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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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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.\\\"\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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..\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"id\": \"665861\", \"name\": \"Larrabee versus Lumbert; Same versus Same\", \"name_abbreviation\": \"Larrabee v. Lumbert\", \"decision_date\": \"1850\", \"docket_number\": \"\", \"first_page\": \"97\", \"last_page\": \"100\", \"citations\": \"32 Me. 97\", \"volume\": \"32\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:32:36.156822+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Larrabee versus Lumbert. Same versus Same.\", \"head_matter\": \"Larrabee versus Lumbert. Same versus Same.\\nWhere, upon a promissory note, the plaintiff has received from the defendant interest above the rate of six per cent, per annum, the defendant in the suit upon the note, or in the suit upon the mortgage given to secure such note, is entitled to have such excess deducted.\\nWhere, in either of such actions, such a deduction has been procured by proof introduced by the defendant, the plaintiff is mt, hut the defendant is, entitled to recover cost.\\nWhere insurance against fire has been effected upon mortgaged real estate, and the mortgagee has received the insurance money for loss occasioned by fire, he is to account for it, in the same manner as for rents and profits.\\nIf several notes, payable at different times, were secured by the mortgage, and have become overdue, such insurance money is to he appropriated first to the payment of interest on all the notes, and the surplus is to be applied, so far as it will go, to the payment of the principal of the notes, in the order of their respective pay-days.\\nThe first of these two actions is a Writ of entry upon mortgage, made by the tenant to the demandant, to secure payment of his four promissory notes, of different pay-days.\\nThe other action is Assumpsit upon the note, last payable, which was for $1000.\\nIn both cases, the evidence was submitted to the consideration of the court, by whom judgments were to be entered, according to the legal rights of the parties. The facts which the court deduced from the evidence, are sufficiently stated in the opinions.\\nPeters, for the plaintiff.\\nRowe and Bartlett, for the defendant.\", \"word_count\": \"1390\", \"char_count\": \"7827\", \"text\": \"In the action of Assumpsit upon the note, the opinion was announced by\\nHoward, J.\\nThe defendant gave the plaintiff several promissory notes, payable at different dates in the months of October and November, 1847, and secured the payments by a mortgage of land and mills. The note now in suit was last payable. The plaintiff received $1000, on a policy of insurance, March 27, 1849, for destruction by fire of a part of the mortgaged property. He is willing to allow the nett proceeds of this sum, amounting to $965,38, after deducting the cost of collection, $4,62, and $30, paid by him,in October, 1847, \\\"to keep the policy alive but claims the right, which he asserted at the trial, to appropriate it to the payment of the interest due on each of the notes, at the time of its reception, and then to the payment of the principal of the note first payable, which now remains unpaid. The defendant claims the right to make the appropriation of the sum thus received, to the payment of the note declared on in this suit. No question, therefore, arises in this case, as to the right of the mortgagee to charge for insurance effected by him upon the mortgaged property, or to retain the amount received, as his own money. White v. Brown, 2 Cushing, 412.\\nIf this could be regarded as an independent payment by the defendant, he would have the right to direct the application, under the general rule of law ; but it cannot be so regarded. It was not paid by him or by his directions. It was not his money or money under his control, when received by the creditor, but was the proceeds of the property embraced by the mortgage, and for which the mortgagee may be chargeable as for rents and profits. R. S. chap. 125, sect. 23. If the defendant had instituted a bill in equity to redeem, the sum thus received by the plaintiff for insurance must have been accounted for as profits 'obtained from the estate, and could not have been regarded as payment in any other mode. It would be payment in the sense, only, in which all rents and profits are payments. If the mortgager or his assignee cut timber from the estate, the mortgagee may recover the value. Bussey v. Page, 14 Maine, 132; Frothingham v. McKusick, 24 Maine, 403. In such case, if the mortgager redeem, the mortgagee must account for the amount as profits. So, when the mortgagee seized timber, cut from the estate, he was held to account for the proceeds. Gore v. Jenness, 19 Maine, 53. So, if he received the value of a dwellinghouse, removed from the premises, he must account for it as profits. Smith v. Goodwin, 2 Greenl. 173. When the mortgagee had the power to sell, and the estate was in part sold, the proceeds were treated as profits to be accounted for. Whittick v. Kane, 1 Paige, 202; Holdridge v. Gillespie, 2 Johns. Ch. 33.\\nIf then, when the mortgager brings a bill to redeem, the money received for insurance must be accounted for as profits, the court would adopt the same rule of appropriation, upon the same state of facts, in making up such a judgment on the mortgage note, as on payment, would authorize a discharge of the mortgage. And so would be the rule in awarding a conditional judgment in a suit for possession for breach of the conditions of the mortgage. R. S. c. 125, \\u00a7 7, 9; Act of 1844, c. 104, \\u00a7, 1.\\nFrom the sum received for insurance, should be deducted the cost of collection, and the amount paid for premium, which would leave $965,38, to be appropriated as profits received by the mortgagee. This sum should be applied to the payment of the interest due on all the notes described in the mortgage, (except the first, which has been collected,) on March 27, 1849, and the balance must be appropriated to the payment, pro tanto, of the principal of the unpaid note first payable. Gould v. Tancred, 2 Atk. 534.\\nIt is proved that, when the note in suit became due, the plaintiff received $37,50, on an agreement for delay of payment, and it results, that he has received that amount, from the defendant, above the legal rate of interest.\\nThe defendant claims, that such sum should be deducted from this demand of the plaintiff, as usurious interest. To that deduction he is entitled by statute. R. S. c. 69, \\u00a7 2.\\nThe plaintiff is entitled to judgment for the balance of his note and interest, after making the application, and deduction of payments, as herein directed, without costs.\\nThe damages being reduced by proof, that more than legal interest has been taken by the plaintiff, on the note in suit, the defendant may recover costs. Stat. of 1846, c. 192.\\nIn the action upon the Mortgage, the opinion was also announced by\\nHoward, J.\\u2014The demandant is entitled to a conditional judgment for possession of the premises demanded, for breach of the conditions of the mortgage. R. S. c. 125, \\u00a7 7; Stat. of 1844, c. 104.\\nIt is proved, that about the time when the notes described in the mortgage became due, the demandant received under an agreement with the mortgager, the tenant, for forbearance of payment one year, $37,50, on each thousand dollars, amounting, in the aggregate to $ 150, on the claim now under consideration; and that he received, at the same time, by payment of interest on his own notes to Johnson, the further sum of $180, advanced by the tenant. These sums amounting to $330, should be deducted from the amount claimed to be due, as payments made at that time. It also appears, that the demandant received, for insurance, $965,38, on the 27th of March, 1849. This sum we have held, in the preceding case, is to be accounted for as profits received by the mortgagee; and that it must be applied to the payment of the interest due on the unpaid notes described in the mortgage, on March 27, 1849, and that the balance should be appropriated to the payment, pro tanto, of the principal of the unpaid note first payable. Making the appropriation of these sums as directed, the amount, for which the conditional judgment must be entered, will be ascertained.\\nThe demandant having taken more than legal interest, and the damages in the conditional judgment being thereby reduced, in the language of the statute, 1846, c. 192, he \\\"shall recover no costs, but shall pay costs to the defendant.\\\"\"}"
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+"{\"id\": \"667407\", \"name\": \"State versus Inhabitants of Cornville\", \"name_abbreviation\": \"State v. Inhabitants of Cornville\", \"decision_date\": \"1857\", \"docket_number\": \"\", \"first_page\": \"427\", \"last_page\": \"428\", \"citations\": \"43 Me. 427\", \"volume\": \"43\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:36:45.138545+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State versus Inhabitants of Cornville.\", \"head_matter\": \"State versus Inhabitants of Cornville.\\nIt cannot be said, that a road has been \\u201c opened \\u201d when nothing has been done to a larger portion of it, and the remainder was a road open and used as such before.\\nNeither is it necessary in order to prevent the discontinuance of a highway by operation of the statute, chap. 25, sec. 42, that it should be in such a state of repair as not to be subject to indictment.\\nBut a highway located, and no work done on a large portion thereof, and put to no use as a way for more than six years after it should have been, made passable, cannot be be treated as opened.\\nThis is an indictment charging the respondents with neglecting to keep in repair a certain highway in said town.\\nReported by May, J.\\nThe facts necessary to a full understanding of the case appear in the opinion of the court.\\nN. D. Appleton, Attorney General for the State.\\nJ. S. Abbott, counsel for the defendants.\", \"word_count\": \"595\", \"char_count\": \"3258\", \"text\": \"Tenney, C. J.\\nThe highway described in the indictment is about two miles in length. Before its location, about half a mile thereof, near the westerly end, commencing at its junction with another road, had been used as a road. After the location, the sum of twenty-five dollars had been appro priated by the town, and expended; and other small sums at other times were laid out by order of the selectmen, all upon the portion last described. The remainder of the highway complained of has never been used or worked upon as a road, and a part of it passes through woods.\\nThe defence is, that this highway has been discontinued by operation of the R. S., chap. 25, sec. 42. And it is not denied, that the statute would have the effect insisted on, were it not for the expenditures made by the town upon the part at.the western extremity.\\nIt cannot be said with propriety, that the road has been \\\" opened,\\\" as a whole, when nothing at all has been done to that entire portion which constitutes three-fourths of it, and the remainder was a road open and used before, as such.\\nThe case is essentially distinguished from that of Baker v. Runnels, 3 Fairf., 235. A considerable portion of the road referred to therein had been opened and used; and upon the residue the trees were moved, and the road made passable for foot passengers, by the surveyor, to whom it had been assigned; the road was held to have been opened, in this part, by the official acts of the one who cut and removed the trees, in the discharge of his appropriate duty.\\nTo prevent the discontinuance of a highway by operation of the statute invoked in defence, it is not made necessary that it .should be put in such repair, as not to be subject to indictment, under R. S., chap. 25, sec. 57. What must be done to constitute an opening of the road within the meaning of the statute, is not precisely defined therein. But a highway located, and a large portion thereof so neglected that no work has been done thereon, and put to no use as a way, for more than six years after it should have been opened and made passable, cannot be treated as \\\" opened,\\\" so that the whole can be constructed,, by a fine imposed under the statute, upon indictment and conviction.\\nAceording to the agreement of the prosecuting officer, and the counsel for the defendants, the indictment is dismissed.\"}"
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+"{\"id\": \"6824792\", \"name\": \"Jonathan DAY v. BOARD OF ENVIRONMENTAL PROTECTION et al.\", \"name_abbreviation\": \"Day v. Board of Environmental Protection\", \"decision_date\": \"2016-01-14\", \"docket_number\": \"Docket No. Ken-15-15\", \"first_page\": \"364\", \"last_page\": \"365\", \"citations\": \"131 A.3d 364\", \"volume\": \"131\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:50:37.171583+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.\", \"parties\": \"Jonathan DAY v. BOARD OF ENVIRONMENTAL PROTECTION et al.\", \"head_matter\": \"2016 ME 7\\nJonathan DAY v. BOARD OF ENVIRONMENTAL PROTECTION et al.\\nDocket No. Ken-15-15.\\nSupreme Judicial Court of Maine.\\nArgued: Dec. 8, 2015.\\nDecided: Jan. 14, 2016.\\nChris Neagle, Esq., (orally), Troubh Heisler, PA, Portland, for appellant Carol Reece.\\nJames D. Poliquin, Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, for cross-appellant Jonathan R. Day.\\nJanet T. Mills, Attorney General, Mary M. Sauer, Asst. Atty. Gen. (orally), and Margaret A. Bensinger, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Board of Environmental Protection.\\nPanel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.\", \"word_count\": \"788\", \"char_count\": \"4537\", \"text\": \"PER CURIAM.\\n[\\u00b6 1] Carol Reece appeals and Jonathan Day cross-appeals from a judgment entered in the Superior Court (Kennebec County, Marden, J.) vacating the Board of Environmental Protection's decision granting Reece's application for a coastal sand dune permit to create a vehicle access way to her property abutting Popham Beach, and to develop a lawn and walkway on the property. Reece's property is currently undeveloped, and she has not proposed placing any type of building on the land. See 2 C.M.R. 06 096 355-2 \\u00a7 3(F) (2014).\\n[\\u00b6 2] The Board reached a de novo decision in March 2014 after abutting landowner Day and others appealed from the initial August 2013 grant of the permit by the Department of Environmental Protection. See 38 M.R.S. \\u00a7 341-D(4), 480-D, 480-E (2015). The Board was asked to interpret the Coastal Sand Dune Rules, 2 C.M.R. 06 096 355-1 to -10 (2014), that it had promulgated pursuant to 38 M.R.S. \\u00a7 480-AA (2015) of the Natural Resources Protection Act, 38 M.R.S. \\u00a7 480-A to 480-JJ (2015). We affirm the decision of the Board and therefore vacate the Superi- or Court's December 2014 judgment.\\n[\\u00b6 B] The Board was called upon to interpret section 5(C), which prohibits certain projects if they are \\\"likely to be severely damaged\\\" when allowing for a two-foot rise in sea level over 100 years. 2 C.M.R. 06 096 355-5 \\u00a7 5(C). The Board interpreted this provision not to apply to the proposed project because the term \\\"severe damage\\\" is defined in the Rules as damage exceeding \\\"50% of a building's value,\\\" and no building was proposed. 2 C.M.R. 06 096 355-2, -3, -5 \\u00a7 3(F), (G), (GG), 5(C). The Board further determined that the proposed sand and gravel access way . to Reece's lot is a driveway, not a road, and is therefore allowed as an exception to a prohibition against .new construction in frontal dunes, see 2 C.M.R. 06 096 355-5 \\u00a7 6(B)(1); and that the proposed permeable lawn area is not a prohibited \\\"parking area\\\" despite Reece's plans to park a camper there on a seasonal basis, 2 C.M.R. 06.096 355-3, -5 \\u00a7 3(AA), 6(B). On appeal by Day, see 38 M.R.S. \\u00a7 346(1) (2015), M.R. Civ. P. 80C, the Superior Court vacated the Board's decision.\\n[\\u00b64] Reviewing the Board's decision directly, see Mallinckrodt U.S. LLC v. Dep't of Envtl. Prot., 2014 ME 52, \\u00b6 17, 90 A.3d 428, we conclude that the Board's interpretations of its own ambiguous Rules do not conflict with the relevant statutes or with the Rules, and that the Rules do not compel a contrary interpretation. See 38 M.R.S. \\u00a7 480-D, 480-AA; 2 C.M.R. 06 096 355-1 \\u00a7 1; Cent. Me. Power Co. v. Pub. Utils. Comm'n, 2014 ME 56, \\u00b6 18-19, 24-25, 90 A.3d 451; Friends of Boundary Mountains v. Land Use Regulation Comm'n, 2012 ME 53, \\u00b6 6, 40 A.3d 947; Kroeger v. Dep't of Envtl. Prot., 2005 ME 50, \\u00b6 16, 870 A.2d 566; Reardon v. Dep't of Human Servs., 2003 ME 65, \\u00b6 5, 822 A.2d 1120. Although.the Superior Court's interpretation of section 5(C) highlights the ambiguity of that.provision, the Rules do not compel the interpretation reached by the court, and the Board's interpretation, relying on the definition of \\\"severe damage\\\" as damage to buildings, is not arbitrary or unreasonable. See Cent. Me. Power Co., 2014 ME 56, \\u00b6 18-19, 90 A.3d 451; Kroeger, 2005 ME 50, \\u00b6 16, 870 A.2d 566. Because we affirm the Board's interpretations of its own Rules, we must vacate the Superior Court's judgment and remand for the entry of a judgm\\u00e9nt affirming the' Board's decision to grant Reece the permit.\\nThe entry is:\\nJudgment vacated. Remanded for the Superior Court to affirm the decision of the Board.\\n. The court reasoned that an exclusion contained in section 5(C) for beach nourishment and dune restoration projects would be mere surplusage if section 5(C) did not apply to projects that did not involve buildings. See Preti Flaherty Beliveau & Pachios LLP v. State Tax Assessor, 2014 ME 6, \\u00b6 17, 86 A.3d 30.\"}"
