to the McGeechans. She allowed herself to be identified to the McGeechans as another broker, rather than as a potential purchaser, and she witnessed the McGeechans' signatures on their offer. Sherwood was present within hearing distance of Mr. McGeechan, and her offer for the property came shortly after she was in a position to overhear the McGeechan offer. There is a genuine issue of fact as to whether she was present and failed to identify herself as a potential buyer in order to induce the McGeechans to verbally discuss the offer they would make. In addition, the McGeechans have generated a factual issue as to whether Sherwood knew that her status as a potential buyer might have materially affected the decision of the McGeechans to discuss their offer in a place where she could overhear it. Finally, it may reasonably be inferred that Caliendo failed to disclose the true reason for Sherwood's presence in order to aid her attempt to purchase the property, and that the McGeechans justifiably relied on Caliendo's representation to them that Sherwood was present merely as a broker to openly discuss, to their detriment, their offer with Caliendo in the presence of Sherwood.\\n[\\u00b6 64] Both Bangor Real Estate, the seller's broker, and Sherwood, as an employee of Bangor Real Estate, were subject to a statutory duty to treat the McGeechans honestly. Although the duty of a seller's real estate agent is generally to the seller, 32 M.R.S.A. \\u00a7 13273(1) (1999), the seller's agent also has a duty to \\\"treat all prospective buyers honestly and . not knowingly give false information [to the buyer],\\\" 32 M.R.S.A. \\u00a7 13273(2)(A) (1999). From the evidence presented by the McGeechans, there is a genuine issue of fact as to whether the defendants have breached this statutory duty. Accordingly, the court erred in granting a summary judgment on the McGeechans' claim for tortious interference, and we vacate that part of the judgment.\\nThe entry is:\\nThat part of the judgment involving Counts I and III declaring the common east-west boundary between the properties of the plaintiffs and defendant, and that the plaintiffs' property is benefitted by an easement over the Old Grist Mill Road and the Paper Mill Road, as those roads appear on the land survey adopted by the court, and that plaintiffs, by virtue of adverse possession, own that part of the Paper Mill Road in the area of their driveway is affirmed. Judgment on Counts I and III is vacated in all other respects. Summary judgment as to Count IV is vacated. Remanded to the Superior Court for further proceedings consistent with this opinion.\\n. The court concluded that a survey prepared by Michael Avery, a licensed professional surveyor, depicted the boundary lines of the properties.\\n. The trial court also concluded that the McGeechans were prescriptive owners of the entire Paper Mill Road. We affirm only that part of the court's determination recognizing the McGeechans' title by prescription to the section of the Paper Mill Road that encompasses their driveway.\\n. Prior to purchasing the Ellis parcel, Sherwood had obtained two parcels south of and one adjacent to the Ellis parcel. Those three parcels abut the McGeeehans' property and comprise what we refer to as \\\"the Sherwood parcel.\\\"\\n. There is some confusion as to the name of the road. Because both the parties and the trial court have done so, we generally refer to that part of the road that forms the parties' shared north-south boundary as the Paper Mill Road, and that part of the road that forms the parties' shared east-west boundary as the Old Grist Mill Road.\\n. The McGeeehans also claim that they have acquired title to the Paper Mill Road by adverse possession.\\n. The issue of whether Sherwood's purchase of the parcel gives rise to a cause of action was decided against the McGeeehans on a motion for summary judgment. Accordingly, although Sherwood disputes many of these facts, the facts of the purchase are set out in a light most favorable to the McGeeehans. See Estate of Althenn v. Althenn, 609 A.2d 711, 714 (Me.1992).\\n.The McGeechans do not claim that Sherwood learned of the amount of their offer by reading it from the offer sheet. Rather, they contend that Sherwood remained within hearing distance while the McGeechans were on the Ellis property, including when the McGeechans made their offer, and that \\\"[i]t may be reasonably inferred that Mrs. Sherwood overheard Mr. McGeechan when he told Mr. Caliendo that he was making an offer of $30,000 for the Ellis property.\\\"\\n. The utility pole and part of the McGee-chans' driveway are located on the Paper Mill Road.\\n. The trespass claim does not appear to have been pursued.\\n. William Gray obtained title to the property from John Crosby Sr.\\n. At the time of the conveyance, it appears that no portion of the road was yet known as the Paper Mill Road.\\n. The 1875 deed reads, in part:\\nOne parcel beginning on the southerly side of the Paper Mill road 1074 7io feet westerly from the Geni. Crosby old brick store at the land of the heirs of Major Crosby . [description of the northern boundary.] [TJhence southerly by . the heirs of Hodg-man to Hodgman southwest corner and the old Grist Mill road. Thence by the north line of the old Grist Mill road to the Paper Mill road. Thence across said Grist Mill road to the southerly line thereof and land of J.R. Holt [Lot 24]. Thence westerly by said Holt land to the point begun at.\\n. The \\\"land of the heirs of Major Crosby\\\" refers to the western portion of Lot 25, now owned by the McGeechans.\\n. Sherwood argues that the point of beginning described by the distance call \\\"1074 5/io feet westerly from the Geni. Crosby old brick store\\\" is not coincident with the point of beginning described by the intersection of the \\\"southerly side of the Paper Mill road\\\" and the \\\"land of the heirs of Major Crosby.\\\" She contends that the court erred in finding that both calls describe the same point. We are unpersuaded by her contentions, and conclude that the trial court did not err in determining that there was only a single point of beginning described in the 1875 deed.\\n. Holt was the owner of Lot 24 now owned by the McGeechans.\\n. Because the Paper Mill Road runs along the entire north-south boundary of Lots 24 and 25, giving effect to the final call would give Sherwood title to at least part of the Paper Mill Road, because it establishes the northerly line of Lot 24 (now owned by the McGeechans) and the southerly line of the road as the boundary of the land conveyed.\\n. To recover for tortious interference with an economic relationship, a plaintiff must establish fraud or intimidation by a preponder-anee of the evidence. Petit v. Key Bank of Me., 688 A.2d 427, 430 (Me.1996). The McGeechans make no claim of intimidation.\"}"

me/11207539.json

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+"{\"id\": \"11207539\", \"name\": \"Penelope CROWE et al. v. Scott SHAW\", \"name_abbreviation\": \"Crowe v. Shaw\", \"decision_date\": \"2000-07-12\", \"docket_number\": \"\", \"first_page\": \"509\", \"last_page\": \"513\", \"citations\": \"755 A.2d 509\", \"volume\": \"755\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T20:11:11.010979+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, SAUFLEY, and ALEXANDER, JJ.\", \"parties\": \"Penelope CROWE et al. v. Scott SHAW.\", \"head_matter\": \"2000 ME 136\\nPenelope CROWE et al. v. Scott SHAW.\\nSupreme Judicial Court of Maine.\\nSubmitted on Briefs June 15, 2000.\\nDecided July 12, 2000.\\nTimothy C: Woodcock, Esq., Weather-bee, Woodcock, Burlcok & Woodcock, P.A., Bangor, for plaintiffs.\\nCarl F. Relia, Esq., Bangor, for defendant.\\nPanel: WATHEN, C.J., and CLIFFORD, RUDMAN, SAUFLEY, and ALEXANDER, JJ.\", \"word_count\": \"1606\", \"char_count\": \"9305\", \"text\": \"ALEXANDER, J.\\n[\\u00b6 1] Penelope and Leonard Crowe appeal from a judgment of the Superior Court (Penobscot County, Marden, J.) granting Scott Shaw's motion for a summary judgment and entering judgment in his favor.\\n[\\u00b6 2] On appeal, the Crowes argue that the trial court erred by determining that Shaw was not negligent, as a matter of law, because (i) he had an affirmative duty to pull to the left of the road to avoid Penelope Crowe's oncoming vehicle; and (ii) his blood-alcohol content measured .06% approximately an hour after the collision between Crowe's vehicle and Shaw's vehicle. While there may be disputes of material fact that could preclude a finding as a matter of law that Shaw was not negligent, there are no disputes of material fact that any negligence by Shaw proximately caused the collision. Accordingly, we affirm.\\nI. CASE HISTORY\\n[\\u00b6 3] When reviewing a grant of a motion for summary judgment, we construe the facts in the fight most favorable to the party against whom the motion was granted. See Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, \\u00b6 5, 711 A.2d 842, 844. Here, the facts so construed establish that on January 16, 1991, Penelope Crowe was operating her motor vehicle on the Fuller Road in Hermon and had her sister with her in the car. Scott Shaw was operating his motor vehicle in the opposite direction on the same road. His son, Justin, was a passenger. The weather was poor and the road was icy. As Crowe's car crested a hill, she lost control of her vehicle and it started to slide down the hill. Shaw saw Crowe's out of control car and pulled to the right, coming to a stop, or almost to a stop, next to a snowbank. Still sliding sideways into Shaw's lane of traffic, Crowe's car hit Shaw's car. As a result of the impact, Crowe's sister was killed and Crowe was injured. Approximately one hour after the accident, a blood sample was taken from Shaw which indicated a blood-alcohol level of .06%. Crowe and her husband filed this action against Shaw.\\n[\\u00b6 4] Shaw moved for a summary judgment. After a hearing on the motion, the court ruled that Shaw was not negligent and, therefore, granted the motion for a summary judgment. The Crowes then brought this appeal.\\nII. DISCUSSION\\n[\\u00b6 5] The Crowes contend that there are disputed issues of material fact that would establish that Shaw was negligent in two respects:\\n(1) The Crowes contend that there is a genuine issue of material fact regarding whether Shaw breached a duty of care by pulling to the right, rather than pulling to the left and into Crowe's lane, when Shaw saw Crowe's vehicle sliding out of control from her lane towards his lane; and\\n(2) The Crowes contend that Shaw's blood-alcohol content, measured an hour after the accident, establishes that Shaw breached a duty of care when operating his motor vehicle.\\n[\\u00b6 6] On the first point, the undisputed evidence establishes that Shaw acted appropriately, and not negligently, in pulling his vehicle to the right and coming to a stop, or nearly to a stop, when faced with the unsafe condition. See 29 M.R.S.A. \\u00a7 941 (1991) (requiring motorists to travel to the right of the center of the road and to come to a stop when it is unsafe to continue because of an oncoming car), repealed and replaced by P.L.1993, ch. 683 (codified at 29-A M.R.S.A. \\u00a7 2053 (1996 & Supp.1999)).\\n[\\u00b6 7] The second point, whether Shaw was in breach of a duty of care when operating his motor vehicle with a blood-alcohol content apparently in excess of .06% at the time of the accident, is disputed. Although operating a motor vehicle while under the influence of intoxicating liquor is not negligence per se, it is evidence of negligent operation. See Binette v. Dyer Library Ass'n, 688 A.2d 898, 904 (Me.1996) (\\\"Although Maine does not recognize the doctrine of negligence per se, violation of a safety statute constitutes evidence of a breach of duty of reasonable care owed to those the statute is designed to protect.\\\"). Furthermore, a blood-alcohol level in excess of .05% but less than .08% is considered \\\"relevant evidence\\\" as to whether or not a person is under the influence of intoxicants. See 29-A M.R.S.A. \\u00a7 2432(2) (1996). These circumstances create a genuine issue of material fact regarding whether, at the time Shaw operated his motor vehicle, he was in breach of a duty of care because he was impaired as a result of the use of intoxicants. However, in this case, a dispute as to the issue of breach of duty of care does not change the result.\\n[\\u00b6 8] In his seminal treatise on torts, Professor Prosser reminds us that: \\\"An essential element of the plaintiffs cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.\\\" William L. PnossER, The Law of Torts \\u00a7 41, at 236 (4th ed.1971).\\n[\\u00b6 9] In order to successfully resist summary judgment, the Crowes, as the parties bearing the burden of proof at trial, were required to produce evidence sufficient to demonstrate not only that Shaw breached a duty of care, but also that Shaw's breach proximately caused Crowe's injuries. See McPherson v. McPherson, 1998 ME 141, \\u00b6 8, 712 A.2d 1043, 1045 (\\\"To prevail in a negligence action, the plaintiff has the burden of proving that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the plaintiff suffered an injury as a result of that breach.\\\"); see also Champagne, 1998 ME 87, \\u00b6 9, 711 A.2d at 845 (\\\"To avoid judgment as a matter of law for a defendant, a plaintiff must establish a prima facie case for each element of her cause of action.\\\").\\n[\\u00b6 10] Evidence is sufficient to support a finding of proximate cause if the evidence and inferences that may reasonably be drawn from the evidence indicate that the negligence played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably foreseeable consequence of the negligence. See Shaw v. Bolduc, 658 A.2d 229, 235-36 (Me.1995); Wing v. Morse, 300 A.2d 491, 495-96 (Me.1973). The mere possibility of such causation is not enough, and when the matter remains one of pure speculation or conjecture, or even if the probabilities are evenly balanced, a defendant is entitled to a judgment. See Corey v. Norman, Hanson & DeTroy, 1999 ME 196, \\u00b6 14, 742 A.2d 933, 940; Champagne, 1998 ME 87, \\u00b6 10, 711 A.2d at 845.\\n[\\u00b6 11] In this case, the undisputed material facts establish that, even if the factfinder were to find a breach of duty by virtue of Shaw's operation of a motor vehicle with a blood-alcohol level in excess of .06%, this operation did not in any way contribute to the Crowes' damages. Shaw had stopped, or nearly stopped, his vehicle well to the right on his side of the road when Crowe, having lost control of her vehicle, collided with him. Because Crowe presented no evidence that Shaw's operation of his vehicle while intoxicated may have caused her injuries, the court appropriately granted a summary judgment.\\nThe entry is:\\nJudgment affirmed.\\n. The trial court's ruling at the conclusion of its opinion stated that: \\\"The entry will be: Defendant's motion for summary judgment is granted for the reasons stated herein.\\\" The docket entry is: \\\"Summary Judgment granted for Defendants.\\\"\\nWe have advised courts that, when ruling on a motion, the court should not simply indicate \\\"Motion granted\\\" or some similar term. In addition to noting that a motion is granted, the court's order should state affirmatively the relief granted pursuant to its ruling on the motion. See Town of Freeport v. Ocean Farms of Maine, Inc., 600 A.2d 402, 403 (Me.1991). It would have been preferable for the court to state \\\"Judgment for the defendant\\\" or a similar phrase after indicating its ruling on the motion. Such an order leaves no question as to what relief the court has granted and, here, would make it apparent that a final, appealable judgment had been entered. For the same reasons, counsel submitting draft proposed orders in support of motions are subject to the requirement that the draft order \\\"specifically states the relief to be granted by the motion.\\\" M.R. Civ. P. 7(b)(3)(2). Because the result of the court's granting of the motion is apparent and is a final judgment for the defendant in this case, we reach the merits of this appeal.\\n. Separately, the children of Crowe's sister filed a wrongful death action against Crowe which was settled, and the Shaws brought a negligence action against Crowe which was resolved by a jury verdict in Crowe's favor. Because the actions stem from control of a motor vehicle, the Crowes' claims against Shaw were not compulsory counterclaims in the Shaws' action against Crowe. See M.R. Civ. P. 13(a)(1).\\n. See 29-A M.R.S.A. \\u00a7 2411 (1996 & Supp. 1999) (making operating under the influence of intoxicating liquor a criminal offense).\"}"

me/11290755.json

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+"{\"id\": \"11290755\", \"name\": \"Gilles MARCHAND v. EASTERN WELDING COMPANY and Commercial Union Insurance Company; Pasquale NAPOLITANO v. BECHTEL CONSTRUCTION and American Fidelity Insurance Company\", \"name_abbreviation\": \"Marchand v. Eastern Welding Co.\", \"decision_date\": \"1994-05-05\", \"docket_number\": \"\", \"first_page\": \"190\", \"last_page\": \"194\", \"citations\": \"641 A.2d 190\", \"volume\": \"641\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:26:42.935119+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS, RUDMAN and DANA, JJ.\", \"parties\": \"Gilles MARCHAND v. EASTERN WELDING COMPANY and Commercial Union Insurance Company. Pasquale NAPOLITANO v. BECHTEL CONSTRUCTION and American Fidelity Insurance Company.\", \"head_matter\": \"Gilles MARCHAND v. EASTERN WELDING COMPANY and Commercial Union Insurance Company. Pasquale NAPOLITANO v. BECHTEL CONSTRUCTION and American Fidelity Insurance Company.\\nSupreme Judicial Court of Maine.\\nArgued March 18, 1994.\\nDecided May 5, 1994.\\nDouglas S. Kaplan (orally), Bornstein & Hovermale, Portland, for Marchand.\\nJames MacAdam (orally), McTeague, Hig-bee, Libner, MacAdam, Case & Watson, Topsham, for Napolitano.\\nAlison Bane (orally), Piampiano & Gavin, Elizabeth Connellan (orally), Robinson, Kri-ger, McCallum, & Greene, Portland, for employers.\\nBefore WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS, RUDMAN and DANA, JJ.\\nCollins, J. sat at oral argument and participated in the initial conference, but retired before this opinion was adopted.\", \"word_count\": \"2285\", \"char_count\": \"14667\", \"text\": \"CLIFFORD, Justice.\\nThis consolidated appeal requires us to decide whether totally incapacitated employees receiving workers' compensation benefits at the maximum rate are entitled to an annual adjustment of weekly compensation payments during the first three years following their injuries. Because we conclude that the three-year delay in the annual adjustment does not affect employees whose otherwise entitled-to benefits are limited by the maximum benefit level, those employees are enti-tied to receive annual adjustments to the maximum benefit level without waiting until the expiration of the first three years following their injuries. Accordingly, we vacate the decision of the Workers' Compensation Board denying an annual adjustment to Gil\\u00edes Marchand, and we affirm the decision of the Workers' Compensation Board awarding an annual adjustment to Pasquale Napol-itano.\\nUnder the provisions of the Workers' Compensation Act, employees incapacitated for work as a result of work-related injuries, are entitled to compensation, with totally incapacitated employees entitled to receive two-thirds of the employee's average weekly wages. 39 M.R.SA \\u00a7 54-B (1989), repealed by P.L.1991, ch. 885, \\u00a7 A-7 (effective Jan. 1, 1993), codified as 39-A M.R.SA \\u00a7 212. There is, however, a maximum benefit level determined by 39 M.R.S.A. \\u00a7 53-B (1989), repealed by P.L.1991, ch. 885, \\u00a7 A-7 (effective Jan. 1, 1993), codified as 39-A M.R.S.A. \\u00a7 211. This maximum benefit level limits the benefits payable to an incapacitated, high wage earning employee to an amount less than two-thirds of that employee's average weekly wages. The law also generally provides for inflation and deflation adjustments to these benefits. In 1987, the law was amended to provide for a three-year delay from the date of injury before incapacitated employees are entitled to the inflation adjustments.\\nIn the first of the consolidated eases, the employee, Gil\\u00edes Marchand, suffered a com-pensable injury on November 19, 1990. Because two-thirds of his average weekly wage ($984.43) exceeded the maximum allowable benefit level, the parties agreed that Mar-chand was entitled to compensation at the maximum benefit level of ($493.28) per week, established pursuant to 39 M.R.SA. \\u00a7 53-B. On December 24, 1992, Marchand filed a petition to calculate compensation rate seeking an inflation adjustment effective on the first July 1st following the injury. The Workers' Compensation Board denied the petition, ruling that the employee is not entitled to any adjustment of his benefits until the expiration of three years after the date of his injury. 39 M.R.S.A. \\u00a7 54-B (1989). Marchand appealed.\\nIn the second of the consolidated eases, the employee, Pasquale Napolitano, received total incapacity benefits as a result of a May 7, 1991 injury. Because two-thirds of the employee's average weekly wage ($1666.60) exceeded the maximum allowable benefit level established pursuant to section 53-B, the employer, Bechtel Construction, paid compensation to Napolitano at the maximum benefit level ($493.28). The Workers' Compensation Board granted Napolitano's Petition to Determine Proper Workers' Compensation Rate and awarded an annual adjustment. Bechtel filed this appeal. We granted the petitions for appellate review in both cases. See 39-A M.R.S.A. \\u00a7 322(3) (Supp. 1993).\\nThe relevant provisions of 39 M.R.S.A. \\u00a7 53-B and 54-B are as follows:\\n'53-B Maximum Benefit Levels\\nThe maximum weekly benefits payable under section 54-B, 55-B or 58-A is $447.92. Beginning on July 1st, 1989, this maximum benefit level shall be adjusted annually so that it continues to bear the same percentage relationship to the state average weekly wage, as determined by the Bureau of Employment Security on July 1, 1988.\\n(Emphasis added.)\\n54-B Compensation for Total Incapacity While the incapacity for work resulting from the injury is total, the employer shall pay the injured employee a weekly compensation equal to % his average gross weekly wages, earnings or salary, but not more than the maximum benefits under section 53-B_\\n1. Annual adjustments. Beginning on the 3rd anniversary of the injury, weekly compensation under this section shall be adjusted annually. The adjustment shall be equal to the lesser of the actual percentage increase or decrease in the state average weekly wages, as computed by the Bureau of Employment and Security, for the previous year or 5%.\\nThe annual adjustment shall be made on the 3rd and each succeeding anniversary date of the injury, except that where the effect of the maximum under section 53-B is to reduce the amount of compensation to which the claimant would otherwise be entitled, the adjustment shall be made annually on July 1st....\\n(Emphasis added.)\\nThe employees first contend that section 53-B creates a separate adjustment that operates independently of the adjustment in section 54-B, requiring the weekly compensation of each individual employee receiving the maximum benefit level to be adjusted annually, thus entitling Marchand and Napol-itano to annual adjustment without waiting the three years provided for in section 54-B. The plain language of section 53-B compels us to reject that contention. That section refers to the maximum weekly benefit payable under section 54-B (total incapacity), 55-B (partial incapacity) or 58-A (death benefits), leading to the conclusion that section 53-B does not provide a separate adjustment payable pursuant to that section, but rather determines the maximum benefits that are payable to employees pursuant to other sections of the Act. In addition, section 53-B refers to a maximum benefit level, and does not speak to an amount of compensation that may be paid to an individual employee.\\nNevertheless, totally incapacitated employees are entitled to an annual inflation/deflation adjustment pursuant to section 54-B. The employers contend that all of the annual adjustments to compensation provided for in section 54-B(l) are subject to the third anniversary language in the first paragraph of section 54-B(l). They rely on the language of that section, and on the fact that the language delaying the annual adjustments for three years was enacted as part of a major reform of the Workers' Compensation Act in 1987, designed to scale back benefits paid to employees to prevent the system's insurers from withdrawing from the system. The employees, on the other hand, contend that both the \\\"except\\\" language in section 54-B(l) and the legislative history compel a conclusion that incapacitated employees who would otherwise be entitled to higher compensation but for the maximum compensation rate set under section 5B-B, are excepted from the three year waiting period.\\nBecause the plain language of section 54-B can be fairly read to support the positions of both the employers and the employees, we look to the legislative history to aid us in determining legislative intent. Lewiston Raceway v. Maine State Harness Racing Comm'n, 593 A.2d 663, 665 (Me.1991); State v. Edward C., 531 A.2d 672, 673 (Me.1987). To ameliorate the effect of inflation on incapacitated employees receiving compensation based on the average weekly wage at the time of their injury, the legislature added the inflation/deflation adjustment to former section 54 in 1971. From 1971 to 1983, former section 54 provided that the annual inflation/deflation adjustment would occur on July 1st. In an effort to reduce workers' compensation insurance premiums, section 54 was amended in 1983 to provide that totally incapacitated employees would not receive the annual adjustment until the anniversary date of their injury. In recognition of the unfairness that the maximum benefit level works on the high wage earners, i.e., capping benefits and preventing those employees from reaching two-thirds of their average weekly wage, high wage earners were excepted from the amendment changing the anniversary date, and were allowed to continue to receive their annual adjustments on July 1.\\nFollowing the 1983 amendment, the pertinent part of section 54 read:\\nThe annual adjustments required by this section shall be made on the anniversary date of the injury, except where the injury occurred prior to July 1,1983, or where the effect of the 166%% maximum [the maximum benefit level at the time of the 1983 amendment was 166%% of the state's average weekly wage] is to reduce the amount of compensation to which a claimant would otherwise he entitled, the adjustment shall he made annually on July l.\\n(Emphasis added.)\\nThe stated purpose of the amendment was to:\\nprovide that annual cost-of-living adjustments be made on the anniversary date of the injury, rather than on the arbitrary July 1 date in current law. An exception would he made in those cases where the effect of the . benefit cap results in a reduction of the benefits which would otherwise he payable.\\nL.D. 1322, Statement of Fact (111th Leg-is.1983). The Report of the Speaker's Select Committee on Workers' Compensation also makes clear that the purpose of the \\\"exception\\\" is to protect the high earner employees who, because of the maximum benefit cap, are precluded from receiving two-thirds of their average weekly wage and to allow their benefits to reach the maximum level as soon as possible. Part III, Annual Increase in Compensation Payments, 12 (Jan. 17, 1988).\\nIn 1987, former section 54-A was repealed and replaced by section 54-B, the section we now construe. The 1987 amendment added the language creating the delay of three years from the date of injury to the payment of the inflation/deflation adjustment. The purpose of the three-year waiting period is clearly designed to reduce compensation benefits and costs to the system. See L.D. 1929, Statement of Fact (113th Legis.1987). Most significantly, however, the 1987 amendment made no material change to the language enacted in 1988 providing for an exception for those incapacitated employees who are precluded by the maximum benefit level from receiving two-thirds of their average weekly wage. That language reflects a recognition that the maximum benefit level operated unfairly against high-earning employees. The \\\"except\\\" clause operated to save high wage earners from the 1983 change in the date of the annual inflation/deflation adjustment, and granted to them the right to continue to receive the maximum benefit level on July 1 of each year, as soon as that level was adjusted pursuant to then section 53. We discern nothing in the language of section 54-B or in the Statement of Fact to indicate that the legislature intended to change the policy of allowing incapacitated wage earners whose benefits are less than two-thirds of their average weekly wage to receive adjustments to the maximum benefit level as soon as possible. Accordingly, employees such as Marchand and Napolitano are entitled to the annual inflation adjustment to their workers' compensation benefits, unaffected by the three-year delay.\\nThe entry is:\\nDecision in WCB-93-266 vacated. Remanded for further proceedings consistent with the opinion herein.\\nDecision in WCB-93-518 affirmed.\\nAll concurring.\\n. Former Title 39 M.R.S.A. has been repealed and replaced by Title 39-A M.R.S.A. Maine Workers' Compensation Act of 1992, P.L.1991, ch. 885, \\u00a7 A-7 (effective Jan. 1, 1993). Title 39-A, however, does not retroactively repeal section 53-B and 54-A of former Tide 39 for injuries that precede January 1, 1993. P.L.1991, ch. 885, \\u00a7 A-10 (effective Jan. 1, 1993). Because both of these consolidated cases involve dates of injury that precede the effective date of Tide 39-A, this appeal is governed exclusively by former Tide 39 and does not implicate the new Act.\\n.An Act Refining the Compensation Under Workmen's Compensation Law for Total Incapacity, Partial Incapacity and Death, P.L.1971, ch. 225, \\u00a7 1 (effective Jan. 1, 1972), codified as 39 M.R.S.A. \\u00a7 54. The purpose of the inflation/deflation provision was to protect\\ninjured workers against shrinkage in the value of the dollar caused by inflation, while simultaneously guaranteeing that during' deflationary economic conditions, the entire system would not suffer from an inability to make appropriate adjustments in compensation payments.\\nBernard v. Cives Corp., 395 A.2d 1141, 1148 (Me. 1987); see also Campbell v. Bates Fabrics, Inc., 422 A.2d 1014, 1016 (Me. 1980); Legasse v. Hannaford Bros. Co., 497 A.2d 1112, 1116-18 (Me. 1985); Rugan v. Dole Co., 429 A.2d 535, 537 (Me. 1981).\\n. 39 M.R.S.A. \\u00a7 54 (Supp.1973), amended by P.L. 1973, ch. 557, \\u00a7 2 (effective Nov. 29, 1974); see also 39 M.R.S.A. \\u00a7 54 (Supp.1973), amended by P.L.1975, ch. 493, \\u00a7 1 (effective Oct. 1, 1975); 39 M.R.S.A. \\u00a7 54 (1975), amended by P.L.1981, ch. 483, \\u00a7 1 (effective June 22, 1981).\\n. According to the Statement of Fact accompanying L.D. 1322 (111th Legis.1983), the 1983 amendments were viewed as a \\\"cost saving\\\" measure. See also Report of Speaker's Select Committee on Workers' Compensation, Part III, at 11-12 (Jan. 17, 1983).\\n. 39 M.R.S.A. \\u00a7 54 (Supp.1983), repealed by P.L. 1985, ch 372, \\u00a7 A (effective June 30, 1985), codified as 39 M.R.S.A. \\u00a7 54-A.\\n. P.L.1987, ch. 559, \\u00a7 B, '27 (effective Nov. 20, 1988), codified as section 54-B, repealed by P.L. 1991, ch. 885, \\u00a7 A-7 (effective Jan. 1, 1993), codified as 39-A M.R.S.A. \\u00a7 212. The 1987 amendments also repealed former section 55-A (partial disability benefits), and replaced it with section 55-B, removing the inflation/deflation adjustment entirely for cases of partial incapacity. P.L.1987, ch. 559, \\u00a7 B, 29, 30 (effective Nov. 20, 1987), repealed by P.L.1991, ch. 885, \\u00a7 A-7 (effective Jan. 1, 1993), codified as 39-A M.R.S.A. \\u00a7213. The annual inflation/deflation adjustment, without a waiting period, was left intact for death benefits. See 39 M.R.S.A. \\u00a7 58-A (1987), repealed by P.L.1991, ch. 885, \\u00a7 A-7 (effective Jan. 1, 1993), codified as 39-A M.R.S.A. \\u00a7 215.\"}"

me/11945393.json

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+"{\"id\": \"11945393\", \"name\": \"CASCO NORTHERN BANK, N.A. v. BOARD OF TRUSTEES OF VAN BUREN HOSPITAL DISTRICT, et al.\", \"name_abbreviation\": \"Casco Northern Bank, N.A. v. Board of Trustees of Van Buren Hospital District\", \"decision_date\": \"1992-01-15\", \"docket_number\": \"\", \"first_page\": \"1085\", \"last_page\": \"1089\", \"citations\": \"601 A.2d 1085\", \"volume\": \"601\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:06:01.921077+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.\", \"parties\": \"CASCO NORTHERN BANK, N.A. v. BOARD OF TRUSTEES OF VAN BUREN HOSPITAL DISTRICT, et al.\", \"head_matter\": \"CASCO NORTHERN BANK, N.A. v. BOARD OF TRUSTEES OF VAN BUREN HOSPITAL DISTRICT, et al.\\nSupreme Judicial Court of Maine.\\nArgued Nov. 18, 1991.\\nDecided Jan. 15, 1992.\\nPatrick J. Scully (orally), Bernstein, Shur, Sawyer & Nelson, Portland, for plaintiff.\\nWilliam J. Smith, Van Bur\\u00e9n and Robert J. Plourde (orally), Plourde & Soucy, Fort Kent, for defendants.\\nBefore McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.\", \"word_count\": \"2333\", \"char_count\": \"13628\", \"text\": \"CLIFFORD, Justice.\\nPlaintiff Casco Northern Bank, N.A. (Casco) appeals from an order of the Superior Court (Cumberland County, Alexander, J.) granting summary judgment to defendants Van Bur\\u00e9n Hospital District (District), the District's Board of Trustees (Board), and the Town of Van Bur\\u00e9n (Town) on Count II of Casco's complaint. In Count II, Casco requested that the court issue an injunction in the nature of a mandamus ordering the Board to issue a warrant to the Town assessor in an amount sufficient to cover the principal and interest payments on a note issued to Casco by the District. We conclude that the summary judgment entered against Casco on Count II was error and vacate the judgment.\\nIn 1955, the legislature created the Van Bur\\u00e9n Hospital District to operate a hospital in the town of Van Bur\\u00e9n. P. & S.L. 1955, ch. 54. The District was given the power to issue bonds and notes that were legal obligations of the District. P. & S.L. 1955, ch. 54 \\u00a7 4. Under section 6 of the statute, the Board has the authority to issue a warrant to the Town assessors each year in an amount necessary to meet the District's expenses, including payments on notes and bonds. Section 6 states in relevant part:\\nThe trustees of the Van Bur\\u00e9n Hospital District shall determine what sum is required each year for sinking fund payments, or if the bonds or notes authorized by this act shall be issued to mature serially, what sum is required each year to meet the interest on said bonds or other obligations, and what sum is required each year to meet other necessary expenses in the district, and shall each year, before the 1st day of April, issue their warrant in the same form as the warrant of the Treasurer of State for taxes, with proper changes, to the assessors of the town of Van Bur\\u00e9n, requiring that they assess the total sum so determined upon the taxable polls and estates within said district....\\nP. & S.L. 1955, ch. 54, \\u00a7 6. Until 1989 other sources of income were sufficient to meet the District's expenses, and there was no request to invoke section 6.\\nIn 1988, the District borrowed $50,000 from Casco to purchase new computer equipment. The District issued Casco a five-year note payable in monthly installments of $1,007.85, representing principal and interest. In 1989, after making only nine payments on the note, the hospital closed and the District stopped making payments. Casco filed suit against the District, its Board of Trustees, and the Town alleging breach of contract and unjust enrichment. Casco asked the court to accelerate payment on the note and to order the Board to issue a warrant to the Town assessors in an amount sufficient to provide for payment of the note.\\nThe court properly refused to accelerate payment on the note, but did grant Casco judgment on all overdue amounts and left open the option for Casco to return for judgment and execution on any future pay- merits as they came due and were not paid. The Court also granted the defendants' motion for summary judgment on Casco's request for the injunction on the ground that Casco had not exhausted its legal remedies. Casco made a timely appeal to this court from that judgment.\\nEven though the extraordinary writs (certiorari, prohibition, mandamus, and quo warranto) have been abolished in Maine, M.R.Civ.P. 81(c), it is possible to obtain an injunction in the nature of mandamus using the procedure set out in M.R.Civ.P. 80B. Ray v. Town of Camden, 583 A.2d 912, 913 (Me.1987); 14 M.R.S.A. \\u00a7 5301 (1980). Rule 80B does not, however, provide an independent basis of jurisdiction; a court may hear an 80B action only if it is authorized \\\"by statute or otherwise authorized by law_\\\" M.R.Civ.P. 80B(a); Ray, 533 A.2d at 913. An action for an injunction in the nature of mandamus may be \\\"otherwise authorized by law\\\" if it is the type of action for which the traditional writ would apply. Dowey v. Sanford Hous. Auth. 516 A.2d 957, 959-960 (Me.1986); Your Home Inc. v. City of Portland, 505 A.2d 488, 489 (Me.1986); Fletcher v. Feeney, 400 A.2d 1084, 1088 (Me.1979). Therefore, this court looks to the traditional common law of mandamus to determine if the Superior Court is authorized to hear the case and grant the relief, but may adapt the law to current conditions. Ray, 533 A.2d at 913; Dowey, 516 A.2d at 962; M.R.Civ.P. 80B advisory committee's note, 2 Field, McKusick & Wroth, Maine Civil Practice 305, 308 (2d ed. 1970).\\nTraditionally, mandamus lies to compel governmental performance of a strictly ministerial act, that the applicant, otherwise without remedy, is entitled to have performed. Ray 533 A.2d at 913-914; Dowey, 516 A.2d at 960; Your Home, 505 A.2d at 489; Rogers v. Brown, 135 Me. 117, 119, 190 A. 632 (1937). In the case at hand, we agree with Casco that the issuance of a warrant by the Board is a ministerial act that Casco is entitled to have performed, and that Casco is otherwise without a remedy that is adequate.\\nI.\\nMINISTERIAL ACT\\nThe courts will not grant mandamus to compel the performance of a discretionary act or in any way control the outcome of the deliberative process. Ray, 533 A.2d at 914; Rogers, 135 Me. at 119, 190 A. 632. The court may grant the injunction, however, to compel the initiation of the deliberative process after a complete refusal to act. Ray, 533 A.2d at 914; Kelly v. Curtis, 287 A.2d 426, 429 (Me.1972); Littlefield v. Newell, 85 Me. 246, 249, 27 A. 110 (1893).\\n\\\"When the law requires the public officer to do a specified act, in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act, and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus if there is no other remedy. When, however, the law requires a judicial determination to be made, such as the decision of a question of fact, or the exercise of judgment in deciding whether the act should be done or not, the duty is regarded as judicial and mandamus will not lie to compel performance.\\\"\\nYoung v. Johnson, 161 Me. 64, 70, 207 A.2d 392 (1965) (quoting Nichols v. Dunton, 113 Me. 282, 283-284, 93 A. 746 (1915)); see also Rogers, 135 Me. at 119-20, 190 A. 632.\\nThe statute directing the District to issue the warrant states that the District \\\"shall\\\" determine the amounts needed for the payments each year, and \\\"shall\\\" issue the warrant to the assessors. P. & S.L. 1955 ch. 54, \\u00a7 6. We have previously held in a case involving mandamus, that the word \\\"shall\\\" is to be construed as \\\"must\\\" for the purpose of sustaining or enforcing an existing right, though it need not be for creating a new right. Rogers, 135 Me. at 118-19, 190 A. 632. Therefore, the Board's duty to issue the warrant is mandatory. Furthermore, the statute clearly indicates the method of calculating the amount of the warrant, and the manner in which it is to be served on the Town assessor. P. & S.L. 1955 ch. 54, \\u00a7 6. The duty of the Board is ministerial and not discretionary. The fact that the Board has never exercised this authority is irrelevant, because the amount \\\"required each year to meet the interest on said bonds or other obligations\\\" had previously been zero, and there was no need to exercise the authority. Now that the District needs more funds than it is able to collect from other sources, it must resort to this provision of the statute to acquire them.\\nII.\\nENTITLEMENT TO PERFORMANCE\\nSince Casco's legal right to payment under the note has been established and is not contested in this appeal, the only question is whether Casco has a right to have the Board issue the warrant. It is well established that the laws existing at the time of the making of a contract form part of the contract. Canal Nat'l Bank v. School Admin. Dist. No. 3, 160 Me. 309, 317, 203 A.2d 734 (1964). In Canal Nat'l Bank, a statute that removed three towns from a school district was held to be an unconstitutional impairment of the rights of bondholders of the school district. Id. at 320-22, 203 A.2d 734. We concluded that the right of the bondholders to the security provided by the school district's power to tax was essential to the integrity of the bond contract. Id. at 321, 203 A.2d 734. Likewise in this case, the statute that gave the Board the responsibility to issue a warrant to the Town assessors to meet the obligations of the District forms an essential part of the terms of the note between Casco and the District.\\nThis conclusion is reinforced by other aspects of the agreement between the parties. In the no-litigation certificate, the Board's President and the District's Treasurer explicitly assured Casco \\\"that there is no litigation, pending or threatened, affecting . the power of the District to issue bonds or notes and assess the member municipality to levy and collect taxes to pay the principal of and interest on these notes.\\\" Casco was justified in relying on this representation as meaning that' the power to tax was unimpaired and therefore would be used if necessary. In addition the absence of clauses for the acceleration of the loan and attorney fees in the case of default is corroboration of Casco's reliance on the District's power to issue a warrant. Therefore, we conclude that Casco has an enforceable right to have the Board issue the warrant.\\nIII.\\n. ADEQUACY OF OTHER REMEDIES\\nMandamus is inappropriate if the party seeking mandamus has another adequate remedy at law. An adequate remedy is one that affords relief upon the very subject matter of the controversy. Furbish v. County Comm'rs, 93 Me. 117, 133-134, 44 A. 364 (1899). It must be \\\"fully commensurate with the necessities and rights of the party under all the circumstances of the particular case.\\\" Dennett v. Acme Mfg. Co., 106 Me. 476, 481, 76 A. 922 (1910). Furthermore, mandamus may issue when the party has another method of redress, but that method is more tedious. Furbish, 93 Me. at 133, 44 A. 364.\\nUnder the particular circumstances of this case, Casco has no other remedy that is fully commensurate with the rights and necessities of its loan contract. Casco may attach and execute on the District's property under 14 M.R.S.A. \\u00a7 4101-5006 (1980 & Supp.1990), and may attach and execute on the private property within Van Bur\\u00e9n under 30-A M.R.S.A. \\u00a7 5701 (Pamph.1991). Neither of these remedies, however, would require the District to issue the warrant to acquire the funds necessary to make the payments on the loan. Casco and other creditors routinely rely on the general power of assessment and taxation available to municipalities and special districts to guarantee that they will be able to meet their obligations promptly. As a result, not only are the usual creditor's protections, such as provisions for acceleration of the loan and the recovery of attorney fees in case of default, omitted from the loan documents, but the loans are also made at lower interest rates, thereby substantially benefitting the municipalities that borrow under those terms. For these reasons, the right to force the District to issue the warrant is of paramount importance to the integrity of the loan contract. See Canal Nat'l Bank, 160 Me. at 320-22, 203 A.2d 734 (destruction of taxing power unconstitutionally impairs bond contract). The other methods of redress available to Casco are not only more tedious, but also do not afford Casco relief \\\"upon the very subject matter of the controversy,\\\" Furbish, 93 Me. at 133-34, 44 A. 364, or on \\\"the particular right which the law accords [it]_\\\" Dennett, 106 Me. at 481, 76 A. 922. Therefore, Casco is entitled to an order mandating issuance of the warrant .\\nThe entry is:\\nJudgment vacated. Remanded to Superi- or Court for further proceedings consistent with the opinion herein.\\nAll concurring.\\n. Section 4 of the statute states that the District is \\\"a quasi-municipal corporation within the meaning of section 136 of chapter 53 of the revised statutes of 1954 and all the provisions of said section shall be applicable thereto.\\\" Section 136 of chapter 53 of the revised statutes of 1954 provided:\\nThe property of the inhabitants of counties, towns, cities, and other quasi-corporations may be taken to pay any debt due from the body politic of which they are members. All sums so paid, with interest and costs, may be recovered of such body politic.\\nR.S.1954, ch. 53, \\u00a7 136 (now codified as amended at 30-A M.R.S.A. \\u00a7 5701 (Pamph.1991)). Therefore, if the District defaulted on its obligations, creditors could execute on the property of the inhabitants of Van Bur\\u00e9n.\\n. The note did not contain an acceleration clause.\\n. In July 1991, the District filed for bankruptcy in the United States Bankruptcy Court for the District of Maine and proceedings in this case were stayed. In October, however, the bankruptcy judge (Haines, /.) dismissed the District's petition and this appeal proceeded.\\n. The order should take into account the terms of P. & S.L. 1955, ch. 54, \\u00a7 6, contemplating the issuance of a warrant before the first of April to raise an amount that would include overdue payments on the note to Casco as well as sufficient funds to enable the District to make all payments to Casco for the year as they become due.\"}"

me/11997645.json

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+"{\"id\": \"11997645\", \"name\": \"STATE of Maine v. Alston PORTER\", \"name_abbreviation\": \"State v. Porter\", \"decision_date\": \"1997-04-10\", \"docket_number\": \"\", \"first_page\": \"743\", \"last_page\": \"745\", \"citations\": \"693 A.2d 743\", \"volume\": \"693\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:06:42.694168+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN and LIPEZ, JJ.\", \"parties\": \"STATE of Maine v. Alston PORTER.\", \"head_matter\": \"1997 ME 74\\nSTATE of Maine v. Alston PORTER.\\nSupreme Judicial Court of Maine.\\nSubmitted on Briefs March 14, 1997.\\nDecided April 10, 1997.\\nDavid W. Crook, District Attorney, Andew Benson, Asst. Dist. Atty., Skowhegan, for state.\\nM. Michaela Murphy, Daviau, Jabar & Batten, Waterville, for defendant.\\nBefore WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN and LIPEZ, JJ.\", \"word_count\": \"1461\", \"char_count\": \"8540\", \"text\": \"CLIFFORD, Justice.\\n[\\u00b6 1] Alston Porter appeals from a judgment entered in the Superior Court (Somerset County, Marsano, /.), after a jury-waived trial, finding him guilty of aggravated assault (Class B) in violation of 17-A M.R.S.A. 208(1)(C) (1983). Porter's only contention on appeal is that the evidence is insufficient to meet the standard required for conviction pursuant to section 208(1)(C). He disputes that the circumstances amount to manifest extreme indifference to the value of human life within the meaning of section 208(1)(C), namely, that death or serious bodily injury to the victim was reasonably likely to result from his conduct. Concluding the evidence to be sufficient, we affirm the judgment.\\n[\\u00b6 2] The victim of Porter's assault, who was home alone with her three-year-old son, testified that she was awakened early in the morning when there was \\\"a hand across my mouth and the back of my head was being grabbed and my head was being twisted to the right severely hard.\\\" She testified that she felt that her neck was going to be snapped. She testified that the person's other hand was grabbing her hair and that she believed the person to be a man because of his strength. She also testified that at one point her head hit the wall behind the bed causing a large bump on the back of her head. She then was dragged to the floor and pulled into the hallway. As she hit the man with her hands and feet, she eventually kicked him hard enough so that he fell backwards. She got up, turned on a light, and recognized the man to be Porter. She said that she was yelling at him and that he asked her who she was. He then said that he thought he was in his own house. Porter turned and fled from the house. The victim testified that she sustained bodily injury to her cheeks, red marks on her neck, a bump on the back of her head, and that she lost hair for several days.\\n[\\u00b6 3] Porter testified that he entered the victim's house intending to get some vodka and any money that was there. Porter testified that \\\"I must have woke [her] up when I went by or whatever. I was looking around the room with a flashlight and she hollered and wanted to know who it was and what I wanted.\\\" He said that he grabbed the victim and \\\"hauled her out of bed and was walking her down the hallway.\\\" He testified that he \\\"kept her turned straight away from me.\\\" He testified that he could see her hand groping the wall and that he was pushing her face away from him so that she could not identify him. Porter testified that when she turned on the light, they both fell to the floor. He testified that he came \\\"back up with her,\\\" and he then let her go.\\n[\\u00b64] The court denied a motion for a judgment of acquittal and subsequently concluded that Porter was guilty of aggravated assault. The court stated that it had \\\"no doubt that [Porter] was acting recklessly. I have no doubt at all but that the injuries amount to that which is required under Section 208. It seems to me that in the manner or method in which in the injuries were inflicted that there was clearly an aggravated assault....\\\" Porter requested no further findings of fact, and this appeal followed.\\n[\\u00b6 5] When reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether a factfinder rationally could find beyond a reasonable doubt every element of the offense charged. State v. Hoffstadt, 652 A.2d 93, 94 (Me.1995). The factfinder is entitled to weigh conflicting evidence in determining the guilt or innocence of the defendant, State v. Hinds, 485 A.2d 231, 235 (Me.1984), and we will vacate a finding of guilt only if the factfinder rationally could not have reached that conclusion on the basis of the evidence before it. State v. Caouette, 462 A.2d 1171, 1176 (Me.1983). In addition, when a defendant fails to request further findings of fact, we will deem the trial court to have made such findings of fact as are supported by the evidence and that are necessary to sustain the court's ultimate conclusion. State v. Dodd, 503 A.2d 1302, 1307 (Me.1986).\\n[\\u00b6 6] Porter contends that insufficient evidence exists on the record to support a conviction for the crime of aggravated assault pursuant to the \\\"extreme indifference to the value of life\\\" provision of section 208(1)(C). Section 208(1)(C) (1983) provides:\\n\\u00a7 208. Aggravated Assault\\n1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes:\\nC. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Such circumstances include, but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, or the observable physical condition of the victim.\\nIt is not seriously disputed that Porter's victim suffered bodily injury. State v. Dodd, 503 A.2d at 1304; 17-A M.R.S.A. \\u00a7 2(5) (1983). Pursuant to section 208(1)(C), however, the bodily injury must be inflicted \\\"under circumstances manifesting extreme indifference to the value of human life.\\\" Extreme indifference requires \\\"a serious impairment to life as a value \\u2014 death or a serious bodily injury \\u2014 that, not having occurred in fact, was nevertheless reasonably likely to result from a defendant's conduct in all of the circumstances surrounding it.\\\" State v. Dodd, 503 A.2d at 1306. In other words, a grave result must be reasonably likely. Id. We have construed a reasonable likelihood to mean \\\"a not very high\\\" likelihood of a serious result. Id. at 1304.\\n[\\u00b6 7] Porter argues that although the victim \\\"could possibly sustain serious bodily injury or death in this struggle . it cannot be said that death or serious bodily injury were reasonably likely to have occurred.\\\" Porter's contention is unpersuasive. The court was well aware of the extreme indifference to the value of human life elements that the State was required to prove and concluded that the State met its burden because of the manner and method used to inflict the injuries. The court accepted the victim's testimony in its entirety, including that the defendant twisted her head with severe force and that she felt her neck was about to snap. She also testified that he pulled her hair, and that he pulled her from the bed and dragged her down the hallway. The conclusion that serious bodily injury was reasonably likely under the circumstances of this case is amply supported by that evidence. The court also found that Porter acted at least recklessly. Viewed in the light most favorable to the State, the evidence was sufficient to prove beyond a reasonable doubt that Porter caused bodily injury to the victim under circumstances manifesting extreme indifference to the value of human life within the meaning of section 208(1)(C). State v. Dodd, 503 A.2d at 1304. State v. Anania, 340 A.2d 207, 211 (Me.1975).\\nThe entry is:\\nJudgment affirmed.\\n. Section 208 provides:\\n\\u00a7 208. Aggravated Assault\\n1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes:\\nA. Serious bodily injury to another; or\\nB. Bodily injury to another with use of a dangerous weapon; or\\nC.Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Such circumstances include, but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, or the observable physical condition of the victim.\\n. Porter also was charged with attempted murder, assault, burglary, possession of a firearm by a felon, violation of a condition of release, and violation of an order for protection from abuse. He was acquitted of attempted murder and assault but convicted of the remaining charges.\\n. The \\\"reasonable likelihood\\\" or \\\"not a very high\\\" likelihood is to be distinguished from the \\\"very high degree of risk of death or serious bodily injury\\\" required to meet the definition of \\\"conduct which manifests a depraved indifference to the value of human life\\\" within the meaning of 17-A M.R.S.A. \\u00a7 201(B) (1983) (depraved indifference murder). State v. Dodd, 503 A.2d at 1305-1306. See State v. Crocker, 435 A.2d 58. 63-67 (Me.1981).\"}"

me/12013303.json

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+"{\"id\": \"12013303\", \"name\": \"Irving McNAUGHTON, et al. v. Richard KELSEY, et al.\", \"name_abbreviation\": \"McNaughton v. Kelsey\", \"decision_date\": \"1997-08-08\", \"docket_number\": \"\", \"first_page\": \"1049\", \"last_page\": \"1052\", \"citations\": \"698 A.2d 1049\", \"volume\": \"698\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:17:12.778349+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.\", \"parties\": \"Irving McNAUGHTON, et al. v. Richard KELSEY, et al.\", \"head_matter\": \"1997 ME 182\\nIrving McNAUGHTON, et al. v. Richard KELSEY, et al.\\nSupreme Judicial Court of Maine.\\nSubmitted on Briefs May 13, 1997.\\nDecided Aug. 8, 1997.\\nTonya H. Johnson, C.W. & H.M., Dover-Foxcroft, for plaintiffs.\\nDefendants Richard Kelsey and Belinda Bates (formerly Belinda Kelsey) did not file briefs.\\nBefore WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.\", \"word_count\": \"1764\", \"char_count\": \"10500\", \"text\": \"LIPEZ, Justice.\\n[\\u00b6 1] Irving MeNaughton and Robert O'Malley appeal from the judgment entered in the Superior Court (Piscataquis County, Maclnnes, A.R.J.), affirming the judgment of the District Court (Dover Foxcroft, Gunther, /.), declaring the Town of Sangerville's foreclosure of the Kelseys's land void for a failure to notify the Kelseys properly of the Town's application of their tax payment to an outstanding tax assessment. They contend that the court erred by concluding that the foreclosure was void because the Kelseys did not have actual knowledge that their 1991 taxes remained unpaid. We agree and vacate the judgment.\\nI.\\n[\\u00b6 2] The plaintiffs are purchasers of land formerly owned by Richard and Belinda Kelsey and acquired by the Town of Sangerville after foreclosure on a tax lien placed by the Town on the land. The Kelseys paid only a portion of their 1989 tax bill, and the Town of Sangerville abated the $1.66 that was not paid. The Kelseys made no payment on their 1990 tax bill. In 1991, Belinda Kelsey mailed a check for $77.35 to the Town in an envelope along with a copy of her 1991 tax bill. The amount due on the 1991 tax bill was $71.60. Belinda testified that she intended to pay the 1991 tax bill and that she had not received a bill for 1990 taxes. The court found that Belinda \\\"was not aware that the 1990 taxes had not been paid.\\\" The Town applied the payment towards her outstanding 1990 tax bill rather than the 1991 bill, and the $77.35 payment still left a balance of $5.16 on the 1990 tax bill.\\n[\\u00b63] In March 1992 the Town of Sanger-ville sent a notice to the Kelseys demanding payment of their 1991 taxes within 30 days. The notice was sent by certified mail, return receipt, to the Kelseys at their Addison, Maine, address, and was returned unclaimed. In May 1992 the Town recorded a tax lien certificate in the Piscataquis County Registry of Deeds. The Town sent a copy of the lien to the Kelseys at their address in Addison by certified mail, and the letter was returned unclaimed. In September 1993 the Town sent a notice of impending automatic foreclosure to the Kelseys in Addison, and the notice was returned unclaimed. The Town foreclosed on the hen in November 1993 and in February 1994 granted a quitclaim deed to McNaughton and O'Malley.\\n[\\u00b64] In October 1994, McNaughton and O'Malley filed an action to quiet title against the Kelseys. The District Court found in favor of the Kelseys and declared the foreclosure on their land invalid. The court concluded that despite the Town's compliance with the provisions of 36 M.R.S.A. \\u00a7 906 (1990) in applying the 1991 tax payment to the outstanding 1990 tax bill, the Kelseys did not have actual knowledge that their 1991 payment was not credited to 1991 taxes. The court ruled, inter alia:\\nHowever reasonable the Town's practice of back application, the Court does not find any notice to Ms. Bates [Kelsey] by way of receipt or otherwise to alert her to the credit against 1990 taxes. The payment was specifically directed at the 1991 taxes. Under these circumstances, and despite statutory compliance, the foreclosure cannot be sustained. Payment was made, although not credited, on the taxes at issue. The default in 1990 will not sustain foreclosure related to 1991.\\nThe Superior Court affirmed the judgment of the District Court, and this appeal followed.\\nII.\\n[\\u00b6 5] In its denial of the plaintiffs' motion for reconsideration, the court ruled that \\\"[i]n the absence of actual [knowledge] of the back application of the 1991 payment, enforcement of foreclosure without notice violates due process requirements.\\\" McNaughton and O'Malley contend that the court erred by concluding that due process required the Kelseys to have actual knowledge of the application of their tax payment to their overdue 1990 taxes.\\n[\\u00b66] We evaluate procedural due process claims pursuant to a two step process. We first inquire if the government action has deprived the claimant of life, liberty or property interests. Jackson v. Town of Searsport, 456 A.2d 852, 856 (Me.1983), cert. denied sub nom Jackson v. Handley, 464 U.S. 825, 104 S.Ct. 95, 78 L.Ed.2d 101 (1983). If such deprivation occurred, we then ask what process was due pursuant to the Fourteenth Amendment. Id.\\nThe due process notice requirement . is a threshold constitutional requirement to assure that the government does not appropriate private property interests without first taking reasonable steps to assure that the property owner is aware of both the danger of the loss of his interest and of the opportunity to avoid the forfeiture by performance of the acts necessary to that end. Once that threshold requirement has been met, the opportunity to avoid the forfeiture is available to the property own er and the burden reposes fully on him to do so by appropriate action.\\nCummings v. Town of Oakland, 430 A.2d 825, 832 (Me.1981), appeal dismissed, cert. denied, 454 U.S. 1134, 102 S.Ct. 988, 71 L.Ed.2d 286 (1982). The Town's foreclosure on the Kelseys's land deprived the Kelseys of a property interest, which satisfies the first part of our inquiry. We must then determine if the Town adequately notified the Kelseys of their obligation to the Town.\\nThe fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right which the particular pertinent constitutional provision purports to protect. What is due process in specific procedures affecting property interests must be determined by taking into account the purposes of the procedures themselves and their effect upon the rights asserted and all other circumstances which may render the devised process appropriate to the nature of the case.\\nCity of Auburn v. Mandarelli, 320 A.2d 22, 29 (Me.1974), appeal dismissed sub nom Mandarelli v. City of Auburn, 419 U.S. 810, 95 S.Ct. 25, 42 L.Ed.2d 37 (1974). Due process in the area of taxation \\\"does not require the same kind of notice as is required in the case of judicial actions or even in proceedings for taking private property under the power of eminent domain\\\" because the \\\"very existence of government necessitates that the tax collection process be not subject to the delays attendant upon formal judicial proceedings.\\\" Id.\\n[\\u00b6 7] We have previously stated that a land owning taxpayer has a responsibility to remain apprised of what tax payment enforcement proceedings are being taken against the taxpayer's property. Id. at 30. The Kelseys are presumed to know not only that taxes are due on their land each year, but also that their failure to pay their taxes could result in a tax lien and foreclosure on their property. \\\"The statute itself gives warning to the taxpayer that if he does not pay his taxes he may lose his land. The owner is presumed to know that his land was taxable . [and] that it is his duty to pay his taxes on time.... \\\" Id.\\n[\\u00b6 8] The parties stipulated, and the court found, that the Town satisfied the notice requirements of 36 M.R.S.A. \\u00a7 942 and 943 (1990 and Supp.1996) before foreclosing on the Kelseys's land. The Kelseys had notice well before foreclosure that they were delinquent on their 1991 taxes because the Town sent several notices to the address that the Kelseys had listed with the Town. \\\"Once that threshold requirement has been met, the opportunity to avoid the forfeiture is available to the property owner and the burden reposes fully on him to do so by appropriate action.\\\" Cummings, 430 A.2d at 832. The Kelseys maintained the Addison address as their summer address and retrieved mail from Addison periodically, never notifying the Town that they could be reached at any address other than in Addison. The Kelseys failed to take steps to satisfy their burden as taxpaying landowners of remaining apprised of the tax payment proceedings instituted against their property. City of Auburn, 320 A.2d at 30. The Town gave the Kelseys a reasonable opportunity to learn of the pending foreclosure, thus satisfying the Kelseys's due process rights.\\nThe entry is:\\nJudgment vacated. Remanded to the Superior Court with direction to remand to the District Court for entry of a judgment in favor of the plaintiffs.\\n. The court found that the Addison address was the Kelseys's summer address, and that the Kel-seys never asked the Addison post office to forward their mail to them, choosing instead to pick up their mail each summer. The court further found that the Addison post office would not hold certified mail for the Kelseys.\\n. Section 906 provides:\\nThe municipal officers of a municipality may, upon request of the municipal treasurer or the tax collector, require that any tax payment received from an individual as payment for any property tax be applied against outstanding or delinquent taxes due on that property in chronological order beginning with the oldest unpaid tax bill. Taxes may not be applied to a period for which an abatement request or appeal has not been resolved unless approved in writing by the taxpayer.\\n. We interpret the court's decision as based on the fact that the Kelseys did not actually know that their 1991 taxes remained unpaid, and thus were without actual knowledge, not actual notice. \\\"Actual notice is that which gives actual knowledge, or the means to such knowledge.\\\" Rowe v. Hayden, 149 Me. 266, 101 A.2d 190, 273, 149 Me. 266, 101 A.2d 190 (1953) (quoting Hopkins v. McCarthy, 121 Me., 27, 29, 115 A. 513 (1921)). \\\"Notice does not mean knowledge-actual knowledge is not required.\\\" Knapp v. Bailey, 79 Me. 195, 202, 9 A. 122 (1887). Actual notice is \\\"such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry.\\\" Black's Law Dictionary 957 (5th ed. 1979).\\n. Pursuant to 36 M.R.S.A. \\u00a7 942 and 943 (1990 and Supp.1996), the municipality that records a tax lien on real estate is required to notify the record owner of the existence of the lien and is also required to notify the record owner before foreclosing on the lien.\"}"