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+"{\"id\": \"682632\", \"name\": \"Ebenezer S. Coe versus Allen H. Bicknell\", \"name_abbreviation\": \"Coe v. Bicknell\", \"decision_date\": \"1857\", \"docket_number\": \"\", \"first_page\": \"163\", \"last_page\": \"164\", \"citations\": \"44 Me. 163\", \"volume\": \"44\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:11:38.392238+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ebenezer S. Coe versus Allen H. Bicknell.\", \"head_matter\": \"Ebenezer S. Coe versus Allen H. Bicknell.\\nWhere it was agreed that the plaintiff should retain the ownership of lumber until certain notes given him by the owner should be paid, and he was in possession at the time of the attachment by the creditors of the maker of the notes, he will be entitled to hold it against them.\\nReplevin. On Report by Appleton, J.\\nThe facts appearing in the opinion of the court, renders their repetition unnecessary.\\nG. W. Ingersoll, counsel for the plaintiff.\\nS. H. Blake, counsel for the defendant.\", \"word_count\": \"480\", \"char_count\": \"2666\", \"text\": \"Goodenow, J.\\nThis is replevin of 50 M. boards, Writ is dated August 29, 1856. Plea the general issue and property in Paul Yarney, and an attachment by the defendant, as the property of said Yarney, July 14, 1856, on a writ in favor of Joseph M. Hodgkins et al.\\nBy the agreement between Coe and Yarney, dated September 1, 1855, it was stipulated that said Coe should retain the complete ownership of the lumber until certain notes given by said Yarney to said Coe should be paid.\\nThe plaintiff testified that, after making the contract with Yarney of September 1, 1855, Yarney commenced taking boards from Hayward & Co.'s dock, raft by raft, as he could get them, and piled them in I. Curtis & Mitchell's Mills wharves, Hampden, and on Crosby's wharf, Bangor; that he kept the plaintiff informed from time to time, how he was getting along, in summer and autumn of 1855, or winter of 1856, after the boards were all piled out. That Yarney went on to each of the piles with him, and pointed them out to him; that the plaintiff marked them and took delivery of them. On cross-examination the plaintiff stated, \\\" the object of my going to see the boards was, to see where they were piled, so that I could identify them, or otherwise take a delivery. I do not know as Yarney called it a delivery. I sup pos\\u00e9 he did. He said, ' I want you to understand this pile is yours; that pile is not; that is, and so on.' \\\"\\nBy the contract, it seems that Coe, instead of the claim for stumpage against Hayward & Co., was to have the boards of Varney, giving Varney an interest in the profits. Varney negotiated the trade, took a bill of sale from Hayward & Co., and as the consideration or purchase money was furnished by Coe, Varney agreed that Coe should retain the ownership of the lumber till the notes spoken of above, should be paid. We are of opinion that the testimony proves that the boards were duly delivered to the plaintiff, as he was in possession of them when they were attached; and that he was entitled to hold them against Varney and his creditors, and that the defendant, according to the agreement of the parties, must be defaulted.\"}"
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+"{\"id\": \"682679\", \"name\": \"John E. Thayer et al. versus Sylvanus Roberts\", \"name_abbreviation\": \"Thayer v. Roberts\", \"decision_date\": \"1857\", \"docket_number\": \"\", \"first_page\": \"247\", \"last_page\": \"254\", \"citations\": \"44 Me. 247\", \"volume\": \"44\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:11:38.392238+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John E. Thayer et al. versus Sylvanus Roberts.\", \"head_matter\": \"John E. Thayer et al. versus Sylvanus Roberts.\\nAn officer gave notice of the sale of an equity of redemption, to take place on Saturday, the twenty-fourth day of the month, when the twenty-fourth day of that month was Sunday. Such notice is invalid, and no title to the property is conveyed by a sale on Saturday the twenty-third; and an alteration of the notice by erasing twenty-fourth and inserting twenty-third eight days before the sale, does not cure the defect.\\nA return of the officer that he notified and made the sale on the last named day, is false, and he is liable in damages to one who had a subsequent attachment to the amount of the value of the property, as shown by the sale, after deducting the expenses thereof.\\nThe facts in tbis were agreed by the parties.\\nThe action is Case against the defendant, as sheriff of Waldo, for a false return of S. S. Gerrish, one of his deputies.\\nMarch 26th, 1852, the Watervillo Bank sued one Thomas Snell, of Unity, and caused an attachment of all his right, title and interest in and to real estate in Waldo county, to be made, which attachment was preserved until March 29th, 1855, when judgment was rendered in said suit against said Snell for $614.63 damages, and cost $10.54, on which judgment, execution was duly issued on the 30th of March, 1855, and placed in the hands of said Gerrish, then a deputy of the defendant, who was then sheriff of Waldo, for service. On the 24th of April, 1855, said Gerrish seized on said execution the right in equity of said Snell of redeeming two parcels of land in Unity, and afterwards, at a public auction, held at said Unity, on the 30th day of June, 1855, by adjournment from the 23d day of said June, he made sale of said right in equity to one Daniel H. Brown, for the sum of $323.12, and on the same day executed and delivered to said Brown a deed of the same, as appears by the return of said Gerrish on said execution. .\\nNotice of said sale was published in the Republican Journal, a public newspaper printed at Belfast, in said county, three weeks successively, the last publication being in a paper dated June 22d, 1855; the second in a paper dated June 15th, 1855; the first in a paper dated June 8th, 1855.\\nIt is admitted that said officer in April, posted in a public place in Unity, and in Troy and Thorndike, two adjoining towns, notices of said sale, similar to said newspaper notice, in all respects, that the day of sale was stated to be on \\u201c Saturday, the twenty-fourth \\u201d day of June, instead of the twenty-third, which notice remained up and unaltered till eight days prior to said twenty-third day of June, when said Gerrish erased \\u201c 24th,\\u201d and inserted \\u201c 23d.\\u201d There was no other notice of said sale published or posted.\\nThe deed of said officer to said Brown was duly recorded August 25th, 1855.\\nIt is agreed that the plaintiff, on the 16th of October, 1852, sued out a writ against said Snell; that on the 19th of said October all of said Snell\\u2019s right and interest in real estate in said county of Waldo was duly attached, and said attachment was preserved until March, 1856, at which time judgment was rendered thereon for the sum of $19,620.89 debt, and $36.89 cost, on which execution was issued, and within thirty days after rendition of judgment, on March 25th, 1856, placed in the hands of Ebern. Berry, deputy sheriff, of said county of Waldo, to be satisfied by levy on any property which could be found belonging to said Snell.\\nSaid officer being unable to find property sufficient to satisfy said execution, returned the same unsatisfied, for a large sum, $17,000, as appears by his return.\\nSaid Snell is admitted to be insolvent, and was at the time of said return.\\nIt is admitted that more than a year after the said sale by Gerrish to Brown, said Brown being informed of the facts regarding said notice, sold Ms right to said property for three hundred dollars.\\nRowe & Bartlett, counsel for the plaintiffs.\\nThe return of the officer, Gferrish, was false, in the statement that he had posted notices of the sale in Unity, &o., thirty days prior to the sale. The sale was on the 23d, and the notices of the sale on that day were not posted until eight days before the day of the sale. Wellman v. Lawrence, 15 Mass. R., 326, 330; 7 Pick. R., 554.\\nThe notice in the newspaper was not sufficient. The three weeks of publication were not completed prior to the sale, but only fifteen days intervened between the first publication and the sale. If a week be simply a measure of time, consisting of seven consecutive days, then a publication three weeks successively must be a publication for twenty-one days. Had the publication been in a daily paper;, through fifteen days, commencing on the 8th and ending on the 22d of June, would any one hold that to be a publication three weeks ? Can the fact that the paper was published but onco a week alter the case ? Suppose the publication had been in a paper published twice a week \\u2014 the notice then would have appeared in five consecutive numbers; would that have been a publication three weeks successively ?\\nIf a week be not simply an aggregation of seven consecutive days, but, as was held in Rockendorff v. Taylor\\u2019s lessee, 4 Peters\\u2019 R., 349, a definite period of time, commencing on Sunday and ending on Saturday, then the term \\u201c week,\\u201d in the statute, is like the term \\u201c day,\\u201d expressing an entirety; and the three weeks prior to the doing of an act must have fully expired before the act could be done. It cannot be legally done during the third week, as was done in this case. The word \\u201c week \\u201d has the same construction given in Basalgette v. Lowe, 31 Eng. Law and Eq. R., 338.\\nThe proper remedy for plaintiffs is by this action. Whit aker v. Sumner, 7 Pick. R., 555 ; Whitaker v. Sumner, 9 Pick. R., 308 ; Bussey v. Leavitt, 12 Maine R., 380.\\nHad the defendant made a true return, plaintiffs could and would have levied their execution upon the same equity of redemption. And the measure of damages is the value of the property which would have been applied towards the satisfaction of their execution, which is shown by the sale to have been $323.12, to which interest is to be added, from return day of our execution. Whitaker v. Sumner, 9 Pick. R., 308.\\nA. P. Palmer, counsel for the defendant.\\nThe defendant is sued in this action for the malfeasance of a deputy in making an alleged false return, upon an execution in favor of the Waterville Bank v. Thomas Snell, which return was of a sale of an equity of redemption of certain lands in Waldo county, and upon which the plaintiff had a .subsequent attachment.\\nAfter an examination of the facts in the case, and the legal ,-authorities upon the question of the plaintiff\\u2019s right to bring .this action, and upon the point of the validity of the conveyance made by the defendant\\u2019s deputy, the defendant makes \\u00a1but a single -point, which arises upon the following facts as shown in the case:\\nThe seizure was duly made, and the notice in the newspaper duly and correctly published. The deputy also posted notices in due time in Unity, where the land lay, and in two adjoining-towns, appointing the sale at the same place, excepting that by a mistake he called the Saturday on which the sale was intended to have been held, \\u201cSaturday, the 24th,\\u201d instead of the \\u201c 23d\\u201d day of June, which was correct, and as it was in the newspaper. Having, some days after and about ten days before the 23d, discovered that he had made a mistake in the posted notices, he changed the figures so that they would read the 23d.\\nThe question is, is that sufficient compliance with the laws to justify the officer in stating in the return that he did, \\u201c on the 25th of April, 1855, give public notice, by posting and publishing notices, that he would sell on Saturday, the 23d of June?\\u201d Or, in other words, is the return lalse in any material or substantial sense ?\\nThe question arises upon so slight a variance of the return. from the exact fact, that I have not been able to find any case which can aid the court.\\nThe court will perceive, and every one would perceive, by looking at the posted notices or notice, (for it is not certain that more than one of them contained this trifling error,) what day was intended by the notice. The 24th was Sunday, and any one would know at once, that \\u201c Saturday, 3 6,\\u201d or \\u201c Saturday, 30,\\u201d could not have been intended, even if they had known, while looking upon the notice, that Saturday was not the 24th.\\nThis was more clerical, accidental error; and officers, like all of us, even the court, are not infallible, and are liable to make such mistakes.\\nWhen no one could, by any possibility, have been misled, or could by possibility have misconceived the day of sale, and when the subsequent attachor himself would only stand as he stood by virtue of his attachment, at the time it was made, will the court hold the defendant for infallible certainty and accuracy in his deputy ? Suppose the return had been that he had given written notice to the debtor in hand, when in fact he had left it at his last and usual place of abode, and the debt- or made no complaint. Would it bo sound reason or good law to hold the defendant liable for a variance from exact fact, which were, to all practical good, complied with. How much less than reason, to hold to that extreme rigidity, when a variance only nominal and not of any practical disadvantage in understanding the notice, or working any disadvantage to subsequent attaching creditors ?\\nCourts, even in their most solemn processes, allow amendments, even in some cases after they have been executed, to correct mere clerical errors, when no one is placed in a worse situation than they would have been had not the accidental error occurred.\\nThe statute does not point out any particular form of stating the time of sale in a notice. It was necessary to state the day of the week, and the day of the month. The notice would have been good had it said the third Saturday in June, or if it had said the 23d day of June; but the 24th being Sunday, was clearly a means to any one who intended to attend the sale, that Saturday, the 23d, was the day. If the sale had been appointed and intended for Friday, the 22d, and had been written Friday, the 23d, there would have been difficulty in knowing whether the mistake was the day of the week or the day of the month, but where the day would be Sunday, no such difficulty would arise in the mind. Indeed, most of those who read the notice for a moment would consider but Saturday was the 24th, and attend on Saturday.\\nBesides, the notice in the paper being the principal and general notice, would be that mostly read, and would at once correct the difficulty, if any existed. The courts in Massachusetts upheld a tax sale, when the notice of the sale con. tained no information as to what hour of the day the sale would be held, on the ground that the statute did not explicitly require it to be stated. Ooleman v. Anderson, 13 Mass. R., 118'. Our statute does not specifically require the officer to state- the hour of the day that the sale shall begin. Yet-it would cause a much greater hardship to parties interested to omit to do so, than can result in this case from the accidental mistake which all see through at a glance.