me/12142974.json

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+"{\"id\": \"12142974\", \"name\": \"STATE of Maine v. Jason M. FOSTER\", \"name_abbreviation\": \"State v. Foster\", \"decision_date\": \"2016-10-18\", \"docket_number\": \"Docket: Cum-15-635\", \"first_page\": \"542\", \"last_page\": \"545\", \"citations\": \"149 A.3d 542\", \"volume\": \"149\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T02:13:09.551584+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.\", \"parties\": \"STATE of Maine v. Jason M. FOSTER\", \"head_matter\": \"2016 ME 154\\nSTATE of Maine v. Jason M. FOSTER\\nDocket: Cum-15-635\\nSupreme Judicial Court of Maine.\\nArgued: September 15, 2016\\nDecided: October 18, 2016\\nJamesa J. Drake, Esq., (orally), Drake Law, LLC, Auburn, for appellant Jason M. -Foster.\\nStephanie Anderson, District Attorney, and Jennifer F. Ackerman, Dep. Dist, Atty., (orally), Prosecutorial District Two, Portland, for appellee State of Maine.\\nPanel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.\", \"word_count\": \"1602\", \"char_count\": \"9401\", \"text\": \"SAUFLEY, C.J.\\n[\\u00b61] Jason M. Foster- was charged by indictment with eighteen criminal counts based on allegations that he had pretended to be a police officer in order to compel or induce four women who were engaged in prostitution to- have sex with him as he demanded. Foster appeals from a judgment of conviction entered by the court (Cumberland County, Warren, J.) after a jury found him guilty of two counts of gross sexual assault (Class B), 17-A M.R.S. \\u00a7 253(2)(B) (2015); four counts of impersonating a public servant (Class E), 17-A M.R.S. \\u00a7 457(1), (3) (2015); and two counts of engaging a prostitute (Class E), 17-A M.R.S. \\u00a7 853-B(l)(A) (2015), based on his conduct toward three of the four women identified by initials in the indictment. He argues that he was deprived of due process because the indictment and jury verdict form did not adequately distinguish among separate allegations involving each victim. We affirm the judgment.\\nI. BACKGROUND\\n[\\u00b62] Foster was charged with eighteen crimes involving four victims through an indictment signed on November 7, 2014. For each count, he was charged with a crime alleged to have occurred- \\\"between October 9, 2013 and October 9, 2014.\\\" Although the indictment did not specify the \\u2022victims for the counts of impersonating a public servant, the organization of the indictment and the specificity in the jury verdict forth make clear which counts are associated with each alleged victim. The indictment charged four counts of gross sexual assault (Counts 1 through 4) and four counts of impersonating a public servant (Counts 5 through 8) with respect to one woman; two counts of engaging a prostitute (Counts 11 and 12) and two counts of impersonating a public servant (Counts 13 and 14) with respect to a second woman; two counts of gross sexual assault (Counts 15 and 16) and two counts of impersonating a public servant (Counts 17 to 18) with respect to a third woman; and single counts of theft by extortion (Class C), 17-A M.R.S. \\u00a7 355(1), (3) (2015), (Count 9) and impersonating a public servant (Count 10) with respect to a fourth woman.\\n[\\u00b63] In April 2015, Foster moved for a bill of particulars regarding the counts charging him with gross sexual assault and impersonating a public servant. He argued that duplicative language in the indictments and the broad date range failed to provide him sufficient notice of the basis for each charge against him, thereby depriving him of the opportunity to prepare a defense, and failed to protect him from double jqopardy. A month later, after further .discovery, Foster withdrew his motion for a bill of particulars without prejudice. He did not file another motion for a bill of particulars.\\n[\\u00b64] The court held a jury trial on August 18, 19, and 20, 2015. Foster did not request jury instructions explaining the requirement of unanimity as to each specific charged crime. Nor did Foster seek further clarification of the nature of each alleged crime in the jury verdict form. The verdict form .identified, for each charged crime, the name of the alleged victim. No further specificity was provided in the form, except to require the jury to find whether, if Foster engaged a prostitute, he did so.after the date at the start of the date range for the charged crimes.\\n[\\u00b65] The jury found Foster guilty of eight of the eighteen charges, which in-ivolved three of the four alleged victims. The jury found him guilty of the third listed count of gross sexual assault of one victim (Count 3) and the third listed count of impersonating a public servant with respect to that victim (Count 7). It also found that he was guilty of both counts of engaging another victim as a prostitute (Counts 11. and 12) and both counts of impersonating a public servant with respect to that victim (Counts 13 and 14). Finally, the jury found Foster guilty of the second listed count of gross sexual assault (Count 16) and the second listed count of impersonating a public servant (Count 18) with respect to the third victim.\\n. [\\u00b66] The court sentenced Foster to eight years in prison for the conviction of gross sexual assault alleged, in Count 3, to be served consecutively to concurrent four-month sentences for his convictions of Counts 11, 12, 13, 14, and 18. The court imposed a six-month, sentence for impersonating a public servant with respect to the victim of Count 3 (Count - 7), to be served concurrently with the sentence for Count 3; a seven-year sentence, all suspended, for the other gross sexual assault conviction (Count 16), to run consecutively to the sentence for Count 3; and a three-year term of probation. The court also ordered Foster to pay a fine of $1,150 and to pay up to $500 to reimburse' the victims' compensation fund for restitution benefit-ting one of the victims.\\n[\\u00b67] Foster timely appealed from the judgment of conviction and applied for leave to appeal from his sentence. See 15 M.R.S. \\u00a7 2115, 2151 (2015); M.R. App. P. 2, 20. The Sentence Review Panel denied his application for sentence review, see 15 M.R.S. \\u00a7 2152 (2015); M.R. App. .P. 20(f), and we now consider his appeal from the judgment of conviction.\\nII. DISCUSSION\\n[\\u00b68] If a defendant files and pursues a motion for a bill of particulars to challenge the sufficiency of an indictment, we review a denial of the motion for an abuse of discretion. See State v. Flynn, 2015 ME 149, \\u00b6 27, 127 A.3d 1239. We do not, however, review the issue at all when a defendant has knowingly and voluntarily waived the issue of an indictment's, sufficiency by declining to request. a- bill of particulars or otherwise challenge the indictment in the trial court. See M.R.U. Crim. P. 12(b)(2); State v. Clarke, 2015 ME 70, \\u00b6 5 n.2, 117 A.3d 1045 (declining to review the sufficiency of an indictment to inform the defendant of a charge when he neither challenged the indictment before the trial court nor sought a bill of particulars); State v. Shea, 588 A.2d 1195, 1195 (Me. 1991) (concluding that a defendant waived a challenge to the indictment by failing to move for a bill of particulars or object to the indictment before trial).\\n[\\u00b69] Foster was aware that the State had charged him with multiple crimes against each alleged victim during the same time range. He filed a motion for a bill of particulars based on assertions of vagueness in the indictment but then withdrew the motion. Thus, despite a demonstrated awareness of the procedural mechanism available to challenge the indictment, Foster voluntarily withdrew his motion for a bill of particulars and thereby waived any issue of a vagueness defect in the indictment. See Clarke, 2015 ME 70, \\u00b6 5 n.2, 117 A.3d 1045. Foster also elected not to request a specific jury instruction regarding the requirement of unanimity for each convicted count, see Me. Const, art. I, \\u00a7 7, and not to request further clarification in the verdict form identifying which alleged incident corresponded with each count on the jury verdict form.\\n[\\u00b610] Although Foster now argues that he did not receive due process, was deprived of a fair trial, and may be exposed to double jeopardy, he did not seek further process to address the specificity of charges in the trial court. See Clarke, 2015 ME 70, \\u00b6 5 n.2, 117 A.3d 1045; State v. Bilynsky, 2008 ME 33, \\u00b6 7, 942 A.2d 1234. \\\"[A] party must pursue the process that is available before complaining of a procedural inadequacy\\\" for purposes of a due process challenge. Marshall v. Torn of Dexter, 2015 ME 135, \\u00b6 28, 125 A.3d 1141. We will not review an issue\\u2014 even for obvious error\\u2014when a party has, as a trial strategy, openly acquiesced to the process employed. See State v. Ford, 2013 ME 96, \\u00b6 15-17, 82 A.3d 75.\\n[\\u00b611] Ultimately, Foster's trial strategy was relatively effective, resulting in his acquittal on ten of the eighteen charged counts. The jury's verdict demonstrates that, after it heard testimony and arguments, and received agreed-upon instructions from the court, it considered the evidence of multiple incidents to determine which crimes the State had proved beyond a reasonable doubt and which it had not. It then presented its verdict by completing a jury verdict form that was agreed upon by Foster and the State. A review of the numerical design and the jury's answers on the completed verdict form indicates that the jury found that the State had proved specific incidents and had not proved others. Given the record of the proceedings in this case, we consider the due process and double jeopardy issues that Foster now asserts to have been waived. We will not disturb the judgment of conviction.\\nThe entry is:\\nJudgment affirmed.\\n. Foster does not contest the sufficiency of the evidence to establish the crimes of which he was convicted, and \\\"there was ample evidence upon which the jury. could find [him] guilty beyond a reasonable doubt of each ele- ' ment of the crimes charged.\\\" State v. Poulin, 2016 ME 110, \\u00b6 39, 144 A.3d 574.\"}"

me/12504566.json

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+"{\"id\": \"12504566\", \"name\": \"ADOPTION OF SHAYLEIGH S. et al.\", \"name_abbreviation\": \"In re Shayleigh S.\", \"decision_date\": \"2018-12-20\", \"docket_number\": \"Docket: Ken-18-238\", \"first_page\": \"791\", \"last_page\": \"797\", \"citations\": \"198 A.3d 791\", \"volume\": \"198\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-27T20:57:42.437667+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.\", \"parties\": \"ADOPTION OF SHAYLEIGH S. et al.\", \"head_matter\": \"ADOPTION OF SHAYLEIGH S. et al.\\nDocket: Ken-18-238\\nSupreme Judicial Court of Maine.\\nSubmitted On Briefs: November 28, 2018\\nDecided: December 20, 2018\\nRandy G. Day, Esq., Garland, for appellant father\\nJustin E. French, Esq., Ranger Copeland French, P.A., Brunswick, for appellees mother and stepfather\\nPanel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.\", \"word_count\": \"2717\", \"char_count\": \"15966\", \"text\": \"PER CURIAM\\n[\\u00b6 1] The father of S.S. and P.S. appeals from judgments entered by the Kennebec County Probate Court (E. Mitchell, J. ) terminating his parental rights in anticipation of an adoption pursuant to 18-A M.R.S. \\u00a7 9-204(a) - (b) (2017) and 22 M.R.S. \\u00a7 4055(1)(A)(2), (B)(2)(a), and (B)(2)(b)(ii) (2017). He contends that the court erred in its use of statements made by S.S. during an in camera interview and that there was insufficient evidence to support the court's finding of parental unfitness as to both children. We affirm the judgments.\\nI. CASE HISTORY\\n[\\u00b6 2] This appeal arises from private adoption proceedings and petitions to terminate the father's parental rights brought by the mother and stepfather of S.S. and P.S. in the Kennebec County Probate Court. The petitions sought to terminate the parental rights of the children's biological father, thereby freeing the children for adoption by their stepfather. A one-day hearing was held on the mother and stepfather's petitions on May 16, 2018, at which the mother and father testified. On the same day, the court interviewed S.S. in camera .\\n[\\u00b6 3] On May 30, 2018, the court issued two judgments, one for each child, terminating the father's parental rights. In its judgments, the court recited the testimony of the witnesses and also issued what it explicitly characterized as findings, applying the requisite clear and convincing evidence standard of proof. See In re Child of Portia L. , 2018 ME 51, \\u00b6 2, 183 A.3d 747. Because a court's findings will be affirmed on appeal if they are supported by any evidence in the record, see Adoption of Isabelle T. , 2017 ME 220, \\u00b6 30, 175 A.3d 639, the recitation of testimony in a judgment is unnecessary and could be viewed as limiting the support for certain findings to the recited testimony. If a court accepts a fact stated in testimony and the fact is important to the judgment, it is best stated as an affirmative finding rather than as a reference to testimony.\\n[\\u00b6 4] In both judgments the court made the following findings of fact, which are supported by competent evidence in the record:\\nBased upon clear and convincing evidence presented at the hearing, this Court concludes that termination of the parental rights of [the father], thereby freeing the child for adoption by the petitioners, would be in the child's best interests. This Court specifically finds that the [father]'s failure to make any attempt to establish a family relationship with the child, or contribute in any way toward the child's financial support, constitutes clear and convincing evidence that the [father] has been unwilling or unable to take responsibility for the child within a time reasonably calculated to meet the child's needs.\\nIn reaching its decision, this Court has considered carefully the needs of this child, the child's age and relationship with the [father] and with the petitioners, and the amount of time spent with each of the parties and the child's ability to integrate into the petitioner's home.\\n.\\nThe parents of [S.S.] and [P.S.] were divorced on July 20, 2015. [The father] was awarded visits every 3rd weekend and three weeks in the summer. He also was ordered to pay child support of $87.50 weekly for his two children. [The father] had both children for a visit at his mother's home in August of 2015. He testified that he attempted to visit his children in September of 2015 but found no one home when he arrived. He testified that after a second unsuccessful attempt to visit, he ceased efforts to visit and pay child support. For almost three years, the father failed to make responsible attempts to establish a relationship with his children and did not contribute to their financial support. The disability needs of his young son [P.S.] make this absence more damaging.\\n.\\nBoth parents acknowledged the father's criminal mischief complaint for destruction of many household items with an axe. Both the mother and the daughter [S.S.] testified that these events caused them to be fearful.\\n[\\u00b6 5] In its judgment regarding S.S., the court made the following additional findings:\\nDaughter [S.S.] is 17 years old. She testified in camera that she does not want her father in her life and fears for herself and her little brother. She testified that she wants to continue her current family structure and to be adopted by her stepfather. She testified that he is supportive of her successes in school and knows how to take care of her brother's special needs. She views her stepfather as her father.\\n.\\nThe issue of continuity for caring for his disabled son and for parenting his teenage daughter do go to the child's best interest standard. In light of the father's lack of participation in any way in the care or financial support of both of his children for almost three years, the Court finds that it is in the daughter's best interest to formalize her relationship with her stepfather. [S.S] acts as an important care taker of her brother. The father has consistently demonstrated a lack of understanding and appreciation of the special needs of his son and has difficultly dealing with his daughter's interactions with her brother. He is highly critical of [S.S.]'s treatment of her brother.\\nThe daughter [S.S.] can petition for this adoption on her own in just a year when she reaches 18. She stated unequivocally that she wants adoption now based on her past experiences with her biological dad and her recent experiences with her stepfather.\\n[\\u00b6 6] In its judgment regarding P.S., the court made the following additional findings:\\n[A pediatric center] diagnosed [P.S.] with [serious disabilities]. Although the father had the names of providers of services to his son, he made no effort to reach out to see what assistance he could provide or to contribute financially. He made no inquiries to the mother about the son's well-being.\\nThe mother testified that the son's issues require structured care and careful transitions. When the father's attorney asked him what plans for reunification he had for his 7 year old son, [the father] testified that if the court took too long to decide, he would not wait for a gradual reintroduction but would just take him, in spite of hearing the testimony about his son's difficultly with transitions.\\n. [T]he stepfather of this child[ ] has been in his life since marriage to his mother in 2015 after her divorce. He is a retired veteran who provides all the care to the disabled son while [the] mother works full time. He takes the child to all his medical appointments and follows the instructions for assisting the child both in school and at home. No evidence was presented to the court that he was unsuitable to parent this child.\\n.\\nThe issue of continuity of care for [the father's] disabled son does go to the child's best interest standard. In light of the father's lack of participation in any way in the care or financial support of a severely disabled son for almost three years and his testimony that he would not consider a reunification period before re-entering his son's life should the Court delay its opinion, the Court finds that it is this child's best interest to remain legally in a secure, sensitive and consistent environment. The father has consistently demonstrated a lack of understanding and appreciation of these special needs.\\n(emphasis added).\\n[\\u00b6 7] Following the judgments, the father timely appealed. See 18-A M.R.S. \\u00a7 9-309 (2017) ; M.R. App. P. 2B(c)(1).\\nII. LEGAL ANALYSIS\\nA. Interview with S.S.\\n[\\u00b6 8] The father challenges the court's use of the statements S.S. made during her in camera interview. He argues that the statements were not made under oath and that he did not have the opportunity to cross-examine S.S. He contends that the court's use of the statements \\\"as evidence of a pertinent fact is beyond the intent of the in camera interview statute\\\" because \\\"[a] plain reading of the [authorizing] statute would seem to state that it is only the adoptee's attitudes and desires that a court may take into account.\\\"\\n[\\u00b6 9] In adoption proceedings, a probate judge must interview a potential \\\"adoptee who is 12 years of age or older, outside the presence of the prospective adoptive parents to determine the adoptee's attitudes and desires about the adoption and other relevant issues.\\\" 18-A M.R.S. \\u00a7 9-305(a) (2017). In this case, the court interviewed S.S. in camera during the hearing on the petitions for termination of parental rights and discussed, among other things, an incident where her father picked her up by her neck. In its two judgments terminating the father's rights to S.S. and P.S. respectively, the court said that S.S. \\\"testified in camera that her father did pick her up with a choke hold.\\\"\\n[\\u00b6 10] While the statements S.S. made regarding the choking incident ostensibly fall within the \\\"other relevant issues\\\" part of statute, the court exceeded the scope of the statute by relying on these statements for more than just context that explained the attitudes and desires of S.S. Accordingly, it was error for the court to refer to the unsworn statements made by S.S. as testimony.\\n[\\u00b6 11] The father, however, has failed to demonstrate how he was prejudiced by the court's use of the statements, and it is highly probable that the statements did not affect the outcome of the case. See In re M.B. , 2013 ME 46, \\u00b6 34, 65 A.3d 1260 ; see also Greaton v. Greaton , 2012 ME 17, \\u00b6 7, 36 A.3d 913 (\\\"In appealing a judgment, it is not enough to challenge procedural errors allegedly made by the trial court without also showing actual error in the judgment.\\\"); In re A.M. , 2012 ME 118, \\u00b6 25, 55 A.3d 463 (\\\"The mother's failure to explain on appeal how her absence or the officer's testimony [concerning her absence] could have affected the trial or its outcome is relevant in determining on appeal whether she has been deprived of due process.\\\").\\n[\\u00b6 12] The mother's testimony, including her testimony about the choking incident involving S.S., was substantively the same as what S.S. said in camera and was subject to cross-examination by the father. See In re Elijah R. , 620 A.2d 282, 285-86 (Me. 1993) (holding that admission of inadmissible evidence was harmless when the information was \\\"duplicated by other sources in the record\\\"). The father was also able to present his contradictory testimony after the mother testified. Therefore, the errors the court made with regard to the statements given by S.S. during the in camera interview were harmless. See In re M.B. , 2013 ME 46, \\u00b6 34, 65 A.3d 1260 ; In re A.M. , 2012 ME 118, \\u00b6 25, 55 A.3d 463.\\nB. Sufficiency of the Evidence\\n[\\u00b6 13] The father argues that the evidence does not support the court's finding in both judgments that his \\\"failure to make any attempt to establish a family relationship with the child, or contribute in any way toward the child's financial support, constitutes clear and convincing evidence that [he] has been unwilling or unable to take responsibility for the child within [a] time reasonably calculated to meet the child's needs.\\\" Specifically, his complete argument is as follows:\\nThe evidence showed and the court found that the father did have a visit in August of 2015 after the divorce. The father testified that when he went to see the children in September, no one was home although he checked more than once between 3 and 6. The mother testified that she moved to a new residence without notifying the father despite the explicit language in the Divorce Judgment that she do so. The father also testified that he attempted during September of 2017 to see the children in accordance with his parental rights and was told to talk to her attorney. It is therefore clear that the father has wanted a relationship but was hindered by the petitioner and is not \\\"unable to protect the child from jeopardy[.]\\\"\\n(citations omitted).\\n[\\u00b6 14] \\\"When the burden of proof at trial is clear and convincing evidence, our review is to determine whether the fact-finder could reasonably have been persuaded that the required findings were proved to be highly probable.\\\" Adoption of L.E. , 2012 ME 127, \\u00b6 11, 56 A.3d 1234. The father does not take issue with the court's best interest findings.\\n[\\u00b6 15] The court here heard evidence, much of it through the father's own admissions, supporting a finding by clear and convincing evidence that he neither sought nor had meaningful contact with his children for more than two years. While the father blames the mother for this lack of contact, he took no affirmative steps available through the judicial system to remove any perceived impediments to maintaining relationships with his children, choosing instead to withhold any child support payments despite having the ability to pay. He admitted that he never contacted the mother when he found that the children were not home when he expected to have a visit in the fall of 2015. Furthermore, the mother testified that the father's visits were sporadic and he was supposed to call first.\\n[\\u00b6 16] Although the mother moved without telling the father, she testified that she did so in December 2016, more than a year after his last attempted visit, and that she kept the same phone number. After the mother and stepfather filed their petitions to terminate the father's parental rights-two years after his last visit with the children-the father sent a text message to the mother requesting a visit with the children, but, when she asked him to contact her attorney, he never did. In light of this and other evidence in the record, the court reasonably could have been persuaded that it was highly probable that the father is unwilling or unable to take responsibility for his children in a time reasonably calculated to meet their needs.\\nC. Sequence of Fact-finding\\n[\\u00b6 17] Although not raised by the father on appeal, one other aspect of the court's decision requires comment. In its orders, the court addressed the children's best interests before making a finding of parental unfitness. We have previously stated that, notwithstanding the sequence of issues stated in 22 M.R.S. \\u00a7 4055(1)(B)(2), the trial court must find parental unfitness before it proceeds to consider the best interests of the children. See Adoption of Hali D. , 2009 ME 70, \\u00b6 4-5, 974 A.2d 916 ; In re Michelle W. , 2001 ME 123, \\u00b6 11, 777 A.2d 283.\\n[\\u00b6 18] Because the father does not challenge the court's misallocation of fact-finding, our review is for obvious error. See In re Joshua B. , 2001 ME 115, \\u00b6 9, 776 A.2d 1240. Here, the trial court made the required finding of parental unfitness by finding by clear and convincing evidence that the father is unable or unwilling to take responsibility for his children in a time reasonably calculated to meet their needs. As such, the father was not deprived of a fair trial and was not treated unjustly as a result of the trial court's erroneous sequence of its fact-finding. See id. \\u00b6 12.\\nThe entry is:\\nJudgments affirmed.\\nTitle 18-A will be revised and recodified as Title 18-C effective July 1, 2019. See P.L. 2017, ch. 402.\\nThe father admitted to picking up S.S. by the neck when she was twelve, but asserted that it was by the back of her neck and he only did so because she was hurting her younger brother, P.S.\\nIn his last sentence, the father misstates the grounds upon which the court found that he was an unfit parent. We infer from the issue statement in his brief that he is challenging the court's findings that he was \\\"unable or unwilling to take responsibility for the child[ren] in a time reasonably calculated to meet [their] needs.\\\"\"}"

me/1528489.json

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+"{\"id\": \"1528489\", \"name\": \"John McDonald vs. Edward Smith et al.\", \"name_abbreviation\": \"McDonald v. Smith\", \"decision_date\": \"1836-08\", \"docket_number\": \"\", \"first_page\": \"99\", \"last_page\": \"100\", \"citations\": \"14 Me. 99\", \"volume\": \"14\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:28:57.857202+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John McDonald vs. Edward Smith et al.\", \"head_matter\": \"John McDonald vs. Edward Smith et al.\\nAlthough it is an irregular course of proceeding, a Judge of the C. C. Pleas has power to permit the examination of a witness, after the testimony has been once closed, and the counsel of the opposing party has commenced his argument to the jury.\\nWhere a protest has been admitted in evidence, and the Notary is afterwards called, as a witness, and testifies to all the facts stated in the protest; the admission of the protest becomes immaterial, and furnishes no cause for setting aside the verdict.\\nWhere an inland bill or note is left in a bank for collection, three days grace are allowed under the statute of 1824, c. 272.\\nExceptions from the Court of Common Pleas.\\nAssumpsit against the defendants, as indorsers of a promissory note made by one Stover Ri\\u00f1es and payable to them, or order, for the sum of ^1300,00, dated June 1, 1835, and payable in six months. The plaintiff then produced the note, and by permission of the Court, though objected to by the defendant, read a protest made by William Rice, a Notary Public, living at Bangor, where the plaintiff a.nd defendants also resided, stating that he received the note from the Cashier of the People\\u2019s Bank in Bangor, and on the 4th of December, 1835, made a demand upon the maker and notified the indorsers, the handwriting of the parties being admitted, and here rested his case. The counsel for the defendants then commenced his argument to the jury, after which, the plaintiff, by permission of Perham J., although the defendants objected thereto, called Rice, the Notary, and proved by him the same facts stated in the protest, which had been read. On this evidence the counsel for the defendants requested the Judge to instruct the jury, that the plaintiff had not maintained his action. The Judge instructed them, that if they were satisfied by the evidence, that the note was left in the People\\u2019s Bank for collection, the demand and notice were in season. The defendants excepted to the admission of the testimony of Rice, and to the instruction of the Judge.\\nRogers, for the defendants,\\ninsisted that the Judge erred, in admitting the protest as evidence; in the admission of Rice, as a witness, at that state of the proceedings ; and that the demand was not made seasonably, as there was no sufficient evidence of the note having been left in the Bank until after it was due.\\nJ. McDonald, pro se,\\nargued, that the admission of the protest was immaterial, as the same person testified to all the facts he had stated in his protest; that the time when the witness should be introduced, was a mere exercise of the discretionary power of the Judge; and the testimony of the notary, that he received tire note of the Cashier, was competent evidence tp show, that the note was left in the Bank before due, and that the sufficiency of the testimony was not now before the Court.\", \"word_count\": \"740\", \"char_count\": \"4201\", \"text\": \"The opinion of the Court was afterwards delivered by\\nWeston C. J.\\nIt was competent for the Judge, in his discretion to receive the testimony of William Rice, the notary, at the stage of the cause he did ; although after the counsel for the defendants had commenced his argument. It did not comport with the usual course of proceedings, which has been adopted in trials to the jury. But that course is not so inflexible in its character, .that it may not be departed from, when occasion requires, under the direction of the presiding Judge. The notary having proved all the facts, for which the protest was adduced, that paper became immaterial; and it is therefore unnecessary to decide upon its admissibility and effect.\\nThe notary testified, that the note was handed to him, by the cashier of the People's Bank, either at that bank, or at an insurance office. We cannot take it upon ourselves to say, that this furnished no evidence, that the note was left in the bank for collection. It was properly submitted to the jury to pass upon that fact; and they found it was thus left. The demand made and notice given, on the fourth of December, was not tiren out of season, under the statute of 1824, c. 272; and the plaintiff was entitled to a verdict. The exceptions are accordingly overruled.\\nJudgment on the verdict.\"}"

me/384963.json

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+"{\"id\": \"384963\", \"name\": \"Granite Bank vs. Nathaniel Treat & al.\", \"name_abbreviation\": \"Granite Bank v. Treat\", \"decision_date\": \"1841-06\", \"docket_number\": \"\", \"first_page\": \"340\", \"last_page\": \"343\", \"citations\": \"18 Me. 340\", \"volume\": \"18\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:49:16.827160+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Granite Bank vs. Nathaniel Treat & al.\", \"head_matter\": \"Granite Bank vs. Nathaniel Treat & al.\\nIn an action upon a bond given to procure the release of a debtor arrested on execution, not only can the proceedings of the justices who admitted the debtor to take the oath, be proved by their record, or by a copy thereof, but the certificate of the justices is also competent evidence.\\nNo presumption is to be made in favor of inferior tribunals, and therefore the jurisdiction of the justices must appear upon the face of the proceedings. Where the certificate of the justices states their own character, the parties to the process, the commitment of the debtor, his desire to take the oath, and that he had caused the creditor to be notified according to law; these facts are sufficient to make out a prima facie case of jurisdiction. ,\\nThe certificate however would not be conclusive on this point, and it would be competent for the plaintiff to prove that they had not jurisdiction.\\nWhere the condition of the bond does not expressly require, that the certificate should be filed with the keeper of the prison, the bond is not forfeited by the omission to file it.\\nExceptions from the Middle District Court, Redington J. presiding.\\nDebt on a bond, dated Feb. 15, 1838, given by Shaw, a debtor in execution, as principal, and by Treat as surety, under the acts for the relief of poor debtors. The condition of the bond was in the common form, and contained no stipulation that the debtor should file the certificate of his discharge with the prison keeper. The plaintiffs proved the signatures and execution of the bond, and introduced it in evidence, but offered no other proof.\\nThe only evidence offered by the defendants was a certificate of two justices of the peace and of the quorum, in the form required by the poor debtor acts, stating that Shaw did take the oath before them July 28, 1838. There was no evidence, that the certificate was ever filed with the prison keeper, or at his office, but was delivered by one of the justices, to the counsel for the defendant at the trial. The certificate showed, that the creditor was duly cited and notified of the time and place of caption. The counsel for the plaintiffs objected to the admission of this certificate, but the Judge overruled the objection, and admitted it in evidence. The plaintiffs then objected, that the same as the case then stood, did not amount to a full answer and defence to the plaintiffs\\u2019 case. The Judge ruled, that if the plaintiffs did not present further evidence, the certificate was a full and sufficient answer and defence.\\nThe plaintiffs excepted to the ruling of the Judge.\\nH. W. Fuller, jr. in his argument for the plaintiffs,\\nwith other grounds, contended, that the defendants were bound to show that the magistrates had jurisdiction, before their defence was made out. The jurisdiction of the magistrates depends entirely Upon the regularity of the previous proceedings, and they must be shown to have been correct by the defendants, before the certificate of discharge can be evidence. Nothing will be presumed in favor of the jurisdiction of inferior magistrates, and it is the duty of the defendants to prove it affirmatively. Knight v. Norton, 3 Shepl. 337.\\nIt is the duty of the justices to make and keep a record of their proceedings \\u201c and enter up judgment in due form as in other cases.\\u201d Stat. 1822, c. 209, \\u00a7 14. The proceedings necessary to give the justices jurisdiction should be upon the record, and their own proceedings and adjudications. These must be proved by the record. It is not enough to say that such things have been done and performed, but they must be proved to have been done by the proper evidence, the record. Kendrick v. Gregory, 9 Greenl. 22; Murray \\u00b6. Neally, 2 Fairf. 241; Fose v. Howard, 1 Shepl. 268.\\nThe certificate was not properly admitted because it had never been filed with the jailer. It can be of no avail until it has been thus filed. Stat. 1835, c. 195, <\\u00a7. 10; Knight v. Norton, before cited.\\nNo case has gone so far as to say that the certificate is conclusive evidence of the jurisdiction, but only as to certain facts. In Slasson v. Brown, 20 Pick. 436, the court permitted the plaintiff to go behind the return of the magistrates, and contradict the certificate.\\nFose, for the defendants,\\ncontended, that the certificate of the justices was, prima facie, evidence of the fulfilment of the conditions of the bond. It was decided to be conclusive evidence in Black v. Ballard, 1 Shepl. 239, and in Agry v. Betts, 3 Fairf. 415.\\nThe case cited from 20 Pick, merely decides that the certificate is not conclusive evidence, and it was there held to be, prima facie, sufficient. That case does not conflict with the ruling of the District Judge in this case. The plaintiffs had the opportunity to contradict the certificate, if they could.\\nThe condition of the bond does not require that the certificate should be lodged with the jailer, and therefore it becomes unnecessary to inquire how far the omission may influence a case where it does.\", \"word_count\": \"1383\", \"char_count\": \"7812\", \"text\": \"The opinion of the Court was by\\nShepley J.\\nIt should appear that the magistrates had jurisdiction, to make their record or certificate evidence of the facts therein stated. It is said, that there is not sufficient evidence in this case to prove it, because they are required to keep a record, which is the best and only proper evidence of their proceedings.\\nThe statute, c. 195, \\u00a7 10, provides, that the justices shall make out a certificate and deliver it to the debtor; and it makes it the evidence upon which the prison keeper is required to discharge him, and the evidence of his exemption from imprisonment on that or any other execution to be issued on the same judgment or any other judgment founded thereon. In the cases of Kendrick v. Gregory, 9 Greenl. 22; Murray v. Neally, 2 Fairf 241; and Agry v. Betts, 3 Fairf. 415, copies of the proceedings, or the originals, appear to have been introduced; and while it is decided that a copy of the record is competent and proper evidence, no one of the cases decides, that the certificate is not also evidence. On the contrary it stated in Kendrick v. Gregory, that the proceedings of the justices may be proved by their record \\\" as well as by a certificate founded on the reeord.\\\"\\nThe certificate was stated to be evidence also in the case of Black v. Ballard.\\nIt is true as stated in the argument, that no presumption is to be made in favor of an inferior tribunal. Its jurisdiction must appear on the face of its proceedings. Their certificate in this case states their own character, the parties to the process, the commitment of the debtor, his desire to take the oath, and that he had caused the creditor to be nolified according to law ; and these facts are sufficient to make out a prima facie case of jurisdiction. The certifi cate however would not be conclusive on this point, and it would be competent for the plaintiff to prove that they had not jurisdiction. Smith v. Rice, 11 Mass. R. 507. And the cases, which have decided that the record or certificate was conclusive evidence of the facts therein stated, did not decide it to be so in cases where it appeared that the justices had no jurisdiction.\\nIt was decided in Kendrick v. Gregory, and in Murray v. Neally, that a neglect to file the certificate with the prison keeper was no breach of the bond under the statute of 1822, and the statute of 1835 does not materially differ from it on that point. It is said that the creditor may be wholly unable to ascertain whether the debtor has taken the oath, if the certificate be not filed. It may be very desirable that it should be filed, and that the condition of the bond should require it; but the court cannot decide, that the bond is forfeited for an omission to do an act not required by it.\\nExceptions overruled.\"}"

me/472607.json

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+"{\"id\": \"472607\", \"name\": \"Trimount Coin Machine Co. vs. Ernest H. Johnson, State Tax Assessor\", \"name_abbreviation\": \"Trimount Coin Machine Co. v. Johnson\", \"decision_date\": \"1956-07-31\", \"docket_number\": \"\", \"first_page\": \"109\", \"last_page\": \"114\", \"citations\": \"152 Me. 109\", \"volume\": \"152\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:13:05.184438+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting : Fellows, C. J., Williamson, Webber, Beliveau, Tapley, JJ. Murray, A. R. J. Clarke, J., did not sit.\", \"parties\": \"Trimount Coin Machine Co. vs. Ernest H. Johnson, State Tax Assessor\", \"head_matter\": \"Trimount Coin Machine Co. vs. Ernest H. Johnson, State Tax Assessor\\nKennebec.\\nOpinion, July 31, 1956.\\nBerman, Berman & Wernick, for petitioner.\\nBoyd L. Bailey, Asst. Atty. Gen., for State.\\nSitting : Fellows, C. J., Williamson, Webber, Beliveau, Tapley, JJ. Murray, A. R. J. Clarke, J., did not sit.\", \"word_count\": \"1522\", \"char_count\": \"8660\", \"text\": \"Williamson, J.\\nThis petition for a declaratory judgment is before us on report upon an agreed statement of facts. Uniform Declaratory Judgments Act, R. S., c. 107, \\u00a7 38-50.\\nThe problem is whether the petitioner is liable for payment of a use tax upon coin operated amusement machines leased in Maine. Sales and Use Tax Law, R. S., c. 17, \\u00a7 4.\\nThe petitioner, Trimount Coin Machine Company, a Massachusetts corporation with its only place of business in Massachusetts, purchases coin operated machines and distributes them either by sale or lease. We are here interested only in machines leased for operation within Maine. Leases are bona fide and are not deemed in lieu of purchase. Prospective customers come to the petitioner's Boston office to lease machines, or telephone their orders to the Boston office, or they may place orders through petitioner's salesmen who visit Maine from time to time. When a customer and the petitioner agree upon terms of the lease, the machine is either delivered in Boston to the customer or is shipped f.o.b. Boston to him in Maine. The lease in each instance is executed in Massachusetts and rentals are there paid.\\nThere is nothing in the agreed statement to indicate that the petitioner has ever come into Maine to enforce any provision of such a lease. While the customer or lessee is under an obligation to keep the petitioner informed of the location of the machine, it appears that in practice the petitioner does not insist on performance of this provision.\\nThe state tax assessor contends, to use his words, that the petitioner \\\"should pay a use tax on machines newly purchased by Trimount, which are brought into the State of Maine by the lessee for their first use.\\\"\\nThe pertinent parts of the Sales and Use Tax (R. S., c. 17) are:\\n\\\"Sec. 4. Use Tax. A tax is imposed on the storage, use or other consumption in this state of tangible personal property, purchased at retail sale at the rate of 2 % of the sale price. Every person so storing, using or otherwise consuming is liable for the tax until he has paid the same or has taken a receipt from his seller, thereto duly authorized by the assessor, showing that the seller has collected the sales or use tax, in which case the seller shall be liable for it. Retailers registered under the provisions of section 6 or 8 shall collect such tax and make remittance to the assessor. The amount of such tax payable by the purchaser shall be that provided in the case of sales taxes by section 5. . .\\\" (Amendment Laws 1955, c. 144 not here material.)\\n\\\"Sec. 2. Definitions. 'Retail sale' or 'sale at retail' means any sale of tangible personal property, in the ordinary course of business, for consumption or use, or for any purpose other than for resale, except resale as a casual sale, in the form of tangible personal property. The term 'retail sale' or 'sale at retail' includes conditional sales, installment lease sales, and any other transfer of tangible personal property when the title is retained as security for the payment of the purchase price and is intended to be transferred later. . .\\\"\\n\\\" 'Sale' means any transfer, exchange or barter, in any manner or by any means whatsoever, for a consideration in the regular course of business and includes leases and contracts payable by rental or license fees for the right of possession and use, but only when such leases and contracts are deemed to be in lieu of purchase by the state tax assessor.\\\"\\n\\\" 'Storage' includes any keeping or retention in this state for any purpose, except subsequent use outside of this state, of tangible personal property purchased at retail sale.\\\"\\n\\\" 'Storage' or 'use' does not include keeping or retention or the exercise of power over tangible personal property brought into this state for the purpose of subsequently transporting it outside the state.\\\"\\nijc % :]s\\n\\\" 'Use' includes the exercise in this state of any right or power over tangible personal property incident to its ownership when purchased by the user at retail sale.\\\"\\nThe decisive issue is whether the petitioner has exercised in this State any right or power over the machine described in the agreed statement incident to its ownership.\\nWe may agree on the impact of the statute upon certain facts. (1) The machine in question was \\\"purchased at retail sale\\\" by the non-resident petitioner outside of Maine. (2) No sales or use tax was paid thereon in another taxing jurisdiction. Hence there is no exemption from the application in whole or in part of the use tax under Section 12 relating to sales or use taxes paid in other jurisdictions. (3) The Maine customer or lessee is not a purchaser at retail sale and hence is not liable for the tax. Under Section 4 the person \\\"so storing, using or otherwise consuming\\\" is liable unless under stated conditions he has taken a receipt from his seller. Further, the word \\\"storage\\\" relates only to \\\"tangible personal property purchased at retail sale\\\" and \\\"use\\\" to such property \\\"when purchased by the user at retail sale.\\\" (Sec. 2). Plainly the use tax is directed at the purchaser. (4) There is no \\\"storage, use or other consumption\\\" by the petitioner in Maine. (Sec. 4). (5) The machine is being used in Maine by the lessee.\\nThe question, however, is not whether the machine is in use, within the ordinary meaning of the word, in Maine, but whether the petitioner is so using it within the meaning of the statute. The person taxable must be both a user and the purchaser at retail sale. The lessee in Maine is a user but not the purchaser and hence is not taxable. The petitioner is the purchaser. Thus the decision turns on whether there is \\\"use\\\" in Maine by the lessor.\\nIn our view of the statute the petitioner is not liable for a use tax. The use and possession of the property in Maine in its entirety is, and at all times has been, in the lessee or customer by virtue of the lease. In the instant case, as we have seen, the lease is bona fide and is not \\\"in lieu of pur chase.\\\" The rental provided under the lease is therefore true rent for the use of the property.\\nTo lease property in ordinary meaning is to obtain the use and possession of property in return for rent. In Opinion of Justices, 146 Me. 183, 188, 79 A. (2nd) 753, relating to a proposed lease by the Maine State Office Building Authority to the State, the justices said, \\\"The so-called lease is not in legal effect a lease, it is a contract of purchase. The so-called rental is not true rent, to wit, payment for the use of property.\\\" Under a bona fide lease it is contemplated that use for a limited time by the lessee will be followed by a return of the property to the lessor. In a conditional sale, for example, the end' is ultimate ownership by the buyer. 2 Williston Sales, \\u00a7 336 (1948 rev. ed.); Sawyer v. Hanson, 24 Me. 542, 545; Holbrook v. Armstrong, 10 Me. 31, 34.\\nIf the petitioner exercises in this State any right or power incident to its ownership of the machine, the use tax is imposed. The tax does not rest upon the sum total of rights and powers incident to ownership, but upon any right or power. There is, of course, no use tax arising under any theory of the Act from the purchase of the machine outside of Maine or from the lease written in Massachusetts. Until the machine reached the State of Maine there was no action whatsoever within the State with respect to the property owned by the petitioner.\\nFrom the agreed statement it appears that the petitioner has done nothing with respect to the machine within the State of Maine either before or since making the lease. We conclude, therefore, that the petitioner has not exercised in this State any right or power over the property within the statutory definition of \\\"use.\\\"\\nOur decision is based upon and limited strictly to the facts set forth in the agreed statement. At what point a lessor or owner does exercise a right or power in this State under the statute we do not here consider or determine, except that there has been no such exercise in this State on the facts before us.\\nIn light of our decision it is unnecessary to consider the argument of the petitioner that the use tax statute, construed and applied as contended by the tax assessor in the instant case, is unconstitutional and void.\\nCase remanded to the Superior Court for the entry of a declaratory judgment decree in accordance with this opinion.\"}"

me/477718.json

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+"{\"id\": \"477718\", \"name\": \"City Bank versus Benjamin Adams and Bath Mut. Marine Insurance Company, Trustee\", \"name_abbreviation\": \"City Bank v. Adams & Bath Mut. Marine Insurance\", \"decision_date\": \"1858\", \"docket_number\": \"\", \"first_page\": \"455\", \"last_page\": \"458\", \"citations\": \"45 Me. 455\", \"volume\": \"45\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:54:34.813565+00:00\", \"provenance\": \"CAP\", \"judges\": \"Tenney, C. J., Rice, Hathaway, May, and Davis, J. J., concurred.\", \"parties\": \"City Bank versus Benjamin Adams and Bath Mut. Marine Insurance Company, Trustee.\", \"head_matter\": \"City Bank versus Benjamin Adams and Bath Mut. Marine Insurance Company, Trustee.\\n\\u25a0Where a company has issued a policy of insurance upon a vessel for whom it concerns, and a loss has accrued, the share of money payable by the company to one of the several owners, may be held by attachment on trustee process, by a creditor of such part owner of the vessel, although his name is not in the policy.\\nParol evidence is not admissible to show that a promissory note was intended as a receipt.\\nThe question, iu this case, is the liability of said corporation as the trustee of said Adams. The company, by one of its directors, after the general declaration that the corporation, at the time of service, had no goods, effects, or credits of the said Adams, further disclosed that on the 6th day of Nov. 1854, S. H. Fuller obtained for himself, and. for whom it should concern, an insurance by the said company for twelve thousand dollars on the ship called Lavinia Adams, and a policy was issued. A loss of the ship occurred. The company denied their liability on the policy. Fuller commenced a suit, which was referred by a rule of Court. The report of the referees was made and filed, and the action was continued to this [December, 1851,] term. By compromise, the company has settled the loss and paid to William Purrinton, to whom the said Fuller had assigned the policy, the sum of $10,183,60, being seven-eighths of the sum agreed to be paid by the company to settle the loss, (and also as costs, the sum of $238,45,) the remaining eighth part has been, paid to the assignees of Joseph Berry, the said Purrinton consenting thereto.\\nThe said Benjamin Adams was owner of three-sixteenths of said ship when the insurance was effected, and so continued to the time when the loss happened. That it appeared at the hearing before the referees, and may be assumed as a fact, for the purposes of the disclosure, that the insurance was effected for all interested in the ship.\\nThat, at the time of payment to Purrinton, he gave his written agreement to indemnify the company against any claim the plaintiffs have by reason of their trustee process. The order or assignment of Puller, is made a part of the disclosure. The loss of the vessel occurred before the service of the writ upon the company, which service was while the suit of Puller was pending, and before the award of referees was returned to Court.\\nAt the April term, 1858, Mat, J., presiding, the parties and said Purrinton, assignee, agreed to submit the question of the liability of the said insurance company, as trustee, to the full Court, on the disclosure made, the policy of insurance and certain depositions specified, to make part of the case.\\nThe material evidence contained in the depositions, sufficiently appears from the opinion of the Court. On another policy, Adams had received a sum greater than his share; a part of which'he had loaned, as he deposes, to Berry, one of the other owners. The plaintiffs contend that the money received by Berry, should be regarded as a payment of so much towards the sum he was entitled to, and not as a loan.\\nGilbert, for plaintiffs, argued: \\u2014\\nThat on a policy, such as is in this case,.effected for whom it concerns, the party interested is entitled to recover the money for himself. Puller had no interest in it. He was not an owner at the time of the loss.\\nPacific Ins. Co. v. Cattell, 4 Wend. 15, in which case it was decided that one who had a special interest in the subject in sured, may maintain an action. For a still stronger reason, the general owner may, on a policy intended for his benefit, although his name is not in the policy.\\nThe following cases were cited and commented upon : \\u2014 Farrar v. Com. Ins. Co., 18 Pick. 55; Gardner v. Bedford Ins. Co., 17 Mass. 613; Rider v. Ocean Ins. Co., 20 Pick. 259.\\nFuller had no title to the money. Neither had Purrinton. ITe was simply authorized to receive it. And the order for that purpose was made by the agreement of the owners, treating this as the money of all the owners, Adams included. The debtor corporation is, therefore, the trustee of Adams, unless that relation is divested by other means.\\nIt was further argued, from the evidence, it did not appear that Adams had received the amount of insurance to which he was entitled.\\nBronson & Scwall, for trustees and for Purrinton.\", \"word_count\": \"1184\", \"char_count\": \"6694\", \"text\": \"The opinion of the Court was drawn up by\\nAppleton, J.\\nThe defendant was the owner of three-sixteenths of the ship Lavinia Adams. The owners had effected several insurances upon her, one of which was at the office of the trustees. The vessel was lost, and the defendant received from insurance companies, in which policies had been effected and in adjustment thereof in part, the sum of $7428,50, which was more than his share of the whole loss.\\nIt appears from the deposition of the defendant, which, by agreement, is made a part of this case, that the defendant loaned the firm of J. Berry & Son, of which firm Joseph Berry, who owned one-sixteenth of the ship, was a member, the sum of three thousand dollars, and took from them their note for that amount.\\nAfter all this, and before the adjustment of the policy effected upon the Lavinia Adams, at the office of the trustees, by Samuel II. Fuller, for whom it should concern, service was made in this process upon the defendant and the trustees.\\nIt is conceded that the defendant has received more than his share of the different insurances effected upon the ship, unless the three thousand dollars loaned to Joseph Berry & Son is to be treated as a payment to Joseph Berry towards his share of the moneys paid upon the loss. If that sum is to be regarded as an advance to Joseph Berry toward his proportion of the insurance, and should be accounted for in that way, then the defendant would not have received his share; but if that is to be treated as a loan out of his own funds, then the trustee should not be charged, for the defendant Adams would have been overpaid.\\nThe authorities are conclusive that parol evidence is not admissible to show that a promissory note was intended as a receipt. Billings v. Billings, 10 Cush. 178. The defendant testifies that the thousand dollars which are in the hands of Berry & Son, was a loan to the firm. In the adjustment of the policy with the trustees, it was so treated, and the amount due Joseph Berry thereon, was paid to his assignees. Whatever may have been the secret understanding between the parties, the insurance company cannot, upon their disclosure and upon the other evidence, be charged as trustee, without entirely disregarding their statements.\\nTrustee discharged.\\nTenney, C. J., Rice, Hathaway, May, and Davis, J. J., concurred.\"}"

me/478667.json

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+"{\"id\": \"478667\", \"name\": \"Hiram Wills versus Thomas Whittier & al.\", \"name_abbreviation\": \"Wills v. Whittier\", \"decision_date\": \"1858\", \"docket_number\": \"\", \"first_page\": \"544\", \"last_page\": \"547\", \"citations\": \"45 Me. 544\", \"volume\": \"45\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:54:34.813565+00:00\", \"provenance\": \"CAP\", \"judges\": \"Tenney, C. J., Rice, Appleton, and May, J. J., concurred.\", \"parties\": \"Hiram Wills versus Thomas Whittier & al.\", \"head_matter\": \"Hiram Wills versus Thomas Whittier & al.\\nA special law of 1850 required all warrants, alleging an oifence to have heen committed within the city of Augusta, to be made returnable before the municipal court of that city j and where this requirement was not observed, but, according to the direction in the warrant, the person charged was brought before and examined by the magistrate who issued it: \\u2014 it was held, that the warrant conferred no authority on the magistrate to hear and determine the subject matter of the complaint, or on the officer who made the arrest and return of the alleged offender, and in this particular they were trespassers, and liable to him in an action against them to recover damages.\\nDuring a vacancy in the office of the municipal judge, the recorder could not be ousted of his jurisdiction by inserting his name in a warrant as a witness.\\nTrespass for false imprisonment. The defendants filed separate pleas.\\nThe case, as made by the parties, is that, \\u201c on the day of February, 1854, the defendant Weston, issued a warrant against the plaintiff, in regular form, returnable before him or any other justice of the peace, in and for the county of Kennebec, upon a complaint in due form, charging the plaintiff with having committed the crime of perjury at Augusta, on the trial of an indictment at the preceding November term of the Supreme Judicial Court, held at Augusta, in and for the county of Kennebec.\\nThis warrant was directed to any coroner in said county, or any constable of the town of Rome in said county, there being no sheriff in said county, and was placed in the hands of the defendant Whittier, for service, who then assumed to act as constable of the town of Rome.\\nBy virtue of this warrant, the defendant Whittier, on the day of February, 1854, arrested the plaintiff at his dwellinghouse in Rome, but left him there on his agreeing to meet the defendant at Belgrade.\\nThe plaintiff met the defendant there, who then carried him before said Weston, in said Belgrade, before whom he also duly returned said complaint and warrant.\\nThe said Weston caused the plaintiff to be arraigned and tided on said complaint, he pleading not guilty. After said trial, the said Weston ordered the plaintiff to give bonds with sufficient sureties for his appearance at the then next term of the Supreme Judicial Court, for the county of Kennebec, in the sum of five hundred dollars, to answer to such indictment as might be found against him, and to be committed until said order was complied with; and ordered him into the custody of said Whittier.\\nThe plaintiff neglecting and declining to give bonds with sureties, as required, the defendant Whittier placed him under keepers, it being late in the afternoon, until the next day, and then, upon mittimus duly issued by said Weston, carried him to Augusta, and committed him with the mittimus to the custody of the jailer, by whom he was fully committed.\\nThe same day, the plaintiff gave the bonds required as aforesaid, with sureties, for his appearance at court, as above stated, and thereupon was discharged from custody.\\nHe attended the next term of said court to answer to any indictment against him, but none was found.\\nThe said Weston then resided in Belgrade, and was duly commissioned and qualified as a justice of the peace in and for said county.\\nThe said Whittier lived in Rome, and derived all his authority to act as constable from the following vote, passed at the annual meeting in Rome, in March, 1853, duly called for the choice of town officers: \\u2014 \\u201cVoted, that the collector constable berth go to the lowest bidder. Thomas Whittier bid off the collector and constable berth at two cents and two mills on a dollar for collecting.\\u201d\\nSubsequently, on the sixteenth day of March, he was duly sworn and gave bond as a constable is required by law, which bond was, on the same day, approved by the selectmen of said Rome.\\nThere was no judge of the municipal court- of the city of Augusta, at the time when the warrant was issued, he having resigned, and- the recorder of said court was a witness in said warrant.\\nIf, in the opinion of the Court, the plaintiff can maintain his action against defendants, or either of them, judgment is to be rendered for the plaintiff for such sum, as damages, as the Court shall assess; otherwise, the plaintiff to become nonsuit, and judgment is to be rendered for both or either of the defendants, as the case may be.\\nThe case was argued June term, 1855.\\nDrummond, for plaintiff.\\nBradbury & Morrill, for defendants.\", \"word_count\": \"1020\", \"char_count\": \"5915\", \"text\": \"The opinion of the Court was drawn up by\\nCutting, J.\\nThe warrant, under which the defendants justify their proceedings against the plaintiff, was made returnable before the magistrate issuing it, or any other justice of the peace within the county of Kennebec, for an offence alleged to have been committed at Augusta.\\nBy a special law of this State, passed in 1850, c. 303, \\u00a7 1, it is provided that \\\" all warrants alleging any offence to have been committed within said city, (Augusta,) shall be made returnable before said court, (municipal court.)\\nThe warrant was not made returnable before that court, although the offence was therein alleged to have been committed within Augusta, and, consequently, it conferred no authority on the magistrate to hear and determine the subject matter of the complaint, or on the officer to arrest and return the alleged offender before such magistrate, and, for their acts in this particular, they were trespassers.\\nDuring the vacancy in the office of the municipal judge, the recorder could not be ousted of his jurisdiction by inserting his name in the warrant as a witness, otherwise jurisdiction in all such cases might be the creature of a fiction.\\nAccording to the agreement of the parties, the defendants must be defaulted, and damages assessed at twenty dollars.\\nTenney, C. J., Rice, Appleton, and May, J. J., concurred.\"}"