\\nI wish to say one word in excuse for the officer in changing the notices, and in making the return to conform to the notices, as if they were correct exactly in the first instance.\\nHe had accidentally erred in an effort to do exactly and correctly his duty. He was uncertain as to the effect of it upon the rights of the creditor, and he deemed it more just to all concerned, that his sale should be completed, after he discovered the mistake, and submit to the decision of the court what the effect of his mistake was. For this reason he has in no particular attempted to disguiso any fact, or called upon the plaintiff to prove them, but has frankly' admitted them from the beginning.\\nIf the court shall be of the opinion that the notice sufficiently explained itself to justify him in making the return, and that consequently the return is substantial according to the fact, no one is injured.\", \"word_count\": \"2729\", \"char_count\": \"15091\", \"text\": \"Appleton, J.\\nIt appears that one Gerrish, a deputy of the defendant, having seized an equity of redemption as the property of one Snell, on an execution in favor of the Water-ville Bank, against him, proceeded to post up notifications of the time and place of sale, in the town where the land lies, and in the adjoining towns. In these notifications the tim of sale was stated to be on Saturday, the 24th day of June, when it should have been the 23d of June, the 24th being Sunday. Having ascertained his mistake, the deputy canceled the same, eight days before the time appointed, by erasing 24th and inserting instead thereof 23d. On Saturday he proceeded to sell the equity. According to his return of his doings, the notifications stated the time of sale to bo on the 23d of June.\\nThe plaintiffs, having a subsequent attachment upon the real estate of Snell, on which they obtained judgment and sued out execution, have brought this action to recover damages for the false return of the officer, in falsely stating that he had posted up notifications stating the sale to be on the 23d of June, when in truth it was notified to be on the 24th of June.\\nThe return, as made, discloses no error or mistake, and conveys the equity of redemption to the purchaser. If the officer, in his return, had stated the sale to have been on Saturday, the 24th of June, that day being Sunday, or if he had therein truly set forth his original mistake and its subsequent correction, and the time when made, it would have disclosed a failure to comply with the requirements of the R. S., ch. 94, s. 37. In either event the sale would have been invalid. In Willman v. Lawrence, 15 Mass. R., 326, the sale was advertised to be on Friday, the 17th, when Friday was, in fact, the 16th. In reference to this mistake the court say, \\\" The mistake made in advertising the sale is sufficient to render it void. There is the utmost necessity of precision in transactions of this nature. Those who might be disposed to attend the sale as bidders, would be deterred by observing such a blunder. The canceled notice on the day of sale did not leave sufficient time for general information.\\\"\\nThe return of the officer being false, and being so far conclusive that the title of the equity passed to the purchaser at the sheriff's sale, the plaintiffs could not take it on their execution. They have, conse quently, a right of action against the defendant, for the false return of his deputy. The measure of damages is the value of the property which they would have been enabled to apply in satisfaction of their execution. This is shown by the sale on the execution in favor of the Waterville Bank, and that amount does not seem to be disputed as correct. For that amount a default must be ent\\u00e9red, after deducting therefrom the expenses of the sale. Whitaker v. Sumner, 7 Pick. R., 555; Whitaker v. Sumner, 9 Pick. R., 308.\\nDefendants defaulted.\"}"
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+"{\"id\": \"684409\", \"name\": \"Viram B. Paul vs. Daniel Meservey\", \"name_abbreviation\": \"Paul v. Meservey\", \"decision_date\": \"1870\", \"docket_number\": \"\", \"first_page\": \"419\", \"last_page\": \"421\", \"citations\": \"58 Me. 419\", \"volume\": \"58\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:59:50.508610+00:00\", \"provenance\": \"CAP\", \"judges\": \"Appleton, C. J.; Cutting, , Dickerson, Daneorth, and Tapley, JJ., concurred.\", \"parties\": \"Viram B. Paul vs. Daniel Meservey.\", \"head_matter\": \"Viram B. Paul vs. Daniel Meservey.\\nContract \\u2014 rescission of.\\nOne contract is rescinded by another between, the same parties, when the latter is inconsistent with and renders impossible the performance of the former.\\nThus, where, pursuant to the sale by the plaintiff to the defendant of a mare \\u2022with foal, the defendant paid the plaintiff twenty-five dollars, and agreed to let him have the colt when four mouths old, unless he should conclude to keep the colt and pay the plaintiff fifty,dollars therefor; but in accordance with a subsequent contract, the plaintiff took back the mare before foaling time, sold her to a third person, and let the defendant have a two years old colt upon the defendant\\u2019s paying him thirty-seven and one-half dollars boot money; Held, that when the plaintiff took back the mare and sold her, the consideration for the promise of the fifty dollars failed.\\nOn motion to set aside tbe verdict as being against law and against the weight of evidence.\\nAssumpsit upon a written instrument, dated Nov. 19, 1866, signed by the parties, and of the following tenor;\\nIt is hereby agreed between Daniel Meservey, of the first, and V. B. Paul, of the second part, as follows: said Daniel Meservey hereby agrees to let said Paul have the colt that comes of the mare; that the said Paul lets the said Meservey have next spring the said mare, to be well used and kept in good condition, and the colt at the said Meservey\\u2019s risk until it is four months old. If said Meservey wants to take the colt at fifty dollars, he has the privilege, said colt to be delivered in a good and sound condition, if not, Meservey is to pay said Paul fifty dollars.\\nIt appeared that the original trade was made and the mare delivered to the defendant.about the 17th day of September, but the contract was not put in writing until the day of its date, November 19th, following; that neither when the trade was made, nor when the written contract was executed, was anything said between the parties in relation to trading back.\\nThat shortly after the contract in\\\" suit was executed, the defendant let the plaintiff have the mare back for a two years old colt, and gave him thirty-seven and one-half dollars to boot; that the written agreement was not given up or mentioned by either party at the time of the making and executing of the second trade.\\nThat about two months after the execution of the second trade, the plaintiff sold the mare to one Ordway, and was to have the colt when four months old, or sixty dollars; that the mare foaled the spring following, but the colt died when ten days old.\\nThe jury found a verdict for the plaintiff.\\nN. Abbott, for the plaintiff.\\nE. K. Boyle, for the defendant.\", \"word_count\": \"901\", \"char_count\": \"5104\", \"text\": \"Walton, J.\\nThe plaintiff obtained a verdict in this case, and the defendant moves to have it set aside on the ground that it is against law and against evidence. The case is this :\\nThe plaintiff sold the defendant a mare supposed to be with foal. The defendant paid the plaintiff twenty-five dollars, and agreed to let him have the colt when it should be four months old; or, if the defendant wanted to take the colt at fifty dollars, he was to have the privilege. The plaintiff afterwards proposed to take back the mare, and let the defendant have a two years old colt, if the defendant would pay him thirty-seven dollars and fifty cents to boot. This the defendant agreed to, and the contract was executed. The defendant paid the boot, and the plaintiff took back his mare, and soon after sold her to another person.\\nThe plaintiff now claims, that inasmuch as the defendant thus disabled himself from delivering to him the colt when it should be four months old, he is entitled to the fifty dollars. The defendant, on the contrary, contends, that inasmuch as the new contract was inconsistent with the former one, and rendered its farther performance impossible, he was discharged from its further performance; that the effect of the new contract was to rescind the old one ; or, at least, waive its further performance.\\nWe think the defendant is right. We think that when a new contract is inconsistent with, and renders the performance of a former one between the same parties impossible, the former is rescinded, upon the same principle that a subsequent act of the legislature repeals a former act, when the two are inconsistent.\\nTrue, the defendant agreed to deliver the colt to the plaintiff when it should be four months old, or pay fifty dollars. But this promise was in consideration of (in fact part of) the stipulation, that the defendant might take the colt at fifty dollars, if he wanted to. The plaintiff was not to have the colt and the fifty dollars too. The fifty dollars was to be the price of the colt if the defendant elected to buy it. And when the plaintiff took back the colt and sold it to a third person, \\u2014 or, what is the same thing, took the mother and sold her before the colt was foaled, \\u2014 the whole consideration for the promise failed. Motion sustained.\\nVerdict set aside.\\nNew trial granted.\\nAppleton, C. J.; Cutting, , Dickerson, Daneorth, and Tapley, JJ., concurred.\"}"
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+"{\"id\": \"686413\", \"name\": \"Farnsworth versus Rowe & al.\", \"name_abbreviation\": \"Farnsworth v. Rowe\", \"decision_date\": \"1851\", \"docket_number\": \"\", \"first_page\": \"263\", \"last_page\": \"264\", \"citations\": \"33 Me. 263\", \"volume\": \"33\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:24:27.728702+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Farnsworth versus Rowe & al.\", \"head_matter\": \"Farnsworth versus Rowe & al.\\nA subscribing witness to a note need not write thereon for what purpose he affixes his signature.\\nIf one write his name on the note, at the place commonly used for attestations, the presumption is, that he writes it, not as a maker of the note, but as a subscribing witness.\\nAn attestation to a note by one, who writes his name upon it, at the time of its inception, and in the presence of the maker, though unrequested to do so, gives it the legal qualities of a witnessed note.\\nOn Exceptions.\\nAssumpsit by the indorsee against the makers of a promissory note, dated in 1837. It had, in the place where attestations are commonly written, the name of Wm. Farnsworth, but without any word or expression indicating for what purpose it was placed there. Limitation was pleaded.\\nThe plaintiff called Wm. Farnsworth as a witness. He was objected to from interest and being placed on the voir dire testified, that he took the note as the agent of the payee, but had no interest in it. He was then admitted and testified that at the time the note was made, he signed his name thereon as a witness, in the presence of the makers, but that he was not requested by either of them to do so.\\nThe defendant requested instruction to the jury, that the words \\u201c Wm. Farnsworth\\u201d so written, did not give to the note the character of a note, \\u201csigned in the presence of an attesting witness.\\u201d The instruction given was, that if Farnsworth saw the execution of the note by the makers, and at the time and in their presence, signed as a witness to that transaction, the note was not barred by limitation. The defendant excepted.\\nHutchinson, for the defendants.\\nIs this a note, signed in the presence of an attesting witness,\\u201d within the meaning of the Revised Statutes ? What is meant by an attesting witness ? Usage has settled it. It is one who writes his name, with some word, (such as witness, attest or test,) to indicate the purpose of the signing. The mere locality of the signature is of no importance. Farnsworth is to be considered one of the joint makers, and, if sued jointly with the others, he could not have been a witness-But by his own statement, he wrote his name upon the note, without the request of either of the defendants. Such a signing upon a note, without the knowledge or assent of the makers, does not give it the character of a note, \\u201c signed in the presence of an attesting witness.\\u201d Starkie on Ev. (Ed. 1828,) Part 2d, p. 340; 4 Taunt. 220; 3 Camp. 232; 29 Maine, 298.\\nIn all the cases in the books, (with one exception) the subscribing witness is represented as signing in that character. And it is respectfully contended, that the, mere signing of the name upon the paper with or without a designation of the character in, which he signs, without the consent and request of the parties, does not give the paper the character of a witnessed instrument. It must require the consenting will of the parties, to be inferred, perhaps, in the absence of all proof, but not in the teeth of contrary proof. Houghton v. Mann, 13 Mete. 128; Kinsman v. Wright, 4 Mete. 219; Drury v. Yannevar, 1 Cush. 276 ; Smith v. Dunham, 8 Pick. 246 ; Gray v. Bowdoin, 23 Pick. 282.\\nAbbott, for the plaintiff.\", \"word_count\": \"681\", \"char_count\": \"3781\", \"text\": \"Howard, J., orally,\\n\\u2014 Prima fade, the name of W. Farnsworth is to be considered that of an attesting witness. His signature is at the place on the note, known to every business man as the place for the attestation. Long usage has confirmed this rule. It is of universal notoriety. Its legality is not to be questioned.\\nBut it is objected, that he wrote his name there without request. This was not an unusual course. He was, however, the agent of the payee in receiving the note, and might properly witness it, at his own suggestion.\\nExceptions overruled.\"}"