me/479841.json

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+"{\"id\": \"479841\", \"name\": \"Charles V. Look vs. John P. Norton\", \"name_abbreviation\": \"Look v. Norton\", \"decision_date\": \"1901-01-29\", \"docket_number\": \"\", \"first_page\": \"547\", \"last_page\": \"551\", \"citations\": \"94 Me. 547\", \"volume\": \"94\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:17:25.470691+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Wiswell, O. J., Strout, Savage, Powers, JJ.\", \"parties\": \"Charles V. Look vs. John P. Norton.\", \"head_matter\": \"Charles V. Look vs. John P. Norton.\\nSomerset.\\nOpinion January 29, 1901.\\nExceptions. Crops. Possession. Contract for purchase of land.\\nAlthough an instruction to the jury may he erroneous, it does not follow that exceptions thereto should be sustained. It must also appear that the excepting party was prejudiced by the instruction complained of. A plaintiff is not prejudiced by an erroneous instruction, if the action cannot be maintained, independently of the instruction complained of.\\nA person in possession of real estate by the permission of the owner, and under a contract of purchase, is entitled to the crops gathered by him while his possession is allowed to continue. The relations of the land owner and the person in possession by his permission, under a contract of purchase, are analogous, so far as the ownership of the crops is concerned, to those of landlord and tenant, or mortgagor in possession and mortgagee.\\nSuch land owner cannot maintain trover for the conversion of crops by the person in possession, if severed by him while his possession is allowed to continue.\\nHeld; that in this case, the plaintiff did not retake possession of the farm until after the crops sued for had been gathered and taken away by the defendant under the permission received by him from the person who was in possession under a contract to purchase, and that a jury would not be justified in finding otherwise.\\nOn Exceptions and Motion by Plaintiee.\\nThis was an action of trover for the conversion of a quantity of apples and grass, cut by the defendant on the Coughlin farm in New Vineyard in July 1893. The defendant pleaded the general issue. The fee of the farm since November 8th, 1890, had been in the plaintiff, Look, by warranty deed. Look resided in Starks, about eight miles distant from the Coughlin farm. In November, 1890, Look gave one Orcut a bond for a deed of the Coughlin farm.\\nThere was no provision in the bond that Orcut should have possession, but he entered into possession of the farm and lived upon it. The plaintiff claimed that the conditions of the bond had been broken.\\nApril 13, 1893, Orcut let the farm to the defendant Norton by lease not under seal, and in the early part of July, 1893, defendant cut the grass, and later in the same fall gathered the apples growing upon said farm, for which grass and apples this action was brought.\\nIt was contended in defense that Look consented to Orcut\\u2019s occupation in the spring of 1891 and was informed of the lease to Norton before the grass was cut and acquiesced in it, and that he was thereby equitably estopped from asserting his title against the defendant.\\nThe court instructed the jury as follows:\\n\\u201cAnd I say to you, as matter of law, if you find the facts are supported by the evidence as contended for by the defendant, and that there was no negligence on the part of the defendant in not informing himself more fully than he did, under all th\\u00e9 circumstances, in relation to the true state of the title, and 'find that the plaintiff was informed either by Mr. Orcut himself or by his brother-in-law Mr. Kennedy, and he omitted to give any information, to make any objection to Mr. Orcut or to give any information to Mr. Norton as to the true state of the title, and if you-find that there was negligence on his part in omitting to do so and that Mr. Norton was misled to his prejudice, the plaintiff would be equitably estopped by his conduct from asserting his claim, at this time, thus to the prejudice of the defendant; and the rights of the parties would be precisely the same as though he had assented to it in advance \\u2014 it would amount to an acquiescence in it after-wards, \\u2014 a ratification of it by his conduct, if you find, his conduct to be as I have explained.\\nMr. Gower. \\u201cI understand that Mr. Look would not be under obligation to go over there eight miles to give this information to Mr. Norton?\\u201d\\nThe Court. \\u201cYou will consider whether there is any such obligation resting upon him under those circumstances or not. I do not say to you, as matter of law, that he was not under obligation to. It is a question of fact for you to consider whether he remained silent when he ought to have spoken, or whether there was negligence on his part in omitting to give Mr. Norton information.\\u201d A verdict was returned for the defendant.\\nTo all wbicb rulings and instructions and refusals to instruct, the defendant was allowed exceptions.\\nGeo. W. Gower, for plaintiff.\\nThe bond was a personal obligation, conveying no interest in the land to Orcut; hence he could convey none to Norton. Bussey v. Page, 14 Maine, 132; Shaw v. Wise, 10 Maine, 113; Newhall v. U. M. Pire Ins. Co., 52 Maine, 180; Cook v. Walker, 70 Maine, 232; Bailey v. Myrick, 50 Maine, 171; Niles v. Phinney, 90 Maine, 124.\\nEstoppel: Pom. Eq. Jur. \\u00a7\\u00a7 803-4-5-8-10, and cases; Martin v. Me. Cent. R. R. (7o., 83 Maine, 100.\\nS. J. and L. L. Walton, for defendant.\\nSitting: Wiswell, O. J., Strout, Savage, Powers, JJ.\", \"word_count\": \"1644\", \"char_count\": \"9249\", \"text\": \"Wiswell, O. J.\\nWe do not think that the instruction of the presiding justice, relative to the doctrine of equitable estoppel, was called for by the facts of the case, or that the necessary elements of such an estoppel existed. But, even if the instruction was on that account erroneous, it does not follow that the exceptions should be sustained. It must also appear that the excepting party, the plaintiff in-this case, was prejudiced by the instruction complained of. In this case we do not think that the plaintiff was thereby prejudiced, because, in our opinion, the action was not maintainable, independently of the doctrine of estoppel.\\nThese are the uncontroverted facts: the action is trover for the alleged conversion of the hay and a quantity of apples grown upon a farm, in the summer of 1893, the legal title to which was unquestionably in the plaintiff. He had purchased the farm for and at the request of one Orcut. He gave a bond to Orcut for the. sale of the farm to him, and Orcut gave back notes to the plaintiff for the purchase price. The bond contained no provision as to the possession of the farm, but it was understood by both of them that Oi'cut was to have possession, and shortly after the time of. the purchase Orcut went into possession, with the knowledge and consent of the plaintiff, and in accordance with the original understand ing between them at the time of the purchase of the farm by the plaintiff.\\nOrcut paid the first $50 note at or about the time when it became due, and caused the second $50 note, which became due in May, 1893, to be paid at its maturity. In the spring of 1893, Orcut, desiring to go to another part of the state temporarily to find employment at his trade as a stone cutter, let the premises to the defendant for the year. The defendant cut and hauled away the hay and gathered and took away the apples, under this authority derived from Orcut. These acts of the defendant constitute the conversions relied upon by the plaintiff.\\nUnder these circumstances, the plaintiff cannot maintain trover for the conversion of the hay and apples taken by the defendant, by virtue of the letting from Orcut, because the plaintiff did not own these crops. The relations of the plaintiff and Orcut were analogous, so far as the ownership of the crops is concerned, to those of landlord and tenant, or mortgagor in possession and mortgagee. While a person in possession of real estate under a contract of purchase, in some respects and for some purposes, is not a tenant, yet, so far as his ownership of crops severed by him while he remains in possession is concerned, his rights are similar to those of a tenant. In a certain sense he is a tenant at will. Lapham v. Norton, 71 Maine, 83.\\nThe landlord, or mortgagee out of possession, cannot maintan trespass quare clausum for any mere injury to the possession, because such an action being for an injury to the possession must be brought by the person whose possession has been injured. Lawry v. Lawry, 88 Maine, 482; Hewes v. Bickford, 49 Maine, 71. It is, of course, otherwise when the injury is to the realty itself. Leavitt v Eastman, 77 Maine, 117.\\nNo more can such landlord or mortgagee maintain trover for the conversion of crops taken by the tenant or mortgagor in possession, because such crops belong to the tenant, or mortgagor in possession, if severed by him while his possession is allowed to continue. The same principle necessarily applies between the owner and one who is in possession by permission of the owner under a contract to purchase. In this case the possession of the defendant was that of Orcut.\\nIt is true, that the plaintiff claims to have taken possession of the farm in the fall of 1892, and again in the spring of 1893. But we do not think that his contention, in this respect, is supported by the evidence, or that a jury would be justified in so finding. It would not be profitable in this opinion to discuss the evidence in this resp\\u00e9ct.\\nIt is sufficient to say that, after a careful examination of all the evidence, we are satisfied that the plaintiff did not retake possession of this farm until' after the crops sued for had been gathered and taken away by the defendant under the permission received by him from \\u00d3rcut.\\nExceptions overruled.\"}"

me/490453.json

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+"{\"id\": \"490453\", \"name\": \"Emily P. McFadden vs. Haynes and DeWitt Ice Company\", \"name_abbreviation\": \"McFadden v. Haynes & DeWitt Ice Co.\", \"decision_date\": \"1894-03-26\", \"docket_number\": \"\", \"first_page\": \"319\", \"last_page\": \"325\", \"citations\": \"86 Me. 319\", \"volume\": \"86\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:33:03.251892+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Peters, C. J., Walton, Foster, Haskell, Whitehouse, JJ.\", \"parties\": \"Emily P. McFadden vs. Haynes and DeWitt Ice Company.\", \"head_matter\": \"Emily P. McFadden vs. Haynes and DeWitt Ice Company.\\nLincoln.\\nOpinion March 26, 1894.\\nWaters. Ice. Flats. Colonial Ordinance, 1647.\\nThe right to cut ice upon public rivers and ponds results from the fact that, below the line of low water, the State owns the beds of navigable rivers and great ponds, and holds them in trust for the public. Everyone may cut ice below the line of low water as a public right.\\nNo such right exists above the line of low water. It does not exist upon non-navigable waters, private ponds, or flats.\\nIce companies operating upon navigable rivers do not have the right to deposit the snow, scraped from their ice, upon the flats of an adjoining owner without the latter\\u2019s consent.\\nOn exceptions.\\nAssumpsit for rent. The following is the material part of the report of the referee, Hon. Enoch Foster, to whom the action was referred, and to which the defendants excepted :\\n\\\"The plaintiff was the owner of a farm or parcel of land lying on the easterly side of the Kennebec river, in the town of Dresden, about seventy-six rods in width on the river; that there were flats belonging.to this land, and which the plaintiff owned, subject to all rights belonging to the public, between high and low water mark, of the following extent, viz: seventy-six rods in length up and down the river, seventeen rods wide at the northerly end, twenty-eight rods wide at the southerly end, and about twenty-three or twenty-four rods wide in the middle. The defendant company had leased of the plaintiff for the term office years, commencing August 17, 1880, and ending August 17, 1885, a strip of land one rod in width along the shore of the river, above high water mark, together with all rights and privileges of ice fronting thereon, the plaintiff reserving the right to cut the grass on the flats during the time of said lease.\\n\\\"The defendant company had used the flats for the purpose of dumping the snow which was scraped from the ice which .they cut from the river opposite the flats, but beyond low water mark. For no other purposes were the flats used by the defendant company during the continuance of the lease. The defendant company used the flats the two years after the expiration of the lease, being the two years for which suit is brought in plaintiff\\u2019s writ, just as they had previously done, the whole width of the flats if they wanted to, and since that time they had gone round them. There was evidence in the case of attempted negotiations for a renewal of the lease, or for some agreement upon a reasonable consideration to be paid plaintiff, but no adjustment was ever arrived at, concerning the flats.\\n\\\"The defendants at the hearing claimed that they were, only exercising such rights as belonged to them of right in the use of the flats, between high and low water, during the time sued for in the plaintiff\\u2019s writ; that they were in the exercise of a public right in cutting ice from the river below low waiter mark, and as incident to that right they had the right to clean or scrape the ice of snow and deposit the snow on the flats adjacent, and that the plaintiff\\u2019s ownership of the flats was subject to that right. . . . Upon the facts above found and stated in this report, I decide and detei'mine, as matter of law, that the defendants are liable in this action, the amount not being in controversy, but the right of recovery only for the use of the flats as above stated. And, I, therefore determine and award that the plaintiff recover of the defendant company the sum of one hundred dollars.\\u201d . . .\\nWeston Thompson, F. J. Baker, with him, for plaintiff.\\nBaker, Baker and Cornish, and Geo. B. Sawyer, for defendants.\\nA title to flats is a qualified title and is subject to the right of the public to use the water covering the flats for any purpose naturally incident to any of the great reserve rights, which the public hold in common, in the general waters of the stream. Weston v. Sampson, 8 Cush. 354.\\nBut although the riparian proprietor has an interest in the soil, it is not an absolute and unqualified ownership; hut so long as the flats so situated are left open, unoccupied by any wharf, dock, or other inclosure, so long as the tide ebbs and flows over them, they so far retain their original character and remain public. This double rule, to which the territory lying between high and low water mark may be subject, is not a novelty in the law, but an old and recognized principle.\\nThe rule, established by usage and judicial decision, has been, that although the ordinance transfers the fee to the riparian owner, yet until it is so used, built upon, or occupied, by the owner, as to exclude boats and vessels, the right of the public to use it is not taken away; but that whilst open to the natural ebb and flow of the tide, the public may use it, may sail over it, anchor upon it, fish upon it, and by so doing commit no trespass, and do not disseize the owner. Austin v. Carter, 1 Mass. 231. These rights originally were : 1. Night of navigating the waters over the flats. Weston v. Sampson, 8 Cush. 355 ; Gerrish v. Union Wharf, 26 Maine, 392; Commonwealth v. Alger, 7 Cush. 74; Austin v. Carter, 1 Mass. 231. 2. The right of fishing in the waters over the flats. Weston v. Sampson, supra-, Duncan v. Sylvester, 24 .Maine, 486; Moulton v. Libby, 37 Maine, 472 ; Bagott v. Orr, 2 B. & P.. 472.\\nCourts have uniformly recognized these public rights to the waters over the flats, though the same were not expressly enumerated in the ordinance as reserved public rights. These are: 1. Bathing. Fay v. Salem Aqua. Ill Mass. 27; Reservoir Co. v. Fall River, 147 Mass. 558, 565. 2. Skating. Same cases. 3. The right to use the surface of the water over the flats when frozen the same as when unfrozen for public travel, including winter ice roads, and the driving and stopping of horses and teams. French v. Camp, 18 Maine, 433 ; State v. Wilson, 44 Maine, 25 ; Roxbury v. Stoddard, 7 Allen, 167. 4. The right to cut and take ice in common from the main river, which is essentially a modern right and in the amount of capital and men employed, and its importance as an industry, is perhaps the most available public right now existing in the navigable rivers of Maine. Gould on Waters, \\u00a7 191; Woodman v. Pitman, 79 Maine, 456.\\nThe court has recognized the right of the boat or vessel to anchor even to the soil of the flats, to let the boat remain resting on the flats themselves while the tide is out, and to use the soil of the flats both for mooring vessels and for lading and unlading them when the flats are bare. Gould on Waters, \\u00a7 20. The right to moor vessels and discharge and take in cargoes and the use of the soil for these purposes is recognized in Stale v. Wilson, 42 Maine, 24. In Gerrish v. Union Wharf, 26 Maine, 392, it was held, that the right to use the waters covering flats for navigation purposes was not abridged by the ordinance. That vessels had a right to pass over the flats when covered and to-remain on them for commercial purposes when bare from ebb to flow of the tide.\\nSo the right of the public to move and stand upon the flats, for the purpose of fishing is recognized as an incidental right. Packard v. Ryder, 144 Mass. 440. In like manner, we claimi that as essential to the public right of taking ice from the main, river is involved the right of the public to pass and repass over the ice covering the flats with the same freedom as on the maim river, including, wherever it might be necessary, the right event to haul the ice over the flats even when bare.\\nThe ordinance of 1647 made no alteration in the use of places there described \\\"as flats, while they were covered with water,\\u201d' &c. Com. v. Alger, 7 Cush. 53 ; Dyer v. Curtis, 72 Maine,, 184, and cases.\\nThe rights claimed by the defendants, in behalf of the public,, do not involve any use of the soil itself of the flats, but only the surface of the wTater in its frozen state. Any use of the ico which would be authorized when the tide was up would also be-authorized when the tide was out so long as the ice remains-covering the flats.\\nAs the fisherman has the right to plant his boat itself, whichi is one mode of artificial obstruction, even upon the soil of the* flats for the purpose of taking his fish, and even of digging u,p> the soil for the same purpose, could there be any doubt of life-right when the water was frozen to plant an ice boat or a fisherman\\u2019s hut upon the frozen surface in order that the full beneficial enjoyment of the public right of fishing? The temporary obstruction of meltable snow answers exactly to this analogy, and we submit it is a clear right in the public as incident and reasonably necessary to the full beneficial enjoyment of the admitted right of the public to take ice.\\nIt will be further noted that this is a right of vastly greater public importance commercially, than the fisherman\\u2019s right to build his hut, because if the ice cutter has not this essential right to scrape snow onto the unused flats, when covered, with frozen water, then he must use the eutable ice of the main river for this purpose, and in that way abridge by many thousands of acres the available ice supply of all our navigable rivers. Now a single acre of eutable ice twelve inches in thickness will yield a thousand tons of ice, and the loss of this available tonnage all up and down the river would be of immense commercial value, and would be just so much property taken from the public and given to the private individuals upon the shores. We submit that policy in law' is to increase rather than restrict public rights in all navigable waters whether frozen or unfrozen.\\nSitting: Peters, C. J., Walton, Foster, Haskell, Whitehouse, JJ.\", \"word_count\": \"2254\", \"char_count\": \"12405\", \"text\": \"Walton, J.\\nThis is an action to recover rent for the use of flats on the easteidy shore of the Kennebec river, in the town of Dresden. The action has been referred, a hearing had, a report made, and the report accepted ; and the cas\\u00e9is before the law court on exceptions to the acceptance of the report. The award was in favor of the plaintiff and the Ice Company excepts.\\nThe only question argued by' counsel, and the only one we find it necessary to consider, is whether an ice company, operating upon one of our public rivers, has a right to deposit the snow scraped from its ice upon the flats of an adjoining owner, without the latter's consent.\\nWe think the question must be answered in the negative. No case has been found which sustains such a right, and we do not think it can be maintained upon principle.\\nThe argument urged in its support rests upon a supposed analogy between the rights of fishermen and the rights of ice-cutters. It is. claimed that, if a fisherman may enter upon another's flats, and anchor his boat there, and dig up the soil in summer, or, in winter, place an ice boat or a hut upon the frozen surface, an ice-cutter, by analogy, should be allowed temporarily to incumber another's flats with the snow scraped from his ice.\\nWe can not admit the soundness of this argument. Property rights can not be established by analogy alone. The fisherman has a right to go upon another's flats to take his fish, because the ordinance of 1647, which gave to the adjoining owner the flats in front of his land, expressly reserved the right of fishery. The fisherman has a right to go upon another's flats because it is one of his reserved rights. But no such right was reserved to the ice-cutter. His right to cut ice upon our public rivers and ponds results from the fact that, below the line of low w-ater, the state owns the beds of navigable rivers and great ponds, and holds them in trust for the public. Below the line of low water every one may cut ice. It is a public right. Above the line of low water, no such right exists. Nor does it exist upon non-navigable rivers or private ponds. Nor does it exist upon flats. And we fail to perceive how an ice company, operating upon one of our navigable rivers, can possess the right to deposit the snow scraped from its ice upon the flats of an adjoining-owner, without the latter's consent. It is not among the reserved rights mentioned in the ordinance of 1647, nor, so far as we can discover, has the right thus to incumber another's land been recognized or affirmed by judicial decision, either in this country or in England. It is the, opinion of the court that such a right does not exist.\\nExceptions overruled.\"}"

me/493777.json

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+"{\"id\": \"493777\", \"name\": \"Howard M. Cook, Trustee vs. Thomas C. Stevens et als.; Margaret Stevens Clark vs. Grace B. Stevens et als.\", \"name_abbreviation\": \"Cook v. Stevens\", \"decision_date\": \"1926-08-10\", \"docket_number\": \"\", \"first_page\": \"378\", \"last_page\": \"385\", \"citations\": \"125 Me. 378\", \"volume\": \"125\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:01:40.564221+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Wilson, C. J., Philbrook, Dunn, Deasy, Sturgis, Barnes, JJ.\", \"parties\": \"Howard M. Cook, Trustee vs. Thomas C. Stevens et als. Margaret Stevens Clark vs. Grace B. Stevens et als.\", \"head_matter\": \"Howard M. Cook, Trustee vs. Thomas C. Stevens et als. Margaret Stevens Clark vs. Grace B. Stevens et als.\\nPenobscot.\\nOpinion August 10, 1926.\\nFirst Bill:\\nH. M. Cook, for complainant.\\nHenry W. Mayo, for respondents, Thomas C. Stevens and Margaret Stevens Clark, and\\nMatthew Laughlin, pro se, as guardian ad litem for three minors, Chauneey S., Stanton W., and Gretchen Todd, and for Stanton W. Todd, Admr., and Stanton W. Todd, and Dorothy M. Todd.\\nSecond bill:\\nHenry W. Mayo, for complainant.\\nHoward M. Cook, pro se.\\nFrederick B. Dodd, for Grace B. Stevens.\\nMathew Laughlin for same parties as in first bill.\\nSitting: Wilson, C. J., Philbrook, Dunn, Deasy, Sturgis, Barnes, JJ.\", \"word_count\": \"2612\", \"char_count\": \"15345\", \"text\": \"Dunn, J.\\nThe will of Joseph C. Stevens, following the usual introductory clause,' nominates, an executor and trustee, makes minor legacies, and proceeds, in abbreviated form where of less intimate connection with meaning in these two suits, as follows:\\n\\\"After the few bequests all the remainder of my estate, . I give . . . \\u2022 in trust,\\\" while any son or'any annuitant of mine lives, for the annuities hereby created and for the bequest conditionally given, and to divide the income then remaining \\\"among my living sons and the families of' such of my sons as may have deceased, a share to each son, and an equal share to each family of a deceased son who may leave one or more children,\\\" until the appointed time arrives at which the trust is to terminate. .\\nWhat comes next is:\\n\\\"I give to the widow of any deceased .son without one.or more children by any one of my sons.two thousand dollars.....\\\" .\\nThen are these.words:\\n\\\"And after the termination of this trust I direct that all the remainder of my estate be equally divided among my grandchildren share and share alike. . . .'\\\"\\nThere is inhibition against the transfer of claim or rights, not restricted to beneficiaries of the trust, but applied generally to beneficiaries throughout its period, on penalty of forfeiting.\\nIt was a spendthrift trust (Robert v. Stevens, 84 Maine, 325), limited to the death of the last son, which occurred in this year, 1926. The trustee was authorized to lease the real estate in all or part. \\\"Unproductive estate,\\\" the will impliedly thus comprehending but realty, could have been sold under court license, and personal property might have been sold, and the proceeds from either 'source reinvested.\\nA will speaks from the death of the testator, but for the purpose of determining a testator's intention from the language used in a will, it should be construed as an entirety, and every part be reconciled and given effect if possible, as of the date of its execution, circumstance illumined by the surroundings that were then extrinsic.\\nIn 1881, when this will was made, its maker was in widowerhood. His eldest son had died leaving wife and child surviving. There were only three living sons, of whom two, Frederick and Thomas, respectively of name, were married; the record is indefinite if ever the third had wife; certain is it that he left no descendant. Mae was the single child of Frederick. Thomas had two children, Grace and Charles, and no more.\\nAnd so the testator was relatived, less than two years afterward, when he died.\\nOf estate, the personalty amounted to about $8,000; the realty was certain Bangor stores. The net annual income from both real and personal was approximately $3,000; since then increased rentals have quadrupled that.\\nThe annuities and the conditional bequest are aside. No son of the testator is living now, so the trust is ended.\\nFrederick's daughter Mae, who on marriage became Todd, lived longer than her father. She was outlived by her husband and four children. Grace Stevens, now surnamed Clark, the daughter of the last of the sons, still survives. Charles, her brother, died in 1888, aged twelve years. Under the statute then in force, propinquity in kin and heirship found only the boy's father, and when that father died without leaving a will, the law cast the inheritance exclusively from him to his daughter, Grace Stevens Clark.\\nTwo cases are presented for consideration. The first concerns accrued and undistributed income; the other the corpus of the estate.\\nIn the administration of the trust, the assumption seems to have been, when a son died not survived by offspring, that the income as to him should cease, on the ground that the will constituted one entire trust scheme, subject to change by future death, among living sons and the child-embracing families of dead ones. But when in 1925 Mrs. Todd died intestate, whether and who of her husband and children were entitled to share in the income from the trust fund became of question.\\nWill construction cases fill a good-sized volume, but no chart more definitely marks a channel that can be depended upon to follow, than testamentary words derive their particular significance from the context. One will may or not be so expressed as to furnish a guide toward the same conclusion in another. Different testators may speak in much the same verbiage from different viewpoints to different purposes; it being as true today as when the epigram was penned, \\\"that no will has a brother.\\\"\\nThe goal of interpretation is not the intention simply, but the legal consequences of the indicated intention of the individual testator. If it be uncertain, his expressed or implied meaning must be gathered as a fact, gathered from what he said in the whole instrument, read in the light which the position that was attending continues to shed. These principles of law, generally adopted by all courts, lead to the point which opposite arguments present by logic and analogy.\\n\\\"Family,\\\" to speak in the singular of the word which the will pluralizes, was applied in the initial using even broader than synonymously with kindred or relations by consanguinity. Obviously, the testator was desirous of doing impartially among living sons and the families of dead sons, where the dead left, surviving, one child or more; each son and family to take in the same proportion. Transposal of the order of clauses disencumbers testamental design from the cloud of words with which it is covered. To every woman widowed by the death of any son of his, the testator gave absolutely and in the same quantity, not from the income let it be noted, but by charge on the body of the trust. The income, apart from that apportioned in other respects, was for the living sons and the family of a son dead leaving child or children. Where there is childless widow, there shall be bounty, definitely said the \\\"testator in his way of defining. The text plainly implies the inclusion of every widowed mother. For every widow having no child, bequest from the corpus. The income, with no accumulating feature and limited to lives in being, for each living son and the family of any son dead; family here embracing widow and at least one child, in differentiation of a widowed mother from a widow merely. Of course, were there no widow, then child or children would be family, in the survivorship and stead of a dead son. For them all, as the case might be, the will contained provision.\\nOf Frederick, as has been seen, his wife and the child were the survivors. They two made up the family, which the widow's death narrowed. Before or after that widow's death, in these proceedings it is inconsequential which, but at some time Frederick's daughter married. She bore children. The daughter-mother died, leaving husband and children. That husband is not a member of his deceased wife's father's family.\\nBy implication, when the term was used first, the sense of family in relationship to a dead son's family was a sons children, plus his widow by right of representation, for the testator did not prefer a childless widow before a widowed mother; his solicitude'and bounty extended to both. When the widow of the son Frederick had died, her surviving child was yet of that son's family, though the widower was not, because of absence in the varying shade of thought of purpose to include relations by affinity. Death takes Frederick's child. What of the income? Shall it augment the shares of living sons? No; the portion for them stands allotted. Shall the income be allowed to accumulate? No; for the will says to pay. Pay to whom? And the will answers, Frederick's family. Family is a flexible term; the whole human race constitutes the human family. The testator, however, here speaks as of descent. Those who were the family, widow and child and then child alone, are gone, but the trust lives and moves to another generation; that is to say, to Mrs. Mae Todd's children, for Frederick's family.\\nIn the proper import of the term, to come now to the other inquiry, no remainder exists. Property is remaining, and of this the will makes disposition, but there is no remainder properly so termed: There are, however, vested interests in the nature of remainders in that which is remaining, chiefly the original real estate, and where these were vested is what the present\\\" asking is.\\nThe trustee took the estate which the purposes of the trust required. Deering v. Adams, 37 Maine, 264; Palmer v. Est. of Palmer, 106 Maine, 25; 2 Jarman on Wills, 1156. The exigencies, though mainly the trust was tq preserye income, necessitated the title to the personal property and ,tbe fee> simple of the real, in trust, for the paying of bequests to childless widows; ,not from the income, as has been observed, but from the corpus of the trust.\\nWhen the mortal lives to which the objects of the trust were limited had ended, on which event the duties of the trust became passive and the trust itself dry, the property remaining passed to the testator's grandchildren.\\nBut to whom of them and when?\\nIt is contended that if the interests were not vested in the grandchildren before the ending of the trust, the children of a grandchild who is then dead will take nothing, and as there is no showing that the testator so intended, therefore the vesting was before that time.\\nSince the will as a whole is the base on which its utility must stand or fall, the scanning again of that document with thoroughness may ease the way to understanding its true intent.\\nThere are in the will no conventional words of gift to the grandchildren. The disposal is by direction to divide what remains among the grandchildren. Quite as important, other than that direction, there is no gift to anyone, and the testator never contemplated intestacy.\\nSaid the testator in effect, when there is not longer need of my estate for revenue, which will be after my sons have been incomed till the last is dead, the residue of my estate is to be \\\"equally divided among my grandchildren share and share alike.\\\"\\nAdverbs of time, as \\\"after,\\\" in a connection such as this, are construed to relate to the time of the right of use, possession, and enjoyment, and not to that of vesting interest, unless from the will' it appears that the testator meant variantly. A turning point, or controlling event in the disposition of property by a will, generally, where there is not express or implied intention to the contrary, will be construed to relate to the time of the death of the testator.\\nWhen this testator wrote, and when he died, there were only four grandchildren. None came afterward, but two died before the trust terminated. Their disinheritance \\\"would not be presumed to be intended . . . . unless such intention is clearly manifested.\\\" Teele v. Hathaway, 129 Mass., 164, 166. \\\"In ninety-nine cases out of a hundred the intention of the testator is that Iris bounty should be transmitted to the children or family of the beneficiary, otherwise indeed full effect is not given to it.\\\" Chess's Appeal, 87 Pa. St., 362, 365. A devise or bequest to children, though they are not personally named, gives a vested interest where the contrary intention is not shown by the will. Gibbens v. Gibbens, 140 Mass., 102. The rule above stated applies, in general, to one's own grandchildren as beneficiaries. The collective name distinguishes them beyond the possibility of mistaldng their identity. The calling of their names is not one by one, but all at once. When legatees are designated by name and the character of the estate is indicated by the words, \\\"in equal parts share and share alike,\\\" there is a strong presumption of testamentary intent that the legatees shall take as individuals. Strout v. Chesley, 125 Maine, 171. And, in parity, \\\"where the limitations are to the direct descendants of the testator, it is a circumstance that warrants the inference that vested, rather than contingent remainders were intended to be created.\\\" Carver v. Wright, 119 Maine, 185. Look into Belding v. Coward, 125 Maine, 305, 133 Atl., 689, also.\\nThe time when the property, after the provisions for the first generation and their families and widows were fulfilled, should pass in title and possession to the second generation, was not inseparably connected with the testator's appointment of the time of vesting, but in probability was with him a matter of less moment. Both interests, the present and the future, vested, the one in right and title, the other in right, at the same instant of time. First, the trust: When this to an end should come, which is but a change in expression, without a change in meaning, from after the termination of the trust, and \\\"dividing\\\" could not have been before the trust had run, the defeasible estate which the trustee had had being then determined, the estate which was left was for the grandchildren. Grandchildren then living? The will replies, \\\"My grandchildren.\\\" And they were those the testator knew and seemingly expected would outlive the trust. But, whether outliving the trust or not, the grandchildren whom he knew.\\nBy using the word \\\"grandchildren,\\\" this testator did not classify, but distinctioned the sons' children living at the epoch of his own death. In his speech he comprises them similarly to his sons, saying: \\\"After the trust is over and gone, when none of my children longer lives, then give the property to these grandchildren of mine.\\\"\\nConclusion is that the defeasible estate which the original trustee took in trust, and which passed to the trustee in succession, determined at the ending of the trust, and passed to the grandchildren of the testator who were alive when he died, to which grandchildren an immediate fixed and descendible and inheritable right to have what was remaining, and enjoy it in the broadest estate known to the law, by heads and not as a._class, was made by the testator. To them, or the legal representatives of those deceased, the personal estate should be delivered; the will passes the real estate to the living and to them having the estates of the dead.\\nWhile a system of interpreting one ambiguous will cannot be built up by means of the scaffolding from another, but must be constructed and erected on the plan of the will wherein uncertainty of meaning is, still on the former framework there may be guiding marks. See Deering v. Adams, supra; Pearce v. Savage, 45 Maine, 90; Shattuck v. Stedman, 2 Pick., 468; Cummings v. Cummings, 146 Mass., 501; Minot v. Purrington, 190 Mass., 336.\\nDecrees as this opinion indicates, the amount to the trustee for his fees and expenses, for allowance in his administration account, to be settled below.\\nSo ordered.\"}"

me/493988.json

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+"{\"id\": \"493988\", \"name\": \"George K. Cook vs. Daniel S. Curtis et als.\", \"name_abbreviation\": \"Cook v. Curtis\", \"decision_date\": \"1925-12-11\", \"docket_number\": \"\", \"first_page\": \"114\", \"last_page\": \"117\", \"citations\": \"125 Me. 114\", \"volume\": \"125\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:01:40.564221+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Wilson, C. J., Philbrook, Dunn, Deasy, Sturgis, Barnes, JJ.\", \"parties\": \"George K. Cook vs. Daniel S. Curtis et als.\", \"head_matter\": \"George K. Cook vs. Daniel S. Curtis et als.\\nWaldo.\\nOpinion December 11, 1925.\\nAndrews, Nelson & Gardiner, for plaintiffs.\\nClyde R. Chapman, for defendants.\\nSitting: Wilson, C. J., Philbrook, Dunn, Deasy, Sturgis, Barnes, JJ.\", \"word_count\": \"1180\", \"char_count\": \"6779\", \"text\": \"Sturgis, J.\\nTrespass quare clausum for entering and cutting trees on land owned by the plaintiff as purchaser of the equity of redemption from the original mortgagor.. The defendants are mortgagees under a purchase money mortgage given by the plaintiff's grantor, and in their brief statement set up this fact as a bar to the action. At the trial the presiding Justice ruled, for the purpose of the trial, that the fact the defendants were mortgagees did not justify this alleged trespass, and the cas\\u00e9 is before this court on the exception taken to this ruling. Other exceptions taken at the trial are not pressed and need not be considered.\\nThe bill of exceptions discloses that on November 14, 1921, James H. Cook, of Montville in Waldo County, bought a parcel of land with the buildings thereon, situated in Montville, and on the same day mortgaged the premises to the three defendants in this suit. The mortgage, in the usual form, but containing no agreement as to possession by the mortgagor, was duly recorded in Waldo Registry of Deeds. On April 10, 1922, the mortgagor conveyed the premises, subject to this mortgage, to the plaintiff in this action, and that deed was duly recorded on the same day. Nearly twenty months later the mortgagor, without any authority from his vendee, the owner of the equity, conveyed to the defendant, Daniel S. Curtis, by deed dated December 1, 1923, all soft wood and poplar standing on the premises. The consideration of this conveyance was fifty dollars, and was paid by crediting that sum upon the mortgage. Two weeks later, December 15, 1923 according to the declaration, the defendants entered the premises and cut and carried away thirty-five (M) thousand feet of standing timber. The bill of exceptions states, and we must therefore assume, the entry was peaceable, the conditions of the mortgage had been broken, and the breach continued at the time of the entry.\\nIt is familiar and settled law in this State, that upon the delivery of a mortgage of real property, the legal title and right of possession, unless otherwise agreed, vest in the mortgagee subject to the defeasance, Allen Co. v. Emerton et al., 108 Maine, 221, 224; Am. Ag. Chem. Co. v. Walton, 116 Maine, 459. Hence, in the absence of any express or implied stipulation to the contrary, the mortgagee has the right to take possession of the mortgaged property at any time either before or after breach of condition. Brastow v. Barrett, 82 Maine, 456; Bank v. Wallace, 87 Maine, 28; Am. Ag. Chem. Co. v. Walton. supra; R. S., Chap. 95, Sec. 2. The gist of the action of quare clausum is the unlawful breaking and entering, and all other allegations are simply laid as aggravations of the trespass. It is, therefore, incumbent upon the plaintiff to prove such unlawful entry. Dingley v. Buffum, 57 Maine, 379; Hatch v. Rose, 107 Maine, 184; Rangeley v. Snowman, 115 Maine, 412, 416.\\nIt is also settled law in this State that a mortgagor, not entitled by agreement, express or implied, to retain possession, cannot maintain trespass quare clausum against a mortgagee who enters under his mortgage. Blaney v. Bearce, 2 Maine, 132; Gilman v. Wills, 66 Maine, 273; Jones v. Smith, 79 Maine, 446. The same rule obtains in New Hampshire. Chellis v. Stearns, 22 N. H., 312; Furbush v. Goodwin, 29 N. H., 321. Also in Massachusetts. Lackey v. Holbrook, 11 Met., 458. As is said in Jones on Mortgages, 3d. Ed., Vol. 1, Sec. 675: \\\"The gist of the action is unlawful entry, but the entry of the mortgagee in such case is lawful.\\\"\\nThe motives or purposes for which the entry is made are not material. In the instant case the mortgagees had a right to enter the premises for breach of condition, or regardless of breach under the statute. (R. S., Chap. 95, Sec. 2). \\\"If (they) had a right to enter for such purpose, the entry was lawful, though (they) entered without executing their purpose or even for other purposes.\\\" Blaney v. Bearce, supra. Breaking and entering by the mortgagee to effect a real estate attachment was held to be justified by the mortgage in an action of quare clausum by the mortgagor in Lackey v. Holbrook, supra. In Chellis v. Stearns, supra, it is held, \\\"no beneficial results are likely to follow from holding that a man may justify his entry upon mortgaged premises or not according to the motives or purposes which lead to it.\\\"\\nThe decision in Marden v. Jordan, 65 Maine, 9, is not in conflict with these conclusions. In that case the evidence clearly indicated that the mortgagor was in possession of the mortgaged premises, not under the mortgage, but by virtue of a contract with the mortgagee creating the relationship of landlord and tenant between the parties. The action of quare clausum fregit was sustained as an action by a tenant against his landlord, not as mortgagor against mortgagee.\\nIn this case, the deed from the original mortgagor to the defendants, attempting to convey the standing timber was a nullity. They acquired no rights or relationships under it. They remained as before, mortgagees only. The plaintiff's rights were not affected by it, and his status in this action is that of a mortgagor and no more. The rule in Marden v. Jordan does not apply. The defendants had the right to enter as mortgagees, and the law presumes their entry to be in that character and under that title. Benson v. Bowles, 8 Wend. (N. Y.), 175; McGrady v. Miller, 14 Vt., 128. The case as stated in the bill of exceptions is barren of facts rebutting this presumption. We think the fact that the defendants were mortgagees is a defense to the action, and the ruling in the court below to the contraiy is error.\\nThe plaintiffs, however, contend that though the entry be lawful, the cutting of the timber was waste, for which an action on the case will lie, and urge that the suit be treated as case in the nature of waste, and recovery allowed. This transformation cannot be accomplished. A mortgagee is undoubtedly liable for waste; Whiting v. Adams, 66 Vt., 679; 25 L.R.A., 598; Jones on Mortgages, Vol. 2, Sec. 23; 19 R. C. L., 331; Not. 4 Am. St. Rep. 69; and if the cutting of the timber in this case be waste, which cannot be determined from the facts stated, the defendants would be liable in a proper action. Not in this action, however. The declaration cannot be amended to sound in case. Such an amendment would be more than a matter of form. It would change the nature of the action which is not allowable. Lawry v. Lawry, 88 Maine, 482.\\nUpon the foregoing conclusions, the entiy must be,\\nException sustained.\"}"

me/570057.json

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+"{\"id\": \"570057\", \"name\": \"Edwin Beaman versus John Whitney & als.\", \"name_abbreviation\": \"Beaman v. Whitney\", \"decision_date\": \"1841-07\", \"docket_number\": \"\", \"first_page\": \"413\", \"last_page\": \"421\", \"citations\": \"20 Me. 413\", \"volume\": \"20\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:24:46.022850+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edwin Beaman versus John Whitney & als.\", \"head_matter\": \"Edwin Beaman versus John Whitney & als.\\nWhere a large number of persons, by an agreement in writing, associated, together to form a company for the establishment of a store to deal in English and West India goods, to be conducted under the direction of a board of managers, a paid of whose duty was \\u201c to provide a store for the company,\\u201d the managers have power to purchase a store, and land whereon to place it, and to give the notes of the company to secure the payment of the consideration.\\nAnd if the only grantees named in the deed are \\u201c Whitney, Watson & Co.,\\u201d the name under which they conducted their business, Whitney and Watson being persons well known and members of the company; if the other persons embraced under the general term, company, could not take as grantees, Whitney and Watson could, and they would hold for themselves and those associated with them. This would be a sufficient consideration for the notes given for the purchase money.\\nThe persons liable to the payment of the notes, besides Whitney and Watson, are to be ascertained by proving who constituted the company at the time the notes were made, and embraced all who had then signed their agreement of association.\\nAs some of the persons sued had not joined the company at the time, they cannot be liolden as defendants. But under the St. 1835, o. 178, \\u00a7 4, the plaintiff may amend by striking out their names, on payment of their costs, to be taxed severally, after issue has been joined, and the case has been opened for trial,\\nIf the acknowledgement of a deed be taken by a grantee and certified by him as a magistrate, it is hut a void acknowledgement, leaving the deed operative between the parties.\\nThis was an action of assumpsit upon a promissory note in the following terms: \\u2014 \\u201c Brooks, June 10,1837. For value received we promise to pay Jacob Roberts, or bearer, seven hundred and twenty-five dollars, within one year from October next and interest. Whitney, Watson & Co.,\\n\\u201c by R. W. Fthes, Agent.\\n\\u201c Attest: John Fogg.\\u201d\\nThe cause coming on for trial, the plaintiff, to maintain the issue on his part, introduced Reuben W. Fthes, having first released him from all liability for having signed the note as agent, who testified that at the time said note was given, he was acting as the agent of the firm of Whitney, Watson & Co. and exhibited his certificate of agency; that he had no special power to. purchase real estate on the account of said company; that they were not dealing in real estate, and that such dealing was no part of their object, which was dealing in merchandize ; that the consideration'of the note aforesaid, and two others of the same amount, was a conveyance from Jacob Roberts to \\u201c Whitney, Watson & Co.\\u201d of a store and land about it, said conveyance being produced, and being witnessed by and acknowledged before the same Michael Chase, who is one of the defendants; that the affairs of said company were under the direction of a board of managers annually chosen, which board at the time of the conveyance, consisted of Michael Chase, Thomas Watson, and Ebenezer Page, said Chase and Watson being two of the defendants ; that he signed said notes by direction of said Chase, said Watson and Page being present or thereabouts; that he understood said Watson and Page as assenting thereto, and that he should not have signed them had he known that they objected; that one of said notes was paid and taken up when if fell due, and that the money, or four hundred dollars of it, was raised by -an assessment made in September,. 1837, upon the shares of the members of said company, and balance of assessment went to pay for goods-in Boston; that the premises have been in the occupation of said company from the time of said conveyance to the present time; that said conveyance and note's were executed the same day that an appraisal of said property was made by Johnson,' But-man, and Dodge.- Fthes, further testified that at the time the-notes were given by the firm of Whitney, Watson & Co., the following persons, viz.'John Whitney, Thomas Watson, Edmund Smith, Solomon Stone, Ebenezer Crockett, George Fthes, Wm. Hill, Joseph Whitney, Solomon Boulton, Judah Gilley, Michael Chase, Hill Clements, Tisdale D. Clements, Wm. Ford, Wm. Ford, Jr., and others not parties to this suit, had signed the paper, called the constitution of the company; that the other defendants in this suit joined said company subsequently.\\nThe constitution provided for the establishment of a store of \\u201c English and West India goods;\\u201d that the majority of votes should govern the proceedings; that there should \\u201c be chosen annually by ballot an agent, or agents, and also two managers, whose duty it shall be to provide a store for the company, employ a clerk, and give the agent or agents the necessary directions relating to the business of the company,\\u201d and contained other provisions respecting conducting their affairs.\\nSaid Fthes further testified that the vote to accept a member was usually taken at the next regular meeting after his signing the constitution; that the following named persons had not been voted into the firm at the time of. giving said note, viz. Hill Clements, Tisdale D. Clements, Win. Ford, and Wm. Ford, Jr.; that the assessment voted in June, 1837, was for 725\\u2019, and was the only one ever voted; that it was his- impression that the assessment was made for the purpose of paying one of these notes, although it did riot so appear upon the records, and that that sum had been appropriated by him as before stated without any special directions, and that' he thought that, other members of the company from whom he collected assessments understood it as he did, but does not know the fact.\\nHe further testified, that Collins Puttee, David Pattee, Daniel Pierce, John Fogg, and Ezra Manter, defendants, who joined after said notes were given, were severally assessed to pay their part of said assessment. He further testified, that he knew of but two of the company being consulted as to the expediency of the purchase, one of whom, George Fthes, decidedly objected to the purchase, and the other, E. Smith, consented, if it was the wish of the company. The plaintiff then introduced one Wellington J. Roberts, who testified, that he wrote the deed aforesaid, and that it was made to Whitney, Watson & Co. by direction of said Chase and Watson, who were both present, as was also John Fogg, who witnessed the note; that the deed was delivered to said Watson; that he was present at the meeting in June, 1837, and understood the assessment then made to be for the purpose of paying one of these notes; that he joined the company subsequently to the giving of said notes, and was assessed for his part of the first note, and paid it; that said Fthes was acting as the agent, of the company at the time these notes were given, and was in the habit of signing bills and receipts in the same form as the notes were signed; that it was the rule of the company not to transact any business at any meeting unless a majority of the company, in interest, were present; that the value of said store and land was fixed by an appraisal made by Johnson, Butman, and Dodge, agreed upon between. Roberts the grantor, and the managers, and that at the appraisal, Chase, Watson, and Page appeared and acted for the company, they being the board of managers at that time.\\nThe plaintiff then introduced as a witness H. H. Johnson, who testified that he, together with Butman and Dodge, made the appraisal aforesaid ; That Chase, Watson, Page, Fthes the agent, and Roberts the grantor, were present, and that Watson managed the most of the business.\\nThe defendants then introduced Abner Ham who testified, that in July, 1839, he heard the plaintiff say that at the time the note in question was transferred to him by Jacob Roberts, he knew what the consideration of said note was, and how the deed from said Roberts was written, and that said conveyance of said store and land was the consideration of said note.\\nIt did not appear that the company ever acted in relation to the purchase at any meeting of the company.\\nIt is agreed that either party may refer in the argument of this case to the books of records of said company commencing January 13, 1836. The cause was thereupon taken from the jury, the parties agreeing that if upon the foregoing evidence the Court should be of. opinion that the plaintiff is not entitled to recover, he is to be nonsuit, and defendants to recover their costs. But if the Court should be of opinion that the plaintiff is entitled to recover against any of the defendants, judgment is to be rendered in his favor against such as, in the opinion of the Court, are liable, if plaintiff can maintain his action against part of defendants only, and plaintiff to have leave to discontinue as to the residue by paying them their costs, if the Court will grant leave under the provisions of the statute of 1835, to discontinue against one or more defendants after the testimony in the action is closed to the jury, and before it is submitted to them.\\nW. G. Crosby for the plaintiff.\\n1. The purchase of the store was made by the direction of the managers, who acted within the scope of the authority given them, \\u201c whose duty it shall be to provide a store for the company.\\u201d They had power to purchase or to hire a store, as they deemed most for the interest of the company.\\n2. But if they had not authority to purchase, the company have ratified their acts, by taking up the first note, when it fell due; by assessing on the members admitted after the purchase their share of the purchase money for the store; by causing their deed to be recorded : and by occupying the premises.. Paley on Agency, c. 3, part l, \\u00a7 2; Herring v. Polley, 8 Mass. R. 119 : Pratt v. Putnam, 13 Mass. R. 361; Amory v. Hamilton, 17 Mass. R. 109 ; Lent v. Padelford, 10 Mass. R. 236.\\n3. They are bound as partners by the acts of their managers. The assent of the managing committee is binding on the whole company. Odi\\u00f3me v. Maxcy, 13 Mass. R. 178, and 15 Mass. R. 39; Woodward v. Winship, 12 Pick. 430. And their ratification binds the partnership, even if the act was under seal. Cady v. Shepard, 11 Pick. 400; Collyer on Part. 259, note 95, and cases cited.\\n4. The deed passed the property to all the individuals composing the firm of Whitney, Watson & Co. at the day of its date, and who those individuals were might be obtained by extrinsic evidence. Shaw v. Loud, J 2 Mass. R. 447 ; Thomas v. Marshfield, 10 Pick. 364; Hall v. Leonard, 1 Pick. 31 ; 4 Cruise, 314; 2 N. H. R. 310; Sewall v. Cargill, 3 Shep. 414. But if the deed did not convey the premises to all the company, it did to those named, and those who were present. That would constitute a sufficient consideration for the whole company. And they might be considered as holding the property in trust for all the partners. Collyer, 79, 99; Gow on Part. 49.\\n\\u2022 5. The board of managers were the company, being invested with absolute power to direct and control its concerns, and a note given by their direction is the note of the company. Boardman v. Gore, 15 Mass. R. 339; Etheridge v. Binney, 9 Pick. 272; Man. 8f Mech. Bank v. Winship, 5 Pick. 11; Chazournes v. Edwards, 3 Pick. 5; Gow, 66; l Montagu, 28. Those who came in as partners afterwards on the same terms as the others, adopted this debt and made it their own. Gow, 346; Locke v. Hall, 9 Greenl. 134.\\n6. If all are not liable, the Court may permit an amendment by striking out the names of such as are not liable. St. 1835, c. 178.\\nKelly argued for the defendants,\\ncontending that the action could not be sustained for want of consideration. The plaintiff knew all the facts, and therefore we are entitled to the same defence as if the suit had been brought by the payee. The company had no right to deal in real estate. The object was merely to trade, not to purchase land. Not being within the original design of the parties, none are bound by the notes, excepting such as give their personal assent. Coll, on Part, 113.\\nNothing passed to the company by the deed, for there are no grantees who can be identified. Jackson v. Cory, 8 Johns. 385; Hornbeck v. Westbrook, 9 Johns. 73; Boutelle v. Cow-din, 9 Mass. R. 254 ; Barker v. Wood, ib. 419 ; Hall v. Leonard, 1 Pick. 27 ; 2 Conn. R. 287. Not being an incorporated company, nothing passes to any one by a deed to a partnership name. The names Whitney and Watson compose but a part of the business name of the company. And besides, if they are to be understood as the names of persons, there is nothing to distinguish them from any other persons bearing the same general names.\\nThe managers had no power to make a purchase of real estate. They were a company formed for the purpose of obtaining goods for themselves and others upon reasonable terms for a limited time. The company, as such, have never acted upon the subject of purchasing the store, or giving the notes, and therefore, as a company, could not have ratified any con tract of the managers. But two were consulted as individuals, and one of them dissented unconditionally, and the other only agreed to it on a condition which has never been performed.\\nIf however the deed could convey to the company, it must be only to such as were members at the lime, and could not extend to such as came in afterwards.\\nIt is not competent for the Court to permit some of the parties to be stricken out after a continuance and after a joinder in issue. The proof must be as alleged, or the variance will be fatal.\\nThe occupation of the store amounts to nothing, because the case does not show, that any, but those who were present at the time the deed was taken, knew that it was pretended to be purchased on account of the company.\\nThe deed could not be admitted as legal evidence for want of an acknowledgement. The acknowledgement before one of the alleged grantees is merely void.\", \"word_count\": \"3063\", \"char_count\": \"17237\", \"text\": \"The opinion of the Court was by\\nWeston C. J.\\nThe association or copartnership, for the establishment of a store of English and West India goods in Thorndike, was to continue for the period of nine years, unless sooner terminated by a majority of the votes. They were to operate upon a capital of ten thousand dollars. By the fourth article of their constitution, it was made the duty of the managers to provide a store for the company. How that duty was to be performed is not pointed out. It is a matter then submitted to their reasonable discretion, which, in our judgment, they were at liberty to exercise, either by buying, building or hiring a store. And under that term may be embraced a lot upon which the store might be placed, with convenient accommodation around it. We do not understand, that the store and the land about it, stated in the case, exceeds what might be necessary for this purpose. And in transacting the businsss confided to them, we doubt not they had authority, through their agent, to pledge the credit of the company. Having power to purchase a store, they had a right to empower their agent to give notes to secure the payment of the consideration.\\nIt is insisted however, that there is a want or failure of consideration for the note in question, the deed for which it was given, being void from the uncertainty of the grantees, and because the acknowledgement was taken and certified by a magistrate, who was a- party interested. With regard to the latter objection, it is at most a void acknowledgement, leaving the deed operative between the parties, and therefore a sufficient consideration for the note.\\nThe grantees in the deed were Whitney, Watson and Company. Who Whitney and Watson were is well known, and is proved in the case. If the other persons embraced under the general term, company, could not take as grantees, Whitney and Watson, who were named, could and they would hold for themselves and in trust for those associated with them. And this is sufficient to give operation to the conveyance. But the other persons, composing the company, could be easily ascertained and identified. Their names were to be found on their written constitution, which was signed by the members.\\nWith regard to the persons, liable as defendants, besides Whitney and Watson, who are named, they are to be ascertained, as in other cases, by proving who constituted the company at the time. And we are of opinion, that it embraced all, who had then signed their constitution. Four of these had not then been accepted by a formal vote; yet we think when such a vote passed, they were established as members, from the time of their respective signatures. 0\\nFive of the defendants, namely, Collins Pattee, David Pattee, Daniel Pierce, John Fogg and Ezra Man ter, did not become members of the company, until after the note was given. These cannot be holden as promisors upon the note. They were therefore improperly joined as defendants. But it is not too late to give the plaintiff permission to amend, by striking out their names, under the statute of 1835, c. 178, $ 4. And he has leave to amend accordingly, upon condition, that he pay to each of those defendants his costs, to be taxed severally. This being done judgment is to be rendered for the plaintiff against the other defendants.\"}"

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+"{\"id\": \"570133\", \"name\": \"Joseph W. Symonds, and another in equity, Walter G. Davis, and others, intervening complainants, vs. John Winslow Jones\", \"name_abbreviation\": \"Symonds v. Jones\", \"decision_date\": \"1890-02-01\", \"docket_number\": \"\", \"first_page\": \"302\", \"last_page\": \"317\", \"citations\": \"82 Me. 302\", \"volume\": \"82\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:21:03.391040+00:00\", \"provenance\": \"CAP\", \"judges\": \"Peters, C. J., Walton, Virgin, Foster and Haskell, JJ., concurred.\", \"parties\": \"Joseph W. Symonds, and another in equity, Walter G. Davis, and others, intervening complainants, vs. John Winslow Jones.\", \"head_matter\": \"Joseph W. Symonds, and another in equity, Walter G. Davis, and others, intervening complainants, vs. John Winslow Jones.\\nCumberland.\\nOpinion February 1, 1890.\\nTrade-mark. Labels. Transfer. Use by vendee. Equity. Injunction. New parties. Practice.\\nThe owner of an established business, in which he uses certain peculiar labels and trade-marks, may make a valid conveyance of such labels and trademarks, in connection with a conveyance of the plant and good-will.\\nIf such labels and trade-marks consist largely of the name, initials of the name, or the residence of such owner, he may yet in the same manner divest himself of the right to use them, and vest the right in his vendees.\\nThe purchasers of trade-marks and labels, however, should not use them without change if they indicate that the article to which they are applied, is made by the vendor. In such case words must be added showing that the vendor has retired, and that the goods are made by his successors.\\nNew parties complainant may be admitted in an equity proceeding as their interests arise, if their admission does not increase the burden of the defense.\\nIn equity.\\nThis was an appeal from a decree of the presiding justice who heard the case, sitting in equity for Cumberland county, and who granted a decree against the defendant enjoining him from using certain labels and trade-marks, formerly employed by him in the canning business, and which with his manufacturing\\u2019 establishments, good-will, etc., he had sold and conveyed. The bill praying for an injunction and account was filed July 1, 1887. After the bill was filed, Davis, Baxter and Davis, the purchasers of the labels, trade-marks and other property from the original complainants were allowed to intervene. They waived that part of the bill asking for an account.\\nThe facts are stated in the opinion.\\nW L. Putnam, for plaintiffs.\\nThe answer is not sworn to, nor is it signed by the defendant himself. It is, therefore, a mere matter of pleading. Chancery rule 14.\\nThe answer does not put in issue the value or validity of any of the trade-marks or the good-will. The only real issue raised by it is one of title, defendant setting up a right in himself. It is shown by the answer and proofs, that Jones in the most public manner during the three years before filing of the bill, set up a title and denied and impugned the plaintiffs\\u2019 title, to the great injury of these trade-marks.\\nIn the testimony and exhibits, the expression is not \\u201cWinslow corn\\u201d or \\u201cWinslow green corn,\\u201d but \\u201cWinslow\\u2019s corn\\u201d and \\u201cWinslow\\u2019s green corn,\\u201d indicating, by the possessive form, proprietorship, rather than quality or process.\\nThe defendant having sold the trade-marks and labels for a valuable consideration, is estopped from questioning their validity. By setting up title, he admits their validity. No man can claim title to what does not exist; thus by claiming title he admits its existence, their validity being the very essence of their existence.\\nPlaintiffs should be protected in their right to the words \\u201cGlobe\\u201d and \\u201cWorld Renowned\\u201d in the oonnectioir in which they use them. Royal Baking Powder Go. v. Royal Ghem. Go., N Y. Superior Court, March 1873; Same v. Mason, U. S. C. C., So. District, Ills., Treat, J.; Samev. Sherrill, and Same v. Jenkins, N. Y. Sup. Court, 1880; Same v. McQuade, U. S. C. C., Northern Dist., Ills., Blodgett J.; Same v. Vouwie, U. S. C. C., Northern Dist., Ohio, Walker, J.; Same v. Davis, U. S. C. C., Ea. Disk, Mich., Brown', J.; McLean v. Fleming, 96 U. S. pp. 245, 254.\\nAs to defendant\\u2019s claim that trade-marks, in part, indicate a process only, counsel cited : Singer Machine Mfrs. v. Wilson, 3 Appeal Cases, p. 376; Same v. Larsen, 8 Bissell, p. 151. The words, \\u201cWinslow\\u2019s Green Corn,\\u201d have never been permitted to go out to the world. The right to their use has been held in a single line of transmission. Its generic or public use has always been guarded against. They represent the peculiar quality, or excellence, which the owner of a trade-mark gives to Ms product. Menendez v. Molt, 128 U. S., 514, 520, 521.\\nPlaintiffs entitled to use defendant\\u2019s name: Moxie v. Chaney, 143 Mass. 592; Kidd v. Johnson, 100 U. S. 617.\\nDefendant cannot complain that the Winslow Packing Co. used the words, \\u201cPrepared by John Winslow Jones\\u201d because he does not set it up in his answer; they were used with his consent; he transferred the labels with those words on them; they were omitted more than two years before the bill was filed.\\nTo the defendant\\u2019s claim of forfeiture because he was not retained by the original corporation and paid as managing director, counsel argued : This was a matter of avoidance and defendant had failed to put in any evidence. Title of his vendees has been made absolute with his consent, assistance and affirmative action. No words of condition or forfeiture in the transfer of the factories, good-will and business. Inter-dependent clauses, each being executory and pari materid, not found here. The transfer was an executed and accomplished fact. There .were conveyances from Jones of the good-will and trade-marks disconnected from any agreement to employ him as managing director.\\nJurisdiction to restrain defendant\\u2019s notices, advertisements and circulars: High on Injunc. \\u00a7\\u00a7 1011, 1012, 1181; Boston Diatite Co. v. Florence Co., 114 Mass. 69; Story\\u2019s Eq. \\u00a7\\u00a7 944-951, 953; Mogford v. Courtenay, 45 L. T. R., S. C. Chitty\\u2019s Eq., Index, 4th Ed. Yol. 3, p. 2770; Marper v. Pearson, 3 L. T. R. (N. S.) 547; Stevens v. Paine, 18 Id. 600, S. C. Chitty\\u2019s Eq.Dig., Yol. 7, \\u201cTrade;\\u201d Massam v. Thorley's Cattle Food Co., 14 Chan. Div. 748.\\nExceptions to admitting intervenors: Counsel cited, Mason v. York if C. II. R. Co., 52 Maine, 107; Carroll v. Same, Id. and cases there cited; Story\\u2019s Eq. PL \\u00a7 343. Plaintiffs here assert only a title which is disputed and ask the prevention of future wrongs and not damages for past infringements.\\nB. F. Hamilton and Gr. F. Haley, for defendant.\\nThe Limited Co. agreed to employ Jones at a salary of $5,000 per year, for ten years ; having neglected and refused they cannot in equity compel the execution upon his part of the agreement, when they refuse to perform theirs. Real question at issue is the plaintiffs\\u2019 right to the exclusive use of the Globe labels. \\u201cWorld Renowned\\u201d are not words capable of exclusive appropriation by any one, not being used to denote the origin, or manufacture of, but being descriptive of quality. Amoskeag Co. v. Trainer, 101 U. S. 51 ; Canal Co. v. Clark, 13 Wall, 311, and cases cited; Grilman v. Hunnewell, 122 Mass. 139 ; Casivell v. Davis, 58 N. Y. 223; Burke v. Cassin, 45 Cal. 467; Choynski v. Cohen, 39 Cal. 501; Larabee v. Lewis, 67 Ga. 562. \\u201cWinslow\\u2019s Green Corn,\\u201d was used by plaintiffs and defendant to inform the pirblic that the corn was prepared by the Winslow process to distinguish it from the Retort process, and decided by U. S. C. C. not to be patentable (2 Hughes, 527) ; consequently the world had the right to use the process and so mark their goods. Plaintiffs by their own fraud and misrepresentation have deceived and misled the public, and forfeited their right to the trade-mark.\\nAdmission of intervenors : When the trustees transferred the property discharged from the trust, the object of the bill was accomplished. Court will not determine their future rights. Purchasers of patents and trade-marks, pending suit, not protected as in other cases. Moore v. Marsh, 7 Wall. 515 ; Dean v. Mason, 20 How. 198; Cross v. DeValle, 1 Wall. 5. Damages would not go to intervenors. Bardwell v. Ames, 22 Pick. 333.\\nTrade-marks assuring the public of the origin or ownership of the article: Upton on Trade-Marks, 98 ; Manhattan Medicine Co. v. Wood, 108 U. S. 218, and cases cited and approved; Connell v. Heed, 128 Mass. 477; Parlett v. Gruggenheimer, 8 Cent. Rep. 796 (Md.); Seigert v. Abbott, 17 Id. 496; Buckland v. Bice, Id. 411; Stachelberg y. Ponce, 28 Fed. Rep. 430; Sherwood v. Andrews, 5 Am. Law Reg. (N. S.) 688.\\nFraud and deception of plaintiffs, relied on by defendants, not set up in tbe answer in Stachelberg v. Ponce, supra; but the court considered it sufficient. Court utterly refuses its aid where fraud and deception are used. The inquiry is not only whether defendant, from his own showing and proof, has acted unjustly and inequitably, but also whether complainants, by their allegations and proof have shown that they are entitled to relief, jKnox v. Smith, 4 How. 298.\\nArthur Steuart, of the Maryland bar, for defendant.\\nGeneric names cannot be appropriated as trade-marks. Lea v. Deakin, Price & Steuart\\u2019s Am. Trade-Mark Cases, 23; Lechlanche Battery Co. v. Western Flectric Co., Id. 167, and cases cited; Goodyear\\u2019s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 698. The words \\u201cWinslow\\u2019s Green Corn,\\u201d being clearly generic are public property.\\nA name alone is not a trade-mark when it is applied to designate, not the article of a particular maker or seller, but the kind or description of thing which is being sold. Canal Co. v. Clark, 13 Wall. 311; Thompson v. Winchester, 19 Pick. 214; Wolff v. Boulard, 18 How. Pr. 64; Sherwood v. Andrews, 5 Am. L. Reg. (N. S.) 688, 591; Candee v. Deere, 54 Ills. 439 ; Singer Mfg. Co. v. Wilson, L. R. 2 C. D. 484 ; Cocks v. Chandler, L. R. 11 Eq. 446; Ford v. Foster, L. R. 7 Chan. Ap. 611; Burt v. Cassin, 45 Cal. 467 : Burnett v. Phalon, 21 How. Pr. 100 ; Binninger v. Wattles, 28 How. Pr. 206 ; Singleton v. Bolton, 3 Doug. 393; Canham v. Jones, 2 Ve. & B. 218 ; Goodyear\\u2019s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598.\\nTrade-marks employed upon patented articles become public property with the expiration of the patents. The court will take judicial notice that the process was patented in 1862, under the law of 1836, and hence the patents, granted for fourteen years, have expired. Patents are public records. All persons are bound to take notice of their contents. Boy den v. Burke, 14 How. 576. Expired patents : Singer Mfg. Co. v. Larsen, U. S. C. C., N; Dist., (Ills.), P. & S. Am. Trade-Mark Cases, 13, and cases cited in the opinion.\", \"word_count\": \"5961\", \"char_count\": \"34867\", \"text\": \"Emery, J.\\nTliis is an equity appeal. The material facts found by the court are these :\\nJohn Winslow Jones, the respondent, for several years prior to 1880 had been carrying on extensively the business of preserving or \\\"canning\\\" meat, fish and vegetables at various factories in Maine, \\\"New Brunswick and Prince Edward Island, and had built up a large trade in the canned products in the United States and Canada. The particular process of canning was known as the \\\"Winslow Process,\\\" having been originated by one Isaac Winslow. The business above stated was started by Nathan Winslow & Co., and was succeeded to by the defendant who greatly extended it. Among the labels used by him to designate the products were two in particular. One was known as the \\\"red\\\" label, being of a red color, and bearing the figure of an ear of corn, the words \\\"Winslow's Green Corn,\\\" and \\\"John Winslow Jones, Portland, Maine,\\\" and also the figure of a globe, with the words \\\"World Renowned,\\\" and \\\"Trade-mark\\\" thereon. The other was known as the \\\"yellow\\\" label, being of a yellow color, and bearing the figure of a globe, with the letters \\\"J. W. J.,\\\" thereon and the words, \\\"Globe 'Trade-mark Brand,\\\" \\\"Winslow's Green Corn,\\\" \\\"World Renowned,\\\" etc. While these particular labels were used on canned corn, the figure of the globe and the various words and phrases on these labels were used on labels for other products, and on the letter-heads and circulars used in the business.\\nIn the latter part of 1879 Jones procured the organization in England, of the \\\"J. Winslow Jones and Company, Limited,\\\" for the purchasing, carrying on, and further extending the same business : and in pursuance of an agreement, he conveyed to the new company March 1, 1880, all his said factories, machinery and plant generally, and also, as admitted by Jones in his answer, all the labels, trade-marks and good-will of the business. Jones further admits that such conveyance included the \\\"red\\\" label and the \\\"yellow\\\" label above described.\\nIt was stipulated in the agreement referred to, that Jones should be employed by the Limited Company as its managing director in America for ten years at a fixed salary, and should not for the same time carry on a similar business within fifty miles of any factory of the company, nor send any similar canned goods to any part of Europe.\\nTo secure certain debentures, the Limited Company made to trustees, Bacon and Herring, a conveyance of all the property received from Jones, including the business, good-will, labels and trade-marks. The Limited Company, subject of course to this trust deed, took possession of all the property and plant conveyed, and carried on the same business with Jones as managing director in America, until 1882, \\u2014 and during that time made use of the same labels and trade-marks to designate their products. In 1882 the Limited Company becoming financially embarrassed, transferred all the property, plant and business, including labels and good-will, to Charles P. Mattocks, subject of course to the trust deed to secure debentures. It was agreed by the' company, the trustees and Mattocks, that the last named should take charge of the property and carry on the business, which he did, using the same labels and trade-marks to designate the products of the factories so managed by him. This arrangement for Mattocks to take charge of the business was assented to by the debenture holders, including Jones, who was a large holder. In 1883 Mattocks leased the property, plant and good-will to the Winslow Packing Company, and gave it written licenses to use, during the lease, the labels and trade-marks, which had been used in the business. Mattocks was president and manager of this new company. The company used to some extent these \\\"red\\\" and \\\"yellow\\\" labels, among others, as they had been before used, until 1885, when they had printed across the face of the labels the words, \\\"Winslow Packing Company, successor to.\\\"\\nDecember 8, 1886, the original trustees under the deeds to secure the debentures transferred the trust, and conveyed all the properties, including good-will and labels, etc., to J. W. Symonds and Edward Moore, the complainants, who thereafterwards held the properties, etc., under the same trust.\\nAfter the assignment of the \\\"J. Winslow Jones Company, Lim ited,\\\" in 1882, Jones was no longer employed as managing direct- or, and subsequently as early as 1884, lie at various places in the United States and within the limits of the trade or custom of the former business, but not within fifty miles of any of its factories, engaged in the same kind of business. In this new business to designate his new products, he made use of some labels, similar in color and style to the old \\\"red\\\" and. \\\"yellow\\\" labels of the former business. The figure of an ear of corn, the figure of a globe, the words \\\"John Winslow Jones, Portland. Maine,\\\" \\\"Successor to Nathan Winslow & Co.,\\\" \\\"Winslow's Green Corn,\\\" \\\"World Renowned,\\\" \\\"Trade-mark,\\\" \\\"Globe Brand,\\\" and the initials \\\"J. W. J.,\\\" were used on these new labels. There were some minor differences between the old and new labels, but they were practically similar. Jones also used in his new business practically the same style of letter-heads that he had used in the old business and which had been used by his assignees, the Limited Company and its successors. The letter-heads had on them the words, \\\"Winslow's World Renowned Green Corn\\\" and the figure of a globe with the words \\\"Trade-mark.\\\" Jones also issued circulars, claiming the right to the sole use of the globe trade-mark and the old labels, and denying any right in the assignees of the Limited Company.\\nThis conduct of Mr. Jones, as to labels, letter-heads, etc., disturbed the trade and lessened the sale of the product of the old factories, and injured the business of those claiming under his assignees the Limited Company. Whereupon, Messrs. Symonds & Moore as trustees for the debenture holders, and joining Mattocks and the Winslow Packing Company as parties, filed this bill in equity against Jones praying for an injunction to restrain Jones from engaging in a similar business within fifty miles of any of their factories, from selling canned goods in Europe, and from using letter-heads, or labels similar to or in colorable imitation of those used by Mm in the old business and by Mm sold to the Limited Company. The bill also prayed for an account. The court held by a single justice with the equity powers of a chancellor, sustained the bill, and granted a perpetual injunction as prayed for, but made no order for accounting. The respondent thereupon appealed to the law court sitting as an appellate equity court.\\nAll controversies over the facts are settled by our finding of facts, as above stated, and it only remains to consider the legal and equitable principles by which, upon the facts found, the case is to be determined.\\nEvery business man feels a natural and honorable pride in the articles produced by him, and in the business he builds up. He naturally gives some particular name to the product of his invention, of his factories, farms, mines or vineyards, to distinguish them from similar products of others; and uses peculiar labels and marks upon his products, to identify them as his own. The public come to associate these names, labels, and marks with the products of some particular origin or ownership, or of some particular factory, farm, etc. It is clear that such names, etc., thus become convenient for the consumer, and valuable to the producer, and that both the consumer and the producer should be protected against their use by other parties upon other similar products. They become valuable according to the familiarity of the public with them, and the excellence of the product designated by them. The law justly recognizes such names, labels and marks as important attributes or appurtenances of a business, and as proper to be transferred with any sale or transfer of the business and its plant.\\nWords, descriptive of the article, or indicative of the general locality of its production, cannot of course be appropriated by one producer to his exclusive use. Every producer of the same kind of articles can use upon his products any words descriptive of the quality of the articles, or indicative of the county or town where produced, however long time the same words majr have been used by others. A man may always describe his products, and tell where they were produced. The same may be said of any color upon a label, for every label .must have some color, and the number of colors is limited. Such words and marks, however, as by their own meaning, or by association in the public mind, indicate not the quality of an article, but its origin or ownership, \\u2014 the person by whom, or the factory in which it was produced,\\u2014 become appropriated in their use exclusively to the originator or owner of such articles, No other person can lawfully use them to designate other similar articles of different origin or ownership. McLean v. Fleming, 96 U. S. 245; Canal Co. v. Clark, 13 Wall. 311; Goodyear Rubber Co. Case, 128 U. S. 598; Manufacturing Co. v. Trainer, 101 U. S. 51; Godillot v. Harris, 81 N. Y. 263.\\nThe respondent urges that most, if not all, the words and symbols on the \\\"red\\\" and \\\"yellow\\\" labels in question are such as cannot, under the principles above stated, be exclusively appropriated by the complainants as against him. He claims that such of the words and symbols as are generic, or descriptive, or do not indicate the origin, or that the ownership is in the complainants, are free to all and that he cannot be restrained from using them. In this class he places, \\\"World Renowned,\\\" \\\"Trade-Mark,\\\" \\\"Only Reliable Brand,\\\" etc. The complainants practically concede that such words could not be exclusively appropriated by one producer.\\nThe respondent further claims that the words, \\\"Winslow's Green Corn,\\\" do not, under the facts, indicate the origin or ownership of the products, but simply that they are prepared by a process originated by Isaac Winslow, and known to the trade as tire \\\"Winslow Process,\\\" \\u2014 that this process was never effectually patented, and was not patentable, and hence any one could use it, and could use any apt words to indicate that his product was by that process. He argues that \\\"Winslow's Green Corn\\\" are apt words for that purpose, and that they indicate the process only. The complainants concede that the process originated with Isaac Winslow and was never effectually patented, but they insist that the words \\\"Winslow's Green Com,\\\" under the facts, do in themselves and by association indicate that the articles upon which they are placed, are produced from the plant of Winslow or his successors in the business. Many authorities are cited by counsel on each side of this controversy.\\nThe respondent further urges, that the words \\\"John Winslow Jones\\\" constitute his name, and that the letters \\\"J. W. J.,\\\" are the initials of his name, and were intended to represent his name and initials; and that no one else can acquire the right to use them or to prevent his using them. The complainants insist that the respondent should not use the words \\\"John Winslow Jones, Portland, Maine,\\\" since he no longer carries on this business in Portland, Maine, and they do carry it on there, \\u2014 that the use by the respondent of these words combined, injures their business, in that it tends to mislead the public into believing that the respondent's goods are the product of the old, well-known factories. The complainants further reply that, whatever other use the respondent may make of the letters \\\"J. W. J.,\\\" for him to use them on the figure of a globe, has the same injurious effect.\\nThe complainants, however, do not rest their case on the ground that they have appropriated and used these words and symbols on the \\\"red\\\" and \\\"yellow\\\" labels, and that such words and symbols are capable of exclusive appropriation. They place their case on the ground that, whatever the character of these words and symbols, they were devised and used by the respondent as the labels and trade-marks of his business, and as such were sold by him for a valuable consideration to the purchasers of his plant and business. The complainants, representing these purchasers, urge, and the facts show, that the respondent, \\u2014 by selling the good-will of' the business, and the labels and marks used by him to designate the products of the business, \\u2014 promised, for a consideration, not to use such labels or marks for himself, and, for the same consideration, promised that the purchasers should have the exclusive use, so far as he was concerned. It is argued that whatever may be the rights of the complainants against third parties unaffected by any contract, they have acquired by valid contract from this respondent, the right to the exclusive use, as against him, of these labels and the words and symbols upon them; and that his use of them, or of any colorable imitation of them, is a violation of his contract, which an equity court can and should prevent.\\nWhat is known as the \\\"good-will\\\" of the business is recognized by the law as a proper subject of sale or contract, in connection with a transfer of a business plant. An established business, with plants and products well known to the trade, has a money value often far above that of its mere plant, and this is often the controlling motive for the purchase. Labels, trade-marks, particular words and phrases devised or used to distinguish or identify the products of the plant, and associated with such products in the public mind, are in like maimer usually transferred with the plant, and are regarded as valuable acquisitions for the purchasers. They are, equally with the good-will, proper subjects of such sale and contract. The name or initials of the originator or owner of the business, when used on labels and as trade-marks in the business, may thereby have a value and so may be included in a sale of the business, so far at least as to prevent the vendor afterward using them in like manner on other similar products to the detriment of his vendee.\\nThese propositions are supported and illustrated by authorities. In Kidd v. Johnson, 100 U. S. 617, S. N. Pike adopted as a trademark for his whiskey the words, \\\"S. N. Pike's Magnolia Whiskey, Cincinnati, Ohio,\\\" enclosed in a circle. He took several partners into the business, but retained his individual ownership of the plant, and the trade-mark. The firm, Pike being a member, removed the business to New York, and Pike sold the Cincinnati plant and trade-marks to Mills, Johnson & Co., who entered upon the business with that plant, and used the same label and trademark before used by S. N. Pike, and the various firms with which he was associated. Pike dying, his surviving partners undertook to use the trade-mark above described. The court held that the purchasers from S. N. Pike had the exclusive right to use the trade-mark, and enjoined the defendant's use. In Burton v. Stratton, 12 Fed. Rep. 696, (U. S. D. C. E. D. Mich.) two brothers, Stratton, originated a yeast, and adopted as a trademark the figures of two heads (portraits of one of them with a twin brother) in an oval setting, with the words, \\\"Twin Brothers Improved Dry Hop Yeast.\\\" The brothers, the proprietors, sold the business and the trade-mark to Burton, who carried on the same business and used the same trade-marks. Subsequently one of the Strattons began making yeast, and used the words or name, \\\"Twin Brothers Dry Hop Yeast.\\\" The use of this trade-mark by Stratton was enjoined. Brown, Dist. J., said that the cases were numerous in which if had been held that a party may law fully sell not only a trade-mark indicative of origin in himself, but even the right to use his own name, in connection with a particular business. In Pepper v. Labrot, 8 Fed. Rep. 29, (U. S. C. C., Dist. of Ky.) the right to use the words \\\"Old Oscar Pepper\\\" was held to pass by an assignment of the plant and business, even as against Pepper himself, the former proprietor who had set up a separate establishment in another county. In Skinner v. Oakes, 10 Mo. App. 45, Oakes had originated a business of making and selling a candy called \\\"Oakes Candy.\\\" He took a partner, Probasco, and the firm carried on the same business. He afterward sold to Probasco all his interest in the property, business and trade-marks. Probasco's title passed to Skinner. It was held that Oakes should be restrained from using the name \\\"Oakes Candy\\\" in a new candy business set up by him. In Hoxie v. Chaney, 143 Mass. 592, A. N. Hoxie had originated and carried on a business of making and selling soaps, and used for label and trade-mark the phrases, \\\"A. N. Hoxie's Mineral Soap,\\\" and \\\"A. N. Hoxie's Pumice Soap.\\\" Pie took Pegram into partnership, and afterward sold to him all the plant, business and good-will. Pegram then formed a partnership with Chancey. It was held that Hoxie, having sold and been paid for, the names and marks applied to the soap, could not use them in a new soap business. In Churton v. Douglas, Johns. Eng. Ch. 174, the complainant and respondent had carried on a manufacturing business under the firm name of \\\"John Douglas & Co.\\\" Douglas sold to Churton all his interests in the plant, business and good-will, and afterward formed a new partnership with another person in the same kind of business, under the same firm name \\\"John Douglas & Co.\\\" The new firm was restrained from using that 'name.\\nBut the respondent contends that this case is not within the above principles, even if they are correctly stated. He contends that any transfer of good-will, labels, and trade-marks by him to the Limited Company, was conditional upon his being employed for ten years as managing director of that company in America; and that his discharge at the end of two years, worked a forfeiture of the right to the exclusive use of the labels and trade-marks. No sucli condition of forfeiture was expressed in words in the instrument of conveyance, nor in the preliminary agreement of sale, and forfeitures are not favored in the judicial interpretation of writings. We think the agreement for hiring was an independent agreement so far as the conveyance and transfer of the property, good-will and trade-mark were concerned. As well, we think, might Jones claim a forfeiture of all the property conveyed as of this part of it. We do not think it was intended that the property, or the business or its good-will should revert to Jones, if for any reason he should be discharged from the employ of the Limited Company before the expiration of the ten years.\\nThe respondent again contends, and stoutly, that the complainants should not have the protection of the law and of this court for these labels, for the reason that they, or the persons managing the property and the business, since he left the employ of the Limited Company, have so used the labels and marks as to mislead the public into believing that the goods were manufactured or prepared by him. The facts do show that the Limited Company, and after it, Mattocks, and the Winslow Packing Company, used the \\\"red\\\" or \\\"yellow\\\" labels more or less without change up to 1885, when the latter company printed across the face of such of these labels as it did use, the words \\\"Winslow Packing Co., successor to.\\\" Such use of the labels, without words indicating that Jones had personally left the business, and indicating a change of ownership would evidently mislead the public as to the manufacturer of the goods, and hence should not receive protection from the court. It would wrong Jones, as well as the public. Stachelberg v. Ponce, 28 Fed. Rep. 430, S. C., 128 U. S. 686 ; Manhattan Medicine Co. v. Wood, 108 U. S. 218. It is plain, that while thus using the labels, the parties complainant in interest, could not maintain a bill for an injunction against their use by the respondent.\\nThe facts further show, however, that before the filing of the bill, the proprietors of the labels refrained from using them, or made such additions to those they did use, as clearly to indicate that the ownership of the business had changed, and that the successors to Jones, instead of Jones himself, were producing the goods. At the time of filing of this bill, none of the complainants were offending in this respect, but all seem to have been dealing fairly with the public. Of course they cannot have any damages, or accounting for things done by the respondent while they were themselves offending, but if they are now themselves doing equity, they may ask the court to require the respondent to do equity also. In Manhattan Co. v. Wood, supra, the decision adverse to the complainant was put on the ground that the misrepresentation had been and was being continued. We find no authority deciding that a prior improper and misleading use of labels, afterward corrected and made right, should bar a bill in equity brought for the protection of the corrected label. In this case, we think the improper use was inadvertent; and now that such use has been corrected for several years, it seems to us inequitable that Jones should continue to make use of the labels and trade-marks (or colorable imitations of them) which he sold for a satisfactory consideration to the complainants' predecessors.\\nIn coming to this conclusion upon this question, however, we bear in mind, that the improper use complained of was not by the complainant trustees, nor their predecessors in the trust, nor by the debenture holders, but by Mattocks and the Winslow Packing Co., who were practically mortgagors in possession, while the trustees and debenture holders were mortgagees out of possession. These innocent debenture holders have taken possession since the filing of this bill, as will hereafter be stated, and are now asking for protection. Perhaps, had the original complainants or those now prosecuting been guilty of the misconduct, the result might have been different. We do not say.\\nThe respondent also raises a question of equity pleading, which we have maturely considered. Pending this suit the debenture holders have caused all the property held by the original complainants as trustees including the labels, trade-marks, etc., to be sold by the trustees to enforce the trusts and Tealize on the-assets. At such sale duly held, Messrs. Davis, Baxter and Davis were the purchasers, and the trustees conveyed to them all the property \\u2022 and rights held by them under the various trust deeds. These purchasers thereupon applied to the court for leave to come in as parties complainant, and further prosecute the suit. Leave was granted, and they were admitted as intervening complainants, to which order the respondent exeeptpd. We do not see any objection to the admission of these new parties. Equity procedure is sufficiently elastic to admit new parties as their interests accrue. The purpose of their admission in this case is not to obtain a declaration of future rights, as argued by the respondent but to obtain a declaration of present rights, and the prevention of, future wrongs. The respondent is not prejudiced. The burden of the defense is not increased. The issues are not changed. The subject matter remains the same, and the judgment must be the same, \\u2014 it being apparent that no accounting can be had in either case.\\nOur conclusion is, that the intervening complainants are properly made parties, and that equity requires in their' behalf that the respondent should be perpetually restrained by injunction as set forth in the decree appealed from.\\nWo think, however, it is the duty of the complainants to the respondent, as well as to the public, to refrain from using the labels in such manner and form, as might lead the public to suppose that the goods packed by them were packed by the respondent. They should strike from their letter-heads, circulars and labels any words indicating that the goods were prepared by John Winslow Jones, and, if they use his name, should add such words as clearly indicate that the goods are not prepared by him, but by them as his successors. This duty should be declared and made imperative in the decree, or in the supplemental decree, modifying the former decree. As the respondent was com] relied to appeal to obtain this modification of the decree, so as to prevent the improper, misleading use of his name, \\u2014 a modification we think he is entitled to, \\u2014 we think he should recover the costs since the appeal, to be setoff against the complainants' costs to the time of the appeal.\\nDecree affirmed and case remanded for additional decree in accordance with thin opinion.\\nPeters, C. J., Walton, Virgin, Foster and Haskell, JJ., concurred.\"}"

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+"{\"id\": \"570178\", \"name\": \"Ann M. Gilmore vs. William B. Bradford\", \"name_abbreviation\": \"Gilmore v. Bradford\", \"decision_date\": \"1890-05-28\", \"docket_number\": \"\", \"first_page\": \"547\", \"last_page\": \"551\", \"citations\": \"82 Me. 547\", \"volume\": \"82\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:21:03.391040+00:00\", \"provenance\": \"CAP\", \"judges\": \"Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.\", \"parties\": \"Ann M. Gilmore vs. William B. Bradford.\", \"head_matter\": \"Ann M. Gilmore vs. William B. Bradford.\\nSagadahoc.\\nOpinion May 28, 1890.\\nRemedy. Deceit. Assumpsit. Principal and agent.\\nThe only remedy against one who undertakes to act as an agent without authority, or in excess of his authority, is an action on the case for deceit. The gist o\\u00ed such an action, the contract being necessarily void, is not a failure to keep a.nd perform the promise, but a false representation; and assumpsit does not lie.\\nIn an action of assumpsit, brought after a loss by Are, the plaintiff alloged that ho had negotiated and completed an oral contract of insurance on his property in a certain insurance company, through the defendant as its agent. The defendant denied making the contract, or that, for want of authority, the company was bound. The plaintiff requested the court to instruct the jury, \\u201cthat if the defendant undertook to insure for the company, and had no authority to do so, he would be liable for that reason, under proof of other essential requisites.\\u201d Held, that in this form of action, such instruction would be erroneous.\\nOn motion and exceptions.\\nThis was an action of assumpsit, in which the plaintiff alleged that tiie defendant, being an agent of the Phcenix Insurance Company, for a valuable consideration undertook and promised to effect insurance for her upon her mill property by said insurance company; that the property was destroyed by fire; and tbat tbe defendant never did effect such contract, etc.\\nTbe declaration also contained a count alleging tbat the plaintiff undertook and promised to procure such insurance with some good, sufficient and proper insurance company; and another count tbat tbe defendant himself promised and undertook to insure and did insure tbe plaintiff, etc.\\nTbe defendant contended tbat no contract in fact was made; tbat, as a broker, be was to be furnished with a measurement of distance between certain buildings before placing tbe risk, and this was not done before the fire. The plaintiff contended tbat tbe defendant accepted $3,000 on tbe property and agreed to examine it and see about placing another $1,000 on it. Tbe defendant also contended that, if any contract of insurance was effected, it was with bis company and not himself.\\nTbe case was submitted to tbe jury on these and other issues of fact. They returned a verdict for tbe plaintiff, and tbe defendant moved for a new trial.\\nAt tbe close of tbe charge, upon tbe plaintiff\\u2019s request, tbe presiding justice instructed tbe jury, in substance, tbat, \\u201cif tbe defendant bad no authority to take such risk for tbe Phoenix Company, or other underwriter, and did not actually place the risk anywhere, tbe defendant is held in damages.\\u201d Tbe defendant excepted to this ruling.\\nSavage and Oalces, for defendants.\\nW. Gilbert, for plaintiff.\\nAn agent who transcends bis authority, or undertakes to contract without authority binds himself.\", \"word_count\": \"1628\", \"char_count\": \"9355\", \"text\": \"Walton, J.\\nTbe plaintiff's mill, containing circular saws and other machinery, was burned September 18, 1887. Her son, Augustus R. Gilmore, testifies tbat, three days before tbe fire, be negotiated and completed an oral contract of insurance on the mill in tbe Phoenix Insurance Company, through tbe defendant as its agent. The defendant denies tbe making of such a contract, and says further that if he did, such a contract will not support an action against him. The plaintiff replies that if the defendant undertook to insure for the Phoenix Company, and had no authority to do so, he would for that reason be liable under proof of other essential requisites. The defendant, still protesting that he did not undertake to insure for the Phoenix Company, contends that if he did, and if for want of authority the company was not bound, still, this action, which is an action of assumpsit, can not be maintained against him; that the only remedy against him would be an action on the case for deceit.\\nThe defendant is undoubtedly right. It is settled in this state and Massachusetts, by a series of decisions commencing as far back as 1814, that the only remedy against one who undertakes to act as agent without authority, or in excess of his authority, is an action on the case for deceit. Noyes v. Loring, 55 Maine, 408. Affirmed in Teele v. Otis, 66 Maine, 329; Abbey v. Chase, 6 Cush. 54; Jefts v. York, 10 Cush. 392; Ballou v. Talbot, 16 Mass. 461; Long v. Colburn, 11 Mass. 97.\\n\\\"When one who. has no authority to act as another's agent, assumes so to act, and makes either a deed or a simple contract, in the name of the other, he is not personally liable on the covenants in the deed, or on the promise in the simple contract, unless it contains apt words to bind him personally. The only remedy against him, in this commonwealth, is an action on the case for falsely assuming authority to act as agent.\\\" Per Metcalf, J., 6 Cush. 54.\\n\\\"If one falsely represents that he has an authority, by which another, relying on the representation, is misled, he is liable; and by acting as agent for another, when he is not, though he thinks he is, he tacitly and impliedly represents himself authorized without knowing the fact to be true, it is in the nature of a false warranty, and he is liable. But in both cases, his liability is founded on the ground of deceit, and the remedy is by action of tort.\\\" Per Shaw, C. J., 10 Cush. 395.\\n\\\"The remedy against one who fraudulently represents himself as the agent of another, and in that capacity midertakes to make a contract binding upon his principal, is an action on the case for deceit, and not an action of assumpsit upon the contract. The gist of the action in such cases is not a failure to keep and perform a promise, but a false representation. The contract is necessarily void. It is not the contract of the principal, for the pretended agent had no power to bind him. It is not the contract of the agent, for in making it he did not attempt to bind himself. How then can such a contract be the basis of a suit ? Very clearly it cannot.\\\" 55 Maine, 411.\\nIn this case, the exceptions show that at the close of the judge's charge, at the special request of the plaintiff's attorney, the court instructed the jury, \\\"that if the defendant undertook to insure for the Phoenix Company, and had no authority to do so, he would for that reason be liable, under proof of other essential requisites.\\\" This was clearly erroneous. In an action on the case for deceit, such an instruction might be proper. In this action, it was clearly improper. The exceptions, therefore, must be sustained.\\nWe will now consider the motion. In Kidder v. Flagg, 28 Maine, 477, the court held that, where a declaration is on a special contract, the contract must be proved as set forth, or the plaintiff can not recover; that if the evidence, in reference to the contract, and the supposed breach thereof, is altogether variant from what is set out in the declaration, a verdict for the plaintiff, not being warranted by the evidence, must, on motion, be set aside and a new trial granted.\\nIn this case, the declaration contains three counts, each purporting to be upon a special contract, and the evidence supports no one of them. The first count alleges that the defendant promised to insure the plaintiff's mill in the Phoenix Insurance Company, but did not do so. The evidence of the plaintiff's son (and he is the only witness to the alleged contract) is, not of an executory contract, leaving something to be performed in the future, but of an' executed contract, a contract completed, leaving nothing further to be done to complete the insurance, and furnish the plaintiff with a remedy against the Phoenix Company, in case of loss ; for it is well settled that an oral contract of insurance, made with an agent, is binding on the company (Walker v. Ins. Co., 56 Maine, 371), even if the agent in making it dis obeyed his instructions (Packard v. Fire Ins. Co., 77 Maine, 144). The same objections exist with respect to the second and third counts, \\u2014 namely, that the plaintiff does not offer a scintilla of evidence of the making of such contracts as are therein set forth. The only contract, of which the defendant offers any evidence, is the one already described ; and that is a contract with the insurance conqmiy, made by its agent, and can not be made to support an action of assumpsit against the defendant. If the agent lacked authority to bind the company, still, it is not his contract; and the only remedy against him is an action on the case for deceit.\\nAt our consultation, immediately after the argument of this cause, wo were unanimously of the opinion that the verdict was clearly wrong. But as the case was one of considerable importance, and involved important questions of law, it was deemed advisable not to announce the decision then, but to take time and give the case a more careful examination. We have done so, and our convictions, that the verdict must be regarded as clearly and most manifestly against the weight of evidence, have been confirmed. On such a question it is never profitable to review the evidence in detail, and we shall refrain from doing so in this case. It is sufficient to say that, after a most careful examination of the evidence, such is the conclusion to which the court has arrived.\\nMotion and exceptions sustained.\\nPeters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.\"}"

me/587839.json

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+"{\"id\": \"587839\", \"name\": \"State of Maine vs. George Towle and another\", \"name_abbreviation\": \"State v. Towle\", \"decision_date\": \"1888-04-02\", \"docket_number\": \"\", \"first_page\": \"349\", \"last_page\": \"351\", \"citations\": \"80 Me. 349\", \"volume\": \"80\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:52:45.361913+00:00\", \"provenance\": \"CAP\", \"judges\": \"Peters, C. J., Danforth, Virgin, Emery and Foster, JJ., concurred.\", \"parties\": \"State of Maine vs. George Towle and another.\", \"head_matter\": \"State of Maine vs. George Towle and another.\\nKennebec.\\nOpinion April 2, 1888.\\nFishing. Great Fond. F. S., e. 40, \\u00a7 70.\\nRevised Statutes, c. 40, \\u00a7 70,\\\" prohibiting the use of a net other than a dip net, when fishing in fresh water, is applicable to Great Pond in Kennebec county.\\nOn exceptions from the superior court.\\nThe opinion states the case.\\nL. T. Carlton, county attorney, for the state.\\nII. M. Heath, for defendants.\\nThe point in issue is whether R. S., c. 40, \\u00a7 70, or c. 65 of the Public Laws of 1859, is the law prohibiting the taking of fish in Great Pond in Kennebec by use of nets other than a dip net. Chapter 65, Public Laws of 1859, reads as follows : \\\"Whoever sets any net ... in Snow, Great, Long, McGrath, North, East, or Richardson Ponds . . . for the purpose of taking, destroying or obstructing the free passage of fish therein, shall forfeit two dollars.\\nChapter 65, 1859, has remained unrepealed. See Repealing Act, R. S., c. 1871, p. 935. In enumerating acts of 1859, repealed, c. 65 is excepted. See note, R. S., 1871, p. 375, at end of c. 40, stating that e. 65, 1859, being of local interest only, is not incorporated in chapter, but still in force ; see also E. S., 1883, p. 384, containing same note at the end of c. 40, to the effect that c. 65, 1859, is still in force-; see also Eepealing Act, 1883, n. 996, subheading \\\"1859.\\u201d\\nWe contend that E. S., c. 40, does not apply to any pond or lake.\", \"word_count\": \"624\", \"char_count\": \"3380\", \"text\": \"Walton, J.\\nThe defendants have been tried and found guilty of the offense of using a net other than a dip net for the capture of fresh water fish in Great pond, in the county of Kennebec. This offense is described in E. S., c. 40, \\u00a7 70.\\nThe exceptions state that the defendants seasonably filed a motion in arrest of judgment, upon the ground that the acts alleged in the indictment constituted no offense under the section above mentioned; that the law governing such acts upon Great pond is the act of 1859, c. 65.\\nIt is not clear how such an objection can be taken in arrest of judgment; but as the justice of the superior court instructed the jury that the E. S., c. 45, \\u00a7 70, was applicable to Great pond, and as the question will become an important one when judgment upon the defendants is passed, the penalties under the two statutes being different, we have examined the question, and we have no doubt the ruling was correct.\\nIn 1869, our fishery laws underwent a very thorough revision. The revising act (Act 1869, c. 70) consisted of thirty-four sections, and, with a few exceptions therein mentioned, was made applicable to all the fresh waters of the state above the flow of the tide. The very first section of the act so declares. And, as none of the exemptions apply to Great pond, of course it was included within the operation of the act. Section 20 of that act is identical with section 70, c. 40, of the present Eevised Statutes. It was first copied into the revision of 1871, and from there into the present revision without the change of a single word. We have no,doubt it is the law of the land to-day, and has been ever since its enactment in 1869, and that it is applicable to Great pond, in the county of Kennebec, as well as to all the other fresh waters of the state not expressly exempted from its operation. Great pond is not exempted.\\nExceptions overruled.\\nPeters, C. J., Danforth, Virgin, Emery and Foster, JJ., concurred.\"}"

me/587872.json

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+"{\"id\": \"587872\", \"name\": \"In the case of Charles Merryfield, appellant\", \"name_abbreviation\": \"Case of Merryfield\", \"decision_date\": \"1888-03-06\", \"docket_number\": \"\", \"first_page\": \"233\", \"last_page\": \"234\", \"citations\": \"80 Me. 233\", \"volume\": \"80\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:52:45.361913+00:00\", \"provenance\": \"CAP\", \"judges\": \"Walton, Virgin, Emery, Foster and Haskell, JJ., concurred.\", \"parties\": \"In the case of Charles Merryfield, appellant.\", \"head_matter\": \"In the case of Charles Merryfield, appellant.\\nKnox.\\nOpinion March 6, 1888.\\nInsolvent law. Trader. S. /S'., c. 70, \\u00a7 46.\\nAn insolvent debtor, who, for several years \\u201cprior to his petition in insolvency, was engaged in purchasing small parcels of timber lands and timber growth, about three hundred acres in all, cutting and removing timber therefrom, manufacturing the same at his mill into staves and heading, constructing the manufactured materials into barrels at his shops, and transporting these products, with his teams, to market, for sale, the business involving the employment of from six to eleven men and a capital of eighteen hundred dollars, was held to be a trader within the meaning of the insolvent law.\\nOn appeal by an insolvent debtor from a decree of the court of insolvency, refusing a discharge, on the ground that the insolvent was a trader and kept no cash book, or other proper books of account.\\nThe facts are stated in the opinion.\\nTrue P. Pierce, for defendant.\\nWas Merryfield a trader within the meaning of ch. 70, \\u00a7 46, ofR. S.? \\u25a0\\nIn Sylvester v. Edgecomb, 76 Maine, 499, the court examine the question at issue, and therein they say, \\\"A trader is one who sells goods substantially in the same form in which they are bought.\\u201d\\nJ. E. Hanley, for the creditors,\\ncited: Groves v. Kilgore, 72 Maine, 489 ; In re Garrison, 7 N. B. R. 287; S. C. 5 Ben. 430; Bump. Bankruptcy, (9th ed.) 712.\", \"word_count\": \"542\", \"char_count\": \"3143\", \"text\": \"Peters, C. J.\\nThe question to be determined is, whether an insolvent debtor should or not be regarded as a trader, who, for several years prior to the date of his petition, was engaged in purchasing small parcels of timber land and growth upon land, about three hundred acres in all, cutting and removing timber therefrom, manufacturing the same, at his mill, into staves and heading, constructing the manufactured materials into casks and barrels at his shops, and transporting these products, with his teams, to market for sale, the business involving the employment of from six to eleven men besides himself, comprising lumbermen, mill men, coopers and teamsters, and his indebtedness of all kinds being not far from the sum of one thousand eight hundred dollars. He also occasionally sawed at his mill small amounts of lumber for others.\\nIt is clearly enough seen that he was a trader; that he should have kept books showing the application and use of the money which he became indebted for in his business, and that, failing to do so, without any excuse, he is not entitled to a discharge.\\nHis counsel contends, on the authority of the case of Sylvester v. Edgecomb, 76 Maine, 499, that a trader is one who sells goods in substantially the form that they are bought. But the same case also further declares that one engaged in the manufacture and sale of lumber may be a trader. In the case now before us, it appears that the insolvent was systematically engaged in a variety of business, which must have required the use of considerable capital or credit. He was constantly employed in manufacturing and selling his own and buying other goods.\\nDecree below affirmed.\\nWalton, Virgin, Emery, Foster and Haskell, JJ., concurred.\"}"

me/587916.json

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+"{\"id\": \"587916\", \"name\": \"A. R. Millett, appellant, vs. County Commissioners of Franklin County\", \"name_abbreviation\": \"Millett v. County Commissioners\", \"decision_date\": \"1888-06-23\", \"docket_number\": \"\", \"first_page\": \"427\", \"last_page\": \"430\", \"citations\": \"80 Me. 427\", \"volume\": \"80\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:52:45.361913+00:00\", \"provenance\": \"CAP\", \"judges\": \"Peters, C. J., Walton, Libbey, Foster and Haskell, JJ., concurred..\", \"parties\": \"A. R. Millett, appellant, vs. County Commissioners of Franklin County.\", \"head_matter\": \"A. R. Millett, appellant, vs. County Commissioners of Franklin County.\\nFranklin.\\nOpinion June 23, 1888.\\nWay. Practice.\\nWhen, on appeal, the ju dgment of county commissioners, locating a highway has been affirmed and the proceedings duly closed and recorded, the commissioners may, within the three years allowed for making and opening the way, entertain a petition praying for its discontinuance.\\nOn exceptions.\\nThe opinion states the case.\\nGeorge Walker, for appellants.\\nThe only way to defeat a location during the pendency of proceedings and before it is opened for the public travel, is by motion in the appellate court, or by certiorari, the remedies given by statute. All the parties to the proceeding are bound by the judgment of the appellate court.\\nA change in membership of the court of county commissioners released the court from no obligations, nor gave it any new powers under the statute. The court continues the same though its members may change in whole or in part between 1882 and 1886. The order of the appellate court is to the court or board of county commissioners and not to its members, and the inferior court must obey or be in contempt. The court speaks through its record, either to obey or disobey. We cite in support of the foregoing: Irving v. Go. Commissioners Sagadahoc Co. 59 Maine, 515 ; Harriman v. Co. Com. 53 Maine, 83 ; White v. Co. Com. 70 Maine, 328 ; Smith v. Co. Com. 42 Maine, 401.\\nJoseph C. Holman, for the appellee,\\ncited : 2 Met. 559 ; E. S., c. 18, \\u00a7 \\u00a7 7, 10, 36.\", \"word_count\": \"1118\", \"char_count\": \"6618\", \"text\": \"Virgin, J.\\nThe county commissioners, on due proceedings had, seasonably placed on file for inspection, at their December term, 1882, their return of the location of the highway prayed for, therein allowing three years for making and opening the way.\\nThe two towns, in which the way was located, seasonably appealed. The report of the committee duly accepted and judgment thereon entered, affirmed in whole the judgment of the commissioners, and the judgment of the appellate court was duly certified to the commissioners, at whose December term, 1883, the proceedings were duly closed and recorded.\\nIn June, 1886, before the expiration of thethi-ee years allowed for making and opening the way, the same towns filed a petition in the court of county commissioners praying for a discontinuance of the way theretofore located. At the time and place of hearing, the original petitioners for the way appeared and filed objections to any action of the commissioners in the premises. The objections were overruled and the commissioners made their return discontinuing the way. Thereupon the original petitioners appealed, entered their appeal and filed a motion to dismiss the petition for discontinuance on the ground of want of jurisdiction of the commissioners. The presiding justice overruled the motion and the original petitioners (appellants) alleged exceptions.\\nThe question, therefore, is: When, on appeal, the judgment of county commissioners locating a highway has been affirmed in whole and the proceedings duly closed and recorded, can the commissioners, within the three years allowed for ma\\u00eddo# and opening the way, entertain a petitiou praying for a discontinuance of the same way ?\\nWe are of opinion that they can. If, on appeal, the judgment of the commissionei's had been reversed, \\\"no petition praying, substantially, for the same thing, could be entertained by them for two years thereafter.\\\" R. S., c. 18, \\u00a7 50. That limitation does not apply when the judgment, as here, was affirmed; and even if it did, more than two years had elapsed before the filing of the petition for discontinuance.\\nWhen the proceedings on the original petition for location were closed,, the located way became an established fact. Hallock v. Franklin, 2 Met. 559. And in the absence of any statutory limitation relating thereto, we perceive no legal objection to the commissioners, entertaining a\\\" petition for the discontinuance of a legally located highway, at any time after the location has become an. established fact. \\\"The subsequent discontinuance of the highway, whether very soon after it has been established by the adjudication, or after a long lapse of time, is a new, substantive, distinct, official act. It does not rescind nor annul the former proceeding, but it assumes its continued existence as the basis of the discontinuance.\\\" Shaw, C. J., in Hallock v. Franklin, supra. The idea of the discontinuance of a highway after location and before opening is recognized also in Westbrook v. North, 2 Maine, 179. Moreover, many various changes of circumstances suggest themselves which would warrant a discon tinuance without waiting for the needless expenditure of building the new way.\\nThe appellants invoke the peremptory language of E. S., c. 18, \\u00a7 50; \\\"In all cases the commissioners shall carry into full effect the judgment of the appellate court in the same manner as if made by themselves.\\\" The- particular force of this provision is not so significant when, as in the case in hand, the judgment of the commissioners and that of the appellate court are the same, as when the former is reversed* in whole or in part, by the latter. But when the judgment of the appellate court was received by the commissioners, spread upon their record and the judgment made up accordingly and recorded, they had then \\\" carried it into full effect in the same manner as if made by themselves.\\\"\\nBut it is suggested that it was their duty to see to it that the towns liable therefor opened and made passable the located way within the time allowed to them, three years. But the power to cause the way to be op ened is not a part, or a continuation of their duty to locate, and which their board can exercise suo molu. Such action can be set in motion only by a distinct process, \\\"on a petition of those interested,\\\" and \\\"on a notice to the town,\\\" which has neglected its duty in the premises. E. S., c. 18, \\u00a7 37. Woodman v. Somerset Co. 25 Maine, 300.\\nIf it be said that uuder such an administration of the law, a highway can never be made in a town which was opposed to it, if its inhabitants can connive with the commissioners to locate in the first instance and then discontinue before the time for opening expires. One answer is, the right of appeal will correct such errors. Another is, the office of county commissioner is a public trust and the presumption is the incumbents will honestly perform their duty. And still another is the legislature may limit the time within which a located way may be discontinued.\\nExceptions overruled.\\nPeters, C. J., Walton, Libbey, Foster and Haskell, JJ., concurred..\"}"

me/589604.json

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+"{\"id\": \"589604\", \"name\": \"City of Bangor, Trustee, in equity, vs. Flavius O. Beal, and others, Trustees, and Bangor Mechanics' Association\", \"name_abbreviation\": \"City of Bangor v. Beal\", \"decision_date\": \"1892-11-16\", \"docket_number\": \"\", \"first_page\": \"129\", \"last_page\": \"134\", \"citations\": \"85 Me. 129\", \"volume\": \"85\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:27:34.246124+00:00\", \"provenance\": \"CAP\", \"judges\": \"Walton, Virgin, Libbey, Foster and Wi-iitehouse, JJ., concurred. Peters, C. J., did not sit.\", \"parties\": \"City of Bangor, Trustee, in equity, vs. Flavius O. Beal, and others, Trustees, and Bangor Mechanics\\u2019 Association.\", \"head_matter\": \"City of Bangor, Trustee, in equity, vs. Flavius O. Beal, and others, Trustees, and Bangor Mechanics\\u2019 Association.\\nPenobscot.\\nOpinion November 16, 1892.\\nBevised Statutes, c. 3, \\u00a7 \\u00a7 51, 52 ; c. 45, \\u00a7 1; c. 77, \\u00a7 6, par. VII.\\nA testator bequeathed to the .city of Bangor $100,000, \\u201cthe principal to be held in trust, and the income thereof applied and appropriated by said city for the promotion of education \\u201d and other charitable purposes. This fund came into the control and management of a board, Trustees of the Hersey Eund, appointed by the city under an ordinance, who, in accordance therewith, invested the fund in securities and devoted the net annual income for a public library composed in part of books and funds contributed by others, pursuant to .an agreement made under the provisions of the ordinance.\\nBy a subsequent ordinance of the city council, the city voted to withdraw from its trustees the care and control of the principal of the fund, but leaving to them all their other powers, including the control and direction of the library and the care and control of the income of the fund; and directed the trustees to pay over and deliver the principal to the city treasurer.\\nUpon a bill filed by the city, seeking to enforce the latter ordinance, Held; That the city council, representing the city of Bangor, the beneficiary and trustee under the will of the testator, has the right to resume the possession and active, direct control of the principal of the fund; And, that the city under the statute (JR. S., c. 3, \\u00a7 \\u00a7 51, 52) being authorized to accept the fund can appoint agents or trustees to manage it, being responsible for them and its security.\\nA trustee by investing trust funds in his own business, or for his own benefit or accommodation, hecomes an insurer of the fund and its productiveness; and in such case cannot have the previous opinion of the court, under II. S., c. 77, \\u00a7 6, par. VII, upon the expediency of the investment; or the determination of hypothetical questions, such as the rate of interest the city is liable to pay.\\nOn report.\\nBill in equity heard on bill, answers and testimony, and was certified to the law court under R. S., c. 77, \\u00a7 43.\\nThis was a bill of interpleader filed by the city of Bangor to obtain the direction of the court upon the facts, which are sufficiently stated in the opinion, relating to the Hersey fund. The managers of the fund appointed under an ordinance of the city and the Mechanics\\u2019 Association were made parties. The prayer of the bill asked the court for instructions as to the respective rights and duties of the parties, and particularly : first, to decide and instruct the parties whether, under the conditions of the will and other facts, the city under the circumstances detailed or proved has the right to appropriate the principal of the Hersey fund for the erection of such a permanent building as is proposed; second, whether the city had or has the right as claimed after the agreement, as set forth by the respondent Association, had been made in 1883, and acted upon until 1892, to amend and alter the terms of the ordinance as was done by the amended ordinance without the assent of said Association,\\u2014 and under said amended ordinance to require the respondent (managers) trustees to pay and deliver to the city treasurer the bonds, stocks, securities and money forming the principal of said fund.\\nH. L. Mitchell, City Solicitor, for City of Bangor.\\nA. W. Paine, for Trustees of Hersey Fund.\\nAppleton and Qhaplin, for Mechanics\\u2019 Association.\", \"word_count\": \"2176\", \"char_count\": \"12443\", \"text\": \"Emery, J.\\nThe following narrative of facts abridged from the bill, answers and evidence, will sufficiently indicate the question to be determined.\\nSamuel F. Hersey bequeathed to the City of Bangor $100,000 \\\" the principal to be held in trust, and the income thereof applied and appropriated by said city for the promotion of education, \\\" etc. This sum was accordingly paid over to the city by the executors, and the city duly accepted the same by a vote of its City Council passed March 6, 1883.\\nThe city by an ordinance of its City Council passed March 13, 1883, placed the funds so received in the care and custody of a board of five men, styled \\\"Trustees of the Iidi'sey Fund.\\\" By this ordinance, these trustees were directed to keep the fund distinct from any other moneys held by the city; to keep the principal up to the full sum of $100,000 ; and to devote the remainder of the net annual income of the fund to the establishment and perpetual maintenance of a public library in Bangor, either independently, or in connection with some existing: library.\\nThere was at this time existing in Bangor a library owned by the Bangor Mechanic Association. The books were worth nearly $20,000, and the association also had a library fund of some $12,000 held by the city in trust. This association and the trustees under the city ordinance made a contract, dated May 21, 1883, in which it was stipulated that all the books of the existing library of the association, and all such new books as might be purchased with the proceeds of the funds of the association, should be transferred to the city to hold in trust for a \\\"Public Library,\\\" to be used in common with such books as might be purchased by the income of the \\\"Hersey Fund.\\\"' It was also stipulated that the income of the association funds,, and the income of the \\\"Hersey Fund,\\\" should be perpetually devoted to the maintenance of the public library so established.\\nIt was further stipulated that the whole library should be exclusively and entirely under the control and direction of a, \\\"Board of Managers\\\" to consist of five trustees of the Hersey Fund, and such officers of the association, not exceeding four,, as the association should appoint. The association made the-transfer immediately thereafter in accordance with the contract,, and the city by a vote of the City Council, passed June 5,1883,. ratified the contract and accepted the transfer on the terms and conditions therein named.\\nThe Public Library thus established has been maintained ever since by the income of the Association Fund and by the income of the Hersey Fund and has been controlled and directed by the board of managers provided for in the contract.0 The principal of the Hersey Fund has been in the control of the trustees of the Hersey Fund as provided in the ordinance of March 13, 1883, and the net income has been exclusively devoted to the library.\\nIn August, 1892, the City Council of Bangor amended the ordinance of March 13, 1883, so as to withdraw from the trustees of the Hersey Fund the care and control of the principal of the fund, but leaving to them all their other powers, including the control and direction of the library and the care and control of the income of the fund, to be by them devoted to the perpetual maintenance of the library. The City Council thereupon passed a vote directing the trustees of the Hersey Fund to pay and deliver to the city treasurer all. the money and securities constituting the principal of the Hersey Fund to the amount of $100,000. The trustees have declined to do so. The city thereupon has filed this bill against the trustees and the Bangor Mechanic Association and prays for a decree that such transfer be made.\\nWere it not for the contract made with the Bangor Mechanic Association, no question would probably be made. Mr. Hersey selected the city as his trustee. He bequeathed the fund to the city. The city under our law (B. S., c. 3, \\u00a7 51) was authorized to accept such funds and execute such trusts. Like other trustees, the city took the legal title in the fund. Like other trustees the city had the task and responsibility of its safe and fruitful investment. Like other trustees, the city had the consequent right and power to manage the fund, at least within the lines laid down in the instrument creating the trust. The City Council stands for the city in all these respects. It could appoint agents or trustees to manage the fund, and be responsible for them. (B. S., c. 3, \\u00a7 52.) It could discharge such agents and appoint others, or could dispense with them altogether, and manage the fund directly by its own votes. The power accompanies the responsibility.\\nHas the city by the contract with the Bangor Mechanic Association freed itself from this responsibility and deprived itself of this power as to the principal of the fund? We do not find in the contract, even read in connection with the ordinance, any stipulation to that effect. There are stipulations as to the application of the income, and as to the government of the library, and these are left in full force by the new ordinance and vote of August, 1892. There is, however, no stipulation that the city shall make no change in the management or investments of the principal. The city retains the title and ownership of the fund and remains responsible for its proper investment. (B. S., c. 3, \\u00a7 52.) The loss of the funds from improper investments would fall primarily on the city the trustee which had accepted the trust and undertaken its execution. All proceedings by the Attorney General in behalf of the public in relation to the fund, would be against the city. The city could not avoid such litigation and liability by pleading the ordinance of March 13, 1883, or the contract with the Mechanic Association. If, therefore, the ordinance and the contract have not lifted from the city its original responsibility for the safety and fruitfulness of the fund, they have not taken away from the city its original power over the principal of the fund. The power remains with responsibility.\\nThe bill further states that the City Council, upon recovering possession of the principal of the fund, proposes to invest it in the construction of a public building in the city to be called \\\"The Hersey Memorial Building,\\\" and to be owned, controlled and largely occupied by the city with its various departments and boards or committees. The bill then asks that the court approve the proposed investment, under E. S., c. 77, \\u00a7 6, par. VII.\\nWe see no occasion for the court to express any opinion on the propriety or wisdom of the proposed investment. A trustee by investing trust funds in his own business, or for his own benefit or accommodation, becomes an insurer of the fund and of its productiveness. In such case no question can arise as to the wisdom or folly of the investment.\\nThe statute also (E. S., c. 3, \\u00a7 52,) makes the city an insurer in such cases. It is only in making investments entirely outside of, and apart from his own property or interests, that a trustee can have the previous opinion of the court.\\nIt is still further suggested in the pleadings and the briefs of counsel that, in the event it is held that the city can resume the possession and direct control of the principal of the fund, and upon the hypothesis that the city will use the fund as proposed, the court will determine what rate of interest, or income, the city shall allow therefor to the trustees of the Hersey Fund and managers of the Public Library.\\nThe court clearly should not answer hypothetical questions. The actual controversy has not yet arisen. It may never arise. The full contingency stated may never happen. If it does happen there may still be no controversy. The amount the city might voluntarily offer might be satisfactory. Again, the public may have an interest in that- question and the Attorney General may claim the right to intervene.\\nWe may remind the parties, however, of the general principle that a trustee making use of trust funds is accountable at least for legal interest thereon (Perry on Trusts, \\u00a7 468) ; and that in this State the legal rate of interest, when not otherwise expressed in writing, is six per cent per annum. The statute declaring that interest shall be allowed if the trust fund is used by the municipality (R. S., c. 3, \\u00a7 52,) does not name any other rate. See also case Ludwick v. Huntzinger, 5 Watts and Serg. 51, cited with approval in Eaton v. Boissonnault, 67 Maine, 540.\\nBut we only decide the single question imposed on us by the pleadings and evidence. We only decide that the City Council, representing the city of Bangor, has the right to resume the possession and active, direct control of the principal of the \\\"liersey Fund.\\\"\\nBill sustained and decree to be made according to the opinion.\\nWalton, Virgin, Libbey, Foster and Wi-iitehouse, JJ., concurred. Peters, C. J., did not sit.\"}"