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+"{\"id\": \"686458\", \"name\": \"Rogers versus March\", \"name_abbreviation\": \"Rogers v. March\", \"decision_date\": \"1851\", \"docket_number\": \"\", \"first_page\": \"106\", \"last_page\": \"114\", \"citations\": \"33 Me. 106\", \"volume\": \"33\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:24:27.728702+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wells and Howard, J. J. having been of counsel, took no part -in the decision.\", \"parties\": \"Rogers versus March.\", \"head_matter\": \"Rogers versus March.\\nIn view of all the parts of an unsealed contract, signed as agent by one having authority so to sign, the agent will not be bound by it, if it be apparent that the intention was to make it the contract of the principal and not of the agent.\\nTo this rule there is an exception, upon the ground of commercial policy, that agents, acting for merchants resident abroad, are held personally liable upon contracts made by them for their employers, whether the contracts do or do not show the agency.\\nThis exception does not extend to a contract, made in this State, by one resident here, for personal services to be rendered in a foreign country.\\nAssumpsit per account annexed to the writ, and upon a written contract.\\nThe account was as follows: \\u2014\\u2022\\n\\u201c Leonard March\\nTo Rufus Rogers, Dr.\\n1846.\\nJanuary. For 8 days services, planning and giving advice for Boom, $5,00, $40 00\\n\\u201c expenses to and from Bangor, 23 00\\nFebruary. \\u201c making model of piers of Kesway boom, drawing and making plan of same, and calculating dimensions of same, 50 00\\nMarch. \\u201c time and expenses of hiring men, 17 50\\nApril. \\u201c 13 days work, a $7,00, 91 00\\n\\u201c expenses paid, 26 99\\n248 49\\nServices per agreement 800 00\\n$1048 49\\nThe following is a copy of the contract.\\n\\u201c I will give Mr. Rufus Rogers, eight hundred dollars for the route from April 8th to September 1st, and expenses both ways \\u2014 meaning to leave Topsham 8th April, and Fredericton Sept. 1st. Should we detain him longer than Sept. 1st at boom, we will allow him seven dollars per day for every day after Sept. 1st that he is detained at the boom.\\n\\u201c L. March, Agent of Fred. Boom Co.\\u201d\\n\\u201c Bangor, Jan\\u2019y 15, 1846.\\u201d ,\\n\\u201c Should we require you to work on Sundays, to be allowed extra, at the rate of seven dollars per day. Should we get through the work of the boom before Sept. 1st, no discount to be made. L. M.\\u201d\\nThe parties to this suit are citizens of this State, the plaintiff residing at Topsham, and the defendant at Bangor. The Fredericton Boom Company was incorporated by the Legislature of the Province of New Brunswick, and is legally established and located in a foreign country. The defendant was its authorized agent, with power to employ persons for the company.\\nPursuant to the contract, the defendant went to Fredericton, New Brunswick, where he labored upon the company\\u2019s boom for a few days, till discharged by the defendant.\\nEach party put into the case depositions and letters.\\nThe defendant also introduced two receipts signed by the plaintiff, which were as follows: \\u2014\\n\\u201c Fredericton Boom Co., to Rufus Rogers, Dr.\\nExpenses from Topsham to Fredericton and returning, $52 65\\n17 days time, 34 00\\n\\u00a321 12 3. $86 45\\n\\u201c 18th Feb\\u2019y, 1845. \\u2014Rec\\u2019dpay\\u2019t of Oliver Frost, agent.\\n\\u201c Rufus Rogers.\\u201d\\n\\u201cReceived of L. March, as agent of F. Boom Co., one pound, about April 6, 1846; also two pound ten shillings about May 12; also twenty-five pound this day, to be accounted for on settlement. \\u201c Rufus Rogers.\\u201d\\n\\u201c\\u00a328 10\\n$114 00 May 14, 1846.\\u201d\\nOne of the plaintiff\\u2019s deponents testified that Oliver Frost was agent of the company for 1845.\\nThe following are extracts from letters written by the defendant to the plaintiff, after the contract was made: \\u2014 \\u201c1 have hired all the men I shall want from this way:\\u201d \\u2014 \\u201c1 want you to be here and go down with me;\\u201d \\u201c I have ordered the timber.\\u201d \\u201cI want you to write me in season.\\u201d \\u201cGive me your ideas on the subject;\\u201d \\u201c I do not like to advance on last year\\u2019s price.\\u201d \\u201cI think we had better go early, should like to have you arrange to be ready.\\u201d\\nThe case was submitted to the Court, with power to draw inferences of fact.\\n\\u00a1Shepley Sp Dana for the plaintiff.\\n1. The evidence sufficiently shows that the contract was entered into by the defendant personally, and that he bound himself, as an individual to pay the plaintiff.\\nIt is Leonard March who promises to pay ; his signing as agent has not altered his liability. The statute, chap. 91, sec. 14, treats' exclusively of conveyances and contracts relating to land, and does not apply to this case. 1 Greenl. 231, 237, and 339.\\n\\u201cIt is not sufficient that a person, in order to discharge himself from a promise' in writing, should show, that he was in fact the agent of another, but it should be made to appear that he treated as agent and actually bound his principal by the contract.\\\" \\u201c Nor is it sufficient that the agent describe himself in the deed or contract as acting for and in behalf or as attorney of the principal, for if he do not bind his principal but set his own name and seal, such expressions are but designate personoe; it is his own act and deed, and he is bound personally.\\u201d\\nTo discharge himself the agent must give a right of action against his principal; here March has done no such thing. The writing is the only evidence of the contract, and plaintiff must have introduced it to maintain an action.\\nThe Boom Company is not within this jurisdiction, a suit against it, then, must have been brought in New Brunswick, where it was located, but no suit could for a moment be maintained there on such a contract, for it is not stamped, and by the laws of that dominion a stamp is indispensable. Giving then no right of action against the compa^r, the inference is irresistible, that he intended to bind himself.\\nIt is evident from the contract, that for a portion of the work at least, March promised, in his individual capacity to pay. He does not even sign as agent.\\n2. The defendant, if acting as an agent, was a resident agent of a foreign principal. In such cases, the credit is presumed to be given to the agent, and he is treated as the principal. 3d ed. Story on Agency, sect. 268, 290 and notes : 2 Kent\\u2019s Com. 5th ed. 629, 630; Tainter v. Pendergrast, 3 Hill, 72 \\u2014 3 ; Paterson v. Gaudesequi, 15 East, 62 ; Thompson v. Davenport, 9 B. <fc Cr. 78 ; DeGaillon v. L\\u2019Aigle, 1 B. &. P. 368; Houghton v. Matthews, 3 B. & P. 490 ; Chitty on Contracts, 230, 6th American edition.\\nJ. Sp M. L. Appleton, for the defendant.\\nWells and Howard, J. J. having been of counsel, took no part -in the decision.\\nShepley, C. J. and Tenney, J. concurred in the following opinion, drawn up by\", \"word_count\": \"2923\", \"char_count\": \"16394\", \"text\": \"Tenney, J.\\n\\u2014 The evidence in the case shows fully, that \\\" the Fredericton Boom Company\\\" received the benefit of the plaintiff's services so far as they were rendered. This was a company duly incorporated, and organized in the province of New Brunswick. The performance of the services for the company, aside from any express agreement made by the plaintiff', would imply a promise in it, to make compensation therefor.\\nBut the plaintiff relies upon a contract in writing dated at Bangor in this State on January 15, 1846 ; and contends that it is the agreement of the defendant to make payment for those services, and not that of the company ; and that by the request of the defendant therein contained, he performed the services, or was ready to do so. It is further contended in behalf of the plaintiff, that if the agreement should be construed to be that of the company, the defendant is still liable, he being the agent of the company, resident in the State where the plaintiff also resides, and where the contract was made.\\nBy R. S. chap. 91, sect. 14, it is provided, that all deeds and contracts, executed by an authorized agent for an individual or corporation, either in the name of the principal by such agent, or in the name of such agent, for the principal, shall be considered the deed or contract of such principal.\\\" This is substantially a reenactment of the statute, chap. 220, passed in the year 1823. Both are in affirmance of the common law, so far as it is. applicable in this respect to unsealed, written contracts. Story's Agency, sections 154, 261, 263. The rule is laid down by Judge Story in these words, \\\" If it can upon the whole instrument be collected, that the object and intent of it are to bind the principal, and not merely the agent, courts of justice will adopt that construction of it, however informally it may be expressed.\\\" The case of Mann v. Chandler, 9 Mass. 335, was a suit upon notes of hand, in the words, \\\" I, the subscriber, treasurer of the Dorchester Turnpike Corporation, for value received, promise Seth Mann, to pay him or bearer-,\\\" &c. and they were signed \\\" Gardner L. Chandler, treasurer of Dorchester Turnpike Corporation.\\\" The Court say in their opinion, \\\" Here it cannot be doubted, the corporation is itself liable. The consideration moved wholly from them. It is very apparent, that the plaintiff did not at the time of receiving the notes, look to the defendant's personal security. The whole transaction was in behalf of the corporation. The property is liable and the defendant is not.\\\" A note in the words, \\\" I promise,\\\" <fcc. and signed by one person, pro another, named, was held to be the note of the latter. Long v. Colburn, 11 Mass. 97; Emerson v. Prov. Hat Man. Co. 12 Mass. 237; Ballou v. Talbot, 16 Mass. 461; N. E. Ins. Co. v. DeWolf, 8 Pick. 56.\\nDecisions upon this question have not been entirely uniform. It has been held, that the party signing the instrument, and adding to his name the agency, which he had, was personally liable, and that the addition was only descriptio personae. Some of these cases do not seem very clearly distinguishable from those before cited, where a different construction was adopted. In some of them was involved the question, whether the person who signed, with the addition of agent, had any authority from the principal to contract in his behalf; and in the dis- mission of that question, there has been an indistinctness in reference to the other. Judge Story, in a note to sec. 154, in his treatise on Agency, says, \\\"It is not easy to reconcile all the cases in the books upon this subject ; though I cannot but think, that the true principle to be deduced from them is that stated in the text.\\\"\\nThe case before us finds,' that the defendant was the agent of \\\" The Fredericton Boom Company,\\\" at the time, when the contract was executed, and that he had authority to contract with the plaintiff for the company and to make them liable. In looking at the agreement, it has the appearance of being drawn in haste ; but it is manifest, when taken together, that it was the intention of the defendant to bind the company and not himself individually. In the beginning of the contract, the language is, \\\" I will give,\\\" &c. but that must be considered in connection with what follows, and with the signature, where his agency is added. In the latter part of the contract, the language is inconsistent with the hypothesis, that the company was not designed to be made responsible. It is, we will allow seven dollars per day, &c. for any time, that we shall detain you at the boom; and in case we should require you to work on Sundays, an extra allowance was to be made. And no discount was to be made, if we get through the work before the time, for which the plaintiff was engaged.\\nIn the account annexed, are certain charges for services not falling within the terms of the written contract, and there is no evidence of any promise of the defendant in reference thereto. But there is in the case a bill of the plaintiff rendered under a former agency, made against the company, and receipted. A receipt of the plaintiff also, dated May 14, 1846, in which he acknowledges the payment of \\u00a328,10, by the defendant as agent of the company. These show, that for certain services performed, and a part charged in this suit, he looked to the company for payment.\\n\\\" No rule of law is better ascertained, or stands upon a stronger foundation than this; that when an agent names his principal, the principal is responsible, not the agent.\\\" Hartop ex parte, 12 Vesey, 349 ; Story's Agency, sect. 261 and 263. To this rule there is an exception, upon the ground of general convenience, and the usage of trade, that agents and factors acting for merchants resident in a foreign country, are held personally liable upon all contracts, made by them for their employers, and this without any distinction, whether they describe themselves in the contract as agents or not. In such cases it is presumed the credit is given to the agent or factors. And this exception becomes a general rule, within the scope of its application. Story's Agency, sect. 268. A reason given for this rule is, that there is no other known responsible principal. But Judge Story remarks, that it \\\"is founded on a broader ground, the presumption, that the party dealing with the agent intends to trust one, who is known to him, and resides in the same country, and subject to the same law as himself, rather than one, who if known, cannot from his residence in a foreign country, be made amenable to those laws, and whose liability may be affected by local institutions, and local exemptions, which may put at hazard both his rights and his remedies.\\\" Ibid. 290. \\\"This doctrine is in conformity to the general usage of trade; and it was in all probability originally derived from it, as affording a just exposition of the intentions of all parties, and as being founded in public policy and convenience and in the safety, if not the necessities of commerce.\\\" \\u2014 Ibid. 400.\\nBut we have been directed to no authority, where the rule ' has been held so broad as to embrace the case of personal services performed in a foreign country, for one residing there, although under a contract made in the country, where the one, who engaged to perform the services, resided. The reason of the rule will not extend to such a case. It is well settled, that where the acts stipulated in a contract are to be done, not in the country where the contract is made, but in another country, the laws of the latter are to govern in the performance. Story's Confl. Laws, sect. 280. And where the rule, to which we have referred, in mercantile transactions, is founded on the principle, that one would be unwilling to look to a resident of a foreign country, perhaps unknown to him, and expose himself to the inconvenience, the risk, the expense and uncertainties attending the enforcement of a contract, in that country, it cannot apply to a contract, whereby a party agrees to go to a foreign country, to render services for a resident therein, to be under his direction, knowing that in the performance, he is to be governed by the laws of that country. Where too, he is supposed to be entitled to compensation for his labor, immediately on the performance of the contract therefor, it is not to be presumed that he would voluntarily postpone to a distant time the receipt of payment.\\nBut it is insisted, that in order to discharge himself, the defendant must have given to the plaintiff a right of action against the principal; and the written agreement being the only valid proof of the contract, it fails of being sufficient against the company, because it is not stamped, according to the supposed law of New Brunswick.\\nCourts cannot take official notice of the local laws of foreign countries, without proof of their existence. If important in the trial of actions, they must be shown by evidence like other facts. The case does not find, that the laws of New Brunswick are such as has been stated in argument.\\nBut if it were shown by competent evidence, that such is the law of the country, where the contract in question was to be performed, it is believed that it would have no effect in the decision of this case. This contract was made in this State, and every person is supposed to submit himself to the laws of the place where he makes the contract, and silently assent to its action upon his contract. The law of the place of the contract is to govern. \\\" Locus contractus regit actionem. \\\" Story's Confi. Laws, sections 261, 263, 289. When a contract is made in one country, for the payment of money in another, and by the laws of the latter a stamp is required, and not by those of the former, it has been held, that it is not governed by the lex solutionis, upon the ground, that an instrument as to its form and solemnities, is to be governed by the lex loci contractus, and a stamp is not required by the principle. Ibid. 318. The requirement of stamps in other countries is a part of the revenue laws of those countries. In Holman v. Johnson, Cowper, 343, Lord Mansfield, C. J. says, \\\" no country takes notice of the revenue laws of another.\\\" James v. Catherwood, 3 Dowl. & Ry. 190. Plaintiff nonsuit.\"}"