me/596022.json

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+"{\"id\": \"596022\", \"name\": \"Penobscot Development Company vs. William Scott\", \"name_abbreviation\": \"Penobscot Development Co. v. Scott\", \"decision_date\": \"1931-11-18\", \"docket_number\": \"\", \"first_page\": \"449\", \"last_page\": \"456\", \"citations\": \"130 Me. 449\", \"volume\": \"130\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T02:08:08.774513+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Pattangall, C. J., Dunn, Sturgis, Barnes, Farrington, Thaxter, JJ.\", \"parties\": \"Penobscot Development Company vs. William Scott.\", \"head_matter\": \"Penobscot Development Company vs. William Scott.\\nAroostook.\\nOpinion November 18, 1931.\\nJ. F. Gould,\\nBallard F. Keith, for plaintiff.\\nThomas S. Bridges,\\nJ. F. Burns,\\nR. S. Shaw, for defendant.\\nSitting: Pattangall, C. J., Dunn, Sturgis, Barnes, Farrington, Thaxter, JJ.\", \"word_count\": \"2079\", \"char_count\": \"12182\", \"text\": \"Pattangall, C. J.\\nOn motion. Trespass quare clausam. Verdict for defendant. Plaintiff's declaration describes two tracts of land, both situate in Reed Plantation \\u2014 the first being known as Section 23 in Southern Petitioners' Tract, containing five hundred thirty-six acres, eighteen acres having been conveyed to Mary Scott, wife of defendant, in 1910; the second being that portion of two one hundred acre lots numbered 26 and 28 in the Squatters' Lots so-called which remained after conveying to defendant in 1910 a twenty-two and one-half acre strip thirty-six rods wide on the west end of both lots.\\nThe particular trespass declared on, so far as Section 23 is concerned, is alleged to have occurred on January 1, 1930, and to have consisted in cutting and removing therefrom thirty-six cedar ties and three or four cords of spruce and fir wood. That declared on with regal'd to Lots 26 and 28 is alleged to have occurred on the same date and involved cutting and removing from these lots seven spruce and fir trees.\\nDefendant pleaded the general issue, but by his brief statement asserted title by adverse possession to the entire tracts described in plaintiff's declaration. The record title of the property is admittedly in plaintiff. It was acquired by purchase from the Springer Lumber Company in 1921, which traced its title to the original owners of the township through various mesne conveyances and partition proceedings.\\nThe burden of proof of title by adverse possession being upon him who alleges it, Landry v. Giguere, 127 Me., 268, and cases cited, and defendant having admitted acts which, unless justified by his claim of title, constitute trespass, he is entitled to a verdict only on the theory that he has acquired title to the land on which they occurred.\\nThe issue is clearly defined. If upon any reasonable interpretation of the evidence he has sustained the burden assumed by him, the finding of the jury must stand; otherwise not.\\nConcerning certain facts, there is no controversy. It appears that some forty years ago, defendant accompanied by his wife came to Reed Plantation and cleared a small tract of land on Section 23 on the westerly side of a highway leading, in a general northerly direction from the settlement of Wytopitlock. Later this clearing was enlarged to include eighteen acres and extended across the highway so as to embrace a triangular piece of land containing approximately four acres on the easterly side thereof. Along both sides of this highway and south of defendant's clearing other settlers had located homes, among them being one Hardin Smith, who occupied a strip of land east of the highway on the westerly portion of what later became known as Squatters' Lots 26 and 28.\\nNone of these settlers occupied by right of purchase. They settled on the land, as did the defendant, in the manner of the early pioneers, built log huts from the trees which they cut down in making their clearings, after a time cultivated portions of the land, used some for pasture, cut firewood from the adjoining woods and logs for fences, generally occupying such of the territory as satisfied their limited needs, exactly as though they owned the fee.\\nThe land was of small value and the clearings were not extensive. The owners of the township, after years had passed, recognized within certain limits the rights which were acquired by these so-called squatters, and the titles by prescription were in several cases confirmed by deed.\\nThe deed of eighteen acres to defendant's wife included the original clearing on Section 23. The deed to defendant of twenty-two and one-half acres in lots 26 and 28 included land on which Hai'din Smith settled and on which, after his death, defendant's father lived and died. These deeds are claimed by plaintiff to limit defendant's holdings.\\nHis claim to more extensive ownership is based on the theory that irrespective of these deeds, he acquired by adverse possession the whole of Section 23, and that by continued adverse possession of Hardin Smith, his father, and himself, acquired title to the whole of Squatters' Lots 26 and 28.\\nIt was incumbent on plaintiff, as a part of its prima facie case, to prove trespass by defendant during the period of its ownership. It offered no evidence in support of its allegation that defendant had within that time trespassed on lots 26 and 28. There was testimony that six or seven trees were cut on one of these lots, near the dividing line between them; but as to who cut them or when, the record is silent. Had the case involved these lots alone, regardless of the merits of the controversy between the parties as to title, the verdict, on this record, would have been justified.\\nThere was testimony that since plaintiff purchased the land, defendant cut cedar ties on Section 23, in the vicinity of the eighteen acre lot, the record title to which was in defendant's wife and to which defendant had apparently acquired title by adverse possession prior to the conveyance to her. The sole witness whom plaintiff called on this point testified that these trees were cut easterly of the lot and \\\"might have been some of it cut westerly\\\" thereof. Defendant, whom the jury had a right to believe, testified that they were cut \\\"between me and the Mann land,\\\" evidently meaning between the eighteen acre lot and the east line of Section 23. This would apparently locate the cutting within the limits of the four acre triangle lying east of the highway, separated by it from the eighteen acre lot. The evidence is conclusive that defendant had acquired title by adverse possession to this small tract. This cutting, therefore, did not constitute a trespass.\\nThere was, however, evidence offered by plaintiff that after it purchased the land, defendant cut wood \\\"right along the road in 23.\\\" This could not be accepted as sufficient proof of trespass, even on plaintiff's theory, because defendant had unquestioned title to certain land along the road in Section 23. Plaintiff rested, therefore, without having proved any actionable trespass on the part of defendant, but defendant supplied the omission. He testified, in answer to a leading question by his counsel, that the wood which plaintiff's agent referred to as having been cut \\\"right along the road in 23\\\" was cut \\\"just northerly of the eighteen acre piece,\\\" and that, even after having been forbidden to do so, he continued to cut and peel pulpwood at that point. This admitted an act of trespass, as charged in the writ, unless defendant proved his title to Section 23 aside from the land embraced in the eighteen acre lot and four acre triangle.\\nHis claim, in that respect, rested entirely upon his unsupported evidence. The testimony of Mrs. Scott corroborated only their occupation and use of that pa-i-t of Section 23 which made up the twenty-two acres comprising their farm and pasture and to Squatters' Lots 26 and 28.\\nHe testified that the logs from which his house and barn were built and those that he used for fencing and firewood came from Section 23 but did not state whether from that part to which he unquestionably gained title by adverse possession or from the part in dispute; and there is no evidence that he cultivated, cleared', fenced or used as pasture any other part of Section 23. The only use he had made of the land in dispute was to cut saw logs, poles, ties and pulpwood thereon at different times during forty years. Neither the exact location, the time of such cutting, nor the quantity cut is stated, but the fair inference from his testimony is that the operations were small and occurred at irregular intervals. They \\\"comport far more nearly with acts of mere trespass than to actual occupation and possession.\\\" Webber v. Barker, 121 Me., 265.\\nBut defendant contends that while the evidence would not sustain a finding that adverse possession at common law of the five hundred thirty-six acres of woodland had been proved, he is nevertheless entitled to a verdict by reason of the provisions of Sec. 10, Chap. 119, R. S. 1930:\\n\\\"To constitute a disseizin, or such exclusive and adverse possession of lands as to bar or limit the right of the true owner thereof to recover them, such lands need not be surrounded with fences or rendered inaccessible by water; but it is sufficient, if the possession, occupation, and improvement are open, notorious, and comporting with the ordinary management of a farm; although that part of the same, which composes the woodland belonging to such farm and used therewith as a woodlot, is not so enclosed.\\\"\\nThe case therefore resolves itself into a single simple proposition. May one who acquires title by adverse possession to a twenty-two acre clearing in the forest sustain a claim of ownership to nearly a square mile of adjoining timberland simply because he has at various times during forty years cut an uncertain quantity of logs therefrom and converted them to his own use? The question answers itself. There is nothing in the record which would justify the conclusion that defendant's use of the premises in question \\\"comported with the ordinary management of a farm,\\\" or that this extensive property was a mere woodlot, appurtenant to the modest estate which by praiseworthy energy and industry defendant and his wife had carved out of the wilderness.\\nHolden v. Page, 118 Me., 245, and Power Co. v. Rollins, 126 Me., 306, are relied upon by defendant. These cases are authority for the statement that \\\"when land is contiguous to improved and cultivated land and commonly used therewith for fuel, fencing, repairs or pasturing, it is no longer wild land.\\\" This statement of the law is unquestionably correct when applied to the facts involved in those cases, and title to such land may be acquired under the terms of the statute above referred to. But that statute, being in derogation of common law, must be strictly construed and it by no means follows that all land contiguous to improved and cultivated land to which title has been gained by adverse possession ceases to be wild land and becomes a woodlot in the purview of the statute simply because the owner of the improved land has cut fuel or fencing or lumber for repairing from a portion of it or used a part of it for pasture.\\nTo so hold would enable a settler on a ten acre lot to acquire title to an entire township of timberland by exercising a limited dominion over a small portion of it. The land must be used in connection with the farm and be of such an extent and nature as to become a part thereof. Its use by the owner of the farm must be as a woodlot. The statute must be given a reasonable construction and the cases in which it has been considered by this Court have been decided on that basis.\\nWhile it is impossible to exactly define the line of demarcation between a woodlot and a tract of wild land, yet as a practical matter, there is usually no difficulty.in distinguishing one from the other. There certainly is none in the case at bar. Evidence was offered tending to show that between 1903 and 1920 approximately 1,500,000 feet of logs were cut from this lot by parties holding the record' title, and that it is heavily wooded at the present time. It could not be reasonably said that the five hundred thirty-six acres of timberland belonged t'o the twenty-two acre farm or, in the language of the statute, were \\\"part of the same.\\\" Adams v. Clapp, 87 Me., 321. The size of the tract, the quantity of timber growing thereon, and the use made of it by defendant, are inconsistent with the ordinary conception of a woodlot. It was apparently wild land.\\nThe testimony was voluminous and confusing. The simple issue involved was obscured by many controversies concerning collateral and unimportant matters. A study of the entire record, even when viewed most favorably for the defendant, leads to but one conclusion. The verdict is not supported by the evidence.\\nMotion sustained.\"}"

me/596069.json

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+"{\"id\": \"596069\", \"name\": \"Philip Blumenthal vs. Louis Serota\", \"name_abbreviation\": \"Blumenthal v. Serota\", \"decision_date\": \"1931-06-03\", \"docket_number\": \"\", \"first_page\": \"263\", \"last_page\": \"266\", \"citations\": \"130 Me. 263\", \"volume\": \"130\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T02:08:08.774513+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Pattangall, C. J., Dunn, Sturgis, Barnes, Farrington, Thaxter, JJ.\", \"parties\": \"Philip Blumenthal vs. Louis Serota.\", \"head_matter\": \"Philip Blumenthal vs. Louis Serota.\\nCumberland.\\nOpinion June 3, 1931.\\nAbraham Breitbard,\\nFrank H. Haskell, for plaintiff.\\nIsrael Bernstein, for defendant.\\nSitting: Pattangall, C. J., Dunn, Sturgis, Barnes, Farrington, Thaxter, JJ.\", \"word_count\": \"806\", \"char_count\": \"4773\", \"text\": \"Sturgis, J.\\nAction of assumpsit against the malier of a promissory note secured by a mortgage of real estate. Upon plea of general issue with brief statement, the defendant has a verdict. The plaintiff brings the case here upon general motion and exceptions.\\nThe Bill of Exceptions shows that on April 3,1926, the defendant gave the plaintiff his promissory note for three thousand dollars, payable in two years after date with interest at seven per cent, secured by a second mortgage on a parcel of real estate in Portland. Later, the equity of redemption passed through successive grantees to Thomas H. Fahey and Daniel C. Cavanaugh, each successively assuming and agreeing to pay the mortgage debt.\\nThere is evidence tending to show that on or about February 21, 1929, more than six months after the maturity of the note, the plaintiif, having knowledge of the assumption of the mortgage debt by Fahey and Cavanaugh, in consideration of their payment of ten per cent interest for the preceding six months period and their promise to pay a like increased rate for the next half year and an indefinite period thereafter, agreed with them to extend the time for payment of the note for six months. This was without the knowledge or consent of the defendant.\\nUpon this evidence, a verdict for the defendant would not have been clearly wrong under the rule recently stated in our review of a previous trial of this case. Blumenthal v. Serota, 129 Me., 188. If a mortgagee, with knowledge of the conveyance of the equity of redemption of a parcel of real estate by the mortgagor and the assumption by the grantee of the mortgage debt, extends the time of payment by a valid agreement between him and the grantee, such extension operates as a discharge of the original mortgagor, unless it is known and assented to by him or his liabilities are preserved by express reservation. The plaintiif can not prevail upon his general motion or his exceptions to the denial of his motion for a directed verdict.\\nIt appeal's, however, from the charge of the presiding Justice that, at the trial, the defendant presented the further claim that the plaintiif not only assented to the assumpion of the mortgage debt by Fahey and Cavanaugh, but accepted them as his debtors in place of the mortgagor, releasing him from his original liability. If sustained by the proof, this claim also would be a complete defense to this action. Jones on Mortgages (Third Ed.), Sec. 983; 41 C. J., 733; Webster v. Fleming, 178 Ill., 140; Bank v. Ashton, 200 N. Y. S., 245; Urquhart v. Brayton, 12 R. I., 169. Not supported by evidence of probative value, it served, however, only to invite instructions which, though correct as abstract principles of law, were inapplicable to the case for want of testimony upon which they can rest and must be held erroneous. Witzler v. Collins, 70 Me., 290, 299; Hopkins v. Fowler, 39 Me., 568.\\nThe plaintiif's exception to the instructions given the jury reaches this error. Read in the light of the language of the charge, the ground of exceptions, stated at the trial and brought forward in the Bill, are that, there being no evidence that the plaintiff \\\"assented\\\" to the assumption of the mortgage debt by Fahey and Cavanaugh, in the sense of accepting them as his debtors in place of the original mortgagor, that issue was not properly before the jury. The presiding Justice had so used and defined \\\"assent\\\" in his charge, submitting the question of its existence as an independent defense, additional to that which would result from a finding that the mortgagee extended the time for payment of the mortgage debt without the knowledge or consent of the mortgagor. The exception was directed to this instruction only and was noted in sufficiently clear and appropriate language, we think, to leave no reasonable doubt of its intended application. There is no breach of the rule that the excepting party is confined to grounds expressly stated at the trial or contained in his exceptions.\\nUnfortunately, there is nothing in the record before us to indicate upon which of the two defenses submitted the verdict rests. The jury may have been misled, rendering their verdict under a rule of law here inapplicable. It not appearing as a matter of law that, upon proper instructions, a contrary verdict could not have been properly found, the plaintiff is aggrieved and his second Exception must be sustained. Colbath v. Lumber Co., 127 Me., 406; Starkey v. Lewin, 118 Me., 87; Coombs v. Fessenden, 114 Me., 347, 354.\\nExceptions sustained.\"}"

me/603290.json

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+"{\"id\": \"603290\", \"name\": \"Frank S. Carpenter Treasurer of State of Maine vs. Estate of Joseph Coulombe\", \"name_abbreviation\": \"Carpenter v. Estate of Coulombe\", \"decision_date\": \"1950-10-19\", \"docket_number\": \"\", \"first_page\": \"400\", \"last_page\": \"402\", \"citations\": \"145 Me. 400\", \"volume\": \"145\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:00:22.375599+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Murchie, C. J., Thaxter,' Fellows, Merrill, ..Nulty, Williamson, JJ.\", \"parties\": \"Frank S. Carpenter Treasurer of State of Maine vs. Estate of Joseph Coulombe\", \"head_matter\": \"Frank S. Carpenter Treasurer of State of Maine vs. Estate of Joseph Coulombe\\nKennebec.\\nOpinion, October 19, 1950.\", \"word_count\": \"401\", \"char_count\": \"2394\", \"text\": \"Per curiam.\\nOn report with agreed statement of facts and argument in writing. This is an action by the Treasurer of the State brought on March 1, 1950 in the Superior Court in Kennebec County to recover from the defendant the cost of his support at the Augusta State Hospital.\\nThe defendant in 1934 upon trial for murder was found \\\"not guilty by reason of insanity\\\" and was then committed to and remains confined at the State Hospital. Defendant is a veteran of the armed services and on March 4, 1936 the guardian, who appears for his ward in this action, was appointed pursuant to the provisions of the Uniform Veterans' Guardianship Act (then R. S., Chap. 81, 1930). The estate of the ward as of March 4, 1950 consisted of assets derived from non-service connected benefits paid by the Veterans Administration.\\nThe report must be discharged. There is nothing in the record before us to show that the office of Veterans Administration having jurisdiction over Kennebec County has received any notice whatsoever of the pending action. In absence of proof of the required notice or waiver thereof, our courts cannot proceed. We cannot assume that the Administrator (the Administrator of Veterans Affairs of the United States) has no interest in the case. Uniform Veterans' Guardianship Act (Laws of 1949, Chap. 230, Sec. 2).\\nIt may be noted that the obligation of the defendant to pay for support at the State Hospital arises not from a contract, expressed or implied, but solely by statute. During the period covered by the action, the statute remained unchanged and is now found in R. S., Chap. 23, Sec. 122 (1944).\\nTo enable a court to render final and complete legal determination, the record must contain necessary information to determine liability. Cases to which reference may be made are: Orono v. Peavey, 66 Me. 60 (1876); Cape Elizabeth v. Lombard, 70 Me. 396 (1879); Bangor v. Wiscasset, 71 Me. 535 (1880); Greenville v. Beauto, 99 Me. 214, 58 A. 1026 (1904); Chaplin v. National Surety Corp., 134 Me. 496, 185 A. 516 (1936).\\nThe entry will be:\\nReport Discharged.\\nRalph W. Farris, Attorney General, John S: S. Fessenden, Deputy Atty. Gen., for plaintiff. '\\n\\u00d1unzi Napolitano, for defendant.\\nSitting: Murchie, C. J., Thaxter,' Fellows, Merrill, .Nulty, Williamson, JJ.\"}"

me/615869.json

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+"{\"id\": \"615869\", \"name\": \"State of Maine vs. Dan Sobel\", \"name_abbreviation\": \"State v. Sobel\", \"decision_date\": \"1924-07-12\", \"docket_number\": \"\", \"first_page\": \"35\", \"last_page\": \"36\", \"citations\": \"124 Me. 35\", \"volume\": \"124\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:15:55.826297+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Cornish, C. J., Philbrook, Morrill, Wilson, Deasy, JJ.\", \"parties\": \"State of Maine vs. Dan Sobel.\", \"head_matter\": \"State of Maine vs. Dan Sobel.\\nKnox.\\nOpinion July 12, 1924.\\nIn a mere statement of venue contained in a complaint one place may be alleged and another proved provided both are within the jurisdiction of the court.\\nIn a search and seizure proceeding the complaint must contain a special designation of the place to be searched. In this case the place is clearly designated. The fact that the venue is laid in one town and the place to be searched is described as in another, both being in the same County, is immaterial.\\nOn exceptions. A search and seizure process. The respondent was tried to a jury and found guilty and his counsel filed a motion in arrest of judgment alleging that the complaint was fatally defective in that the premises to be searched were stated therein to be in Camden, while the venue was laid therein in Rockland, which motion was overruled and respondent excepted.\\nExceptions overruled.\\nThe case is stated in. the opinion.\\nZ. M. Dwinal, County Attorney, for the State.\\nOscar H. Emery, for the respondent.\\nSitting: Cornish, C. J., Philbrook, Morrill, Wilson, Deasy, JJ.\", \"word_count\": \"370\", \"char_count\": \"2109\", \"text\": \"Deasy, J.\\nSearch and seizure process. In the complaint the premises to be searched are stated to be in Camden. The venue is laid in Rockland. The respondent contends that this creates a fatal defect. Not so. As required by the Constitution (Article I., Section 5) and by the Statutes of the State (R. S., Chap. 127, Sec. 29) the complaint contains a \\\"special designation of the place to be searched.\\\" The description is so clear as to leave no doubt as to the place intended. The laying of venue is no part of such designation. The fact that it names another place in the same County is immaterial. It is well settled that in a mere statement of venue one place may be alleged and another proved, provided that both are within the jurisdiction of the court. State v. Mahoney, 115 Maine, 256, 14 R. C. L., 181; Commonwealth v. Tolliver, 8 Gray, 386; Commonwealth v. Lavery, 101 Mass., 208; Commwealth v. Snell, 189 Mass., 17; Ledbetter v. United States, 170 U. S., 606.\\nExceptions overruled.\\nJudgment for the State.\"}"

me/620124.json

@@ -0,0 +1 @@
+"{\"id\": \"620124\", \"name\": \"Humphreys versus Swett & al.\", \"name_abbreviation\": \"Humphreys v. Swett\", \"decision_date\": \"1850\", \"docket_number\": \"\", \"first_page\": \"192\", \"last_page\": \"195\", \"citations\": \"31 Me. 192\", \"volume\": \"31\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:56:33.740346+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Humphreys versus Swett & al.\", \"head_matter\": \"Humphreys versus Swett & al.\\nCreditors of a certificated bankrupt are not precluded from maintaining a suit against him, upon a demand, which, was proveable in bankruptcy, if they succeed in impeaching the discharge, for some fraud or wilful concealment, by the bankrupt, of his property or right of property.\\nIf a creditor, whose claim was proved by him, and was allowed in bankruptcy, would avail himself of any such fraud or wilful concealment, or of any unlawful preference of creditors by the bankrupt, he can do it only by objecting, in the court of bankruptcy, to the granting of a discharge to the bankrupt.\\nA creditor, after the granting of such a discharge, is precluded by the bankrupt law from maintaining a suit against the bankrupt, upon any claim, which such creditor had proved, and which had been allowed to him in the court of bankruptcy.\\nAssumpsit, for money paid. Green, one of the defendants, was defaulted. Swett, the other defendant, filed a brief statement of discharge in bankruptcy. The plaintiff, to impeach the discharge, filed specifications of fraud and wilful concealment by the bankrupt, of his property and rights of property, and of unlawful preference of creditors.\\nOn the trial, before Howard, J. it appeared that, before the discharge was granted, the plaintiff had proved his claim, and that it had been allowed to him, in the court of bankruptcy.\\nA nonsuit was ordered, subject to the opinion of the full court.\\nG. F. Shep ley, for the plaintiff.\\nThe discharge of a bankrupt may be impeached for any fraud or wilful concealment of his property, contrary to the provisions of the bankrupt act, upon notice specifying such fraud or concealment. This may be done at any time subsequent to the granting of the discharge, as well as before. Vide Bankrupt Act, \\u00a7 2 and 4; Chandler\\u2019s Bankrupt Act, pp. 15, 22, 24.'\\n\\u00a13. Fessenden and Barrows, for the defendant Swett.\", \"word_count\": \"1293\", \"char_count\": \"7554\", \"text\": \"Tenney, J.\\nThe defendant Swett, filed bis petition in bankruptcy on Jan. 28, 1843, and obtained his discharge and certificate on June 20, 1848. The plaintiff, as indorser of the defendants, paid the sum of $217,47 before the petition in bankruptcy was filed, and he proved his claim against their estate in bankruptcy, and received a dividend thereon of $84,81. This suit is assumpsit upon the original cause of action. Green, one of the defendants, was defaulted, and Swett, the other defendant, pleads his discharge and certificate as a defence. The plaintiff attempts to avoid the discharge and certificate, by impeaching them on the ground of fraud, unlawful preference, and concealment of property, contrary to the provisions of the bankrupt act, having given in writing notice thereof, specifying such fraud, preference and concealment.\\nBy the bankrupt act of the United States, approved August 19, 1841, in section 4, bankrupts, having complied with the provisions of the act, shall be entitled to a full discharge from all their debts, and a certificate shall be granted accordingly. Such discharge and certificate are not to be granted, until after notice to all creditors, who have proved their debts, and other persons in interest, to appear at a particular time and place, to show cause, why such discharge and certificate shall not be granted; at which time and place any such creditor, or other persons in interest, may appear and contest the right of the bankrupt thereto. And if any such bankrupt shall be guilty of any fraud or wilful concealment of his property, or rights of property, or shall have preferred any of his creditors, contrary to the provisions of this act, he' shall not be entitled to any such discharge, or certificate. Where such discharge and certificate are duly granted, they shall in all courts of justice be deemed a full and complete discharge of all debts, contracts or other engagements of such bankrupt, which are proveable under this act, and shall be and may be pleaded as ahull and complete bar to all suits, brought in any court of judicature, whatever, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for some fraud or wilful concealment by him of his property or rights of property as aforesaid, contrary to the provisions of this act.\\nIn the 5th section of the same act, it is provided, that no person coming in, and proving his debt or other claim, shall be allowed to maintain any suit at law or in equity therefor, but shall be deemed thereby to have waived all right of action and suit against such bankrupt.\\nThe decree of discharge, after the notice required, and the subsequent proceedings, made those, who had claims against the bankrupt, proveable under the act, parties to those proceedings, and to the decree. Like all judgments, it is final upon the parties thereto, unless one who would otherwise be affected thereby, can bring himself within any exception to the general effect of the decree, provided by the act. One of these exceptions is, when the discharge and certificate shall be impeached for fraud or wilful concealment of the property or rights of property of the bankrupt. No one, who was a creditor, having a claim provable under the act, at the time of filing the petition by the bankrupt, was precluded from showing such fraud or wilful concealment, as would defeat the bankrupt's petition for discharge, or would vacate it, if obtained, so far' as he would be prejudiced by it. If the creditor was one, who came in, and his claim was allowed against the estate of the bankrupt, he was entitled to object to the discharge for all legitimate causes, embracing fraud and wilful concealment; and the fullest opportunity was afforded by the law, for him to do it. But if he omitted to make objection, or having made it without success, he was debarred from instituting and maintaining a suit upon his debt or other claim, which had been so allowed. It is expressly provided that the allowance of his claim, is a waiver of all right of action and suit against such bankrupt. This disability, however, to show fraud or wilful concealment does not extend beyond those, who have had an allowance of their claims. The act gives to others the right to institute suits upon their demands, and the discharge and certificate, is no defence, if impeached for those causes.\\nTo permit creditors, who had an allowance of their claims against the bankrupt, to institute suits thereon, as they originally existed, and to impeach the discharge and certificate, would in effect secure to them an appeal from the decrees of the bankrupt court, to any court of a State, having jurisdiction of the parties and the original cause of action, where the debtor had not become a bankrupt. This is not consistent with the letter or the spirit of the bankrupt law, and such a construction of its provisions cannot be admitted.\\nThe plaintiff in this case, having proved his claim in bankruptcy, had the opportunity of objecting to the discharge of the bankrupt, for the causes on which he now relies for the impeachment of the discharge. If he did not avail' himself of his rights under the bankrupt act, he is not entitled in consequence, to a privilege, which the law does not afford him. If he did object to the discharge, he had a hearing before a court of competent jurisdiction; and the decree of discharge is as to him in the nature of a judgment, and he is concluded by that decree.\\nOther points were raised, and discussed at the argument, but their consideration is not essential to a final decision of the case. Nonsuit confirmed.\"}"

me/623200.json

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+"{\"id\": \"623200\", \"name\": \"George L. Wescott vs. David A. Bunker, and buildings and lot\", \"name_abbreviation\": \"Wescott v. Bunker\", \"decision_date\": \"1891-05-29\", \"docket_number\": \"\", \"first_page\": \"499\", \"last_page\": \"507\", \"citations\": \"83 Me. 499\", \"volume\": \"83\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T20:36:04.777329+00:00\", \"provenance\": \"CAP\", \"judges\": \"Peters, C. J., Libbey, Emery, Foster and Haskell, JJ., concurred.\", \"parties\": \"George L. Wescott vs. David A. Bunker, and buildings and lot.\", \"head_matter\": \"George L. Wescott vs. David A. Bunker, and buildings and lot.\\nHancock.\\nOpinion May 29, 1891.\\nLien. Notice. Sub-contractor. Pleadings. B. S., o. 91, \\u00a7\\u00a7 30-32.\\nThe statute relating to liens and their enforcement upon buildings makes no> distinction between a contractor and a sub-contractor, as regards the \\u201cstatement of the amount due with all just credits given.\\u201d\\nWhere a contractor agrees to furnish labor and materials under an entire contract for a specified sum, it is sufficient for the preservation of the lien under-E. S., c. 91, \\u00a7 \\u00a7 30-32, to file a statement of the amount due, without stating the items making up such amount. Held, accordingly, that it need not appear-what part of the amount due is for labor as distinguished from the amount due for materials.\\nThe underlying principle of a mechanic\\u2019s lien is that of consent or contract. The lien acquired by attachment under E. S., o. 81, \\u00a759, which requires, certain specifications in order to create it, is wholly in invitum. The method of procedure in the one case is separate and independent from that of the* other.\\nIn a suit to enforce a lien for both labor and materials, it was objected that in the descriptive part of the plaintiff's certificate there was no allegation of materials furnished, (the amount thus alleged to be clue being solely for labor clone,) but the items in the formal statement of account, made and recorded as a part of the certificate, were for labor and materials furnished, and the account annexed to the writ was identical with that recorded. Held that the objection should not be sustained.\\nBicJcer v. Joy, 72 Maine, 106, affirmed.\\nOn exceptions.\\nAction of assumpsit to enforce a lien claim. The plaintiff was a mason, and this action was brought to enforce his alleged lien claim against buildings and land. Mrs. M. J. Van Doren, the owner of the buildings and land, appeared in defense.\\nThe verdict was for the plaintiff, that he had a lien as alleged in the sum of four hundred and sixty-six dollars and fifty-seven cents, and thereupon the principal defendant was defaulted for that amount.\\nAfter the evidence for the plaintiff was in, counsel for the defense claimed that the writ, declaration, and the thirty days\\u2019 notice filed with town clerk were defective, and that under the testimony introduced, a valid lien judgment against the real \\u2022estate could not be given. The court ruled otherwise and that such judgment could be given. To this ruling the defendant \\u25a0owner excepted.\\nThe writ was dated December 31st, A. D., 1888.\\nThe declaration is as follows : \\\"In a plea of the case, for that the said defendant at said Eden, to wit, Ellsworth, on the day of the purchase of this writ, being indebted to the plaintiff in the sum of four hundred thirty-two dollars and eighty-two cents, according to the account annexed, then and there in consideration thereof, promised the plaintiff to pay him the same sum on demand.\\n\\\"David A. Bunker, to George L. Wescott, Dr.\\n\\\"To labor and materials furnished upon Whiting Cottage, from July 1, 1887, to and including October 10, 1888, \\u00a74550 00\\n'\\\"To extra plastering, ..... 6 50\\n\\\"To putting in rollway to cellar, . . . 50 00\\n\\\"To stone work under tower windows, . . 65 00\\n\\u00a74671 50\\n\\\"Cr. By order, . . $1150 00\\n\\\"By cash, . . 3088 68\\n$4238 68\\nBalance due, $432 82\\u201d\\n\\\"Which account the plaintiff avers is for labor by him performed and materials by him furnished, in the erection of said building above described under a contract by him made with the said David A. Bunker, who is not the owner thereof, the last of which materials were furnished and the last of which labor was performed within ninety days before the purchase of this writ, and that within thirty days after he ceased to furnish said labor and to furnish said materials on said building, he filed in the office of the town clerk of said Eden, a true statement, subscribed and sworn to by him, of the amount due him, with all just credits given, together with a description of said property sufficiently accurate to identify it, and the name of the owners so far as known to him; and this suit is brought to enforce the said plaintiff\\u2019s lien for said labor and materials upon said house and land above described.\\u201d\\n\\\"Thirty Days\\u2019 Notice.\\n\\\"I, George L. Wescott, of Eden, in the County of Hancock, and State of Maine, certify on oath that the following is a true statement of the amount due me with all just credits given for labor done by contract with David A. Bunker, of said Eden, upon the dwelling-house, the owner of which is to me unknown, situated at Hull\\u2019s Cove, in said Eden, upon the point known as 'Hull\\u2019s Cove Point,\\u2019 or Cape Levi, and at the junction of the roads leading around said Point, and upon the north and east sides of said roads, being the house with stone tower, known as the 'Whiting House.\\u2019 Also upon the stable situated northeasterly in the woods beyond said house, to wit.... [Items, same as in account annexed to writ.] \\\"For which I claim a lien on said buildings and land.\\nGeorge L. Wescott.\\u201d\\n\\\"Subscribed and sworn to October 24,1888, and filed October 25, 1888, in the office of the town clerk of Eden.\\u201d\\nThe owner of the building objected that the declaration did not contain any allegation of a claim for labor furnished, and that the descriptive statement of the thirty days\\u2019 notice alleged no claim for materials furnished, it being for labor only.\\nThe testimony of the plaintiff and defendant, Bunker, showed that twenty-five to thirty men were employed on the building by the plaintiff, wdio contracted with Bunker to do certain mason work for $4550.\\nHale and Hamlin, for owner of building.\\nIlevised Statutes, c. 91, provides for enforcement of mechanic\\u2019s lien by attachment. Plaintiff cannot recover without amendment, and amendment will dissolve attachment. (1.) If work was on contract, suck contract should have been declared upon. (2.) Plaintiff in his writ alleges only that matter is for \\\"labor by him performed and materials by him furnished makes no claim for laborers by him hired and paid i. e. \\\"labor furnished.\\u201d The thirty days\\u2019 notice contains no allegation that matter therein was for \\\"materials furnished,\\u201d \\u2014 contains only an allegation for \\\"labor done.\\u201d \\u2014 Query : does labor done refer to plaintiff, his employees or both ? Or is it too indefinite ?\\nTestimony discloses that plaintiff commenced work in August, 1887, and continued till October, 1888. He says he had men there all the time, often having as manyas twenty-five or thirty employees, and was there once or twice a day at work looking after matters himself while ho had men there. It is submitted that under writ, notice and this testimony he could not recover without amendment of his writ, (and especially as to labor furnished by him,) so that it should contain all necessary averments or allegations. Nor could he. recover for materials furnished, at least, under the thirty days\\u2019 notice. Specification, then, in writ would be entirely insufficient under E. S., c. 81, \\u00a7 59. Briggs v. Hodgdon, 78 Maine, p. 518, and cases cited.\\nNo date is attached to a single item. An itemized account in detail could have been readily given, as plaintiff kept time and other books. If there was a binding contract for price at a lump sum, plaintiff does not so declare. The way he declares misled others to suppose it was not so, but otherwise.\\nW. P. Foster, for plaintiff.\", \"word_count\": \"3304\", \"char_count\": \"19148\", \"text\": \"Whitehouse, J.\\nThe defendant Bunker made a contract to build the \\\"Whiting cottage\\\" and stable appurtenant at Hull's Cove, in Eden, for $15,000 and orally sublet to the plaintiff the stone work and masonry for the sum of $4550. The plaintiff furnished labor and materials to complete his original undertaking, and also performed extra work at the request of the owner of the premises of the value of $121.50. The payments credited amounted to $4238.68, leaving a balance duo of $432.82, and interest. The case shows that, under the instructions of the court, there was a finding by the jury that the plaintiff had a lien to secure payment of this balance of $466.57, on the buildings described for the labor and materials thus furnished in their erection. But it was contended in behalf of the owner, who appeared in defense, that this lien was dissolved by reason of the plaintiff's failure to observe the requirements of the statute in his proceedings to preserve and enforce his lien, and hence that no valid judgment can be rendered against the real estate. The court ruled otherwise, and the defendant took exceptions.\\nIt is provided by section 30, ch. 91, E. S., that \\\"whoever performs labor or furnishes labor or materials in erecting, altering or repairing a house, building or appurtenances by virtue of a contract with or by consent of the owner, has a lien thereon, and on the land on which it stands,\\\" &c. By section 32 of the same chapter: \\\"The lien mentioned in the preceding sections shall be dissolved unless the claimant within thirty days after he ceases to labor or furnish materials as aforesaid, files in the office of the clerk of the town in which such building is situated, a true statement of the amount due him with all just credits given,\\\" etc. It is further provided by section 33, that \\\"no inaccuracy in such statement relating to said property, if the same can be reasonably recognized, or in stating the amount due for labor or materials, invalidates the proceedings unless it appears that the person making it wilfully claims more than his due.\\\"\\nSeeking to comply with these provisions the plaintiff duly filed the following statement of his account, alleging in the language of the statute that it was a \\\"true statement of the amount due with all just credits given:\\\"\\n\\\"To labor and materials furnished upon \\\"Whiting Cottage from July 1, 1887, to and including October 10, 1888,\\n$4550 00\\nTo extra plastering, 6 50\\nTo putting rollway to cellar, 50 00\\nTo stone work under tower windows 65 00\\n$4671 50\\nCredit by order, $1150 00\\nCredit by cash, 3088 68\\n$4238 68\\nBalance due, $432 82\\\"\\nThe contract was an entirety. The plaintiff was to perform certain work for a round sum. Iiis statement of the amount due him does not comprise a detailed and itemized account of the labor performed and materials furnished, but gives only the aggregate price of the undertaking as stipulated in the contract.\\nThe plaintiff was a sub-contractor. His contract was not made with the owners of the real estate; and It is contended in limine, that in case of a sub-contractor, such a general statement of the amount of Ms claim is not sufficient to preserve the lien, but that a particular account of the transactions which are the foundation of it should be required.\\nIt might be sufficient to observe upon this, point that the legislature has not seen fit to require such a specification of items. The section of the statute quoted (Sec. 32,) is applicable to all claimants. It makes no distinction between a contractor and a sub-contractor. It is proper to be reminded that the office of the court is jus dicere, not jus dare; and it might well be deemed an assumption of legislative powers to impose on the sub-contractor a burden not required by the express terms of the statute.\\nBut numerous adjudications may be found in other jurisdictions based upon statutes having a scope and purpose closely resembling our own, making a distinction between the case of an original contractor and a sub-contractor with respect to the degree of particularity required in filing the lien account, and holding that a sub-contractor is bound to set out the items of his claim for the information and protection of the owner and of purchasers and others who may become interested in the property subjected to the lien. In Maryland, for instance, where the first attempt appears to have been made in this country to create a mechanic's lien on buildings it was held, in case of a sub-contractor, that the notice or claim of lien should be specific as to the labor performed and materials furnished, to prevent fraud and collusion between contractor and sub-contractor and to enable the owner to ascertain the correctness and reasonableness of the demand. Carson v. White, 6 Grill, 17. So also in Pennsylvania, the second state to enact a lien law in favor of mechanics, when the claim filed under the act of 1845, was based on a special contract with the owner, the contractor was not required to set out the nature or kind of work done or the kind or amount of materials furnished, as provided in other cases under the act of 1836. But in Lee v. Burke, 66 Penn. 336, Sharswood, J., says : \\\"The act of 1845, was intended to prov ide for the case of a special contract made by a mechanic, with the owner for the erection of a building. The reason for requiring these particulars to be filed does not exist in the case of a special contract for a round sum of money. Censante ratione cessat et ipsa lex. But it is entirely different when the contract of the mechanic, though it may be for a round sum is not with the owner, but with a contractor under him. The contractor cannot bind the building by any special contract for more than the materials furnished and the work done at their fair market price.\\\" And in Cray v. Dick, 97 Penn. 142, it was held that the statute of 1849, which allows the filing of a statement of the aggregate price of the work and materials where there is a contract for a stipulated sum, applies only to the original contractor notwithstanding- its general terms. The Court says : \\\"The sub-contractor is entitled to no more than the fair market value of the work done and the materials furnished on the credit of the building, and hence the owner should be informed by the claim filed as to the particulars of the claim that he may make the necessary inquiries to satisfy himself as to its justice as a lien on his property. The agreement between the contractor and sub-contractor is not the measure of the owner's responsibility; his building is bound for no more than the value of the work done and the materials furnished by the sub-contractor.\\\" See also Rude v. Mitchell, 97 Mo. 365, and notes in American Law Review, Vol. 24, No. 5, page 857; Phillips on Mechanic's Liens, sections 349-352; 2 Jones on Liens, sections 416-467.\\nThe several kinds of privilegium recognized and allowed by the provisions of the civil law evidently formed the ground-work of the more complete and beneficent systems which have gradually been adopted in the American States. See Domat's Civil Law, Strahan, sections 1742, 1744, and 1745. The mechanic's lien on real property was entirely unknown to the English law. It is wholly a creature of statutes in derogation of the common law. But whether a given enactment shall receive a liberal construction as a remedial act or a strict interpretation, as one conferring a special privilege upon a favored class, must be determined by a consideration of the provisions and operations of the act in question.\\nThe statute invoked by the plaintiff is a just and reasonable one. It seems designed to protect the rights of the land-owner as well as to afford security for the contractor and laborer. It must appear that the labor and materials were furnished either by virtue of a contract with or by consent of the owner of the property affected. If not furnished by a contract with the owner he may prevent the lien by giving written notice that he will not be responsible. These provisions are distinguishable from those in the other States named. Here, the sub-contractor and original contractor occupy essentially the same situation with respect to the owner, and the authorities are substantially uniform in holding that, in case of a contract with the owner to perform an entire contract for a specified sum, it is sufficient to file a statement of the amount due unless a specification of items is expressly required by statute. In such a case every source of information is equally open to contractor and owner, and it would ordinarily be utterly impracticable for a contractor who may be engaged in erecting several buildings at the same time to make an accurate apportionment of the contract price for each building between labor and materials, or between the different classes of labor and different kinds of materials. And it would ordinarily serve no useful purpose. Under our statute there is nothing in the situation of a sub-contractor requiringthe application of a different rule. In Ricker v. Joy, 72 Maine, 106, the plaintiff filed a statement that there was one hundred and nineteen dollars and forty cents due him from the defendant for labor and materials which went into a house owned by a third person. This was held sufficient, and although the question of the relative obligations of the original contractor and sub-contractor to the owner was not discussed, it may be assumed that it was not overlooked by the court. The statute requires the claimant to file a true state incut of the amount due him with all just credits given. The true amount and not the items that make it up is the material thing to be done. Sexton v. Weaver, 141 Mass. 274. The plaintiff's statement of the amount due him filed in the office of the town clerk of Eden, October 5, 1888, is in this respect a sufficient compliance with section 32 of chapter 91, R. S.\\nThe provisions of section 59, chapter 81, E. S., making certain specifications necessary to create a lien by attachment are entirely distinct from the requirements of the lien chapter respecting the statement of account necessary to preserve a lien already acquired. The operation of the one is radically different from that of the other. The underlying principle of the mechanic's lien is that of consent or contract. The process of acquiring a lien by attachment is wholly in invitum. They are separate and independent methods of procedure.\\nBut it is further objected that, in the descriptive part of the plaintiff's certificate, there is no allegation of materials furnished ; that the amount is alleged to be due solely for labor done. But the four items in the formal statement of the account, which was made and recorded as a part of the certificate, is for labor and materials furnished; and the account annexed to the writ is identical with that recorded. All parts of the certificate being considered together the statement is neither indefinite nor its meaning obscure. Trilling discrepancies between the different parts of the certificate are not to be regarded when the import of die whole is plain and obvious. It was not intended by the legislature that these statements should be strangled by technicalities. Section 33, oh. 91, E. S., supra; Durling v. Gould and Manor Inn, ante, p. 134.\\nWhen the labor and materials are furnished for several buildings on the same lot and under an entire contract for an entire price, the labor and materials furnished for each building create a lien upon the \\\"whole estate and, therefore, upon all the other buildings. Wall v. Robinson, 115 Mass. 429; Worthley v. Emerson, 116 Mass. 374; Batchelder v. Rand, 117 Mass. 176.\\nExceptions overruled.\\nPeters, C. J., Libbey, Emery, Foster and Haskell, JJ., concurred.\"}"

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+"{\"id\": \"625114\", \"name\": \"Sprague Adams, and others, vs. Isaac Clapp\", \"name_abbreviation\": \"Adams v. Clapp\", \"decision_date\": \"1904-09-19\", \"docket_number\": \"\", \"first_page\": \"169\", \"last_page\": \"176\", \"citations\": \"99 Me. 169\", \"volume\": \"99\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:23:20.214624+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Wiswell, C. J., Emery, Savage, Powers, Peabody, Spear, JJ.\", \"parties\": \"Sprague Adams, and others, vs. Isaac Clapp.\", \"head_matter\": \"Sprague Adams, and others, vs. Isaac Clapp.\\nPiscataquis.\\nOpinion September 19, 1904.\\nReal Action. \\u2014 Survey and Plan. Boundary Lines. Conveyances. Evidence.\\n1. 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\\u2019s death is competent evidence (and sufficient if uncontradicted) that the township lines laid down upon the plan were actually run upon the earth\\u2019s surface.\\n2. 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.\\n3. 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 \\u25a0 streams and ponds were incidental, not essential.\\n4. 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.\\n5. In the case of two or more surveys and plans of the same tract, a conveyance of a lot or township, \\u201c as the same was surveyed by A,\\u201d 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.\\n6. 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 \\u201cby Samuel Weston in 1794.\\u201d 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.\\nOn report. Judgment for plaintiffs.\\nReal action brought to recover a parcel of real estate situate on the west shore of Sehoodic Lake, Piscataquis County.\\nPlea, general issue.\\nThis action came on for trial at the September term, 1902, of the Supreme Judicial Court, in Piscataquis County. After all the evidence had been taken out, the case was withdrawn from the jury and reported to the Law Court for decision. It was stipulated \\u201c that any exhibits that may have been offered upon either side and excluded may be made a part of the case;\\u201d also that \\u201call plans, chalk and chips used at the trial are to be produced at the argument before the Law Court,\\u201d and that \\u201cupon so much of the evidence as is legally admissible the Court is to enter such decision as the legal rights of the parties may require.\\u201d\\nThe case sufficiently appears in the opinion.\\nHenry Hudson, for plaintiffs.\\nJ. B. Peaks, for defendant.\\nSitting: Wiswell, C. J., Emery, Savage, Powers, Peabody, Spear, JJ.\", \"word_count\": \"3330\", \"char_count\": \"18463\", \"text\": \"Emery, J.\\nThis is a real action to recover a small parcel of land on the west shore of Sehoodic Lake in Piscataquis County. The demanded parcel is *on a cape of land making easterly into the lake between Howard Cove on the north and Berry Cove on the south, and is on the border between township No. 4 in the eighth Range of townships north of the Waldo Patent and township No. 5, now called Brownville, in the same Range next west and adjoining township No. 4. It is conceded to be wholly within the one township or the other, and if within township No. 4 to belong to the plaintiff, but if within township 5 to belong to the defendant. The main question, therefore, is whether the boundary line between the two townships was run or established by the original owner of both to the east or west of the demanded parcel.\\nThe land in this vicinity was first surveyed and divided into Ranges and townships, at least on paper, by Samuel Weston in 1794 by direction of the Commonwealth of Massachusetts, the then proprietor. Samuel Weston under this commission admittedly ran the Range lines east and west from the Penobscot River to the line of the \\\"Million Acre purchase\\\" on the Kennebec. It is also conceded that on these Range lines he established bounds to mark the corners of the townships. The defendant, however, denies that Weston actually ran the north and south lines between the townships, and claims that the north and south line between townships No. 4 and No. 5 was first run at a later date (1803) by Park Holland, who was directed by the Commonwealth to divide township No. 5 into lots. A preliminary question, therefore, is whether Samuel Weston did actually run the north and south line between these two townships under his commission of 1794.\\nUpon turning to the instructions given Samuel Weston to \\\"survey three ranges of townships\\\" etc., we find the following: \\\"All lines are to be run and well spotted, and the corners of each township marked, the Ranges to extend from east to west and to be numbered the Seventh, Eighth and .Ninth Range, and the townships to be numbered in each Range and to be laid out six miles square excepting those bordering on the Penobscot River.\\\" And again: \\\"And you are to make return of the survey with duplicate plans representing the lines of the townships, a border or margin of the adjoining lands, the rivers, streams, lakes, ponds, and the most prominent heights\\\" etc. No field notes or other return of the survey is shown in this case except the plan. Upon this plan, however, are lines indicating north and south lines between the townships, including Nos. 4 and 5, as well as the east and west, or range, lines. There are also upon the plan, lines indicating streams and the boundaries of ponds and lakes, including the lake now called Schoodic Lake. These lines upon the plan returned by-Weston, as part at least of his return of his doings under his instructions, are evidence after his death that he did run upon the surface of the earth the lines laid down on his plan. He was sent to survey \\\"townships\\\" as well as Ranges. He was instructed that \\\"all lines are to be run and well spotted.\\\" North and south lines were as essential to running out townships as were east and west lines. He was directed to return \\\"plans representing the lines of the townships\\\" etc., meaning, of course, the townships and lines that he surveyed. It is to be presumed, after his death, in the absence of evidence to the contrary, that he did what his return, his plan, shows he did. Had he been a public officer-his return would be conclusive. He was at least a public agent employed by the government, and his return is, after his death, to be taken as sufficient evidence of what he did until overthrown by evidence to the contrary.\\nThe defendant, however, points out some parts of the plan representing streams, outlets, etc., which later surveys have shown to be incorrect. He urges that these errors show that Weston could not have surveyed those streams, outlets, etc., and hence his plan thus being shown to be false in these respects cannot be regarded as correct in others. Because he may have laid down the course.of some streams or assumed certain streams to be. outlets, without surveying them in their full length, we do not think it follows that he did not survey or run the boundary lines of the townships shown on his plan which was the main work he was sent to do. The boundary lines were important, essential to the purpose of his survey. The streams, etc., were incidental, collateral. Again, the force of the defendant's argument as to the correctness of the plan in respect to the line in question is much weakened by the fact that upon the plan the west shore of the lake, in close proximity to the line, is represented with sub stantial accuracy as to its contour of coves and capes, showing that it, at least, must have been actually surveyed. -\\nThe defendant further contends that no north and south line can now be found on the earth's surface in that neighborhood with marks indicating an existence as far back as 1794. There is evidence to the contrary, but conceding that no such marks can now be found, we do not think their absence, after nearly a century of lumbering operations and forest fires, overcomes or even contradicts the evidence of the plan.\\nLastly on this point the defendant calls attention to a letter of Samuel Weston in the case written in 1801 after he had been sent to re-survey a township in Range 7 next south of Range 8 by reason of some mistakes in his former survey of that Range. In this letter he made some statements of what he did in his former survey in 1794. Ignoring the question of the competency of this letter as evidence, we do not find in it any statement that he did not run the north and south township lines, nor any statements from w'liich we think such an inference can be fairly made. Two expressions only are quoted by the defendant. \\\"I surveyed said river (the Penobscot) . and found where to make the corners of the townships on the Range lines.\\\" \\\"After my brother and I had left (the river) and gone to checking off the towns.\\\" Bearing in mind that this letter was not a return of that survey of 1794, and did not purport to give any full account of it, and was not written with the least reference to township lines, we think it cannot be fairly inferred from such casual remarks that he did not do what his official return says he did do.\\n. We, therefore, think it legally proved by the competent evidence of the plan, practically uncontradicted, that the north and south line between these two townships was actually run upon the surface of the earth by Samuel Weston in 1794. The next question is whether that line was run to the east or west of the demanded parcel. Upon this question the parties have introduced much evidence descriptive of two north and south lines now found upon the surface of the earth about half a mile apart and on either side of the demanded parcel. JEach party contends that spots on trees, peculiar stones, and other indicia now found on these lines support his contention, the plaintiff that the western of these two lines is the original line, and the defendant that the eastern line is the original line. Each stoutly controverts the contention of the other as to what these various indicia do show. It is not made absolutely certain that any of them were made or placed there by the original surveyor, Samuel Weston, in 1794, and hence they are not certainly decisive of the question. We think, however, the location of the line run by Weston can- be determined sufficiently for this case by other and contemporaneous evidence apart from the indicia on these two lines.\\nAll the actors in the survey are long since dead. On the surface of the earth are no indubitable traces of the line. In the case are no records of what was then done except the plan returned by the surveyor, Weston. We have no other contemporaneous description of the line than that pictured on the ,plan. While the survey is the thing and the plan is only the picture, yet when the thing itself has become obliterated and the only description left to us by those who were cognizant of it is a picture or plan made in the line of his duty by a contemporary charged with the duty of making a correct picture, we must assume primarily at least that the thing is correctly represented by the picture. In the absence of other evidence, this evidence of the plan must be taken as sufficient and decisive.\\nTurning to the plan of this survey, it clearly shows the line in question to have been run so far to the west of Schoodic Lake as to include the demanded parcel, though west of the lake yet within the limits of township No. 4 under the grant of which the plaintiff claims. Comparing the line pictured on the plan with the two parallel lines half a mile apart now found upon the earth's surface and above described, it very nearly, if not quite, fits in location the western of the two lines, that claimed by the plaintiff; while the defendant frankly admits it does not fit the eastern line, that claimed by him. As between these two lines, therefore, the western line, that claimed by the plaintiff, must b\\u00e9 taken as the true boundary line.\\nThe defendant introduced a survey and plan of Park Holland, who was sent in 1803, before the conveyance of the township, to divide township No. 5 into lots, and who apparently at least laid out a tier of lots a half mile wide east of the line shown on the Weston plan of 1794, and in doing so ran a north and south line as the east line of the township No. 5. This line is practically in the same location as that now existing on the earth's surface a half mile east of that marked on the plan. When, however, the Commonwealth came in 1805 to convey township No. 5 it fixed the limits of the township conveyed, \\\"as the same was surveyed by Samuel Weston in 1794,\\\" and not as the same was surveyed by Park Holland. The grantee, therefore, only took to the Weston line, according to the familiar rules for interpretation of deeds. The eastern tier of lots run out by Park Holland was excluded from the conveyance, being east of and beyond the Weston line.\\nThe defendant also introduced surveys and plans by Moses Green-leaf in 1815, who made a plan of township No. 5 or Brownville. He does not appear to have been employed by the Commonwealth, but by private owners or on his own account. He placed the east line of township No. 5 (Brownville) on the line run by Park Holland in 1803, a half mile east of the Weston line and east of the demanded parcel. But this was after the conveyance of the township in 1805, and hence could not extend its eastern limits beyond the Weston line.\\nIt appears that Moses Greenleaf also in 1816 prepared a map of Maine from various old surveys and plans, upon which map the eastern line of township No. 5 was laid down as east of the demanded parcel. The legislature of the Commonwealth in 1816 authorized the Secretary of State to contract for 1,000 copies of this map for the use of its towns and public offices, and in the resolve recited that the map was \\\"on the whole as correct a map as could be made or was necessary. \\\" On this map also the east line of township No. 5 is shown to be. so far east as to include in that township all the land, including the demanded parcel, lying West of Schoodic Lake. The defendant urges that the Commonwealth, then owning township No. 4, thereby adopted as its west line and the east line of township No. 5, the line shown upon the Greenleaf map, and thereby acknowledged the title of its grantees of No. 5 to extend east to that line. He cites in support of this proposition Commonwealth v. Pejepscot Proprs. 10 Mass. 155, and Blaney v. Rice, 20 Pick. 62.\\nHad the east line of township No. 5 as described in the conveyance never been run or fixed upon the earth's surface before the making of the Greenleaf Map, perhaps the doctrine of those cases would have been applicable. In this case, however, the evidence heretofore cited shows that the line named in the conveyance had been run and fixed. The conveyance of township 5 was thereby limited to that line, and the approval of the Greenleaf Map did not extend the conveyance beyond that line. The subsequent conveyance of township No. 4 in 1834to the plaintiff's predecessors bounded the land conveyed \\\"westerly by township No. 5 of the 8th Range.\\\" This description extended the conveyance west to the Weston line run in 1794.\\nThe defendant also introduced evidence that the grantees of township No. 5 and their grantees repeatedly conveyed lots in the eastern tier run by Park Holland to the east of the Weston line. While these conveyances indicate the belief of such persons as to the location of the line, they do not change the fact. On the other hand the defendant concedes that most of the maps made after that of Green-leaf in 1816, including the Holman and Rose plan, Chace's Map of the State, and the Piscataquis County Atlas, show the line to be substantially as upon the Weston plan, and to cut off the eastern tier of lots run by Holland.\\nThe defendant further claims that township .No. 5 is made by the Weston line to be only five and a half miles wide instead of six, as it should have been. This may show that the Weston line was run in the wrong place, but being run and made the boundary, it must stand as such.\\nIt being established by the evidence that the survey of Samuel Weston in 1794 included the actual running of the north and south line between the two townships, and that that running was to the west of the demanded parcel, cutting it off from township No. 5, and including it in township No. 4, the judgment in this case must be for the plaintiff. In other cases involving this same line, the evidence may of course be different, and lead to a different result.\\nJudgment for the plaintiffs. Damages assessed at one dollar.\"}"

me/630882.json

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+"{\"id\": \"630882\", \"name\": \"Rose Tanous vs. Michael E. Nagem\", \"name_abbreviation\": \"Tanous v. Nagem\", \"decision_date\": \"1930-08-05\", \"docket_number\": \"\", \"first_page\": \"493\", \"last_page\": \"494\", \"citations\": \"129 Me. 493\", \"volume\": \"129\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:55:11.934322+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rose Tanous vs. Michael E. Nagem.\", \"head_matter\": \"Rose Tanous vs. Michael E. Nagem.\\nAroostook County.\\nDecided August 5, 1930.\", \"word_count\": \"214\", \"char_count\": \"1262\", \"text\": \"On a suit to recover damages for breach of defendant's promise to marry, a jury awarded the plaintiff $5,244.66.\\nDefendant argued a motion for a new trial on the ground that the damages found are excessive.\\nThe plaintiff and defendant became engaged to marry in 1928, when she was about twenty-five years of age, and he some four years older.\\nShe was in trade with a sister, in Van Bur\\u00e9n, and he the proprietor of a wholesale candy business in Waterville. Against the young woman's character not a word is said. At a ceremonial, attended by a houseful of people of Van Bur\\u00e9n and from other towns, defendant participated in a formal and public announcement of the betrothal. For about a year the lovers met and corresponded, and then defendant curtly and coldly announced to the plaintiff that he would not marry her.\\nThere are no material contradictions in the testimony.\\nPlaintiff's standing in the community where she lives was detailed to the jury; and the defendant's statements were given them as to his property and prospects.\\n, It can not be determined that the damages are excessive. Motion overruled. N. H. Solman, A. S. Crawford, for plaintiff. James L. Boyle, for defendant.\"}"

me/632667.json

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+"{\"id\": \"632667\", \"name\": \"Kennebec Ferry Company versus Joseph Bradstreet\", \"name_abbreviation\": \"Kennebec Ferry Co. v. Bradstreet\", \"decision_date\": \"1848-05\", \"docket_number\": \"\", \"first_page\": \"374\", \"last_page\": \"379\", \"citations\": \"28 Me. 374\", \"volume\": \"28\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:13:15.854707+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kennebec Ferry Company versus Joseph Bradstreet.\", \"head_matter\": \"Kennebec Ferry Company versus Joseph Bradstreet.\\nCertain upland was conveyed adjoining easterly upon a river where the tide ebbed and flowed, one of the side lines running at right angles with the river, and the other so as to leave the land towards the river of less extent than at the other end, and the bank of the river at that place being convex, \\u2014 \\u201c together with all the flats and water \\\"privileges adjoining to, being at and having the width of the easterly end of the said land, as bounded by the river aforesaid;\\u201d the extent and position of the flats are to be determined by drawing a straight line from the south-east and northeast corners of the land at high water mark, and extending lines from the ends of that line and at right angles with it from high to low water mark.\\nThis was a writ of entry, brought to recovera piece of land in Gardiner, described as twenty-two feet wide on the street, and extending eastwardly a certain course and distance, and thence on a certain other course to low water mark.\\nThe defendant disclaimed the residue of the demanded premises; and issue was joined upon the part claimed.\\nA plan on which are delineated the premises demanded, and the lands adjacent, though not taken for this case, was used at the trial and may be referred to by either party.\\nIt was admitted that Henry Dearborn, under whom both parties derive their titles, was, prior to the 24th December, 1803, the owner of the land demanded, and of the parcel next north, now belonging to the defendant. The plaintiffs intro doced a deed from Joshua Wingate and wife, (who was the daughter of said Dearborn,) dated Dec. 31st, 1835, conveying to Arthur Berry a piece of land, twenty-two feet in width on the street, between land that belonged to the late Ebenezer Byram, and land supposed to belong to the heirs of the late Joseph Bradstreet, (admitted to be now the defendant\\u2019s land,) thence to Kennebec river, together with the flats adjoining the same. Also a deed dated September 22d, 1845, from the said Berry, conveying the same land to the plaintiffs. Also, a deed dated December 24th, 1803, from said Dearborn, by his attorney, conveying to Joseph Bradstreet and Joshua Lord land lying on the river and north of the plaintiffs\\u2019 lands. The north-east and south-east corners of the upland thus conveyed, were not in controversy, and are marked on the plan A and B. The flats appurtenant are conveyed in that deed in these words: \\u2014 \\u25a0 \\u201c together with all the flats and water privileges adjoining to, being at and having the width of the easterly- end of the said land as bounded by the river aforesaid. The deeds before mentioned, may be used and referred to by either party.\\nThe north line of the plaintiffs , is the south line of the defendant. The counsel for the plaintiffs, contended that the defendant\\u2019s south line over the flats, would depend upon the true location of their north line, and as there was northerly of the upland conveyed a convex sweep in the river, the north line would be coincident with the south line of the flats appurtenant to the lot above, which would depend upon lines to be accommodated to the sweep of the river. Whitman C. J. presiding at the trial, ruled that the southerly line of the Bradstreet purchase, would not be affected by the lines resulting from the convex of the river above. The plaintiffs offered to prove that the straight line between A and B (the north-east and south-east corners of the defendant\\u2019s upland,) would not correspond with the margin of the flats at ancient high water mark, and that a line drawn at right angles with the ancient high water mark, according to the course of the river between the points nearest to A and B, would exclude the land described.'\\nThe Chief Justice ruled, that by the true legal construction of the deed to Bradstreet and Lord, the south line of the flats therein conveyed, must be at right angles with a line drawn straight between the points A and B, whether such line would be in conformity with the ancient high water mark or not.\\nWhereupon, it appearing by the plan used, that upon this construction of the deed under which the defendant claims, the premises defended would fall to them, the cause by consent was taken from the jury, in order that the legal principles applicable to the facts might be first settled, if the rulings of the Judge were erroneous, or if they were correct and the plaintiffs shall claim the right to show that by an actual location of the lines over the flats, according to said construction, the defendant would not be entitled to the premises defended, or that they had been in possession of any part of the land disclaimed, then a new trial shall be had; otherwise the plaintiffs to be nonsuit.\\nNo plan or copies of deeds were found in the papers received by the reporter.\\nEvans, for the demandants,\\nargued in support of the positions taken at the trial; and cited Adams v. Frothingham, 3 Mass. R. 352 ; Treat v. Strickland, 23 Maine R. 232; Moore v. Griffin, 22 Maine R. 350 ; Emerson v. Taylor, 9 Greenl. 42 ; 16 Pick. 441; Valentine v. Piper, 22 Pick. 95.\\nH, W. Paine, for the tenant,\\nargued in support of the- ruling of the Judge, at the trial.\\nN. Weston, for the demandants,-replied.\", \"word_count\": \"2050\", \"char_count\": \"11430\", \"text\": \"The opinion of the Court was drawn up by\\nTenney J.\\n\\u2014 The lands owned by the parties, lying on the western bank of Kennebec river, consisting of upland and flats adjoining, the north line of the demandants' upland and flats being the south boundary of those of the tenant, were once the property of Henry Dearborn, who conveyed it to the tenant and another person by deed dated in 1803, and that deed was prior to the conveyance to which the demand-ants trace their title. The line between the tenant's upland and flats, and the termination of the same at the north-east and south-east corners of his upland are not in controversy; and it appears from the plan, which is admitted to be correct, that it makes with the north line of the tenant's upland an angle less than a right angle and less than it makes with his south line, and is longer than a line which may run in the shortest direction from the south-east corner of his upland to the north line thereof. After the description of the upland in the deed to the tenant, the flats are described as follows, \\\" together with all the flats and water privileges, adjoining to, being at and having the width of the easterly end of said land as bounded by the river aforesaid.\\\"\\nThe word end is defined to be the extreme point of a line or any thing that has moro length than breadth. Webster's Die. The end of a parallelogram is the line extending from one side line to the other at. their extremities ; and the width of the end is the length of such line. If the line connecting the extreme points of parallel side lines, make an angle with one greater than that made with the other, as for instance, one being ten and the other one hundred and seventy degrees, it might not be proper to regard this line the width of the end of the figure presented or oven as the end itself. In figures having side lines irregular or not parallel with each other, a line connecting them where they terminate, may be the end, and its length the width of the end, or otherwise according to the peculiar shape of each figure. Hence the words end and width of the end, thus applied, are not terms of great precision, and the meaning of parties who may use them without any words in explanation may not always be apprehended with certainty.\\nAll words used in the description of the premises in a deed, are presumed to be inserted from a belief in the parties, that they are material, and all must be so treated if possible; and nothing is to be considered redundant, if it can be avoided; and when the whole is taken together according to its common and ordinary signification, if it be free from ambiguity, and convey clear and distinct ideas to the mind, and if it can apply to the subject matter of the conveyance, it is not to be controlled by any thing not found in the deed. In such a case, it is not competent to consider, whether one party or the other, or both conducted with the greatest discretion and wisdom or not; and in giving a construction, the description must stand, although the grantor thereby may have made a division of his land, ruinous to the portion retained by him; or the grantee may have a title to that, which from its location .is worthless.\\nThe description of the land in the deed to the tenant, embraces upland \\\" lying on the river,\\\" and \\\" all the flats and water privileges, adjoining to, and being at the easterly end of 'the same.\\\" Consequently the eastern boundary of the upland is the western boundary of the flats, and is identical with high water mark. The direction and termini of this boundary are agreed by the parties. The eastern boundary of the flats is low water mark, but the place of the extremities thereof on the \\u2022earth must depend upon the direction of the side linos of the .flats. Without the last clause in the description, it might perhaps be doubtful what was intended as the width of the easterly end of the upland, owing to its peculiar form. The flats are to have the width of the easterly end of the upland, and then follows the clause \\\" as bounded by the river aforesaid\\\" without being separated by any mark of punctuation. This \\u2022clause could not have been intended to indicate the eastern in contra-distinction from the western end of the upland, because \\u00a1the words \\\"easterly end\\\" immediately precede, to, and at which easterly end, the flats are to adjoin and to be ; and the .flats could not by possibility adjoin the upland at any other place. Without the last clause every thing in the description is \\u2022clear, and no misapprehension could arise, excepting in reference to \\\" the width of the easterly end\\\" of the upland; and \\u00a1this clause can be applied to no other part with any effect whatever. By rules of grammatical construction, this clause is supposed to be an explanation of the clause immediately preceding, and by regarding it as so intended, it makes that clear, which would otherwise be obscure, as we have already seen. The words \\\" as bounded by the river aforesaid,\\\" import in what manner the line is to be run in order to give the length of the Sine, which should be the measure of the flats. It is clear, that it was intended, that this line should bo looked at without reference to any other lino of the upland, or the shape of the upland, for the purpose of determining the breadth of the flats; but wholly as its length should be according to the course of the river; and this length was to be the width of the part between high and low water mark.\\nIt follows geometrically, that this width can be had in no other manner than by extending upon the earth the side lines of the flats at right angles with the line of high water, between the north-east and south-east corners of the tenant's upland. Parallel lines drawn in any other direction must necessarily reduce the breadth below that of the length of the measure, which is to be conclusive.\\nAnother question arises under the exceptions, upon the exclusion of certain evidence offered by the demandants. That point was not relied upon at the argument, and when it is examined in connection with the whole case, the ruling was not objectionable.\\nBy the agreement of parties, under this view of the law, a nonsuit must be entered.\"}"

me/632703.json

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+"{\"id\": \"632703\", \"name\": \"Mark Pease versus Peleg Benson, Jr. & al.\", \"name_abbreviation\": \"Pease v. Benson\", \"decision_date\": \"1848-05\", \"docket_number\": \"\", \"first_page\": \"336\", \"last_page\": \"355\", \"citations\": \"28 Me. 336\", \"volume\": \"28\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:13:15.854707+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mark Pease versus Peleg Benson, Jr. & al.\", \"head_matter\": \"Mark Pease versus Peleg Benson, Jr. & al.\\nUnder the provisions of st. 1821, e. 39, the foreclosure of a mortgage cannot be made \\u201cby the consent in writing of the mortgagor\\u201d without an actual entry by the mortgagee, or those claiming under him, into possession for condition broken.\\nThe foreclosure of a mortgage cannot be caused by the written admission of the parties, in a manner not authorized by the statute.\\nIf an assignee purchase the mortgage by the payment of a sum less than the amount actually due, still the mortgagor or his assignee will not be entitled to redeem without payment of the full amount due upon the mortgage.\\nIt was the design of the Rev. St. c. 125, \\u00a7 16, to enable the mortgagor, in certain cases, to maintain a bill in equity to redeem a mortgage without the performance, or tender of performance, of the condition; but not to authorize him to recover costs, unless he had been prevented from doing it by some act of the mortgagee, or his assignee.\\nThe mere denial of the right of the mortgagor to redeem will not prevent his tendering performance, and will not, of itself, authorize the awarding of costs to the complainant.\\nThe object of the statute being to afford a party, seeking to redeem, information of the exact amount claimed to be due upon the mortgage, any failure to afford it within a reasonable time after request must be regarded, in the sense of the statute, as an unreasonable neglect or refusal.\\nBill in equity to redeem a mortgage. The case was heard upon bill, answer and proof. The opinion of the Court gives a sufficient statement of facts.\\nN May, in his argument for the plaintiff, advances these legal positions: \\u2014\\nIf the complainant would prevail it is incumbent on him to satisfy the Court of two things : \\u2014\\n1 st. That he is rectus in curia and entitled to this bill.\\n2d. That he has a right to redeem the premises, or in other words, that the mortgage held by the respondents has not been foreclosed; and\\n3d. If he would recover his costs, he must show that the respondents, upon request, have unreasonably refused to render a true account of the sum due upon' the mortgage held by them, or in some way by their default have prevented him from performing or tendering performance of the condition before suit.\\nIn the remarks I have to submit, I propose to maintain the affirmative of each of these three propositions.\\nAnd first,, is the complainant rightly in Court with this bill ?\\nBy <\\u00a7, 16 of e. 125, Rev. Stat. it is provided that a bill in equity like this may be maintained without a tender, if the complainant shall in his bill \\u201c offer to pay such sum as shall be found to be equitably due,\\u201d provided the mortgagee or person claiming under him shall have refused or neglected, on request, to render a true account of the sum due before the commencement of the suit. This section, as it speaks of rents and profits and money expended in repairs and improvements, may be said to refer only to cases where the mortgagee or his assignee have the actual possession; but if this be so, still it is provided in <\\u00a7> 17, if the money have been paid or tendered, such bill may be maintained although the mortgagee or his assignee shall never have had the actual possession of the premises for breach of the condition, or \\u201c in such case,\\u201d refering to the want of possession as aforesaid, it is further provided in the 18th <\\u00a7, of the same chapter that the bill may be maintained as in the 16th <\\u00a7> without having made a tender.\\nThat the words \\u201c or in such case,\\u201d in this section refer only to cases where the mortgagee or his assignee has never had actual possession for breach of the condition, is evident, because a construction which should refer them to cases where the money due on the mortgage had been paid or tendered to the mortgagee or his assignee, would be absurd, for it would make the Legislature say nothing more than that whenever the money due had been paid or tendered, then a mortgagor or person claiming under him, may have his bill without having made a tender.\\nTaking those three sections together it appears plain: \\u2014\\n1st. That the owner of an equity of redemption may maintain his bill after a breach of the condition, if the mortgage has been paid, and this whether the mortgagee or his assignee be in possession of the premises or not. 2. That he may maintain his bill in all cases where the money due on the mort gage has been tendered before suit; and 3d. He may maintain his bill against the mortgagee or his assignee, whether in or out of actual possession, in all cases, where the money due has not been ' tendered, provided he shall offer in his bill \\u201c to pay such sum as - shall be found to be equitably due, and if the respondents shall have refused or neglected, on request, to render a true account of the sum due before suit brought.\\u201d\\nThe fact then of a request, and a refusal and neglect to render a true account, as is alleged in the bill, is not denied. If such refusal and neglect were reasonable it might affect the \\u25a0question of costs, but whether reasonable or unreasonable can :in no way affect the question of jurisdiction in this case. Willard v. Fiske, 2 Pick. 540; Cushing v. Ayer, 25 Maine R. \\u2022\\u25a0383.\\nI am aware that G. A. Benson, in his answer, says he made no reply to the written request, because he had before stated the extent of the claim covered and secured by the mortgage, and that it did not embrace demand for repairs, and that they had received no rents and profits from said real estate. It will be perceived at once, that no such information was communicated at either of the interviews between the parties \\u25a0mentioned in the answer.\\nI go further and contend that the account rendered should be in writing, and contain the exact amount claimed or the \\u25a0items from which the exact amount can be ascertained, that the account rendered should be so stated in the answer or -otherwise proved as to enable the Court to say that no more was claimed than was due. Allen v. Clark, IT Pick. 4T.\\nIf more is claimed than is due, then, in the language of C. J. Whitman, in the case of Cushing 8f Ayer, before cited, \\u2022\\u201c it is not a true account.\\u201d\\nAgain we contend, that if the paper of Oct. 21, 183T, was an entry and an obtaining of the actual possession of the \\u25a0premises within the meaning of the stat. of 1821, c. 39, \\u00a7 1, (which was the only statute in force in this State when said \\u25a0paper was given) then the respondents are accountable for the rents and profits, which by due diligence, they might have received and these would have much more than paid off the mortgage before it could have been foreclosed, and so there was no rendering of a true account even if it had been done in answer to the written request.\\nIf the rents and profits are equal to the sum due on the mortgage, the mortgage must be regarded as paid, and the complainant may, under the 17th section of the statute, maintain his bill without proof of any tender. Tirrell v. Merrill, 17 Mass. R. 117. That under the circumstances of this case the respondents are bound to account for the rents and profits, at, least after the assignment of the mortgage to them, I cite Powell on Mort. (1st American edition,) 1030, as directly in point, also Newhdll &f al. v. Wright, 3 Mass. R. 154.\\nNor is this an unreasonable rule. Tf the mortgagor had occupied himself, and had not assigned his interest in the estate, he would be entitled to no deduction on account of the rents and profits, because he had got in the actual enjoyment of the rents and profits all which he was entitled to receive. Rut when the mortgagor has parted with his right to redeem and the mortgagee or his assignee takes the possession, so that the mortgagor becomes his tenant, holding under him, he must be held to account for the rents and profits to the assignee of the mortgagor, for the good reason that such rents and profits belong to the assignee and not to the mortgagor. When the mortgagor has conveyed his right, then the mortgagee sustains the same relation to the assignee as he did before to the mortgagor, and his duties and liabilities to the assignee must be the same as if the mortgagor had never owned the estate. If it be said that this is hard for the mortgagee, because he may not even know of the assignment, our answer is, that if the deed of assignment is upon record he is bound to know it, and is estopped to deny his knowledge of it. Clark v. Jenkins, 5 Pick. 280; Mills v. Comstock, 5 Johns. Ch. R. 214; Cushing v. Ayer, 25 Maine R. 383.\\nBut if the respondents had before the written request, rendered a true account, the complainant had the right, even a few hours after, to make a new request, and to inform them hm was ready to redeem; and they were then bound to furnish a true account, as it existed at that time, either by stating that the one before rendered remained correct, or by furnishing the items composing the amount due.\\nWe are brought then to the second question in this case, the question of merits. Has the complainant a right to redeem ?\\nWe contend that he has : =\\u2014\\n1. Because there has been no entry and obtaining of the possession for condition broken, according to the provisions of any of the statutes in this State.\\nIt is now setded that an entry to foreclose, must be in accordance with one of the modes provided by die statute. Ireland v. Abbott, 24 Maine It. 155.\\nIt will not be pretended in this case that the entry relied on was in accordance with any of the provisions of the Revised Statutes, c. 125, sect. 3 and 5, or the stat. of 1838, c. 333, sects. 1 and 2, or the statute of 1839, c. 372.\\nThe entry relied on, must have been under the statute of 1821, c. 39, sect. 1, as that was the only statute in force on the 21st of Oct. 1837, when the writing set forth in the respondent\\u2019s answer W'as given. By that statute the mortgagee or those claiming under him, must have entered and obtained the actual possession of the premises, for condition broken, before the mortgage can be foreclosed. This may be done in either of three modes, viz: \\u2014 1. By process of law. 2. By the consent in writing of the mortgagor or those claiming under him, or 3. , By the mortgagee\\u2019s taking peaceable and open possession of the premises mortgaged, in the presence of two witnesses. But the. possession obtained in either mode must be actual possession.\\nThis is not an entry by process of law, nor in the presence of two witnesses, nor is it by consent in writing by the mortgagor or those claiming under him, within the meaning of the statute. The statute means, that the consent shall be given by the person interested, by the mortgagor if he is the owner of the right to redeem, and if he is not the owner, then by his assignee, or the person holding the right to redeem, and who is to be affected by the act. This is reasonable, but. if the mortgagor after he has conveyed his right, can bind his assignee without his knowledge or consent, great injustice might be done. Such a construction of the statute would be extraordinary indeed. The mortgagor after he has assigned his interest, can no more consent to an entry, than the mortgagee after he has sold his interest can enter for condition broken. The language of the statute gives the mortgagee and those claiming under him the right to enter for condition broken, in the same manner as it allows such entry to be made by consent in writing of the mortgagor or those claiming under him. It has been settled by this Court, that an entry by the mortgagee after he has parted with his interest in the mortgage, is of no avail to foreclose a mortgage, but such entry must be made by the person holding the mortgage at the time the entry is made, and for the very same reasons the holder of an equity at the time when consent in writing to enter and hold for condition broken is given, can alone give such consent, whether such holder be the mortgagor or his assignee. Call v. Leisner, 23 Maine R. 25. So it has been settled that a mortgagor after he has assigned, cannot redeem, his assignee alone having the right. True v. Haley, 24 Maine R. 297.\\nBut whatever might have been the effect of such a paper as between the mortgagor and the respondents, it clearly can have no effect to bar the complainant of his right to redeem. Such an entry, even if actual possession had been obtained with the written consent of the mortgagor, and even if he had the right to give such consent, certainly cannot, bar a then existing second mortgagee, of his right to redeem, unless he had at least notice of such entry. Gibson v. Crehore, 5 Pick. 146; Boyd v. Shaw, 14 Maine R. 58. ,\\nUnder the Massachusetts statutes, notice that the mortgagee was holding for condition broken, might be inferred from actual and continued open possession after a breach of the condition, and such possession might be effectual to foreclose the mortgage. But our statutes exclude this mode. Vide Ire land &f Abbott, 24 Maine R. 155. Also a note in the 14th of Maine Reports, 65, at the end of the case of Boyd Shaw. In the case of Thayer &f al. v. Smith, 17 Mass. R. 429, it was decid\\u00e9d that nothing short of actual notice to the mortg\\u00e1gor will supply the want of continued possession.\\nThe object of the statute in regard to costs, is to protect a mortgagee who is without fault, one who is willing to receive his money and discharge his claim without the filing of a bill. But in all cases where the mortgagor or his assignee is under the necessity of resorting to a bill to obtain his rights, through the fault of the mortgagee or his assignee, costs should be allowed. This is a reasonable construction, of the statute. In all cases then, where the mortgagee or his assignee claims an indefeasible title' in the premises, or denies the plaintiff\\u2019s right, or evades his demand, if the plaintiff is entitled to prevail, costs should follow as a part of the decree. In such a case the claim of title, the denial of the plaintiff\\u2019s right, and the evasion of his demand are all wrong and unlawful; and in the eye of the law, that is unreasonable which is unlawful.\\nIf a defendant would avoid costs he should concede the plaintiff\\u2019s right to redeem, and it should appear from the facts, that he had placed no obstacle or hindrance in the way of it, and that in such case he was willing to take the amount due upon the mortgage and discharge his claim. In the case before the Court, unless the facts are greatly misunderstood, the reverse of all this fully appears, and if so, this is a c: preventing of the plaintiff from performing or tendering performance of the condition before the commencement of the suit,\\u201d within the meaning of the statute.\\nEmmons, for the defendants, in his argument,\\ntook the following legal views of the case.\\nThe complainant, a junior mortgagee, seeks of the Court by his bill, to be allowed to redeem the premises therein described of the defendants, who are the lawful assignees of Ira T. Thurston, an elder and first mortgagee of one Ezekiel Holmes. The rights and titles of both parties, by virtue of the respective instruments under which they severally claim, are valid as against Holmes. The great question in the case is, whether the acts and proceedings of Thurston and the defendants, who possess and enjoy all the rights, privileges and benefits that he had and those the defendants have acquired since, have in equity deprived the complainant of the right which he seeks to enforce in this process. To the discussion of this question and that of costs, will the observations which I beg to submit to the Court in this case, be principally confined. The counsel for the complainant has distributed his discussion into three general points, first, that the complainant is rectus in curia \\u2014 second, the complainant\\u2019s right to redeem,\\u2014 third, the question of costs. I could not, after the laborious effort of the learned counsel, to get \\u201c rectus in curia\\u201d, have the hardihood, if I possessed the spirit of a judicial gladiator, to attempt to remove his \\u201c stat in curiabut will cheerfully submit to the Court whether they will permit his continuance. I will therefore proceed to consider the second point in the argument.\\nIt appears that Holmes, on the 17th of August, 1835, conveys the premises described in complainant\\u2019s bill, in mortgage to Ira Thurston; and on the 9th of February, 1836, makes a second mortgage thereof to the complainant, apprising him of the existence of Thurston\\u2019s mortgage, which seems not then to have been recorded. The respective rights of the different claimants as thus indicated, remained unchanged, so far as any acts of either appear to have taken place, till October 21, 1837, when Holmes gave Thurston a certain paper, expressed and written as follows: \\u2014 viz. \\u201c I hereby give possession to the Rev. Ira Thurston, of a certain lot of land situate in Winthrop village, bounded as follows; north by land owned by Samuel Morrill, jr. east by Morton street, south and west by the burying ground, together with the buildings thereon ; said lot is the same which I purchased of said Thurston and is secured to him by a mortgage.\\u201d No question can be made that the premises mentioned in the above recited paper, are identical with those drawn into the claims of the respective parties. The value and effect of this paper, must be determined by the laws of the State, in reference to the subject at the time of its creation. That law is to be found in the 39th chap, of the laws of 1821, <\\u00a7> 1. The first part of the section mentions and prescribes what a mortgagor\\u2019s rights are in regard to redemption, when a mortgagee has taken measures to foreclose his mortgage ; and in the latter part of the section, under the proviso, it is said that the entry above described shall be by process of law, or by the consent in writing of the mortgagor, or those claiming under him, fyc.\\nThe p\\u00e1per given by Holmes, the mortgagor, to Thurston, above quoted, comes, as the defendants believe, within the second mode of procedure to be taken by a mortgagee to foreclose his mortgage as prescribed by the statute aforesaid. Holmes, at the time of making and delivering this paper, was in possession of the premises. The consent in writing to be given to the mortgagee, contemplated by the statute, is to be given by the person in possession either as mortgagor or assignee. Holmes then had a right to give the paper. Does it substantially contain all the statute requires, the paper denominated \\u201c consent in writing\\u201d, should contain to render it effectual ? No interpreter or expositor by law authorized to make judicial adjudication of the meaning of the clause in question, would assert that the instrument contemplated therein, would require that the writing should be in the identical language of the statute ; but simply any writing given and received by the proper persons which should, by a fair and just interpretation, import a consent on the part of the giver of the paper, that the person to whom given might enter and have possession of the premises to which the paper related.\\nThe law does not demand that the paper should state the object for which the consent is given. The object may be inferred from concurring and attendant circumstances, and the declaration of both parties, so far as affects them at least. What is the language of the paper brought into consideration in this case ? It is, \\u201c I hereby give possession\\u201d to Bev. Ira Thurston, then describes the premises, states that they are the same which I purchased of said Thurston, and is secured to him by a mortgage thereon. The interpretation of this language must be, \\u201c I the mortgager, hereby give you, the mortgagee, possession of the premises described.\\u201d The term give implies a giver and also a receiver. The parties then are made to say, I, the mortgager, give, and I, the mortgagee, receive possession of the premises. How can this be done, except by an actual entry of the mortgagee ? Possession cannot be given nor received by manual tradition. The very language of the paper, necessarily implies and demands an actual entry into the premises, and obtaining possession by consent of the signer, the mortgager. To prevent confusion and unjust application of the argument, it is necessary to remaik, that there is a palpable distinction between an actual entry, and obtaining possession, and an actual entry, and a continuance of the posses-ion when obtained.\\nThe statute of 1821, c. 39, $ 1, says nothing of continuing to hold possession after it is obtained in order that a foreclosure may be effected. It does indeed speak of what may be done, in case the possession may have been continued, but nowhere insists upon continuance as indispensably necessary, to work a foreclosure. Now what could be the object of Holmes in giving and Thurston in receiving such a paper ? The Court will not suspect, that two professional men, should gravely set down, the one to make and the other to receive such a paper, as amusement or pastime. They will presume that both had some distinct and important object. What conceivable object could they have had, but to fix the time within which Holmes\\u2019 right of redemption under his mortgage to Thurston should expire. The case finds that at the time of the assignment of the note and mortgage by Thurston to the defendants, in 1839, both Holmes and Thurston declared to the defendants that such was the object. Neither Holmes nor Thurston can ever be permitted to testify to any fact which would be inconsistent, with the statements which they made to defendants at the time of the assignment, which operated upon defendants as a motive to the transaction. That would be a fraud which neither equity nor law would sanc tion. Neither can Holmes nor Thurston do or say any thing by which the right and title they were the instruments of conveying to the defendants, after said conveyance, can be impeached so far as respects them at least, if not every one else. Suppose Thurston had not assigned his note and mortgage to the defendants, and three years had elapsed after the date of the paper in question, and Holmes had not paid his notes, and Thurston had claimed to hold the premises by an indefeasible title, and Holmes had brought a bill in equity to redeem, having tendered to Thurston what was due him on his notes; and Thurston had offered the paper in *' question to show that Holmes\\u2019 title or right of redemption was gone. Would the Court allow Holmes to say that nothing was meant by this paper and what it imported by its terms was npt done ? Surely he must be bound by it, and if it stated enough to meet the requirements of the statute he could not sustain his bill. We have endeavored to show that' the paper does contain enough, by a fair and just interpretation, to satisfy the exigency of the law in this respect. The conclusion to which this argument conducts us is, that in reference to Holmes and Thurston their rights under the mortgage are gone forever.\\nIt is time to turn to the consideration of the question of costs.. If the Court should say that the defendants are wrong in the construction of law in regard to the foreclosure of the mortgage, and the complainant has a right to redeem in this case, we would respectfully contend that he should not have his costs. No one but the complainant\\u2019s counsel, can read the answer of G. A. Benson, without seeing at once, that he supposed the right of redemption had gone from the complainant by reason of the foreclosure of the Thurston mortgage; that he had a large demand against Holmes, who had procured a discharge in bankruptcy, for which he never could obtain a brass farthing; no, not even thanks nor gratitude for many favors, unless he might, as a man of honor and honesty, hold the property included in Thurston\\u2019s mortgage, legally forfeited to him, in consequence of the non-payment of what was due him on account of the Thurston note, and the foreclosure by virtue of the paper and what it implied was done by Holmes and Thurston; that he never could have thought of holding all the mortgaged property, if he legally could, to pay the paltry sum advanced, if he had not had other demands against Holmes, which he must lose. Supposing be had the legal right, he proposed to the complainant to leave it to men to say, whether he should have from the mortgaged property any thing more than what he paid and the interest, or some thing besides for the payment of his other demands, which, notwithstanding poor Holmes\\u2019 account, are several hundred dollars, and the complainant have the balance.\\nAnd when the said Benson, on pages 12 and 13 of the copies of the case, in his answer, says, \\u201c he knows, that at said time and in said interview he did state to said complainant, that said Holmes was indebted to said Peleg Benson, Jr. and this defendant in a large sum, aside from and in addition t.o the said note of the said Holmes to said Thurston paid as aforesaid, by this defendant, for a large part of which sum so due, and owing from said Holmes, to said Peleg Benson, Jr. and this defendant, had no other security, than what might groio out of the deed of mortgage from said Holmes to said Thurston, and the assignment thereof and the land therein described by the said Thurston to the said Peleg Benson, Jr. and this defendant, and expressed the opinion to the said complainant, that it would be right and just, that Peleg Benson, Jr. and this defendant should at least participate in the property secured by the mortgage aforesaid, to pay the demand against said Holmes, for which they had no other security,\\u201d what could be his meaning, but that as he had a legal right to the property, for which he had paid but a small sum, it would be right and just, to take from said property a part payment of other demands against Holmes, for which he had no security, but what grew out of this foreclosure, and divide with complainant the loss, both must sustain from Holmes. Benson and the complainant, and every body knew, that the mortgagee could not secure more than what was mentioned in the condition. Nothing was in the condition of the Thurston mortgage but Holmes\\u2019 notes to him. And the security which was to grow out of that mortgage to Benson, was planted in the supposed foreclosure. Before Benson uses the language quoted in page 12th, he says he feels a confident persuasion, and it is his full belief, that he made known to said complainant the extent of the claim of Peleg Benson, Jr. and this defendant, as covered and secured by said mortgage, fyc. making thus a distinction between that claim, and the other demands. If this idea is not clearly conveyed in the answer, it is my fault, not Benson\\u2019s, because I drew the answer from his statement and sent it to Winthrop for his examination, signature and oath. He never pretended to any person, I presume, as he must have known better, he certainly never did to me, that he could get any part of his pay for demands he held against Holmes, not included in the condition of Thurston\\u2019s niortgage, except there was a foreclosure, and then he was willing persons should be selected to say what division of that property should be made between him and the complainant, not wishing to retain the whole, to the exclusion of the complainant, though he supposed he had the legal right. Now suppose the defendant wrong in his judgment of his rights, and the com.plainant has a right of redemption, he was bound to pay or tender what was due to the Bensons before he could maintain his bill. Something was due upon the assumption of the complainant, that there has been no foreclosure. It is said, that Ihe complainant did not know what was due and could not ascertain, and therefore it was no fault of his, that payment or (tender of payment was not made. We deny this altogether. What says the answer? See pages 14 and 15 of the copies. On the 9th of July, 1846, the very day the letter of request was written by the learned counsel, the complainant called upon G. A. Benson. In the interview between the complainant and G. A. Benson, the latter in his answer says, the former inquired how much was due on the Thurston note ? He, (Ben,son,) produced the note, having that day made a calculation \\u25a0of what was due on it, knowing the complainant was then in Winthrop, and expecting the complainant would call upon him, and told said complainant how much was due thereon, and shew the note to him; gave the note to the complainant and furnished means to take a copy of the note and indorsements, and after the complainant had taken minutes of the notes and indorsements, Benson then said, he supposed the object of the complainant toas to ascertain the rights of the parties, and then produced the writing of Oct. 21, 1837, which he copied, then the mortgage deed and the assignment. Now it is to be remarked, that if said Benson had prel ended that he had other claims, than what were exhibited in the papers presented to the complainant, which were necessary to ascertain the rights of the parties, would he not have produced them and stated them, when he told the complainant he supposed that was his object at the time ? The exhibit was tantamount to saying, sir, you have before you all which can show what I claim as matter of law, and you can see what are your rights and mine. But when in page 15, Benson in his answer gives the reason for not making a reply to the notice, he says he had previously made known to said complainant, the extent of the claim, covered and secured by said mortgage, (precisely the language used before in contra-distinction to the additional demands, and in exclusion of them, for which he had no security of Holmes, except what grew out of the foreclosure,) and that it did not embrace demand for repairs and the defendants received no rents and profits from said real estate. This Benson swears to, and there is no opposing evidence. But the learned counsel with an air and tone of triumph, demands, I ask when and under what circumstances was this knowledge given ?\\nThe counsel then proceeds to answer, it was not given at either of the interview's between the plaintiff and G. A. Benson, which are mentioned in said Benson\\u2019s answer, because at these, not one word is said about repairs or rents and profits. Pray' how does the learned counsel know ? Was he present? Does said Benson say he stated in his answer all which was said by the parties at these interviews ? Was it necessary to state in his answer, before he came to give the reason for not replying to the notice, that he had spoken of repairs and rents and profits, and denied he had any claim for the one, or had received the others, and then when he came to assign the reason for not replying to the notice, to say he did not do so because he had made known to the complainant the extent of his claim, as before stated in his narrative of what was said, at a previous interview ? Might he not adopt this mode in his answer, without subjecting himself to the imputation of falsehood ? As no time is given in the answer, says the learned counsel, the Court cannot know when the information was communicated, and therefore must be unable to tell whether the demand was the same when the information was communicated and when the request was made in writing. This certainly is very extraordinary argument, when on the very day of the request, Benson undertook to make the complainant acquainted with the facts, so he might be able to ascertain his rights and those of the defendants. I trust the Court have some common sense if the complainant and learned counsel have not. There can be no doubt, that in the interval between the first and second calling of complainant upon defendant, on the 9th of July, 1846, the complainant was at the office of his solicitor, and carried and shew him his copies and minutes, and must have been informed, what Benson could claim and what not, by his learned counsel, and he might have tendered him the balance due, on the Thurston note, and if the Bensons had refused it, he might have brought his bill. There must be something that we cannot see, in this formal notice to a neighbor a few rods from the learned counsel\\u2019s office, in all probability, almost every day in the week, except Sunday. At any rate, Benson swears he informed the complainant of the extent of his claim. And will the Court presume, it was not, when Benson says he presumed the object of the complainant was to ascertain the rights of the parties, a few hours before the formal written application to a near neighbor, who might be seen almost every hour, in every week by the solicitor or his student or partner. The learned counsel inquires if there were any difficulty in the way of replying to the notice ? I presume the learned counsel would not expect me to answer that; inquiry. He knows whether the communication between him and the defendant is easy or difficult. The learned counsel for complainaut says, that what Benson says in reference to the notice, and the reason for not replying to it, is not evidence, because it is not responsive to the bill. Pray what is ? I am sure I cannot tell, if that is not.\\nHe further says, the true reason, for not replying to the notice, was because the Bensons wanted to stretch their mortgage to get other demands than what it rightfully embraced; but Dr. Holmes dissipates the claim and shows its existence was a pretence. This Dr. Holmes, a pretty witness indeed to dissipate pretences, who after Benson had signed a bond for him to keep him out of jail, and had a bill of saY of the Doctor\\u2019s library and permitted him to enjoy it undisturbed, can cooly give a warranty deed of land to Clark, which he had before conveyed to the Bensons, because he supposed the Benson deed was not recorded. Better suffer the Doctor to lie quietly on the bed of his own \\u201c pretences,\\u201d and not torture him into activity to dissipate the pretences of the Bensons. Better send the Doctor to the Rev. Ira Thurston. We say that the defendants informed the complainant of what was due to them by virtue of their assignment of the Thurston mortgage, and he ought to have tendered the amount which he found due, by means furnished by defendants, and if he had tendered too much, he could have received the excess back, if received by defendants, and the defendants presented no hindrance or obstruction, and he might then have brought his bill and if the Court had determined he had a right to redeem, they would have allowed him his cosis as they ought. But here was no refusal, to let the complainant know all the facts, no evasion, no skulking, no duplicity on the part of the defendants, and if the complainant be a sensible man he most have known, as tire history of the case shows, just what the defendants did claim, and if he were right in his law, he should have tendered tire small sum due the Bensons, and if they had not been willing to accept it, then he would have put them legally in the wrong and the Court would have given him his rights and his costs. But now he ought not to have costs, if he should be thought to have a right to redeem.\", \"word_count\": \"7447\", \"char_count\": \"41559\", \"text\": \"The opinion of the Court was drawn up by\\nShepley J.\\n\\u2014 The plaintiff by this bill seeks to redeem the premises conveyed in mortgage by Ezekiel Holmes to Ira Thurston by deed bearing date on August 17, 1835. He is a subsequent mortgagee by a conveyance from Holmes made on February 9th, 1836. His deed was recorded before that made fo Thurston, which was assigned to the defendants by a deed bearing date on August 13th, 1839; but he had knowledge of that prior conveyance and does not attempt to postpone its operation to his own.\\nIf the plaintiff is entitled to redeem, the counsel for the defendants does not contend, that he cannot sustain his bill according to the provisions of the Revised Statutes, and it will not be necessary to consider that question.\\nHis right to redeem is first to be considered.\\nThe mortgager made and presented to the mortgagee a paper in the words following: \\u2014 \\\"Winthrop, Oct. 21, 1837. I hereby give possession to the Rev. Ira Thurston of a certain lot of land situated in Winthrop village, bounded as follows, north by land owned by Samuel Morrill, Jr. east by Morton street, south and west by the burying ground, together with the buildings thereon ; said lot is the same w'bich I purchased of said Thurston, and is secured to him by mortgage thereon.\\\" Signed, Ezekiel Holmes. The mortgagee states, that he never entered into possession or took any action by virtue of that paper, which was delivered by him to the defendants at the time when the assignment was made to them.\\nThe statute then in force provided for the redemption of estates conveyed in mortgage within three years after the mortgagee, or his assignee, should \\\" lawfully enter and obtain the actual possession of such lands or tenements for condition broken.\\\"\\nThe entry might be made by process of law; by the consent in writing of the mortgager or those claiming under him; or by the mortgagee's taking peaceable and open possession of the premises in the presence of two witnesses.\\nA foreclosure could not be made according to the second mode without an actual entry into possession for condition broken, by the consent in writing of the mortgager or those claiming under him.\\nIn this case no such actual entry has been proved. On the contrary it appears, that none was made. The words contained in the paper signed by the mortgager, \\\" I hereby give possession,\\\" do not prove the fact, that an actual entry was made and possession obtained. If, as contended in argument, it was the intention of the parties to admit that an actual possession had been taken, they could not cause a foreclosure in a manner not authorized by the statute. Could not substitute a fiction for the actual entry into possession required by the statute and make it as effectual as the act required. The legal effect of that paper, at most, could be no more than to express the consent required by the statute. It may be doubtful, whether it was sufficient for that purpose, for it does not in terms express a consent that possession should be taken for condition broken. The mortgager himself would not be estopped by it to deny, that actual possession had been taken for such a purpose, does not recite or declare, any such fact. Much less could the rights of a subsequent mortgagee be affected by it. It is the actual entry into possession for condition broken, that may effect in due time a foreclosure, being made by the written consent of the mortgager or his assignee. The written consent is of no effect but to make such entry lawful.\\nThere being no proof of a legal foreclosure of the mortgage, the plaintiff is entitled to redeem.\\nHis counsel contends that he should not be required to pay a greater sum, than the defendants paid to procure the indorsement of the note secured by the mortgage and interest thereon. Although that and the assignment of the mortgage may have been obtained by the payment of a sum less than the amount then actually due, the defendants thereby became the legal owners of the estate subject to the right of redemption, and thus entitled to retain it, until they were paid the full amount secured by the mortgage and remaining unpaid.\\nThe plaintiff's right to recover costs depends upon the provisions of the statute, c. 125, <\\u00a7> 16. It was the design of that statute to enable one in certain cases to maintain such a bill without performance or tender of it, but not to authorize bim to recover costs, unless he had been prevented from doing it by some act of the mortgagee or his assignee. The mere denial of his right to redeem cannot prevent him from tendering performance.\\nThe bill sets forth a written request to render an account, and alleges an unreasonable neglect or refusal.\\nThe answers admit that such a request was made, and that .no account was presented in obedience to it. But they allege that at a previous hour of the same day, one of the defendants exhibited to the plaintiff the amount due upon the note .remaining unpaid, and secured by the mortgage, and informed bim that there were no claims for repairs or expenditures, and .that no rents or profits had been received. To an inquiry of .the plaintiff, whether he had not better take the amount due upon that note and let him have the property, the answer was, that he thought he should be willing, that some suitable person should say, taking into consideration all the property and the demands of both the parties, what would be right and just. '.The design of the statute being to afford to a party seeking to redeem, information of the exact amount claimed to be due .upon the mortgage, any failure to afford it within a reasonable time after request, must be regarded in the sense of the statute, as an, unreasonable neglect or refusal. The information respecting the amount due upon the note secured by the mort,gage, accompanied as it appears to have been at all times by the assertion of other claims to be adjusted before his right to redeem could be admitted, left it obscure and uncertain, \\u2022whether those other claims were not insisted upon as necessary to be paid by one entitled to redeem. Under such Circumstances the plaintiff, to remove all uncertainty and obscurity, might properly make the formal request set forth, and a neglect to answer it and to remove all uncertainty must be regarded as unreasonable.\\nThe plaintiff is entitled to a decree for a release of the mortgage title upon payment of the amount secured by it, which remains unpaid, and to recover his costs.\"}"

me/634538.json

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+"{\"id\": \"634538\", \"name\": \"First National Bank of Salem vs. Charles P. Redman and another\", \"name_abbreviation\": \"First National Bank v. Redman\", \"decision_date\": \"1869\", \"docket_number\": \"\", \"first_page\": \"405\", \"last_page\": \"406\", \"citations\": \"57 Me. 405\", \"volume\": \"57\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:58:57.627594+00:00\", \"provenance\": \"CAP\", \"judges\": \"Appleton, C. J.; Cutting, Kent, Dickerson, and Daneorth, JJ., concurred.\", \"parties\": \"First National Bank of Salem vs. Charles P. Redman and another.\", \"head_matter\": \"First National Bank of Salem vs. Charles P. Redman and another.\\nA seasonable levy of the execution on real estate attached on tlie writ, operates as a statute conveyance made at the date of the attachment.\\nSuch a title is superior to a mechanic\\u2019s lien for labor and materials, the earliest item of which is subsequent to the date of the attachment.\\nIf a judgment for a lien-claim on a house include labor and materials for painting a fence and varnishing carpets, the lien is thereby defeated.\", \"word_count\": \"377\", \"char_count\": \"2213\", \"text\": \"Tapley, J.\\nThis is a writ of entry. Both parties claim title under levies founded upon judgments against the same debtor. The plaintiff's is earlier in time. The defendant claims, however, that his was the perfection of a statute lien upon the premises, for materials furnished and labor performed thereon, and, therefore, takes precedence.\\nAn examination of the papers in the case will discover two fatal objections to this claim of the defendant.\\n1. The date of the earliest item in the defendant's account is May, 1865. The date of the plaintiff's attachment is April 28, 1865. This attachment created a lien upon the estate, which ripened into title by the levy. The levy being duly made within the time required by law, the \\\" title obtained by the levy takes effect by relation, at the time when the attachment was made; and it operates as.a statute conveyance made at that time.\\\" Brown v. Williams, 31 Maine, 404.\\nThe plaintiff, therefore, has a title originating before the defendant's claim, or any portion of it, came into existence.\\n2. The defendant in his action declares for \\\" a lien on said house and lot, for labor done on, and materials furnished for repairing said house.\\\" His judgment embraces not only such labor and materials, but also for painting a fence and varnishing carpets.\\nThese are not lien-claims, and judgment having been taken for them as well as the others, the lien to secure the others was lost, Johnson v. Pike, 35 Maine, 291. Lombard v. Pike, 33 Maine, 141.\\nA. P. Could Henry Barrington, for the plaintiffs.\\n8. 8. Marble, for the defendants.\\nPefendants defaulted and action to stand for assessment of damages.\\nAppleton, C. J.; Cutting, Kent, Dickerson, and Daneorth, JJ., concurred.\"}"

me/634694.json

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+"{\"id\": \"634694\", \"name\": \"Young versus Young\", \"name_abbreviation\": \"Young v. Young\", \"decision_date\": \"1853\", \"docket_number\": \"\", \"first_page\": \"133\", \"last_page\": \"136\", \"citations\": \"36 Me. 133\", \"volume\": \"36\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:57:50.625809+00:00\", \"provenance\": \"CAP\", \"judges\": \"Tenney, Rice, Appleton, and Cutting, J. J., concurred.\", \"parties\": \"Young versus Young.\", \"head_matter\": \"Young versus Young.\\nThe lessee of a farm, by parol, where the rent is payable yearly, must have three months notice to determine his tenancy.\\nA conveyance of the estate, by the landlord, will not impair the right secured by the provisions of the statute to a tenant at will.\\nNor will the commission of waste terminate his tenancy.\\nAn estate at will, existing under the statutes of this State, gives to the tenant rights for a period after a written notice to quit, of equal validity with those acquired under a written lease for a like period.\\nAnd until such tenancy is terminated, trespass quare clausum cannot be maintained by the owner against him.\\nOn Report, from Nisi Prius, Appleton, J., presiding.\\nTrespass quare clausum.\\nThe writ contained but one count, for breaking and entering the plaintiff\\u2019s close, Aug. 31, 1852, and carrying away 50 loads of manure of the value of $ 100.\\nThe defendant pleaded the general issue, and filed a brief statement, that he occupied the premises and had so done for three years under one Philander Coburn, and entered and took the manure which was his own, as he had a right to do.\\nThe defendant had occupied the premises since Oct. 1848, without any written lease, under Philander Coburn, the owner, with whom the rent had been settled up to and for the year 1851; and he commenced labor on the farm in the spring of 1852, in the same manner he had done the previous years. The rent was paid at the end of the year.\\nOn July 24, 1852, Coburn sold and deeded the farm to the plaintiff, \\u201creserving all crops growing on the same, excepting hay and grass.\\u201d\\nOn the day mentioned in the plaintiff\\u2019s writ, and about that time, the defendant hauled away sundry loads of manure from the barn yard of said farm and put it upon his own land, though forbidden by the plaintiff.\\n. On the facts, the Court were to render such judgment as the law might require.\\nJ. S. Abbott, for the plaintiff, contended, \\u2014\\n1. That the tenancy expired by limitation according to the evidence in the case, and was not renewed for the year 1852.\\n2. The lease having expired, the defendant was liable in an action of trespass for removing the manure. Lassell v. Reed, 6 Maine, 222.\\n3. If defendant was tenant at will after 1851, it was determined by the conveyance of Coburn to plaintiff on July 24, 1852, and even if he had any right to remove the manure, such right would only remain a reasonable time, which reasonable time expired prior to Aug. 31, 1852, the time of the alleged trespass.\\n4. The deed of Coburn to plaintiff, conveyed the manure as part of the realty. Kittredge v. Woods, 3 N. H. 503.\\n5. Whether the tenancy was ended or not the defendant is liable. For if not ended, it was waste to remove the manure, and the tenant committing waste, is at once liable to the landlord or his grantee in an action of trespass quare clausum. Daniels v. Pond, 21 Pick. 367.\\nIn the case just cited, the principles involved in the case at bar, are fully and ably discussed, and several adjudged cases considered.\\nWebster, for the defendant,\\nrelied upon these positions ; \\u2014\\n1. That he was tenant at will under Coburn, and at the time of the alleged trespass his tenancy had not been terminated. He had commenced the year in which the land was sold to plaintiff, the same as former years and three fourths of the year had passed when the sale was made. He was then entitled to three months notice to quit. R. S. c. 95, \\u00a7 19.\\n\\u20222. As he had at no time neglected to pay his rent, by the terms of his tenancy, nothing was due July 24, 1852. 12 Maine, 478; 25 Maine, 283, and he was then entitled to three months notice.\\n3. Nor can the sale from Coburn to plaintiff deprive the defendant of any rights he would have had, if he had occupL ed under a written lease. Where the rent is paid when due, the sale does not terminate the tenancy until three months have expired, and when he does not pay, the tenancy is not terminated till thirty days notice to quit. In this case, no notice of any kind was given.\\n4. But if the tenancy at will was terminated by the sale, the respondent still remained in possession with the assent of plaintiff, and he was then a tenant by sufferance. 16 Mass. 1; 17 Mass. 282. In such case the action of trespass will not lie against him. 14 Pick. 525 ; 25 Maine, 287.\\n5. If the defendant be not guilty of breaking and entering, \\u2022the plaintiff cannot recover for carrying away the manure. There is but one count in the writ, and the substantial charge, is the breaking and entering, and the other allegations are but aggravations of that charge, and if the substantive charge fail of proof, plaintiff cannot recover for the aggravation. 4 Pick; 239. 3 T. R. 279.\\n6. But if the sale of the land terminated the tenancy, defendant is after that entitled to a reasonable time in which to take off all those things, that he would have been authorized to take off during the continuance of his term, had he known when it would have terminated. 19 Maine, 252 ; 13 Maine, 209; 24 Maine, 242; 17 Mass. 282; Co. Lit. 56, a.\\n7. That the reservation in the deed under which plaintiff claims, authorized or licensed the respondent to enter, and that having license to enter,, whatever he might do after his entry would not render him liable in trespass quare clausum.\", \"word_count\": \"1367\", \"char_count\": \"7494\", \"text\": \"Shepley, C. J. \\u2014\\nThe defendant appears to have been in possession of the farm as a tenant without any written lease, from October 21, 1848, to the time of the alleged trespass upon it, on August 31, 1852. That tenancy could not have terminated shortly before the time of the trespass alleged ; and the landlord could not therefore have entered without notice, on the ground of its termination at that time.\\nWhile Coburn was owner he allowed the defendant to continue his tenancy as in former years, not only making no objections but approving of his doing so.\\nBy virtue of the statute, c. 91, \\u00a7 30, the tenancy, which by the common law would have been from year to year, became one at will. It does not appear, that the defendant had neglected to pay the rent according to agreement, or that his rent was payable before the close of the year, and in such cases the tenant by statute c. 95, \\u00a7 19, is entitled to three months notice to terminate his tenancy. By his conveyance from Coburn the plaintiff became the owner of the farm; subject to the rights of the tenant, which being secured to him by the provisions of the statute could not be destroyed by the conveyance.\\nIt is insisted, that the acts of the defendant amounted to waste, and that his estate was thereby determined; and the case, Daniels v. Pond, 21 Pick. 367, is relied upon as authority for the position. A tenancy at will, by the common law, would be determined by the commission of waste by the tenant. The case cited, and the cases upon which it rests, have reference to such a tenancy at will.\\nAn estate at will existing by the statutes of this State, gives to the tenant rights for a period, after a written notice- to quit, of equal validity with those acquired under a written lease for a like period. Such rights would not be destroyed by the commission of waste by the tenant; and the landlord might be left for redress to his action on the case in nature of waste. The only count in the declaration is trespass quare clausum. The plaintiff failing in his proof of that cannot recover for taking the manure, which was only an aggravation of the trespass alleged. Plaintiff nonsuit.\\nTenney, Rice, Appleton, and Cutting, J. J., concurred.\"}"