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+"{\"id\": \"6887139\", \"name\": \"John DOE XLVI v. Stephanie ANDERSON et al.\", \"name_abbreviation\": \"Doe v. Anderson\", \"decision_date\": \"2015-01-13\", \"docket_number\": \"Docket No. Ken-14-5\", \"first_page\": \"378\", \"last_page\": \"388\", \"citations\": \"108 A.3d 378\", \"volume\": \"108\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:31:21.282797+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.\", \"parties\": \"John DOE XLVI v. Stephanie ANDERSON et al.\", \"head_matter\": \"2015 ME 3\\nJohn DOE XLVI v. Stephanie ANDERSON et al.\\nDocket No. Ken-14-5.\\nSupreme Judicial Court of Maine.\\nArgued: Sept. 10, 2014.\\nDecided: Jan. 13, 2015.\\nBruce M. Merrill, Esq. (orally), Bruce M. Merrill, P.A., Portland, for appellant John Doe XLVL\\nJanet T. Mills, Attorney General, Paul Stern, Dep. Atty. Gen., and Laura Yustak Smith, Asst. Atty. Gen. (orally), Office of ble Attorney General, Augusta, for appel-lees Stephanie Anderson et al.\\nPanel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.\\nSilver, J., sat at oral argument and participated in the conferencing process but retired before this opinion was issued.\", \"word_count\": \"4855\", \"char_count\": \"30076\", \"text\": \"JABAR, J.\\n[\\u00b6 1] John Doe XLVI appeals from a judgment of the Superior Court (Kennebec County, Murphy, J.) denying his request for declaratory relief and a temporary restraining order. Doe argues that Maine's Sex Offender Registration and Notification Act of 1999 (SORNA), 34-A M.R.S. \\u00a7 11201 to 11256 (2012), as applied to him violates the Bill of Attainder, Due Process, and Separation of Powers Clauses of the Maine Constitution.\\n[\\u00b6 2] The trial court determined that as applied to Doe SORNA is not punitive, and rejected Doe's bill of attainder claim without considering the lack of a judicial trial and specificity, the other elements of a bill of attainder challenge. We conclude that SORNA is punitive as to offenders who were not sentenced to comply with SOR-NA when SORNA registration was part of sentencing and who were subsequently subjected to SORNA registration when their earlier offenses were added to the statutory list of sex offenses and registration was removed from sentencing. We therefore vacate the judgment with respect to the bill of attainder issue. Because the trial record does not contain sufficient facts regarding the specificity element of Doe's bill of attainder claim, we remand for further consideration.\\nI. BACKGROUND\\n[\\u00b63] In January 2003, Doe pleaded guilty to and was convicted of possession of sexually explicit material (Class D), 17 M.R.S.A. \\u00a7 2924(2) (Supp.2002) and was sentenced to 364 days' imprisonment, with all but seventy-two hours suspended, and one year of probation.\\n[\\u00b6 4] When Doe was convicted, SORNA was part of the sentencing process. At the time of Doe's sentence, the Maine Criminal Code, in a section titled \\\"Authorized sentences,\\\" required sentencing courts to order defendants who were convicted of sex offenses to comply with SORNA: \\\"As part of a sentence, the court shall order every natural person who is a convicted sex offender or sexually violent predator as defined under Title 34-A, section 11203 to satisfy all requirements set forth in the Sex Offender Registration and Notification Act of 1999.\\\" 17-A M.R.S.A. \\u00a7 1152(2-0 (Supp.2002). The section of SORNA regarding an offender's duty to register likewise provided, \\\"The court shall determine at the time of sentencing if a defendant is a sex offender or a sexually violent predator. A person who the court determines is a sex offender or a sexually violent predator shall register according to this sub-chapter.\\\" 34-A M.R.S.A. \\u00a7 11222(1) (Supp.2002).\\n[\\u00b6 5] Doe's Judgment and Commitment form contained a box that the sentencing judge was required to check if the conviction was for an offense requiring SORNA registration. Because possession of sexually explicit material was not then a sex offense as defined by 34-A M.R.S.A. \\u00a7 11203 (Supp.2002), the sentencing court did not check the box on . Doe's Judgment and Commitment form and Doe was not ordered to comply with SORNA.\\n[\\u00b6 6] In September 2003, possession of sexually explicit material was added to the list of sex offenses, a conviction for which required the defendant to register. P.L. 2003, ch. 371, \\u00a7 2 (effective Sept. 13, 2003) (codified as amended at 34-A M.R.S.A. \\u00a7 11203(6) (Supp.2003)). In July 2004, a 2003 amendment to the Maine Criminal Code's sentencing provisions regarding sex offenders took effect. P.L. 2003, ch. 711, \\u00a7 B-13 (effective July 30, 2004). After the amendment's effective date, the sentencing court was to order compliance with SOR-NA's registration provisions \\\"[a]t the time\\\" of sentencing rather than \\\"as part of' a sentence. See id.\\n[\\u00b6 7] In July 2006, Doe received a letter from the Maine State Police advising him that he was required to register. The following month, he responded with a letter stating that he did not believe he was required to register because there had been no \\\"triggering event\\\" requiring registration, such as a court's determination of the duty to register. After learning of Doe's objection, the Office of the Attorney General sent a letter dated January 10, 2007, to the State Bureau of Identification stating that it would recommend an amendment to SORNA if those convicted after 1999 but before 2008 fell into a \\\"gap in the duty to register.\\\"\\n[\\u00b6 8] In 2009,17-A M.R.S. \\u00a7 1152(2-C) was repealed by P.L. 2009, ch. 365, \\u00a7 A-3 (effective Sept. 12, 2009). This law amended the Maine Criminal Code, repealing \\\"from the sentencing provisions the directive that a court order a person convicted of a sex offense . to satisfy all requirements of [SORNA].\\\" L.D. 1157 .Summary (124th Legis. 2009). It also amended SORNA to require that a court \\\"notify the offender at the time of sentence of the duty to register!,]\\\" and to provide that an offender's duty to register is triggered by receiving notice from a court, the Department of Corrections, the State Bureau of Identification, or a law enforcement agency. P.L. 2009, ch. 365, \\u00a7 B-15,. (effective Sept. 12, 2009). These changes clarified that \\\"the Legislature determines that a duty to register exists based on the conviction,\\\" \\\"that a duty to register is not triggered by a court determination, but by and upon notification,\\\" \\\"and that the court's duty is only to notify the person of that duty.\\\" L.D. 1157 Summary (124th Legis. 2009).\\n[\\u00b6 9] In February 2012, Doe received a second notice of the duty to register from the State Bureau of Identification. In April 2012, Doe filed a complaint for a declaratory judgment and temporary restraining order to enjoin the State from pursuing criminal charges against him for failing to register. In his complaint, Doe alleged that SORNA was an unconstitutional ex post facto law and bill of attainder, and that applying it to him violated the Separation of Powers Clause and his substantive and procedural due process rights. At a hearing on May 3, 2012, the Superior Court rejected Doe's ex post fac-to challenge. On October 29, 2013, the court entered an order rejecting Doe's due process, separation of powers, and bill of attainder claims. Following the court's denial of his motion to reconsider, Doe timely appealed. See M.R.App. P. 2(b).\\nII. DISCUSSION\\n[\\u00b6 10] Doe argues that applying SORNA's registration requirements to him violates the Bill of Attainder, Separation of Powers, and Due Process Clauses of the Maine Constitution. We are not persuaded by Doe's arguments regarding due process and separation of powers and do not discuss them further. Our discussion is confined to an analysis of whether SORNA is an invalid bill of attainder. In this regard, Doe specifically contends that because the court did not impose SORNA registration obligations on him when he was sentenced, imposing them on him now violates the Bill of Attainder Clause of the Maine Constitution.\\nA. Standard of Review\\n[\\u00b6 11] We review challenges to the constitutionality of a statute de novo. Doe I v. Williams, 2013 ME 24, \\u00b6 11, 61 A.3d 718. In so doing, we presume that a statute is constitutional and look for a reasonable interpretation that comports with that presumption. Id. The challenger bears the burden of overcoming this presumption by proving the statute's unconstitutionality. State v. Letalien, 2009 ME 130, \\u00b6 15, 985 A.2d 4.\\nB. Bill of Attainder Analysis\\n[\\u00b6 12] Pursuant to article I, section 11 of the Maine Constitution, \\\"The Legislature shall pass no bill of attainder [or] ex post facto law....\\\" See also U.S.Const. art. I, \\u00a7 9, cl. 3 (containing the same prohibitions). For purposes of both the federal and state constitutions, a bill of attainder is (1) a legislative act that applies specifically to named individuals or to identifiable members of a group, and (2) inflicts punishment upon them (3) without a judicial trial. DaimlerChrysler Corp. v. Exec. Dir., Me. Revenue Servs., 2007 ME 62, \\u00b6 35, 922 A.2d 465; United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946).\\n[\\u00b6 13] Although it is listed as the second element, we begin our analysis by considering whether requiring Doe to register pursuant to SORNA constitutes \\\"punishment\\\" within the meaning of the Bill of Attainder Clause.\\n1. Punishment\\n[\\u00b6 14] A law imposes punishment for bill of attainder purposes if it is motivated by a legislative intent to punish, does not serve any legitimate nonpunitive purpose, or results in a deprivation of protected liberties that falls within the historical meaning of legislative punishment. DaimlerChrysler Corp., 2007 ME 62, \\u00b6 35, 922 A.2d 465; Selective Serv. Sys. v. Minnesota Pub. Research Grp., 468 U.S. 841, 852, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984); Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 474-78, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). This \\\"functional\\\" analysis is similar to the \\\"intent-effects\\\" test used to define punishment for ex post facto purposes. See State v. Haskell, 2001 ME 154, \\u00b6 8, 784 A.2d 4 (describing the \\\"intent-effects\\\" test and citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)).\\n[\\u00b6 15] Both the \\\"functional\\\" analysis and the \\\"intent-effects\\\" test of punishment include an examination of legislative intent as well as an analysis of the statute's purposes and effects. Here, we can see no reason to distinguish between the Bill of Attainder and Ex Post Facto Clauses with respect to the definition of punishment. See Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1247 (3d Cir.1996) (reaching the same conclusion). In light of this determination and our experience applying the \\\"intent-effects\\\" test to SORNA in the ex post facto context, we use the \\\"intent-effects\\\" framework to analyze Doe's challenge.\\na. Legislative Intent\\n[\\u00b6 16] To identify punishment under the \\\"intent-effects\\\" test, we first construe the statute to determine whether the legislature intended its provisions to be civil or criminal. Haskell, 2001 ME 154, \\u00b6 8, 784 A.2d 4. If the legislature indicates its intent to create a civil statute, we then consider, notwithstanding the legislature's stated intent, whether the statute's purposes or effects are so punitive as to override the legislature's stated intent. Id. Out of deference to the legislature's intent, we have required a party challenging the statute to provide the \\\"clearest proof' that the scheme is so punitive in purpose or effect as to transform it into a punishment. Id. \\u00b6 8, 10, 13; Letalien, 2009 ME 130, \\u00b6 31, 985 A.2d 4; State v. Cosgro, 2008 ME 64, \\u00b6 2, 945 A.2d 1221.\\n[\\u00b6 17] Here, the Maine Legislature expressed its objective in SORNA's text, which states that SORNA's purpose is \\\"to protect the public from potentially dangerous registrants and offenders by enhancing access to information concerning those registrants and offenders.\\\" 34-A M.R.S. \\u00a7 11201 (2014). In light of this express statement of legislative intent that SOR-NA is civil in nature, we proceed to analyze SORNA's effects under the Mendozar-Martinez factors.\\nb. The Mendoza-Martinez Factors\\n[\\u00b6 18] In determining whether the effects of SORNA are so punitive as to override the Legislature's stated civil intent, we use the seven factors articulated by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as \\\"guideposts.\\\" Haskell, 2001 ME 154, \\u00b68, 784 A.2d 4. These factors are (1) \\\"[w]hether the sanction involves an affirmative disability or restraint\\\"; (2) \\\"whether it has historically been regarded as a punishment\\\"; (3) \\\"whether it comes into play only on a finding of scienter\\\"; (4) \\\"whether its operation will promote the traditional aims of punishment \\u2014 retribution and deterrence\\\"; (5) \\\"whether the behavior to which it applies is already a crime\\\"; (6) \\\"whether an alternative purpose to which it may ration ally be connected is assignable for it\\\"; and (7) \\\"whether it appears excessive in relation to the alternative purpose assigned.\\\" Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554.\\n[\\u00b6 19] We have addressed the issue of whether SORNA is punitive in effect, notwithstanding the Legislature's expressed intent to create a civil sanction, in two recent cases \\u2014 Letalien and Williams\\u2014 both of which challenged SORNA's constitutionality on ex post facto grounds. See Letalien, 2009 ME 130, \\u00b6 26-63, 985 A.2d 4; Williams, 2013 ME 24, \\u00b6 22-51, 61 A.3d 718. These decisions are in agreement with respect to Mendoza-Martinez factors three through seven. Letalien, 2009 ME 130, \\u00b6 44-55, 985 A.2d 4; Williams, 2013 ME 24, \\u00b6 36-44, 61 A.3d 718. They conclude that SORNA's requirements are not triggered only upon a finding of scienter, that SORNA has a nonpunitive public safety purpose, and that the third and sixth factors thus weigh against finding SORNA punitive. Letalien, 2009 ME 130, \\u00b6 44, 50, 985 A.2d 4; Williams, 2013 ME 24, \\u00b6 36, 42, 61 A.3d 718. They treat factors four (whether SORNA promotes the traditional aims of punishment) and seven (whether SORNA is excessive in relation to its nonpunitive purpose) as neutral. Letalien, 2009 ME 130, \\u00b6 45-46, 55, 985 A.2d 4; Williams, 2013 ME 24, \\u00b6 40, 44, 61 A.3d 718. And, because the behavior to which SORNA applies is already a crime, the decisions conclude that factor five supports a finding that SORNA is punitive. Letalien, 2009 ME 130, \\u00b6 48, 985 A.2d 4; Williams, 2013 ME 24, \\u00b6 41, 61 A.3d 718.\\n[\\u00b6 20] Although their conclusions differ with respect to the first Mendoza-Martinez factor, Williams, 2013 ME 24, \\u00b6 30-33, 61 A.3d 718, the pivotal issue in both decisions was the second factor\\u2014 whether SORNA's requirements have historically been considered punishment.\\n[\\u00b621] In Letalien we considered the constitutionality of retroactively applying SORNA's amended and enhanced reporting requirements to Letalien, who had been sentenced to comply with less stringent reporting requirements under an earlier version of SORNA. Letalien, 2009 ME 130, \\u00b6 5-8, 985 A.2d 4. In analyzing whether retroactive application of SOR-NA's enhanced requirements was punitive, we utilized the \\\"intent-effects\\\" test and the Mendozar-Martinez factors. Id. \\u00b6 30-62. We held that application of SORNA's amended, enhanced reporting requirements to Letalien was punitive for ex post facto purposes. Id. \\u00b6 62.\\n[\\u00b6 22] The Letalien decision centered on our conclusion under the s\\u00e9cond Mendoza-Martinez factor that retroactive imposition of SORNA registration obligations has historically been regarded as punishment. Id. \\u00b6 57, 59-61; see also Williams, 2013 ME 24, \\u00b6 46, 61 A.3d 718. In analyzing the second factor, we looked to the unique history of SORNA and its incorporation into the criminal sentencing process. Letalien, 2009 ME 130, \\u00b6 39, 42-43, 985 A.2d 4. We determined that \\\"when sex offender registration is made a part of an offender's criminal sentence, it necessarily constitutes a part of the punishment administered by the State in response to that offender's criminal conviction.\\\" Id. \\u00b6 61. Because an order to comply with SORNA's requirements was \\\"an integral part of the sentencing process\\\" when Letalien was sentenced, id. \\u00b6 42, we concluded that application of SORNA's enhanced reporting requirements to him after sentencing \\\"modified and enhanced a portion of his criminal sentence,\\\" and that this sentence enhancement was historically considered punishment, id. \\u00b6 43.\\n[\\u00b6 23] In Williams, we considered the constitutionality of retroactively applying SORNA's registration requirements to multiple defendants who were sentenced before the enactment of a sex offender registration law. 2013 ME 24, \\u00b6 28, 61 A.3d 718. We concluded that the retroactive application was not punitive for ex post facto purposes, id. \\u00b6 51, distinguishing our holding in Letalien based upon our analysis under the second Mendoza-Martinez factor, id. \\u00b6 35. \\\"[SORNA] of 1995, which affected Letalien, made registration an integral part of the sentencing process and, thus, the resulting sentence. [The version of SORNA applied to the defendants in Williams ], on the other hand, [was] not tied to the sentencing process; this is the crucial distinction upon which Letalien was based.