me/636871.json

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+"{\"id\": \"636871\", \"name\": \"Morris, Adm'r, in Equity, versus Day, Executrix\", \"name_abbreviation\": \"Morris v. Day\", \"decision_date\": \"1854\", \"docket_number\": \"\", \"first_page\": \"386\", \"last_page\": \"389\", \"citations\": \"37 Me. 386\", \"volume\": \"37\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:25:34.659372+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rice, Hathaway and Cutting, J. J., concurred.\", \"parties\": \"Morris, Adm'r, in Equity, versus Day, Executrix.\", \"head_matter\": \"Morris, Adm'r, in Equity, versus Day, Executrix.\\nIn cases in equity, the facts proved',, the questions of law arising thereon, the* decision of the same and 'the decree of the presiding Judge,, must all be reported.\\nAlthough reference in the report may be made-to'the' bill, answer and proofs, this Court cannot examine them to- ascertain if the facts are correctly found by the jury or by the Omit,\\nAnd no question of law, notarising out of the facts proved and reported, can. he argued or decided by the Court of law.\\n\\\"Whether the decree of the presiding Judge shall be affirmed, or any different order made, must be determined from the facts proved and reported,.\\nThe intention of the mortgagee, however clearly expressed, without showing that he has performed, the acts necessary to that purpose, will be ineffectual to establish a foreclosure.\\nTo effect such foreclosure by taking peaceable and open possession in presence of two witnesses, the certificate by them signed and recorded, must contain all the facts essential to that purpose. \\\"Without showing an entry at a time certain for breach of the conditions of the mortgage,, it will not avail.\\nAnd such witnesses cannot testify to any facts necessary to show a foreclose.ure, not found in their certificate.\\nOn Report from Nisi Prius, Howard, J.., presiding.\\nBide in Equity.\\nThe report made by the Judge is not necessary to a\\u00ae understanding of the case.\\nThe hill was brought to redeem certain real estate irons two mortgages. The defence was, that they had been foreclosed by> an entry in the presence of two witnesses, and the premises had since remained in the possession of the-mortgagees-.\\nThe certificate of the witnesses, Edmund- Phillips and Gideon P- Skillen, was recorded in the Cumberland registry of deeds, on June 12, 1839, and after describing the real estate, the title and registration, it concluded thus :\\u25a0 \\u2014 -\\u201cThe condition of said mortgages- having been broken, the said Day claims to foreclose the same. We, tbe subscribers, at the request of said Day, went with him on all the premises described in the mortgage deeds, on. the sixteenth day of May, A. D., 1839, and saw- him enter and take peaceable\\u00bb possession of the premises- In testimony whereof, we have hereunto subscribed our names.\\u201d\\nWillis and Fessenden, for the respondent.\\nAnderson and Harmon, for the complainant.\", \"word_count\": \"1271\", \"char_count\": \"7426\", \"text\": \"Shepley, <J. J.\\n\\u2014 The bill appears to have been filed, by a former administrator of Alden Pierce, to redeem certain, lands described in a mortgage made to the Canal bank and \\u2022 assigned to the defendant's testator, and lands conveyed in mortgage to him.. The case is presented on a report of the presiding Judge, and a question is raised respecting the matters thus presented for consideration by the court of law.\\nBy the Act approved on April 9, 1852, e. 249, \\u00a7 14, the presiding Judge, when requested, is to report \\\" the facts proved and the questions of law therein arising, and his decision of the same, and his cjecree upon the premises.\\\" Nothing can be thus properly presented, not authorized by the provisions of the statute. If, as in this case, the bill answer and proofs in writing be referred to, the court of law is not authorized to enter upon an examination of those proofs, to ascertain whether the facts were correctly found by the jury or by the Court; or to entertain and decide any question of law not arising out of the facts proved and reported.; while it may modify the decree, or make any other order or decree, which the facts reported may require.\\nThe report states, that the facts alleged in the bill were proved; and that the facts stated in the answer and proved, did not constitute a foreclosure. The answer appears to have been madeto the bill of complaint of William E. Morris, administrator de bonis non, of the goods and estate which were of Alden Pierce.\\\" The report does not state any facts respecting the plaintiff's right to prosecute the suit as administrator de bonis non of Pierce; and no question of law respecting it could arise on the facts proved and reported. The'report is to contain not only the facts proved but the questions of law therein arising, and his decision of the same.\\nWhether the decree was correctly made, or whether either is entitled to a different-order or decree, must also be determined from the facts proved and. reported.\\nThe principal question arising on the facts reported, is, whether either of the mortgages had been foreclosed.\\nThe testator appears to have intended to foreclose them by \\\" taking peaceable and open possession in presence of two witnesses,\\\" as required by the provisions of the Act of 1821, c. 39, and to have a certificate thereof signed by the witnesses, and recorded according to the provisions of the additional Act approved on February 20, 1839.\\nAn intention to foreclose cannot operate to effect it without a compliance with the provisions of the statute, which requires, \\\"when an entry for breach of the condition of a mortgage of real estate shall hereafter be made without judgment of law;\\\" and \\\" when such entry shall be made in presence of two witnesses, such witnesses shall sign a certificate specifying the fact of such entry, and the time thereof.\\\"\\nThe entry must appear to have been made for breach of the condition of the mortgage, and the certificate signed by the witnesses must specify the fact of such entry; that is, that it was made for breach of the condition of the mortgage, and it must state the time when such entry was made.\\nThe certificate presented in this case, states \\\"the condition of said mortgages having been broken, the said Day claims to foreclose the same.\\\" It does not state that he made an entry for that purpose, or for breach of the conditions. He might claim to foreclose them without doing the acts necessary to effect it. The certificate then proceeds and states: \\\" We the subscribers, at the request of said Day, went with him on all the premises described in said mortgage deeds, on the sixteenth day of May, A. D. 1839, and saw him enter and take peaceable possession of the premises.\\\" Here is no statement of an entry for breach of condition or to foreclose. . All which is stated in the certificate might have been legally done without any entry made for breach of conditions.\\nThe two witnesses testify, that the entry was by Day declared to be made to foreclose the mortgages. Such proof not contained in the certificate by them signed, is insufficient and ineffectual to establish a foreclosure. The statute requires, that the proof of \\\" such entry\\\" should appear in the certificate, which is to be recorded in the registry of deeds, giving notice to all interested; and that unless it be so recorded, \\\" such certificate shall not be effectual in law for the purpose of foreclosing such mortgage.\\\" It was evidently the intention of the statute to require, that the facts essential to operate as a foreclosure should appear in the record of the certificate; and to provide that the entry should not be effectual to foreclose without it.\\nThe Court cannot rightfully attempt to carry into effect the intentions of a party to foreclose, however clearly they may be exhibited, when he fails to show that he has performed the acts required by the statute, to mate such intentions effectual.\\nThe decree of the presiding Judge is affirmed, and the case is remanded for further proceedings.\\nRice, Hathaway and Cutting, J. J., concurred.\"}"

me/636915.json

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+"{\"id\": \"636915\", \"name\": \"Small & al. versus Thurlow\", \"name_abbreviation\": \"Small v. Thurlow\", \"decision_date\": \"1854\", \"docket_number\": \"\", \"first_page\": \"504\", \"last_page\": \"506\", \"citations\": \"37 Me. 504\", \"volume\": \"37\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:25:34.659372+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sheplev, C. J., and Howard, H^thawae and Cutting) J. J., concurred.\", \"parties\": \"Small & al. versus Thurlow.\", \"head_matter\": \"Small & al. versus Thurlow.\\nWhere no time is fixed in vMch arbitrators are to make an award, it is to be done at their pleasure, unless either of the parties specially request them to make it in a reasonable time, and in case of refusal revoke the submission.\\nWhen a matter has been referred to arbitrators, and they have the power of adding another to their number, on a refusal to make an award, the matter referred cannot be withdrawn from then jurisdiction, unless they have refused to appoint the other referee, or have been requested so to do.\\nIf an action at law is commenced on the subject matter thus pending before such referees, it can only be defeated by pleading such pendency in abatement.\\nOn Report from Nisi Prius, Wells, J., presiding.\\nAssumpsit, to recover the price for certain goods.\\nThe general issue was pleaded, and a brief statement filed, that the cause of action had been submitted to arbitration by agreement of the parties under seal.\\nAt a former term of the Court a suit was pending for the same causes of action, and also a cross action.\\nThe parties agreed with each other under seal to submit the subject matter of the two suits and all other differences to four referees, two to be chosen by each party, and if they could not agree, or they should choose, a fifth should be by them selected, and their decision to be final. No time was fixed in which the decision was to be made.\\nAll proceedings at law were to cease, and the actions were entered \\\"neither party.\\u201d\\nThe four referees were appointed. They met and did not agree, and have not appointed the fifth referee as contemplated in the submission, and refused to make an award.\\nThe Court ruled that as the referees failed to agree under the submission, and refused to make an award, the present action might be maintained.\\nIf this ruling was right, the defendant would be defaulted; otherwise the action to stand for trial.\\nO'Donnell, for the defendant..\\nBaker, for the plaintiff.\", \"word_count\": \"813\", \"char_count\": \"4561\", \"text\": \"Rice, J.\\n\\u2014 The parties, on the 15th day of June, 1850,-then having1 an action and cross action pending between them, agreed to refer all their difficulties at issue to the decision of four men, to be selected, two by each party, and in case the four thus selected could not agree, or should they desire to do so, they were authorized to choose a fifth referee, and the award of the four, if they should agree, or of the five, if the four should not agree, was to be final between the parties. There was no time specified in the agreement within which an award should be made.\\nThe referees, when they met in June, did not agree, and did not select a fifth referee, as contemplated in the submission, and refused to make an award.\\nIn this state of the case the plaintiff contends that the agreement to refer became inoperative and void, and that the parties were remitted to their original rights.\\nWhen no time is fixed within which an award is to be made, the arbitrators may take what time they please, unless either of the parties specially request them to make an award within a reasonable time, and in case of refusal, revoke the submission; for parties will not be bound by an award after such revocation. Kyd on Awards, 96.\\nThe case finds that the four referees refused to make an award; but it does not find that they refused to appoint the fifth referee, or that they had ever been requested to do so by either party. There is no evidence, therefore, that a determination of the matters submitted, have become impracti cable, or that either party were in ss position to revoke the! submission.\\nThe matter in suit was, so far as appears from the facts-reported, pending before the arbitrators when this action was' commenced. That fact does' not, however, by its own: force operate to divest this Court, of its jurisdiction, but leaves the parties in the same situation that they would have-occupied had a suit for the same cause of action been pending in some other court. It should have been pleaded in abatement.\\nA plea that the causes of action in the declaration have been referred to arbitrators and are still under their consideration, and that a reasonable time for making their award has not yet elapsed is bad, in barand if not commencing- and,concluding in abatement, cannot be treated as a plea in abatement. 1 Saund. Plead. 285.\\nThe Court being of the opinion that under the existing state of the pleadings the action is maintainable, a default' is to be entered, according to the agreement of the parties.\\nSheplev, C. J., and Howard, H^thawae and Cutting) J. J., concurred.\"}"

me/639539.json

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+"{\"id\": \"639539\", \"name\": \"Caroline M. Walker vs. Jesse B. Tewksbury, and the Inhabitants of Atkinson, trustees\", \"name_abbreviation\": \"Walker v. Tewksbury\", \"decision_date\": \"1877-07-03\", \"docket_number\": \"\", \"first_page\": \"496\", \"last_page\": \"497\", \"citations\": \"67 Me. 496\", \"volume\": \"67\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:42:39.634462+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dickerson, Danforth, Yirgin, Peters and Libbey, JJ., concurred.\", \"parties\": \"Caroline M. Walker vs. Jesse B. Tewksbury, and the Inhabitants of Atkinson, trustees.\", \"head_matter\": \"Caroline M. Walker vs. Jesse B. Tewksbury, and the Inhabitants of Atkinson, trustees.\\nPiscataquis.\\nDecided July 3, 1877.\\nTi'ustee process.\\nThe general rule, that a writ against an individual which may be fully served fourteen days before one term of the S. J. court is not properly returnable at a subsequent term, does not apply where the date of the writ and the service on a corporation named as trustee therein, are less than thirty days prior to the return day of the earlier term.\\nThus, where a trustee writ was dated February 7, 1876, served on the inhabitants of a town as trustees the next day and on the principal defendant, February 12, and made returnable to and entered at the September term instead of the preceding February term, which commenced its session February 29: Held, that a motion to dismiss was properly overruled.\\nOn exceptions.\\nAssumpsit ou note. On the second day of the return term, Tewksbury filed a motion to dismiss the action, because the writ, which was dated February 7,1876, served upon trustees February 8, 1876, and upon the principal defendant February 12, 1876, was made returnable to and entered at the September term, instead of the preceding February term for said county, which commenced its session on February 29,1876, the said writ having been, made and fully served more than fourteen days before the February term.\\nThe presiding justice overruled the motion ; and the defendant alleged exceptions.\\nA. G. Lebrofce, for the principal defendant.\\nW. P. Young, for the plaintiff.\", \"word_count\": \"552\", \"char_count\": \"3155\", \"text\": \"Appleton, C. J.\\nThe time in which service is to be made and the mode and manner of serving process are regulated by statute.\\nThe statute authorizes trustee process and prescribes the service\\\" when individuals are defendants and trustees.\\nBy it. S., c. 81, \\u00a7 18, process upon corporations must be served \\\" thirty days before the return day thereof.\\\"\\nBy c. 131 of the acts of 1873, an amendment is made of the eighth section of E. S., c. 86, and it is therein provided that \\\"all corporations may be summoned as trustees, and the writs served on them as other writs on such corporations.\\\"\\nThe creditor may sue out trustee process and attach the property of his debtor in the hands and possession of a corporation. He can only make a valid service on such corporation by giving thirty days notice. There is no time in which he has not a right to such process when process can be legally sued out and served. The writ cannot have different return days \\u2014 one for the defendant and another for the corporation sued as trustee. As the right to sue out trustee process is given to all and at all times in which process may be sued out, it follows that the service to\\\"be made upon the defendant must correspond to that upon the trustee, else there will be periods of time each year in which no suit against a corporation as trustee can be sued out and served. Nor does the defendant suffer any harm thereby, as there is no rule of the common law or provision of the statute which forbids his payment of what he may owe before the return day of the writ.\\nExceptions overruled.\\nDickerson, Danforth, Yirgin, Peters and Libbey, JJ., concurred.\"}"

me/639572.json

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+"{\"id\": \"639572\", \"name\": \"Waldo T. Pierce, petitioner for review, vs. John P. Bent\", \"name_abbreviation\": \"Pierce v. Bent\", \"decision_date\": \"1877-07-03\", \"docket_number\": \"\", \"first_page\": \"404\", \"last_page\": \"408\", \"citations\": \"67 Me. 404\", \"volume\": \"67\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:42:39.634462+00:00\", \"provenance\": \"CAP\", \"judges\": \"Appleton, C. J., Daneorth, Virgin, Peters and Libbey, JJ., concurred.\", \"parties\": \"Waldo T. Pierce, petitioner for review, vs. John P. Bent.\", \"head_matter\": \"Waldo T. Pierce, petitioner for review, vs. John P. Bent.\\nPenobscot.\\nDecided July 3, 1877.\\nReview.\\nA review will not be granted for tbe mere purpose of affording a judgment debtor time and opportunity to prosecute a cross-action to final judgment. Tbe power of tbe court to grant reviews given in R. S., c. 89, \\u00a7 1, is limited to tbe causes therein enumerated.\\nOn report.\\nPetition eor review, as follows:\\n\\u201cWaldo T. Pierce of Bangor, respectfully represents that at \\u2022the April term of the said court, A. D. 1875, judgment was rendered against him, in favor of John P. Bent of said Bangor, for $1389.19 debt, and $35.04 costs of suit, as by the records of said court appears, on which judgment execution has been issued, which is at present in the hands of his attorneys, Brown & Simpson, or the sheriff of the county, or some of his deputies, wholly unsatisfied.\\n\\u201c And your petitioner further avers, that said judgment was rendered in a suit on a verdict rendered against him at the April term, 1874, by a jury before whom the case was tried on the question of copartnership between him and said Bent, that there is, and then was, a large amount due him, said petitioner, on account as existing between them, which sum your petitioner had right to have settled as a copartnership matter, but that upon the rendition of the verdict unfavorable to the existence of such copartnership, lie at once commenced a suit on bis said claim, in order that an offset might be made of the judgments, in the two cases, notice of which suit was given to the court with the request that in case judgment should be ordered on the verdict, it might be so ordered during the term time, to the end that the action might be continued to await the decision of the new suit. But so it is, that such judgment has been rendered as aforesaid, during the pendency of said new suit in vacation, to the entire loss of the wdiole of his claim, inasmuch as the said Bent is utterly worthless, and no judgment is or will be of any value which may be recovered against bim, unless the same be off-set against the judgment and execution already rendered as aforesaid. Wherefore, inasmuch as by said proceeding, great injustice has been done your petitioner by the judgment rendered as aforesaid, to your petitioner\\u2019s great misfortune, and as he alleges by accident and mistake ; therefore your petitioner, in order that justice may be done, prays that a review of said judgment may be granted, to the end that the action may stand to await the decision of his case against said JBent, so that the two may be set off as provided by law, and as may be just and equitable.\\n\\u201c And plaintiff avers, that the amount due him from said Bent, is very much larger than his, said Bent\\u2019s, execution aforesaid.\\n\\u201cWherefore, he prays that a review of said case may be granted, and a supersedeas may be issued against the collection of said execution. (Signed) Waldo T. Pierce.\\u201d\\nSworn to June 14, 1875.\\nThe respondent objected that the case is one not coming, within the provisions of the law, and that the court has no power to grant its request.\\nThe court below granted a temporary supersedeas to abide the opinion of the full court whether the case is one provided for by law.\\nA. W. Paine, for the petitioner)\\nurged as matter of law that the court had the power to grant his petition under R. S., c. 89, \\u00a7 1, and especially under clause seventh of \\u00a7 1, which reads as follows: \\u201cA review may be granted in any case where it appears that justice has not been done, through fraud, accident, mistake or misfortune; and that a further hearing would be just and equitable.\\u201d\\nO. P. Brown <S\\u00a1 A. I. Simpson, for the respondent,\\nrepresented the facts to be, that Pierce wrongfully seized notes which belonged to Bent; that in an action of trover the jury had so found and the court had sustained the verdict; they said it would be vexatious to compel their client to wait the result of an action which Pierce could only sustain by proving that his own testimony as to partnership in a former suit was untrue; and contended as .matter of law that the proper action of the court in announcing their decision on the motion as soon as made was not the kind of accident or mistake in the purview of the statute.\", \"word_count\": \"1490\", \"char_count\": \"8346\", \"text\": \"Dickerson, J.\\nThe petitioner seeks a review of an action in which a verdict has been rendered, and affirmed by the law court, against his motion to set it aside as against evidence, &c., and on account of newly discovered evidence. A review is claimed, not upon the ground that there was a mistrial of the case, but because upon the rendition of the verdict the petitioner commenced an action on a claim he had against the plaintiff, in order that he might offset the judgment he might therein recover against the plaintiff's judgment. The petitioner further represents that he gave the law court notice of the pendency of his suit; that should judgment be rendered against him on the verdict, it might be rendered in term time, to the end that the action might be continued to await the result of the subsequent suit.\\nThe \\\"accident or mistake\\\" relied upon as cause for review is alleged to consist in the fact that the law court allowed judgment to be rendered on the verdict in vacation, pending the second suit, notwithstanding the petitioner's notice and request. The particular grievance alleged is that on account of this action of the law court, execution has been issued in the action against the petitioner, that he has been deprived of the opportunity of offsetting the judgment he might recover against the plaintiff's judgment, and has thereby been subjected to the loss of his whole claim on account of the impecuniosity of the plaintiff.\\nIt must be conceded that the application is one of novel impression, and that if a review may be granted in such a case it is difficult to conceive of a case where one would be denied. The statute makes provision for rendering judgments, in vacation, in such cases, and we are not aware of any law or practice that authorizes or requires the law court to construe and administer that statute so as to suit the convenience or necessities of either party to the suit. Certain we are that there can be no \\\"mistake\\\" or \\\"accident\\\" in administering a statute according to its true intent and- meaning, as was done in the case under consideration. The law court overruled the motion and affirmed the verdict in vacation, and the statute gave the plaintiff a right to judgment and execution. There was no \\\"accident\\\" or \\\"mistake\\\" in that, nor was it competent for the defendant in the first suit to interpose in the manner stated in the petition, and thereby delay the rendition of judgment. Non constat that the plaintiff in the cross action would recover judgment to be offset in the mode suggested ; to allow him to keep his adversary in court for such a cause, when he is entitled to judgment, would be to subject him to delay, expense and hardship that the law does not sanction.\\nAs there was no \\\"accident or mistake\\\" in the purview of \\u00a7 1, clause 7, c. 89, B. S., of course it does not appear \\\"that justice has not been done through accident or mistake.\\\" But if it- was shown that there had been \\\"accident\\\" or \\\"mistake,\\\" it does not appear \\\"that justice has not been done\\\" by reason thereof. It is the failure of justice actually experienced in the case sought to be reviewed, and not future conjectural inconvenience or loss in another case, that the statute contemplates. In other words, it is a mischief accomplished and not one apprehended that this provision of the statute affords a remedy for. \\\"Boiled down,\\\" so to speak, the petition asks for a review, not because the verdict is wrong, or is expected to be reversed by the review prayed for, but to give the petitioner time to recover a judgment against the plaintiff with which to satisfy, wholly or in part, the judgment the plaintiff now holds against him. It is, perhaps, difficult to determine which is the more singular, the ingenuity or the audacity of the petitioner.\\nThe petitioner has no valid claim to a writ of review, as a matter of right under the first paragraph of \\u00a7 1, chap. 89, B. S., as the words \\\"civil actions\\\" are limited by the subsequent words, \\\"and in the special cases following.\\\"\\nWrit denied.\\nAppleton, C. J., Daneorth, Virgin, Peters and Libbey, JJ., concurred.\"}"

me/642740.json

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+"{\"id\": \"642740\", \"name\": \"Alexis Morneault, In Equity vs. Julie Sanfacon et als. AND; Julie Sanfacon et al. vs. Alexis Morneault\", \"name_abbreviation\": \"Morneault v. Sanfacon\", \"decision_date\": \"1922-12-11\", \"docket_number\": \"\", \"first_page\": \"76\", \"last_page\": \"81\", \"citations\": \"122 Me. 76\", \"volume\": \"122\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:37:26.398861+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Cornish, C. J., Spbar, Hanson, Philbrook, Morrill, Wilson, JJ.\", \"parties\": \"Alexis Morneault, In Equity vs. Julie Sanfacon et als. AND Julie Sanfacon et al. vs. Alexis Morneault.\", \"head_matter\": \"Alexis Morneault, In Equity vs. Julie Sanfacon et als. AND Julie Sanfacon et al. vs. Alexis Morneault.\\nAroostook.\\nOpinion December 11, 1922.\\nIn a bill in equity attacking the terms and execution of a deed, upon the issue of forgery, and of fraud, the evidence must be clear and convincing, precise and indubitable.\\nThe issues in this case between the parties to the bill in equity are of fact only, with the burden upon the plaintiff to establish his contention in contradiction of the terms of his deed.\\nThe quantum and quality of the evidence falls far short of the standard necessary to sustain a charge of forgery, or to overturn a deed upon the charge of fraud.\\nThe relief which the defendants seek in their answer should, as a general rule in chancery practice, be sought by a cross-bill. But all parties interested in the subject matter being before the court and the action of the court to establish their rights being sought by the pleadings, the cause may be retained for an affirmative decree, to the end that further litigation be avoided.\\nThe conduct of the defendant, Morneault, in the action at law, in permitting other parties to connect with and take water from the pipe laid by him from plaintiffs\\u2019 aqueduct to his buildings was clearly an invasion of the plaintiffs\\u2019 rights, and entitles them to recover at least nominal damages.\\nOn report. This is a bill in equity brought to cancel or reform a deed, dated January 15, 1914, wherein the complainant, and Flavie Morneault were grantors, and Julie Sanfacon and Fred A. Soucis, two of the defendants, were grantees, granting certain rights to lay and maintain an aqueduct leading from two springs or wells on the farm of grantors to the residence of Florent Sanfacon, husband of Julie Sanfacon, and the use of water by Florent Sanfacon at his. residence, and the use also by his son-in-law, Fred A. Soucis. Complainant alleges that the defendant, Florent Sanfacon, procured his signature to said deed through fraud and deceit, and further alleges that the said Florent Sanfacon, fraudulently and without authority, added the name of Flavie Morneault, the mother of the complainant, to said deed. The action of law seeks to recover damages caused or suffered by plaintiffs by reason of the defendant permitting other parties to connect with and take water from the pipe laid by him from the T in plaintiffs\\u2019 aqueduct to his buildings.\\nAt the conclusion of the evidence by agreement of the parties both causes were reported to the Law Court. In the cause in equity: Bill sustained without costs. Decree in accordance with this opinion. In the action at law, judgment for plaintiffs.\\nDamages assessed at $1.00.\\nThe cases are fully stated in the opinion.\\nShaw & Cowan, for Alexis Morneault.\\nGeorge J. Keegan and A. S. Crawford, Jr., for Julie Sanfacon, Florent Sanfacon and Fred Soucis.\\nSitting: Cornish, C. J., Spbar, Hanson, Philbrook, Morrill, Wilson, JJ.\", \"word_count\": \"1921\", \"char_count\": \"11060\", \"text\": \"Morrill, J.\\nThis litigation arises from a grant of certain rights to lay and maintain an aqueduct, by Alexis Morneault to Julie Sanfacon and Fred A. Soucis by deed dated January 15, 1914. The first action is in equity seeking a cancellation of the deed; the second is at law to recover damage for alleged interference with the easement granted.\\nOn the homestead farm of Morneault are two springs from which his buildings were formerly supplied with water by a log aqueduct; in course of time the logs became rotten and for many years that source of water supply for the buildings was discontinued. In May, 1913 Florent Sanfacon applied to Morneault for permission to \\u2022lay a pipe from the springs to the former's premises, and it is undisputed that an oral agreement of some kind was made, with the understanding that later it should be reduced to writing. Relying upon the oral agreement Sanfacon proceeded to lay a one-inch pipe from the springs about 3600 feet towards his premises; at the end of the one-inch pipe- he inserted a T and from that point laid a three-quarters-inch pipe to his premises, a distance of about 1200 feet; the expense was approximately $800. Later the deed in question was given; the date when it was actually executed is in dispute. Two years later Morneault laid a three-quarters inch pipe from the T to his own buildings in accordance with the original agreement.\\nIn his bill in equity the plaintiff, Morneault, alleges two grounds for the relief which he seeks; first, that the signature of his mother, Flavie Morneault, who held a mortgage on the farm for her support, and is now dead, is not genuine, that she never executed the deed; second, that through the fraud of Florent Sanfacon he was induced to sign an instrument which varies materially to his damage from the original oral agreement. He,does not complain that the deed was made to Julie Sanfacon, wife of Florent, nor that their son-in-law, Fred A. Soucis, was joined as grantee.\\nThe defendants by answer deny all fraud and allege that the deed of January 15, 1914,' \\\"sets out the exact and entire contract between the plaintiff and his wife (mother)-and the defendants with reference to the right of the defendants to take water from said wells, except that said deed does not in express terms grant to said Fred A. Soucis, the right to take water for the use of his store and residence, which right the plaintiff admits in his bill was to be granted to said Soucis under the aforesaid preliminary agreement, and in that respect, and that only, said deed does not conform to said preliminary verbal agreement.\\\"\\nThe issues between the parties are of fact only, with the burden upon the plaintiff to establish his contention in contradiction of the terms of the deed. Upon the issue of forgery, and of fraud, the evidence must be clear and convincing, precise and indubitable. It would be unprofitable to, attempt to analyse the evidence within the limits of this opinion. It must suffice to say that upon an examination of the record the inconsistencies and improbabilities of the plaintiff's position appear so great that he must fail in his contentions. Upon his own testimony his only substantial contention is that he understood the deed to be a lease \\\"for all the time so long as he maintained the pipes in good order.\\\" The quantum and quality of the evidence falls far short of the standard upheld in Colby et al v. Richards et al., 118 Maine, 288 as necessary to sustain a charge of forgery, and in Parlin v. Small, 68 Maine, 289 as necessary to overturn a deed upon the charge of fraud.\\nThis finding would usually require that the bill be dismissed; but the defendants conclude their answer with a prayer for relief:\\n\\\"That in the event that the Court shall construe said deed as not conferring upon the Defendant, Fred A. Soucis, the right to take water for the use of his store and residence, then the Court will order and decree that the Plaintiff make, execute and deliver to said Fred A. Soucis a good and sufficient deed conveying said right.\\\"\\nRelief of this character should as a general rule in chancery practice be sought by a cross-bill. Andrews v. Gilman, 122 Mass., 471, 474. Forbes v. Thorpe, 209 Mass., 570, 583. But, cases have arisen in which to avoid further litigation, all parties being before the court and the action of the court to establish their rights being sought by the pleadings, the cause has been retained for an affirmative decree. In Fife v. Clayton, 13 Vesey, Jun., 546, Lord Eldon held that a defendant to a bill for specific performance, proving an agreement different from that insisted on by the plaintiff, may have a decree upon his answer, submitting to perform; the Lord Chancellor expressed a willingness \\\"to follow a precedent that will save expense, and is right in principle.\\\"\\nIn Vanderveer v. Holcomb, 17 N. J., Eq. 87 it was held that \\\"the court dispenses with the necessity of a cross-bill, where the whole matter is before the court, and the party is not thereby deprived of any of his substantial rights by a decree in the existing suit.\\\"\\nAnd in Elliott v. Pell, 1 Paige, Ch. 263, it was held to be \\\"the settled law 'of this court that a decree between co-defendants, grounded upon the pleadings and proofs between the complainant and the defendants, may be made; and it is the constant practice of the court to do so, to prevent multiplicity of suits.\\\" For other cases dispensing with a cross-bill,.see note to last case cited, in Book 2, N. Y., Chancery Repts., Co-op., Ed. 640.\\nIn the present case the plaintiff has inserted the following prayers in his bill:\\n\\\"That the Court may determine what the contract was between the parties and declare and decree the terms of the same so that the rights of both parties under the original contract relating to said water be secured.\\n\\\"That the Court make such orders and decrees as are necessary to protect the rights of all parties in this bill.\\\"\\nWe think, therefore, that to end litigation and declare the rights of the parties, the bill should be sustained without costs. The defendants may prepare a decree providing for a modification of the deed of January \\\"15, 1914, expressly granting to Fred A. Soucis the right to take water through the pipe in question for the use of his store and residence, as claimed in defendants' answer. The defendant, Florent Sanfacon, frankly states in his testimony that he was to have the surplus water from the springs beyond what was required by the plaintiff for his private personal use. It may be doubtful whether this priority in the use of the water is secured to the plaintiff by the deed of January 15, 1914; the decree will, therefore, provide for such further modification as will secure to said plaintiff, and his grantees occupying said buildings, such priority of use. A deed may be prepared in accordance with this opinion for execution by Mr. Morneault and a copy annexed to and made a part of the decree, for the approval of the court.\\nAction at law. It is contended that the defendant, Mr. Morneault, has permitted other parties to connect with and take water from the pipe laid by him from the T to his buildings. Under the findings which we have made as to the rights of the parties, this action was clearly an invasion of the plaintiffs' rights, and entitles them to recover at least nominal damages. The plaintiffs claim as damages the expense of replacing the three-quarters-inch pipe from the T to their premises with a one-inch pipe, after their line was frozen upon their side of the T. But we are not satisfied that the interruption of their service was due to defendant's acts; it may quite as probably have been due to a defective plan adopted in laying the pipe, or to insufficient covering. We think that they must be satisfied with nominal damages; but this action has established their rights, and if a substantial invasion thereof continues, it may be the subject of equitable relief.\\nIn the cause in equity the entry will be\\nBill sustained without costs. Decree in accordance with this opinion.\\n.Tn the action at law,\\nJudgment for plaintiffs.\\nDamages assessed at $1.00.\"}"

me/645721.json

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+"{\"id\": \"645721\", \"name\": \"State of Maine vs. Thomas Fortin\", \"name_abbreviation\": \"State v. Fortin\", \"decision_date\": \"1910-02-04\", \"docket_number\": \"\", \"first_page\": \"382\", \"last_page\": \"385\", \"citations\": \"106 Me. 382\", \"volume\": \"106\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:17:19.486219+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Emery, C. J., Peabody, Cornish, King, Bird, JJ.\", \"parties\": \"State of Maine vs. Thomas Fortin.\", \"head_matter\": \"State of Maine vs. Thomas Fortin.\\nAndroscoggin.\\nOpinion February 4, 1910.\\nGriminal Law. Evidence. Identity of Informer. Trial. Presumptions. Intoxicating Liquors.\\n1. The defendant in a criminal case is not entitled to know who gave information or made complaints which led to the prosecution.\\n2. The fact that an officer in testifying in a criminal case stated without objection that complaints had been made against the defendant, does not. take the case out of the rule and entitle the defendant to the names of such complainants.\\n3.. That immaterial evidence is given without objection does not entitle the opposite party to make an issue upon such immaterial evidence.\\n4. The fact that complaints were made against a defendant has no probative force against him, and evidence of such complaints given without objection does not entitle him to make an issue upon the truth of such evidence.\\n5. When immaterial or non-probative evidence has been received, if a party fears it may prejudice him with the jury he should request an instruction that the evidence is immaterial and should not be considered by the jury.\\n6. It is to be presumed that the jury will follow the direction of the court and reject all evidence the court instructs them is not to be considered.\\n7. A grocer on trial for maintaining a liquor nuisance is not entitled to show the amount of his weekly sales in the grocery business. Such evidence has no probative force in support of his innocence.\\nOn exceptions by defendant.\\nOverruled.\\nThe defendant was indicted for keeping and maintaining a liquor nuisance and on trial was found guilty. He excepted to certain rulings of the presiding Justice during the trial.\\nThe case is stated in the opinion.\\nFrank A. Morey, County Attorney, for the State.\\nTascus Atwood, for defendant.\\nSitting: Emery, C. J., Peabody, Cornish, King, Bird, JJ.\", \"word_count\": \"1145\", \"char_count\": \"6643\", \"text\": \"Emery, C. J.\\nThe issue in this case was whether the defendant was guilty of maintaining a nuisance at the place named in the indictment. At the trial \\\"the witness for the state\\\" testified, without objection so far as appears, that complaints had been made to him against the place named. The defendant then asked the witness to name the complainants, but the court ruled that the witness need not answer. It is not explicitly stated in the bill of exceptions who \\\"the witness for the state\\\" was, but it is a fair inference that he was an officer, and as both counsel so assumed in argument we assume the same.\\nIt is a well settled rule that a defendant upon the trial of an indictment against him'is not entitled as of right to know who gave the information or made the complaints which started the prosecution. Such communications to officers of the law should ordinarily be regarded as privileged as to the identity of the informant or complainant on the ground of public policy, so that no one from fear of consequences to him personally shall hesitate to give information of offenses. State v. Soper, 16 Maine, 293; U. S. v. Moses, 4 Wash. C. C. 726; Worthington v. Scribner, 109 Mass. 487; People v. Laird, 102 Mich. 135; Wigmore on Ev. sec. 2374, and notes.\\nIt is urged, however, that while a defendant may not himself bring out evidence of complaints and then require the names of the complainants, yet if it appears, as in this case, from the evidence for the prosecution that complaints were made, he is then entitled as of right to the names of the complainants. We do not see any distinction in principle. The reason of the rule, the encouraging the fearless performance of the duty of giving information, certainly includes this case. It cannot be that the immunity of the informant is destroyed by the mere statement that information was received or complaints made. Under such a rule no informant would be safe.\\nBut the defendant argued that the statement that complaints had been made was prejudicial to him, and that he thereby became entitled to know the names of the complainants in order that he might con tradict the statement or bring out the motives for the complaints, however much the public might be injured by such a course. What might have been the right of the defendant had he objected to the testimony and his objection overruled, we have no occasion to say. The testimony appears to be entirely immaterial, of no probative force, and if objected to would doubtless have been excluded. A party is not entitled as of right to raise an issue upon immaterial statements made without objection. To acknowledge such a right would greatly prolong trials and obscure the real issue. In this case, if the defendant were entitled to know the names of the complainants for the purposes stated by him, he would be entitled to call all such persons, perhaps a dozen or more, and examine them as to the fact of their having made complaint, and as to their motives and grounds of complaint. This would give the State the right to rebut such evidence, and we should have the spectacle of a prolonged controversy over an immaterial issue which when finally determined brings the court and jury no nearer a solution of the question of the truth of the indictment. That complaints were made is no evidence of guilt; that complaints were not made is no evidence to the contrary.\\nIf the defendant really feared he was prejudiced with the jury by the statement that complaints had been made, he had a remedy. He could have requested, and undoubtedly received, an instruction that the statement was immaterial, of no probative force, and should not be considered by the jury. It must be presumed that such an instruction would have effaced all prejudice, if any, resulting from the statement. State v. Kingsbury, 58 Maine, 238. With that remedy available, we do not think the defendant was entitled as of right to the names of the complainants. In School District v. Etna Ins. Co., 62 Maine, 330, a paper was received in evidence against the objection of the defendant. The defendant contended that it tended to prejudice the defense; but the court held that the evidence being really immaterial, having no bearing on the real issue in the case, the exception to its admission should not be sustained.\\nThe defendant was a witness and desired to state the amount of his weekly sales in the grocery business it appeared he was conduct ing, but he was not allowed to do so. The offered evidence was clearly immaterial. It had no probative force either way. All such evidence, though exceptions to its admission may not be sustainable, should ordinarily be excluded for economy of time and clarity of issue.\\nThe other exceptions were abandoned at the argument.\\nExceptions overruled.\"}"

me/646832.json

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+"{\"id\": \"646832\", \"name\": \"Arlena M. Perry, Otherwise Linnie Maud Perry vs. Charles R. Buswell\", \"name_abbreviation\": \"Perry v. Buswell\", \"decision_date\": \"1915-06-29\", \"docket_number\": \"\", \"first_page\": \"399\", \"last_page\": \"404\", \"citations\": \"113 Me. 399\", \"volume\": \"113\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:24:45.562730+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Savage, C. J., Spear, Cornish, Bird, Haley, Philbrook, JJ. \\\\\", \"parties\": \"Arlena M. Perry, Otherwise Linnie Maud Perry vs. Charles R. Buswell.\", \"head_matter\": \"Arlena M. Perry, Otherwise Linnie Maud Perry vs. Charles R. Buswell.\\nPenobscot.\\nOpinion June 29, 1915.\\nConstruction. Description. Intention. Purposes of References to Prior Conveyances. Real Estate. Reference to Other Deeds. Title. Trover.\\nA person owning a homestead situated partly in Exeter and partly in Garland, conveyed \\u201call my right,' title and interest to certain real estate situated in the town of Exeter .... being my homestead place and the same real estate described in a mortgage given by me to J. A. B. under date of August 17, 1909, and recorded in Penobscot Registry of Deeds in Vol. 795, Page 471, to which mortgage reference may be had for a full and particular description.\\u201d The description in the mortgage referred to was, \\u201ca certain lot or parcel of land known as the homestead of said J. A. B., lying a part in said town of Exeter and part in Garland,\\u201d etc.\\n1. Held, that the deed conveyed that part of the homestead which lay in Garland as well as the part in Exeter.\\n2. The cardinal rule for the interpretation of deeds is the expressed intention of the parties gathered from all parts of the instrument giving each word its due force, and read in the light of existing conditions.\\n3. A reference in a deed to other deeds, when it appears that it was so intended, makes them a part of the description, as much as if their language had been incorporated and copied as a part of it.\\nOn report.\\n\\u2018 Judgment for defendant.\\nThis is an action of trover for the conversion of certain goods and chattels, described in plaintiff\\u2019s writ. The question involved is the title to certain real estate in Garland, Maine. Plea, general issue, with brief statement, claiming title to the land on which the logs were cut to be in defendant and not in plaintiff.\\nAt the conclusion of the evidence, by agreement of parties, the case was reported to the Law Court. Upon so much of the evidence as is legally admissible, the Law Court shall render such judgment as-the law and the evidence require.\\nThe case is stated in the opinion.\\nLouis C. Stearns, and George H. Worster, for plaintiff.\\nHudson & Hudson, for defendant.\\nSitting: Savage, C. J., Spear, Cornish, Bird, Haley, Philbrook, JJ. \\\\\", \"word_count\": \"2263\", \"char_count\": \"12871\", \"text\": \"Savage, C. J.\\nThis case comes up on report. The question involved is the title to certain real estate in Garland. The facts are not in dispute. In 1869, George S. Hill was the owner of \\\"a homestead farm\\\" situated partly in Garland' and partly in Exeter. He took title to the part in Garland and to the part in Exeter by separate deeds, at different times. Hill conveyed the whole to one Brown, and Brown to one Gould. Gould mortgaged back to Brown, August 17, 1909. The description in the mortgage was \\\"a certain lot or parcel of land known as the homestead of said James A. Brown, lying a part in said town of Exeter and part in Garland in said county of Penobscot and being the same premises\\\" described in certain title deeds referred to. In 1913 Gould conveyed to the defendant, \\\"all my right title and interest to certain real estate situate in the town of Exeter, county of Penobscot, and State of Maine, being my homestead place and the same real estate described in a mortgage given by me to James A. Brown under date of August 17,1909, and recorded in Penobscot Registry of Deeds, in Vol. 795, Page 471, to which mortgage reference may be had for a full and particular description.\\\" Subsequently Gould gave a deed of that part of the homestead which lies in Garland to one Appleby, through whom the plaintiff claims. title.\\nThe defendant contends that the entire homestead farm, the part in Garland, as well as the part in Exeter, came to him by Gould's deed. The plaintiff claims that the Gould deed conveyed only land in Exeter. The first phrase in the description in' the Gould deed, \\\"certain real estate situate in the town of Exeter,\\\" standing alone, certainly limits the grant to land in Exeter. Can the grant be enlarged by the phrase \\\"being my homestead place,\\\" without words of limitation, and by the reference to the Brown mortgage, which describes the homestead farm as being in both Exeter and Garland, and which is referred to for \\\"a full and particular description?\\\" And if it can be, should it be so enlarged? These are the questions.\\nThe cardinal rule for the interpretation of deeds and other written instruments is the expressed intention of the parties, gathered from all parts of the instrument, giving each word its due force, and read in the light of existing conditions and circumstances. It is the intention effectually expressed, not merely surmised. This rule controls all others. Technical rules of construction of deeds may be resorted to as an aid in getting at the intention. And technical rules may be controlling, when nothing to the contrary is shown by the deed. The ancient rigidity of technical rules has given way in modern times to the more sensible and practical rule of actual expressed intention. Child v. Fickett, 4 Maine, 471; Pike v. Monroe, 36 Maine, 309; Hathorn v. Hinds, 69 Maine, 326; Proctor v. M. C. R. R. Co., 96 Maine, 458; Whitmore v. Brown, 100 Maine, 410; Morse v. Phillips, 108 Maine, 63.\\nOf all rules of construction none is more rigid than the one that where the language describing the grant is specific and definite, as for instance, by metes and bounds, the grant cannot be enlarged or diminished by a later general description, or by mere reference to deeds through which title was obtained. And this rule hblds because the specific description is necessarily more indicative of intention than the general one. Jones v. Webster Woolen Co., 85 Maine, 210; Brown v. Heard, 85 Maine, 294; Reed v. Knight, 87 Maine, 181; Smith v. Sweat, 90 Maine, 528; Crabtree v. Miller, 194 Mass., 123.\\nSo, it is true that a general description may be made more certain, and be controlled by a later particular one, or by reference to prior deeds. In Allen v. Allen, 14 Maine, 387, \\\"my homestead farm, being lot No. 13,\\\" was held to pass only so much of the homestead farm as lay within lot 13. In Thorndike v. Richards, 13 Maine, 430, \\\"all that tract of land called and known by the name of Pitts or Beauchamp Neck,\\\" followed by metes and bounds, conveyed only so much of the Neck as lay within the specific boundaries. In Haynes v. Young, 36 Maine, 557, ' 'lot No. 170,\\\" followed by metes and bounds the grant was restricted to land within the boundaries described. In Stewart v. Davis, 63 Maine, 539, \\\"the farm on which I now live being lot 9,\\\" conveyed only so much of the farm as was within lot 9. See also, Bates v. Foster, 59 Maine, 157; Hamlin v. Attorney General, 195 Mass., 309.\\nIn a few cases, a description in general terms followed by a more particular description, or by reference, for description, to a prior deed, the language of the whole deed has led the court to give effect to the general description. Such cases are Keith v. Reynolds, 3 Maine, 393; Willard v. Moulton, 4 Maine, 14; Childs v. Fickett, 4 Maine, 471; Field v. Huston, 21 Maine, 69. See also, Lovejoy v. Lovett, 124 Mass., 270.\\nReferences to prior conveyances are made for varying purposes. They are made sometimes for the purpose of showing the source of title; sometimes to show the identity of the land conveyed; sometimes, and generally by way of caution, to afford a more definite description. It is probably true that in the larger number of cases the reference is made to show the source of title. For illustrations, see Hathorn v. Hinds, supra; Shaw v. Bisbee, 83 Maine, 400; Jones v. Webster Woolen Co., supra; Brown v. Heard, supra; Smith v. Sweat, supra. In Shaw v. Bisbee, supra, the court said that \\\"reference to prior deeds, unless expressly appearing Otherwise, is only intended to help identify the premises conveyed, and not to determine the quality or quantity of title.\\\" But a reference to other deeds, when it appears that it was so intended, makes them a part of the description, as much as if their language had been copied as a part of it. Field v. Huston, supra.\\nThe cases cited are enough to illustrate the application of the rule of construction by expressed intention to the ever varying phraseology of deeds. And construing the deed before us in the light of judicial authority we think it is reasonably certain that the parties intended it as a grant of the \\\"homestead place,\\\" both in Exeter and in Garland. We do not mean to say that it is absolutely certain. The omission, of the word \\\"Garland\\\" in conjunction with the word Exeter in the first descriptive clause is not, of itself, without considerable significance. If not supplied by later description or reference,' the omission would be fatal. But on the other hand, the expression \\\"my homestead place,\\\" without words of limitation, has much significance. The grantor does not say \\\"being a part of my homestead place,\\\" nor \\\"being that part of my homestead place that lies in said Exeter.\\\" Some such expression we think would naturally be expected if a man were dividing up his \\\"homestead place\\\" and conveying part of it. The expression \\\"homestead place,\\\" unqualified, means, of course, the entire homestead place. But besides saying that the land granted was his \\\"homestead place,\\\" without designation of locality, the grantor adds to this description the words \\\"and the same real estate described in a mortgage,\\\" etc., \\\"to which mortgage reference may be had for a full and particular description.\\\" The use of the phrase \\\"certain real estate situated in the town of Exeter\\\" had not located the land on the face of the earth. Nor had the expression \\\"my homestead place,\\\" of itself, located it in any town. Then the grantor added the reference \\\"for a full and particular description. ' ' It may be that the words ' 'my homestead place, ' ' or the reference, either, alone, ought not to overcome the limitation in the first phrase to \\\"real estate in Exeter.\\\" But the use of both combined lends so much weight to the claim that the intention was to convey the entire homestead, that we think it should be regarded as decisive.\\nThe cases relied upon by the plaintiff are not inconsistent with this conclusion. Indeed, they all are good illustrations of the rule of expressed intention. In Peasley v. Drisko, 100 Maine, 17, the grant was of \\\"a lot of meadow land, the same deeded to me by John Burns, meaning and intending to convey all my right in fresh meadow lands.\\\" The deed of Burns referred to included both upland and meadow. This was a case of a general description followed, by reference, by a more particular one. The plaintiff invoked the rule that when a general description is followed by a specific one, th.e latter controls. The court said: \\u2014 \\\"The reference to another deed does not necessarily make the boundaries named in that deed the boundaries of the lot named in the first deed. The language may show that the reference was only to state the source of title, or to identify the lot, and not for statement of boundaries. Again, the rule invoked is limited to the evident subject matter of the conveyance.\\\" And the court concluded, considering all the language of the deed, that the subject matter of the conveyance in that case was meadow land only, and that the reference to the Burps deed was not to fix boundaries, but to identify the land.\\nIn Brunswick Savings Inst. v. Crossman, 76 Maine, 577, the Court said that a general reference to a prior deed, whether as indicating the source of title, or as a matter of description, did not necessarily control a prior specific description by metes and bounds, much less, enlarge it. We say so now. But that is not this case.\\nThe case of King v. Little, 1 Cush., 436, is in some aspects more like the case at bar. In that case a grantor conveyed all his interest in a tract of land in Great Barrington, \\\"being the same that was devised\\\" etc. The devise included lands in both Great Barrington and Sheffield. This.was a case of one general description followed by another, even more general, so far as any expression in the deed was concerned. Under these conditions the court said: \\\"Wfe do not feel authorized to give effect to the conveyance as a deed of lands in Sheffield.\\nIn Lovejoy v. Lovett, 124 Mass., 270, also cited by the plaintiff, the grant was by metes and bounds, \\\"being the same premises conveyed\\\" etc. The deed referred to included more land than that described in the grant. The court said that the reference was entitled to some weight, but that it was not enough to overcome the inferences to be drawn from the other parts of the deed. And it was held that the particular description showed with reasonable certainty that only the smaller area was intended to be conveyed, and that the reference to the prior deed was made for the purpose of showing the chain of title, and not for fixing the metes and bounds.\\nAccordingly the certificate must be,\\nJudgment for the defendant.\"}"

me/646879.json

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+"{\"id\": \"646879\", \"name\": \"John D. Vermeule vs. Carolyn C. Vermeule\", \"name_abbreviation\": \"Vermeule v. Vermeule\", \"decision_date\": \"1915-02-18\", \"docket_number\": \"\", \"first_page\": \"81\", \"last_page\": \"82\", \"citations\": \"113 Me. 81\", \"volume\": \"113\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:24:45.562730+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Savage, C. J., Cornish, Bird, Hanson, Philbrook, JJ.\", \"parties\": \"John D. Vermeule vs. Carolyn C. Vermeule.\", \"head_matter\": \"John D. Vermeule vs. Carolyn C. Vermeule.\\nYork.\\nOpinion February 18, 1915.\\nAssignment. Foreclosure. Mortgage. Quitclaim Deed. Real Action.\\nA deed by a mortgagee not in possession, unaccompanied by a transfer or assignment of the mortgage indebtedness, conveys no title.\\nOn report.\\nJudgment for plaintiff.\\nThis is a real action for certain real estate and is based upon the same allegations, evidence and arguments as the case of John D. Vermeule against Joseph Hover, to which reference is made. The defendant, on motion, was permitted in the court below to plead in equity. By agreement, this case was referred to the Law Court for the determination of the rights of the parties, upon so much of the evidence introduced by either party in the case of John D. Vermeule v. Joseph Hover, so far as is legally admissible.\\nThe case is stated in the opinion.\\nCharles E. Littlefield, and George C. Yeaton, for plaintiff.\\nLeRoy Haley, for defendant.\\nSitting: Savage, C. J., Cornish, Bird, Hanson, Philbrook, JJ.\", \"word_count\": \"412\", \"char_count\": \"2433\", \"text\": \"Philbrook, J.\\nThis is a -real action -presented to this court in conjunction with the cas\\u00e9 of John D. Vermeule v. Joseph Hover, ante, and with the exception of one element is based'upon the same allegations, evidence and arguments, so that reference is hereby made to that case for a statement of claims made by parties and our conclusions. In this case the defendant claims an additional element and urges that on the first day of August, 1898, Armenious H. Bowden, then the owner and holder of the mortgage given by C. C. Vermeule to said Bowden, by his quitclaim deed of that date, conveyed to her all his right, title'and interest in and to the premises covered by the mortgage. But Bowden was not then in possession of the premises and it is now well settled in this State that a deed by a mortgagee out of possession, un\\u00e1ccompanied' by adiransf\\u00e9l or assignment of the mortgage indebtedness, Conveys mo .title. Smith v. Booth Brothers, 112 Maine, 297, and cases there cited. It is not claimed that Bowden transferred or assigned the mortgage debt't\\u00f3 Mrs. Vermeule.\\nThis quitclaim deed of Borden to the defendant, therefore, conveyed no title and does not strengthen defendant's claims. Subject to stipulation for verification of description, referred to in Vermeule v. Hover, the record of which case was tobe made part of this case, so far as it might be relevant or material, the entry must bo, .\\nJudgment for plaintiff.\"}"

me/646956.json

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+"{\"id\": \"646956\", \"name\": \"John Colby vs. The Inhabitants of the Town of Pittsfield; Ellen J. Colby vs. The Inhabitants of the Town of Pittsfield\", \"name_abbreviation\": \"Colby v. Inhabitants of Pittsfield\", \"decision_date\": \"1915-08-03\", \"docket_number\": \"\", \"first_page\": \"507\", \"last_page\": \"510\", \"citations\": \"113 Me. 507\", \"volume\": \"113\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:24:45.562730+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Savage, C. J., Spear, Cornish, Bird, Philbrook, JJ.\", \"parties\": \"John Colby vs. The Inhabitants of the Town of Pittsfield. Ellen J. Colby vs. The Inhabitants of the Town of Pittsfield.\", \"head_matter\": \"John Colby vs. The Inhabitants of the Town of Pittsfield. Ellen J. Colby vs. The Inhabitants of the Town of Pittsfield.\\nSomerset.\\nOpinion August 3, 1915.\\nBodily Injury. Defect. Description of Injuries. Highway. Injuries. Mental Suffering. Notice. Physical Injury. R. S., Chap. 28, Sec. 76.\\n1. Under R. S., Chap. 23, Sec. 76, the notice required must give a specific description of the bodily injuries claimed to have been received.\\n2. A general description of the bodily injuries is not sufficient, but a specific description of bodily injuries is required as a condition precedent to the right of any action at all.\\n3. One having a right of action for bodily injuries may have damages for all of the natural consequences, such as loss of earnings, physical pain and mental suffering.\\n4. Suffering is not the injury for which a recovery may be had under statutory notice, but the consequences of it.\\n.5. This action is based upon the statute and must strictly comply with the requirements of the statute, and the statute allows damages for bodily injuries only and their consequences.\\nOn exceptions by\\u2019plaintiffs.\\nExceptions overruled.\\nThese two actions are brought to recover damages for injuries received by reason of an alleged defect in the highway in the defendant town. Both cases depend upon the same facts and were tried together. Plea, the general issue. At the close of the plaintiffs\\u2019 evidence the presiding Justice directed a non-suit in both cases. To this ruling and direction, the plaintiffs excepted.\\nThe case is stated in the opinion.\\nT. A. Andrews, Morse & Cook, and H. C. Buzzell, for plaintiffs.\\nManson & Coolidge, and H. H. Thurlough, for defendants.\\nSitting: Savage, C. J., Spear, Cornish, Bird, Philbrook, JJ.\", \"word_count\": \"1149\", \"char_count\": \"6691\", \"text\": \"Spear, J.\\nThese cases are to be considered together and involve actions against the defendant town for alleged injuries received from an accident caused by an alleged defect in the highway. Both cases were non-suited at nisi prius for want of a valid fourteen days' notice, and come here on exceptions- to this ruling.\\nThe only question raised by the exceptions is the sufficiency of the notice, which reads as follows:\\n\\\"Pittsfield, Maine, October 23, 1912.\\nSelectmen of the Town of Pittsfield,\\nPittsfield, Maine.\\nGentlemen:\\nI hereby notify you that on the 9th day. of October, A. D. 1912 while driving along the road and while near the Waverly Bridge, that John Colby and Ellen J. Colby, both of Montville in the County of Waldo and State of Maine were thrown into the river through lack of proper railing or fence along the road near Waverly Bridge on the west side of the Sebasticook River, and just south of the Waverly Bridge and very near to an electric light pole near said Waverly Bridge, that the said Ellen J. Colby has suffered a great deal both in mind and body on account of the injury which she received by being thrown into the river; that her body was badly bruised and that she claims damages from the Inhabitants of the Town of Pitts-field for the injuries which she has sustained in the sum of two thousand dollars.\\nThat John Colby received injuries by being thrown into the river near Waverly Bridge just south of the bridge on the west side of the Sebasticook River and very near to the electric light pole near said south side of the bridge on the west end of the bridge in that his body was bruised and that he has suffered a great deal in both mind and body from the injuries which he sustained by being thrown into the river through lack of proper railing along the river near said Waverly Bridge on the west side of the Sebasticook River and by reason of the injuries sustained by him the said John Colby he claims damages from the inhabitants of the town of Pittsfield to the sum of two thousand dollars.\\\"\\nAs to the physical injuries alleged to have been sustained the notice contains only this specification, \\\"that her body was badly bruised.\\\" Under our decisions it is too well settled to admit of discussion that this specification does not contain such a description of physical injury as the statutory notice requires.\\nBut the plaintiff contends, even admitting this conclusion as to the specification of physical injury, that there is enough of the notice left to meet the requirements of the statute in the further statement \\\"that she has suffered a great deal both in mind and body on account of the injuries which she has received by being thrown into the water.\\\" If no bodily injury could be proved, there would be no premise upon which to base a conclusion of mental suffering; on the other hand, when mental suffering flows from physical injury, it may be proved as a basis for damages. Droscoll v. Gaffney, 207 Mass., 102. A discussion of this question must therefore assume, that although physical injury could not be proved, for the recovery of damages, for the technical want of sufficient notice, it nevertheless could be proved, as a matter of fact.\\nThe real issue, then, is: Can physical injury, being insufficiently described in the notice, be proved as the foundation for admitting evidence of mental injury, under that part of the notice in which the latter is properly described? In other words, can the plaintiff prove the fact of physical injury, without notice, as a basis upon which to prove the fact of mental injury, with notice? To go a step further, would a notice, otherwise valid, describing only mental suffering, be sufficient to authorize proof of physical injury, not as a basis of damages, but as a basis of proof of mental suffering? This feature of the case depends upon the interpretation of the notice required by the statute.\\nThere is no right of action under the statute for anything except a \\\"bodily injury.\\\" R. S., Chap. 23, Sec. 76, provides that \\\"whoever receives a bodily injury\\\" may recover, etc. This statute as interpreted by the court requires the notice to give a specific description of the bodily injuries claimed to have been received. A general description even is not regarded as sufficient. It accordingly follows that notice of \\\"bodily injury\\\" is required as a condition precedent to the right of any action at all. One having a right of action for bodily injuries may have damages for all of the natural consequences, such as loss of earnings, physical pain, and mental suffering. But the suffering is not the injury for which a recovery may be had under the statutory notice, but the consequence of it. It should be noted, however, that this is not a common law action but one based upon the statute, and must strictly comply with the requirements of the statute, and the statute allows damages for \\\"bodily injuries\\\" only and their consequences.\\nExceptions overruled.\"}"

me/650048.json

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+"{\"id\": \"650048\", \"name\": \"Benjamin F. Haskell, and another, vs. Charles C. Tukesbury\", \"name_abbreviation\": \"Haskell v. Tukesbury\", \"decision_date\": \"1899-04-05\", \"docket_number\": \"\", \"first_page\": \"551\", \"last_page\": \"558\", \"citations\": \"92 Me. 551\", \"volume\": \"92\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:44:44.873363+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Emery, Haskell,\\u2022 Whitehouse, Strout, Savage, Fogler, JJ.\", \"parties\": \"Benjamin F. Haskell, and another, vs. Charles C. Tukesbury.\", \"head_matter\": \"Benjamin F. Haskell, and another, vs. Charles C. Tukesbury.\\nCumberland.\\nOpinion April 5, 1899.\\nStat. of Frauds. Evidence. Contract. Consideration. B. S., c. Ill, \\u00a7 1, Par. 2.\\nThe defendant signed and delivered to plaintiffs\\u2019 agent a writing, the material part of which is as follows : \\u201cPriend Geo.: Pop Dyer has been up to see me about a bill that he owes your concern. If they will give him time I will see that the bills is paid with interest.\\u201d Held; that the writing is sufficient to satisfy the Statute of Prauds; that parol evidence is admissible to identify the parties and the subject matter of the writing and to show that the person to whom the writing is addressed was the plaintiffs' agent; and that the forbearance of the plaintiffs, for six months, to sue the bill referred to is a sufficient consideration for the defendant\\u2019s promise.\\nOn Report.\\nThis case was certified to the law court under R. S.; c. 77, \\u00a7 48, by the justice of the Superior Court, for Cumberland county. It was an action of assumpsit, originating in the Municipal Court for the city of Portland, to recover against an alleged guarantor forty-one dollars and fifty cents for clothing sold to F. H. Dyer. The declaration is as follows:\\nIn a plea of the case, for that the plaintiffs sold and delivered certain goods according to the account annexed to one F. H. Dyer, formerly of Portland on or about the twentieth day and eighteenth day of July A. D. 1896; that on or about the seventh day of November A. D. 1896, an effort was made to collect said account whereupon and upon the said seventh day of November the defendant in consideration of forbearance from enforcing the collection of said claim and of giving more time to the said Dyer in which to pay said account, guaranteed to pay said account with interest to the said plaintiffs by a written guaranty delivered to the plaintiffs through their agent, of the following tenor, to wit:\\nPortland Theatre, Nov. 7-96.\\nFriend Geo. (meaning George Goold, the agent of the plaintiffs.)\\n\\u201cPop\\u201d Dyer (meaning F. H. Dyer) was up to see me about a bill that he owes your concern (meaning the plaintiffs.) lie is having a \\u201c fit.\\u201d\\nIf they (meaning the plaintiffs) will give him time I will see that the bills is paid with int. (meaning interest.) Now that McKinley is elected he has got a sure thing and I know it.\\nYours, O. C. Tukesbury.\\nAnd the plaintiffs aver that on account of said guaranty they delayed collecting said claim giving said Dyer more time in which to pay the same, but that the said Dyer has never paid said account and that since the giving of said guaranty the said Dyer has left the State and that his whereabouts are unknown to the plaintiffs; that the plaintiffs have notified the said defendant since the giving of the said guaranty of the failure of the said Dyer to pay the said account and of the departure of the said Dyer from the State and have frequently requested the said defendant to pay the said account according to the terms of his said guaranty but he has refused to do so, whereby and in consideration of the facts above stated at said Portland on the' day of the purchase of this writ the said defendant being indebted to the plaintiffs in the sum of forty-three dollars and fifty-seven cents according to the account annexed then and there promised the plaintiffs to pay them said sum on demand.\\nPortland, Maine, May 27th, 1897.\\nF. H. Dyer\\nTo Haskell & Jones, , Dr. 1896.\\nJuly 18. To one suit, ...... $35.00\\n20. \\u201c two Negl. Shifts, ..... 6.50\\nInterest to date, ..... 2.07\\n$43.57\\nPlea, general issue, and brief statement that the statute of frauds is a bar to the action.\\nCalvin E. Woodside, for plaintiffs.\\nD. A. Mealier, for defendant.\\nCounsel cited: Williams v. Robinson, 73 Maine, 186; Stewart v. Campbell, 58 Maine, 439, 444, & 449; O\\u2019Donnell v. Leeman, 43 Maine, 158; Jenness v. Mount Hope Iron Co., 53 Maine, 20; 1 Chitty on Contracts, p. 96 and note pages 146 & 147; 1 Greenl. Evidence (14 Ed.) pp. 361 & 354; Myer v. Casey, 57 Mississippi, 615; 1 Addison on Contracts, (Morgan\\u2019s Ed.) pp. 309 & 324; Stone v. Symmes, 18th Pick. 467; Curtis v. Brown, 5 Cush. 488; Harrington v. Rich, 6 Vt. 666.\\nSitting: Emery, Haskell,\\u2022 Whitehouse, Strout, Savage, Fogler, JJ.\", \"word_count\": \"2618\", \"char_count\": \"14981\", \"text\": \"Fogler, J.\\nAssumpsit upon a writing signed by the defendant of the following tenor:\\n\\\"Portland Theatre, Nov. 7, '96.\\nFriend Geo.\\u2014\\n\\\"Pop\\\" Dyer was up to see me about a bill that he owes your concern. He is having a \\\"fit.\\\" If they will give him time I will see that the bills is paid with interest. Now that McKinley is elected he has got a sure thing and I know it.\\nTours, C. C. Tukesbury.\\\"\\nThe defendant pleads the general issue and by brief statement the statute of frauds. The case comes to this court from the Superior Court of the county of Cumberland on report.\\nDyer owed the plaintiff for merchandise described in the writ. After unsuccessful efforts to collect the debt of Dyer, the plaintiffs placed the bill in the hands of George M. Goold, their salesman and agent, for collection. Mr. Goold had a conversation with the defendant in'which the defendant said he thought Dyer was all right and would pay the bill if they would give him time. In a subsequent conversation Mr. Goold asked the defendant if he would not fix it so the concern would not sue Dyer. Thereupon the defendant wrote and signed the writing in suit and sent it to Goold who handed it to the plaintiffs' book-keeper. The plaintiffs brought no suit against Dyer and made no further effort to collect of him, and May 27, 1897, Dyer having left town, after demanding payment of the defendant, commenced this suit.\\nThe plaintiffs seek to charge the defendant for the. debt of another, and the question is whether the writing declared on is sufficient to satisfy the statute of frauds. Revised Statutes, ch. Ill, \\u00a7 1, p. 2, provides that \\\"no action shall be maintained to charge any person upon any special promise to answer for the debt, default or misdoings of another unless the promise, contract or agreement, on which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some-person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise.\\\"\\nThe defendant contends that the action is not maintainable because, as he says, no consideration is expressed in the writing declared upon and no sufficient consideration is proved. The statute does not require that the consideration be expressed in the writing but expressly provides that it \\\"may be proved otherwise.\\\"\\nThe consideration may be proved by parol. Williams v. Robin son, 73 Maine, 186. The statute of frauds, even before the amendment expressly declaring it unnecessary, did not require the consideration to be recited in the note or memorandum signed by the party to be charged, but it might be proved by parol. Cummings v. Dennett, 26 Maine, 397; Gillighan v. Boardman, 29 Maine, 79; Williams v. Robinson, supra.\\nA promise to forbear and give further time for the payment of a debt, though no definite time be named, if followed by actual forbearance for a reasonable time, is a valid and sufficient consideration for a promise guaranteeing the payment. Moore v. McKenney, 83 Maine, 80.\\nIn the case at bar the defendant in writing promised to see the debt of Dyer paid with interest if the plaintiffs would give him time. Hiram L. Jones, one of the plaintiffs, testified, and his testimony is uncontradicted, that on the receipt of the writing declared upon he notified the defendant that the proposition of the defendant was accepted, and it appears that the plaintiffs did actually forbear to enforce payment of the debt from November 7, 1896, to May 27, 1897, when the present suit was commenced. We are of opinion that the plaintiffs agreed to forbear and did forbear suit for a reasonable time, and that a sufficient consideration for the defendant's promise is proved.\\nThe defendant further contends that the writing declared on is not sufficient to satisfy the requirements of the statute inasmuch as the plaintiffs are not named or referred to therein; that the names of the parties are not sufficiently expressed; that the subject matter of the agreement is not sufficiently described; and that parol testimony is not admissible to supply such omissions.\\nGeorge M. Goold was the agent of the plaintiffs in the transaction under consideration and the fact was known to the defendant. The writing states that Dyer had been to see the defendant about \\\"a bill tbat he owes your concern \\\"; and states \\\"if they will give him time I will see that the bill is paid\\\"; showing that the defendant well understood that he made the proposition contained in the writing, not to Goold individually, nor to an undisclosed principal, but to the plaintiffs, disclosed principals. \\\" Contracts of guaranty differ from other ordinary simple contracts only in the nature of the evidence required to establish their validity. The statute requires every special promise to answer for the debt, default or miscarriage of another to be in writing subscribed by the party to be charged thereby, and no parol evidence will be allowed as a substitute for these requirements of the statute. But, in other respects, the same rules of construction and evidence apply to contracts of this character which apply to other ordinary contracts.\\\" Union Bank v. Coster's Ex'rs, 3 N. Y. 203. \\\"The statute of frauds does not change the law as to the rights and liabilities of principals and agents, either as between themselves, or as to third persons. The provisions of the statute are complied with if the names of competent contracting parties appear in the writing, and if the party be an agent it is not necessary that the name of the principal shall be disclosed in the writing. Indeed, if a contract, within the provisions of the statute, be made by an agent, whether the agency be disclosed or not, the principal may sue or be sued as in other cases.\\\" Kingsley v. Siebrecht, ante, p. 23. In the case last cited, in which the authorities are exhaustively cited and examined, this court has decided that it is competent to prove by parol that a party named in a writing relied upon to satisfy the requirements of the statute acted as agent of another, and that the principal has the same rights and is under the same liabilities as though he had acted in his own proper person.\\nThe defendant, however, contends that, conceding that the agency may be proved by parol, the name of the agent is not expressed in the writing. The writing signed by the defendant is addressed \\\" Friend George.\\\" Is it competent to prove by parol that the person so addressed was George M. Goold, the plaintiffs' agent? We think it is. It is not a case in which no person is named or referred to as a party. The words \\\"Friend George\\\" must be held to intend some person. Parol evidence is always necessary to identify the parties to a contract. Whether a party makes a contract in his own name, or in the name of another, or in a feigned name, are inquiries not different in their nature from the question, who is the person who has just ordered goods from a shop, and this rule applies in ease of a contract of guaranty or other contract within the statute of frauds, as in other ordinary contracts. Trueman v. Loder, 11 Ad. & Ell. 589. In Salmon Falls Mfg. Co. v. Goddard, 14 Howard, 446, the memorandum was held sufficient though signed by the initials of the parties, it being proved by parol who the parties actually were. To the same effect is Sanborn v. Flagler, 9 Allen, 474. In Fessenden v. Mussey, 11 Cush. 127, it was decided that the omission of the middle letter of the party's name was not fatal if it should be shown by parol that he was the person intended. The writing in question in the present suit was written by the defendant at the solicitation of George M. Goold; it was sent to him by the defendant and was received by him; the case shows that Goold was sufficiently intimate with the defendant, that he generally addressed him as \\\" George.\\\" There can be no doubt that when the defendant wrote \\\" Friend George,\\\" George M. Goold, the plaintiff's agent was intended.\\nThe same reasoning applies to the proof of the identity of the person referred to as \\\"Pop \\\" Dyer. The testimony shows that F. H. Dyer, the plaintiffs' debtor, was commonly known as \\\"Pop\\\" Dyer. It is not claimed that F. H. Dyer is not the person referred to, the contention being that parol evidence is not competent to establish such identity. This contention is not sustained for the reason and upon the authorities hereinbefore stated.\\nWe are of opinion that the subject matter of the contract is sufficiently expressed in the writing to satisfy the requirements of the statute. It is therein described as \\\" a bill that he owes your concern.\\\" \\\" The subject matter may in any case be identified by reference to an external standard, and need not be in terms explained. Thus to describe it as the vendor's right in a particular-estate, or as the property which the vendor had at a previous time purchased from another par-ty is sufficient. And it is very common to identify the debt of a third person for which the defendant has made himself responsible, as the debt then owing, or to become owing, by said third person to the plaintiff, without further description.\\\" Brown on St. of Frauds, \\u00a7 885. The rule thus laid down is supported by numerous authorities. Williams v. Robinson, 73 Maine, 186, in which the court says, p. 197: \\\"Parol evidence identifying the subject matter of the contract does not destroy the sufficiency of the memorandum, but when the subject matter is thus ascertained, the memorandum may be construed to apply to it.\\\"\\nIn 1 Greenl. on Ev. \\u00a7 286 the learned author says: \\\" As it is a leading rule in regard to written instruments, that they are to be interpreted according to their subject matter, it is obvious that parol or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. Evidence which is calculated to explain the subject of an instrument is essentially different in its character from evidence of verbal communications inspecting it.\\\" See further, Id. \\u00a7 288; Barry v. Coombe, 1 Pet. 640; Hurley v. Brown, 98 Mass. 545; Stoops v. Smith, 100 Mass. 63; Mead v. Parker, 115 Mass. 413 ; Slater v. Smith, 117 Mass. 96; Giles v. Swift, 170 Mass. 461.\\nThe subject matter of the writing signed by the defendant is referred to as a debt which Dyer owed the plaintiffs. We think it is competent for the plaintiffs to prove by parol the nature and amount of the debt. The testimony shows that the indebtedness was for merchandise sold and delivered and amounted to forty-one dollars and fifty cents. The defendant expressly agreed to pay interest.\\nJudgment for plaintiffs for $41.50 and interest from Nov. 7, 1896.\\nJudgment accordingly.\"}"

me/657106.json

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+"{\"id\": \"657106\", \"name\": \"Elizabeth M. Thomas, Administratrix vs. Maine Central Railroad Company\", \"name_abbreviation\": \"Thomas v. Maine Central Railroad\", \"decision_date\": \"1929-01-12\", \"docket_number\": \"\", \"first_page\": \"466\", \"last_page\": \"479\", \"citations\": \"127 Me. 466\", \"volume\": \"127\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:20:22.114643+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Wilson, C. J., Philbrook, Deasy, Barnes, JJ. Dunn, J., concurring in the result.\", \"parties\": \"Elizabeth M. Thomas, Administratrix vs. Maine Central Railroad Company.\", \"head_matter\": \"Elizabeth M. Thomas, Administratrix vs. Maine Central Railroad Company.\\nCumberland.\\nOpinion January 12, 1929.\\nJacob H. Berman,\\nEdmund P. Mahoney, for plaintiff.\\nPerkins A Weeks, for defendants.\\nSitting: Wilson, C. J., Philbrook, Deasy, Barnes, JJ. Dunn, J., concurring in the result.\", \"word_count\": \"5100\", \"char_count\": \"28978\", \"text\": \"Philbrook, J.\\nThis is an action on the case brought under the Federal Employers' Liability Act and the Federal Boiler Inspection Act, and acts amendatory thereof and additional thereto, to recover damages for the benefit of the widow of Oscar It. Thomas whose death was caused by an alleged breach of duty on the part of the defendant.\\nAt the conclusion of the testimony, on motion of the defendant, a verdict was directed for the latter, to which direction the plaintiff seasonably presented exceptions and the same were duly allowed.\\nThe writ, pleadings, stipulations, exhibits, and evidence are made part of the bill of exceptions, together with the following docket entry dictated by the presiding justice: \\\"Exceptions to the direction of a verdict for defendant filed and allowed. It is stipulated that if the plaintiff's exceptions to the direction of the verdict for the defendant are sustained, judgment is to be entered for the plaintiff, and the cause remanded to this court for assessment of damages.\\\"\\nThere are five counts in the plaintiff's writ. In argument before this court counsel for the plaintiff discontinues as to the second, fourth and fifth counts, relying only on the first and third.\\nWithout quoting either the first or third counts in their entirety we observe that in the first count the defendant's breach of duty is alleged to consist in supplying him-with a locomotive engine which was wholly unfit, improper, and wholly unsafe to operate without unnecessary peril to life or limb, charging \\\"that certain parts and appurtenances of said locomotive were so defective, worn, out of adjustment and alignment, and improperly and insufficiently lubricated, that said locomotive . . . developed a hot box, so-called, in the left trailer journal of said locomotive which became extremely and dangerously overheated.\\\"\\nIn the third count the defendant's breach of duty is alleged to consist in providing and supplying the deceased with a locomotive engine which was wholly unfit and improper, and wholly unsafe for use, charging \\\"that one of the axles of said locomotive engine was so defective, improperly adjusted, and out of alignment, and so lacking in proper lubrication facilities, that said axle . . . developed or caused a hot box, so-called, in the housing box of said axle and became so extremely and dangerously heated that said housing box became inflamed. And the plaintiff avers that the deceased . . . proceeded to examine said housing box with the purpose of remedying the condition of same, and when he, the said deceased, was in the act of lifting the cover of said housing box, a flame of fire flashed toward him from said housing box, which forced and compelled him, the said deceased, in order to avoid coming in contact with the same, to jump backward away therefrom and on to an adjoining track of said defendant corporation,\\\" where he was struck by another locomotive moving in an opposite direction from that in which the deceased had been proceeding and instant death followed.\\nAs to the testimony there is little dispute. The deceased, an engineer of nine or ten years' experience was operating freight train No. 621 travelling from Waterville toward Portland. At a point known as Kennebec Siding, which was about four miles north of Augusta, he discovered the hot box above described. At this siding there was a track of ample length to accommodate his train if it were necessary to investigate and remedy the trouble. Nothing of the kind was there done and the train moved on to Augusta. After doing some shifting at Augusta, using side tracks for so doing, he placed his train and locomotive on the main west bound track preparatory to proceeding toward Portland. He then alighted from his engine, voluntarily took a position between the main east and west bound tracks, between which there was a distance of only eight and one-half feet, lifted the cover of the hot box, and therefrom a flame darted out toward him. He quickly stepped backward toward the east bound track which brought him in front of passenger train No. 3 going toward Waterville, and running on schedule time, by which train he was struck and instantly killed. No breach of duty on the part of the defendant in the operation of passenger train No. 3 is alleged or claimed.\\nIt is stipulated that the accident happened while the plaintiff's intestate was engaged in Interstate Commerce, that the defendant company, at the time of the accident, was engaged in operating a train in Interstate Commerce; and that the plaintiff's intestate was instantly killed.\\nThe plaintiff claims a breach of duty on the part of the defend ant by reason of a violation of the Federal Boiler Inspection Act of February 17,1911, Chap. 103, Sec. 2, IT. S. Compiled Statutes, Sec. 8631 as amended in 1915. In the argument of plaintiff's counsel reliance is particularly based on Sec. 2 of the Boiler Inspection Act as nolw found in Volume 44, Part 1, IT. S. Stat. at Large, Title 45, Chap. 1, Sec. 23, which provides as follows:\\n\\\"It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of Sections 28, 29, 30 and 32, and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.\\\" By the act of March 4, 1915, Chap. 169, Sec. 1, Congress provided that Section 2, above referred to, \\\"shall apply to and include the entire locomotive and tender and all parts and appurtenances thereof.\\\"\\nPlaintiff's counsel calls attention to the fact that in the first and third counts, upon which he is relying, there is no allegation of negligence on the part of the defendant corporation, because, as he claims, the duty created by the Federal Boiler Inspection Act is absolute, and that negligence on the part of the defendant requires neither allegation nor proof by one proceeding under said act. He also claims that no allegation of due care on the part of the deceased is necessary because, if the defendant is guilty of a breach of its absolute duty under the Inspection Act as amended, it cannot avail itself of the defense of contributory negligence. He also claims that assumption of risk on the part of the deceased is not available to the defendant because, if the defendant is guilty of an absolute duty under the Inspection Act, it cannot avail itself of the defense of assumption of risk. In short he claims that the provisions of the Boiler Inspection Act make the employer an insurer of the safety of the place in which the employee works and of the appliances with which he works.\\nCases in which damages are sought by reason of negligence on the part of a defendant, and those in which damages are sought by reason of defendant's failure to perform a specified, absolute duty, are governed by widely differing legal rules.\\nThe requirement of the Boiler Inspection Act is substituted for the common law rule which holds the employer to ordinary care to provide his employees a reasonably safe place in which, and reasonably safe appliances and machinery with which to work. It is as definite and certain as the common law rule. The act was passed to promote the safety of employees and is to be read and applied under the Federal Employers' Liability Act. Under the latter defendant is liable for any negligence charged to it which caused or contributed to cause the decedent's death; and such decedent will not be held guilty of contributory negligence, or to have assumed the risks of his employment, if a violation of Sec. 2 of the Boiler Inspection Act contributed to cause his death. By the last mentioned section, the defendant was absolutely bound to furnish what before, under the common law, it was its duty to exercise ordinary care to provide. But the burden is on the plaintiff to prove a violation of the Act by the defendant. Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S., 521, 69 L. Ed., 419.\\nUnder the Federal Statute, and upon authority of various cases cited, the plaintiff contends:\\nFirst: That the defendant used a locomotive, or permitted it to be used, the journal on the left trailer of which, was not in proper condition and safe to operate within the meaning of Section 2 of the Boiler Inspection Act as amended, in that said journal was so defective that, as it revolved in its bearings on the day of the accident, it produced unusual and excessive friction, causing an extreme and overheated condition which resulted in the combustion of flame; that this flame gushed out at the deceased while he was in the act of examining the condition of said journal, as it was his duty to do, and drove or forced the deceased to jump backward away from the same and onto the adjoining track where he was struck and instantly killed.\\nSecond: That the defective condition of this journal, which produced the unusual and excessive friction, causing the extreme and overheated condition, which resulted in the combustion of flame and which, in turn, drove or forced the deceased to his death, was a contributing, proximate cause of death.\\nIn connection with the second contention the plaintiff urges that in a proceeding under the Federal Statute it is not necessary to establish the fact that the defendant's breach of duty was the sole, proximate cause of the injury or death, but that the defendant is liable in damages, under that Statute, if its breach of duty was a contributing, proximate cause.\\nBearing in mind the principle that in actions under the Federal Employers' Liability Act, the kind and amount of evidence necessary to establish proof of a fact is controlled by the rules laid down by the United States Supreme Court, the plaintiff urges that the credibility of witnesses, the weight and probative value of evidence are to be determined by the jury and not by the judge, B. & O. R. R. Co. v. Groeger, supra, yet in the same opinion the Federal Court declares that \\\"it is the duty of a judge to direct a verdict in favor of one of the parties when the testimony and all the inferences which the jury could justifiably draw therefrom would be insufficient to support a different finding.\\\" Or, to use the language of the same court in C. M. & St. P. Ry. v. Coogan, 271 U. S., 472, \\\"It is the duty of the trial judge to direct a verdict for one of the parties when the testimony, and all of the inferences which the jury reasonably may draw therefrom, would be insufficient to support a different finding.\\\"\\nThe same court has also said that when the record leaves the claims'of the plaintiff in the realm of speculation and conjecture it is not enough. Patton v. T. & P. Ry. Co., 179 U. S., 658.\\nThe plaintiff therefore argues that the real issue in the case, as it now stands before this court, is whether the testimony, together with all the inferences which the jury could justifiably draw therefrom, is so insufficient that it could not support a finding for the plaintiff.\\nThe record plainly shows that a hot box on a locomotive engine, or on its trailer, would not alone produce conditions which would make the engine and its appurtenances such that it could not be used without \\\"unnecessary peril to life or limb.\\\" In other words, the condition of the locomotive was not the sole proximate cause of the injury. Was that condition, under the circumstances in this case, a contributing, proximate cause of the injury? A contributing cause is one which under the same circumstances would always be an element aiding in the production of the accident. Broschart v. Tuttle, 58 Conn., 1, 17; 21 Atl. Rep.,, 925, 929; 11 L.R.A., 33, 38. This definition has received judicial sanction, is plain, and sound. Under the burden imposed upon the plaintiff to show that the defendant was guilty of a breach of duty it was necessary for her to first prove that the condition of the locomotive was such that under the same circumstances it would always be an element aiding in the production of the accident, in order to satisfy the definition of contributory cause above given. This she has failed to do. It was also necessary for her to prove that the condition of the locomotive was the proximate cause of the injury. Proof that such condition was only a remote cause would be insufficient.\\nIn the instant case the injury occurred because and when the deceased stepped in front of a moving train on the east bound track. Hence it is claimed by the defendant that this act of the deceased was an intervening cause between the existence of the hot box, or the condition of the locomotive which produced it, and the blow received from train No. 3, or in other words, that the hot box and the conditions which produced it were, at best, only remote causes.\\nConversely the plaintiff claims that the existence of the hot box, or the condition of the locomotive which produced it, was the proximate cause of the injury. Under that portion of the argument of plaintiff's counsel relating to the unsafe condition of the journal of the engine as a contributing, proximate cause of death, he cites Kidd v. Rock Island Ry. Co., 310 Mo., 1; Lehigh Valley R. R. Co. v. Beltz, 10 Fed. (second series), 74; Lehigh Valley R. R. Co. v. Huben, 10 Fed. (second series), 78; B. & O. R. R. Co. v. Groeger, supra ; Davis v. Hand, 290 Fed., 73.\\nIn Kidd v. Chicago, R. I. & P. Ry. Co., supra, an engine drawing a freight train was stalled on the east bound main track. Another train proceeding on the same track came nearly to but stopped about 150 to 200 feet north of and behind the stalled train. The stalled train was being drawn by an engine numbered 3002, which, it was claimed, was in a defective condition which caused steam to escape therefrom in large amount and with excessive noise. The engine on the second train bore the number 3022. Kidd was engineer on 3022. While the stalled engine was standing on the track the sixteen consecutive hours of service of the .crew of the second train, prescribed by Federal Statute, expired. The crew of that train therefore was released from further duty and its conductor with his brakeman, left their train and walked along the right of way toward the yard office for the purpose of registering. These men walked south on the west bound track until they had passed the steam escaping from engine 3002. This walking on the west bound track was done \\\"to keep from getting too close to the steam.\\\" Kidd came along slightly in the rear of the other members of the crew of the second train, walked on the west bound track to avoid the steam, and as he was emerging therefrom was struck by train 57 running on the west bound track. The train which thus struck and killed Kidd was about two hours and forty-five minutes late. By reason of a train order Kidd had notice that train 57 was late and had not passed the point of the fatal accident.\\nIn that case the defendant railway company was charged with negligence and violation of the Federal Boiler Act, in permitting engine 3002 to become defective, and to be used and operated in service while not in a reasonably proper condition, and so as to emit steam and vapor, thereby causing the deceased to be on the west track, obstructing his view, and that because of the noise of escaping steam and use of a blower, due to defects in engine 3002, the deceased was prevented from hearing the ordinary running, operation, and approach of train 57, wherefore it was charged that the defendant failed to furnish and provide the. deceased a reasonably safe place to work and to walk in the performance of his duties. The defendant's answer generally denied the allegations in the plaintiff's position and alleged that the deceased met his death by reason of his own negligence and that he assumed the risk due to his employment. In that case judgment was for the plaintiff. Many elements therein arose which it is unnecessary to consider in this opinion. The question particularly germane to the present discussion is, was engine 3002, with its escaping steam and unusual noise a proximate cause of the fatality? It was there held that the use of said engine, in its then condition, rendered the defendant railroad liable, \\\"provided that its use was in part a proximate cause of the injury,\\\" and -it was also held that the defective condition of engine 3002 was a proximate cause of the injury sustained by the deceased. In reaching this conclusion the court stated that by reason of the condition of the engine, an unusual amount of steam was caused to escape from the cylinder cocks, accompanied by a loud and unusual noise accentuated by use of the engine blower; and that the escaping steam created apprehension that the steam would probably burn one who was walking by the engine, if between the two tracks, and that in order to avoid the apprehensive danger the employees walked on the west bound track to avoid being burned by the steam. In that case it must be borne in mind that the deceased had finished his work and was simply walking to the railroad office for the purpose of registration.\\nIn order to reach their conclusion therefore the Missouri Court was virtually obliged to hold that the company, under the Nationai Boiler Act, was liable not only for failure to furnish safe place and appliances while the employee was actually at work, but to furnish safe place for its employees to walk when going to or returning from work.\\nWe feel that this interpretation of the National Boiler Act was carried too far; that neither in letter or spirit does that act hold a railroad company responsible for failure to perform an absolute duty after the employee has ceased his work.\\nIn the Kidd Case the Missouri Court cited Shafir v. Sieben (Mo. Sup.), 233 S. W., 419; 17 A. L. R., 637, in which the question of proximate cause was considered where a plaintiff meeting with an obstruction negligently placed by one defendant on a sidewalk and extending almost to the center of the street was thereby caused to pass around the obstruction onto the roadway of the street used for vehicular traffic, where he was injured by an automobile owned and negligently operated by another defendant. In its reasoning the court said in the last cited case that, \\\"The cause of the injury in this case necessarily consisted of two elements: (1) the presence of the plaintiff in the path of the automobile which struck him; and (2) the blow it delivered against his body. Both of these causes were present and in full operation at the instant of the injury. His presence was due to the wrongful act of these defendants, and the blow' was delivered by the wrongful act of the driver of the machine. Neither would or could have occurred without the operation of the other at the same time. Both were commingled in the single act of the injury. The argument by which it is attempted to separate them is specious and artificial.\\\"\\nIn the latter case the National Boiler Act was not involved.\\nThere were two tortious conditions acting simultaneously and in that case the court correctly held that both were commingled in the single act of the injury. This fact, together with other elements involved, differentiates the latter case from one involving the National Boiler Act.\\nCity of Louisville v. Hart's Administrator, 143 Ky., 171; 136 S. W., 212; 3 L. R. A. (N. S.), 207; falls into the same category with Shafir v. Sieben, supra, the National Boiler Act not being under consideration, and two tortious acts occuring simultaneously.\\nLehigh Valley R. R. Co. v. Beltz, 10 Fed. (second series), 74, is a case in which the deceased was in charge of a freight train and was riding in the cab of one of the defendant's engines when the main pin broke, causing the driving and parallel rods to fly about, disabling the engine and punching a hole in the boiler, causing a violent emission of steam, hot water and coals of fire in the cab. Those on the engine jumped in an effort to save their lives. In so doing the plaintiff's intestate received bodily injuries from which he died. The National Boiler Act was under consideration, and the circuit court distinctly stated that in cases of this class it must appear that the failure of the carrier to comply with the act was the proximate cause of the accident which resulted in the injury; that liability arises only when the failure to obey the act is the proximate cause of the injury.\\nIn passing it is interesting to observe that of the three circuit judges before whom that case was argued one dissented on the ground that the ruling was inconsistent with Baltimore & Ohio v. Groeger, supra, which had been decided in the Supreme Court of the United States on January 5,1925, while the Lehigh Valley Case was decided November 2,1925. In the Lehigh case it was held that the defective locomotive was the proximate cause of the death. We hold this to be sound law under the circumstances of that case but it has one material difference from the case at bar. In that case there was plainly a proximate causal relation between the defective locomotive and the plaintiff's intestate. He jumped from the engine to save his life from destruction caused by the explosion. In the case at bar Thomas did not attempt to remedy the defect in his locomotive at a safe place on Kennebec Siding nor at a safe place when his locomotive was on a side track after doing shifting work; but he deliberately placed his engine on the west bound track and voluntarily took a dangerous position between the west bound and east bound tracks in which to do his work, a place not furnished by the defendant but taken at his own risk, by his own voluntary act, assuming risks incident to such an act and contributing to the fatal result by his own negligence.\\nLehigh Valley R. R. Co. v. Huben, 10 Fed. (second series), 78, was a case arising in connection with the fatality in Lehigh Valley R. R. Co. v. Beltz, supra, and the cases were argued together. In the Huben case after Beltz and his companions had jumped from the engine it continued on its course and ran into a passenger train with the result that Huben received injuries which caused his death. In the latter case the Court states that the only question there necessary to consider was whether Huben had established by sufficient evidence that he was engaged in interstate commerce at the time of his death. The decision of that question in that case therefore has no bearing upon the case at bar.\\nIn B. & O. R. R. Co. v. Groeger, supra, a locomotive engineer was killed by the explosion of a boiler. This explosion was caused in whole or in part by an unsafe and insufficient condition of the crown sheet of the boiler and the railroad's failure to have a fusible plug in that crown sheet. The court there held that the railroad company was liable if its breach of duty contributed to cause the death. And the court remarked that if the boiler was in the condition described by a witness it would not be unreasonable to conclude that a breach of duty of the defendant caused or contributed to cause the explosion; and that it did not conclusively appear that the failure of the deceased properly to operate the engine was the sole cause of the explosion. In that case death was caused by a boiler explosion, which explosion under the law of cause and effect was related to the imperfect condition of the crown sheet and it might be properly said that under the same circumstances the imperfect condition would always be an element aiding in the production of the accident and hence be a contributory cause. Not so as to a hot box as in the case at bar.\\nDavis v. Hand, 290 Federal, 73, is a case where the deceased, a fireman, had completed his duty of coupling cars which because of defective couplers had required him to go between cars to line up the couplings. The train was then at a standstill, and it was his duty to give the engineer the signal to move out, in such a manner and from such a position as he might select, and this he did from a position either on the sill at the end of the car or standing on the ground between the car and a coal bin with insufficient clearance, of which he had knowledge, either position being dangerous, and was crushed between the car and the bin when the train went ahead on his signal; and it was there held that the proximate cause of his death was not any violation of the safety appliance act but his own-carelessness in taking a dangerous position from which to signal. This last case is more favorable to the contention of the defendant than to the plaintiff.\\nAs bearing upon the question of causal connection between the hot box and the fatal accident the defendant submits authorities which clearly indicate the great weight of authority in supporting the view that there was no causal connection between the hot box and the injury which caused death.\\nIn Phillips v. Pa. R. R. Co., 283 Fed. Rep., 381, the deceased was a fireman on a locomotive attached to a train which was standing at a water plug. After adjusting the spout he obtained a wrench from the engineer and went forward over the boiler to repair the automatic bell ringer from which a cotter pin had dropped out, and when stepping over the steam dome the safety valve popped, he lost his balance, fell, and was injured. In that case a verdict was directed for the defendant and in sustaining this ruling the court said that the defective condition of the bell ringer was negligence per se, but that the defective bell ringer was the occasion and not the proximate cause of the accident.\\nIn McDougall v. A. T. & S. F. R. R. Co., 186 Pac., 1028, an engineer was killed when he was leaning out of the gangway to look back at the condition of a hot box on an engine immediately following his in the train. The court dismissed the case on the ground that the hot box was not the proximate cause of the plaintiff's death, nor did it have anything to do with his head coming in contact with a bridge girder; that the proximate cause of death was the engineer's negligent act in leaning out of the engine cab while passing through the bridge.\\nIn Watson v. G. S. & F. R. R. Co., 136 S. E., 921, Watson was killed while walking along a small rod on the tank of the engine for the purpose of placing a lantern on the tank. The court held that although the plaintiff's writ showed the decedent to be engaged in an act so obviously dangerous that a person of ordinary prudence would not have undertaken it, that if a violation of a. safety statute had occured the decedent's negligence was immaterial, provided such violation had a causal connection with the injury; but that the placing of the lantern had no causal connection with the violation, was merely a compliance with a private rule of the company, and no liability under the statute could be predicated thereon. In the case at bar Thomas ivas remedying the hot box under a rule of the defendant that the engineer must perform such duties.\\nIn Taton v. Seaboard A. L. R. R. Co., 113 Southern, 671, suit was brought to recover for the death of an engineer. The engine had a defective driving box wedge which had been fixed by the engineer. The plaintiff contended that the engineer was leaning out so as to observe the wedge and coming in contact with the rack used to load Avood on engines, was knocked from his engine and killed. The defendant pleaded assumption of risk as the Avood rack had been in the same position for a long time and the engineer was familiar with it. The court held that there was no causal connection between the defect of the engine and the decedent's death but that the proximate cause of the death was decedent's coming in contact with the wood rack, and as there was no violation of the Federal Statute, assumption of risk was a complete defense. In the case at bar it will be remembered that train Number 3 was due to arrive on the east bound track, a fact known to Thomas by reason of his train order.\\nIt seems plain to this court that under the law as stated in the latter group of cases, together Avith other principles of law applicable to the case at bar, the plaintiff lias failed to show that the hot box was a contributing proximate cause of the death of her intestate, that the ruling of the court below in ordering a Arerdict for the defendant was correct and the mandate must be.\\nExceptions overruled.\"}"

me/661590.json

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+"{\"id\": \"661590\", \"name\": \"State of Maine vs. Carl Roberts; State of Maine vs. William C. Howard\", \"name_abbreviation\": \"State v. Roberts\", \"decision_date\": \"1942-12-24\", \"docket_number\": \"\", \"first_page\": \"273\", \"last_page\": \"276\", \"citations\": \"139 Me. 273\", \"volume\": \"139\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:25:19.496774+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Sturgis,C.J.,Thaxter,Hudson,Manser,Murchie, Chapman, JJ.\", \"parties\": \"State of Maine vs. Carl Roberts. State of Maine vs. William C. Howard.\", \"head_matter\": \"State of Maine vs. Carl Roberts. State of Maine vs. William C. Howard.\\nKennebec.\\nOpinion, December 24, 1942.\\nWilliam H. Niehoff, for the State.\\nEdward W. Bridgham, for the respondents.\\nSitting: Sturgis,C.J.,Thaxter,Hudson,Manser,Murchie, Chapman, JJ.\", \"word_count\": \"1101\", \"char_count\": \"6287\", \"text\": \"Murchie, J.\\nThese two cases, tried together, are brought to the Court on exceptions by the respondents to the denial of motions for directed verdicts and the refusal of the Justice below to give three requested instructions. The issue presented is well stated in respondents' brief, as follows:\\n\\\"Is one who sits behind the steering wheel of an automobile with the motor running and the car in gear and the rear wheels spinning and slewing slightly from side to side, while the front end of the motor vehicle is suspended in the air five or six inches so that the turning of the steering wheel cannot control the direction or course of the motor vehicle and the front end of the motor vehicle chained to the rear of' a truck ahead being towed by the vehicle ahead, guilty of operating a motor vehicle under this Statute?\\\"\\nThis recital aptly describes the factual situation presented to the jury as applicable to both respondents, but it may be noted in addition with reference to the respondent Carl Roberts that while he was occupying the driver's seat in the towed car, the two vehicles jackknifed to some slight extent. The record makes it clear that at the time of the alleged offenses the operator of the truck was attempting to tow the automobile occupied by the respondents up an icy grade, and that power was applied to the driving wheels of the towed vehicle, at separate times by the respective respondents, for the purpose of aiding progress.\\nUnder the particular circumstances, counsel's inquiry must be answered in the affirmative. Respondents' counsel does not challenge the factual findings that at the pertinent times his clients were-\\\"intoxicated\\\" or \\\"under the influence of intoxicating liquor,\\\" the two tests of the applicability of R. S. (1930), Chap. 29, Sec. 88, as amended. The record contains more than ample evidence to sustain such findings. The recitals in the quoted query carry recognition that the facts which the Justice presiding instructed the jury would constitute operating a motor vehicle within the contemplation of the statute were covered by the evidence:\\n\\\"It has been argued to you that they were not operating. I instruct you,... as a matter of law... that if you believe the evidence of the State that... one of these respondents was behind the wheel and put the motor in motion, had placed the car in gear, that the rear wheels, because of the motor being in motion, were whizzing, or something, and that the rear of that car swayed sideways when that was going on,... that the respondent who was doing that was operating that car.\\\"\\nThis instruction given to the jury is a correct statement of the law. There is no point in quoting at length the requested instructions which were refused. They were at exact variance with the instruction given and were based upon a construction of the statute that one could not be held to be operating a motor vehicle within its terms unless his movement of the steering wheel would guide, control or manage the course or direction of the automobile in which he was riding.\\nThe case is one of first impression, but there is ample precedent for holding that the \\\"operation\\\" intended to be curtailed by the statute is not either complete or extended. In People v. Domagala, 123 Misc., 757, 206 N. Y. S., 288, it was held that the mere starting of the motor of a vehicle was sufficient to constitute its operation, notwithstanding it was parked with front wheels against the curb and never put in motion. To the same effect was the decision in State v. Webb, 202 Iowa, 633, 210 N. W., 751, 49 A. L. R., 1389, where a motor was started and permitted to idle with the gear in neutral; and in Commonwealth v. Clarke, 254 Mass., 566, 150 N. E., 829, the manipulation of the gear lever of a car standing on a grade so that it moved slightly through the operation of the law of gravity, although the motor was not started, was held operation within the statute. In Commonwealth v. Uski, 263 Mass., 22, 160 N. E., 305, the Court declared that one might be held to be operating a motor car if he intentionally did any act or made use of \\\"any mechanical or electrical agency which alone or in sequence\\\" would set the motive power in motion. There was evidence in the case that the automobile had moved four or five feet, but the instruction complained of was that manipulation of \\\"the machinery of the motor\\\" was sufficient.\\nIn the Uski case, supra, the charge laid some emphasis on the fact that the respondent was in a position to \\\"control\\\" the movement of the vehicle, and respondents call attention to the decision of the Ontario Supreme Court in Rex v. Higgins, 63 Ont. L. Rep., 101 (1929), 1 D. L. R., 269, where conviction before a magistrate was set aside by the decision of a single justice with the declaration that the operation of the statute \\\"must be confined to a motor vehicle which is either being driven or is capable of being driven, and cannot apply to a car which is out of commission and cannot be operated under its own power.\\\"\\nIn the instant cases the motor was in. operation and the power was not only being applied but was actually taking effect. It is not important whether the course or direction of either the towed car or the towing vehicle was affected by the application of its power. As a general rule it is recognized that penal statutes should be strictly construed, 25 R. C. L., 1081, Par. 301, but it has become increasingly apparent with the passing years that gasoline and alcohol make a dangerous mixture, and construction of statutes designed to punish those who operate motor vehicles while under the influence of intoxicating liquor should, and properly may, be in the interest of reducing the hazard of such operation to a minimum. So far as the decision in Rex v. Higgins, supra, may be considered a precedent for limiting the operation of the statute to those cases where one occupying the driver's seat in a motor vehicle has full control over its direction and speed, we are not inclined to follow it.\\nExceptions overruled.\"}"

me/665456.json

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+"{\"id\": \"665456\", \"name\": \"Ezekiel Porter versus Jeremy W. Porter\", \"name_abbreviation\": \"Porter v. Porter\", \"decision_date\": \"1862\", \"docket_number\": \"\", \"first_page\": \"376\", \"last_page\": \"380\", \"citations\": \"51 Me. 376\", \"volume\": \"51\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T20:32:25.325648+00:00\", \"provenance\": \"CAP\", \"judges\": \"Tenney, C. J., Appleton, Davis and Walton, JJ., concurred.\", \"parties\": \"Ezekiel Porter versus Jeremy W. Porter.\", \"head_matter\": \"Ezekiel Porter versus Jeremy W. Porter.\\nA writing in these words, \\u201c value received of B. P., I promise to pay him or his order seven hundred dollars without interest to be allowed on settlement, no interest to be reckoned,\\u201d will be legally construed a promissory note for that sum without interest; the last clause being regarded as'surplusage.\\nNo time of payment being named in the note, it is payable on demand.\\nThere is no such ambiguity as to authorize oral testimony to explain its terms or qualify its construction.\\nParol testimony is not admissible to show that the note was given for money received by way of advancement from the father to the son (the defendant) there being no ambiguity in the note itself that requires it.\\nBesides, the statute (R. S., c. 75, \\u00a7 5) provides that gifts, &c., shall be deemed advancements when expressed in writing to be such.\\nExceptions from the ruling at Nisi Prius of Appleton, J.\\nThis was an action of assumpsit on a note, or written, contract, signed by the defendant, of which the following is a copy :\\u2014 \\\"November 9th, 1841.\\n\\\"8733,33. For value received of Ezekiel Porter, I promise to pay him or his order seven hundred and thirty-three dollars and thirty-three cents without interest to be allowed on settlement, no interest to be reckoned.\\n\\\" Strong, November ninth, one thousand eight hundred and forty one.\\u201d\\nIt was proved by the plaintiff, subject to objection, that the instrument declared on was actually made and signed by the defendant, on or about the 17th of February, 1857.\\nThe defendant offered to testify, and prove by another witness, that the consideration of the note, or contract, was given by the plaintiff to the defendant, who is a son of the plaintiff, as an advancement, and was so intended by the parties at the time said note was given in 1857.\\nTo the introduction of this testimony the plaintiff seasonably objected, but the presiding Judge overruled the objection and permitted this evidence to go to the jury.\\nThe Court instructed the jury that they might judge, from all the evidence and circumstances in the case, whether the sums for which said note was given, wore intended as a gift and an advancement, and intended by the parties, at the time the note was given, to be allowed as such in the settlement of the plaintiff\\u2019s estate after his decease; and, if they should so find, that this action could not be maintained.\\nThe verdict was for the defendant. The plaintiff excepted.\\nThe case was argued by\\nJET. L. Whitcomb, in support of the exceptions, and by\\nLinscott & Pillsbury, contra.\", \"word_count\": \"1313\", \"char_count\": \"7704\", \"text\": \"The opinion of the Court was drawn up by\\nRice, J.\\nThe case is assumpsit on the following instrument:\\u2014 \\\"November 9, 1841.\\n\\\"$733,33. For value received of Ezekiel Porter, I promise to pay him or his order seven hundred and thirty-three dollars and thirty-three cents without interest to be allowed on settlement, no interest to be reckoned.\\n\\\"Strong, November' ninth, one thousand eight hundred and forty-one. \\\" J. W. Porter.\\\" .\\nThe controverted propositions are whether this instrument is a valid promissory note, or whether it is so ambiguous in its language, or was given under such circumstances as will authorize the introduction of oral testimony to explain its terms, or qualify its construction. If that part of the instrument which immediately follows the words \\\"without interest,\\\" were omitted, the instrument would be thereby simplified. It would then be in form a promissory note, complete in its terms, and perfect in all respects except as to time of payment. The omission of a specific day of payment does not, however, deprive it of its character as a promissory note. Where a note does not specify any day or time of payment, it is by law deemed payable on demand, and therefore is construed as if it contained the words payable on demand, on its face. Story on Prom. Notes,29.\\nDo the words following \\\" without interest,\\\" change, or in any way modify the legal construction of the instrument? We think not. It is manifestly an instance of redundancy of words often found in instruments drawn by the unskilful or in the writings of the illiterate, and designed strongly to express an idea then prominent in the mind. In this instance the idea expressed is, that on the settlement of the note no interest shall be computed. That idea was fully expressed by the words \\\"without interest.\\\" Striking out the redundant words as surplusage, and the instrument is, in form and legal effect, a promissory note for the sum of seven hundred and thirty-three dollars and thirty-three cents, payable on demand without interest. Such also is its legal construction as it stands.\\nWhere a promissory note, on its face, is payable on demand, oral evidence of ah agreement, entered into when it was made, that it should not be paid until a given event happened, is inadmissible. Story on Prom. Notes, \\u00a7 24; Chit, on Bills, 162; Farnham v. Ingraham, 5 Vt., 114; Woodbridge v. Spooner, 3 B. & Ald., 233; Mosely v. Hanford, 10 B. & Cress., 729.\\nParol evidence cannot be received to vary the meaning of a written contract, by' adding to its terms, or by extending or limiting them, or by introducing an exception or qualification, or by proving a different contemporaneous agreement. Boody v. McKenny, 23 Maine, 517; Story on Cont., \\u00a7 669, 671 ; 1 Greenl. Ev., \\u00a7 275; Hunt v. Adams, 7 Mass., 518; City Bank v. Adams & trustee, 45 Maine, 455.\\nBut it is contended that parol evidence is admissible to show want of consideration in a promissory note. Such is undoubtedly the law. In this case, however, it is conceded, or at. least not denied, that the defendant actually had received from the plaintiff the amount of money specified in the note. The ground of defence is, that the money thus received, was by way of advancement from the father to the son, and the oral testimony was admitted to show that fact. The question now is, whether the instrument could legally be thus explained or qualified.\\nWe have already seen that there is no ambiguity or uncertainty on the face of the instrument, and, therefore, it is not open to explanation by oral testimony on that ground.\\nIn relation to advancements, it is provided in c. 75, \\u00a7 5, R. S., 1857, that \\\"gifts and grants of real and personal estate to a child or grandchild are deemed an advancement when so expressed therein, or charged as such by the intestate, or acknowledged in writing to be such.\\\"\\nIn this case, there is nothing on the face of the note tending to show that the plaintiff intended the consideration thereof as an advancement, or that the defendant intended to acknowledge it as such. The language used will not admit of such construction.\\nThe transaction having been reduced to writing by the parties, and that writing being free from ambiguity and capable of a legal construction, on general principles parol testimony cannot be received to explain or qualify it.\\nBut, aside from this general objection, the statute already cited manifestly contemplates that evidence of advancements shall be in writing, and therefore not open to explanation by oral testimony. Such has been the decision of the Court in Massachusetts on a statute, in all its substantial provisions, like our own, and from which ours was evidently copied. Barton v. Rice, 22 Pick., 508.\\nThe plaintiff's exceptions to the introduction of oral testimony to explain and qualify the note in suit, are well taken and must prevail.\\nThe defendant's objections to the introduction of evidence to show the true date of the transaction between the parties were hot relied upon at the argument.\\nExceptions sustained;\\u2014 Verdict set aside, and New trial granted.\\nTenney, C. J., Appleton, Davis and Walton, JJ., concurred.\"}"

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+"{\"id\": \"665532\", \"name\": \"Isaac P. Furlong versus William C. Pearce\", \"name_abbreviation\": \"Furlong v. Pearce\", \"decision_date\": \"1864\", \"docket_number\": \"\", \"first_page\": \"299\", \"last_page\": \"301\", \"citations\": \"51 Me. 299\", \"volume\": \"51\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T20:32:25.325648+00:00\", \"provenance\": \"CAP\", \"judges\": \"Appleton, C. J., Cutting, Walton, Dickerson and Barrows, JJ., concurred.\", \"parties\": \"Isaac P. Furlong versus William C. Pearce.\", \"head_matter\": \"Isaac P. Furlong versus William C. Pearce.\\nThe statute limits the bringing o\\u00ed an action to recover back usurious interest to one year from the time of payment.\\nWhere a negotiable note, payable at a future day, is given for the excess of interest, the limitation is not from the date of the note, but from the time the note is actually paid.\\nExceptions from the ruling at Nisi Prius of Kent, J.\\nThis was an action under 3d sec. of chap. 45, of Revised Statutes, to recover back money alleged to have been paid as usurious interest by plaintiff to defendant.\\nThe plaintiff offered evidence tending to show that he obtained on loan from defendant $500 for one year, and agreed to pay 12 per cent, interest therefor. That he gave defendant a note for that sum, dated Nov. 28, 1860, payable in one year with interest, secured by mortgage on his farm, and at same time gave him another note for thirty dollars, of same date, payable to defendant or order in one year without interest, for the extra six per cent, interest.\\nThis $30 note was paid in money in Dec., 1862. The writ in this action is dated Jan. 6, 1863. Defendant moved a nonsuit on the ground that the limitation of one year named in the statute applied, and that the giving of the negotiable note without security was such payment that the time began to run from the time of giving the note. The Court refused to order a nonsuit, and ruled that the time for limitation to commence was when the note was actually paid in money. To which ruling the defendant excepted.\\nSanderson, in support of the exceptions.\\nHammons, contra.\", \"word_count\": \"717\", \"char_count\": \"4014\", \"text\": \"The, opinion of the Court was drawn up by\\nDavis, J.\\nBy the R. S., c. 45, \\u00a7 3, it was provided that any person paying excessive interest might recover it back of the creditor receiving it, \\\"in an action of the case, commenced within a year after the payment.\\\" The amendment of 1862, c. 136, may possibly extend the remedy to some cases not reached by the Revised Statutes. And the amendment of 1863, c. 209, limits the action to one year from the time when it accrued.\\nThe plaintiff hired $500 of the defendant Nov. 28, 1860, agreeing to pay twelve per cent, interest. He gave one note for the amount, payable in one year, with interest, and another note for $30, payable in one year, for the excessive interest. This note was not paid until Dec., 1862 ; and the suit to recover back the amount paid was commenced Jan. 6, 1863. But the defendant contends that giving a negotiable note for the excessive interest was a payment of it; and that the action, therefore, was not seasonably commenced.\\nA negotiable promissory note is, prima facie, a payment of a preexisting debt for which it is given, if due upon a simple contract, so that no action can afterwards be maintained upon the contract. But this rule was intended for the protection of the debtor; and it does not abrogate the distinction between payment by a note, and an actual payment, in money, or other property. And the statute under consideration has always be'en understood as requiring an actual reception of the money or other property before any right of action would accrue to recover it back. There is no valid preexisting debt or claim for the excessive interest. And if a promissory note is given for it, either by itself, or with the principal,, the law regards it not as a pay- merit, but as merely a promise to pay such interest, which, if the note has not been transferred, the maker may still refuse to pay, or the holder may decline to receive. Stevens v. Lincoln, 7 Met., 525; Saunders v. Lancaster, 7 Gray, 484.\\nThe limitation of one year was stricken from the statute by the amendment of 1862', and was reenacted by the amendment of 1863. This suit was commenced before it was reenacted. If the Legislature could thus restrict a remedy given only by statute, in suits already commenced, which we do not question, still the action was seasonably commenced. Exceptions overruled.\\nAppleton, C. J., Cutting, Walton, Dickerson and Barrows, JJ., concurred.\"}"