\\\" Id. (quotation marks omitted). In light of this distinction, we determined that the second Mendozar-Martinez factor weighed against concluding that SORNA was punitive. Id.\\n[\\u00b6 24] The instant case is closer to Le-talien than Williams.. When Doe was sentenced, there was a sex offender law in effect and SORNA was an \\\"integral part of the sentencing process.\\\" See id. The Williams Court recognized this factual difference as significant and used it to distinguish Letalien from the defendants in Williams, who were convicted before the enactment of a sex offender law, and for whom SORNA was not part of sentencing. Id.\\n[\\u00b6 25] At the time of Doe's conviction, SORNA was in effect and trial judges imposed SORNA's registration requirement as part of the sentencing process for every person convicted of a sex offense. Doe was not ordered to comply with SOR-NA's registration requirement at sentencing because the Legislature had not included his crime \\u2014 possession of sexually explicit material \\u2014 in the list of sex offenses. See 34-A M.R.S.A. \\u00a7 11203 (Supp. 2002). If Doe's crime had been identified as a sex offense by the Legislature, the sentencing court would have ordered him to comply with SORNA's registration re quirements as part of his criminal sentence.\\n[\\u00b6 26] When the statutory definition of sex offense was amended in September 2003, possession of sexually explicit material was retroactively added to the list of offenses with sentences that required SORNA registration. See P.L. 2003, ch. 371, \\u00a7 2 (effective Sept. 13, 2003) (codified as amended at 34-A M.R.S.A. \\u00a7 11203(6) (Supp.2003)). After SORNA registration was removed from sentencing in 2004, see P.L. 2003, ch. 711, \\u00a7 B-13 (effective July 30, 2004), Doe received notice that he was required to register.\\n[\\u00b6 27] Like Letalien, Doe was convicted at a time when SORNA registration requirements were an \\\"integral part of the sentencing process.\\\" Letalien, 2009 ME 130, \\u00b6 42, 985 A.2d 4. Because Doe's sentence did not include a SORNA registration requirement, the later imposition of registration requirements caused his original sentence to be \\\"modified and enhanced.\\\" See id. \\u00b6 43.\\n[\\u00b628] Each of the seven Mendoza-Martinez factors is relevant to the determination of whether a statute is punitive. Id. \\u00b6 32. Those factors are not subject to a \\\"precise mathematical formulation,\\\" but rather are weighed qualitatively. Id. (quotation marks and internal punctuation omitted). For the reasons set out above, we conclude that in the present case, retroactive imposition of SORNA registration requirements on Doe is a sanction historically regarded as punishment, and that the second Mendozctr-Martinez factor thus weighs in favor of finding the sanction punitive in effect. We have noted the effect of the first and the third through seventh factors as they bear on the Mendoza-Martinez analysis here. However, a retroactive increase in the burdens of Doe's sentence carries substantial weight in our overall analysis under the Mendoza-Martinez framework. Having considered all of the Mendozctr-Martinez factors, we conclude that retroactive, application of SORNA's registration requirements to Doe is punitive in effect.\\n2. Lack of a Judicial Trial\\n[\\u00b6 29] In addition to establishing that the legislative act inflicted punishment, a party challenging a statute under the Bill of Attainder Clause- must prove the elements of the statute's application to a specific individual or group, and the lack of a judicial trial. DaimlerChrysler Corp., 2007 ME 62, \\u00b6 35, 922 A.2d 465. The imposition of punishment without trial \\\"violates fundamental constitutional principles\\\" because it allows the legislature to \\\"circumvent[] the judicial process.\\\" Doe v. Weld, 954 F.Supp. 425, 430 (D.Mass.1996) (quotation marks omitted).\\n[\\u00b6 30] Here, the duty to comply with SORNA was clearly imposed on Doe without a judicial trial. Doe did not have a trial but he did plead guilty to one charge of possession of sexually explicit material. After that plea, which resulted in his conviction, Doe was sentenced, but his sentence did not include a registration obligation because, at the time Doe was sentenced, the Maine Legislature had not deemed his crime to be a sex offense. The legislative amendment to SORNA that purported to change Doe's sentence by imposing registration obligations on him occurred without a judicial determination that Doe was a sex offender and without a judicial order incorporating the registration obligation into his criminal sentence.\\n3. Specificity\\n[\\u00b6 31] In light of our conclusions that the imposition of SORNA registration obligations on Doe resulted in a punitive enhancement of his sentence, and that this enhancement occurred without a judicial trial, we consider the third element of a bill of attainder \\u2014 that is, the law's application to a specific individual or group. The element of specificity is not established by proof that a statute merely imposes punishment on some persons or groups, but also requires proof that certain persons or groups are selected based on their irreversible prior conduct. Roe v. Farwell, 999 F.Supp. 174, 193 (D.Mass.1998).\\n[\\u00b6 32] The record indicates that the SORNA amendment in question may have targeted a specific group based on its members' prior conduct. If it did, application of the amendment to members of that group violates the Bill of Attainder Clause because it legislatively enhances their sentences. The trial court concluded that SORNA is not punitive and it denied Doe's bill of attainder claim without addressing the issue of specificity. Because the record does not contain any factual findings or stipulations concerning specificity, we must remand for further consideration of this issue.\\nC. Conclusion\\n[\\u00b6 33] The Bill of Attainder Clause \\\"does not preclude a State from making reasonable categorical judgments that a conviction of specified crimes should entail particular regulatory consequences.\\\" Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). It does, however, preclude the legislature from imposing punishment on an individual or group in circumvention of the judicial process. Because the SORNA amendment at issue here imposes punishment outside of the judicial process, and because the trial court did not address the element of specificity, we vacate the judgment and remand to the trial court for further consideration.\\nThe entry is:\\nJudgment vacated. Remanded to the trial court for further consideration.\\n. Although SORNA has been amended since Doe received notice of the duty to register in 2012, those amendments are not relevant here. See, e.g., P.L. 2013, ch. 133, \\u00a7 32 (effective Oct. 9, 2013) (codified at 34-A M.R.S. \\u00a7 11203(1-A) (2014)).\\n. Although we agreed in State v. Letalien that the constitutionality of the retroactive application of SORNA \\\"depends on a facial examination of the statute, and not on an as applied analysis,\\\" we concluded that SORNA \\\"im-posefd] an ex post facto punishment as to offenders sentenced in the years before [its] effective date . for whom registration was a required part of their sentence and who were subsequently made subject to the more burdensome requirements of SORNA\\\" after its effective date. 2009 ME 130, \\u00b6 1, 985 A.2d 4 (emphasis added).\\n. Title 17 M.R.S.A. \\u00a7 2924 has since been repealed and the offense of possession of sexually explicit materials has been re-codified in its current location at 17-A M.R.S. \\u00a7 284. P.L. 2003 ch. 711, \\u00a7 B-l, B-12 (effective July 30, 2004).\\n. Title 17-A M.R.S.A. \\u00a7 1152(2-C) has since been repealed. P.L. 2009, ch. 365, \\u00a7 A-3 (effective Sept. 12, 2009).\\n. Title 34-A M.R.S.A. \\u00a7 11222(1) has since been amended. P.L. 2009, ch. 365, \\u00a7 B-15 (effective Sept. 12, 2009) (codified at 34 \\u2014 A M.R.S. \\u00a7 11222(1) (2014)).\\n. Since Doe was sentenced, 34-A M.R.S.A. \\u00a7 11203 has been amended numerous times, most notably, for the purposes of the present case, in 2003. See P.L. 2003, ch. 371, \\u00a7 2 (effective Sept. 13, 2003) (codified as amended at 34-A M.R.S.A. \\u00a7 11203(6) (Supp.2003)).\\n. Although 34-A M.R.S.A. \\u00a7 11203(6) has been amended since 2003, those amendments are not relevant in the present case. See e.g., P.L. 2005, ch. 423, \\u00a7 5 (effective Sept. 17, 2005) (codified at 34-A M.R.S. \\u00a7 11203(6)(C) (2014)).\\n. This amendment changed the sentencing provisions relating to sex offender registration that had been in effect since 1996. See P.L. 1995, ch. 680, \\u00a7 4 (effective July 4, 1996) (codified at 17-A M.R.S.A. \\u00a7 1152(2-C) (Supp.1996)).\\n.See also 34-A M.R.S. \\u00a7 1001(8), 11203(1) (defining \\\"Department\\\" and \\\"Bureau\\\").\\n.Doe did not appeal the court's rejection of his ex post facto challenge. Because that issue is not before us, we do not address it.\\n.The federal prohibition against bills of at tainder is indistinguishable from the state prohibition against bills of attainder; the standard for determining whether a law constitutes a bill of attainder is the same under both the federal and state constitutions. See DaimlerChrysler Corp. v. Exec. Dir., Me. Revenue Servs., 2007 ME 62, \\u00b6 35-36, 922 A.2d 465 (adopting the standard used by the U.S. Supreme Court in Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 474-76, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)). The Superior Court correctly identified the standard in its order denying Doe's request for relief. Doe 46 v. Anderson, KENSC-CV-12-124 at 2 (Me.Super.Ct., Ken.Cnty., Oct. 29, 2013).\\n. Indeed, these two inquiries constitute the common thread among the various tests for punishment. See United States v. Ursery, 518 U.S. 267, 277-78, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (articulating a two-part test for punishment under the Double Jeopardy Clause that considers both intent and effects); Nixon, 433 U.S. at 475, 97 S.Ct. 2777 (applying an intent test and citing the Mendoza-Martinez factors in the bill of attainder context); Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1253-54 (3d Cir.1996) (articulating a three-part test to identify punishment for purposes of the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses, that \\\"looks to the legislature's subjective purpose in enacting the challenged measure, its 'objective' purpose in terms of proportionality and history, and the measure's effects\\\"); Doe v. Kelley, 961 F.Supp. 1105, 1108 (W.D.Mich.1997) (stating that there is \\\"no universal test for determining whether state action constitutes punishment\\\" and applying a \\\"totality of the circumstances\\\" test that focuses on \\\"(1) legislative intent, (2) designation of the legislation, (3) historical treatment of analogous measures, and (4) effects of the legislation\\\").\\n. \\\"Although the Supreme Court warned against lifting a test for punishment from one constitutional provision and applying it to another, [it has] applied the 'intent-effects' test . to both the Double Jeopardy and Ex Post Facto Clauses.\\\" State v. Haskell, 2001 ME 154, \\u00b6 9 n. 7, 784 A.2d 4; see also Smith v. Doe, 538 U.S. 84, 97, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (explaining that \\\"the Mendoza-Martinez factors are designed to apply in various constitutional contexts\\\" and have their \\\"origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses\\\"); Myrie v. Comm'r, N.J. Dept. of Corr., 267 F.3d 251, 256 (3d Cir.2001) (applying the \\\"intent-effects\\\" test to the Double Jeopardy, Ex Post Facto, and Bill of Attainder Clauses).\\n. The first Mendoza-Martinez factor calls for an assessment of whether SORNA's registration requirements involve an \\\"affirmative disability or restraint.\\\" Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). When Letalien was decided, SORNA required registrants to report to law enforcement agencies in person every ninety days for fingerprinting, photographing, and verification of identity and location of home, school, and employment. Letalien, 2009 ME 130, \\u00b6 37, 985 A.2d 4. We concluded that these procedures constituted \\\"a form of significant supervision by the state\\\" and that the first Mendoza-Martinez factor therefore indicated that SORNA was punitive in effect. Id. By the time Williams was decided, SOR-NA registrants were required to report in person only once every five years. Doe I v. Williams, 2013 ME 24, \\u00b6 31, 61 A.3d 718. We concluded that this procedure did not constitute a significant restraint or disability and that the first Mendoza-Martinez factor thus weighed against finding SORNA punitive in effect. Id. \\u00b6 33. In this case, if SORNA's registration requirements were imposed upon Doe, the nature of his obligations would be the same as or similar to those considered in Williams. See 34-A M.R.S. \\u00a7 11222 (2014). The registration obligations would thus fail to indicate that the sanction is punitive in effect for purposes of the first Mendoza-Martinez factor. Williams, 2013 ME 24, \\u00b6 33, 61 A.3d 718.\\n. See also State v. Johnson, 2006 ME 35, \\u00b6 12-14, 894 A.2d 489 (concluding that SOR-NA registration was part of Johnson's criminal sentence in 2000, and that the sentencing court's improper designation of Johnson as a sex offender rather than a sexually violent predator could only be corrected pursuant to Maine Rule of Criminal Procedure 35(a), notwithstanding the fact that SORNA registration had been removed from the sentencing process by an amendment effective in 2004).\\n. See supra n.6 (discussing later amendments to 34-A M.R.S.A. \\u00a7 11203).\\n. See supra n.7 (discussing later amendments to 34-A M.R.S.A. \\u00a7 11203(6)).\"}"
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+"{\"id\": \"691087\", \"name\": \"Jordan, in Equity, versus Fay\", \"name_abbreviation\": \"Jordan v. Fay\", \"decision_date\": \"1855\", \"docket_number\": \"\", \"first_page\": \"130\", \"last_page\": \"132\", \"citations\": \"40 Me. 130\", \"volume\": \"40\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:52:22.927222+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"\\u2020 Jordan, in Equity, versus Fay.\", \"head_matter\": \"\\u2020 Jordan, in Equity, versus Fay.\\nThe specific performance of a contract in writing, concerning land, cannot be compelled in a court of equity, if the description of the land is so vague and uncertain, as to require a resort to parol evidence to ascertain its boundaries, and there is no reference in the memorandum to other description which would make it certain.\\nBill in Equity, for a specific performance of the contract following: \\u2014\\n\\u201cNorth Lincoln, Oct. 24, 1853.\\n\\u201cReceived of Thomas M. Jordan, Esq., thirty dollars, on account of a lot of land, joining a small tract now occupied by Michael Micue; and when said Jordan fulfils an agreement in relation to a line fence, then he is to have a deed of the same, for which this amount is in part. C. J. Fay.\\u201d\\nThe bill alleged a performance of the agreement in relation to the line fence; sot out the boundaries of the land referred to, and a demand f6r a deed upon the respondent, and his refusal to give one.\\nTo this bill, the respondent filed a general demurrer.\\nPeters, in support of the demurrer, denied the validity of the memorandum, on account of the statute of frauds, and cited Atwood v. Cobb, 16 Pick. 227.\\nAnd if the object of the statute is to protect one against the uncertainties of verbal contracts in relation to real estate, certainly the rule will apply when a written contract is as liable to perversion, as a verbal one could be.\\nJ. E. Gpdfrey, for plaintiff.\\nCourts of equity will decree a specific performance when the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed. The form of the instrument is unimportant. Story\\u2019s Eq. Jurisprudence, vol. 2, \\u00a7 \\u00a7 751, 770.\\nIf the description be sufficient to ascertain the estate to be conveyed it will pass the conveyance. Worthington al. v. Hyler Sf al. 4 Mass. 196.\\nA grant of all the lands I own in said town, the bounds to be found in the county records, is a sufficient description. Field v. Huston, 21 Maine, 69.\\nCourts of equity will conform preliminary contracts to the real intent of the parties. Story\\u2019s Eq. Juris, vol. 1, \\u00a7 \\u00a7 152, 154, 159.\\nAnd they supply omissions in deeds. Same, \\u00a7 166.\", \"word_count\": \"722\", \"char_count\": \"4054\", \"text\": \"Tenney, J.\\nThis suit is for a specific performance of a contract, in writing, to sell land, in the following words and figures, viz.: \\u2014\\n\\\"North Lincoln, Oct. 24, 1853.\\n\\\"Received of Thomas M. Jordan, Esq., thirty dollars, on account of a lot of land, joining a small tract now occupied by Michael Micue; and when said Jordan fulfils an agreement, in relation to a line fence, then he is to have a deed of the same, for which this amount is in part.\\n\\\" C. J. Pay.\\\"\\nAnd the bill alleges, that the land, so agreed to be sold and conveyed, is that which is described therein, by courses and distances, metes and bounds.\\nThe defendant demurs generally to the bill, and as a ground against the power of the Court, to decree a specific performance, as prayed for, the statute of frauds is insisted on.\\nThe memorandum signed by the defendant, is defective. It should have described the land with such certainty, that it could be understood from the writing itself, without parol proof; unless that appears in the writing itself, or by some reference, contained in it, to something else, which is certain, it does not comply with the statute. Blagden v. Bradbear, 12 Vesey, 446; Tawney v. Crowther, 3 Bro. 318; Bagdell v. Drummond, 11 East, 142; Parkhurst v. Van Cortland, 1 Johns. Ch. 273.\\nBy the memorandum, the only description of the lot is, that it .is joining a small tract, now occupied by Michael Mi-cue, and there is in the writing no reference, by which the land can be determined with any greater certainty, than by the memorandum. The location, size and shape of the lot, are entirely wanting in the description, and without a resort to parol evidence, it would be impossible to ascertain .what land was intended to be the subject of the agreement; and it forms no ground for a specific performance.\\nDemurrer sustained. \\u2014 Bill dismissed with costs.\"}"
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+"{\"id\": \"7282642\", \"name\": \"In re PENELOPE W.\", \"name_abbreviation\": \"In re Penelope W.\", \"decision_date\": \"2011-05-17\", \"docket_number\": \"\", \"first_page\": \"813\", \"last_page\": \"815\", \"citations\": \"19 A.3d 813\", \"volume\": \"19\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:50:21.792362+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.\", \"parties\": \"In re PENELOPE W.\", \"head_matter\": \"2011 ME 58\\nIn re PENELOPE W.\\nSupreme Judicial Court of Maine.\\nSubmitted on Briefs: April 27, 2011.\\nDecided: May 17, 2011.\\nAaron M. Frey, Esq., Bangor, ME, for Penelope W.\\nPenelope W., pro se.\\nWilliam J. Schneider, Attorney General, Janine A. Raquet, Asst. Atty. Gen., Office of the Attorney General, Augusta, ME, for the Dorothea Dix Psychiatric Center.\\nPanel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.\", \"word_count\": \"940\", \"char_count\": \"5823\", \"text\": \"SILVER, J.\\n[\\u00b6 1] Penelope W. appeals from a judgment of the Superior Court (Penobscot County, Anderson, J.) affirming an involuntary commitment order entered in the District Court (Bangor, Gunther, J.). Penelope argues that the Superior Court erred in holding that she had not preserved her claims, and in its alternative holding that the statutory requirement of counsel in involuntary commitment proceedings is constitutional. Penelope raised additional arguments in her briefing that we find without merit. We affirm the judgment.\\n[\\u00b6 2] The facts of this case are described in In re Penelope W. (Penelope I), 2009 ME 81, \\u00b6 2-6, 977 A.2d 380, 380-81. Penelope was hospitalized at Acadia Hospital on an emergency basis in March 2008. On application of Dorothea Dix Psychiatric Center (DDPC), the District Court held a hearing to determine whether her involuntary hospitalization should be continued at that facility. Penelope requested that she be permitted to represent herself at the hearing, but the court required her to be represented by her attorney, noting that \\\"the key issue here is your mental condition.\\\" After the hearing, the court concluded that DDPC had met its burden of showing that Penelope was mentally ill because of her delusional beliefs regarding an insect infestation, and that she presented a likelihood of serious harm to herself and others because of her methods to eliminate the perceived insects. The court therefore ordered that Penelope's hospitalization continue for up to ninety days.\\n[\\u00b6 3] Penelope appealed the judgment to the Superior Court, proceeding without counsel. The court dismissed that appeal for failure to comply with the briefing requirements. This Court vacated that judgment and remanded the case for appointment of counsel and further proceedings. Penelope I, 2009 ME 81, \\u00b6 1, 977 A.2d at 380.\\n[\\u00b6 4] On remand, the Superior Court appointed two attorneys as counsel to Penelope. After briefing, the court issued a judgment denying the appeal, holding that Penelope had failed to properly preserve her claims, and additionally that those claims failed on the merits. Penelope filed this appeal of the Superior Court's judgment.\\n[\\u00b6 5] As an initial matter, we note that although Penelope was discharged from the commitment at issue in July 2008, the collateral consequences exception to the mootness doctrine applies, and the claim is not barred as moot. See In re Walter R., 2004 ME 77, \\u00b6 10, 850 A.2d 346, 349. We next address the court's determination that Penelope failed to preserve her argument that the imposition of counsel violated her constitutional right to self-representation. Although Penelope did not make this specific argument before the District Court, she did raise the issue generally by making the request to proceed pro se several times, and in the circumstances presented here we will address the merits.\\n[\\u00b6 6] Having determined that the appeal is properly before us and the constitutional issue on appeal is preserved, we affirm the judgment of the Superior Court on its alternative holding that the statutory requirement that persons facing involuntary commitment be represented by counsel does not violate the Maine Constitution.\\n[\\u00b6 7] \\\"A statute is presumed to be constitutional and the person challenging the constitutionality has the burden of establishing its infirmity.\\\" Kenny v. Dep't of Human Servs., 1999 ME 158, \\u00b6 7, 740 A.2d 560, 563. We review de novo whether that burden has been met. State v. Thomas, 2010 ME 116, \\u00b6 19, 8 A.3d 638, 644.\\n[\\u00b6 8] Title 34-B M.R.S. \\u00a7 3864(5)(D) (2010) states that at an involuntary commitment hearing, \\\"[t]he person must be afforded an opportunity to be represented by counsel, and, if neither the person nor others provide counsel, the court shall appoint counsel for the person.\\\" We held in Penelope I that the statute requires counsel at all stages of involuntary commitment proceedings. 2009 ME 81, \\u00b6 9, 977 A.2d at 382. We declined in that case to decide the issue of whether the requirement is constitutional, but did note that the requirement \\\"is grounded on sound public policy\\\" because such hearings \\\"inevitably involve substantial questions regarding the mental status of the person who is the subject of the application.\\\" Id. \\u00b6 7,10, 977 A.2d at 381, 382.\\n[\\u00b6 9] Although there is a limited right to self-representation in criminal cases, the United States Supreme Court has observed that there are significant differences between civil commitment proceedings and criminal prosecutions. See Addington v. Texas, 441 U.S. 418, 428-29, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). We now hold that section 3864's requirement that persons facing involuntary commitment be represented by counsel does not violate a patient's constitutional rights, and affirm the judgment of the Superior Court on this alternative basis. Because Penelope's remaining claims are not persuasive, we do not address them.\\nThe entry is:\\nJudgment affirmed.\\n. The United States Supreme Court has held more recently that even in criminal cases, the right of self-representation is not absolute under the United States Constitution, and a state may require a defendant to be represented by counsel if it concludes that the defendant does not have the mental competence to conduct his own trial proceedings. See Indiana v. Edwards, 554 U.S. 164, 171, 177-78, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008).\"}"
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+"{\"id\": \"7288669\", \"name\": \"James W. GORMAN Jr. v. Louise J. GORMAN\", \"name_abbreviation\": \"Gorman v. Gorman\", \"decision_date\": \"2010-11-30\", \"docket_number\": \"\", \"first_page\": \"703\", \"last_page\": \"707\", \"citations\": \"10 A.3d 703\", \"volume\": \"10\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:22:42.424406+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.\", \"parties\": \"James W. GORMAN Jr. v. Louise J. GORMAN.\", \"head_matter\": \"2010 ME 123\\nJames W. GORMAN Jr. v. Louise J. GORMAN.\\nSupreme Judicial Court of Maine.\\nArgued: April 13, 2010.\\nDecided: Nov. 30, 2010.\\nRevised: Dec. 28, 2010.\\nDiane Dusini, Esq., Michael P. Asen, Esq. (orally), Angela C. Arey, Esq., Mitte-lAsen, LLC, Portland, ME, for James W. Gorman, Jr.\\nLeonard M. Gulino, Esq. (orally), Lori Londis Dwyer, Esq., Bernstein Shur, Portland, ME, for Louise Gorman.\\nPanel: ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.\\nSaufley, C.J., and Silver, J., both sat at oral argument but did not participate in the development of this opinion.\", \"word_count\": \"1699\", \"char_count\": \"9921\", \"text\": \"GORMAN, J.\\n[\\u00b6 1] This appeal requires us to examine the procedures necessary for a party to preserve the right to appeal when a referee, rather than the court, heard the evidence and resolved the parties' disputes. See M.R. Civ. P. 53. We clarify the procedure for appealing from a referee's decision and remand the matter to the District Court for further proceedings.\\n[\\u00b6 2] James W. Gorman Jr. appeals from a judgment, entered without objection, in which the District Court (West Bath, J.D. Kennedy, J.) approved a referee's ruling on a motion for findings of fact following the court's approval of the referee's report in the divorce action between James and Louise J. Gorman. James argues on appeal that the referee erred in (1) treating the increase in value of his non-marital L.L. Bean stock as marital property, and (2) finding that none of that increase in value resulted from market forces. See 19-A M.R.S. \\u00a7 953(2)(E) (2009). James also contends that the referee erred in failing to provide specific findings to support the determination that the increase in the value of his nonmarital stock was marital property, and in ordering that Louise be allocated a percentage of one of his retirement accounts at the time of distribution rather than at the time of the divorce.\\nI. PRESERVATION OF APPELLATE RIGHTS\\n[\\u00b63] James filed a complaint for divorce in November of 2003 after more than twenty years of marriage. By agreement of the parties, the court (Westcott, J.) appointed a referee to take evidence and issue a report. See M.R. Civ. P. 53. In the agreement, which was memorialized in the court's appointment order, the parties explicitly waived the right to file objections to the referee's report. See M.R. Civ. P. 53(e)(2). Despite that waiver, they also attempted to confer appellate jurisdiction on this Court by agreeing that the judgment entered on the referee's report \\\"shall be appealable to the Law Court on the same terms as if . the Judge of the District Court shall have entered judgment after a trial without jury.\\\"\\n[\\u00b6 4] Pursuant to Rule 53, the report of a referee must be presented to the court that referred the case to be accepted and effectuated through the entry of a judgment; until the court has accepted the report, no judgment has been entered and the directives of the report cannot be enforced.\\n[\\u00b6 5] If a party asserts error in the referee's findings or conclusions, the party must identify the asserted error and present it to the court through an objection for final adjudication. See M.R. Civ. P. 53(e)(2); see also Wendward Corp. v. Grp. Design, Inc., 428 A.2d 57, 58-59 (Me.1981). This process allows the court to identify and address any issues that may need correction, clarification, or further legal analysis. By addressing the objections, the court may correct errors or misunderstandings quickly and without the expense of an appeal.\\n[\\u00b6 6] Once the court has addressed the objections and entered a judgment, a party who raised the objections may seek appellate review of those issues. See Wendward Corp., 428 A.2d at 58-59. Thus; an appeal from a referee's report will not be entertained unless a proper objection to that aspect of the report has been made in the court that appointed the referee. See id.; 1 Field, McKusick & Wroth, Maine Civil Practice \\u00a7 53.4 at 338 (Supp.1981).\\n[\\u00b6 7] To be clear, filing objections with the court does not provide an opportunity for a new trial; rather, it is a means for a party to identify errors, for the court to correct those errors if so persuaded, and potentially for the parties to avoid the need for appellate review. Any objections must be supported by legal argument with citations and precise references to the record. 1 Field, McKusick & Wroth, Maine Civil Practice \\u00a7 53.4 at 338-39. Although, in nonjury actions, the court \\\"shall adopt the referee's findings of fact unless [they are] clearly erroneous,\\\" after hearing, the court \\\"may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.\\\" M.R. Civ. P. 53(e)(2).\\n[\\u00b6 8] Here, the parties sought to avoid having the District Court address any challenges to the referee's report, perhaps to reduce the costs of litigation. They did not, however, have the authority to bypass the court and appeal to us simply by agreeing to that process. See Wendward Corp., 428 A.2d at 58-59; Thompson v. Willette, 353 A.2d 176, 179-80 (Me.1976); Mount Desert Yacht Yard, Inc. v. Phillips, 348 A.2d 16, 20-21 (Me.1975). Litigants who agree to engage a referee to adjudicate a matter must under stand that they will not have the right to a direct appeal from the referee's decision; direct appeal occurs only if the adjudication has been undertaken in a court. See Wendward Corp., 428 A.2d at 58-59; Thompson, 353 A.2d at 179-80; Mount Desert Yacht Yard, 348 A.2d at 20-21.\\n[\\u00b6 9] In ordinary circumstances, we would dismiss this appeal for failure to object to the report in the court proceeding. See Wendward Corp., 428 A.2d at 58-59. A procedural flaw, however, persuades us not to dismiss James's appeal: the District Court entered an order that explicitly approved of the process chosen by the parties, leading the parties to understand that an appeal from the referee's report could be pursued notwithstanding a failure to object. The parties relied on that order throughout the proceedings. In these unusual circumstances, rather than dismissing the appeal outright, we will remand for objections to be filed with the District Court.\\n[\\u00b6 10] Having clarified the process, we caution that, in the future, we will dismiss any appeal from a judgment entered after the date of this opinion that approves a referee's report if the party bringing the appeal waived the right to object or otherwise failed to object to the report in the court that referred the case to the referee. See Wendward Corp., 428 A.2d at 58-59. In such circumstances, we will consider the party to have waived the right to appeal, even when an agreement to bypass this necessary process has been approved by a judicial officer.\\nII. PROCESS ON REMAND\\n[\\u00b6 11] On remand, the parties must present any objections to the referee's findings and conclusions to the District Court. On the central issue of the marital or nonmarital nature of the increase in value of James's' nonmarital L.L. Bean stock, it will be important for the parties to focus on the particular facts of this case and on how the relevant statutory language applies to those facts.\\n[\\u00b6 12] Louise established that the value of James's nonmarital L.L. Bean stock appreciated in value during the marriage. See Hedges v. Pitcher, 2008 ME 55, \\u00b6 15, 942 A.2d 1217, 1222. By statute, that increase in value must be considered marital property unless James proves, by a preponderance of the evidence, that the increase in value of that stock resulted either from market forces or from passively reinvested income and capital gains. 19-A M.R.S. \\u00a7 953(2)(E)(1); Hedges, 2008 ME 55, \\u00b6 16-18, 942 A.2d at 1222-23; Warren v. Warren, 2005 ME 9, \\u00b6 26, 866 A.2d 97, 103.\\n[\\u00b6 13] Determining whether appreciation is the result of passively reinvested income and capital gains requires an inquiry into whether either spouse had a \\\"substantial active role during the marriage in managing, preserving or improving the property,\\\" i.e., the stock. 19-A M.R.S. \\u00a7 953(2)(E)(2)(c). What constitutes substantial active involvement by the spouse \\\"will depend upon the type of man agement, maintenance or improvement customarily associated with the type of property at issue.\\\" Hedges, 2008 ME 55, \\u00b6 26, 942 A.2d at 1224 (quotation marks omitted). Both the statute and our prior decisions treat a spouse's management of a corporation differently from a spouse's management of the stock in that corporation. Compare Warren, 2005 ME 9, \\u00b6 5, 28-33, 866 A.2d at 99, 103-04 (applying 19-A M.R.S. \\u00a7 953(2)(E)(2)(b)), with Hedges, 2008 ME 55, \\u00b6 28-30, 942 A.2d at 1225-26 (applying 19-A M.R.S. \\u00a7 953(2)(E)(1)(a)), and Warner v. Warner, 2002 ME 156, \\u00b6 32-35, 807 A.2d 607, 620-21 (discussing a spouse's role in managing particular stock in an investment portfolio). If James cannot prove that the increase in the stock's value was passive, i.e., did not arise in circumstances where he had a substantial active involvement in the management of the stock, the increase in value is a marital asset to be distributed equitably by the court. See Hedges, 2008 ME 55, \\u00b6 18, 942 A.2d at 1223.\\n[\\u00b6 14] If there are objections presented on remand, the parties, the court, and potentially the referee must carefully address the nature of the property at issue and, if applicable, the nature of the \\\"role\\\" either party had in \\\"managing, preserving or improving\\\" that property. 19-A M.R.S. \\u00a7 953(2)(E)(2)(c). Only after the District Court has had an opportunity to address any objections and has entered a final judgment will we consider an appeal by either party.\\nThe entry is:\\nJudgment adopting the referee's report vacated. Remanded for further proceedings consistent with this opinion.\\n. Justice Gorman is not related to James or Louise Gorman.\\n. An increase in value is also marital if it is due to the investment of marital funds or property, 19-A M.R.S. \\u00a7 953(2)(E)(2)(a) (2009), or marital labor, 19-A M.R.S. \\u00a7 953(2)(E)(2)(b) (2009).\"}"
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+"{\"id\": \"7349188\", \"name\": \"Barbara KOLMOSKY v. Edward KOLMOSKY\", \"name_abbreviation\": \"Kolmosky v. Kolmosky\", \"decision_date\": \"1993-09-20\", \"docket_number\": \"\", \"first_page\": \"419\", \"last_page\": \"423\", \"citations\": \"631 A.2d 419\", \"volume\": \"631\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T01:28:34.643182+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WATHEN, C.J., and ROBERTS; GLASSMAN, CLIFFORD, RUDMAN and DANA, JJ.\", \"parties\": \"Barbara KOLMOSKY v. Edward KOLMOSKY.\", \"head_matter\": \"Barbara KOLMOSKY v. Edward KOLMOSKY.\\nSupreme Judicial Court of Maine.\\nArgued April 27, 1992.\\nDecided Sept. 20, 1993.\\nPaul F. Macri (orally), Berman & Simmons, P.A., Lewiston, for plaintiff.\\nToby H. Hollander (orally), Robert A. Laskoff, P.A., Lewiston, for defendant.\\nBefore WATHEN, C.J., and ROBERTS; GLASSMAN, CLIFFORD, RUDMAN and DANA, JJ.\", \"word_count\": \"2022\", \"char_count\": \"12401\", \"text\": \"CLIFFORD, Justice.\\nThis case comes to us on appeal from a Superior Court (Knox County, Maclnnes, A.R.J.) affirmance of a summary judgment in favor of defendant Edward Kolmosky entered in the District Court (Rockland, Field, J.) on plaintiff Barbara Kolmosky's motion pursuant to M.R.Civ.P. 60(b) for relief from the property and child support provisions of the parties' divorce judgment. Although we conclude that it was inappropriate for the court to entertain a motion for a summary judgment on a motion for relief from judgment, we nevertheless conclude that the evidence Barbara presented to the District Court does not entitle her to relief from the divorce judgment. Accordingly, we affirm.\\nSeveral months after Barbara obtained a divorce from Edward, and after consulting with a different attorney than the one who entered his appearance on her behalf during the divorce proceedings, Barbara filed in the District Court a motion pursuant to M.R.Civ.P. 60(b)(3) and (6), later amended, for relief from the divorce judgment. The following facts are alleged by Barbara in support of her motion.\\nThe parties were married in 1971. They have two children, born in 1971 and 1974. Barbara sought a divorce in 1989. Edward had ownership interest in and operated a business, Fuller Olds Cadillac and GMC Trucks, Inc., an automobile dealership he purchased in the early 1980s. Edward told Barbara that they could reach a favorable settlement agreement and use one attorney to handle the divorce. Edward scheduled an appointment for them with an attorney, whom the parties knew as the attorney for Edward's business. That attorney had also drawn up the parties' wills.\\nPrior to seeing the attorney, Edward and Barbara reached an agreement on the various matters associated with the divorce, and they took a handwritten list (in Barbara's handwriting) to the attorney's office. The attorney told the parties that he could represent them only if there was no disagreement between them regarding the terms of the divorce. He did not advise Barbara, and there is nothing in the record to indicate that he advised Edward, that their interests might be adverse, or that each should be represented by their own individual attorney. Nor was there any discussion as to the values of the assets that appeared on the handwritten list. The attorney drew up the settlement agreement as proposed by the parties, filed the divorce complaint with Barbara named as plaintiff, entered his appearance in the District Court as Barbara's attorney, and prosecuted the uncontested divorce hearing.\\nThe settlement agreement was reviewed by the parties, approved by the court, and incorporated into the divorce judgment following an uncontested hearing. It provided that Edward was to keep the business and the summer cottage. Barbara received bank accounts. The children were to live with Barbara, and Edward was to pay child support of $400 per child per month. Edward agreed to pay for the children's college educations, to provide cars for Barbara and the children, and to provide health insurance.\\nBarbara contends that the conduct of both Edward and the attorney entitle her to relief from the divorce judgment. She alleges that Edward did not want her to obtain her own attorney and that she agreed to the terms of the settlement agreement because he threatened not to pay for the children's college educations and to seek an accounting for the marital funds and marital effort spent on improvements to Barbara's mother's home if she attempted to obtain a portion of the auto dealership. Barbara further contends that the attorney had a conflict of interest and that his failure to advise her that her interests could be adverse to Edward's and to obtain her own lawyer justifies the granting of her post-judgment motion, or, at the very least, precludes summary judgment.\\nAlthough the case appears to have been ready, or nearly so, for decision on the merits of the Rule 60(b) motion, the District Court entertained and decided the case on a motion for a summary judgment. The summary judgment procedure set forth in M.R.Civ.P. 56 has broad application, but there is little reason for its use when the matter before the court is itself a motion for relief from judgment pursuant to M.R.Civ.P. 60(b). M.R.Civ.P. 56(b) provides that \\\"[a] party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought, may . move . for a summary judgment.\\\" (Emphasis added.) Rule 56 is \\\"a pretrial mechanism for determining whether a trial will be necessary.\\\" Rancourt v. Waterville Osteopathic Hosp., 526 A.2d 1385, 1388 (Me.1987). Its purpose is to avoid delay through the prompt disposition of cases in which a dispute is solely dependent on the resolution of issues of law and no triable factual issues exist. Tisei v. Town of Ogunquit, 491 A.2d 564, 568 (Me.1985).\\nIn most cases, Rule 60(b) motions are decided on the basis of affidavits and other documentary evidence usually without the necessity of a lengthy evidentiary hearing. In this case, in preparation for the Rule 60(b) motion, the parties engaged in discovery and depositions were taken. Despite the case's apparent ripeness, or near ripeness, for a decision on the merits of the Rule 60(b) motion, the court entertained and granted Edward's motion for a summary judgment. The use of a summary judgment in this case, to decide a Rule 60(b) motion, has the effect of turning the resolution of the Rule 60(b) motion into a two-step process, causing rather than preventing delay.\\nIn bringing a Rule 60(b) motion, Barbara has the burden of convincing the court that the divorce judgment should be set aside. It is in the public interest that divorce judgments, once final, not be easily altered. Reville v. Reville, 370 A.2d 249, 253 (Me.1977). \\\"It is necessary that judgments, especially those settling property rights . have a high degree of stability and finality.\\\" Merrill v. Merrill, 449 A.2d 1120, 1125 (Me.1982). Rule 60(b) is not intended as an alternative method of appeal. Reville, 370 A.2d at 254. On the other hand, the rule does not preclude an independent action attacking a divorce judgment based on fraud or misrepresenta tion. Sargent v. Sargent, 622 A.2d 721, 722 (Me.1993).\\nIn this case, Barbara does not allege fraud or misrepresentation. She seeks relief pursuant to Rule 60(b)(3) for \\\"misconduct of an adverse party.\\\" Misconduct of an adverse party under Rule 60(b)(3) refers to the misconduct of Edward and not the misconduct of the attorney who represented Barbara, at least when there is no evidence of collusion between the two. Although other avenues of relief may be available to Barbara for the misconduct of her own attorney, she cannot rely on Rule 60(b)(3) to secure that relief.\\nThe actions of Edward relied on by Barbara to constitute misconduct under Rule 60(b)(3), or to otherwise justify relief under 60(b)(6), simply do not rise to a level sufficient to justify the setting aside of a divorce judgment with a property disposition. Barbara makes no allegation of fraud, nor does she allege that Edward misrepresented the values of the business or the real estate. See Sargent, 622 A.2d at 722-23 (former wife could maintain separate plenary action against ex-husband for fraud and misrepresentation as to value of marital estate). On the contrary, there is no evidence that Edward failed to disclose assets or misrepresented their value. Nor is there an allegation or evidence of active collusion between Edward and the attorney representing Barbara to deprive Barbara of her rightful share of marital property. Barbara's own evidence demonstrates that she was aware of all of the assets of the marriage and agreed on their division. A party is not entitled to relief from choices freely and deliberately made. 2 Field, McKusick & Wroth, Maine Civil Practice \\u00a7 60.11 at 77 (2d ed.1970). Although the court did not address the merits of the 60(b) motion, it could not have properly granted relief to Barbara in the circumstances of this case.\\nThe entry is:\\nJudgment affirmed.\\nWATHEN, C.J., GLASSMAN, and RUDMAN, JJ., concurring.\\n. M.R.Civ.P. 60(b) provides in pertinent part:\\nOn motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . or (6) any other reason justifying relief from the operation of the judgment.\\n. Edward appeared in the proceedings pro se.\\n. There was no year-round marital residence. The parties had resided with Barbara's mother for some time.\\n. The bank accounts had a value of approximately $20,000. The value of the business is not clear from the record. The summer cottage was assessed at $90,000 shortly after the judgment.\\n. Subsequent to the decision of the District Court on the motion for summary judgment, Barbara's attorney was reprimanded by a Panel of the Grievance Commission of the Board of Overseers of the Bar for representing both parties in the divorce action and failing to advise Barbara to hire her own attorney. See M.Bar R. 3.4(d). Barbara did not move to supplement the record in the Superior Court pursuant to M.R.Civ.P. 76F(b). The Superior Court granted Edward's motion to strike the copy of the Grievance Panel findings that Barbara had attached to her brief. We take judicial notice of the findings of the Grievance Panel. The misconduct found, however, would not justify relief from the divorce judgment under Rule 60(b).\\n. The parties have already engaged in discovery and depositions were taken. On appeal, Barbara does not contend there is additional evidence relating to the conduct of Edward or the attorney.\"}"
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+"{\"id\": \"7377683\", \"name\": \"ESTATE OF Marion LANGLEY\", \"name_abbreviation\": \"Estate of Langley\", \"decision_date\": \"1991-02-28\", \"docket_number\": \"\", \"first_page\": \"1270\", \"last_page\": \"1272\", \"citations\": \"586 A.2d 1270\", \"volume\": \"586\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:49:56.270796+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and BRODY, JJ.\", \"parties\": \"ESTATE OF Marion LANGLEY.\", \"head_matter\": \"ESTATE OF Marion LANGLEY.\\nSupreme Judicial Court of Maine.\\nSubmitted on Briefs Jan. 2, 1991.\\nDecided Feb. 28, 1991.\\nJames F. Molleur, Woodman & Edmands, Biddeford, for appellant.\\nErnest J. Babcock, Elizabeth Lovejoy, Friedman & Babcock, Portland, for appel-lee.\\nBefore McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and BRODY, JJ.\", \"word_count\": \"1005\", \"char_count\": \"6218\", \"text\": \"BRODY, Justice.\\nCecelia W. Morse appeals from an order entered by the Probate Court (York County, Brooks, J.) denying her petition for probate of a 1979 will executed by her mother, Marion Langley, and contesting the validity of Mrs. Langley's 1983 will which had been informally admitted to probate. Cecelia Morse contends that the Probate Court erred in concluding that she had not established undue influence by clear and convincing evidence. She also contends that the court erred in failing to consider certain deposition testimony in its decision to deny her petition. We affirm the order of the Probate Court.\\nMarion Langley and her husband, Maurice, owned real property in the town of Eliot. In 1979, soon after her husband's death, Mrs. Langley executed a will dividing her estate evenly between her daughter, Cecelia Morse, and her son, Ralph Langley. Two years later, Mrs. Langley decided to transfer all of her real property to Cecelia and Ralph by quitclaim deed, apparently with the understanding that she would continue to control the property through them. Over time, Mrs. Langley became dissatisfied with the way Ralph and Cecelia were handling her property and demanded that all of the property be transferred back. In January 1983, Ralph and Cecelia executed a deed effecting the transfer of property back to Mrs. Langley. In June, 1983, Mrs. Langley executed a new will leaving Ralph her entire estate except for $100 given to Cecelia. The will clearly states that at the time she executed the will Mrs. Langley was fully aware of the unequal distribution of property between Ralph and Cecelia and that she did this intentionally.\\nRalph filed an application for informal probate of his mother's 1983 will and several days later, the will was admitted to probate by the register of probate on an informal basis. Cecelia contested the 1983 will by filing a petition for formal probate of Mrs. Langley's 1979 will. Cecelia contends that the 1983 will is the product of undue influence and, therefore, invalid. The Probate Court held a hearing on Cecelia's petition and ultimately denied it.\\nCecelia filed an appeal to this court challenging the denial of her petition. First, she contends that the Probate Court's finding that the 1983 will is not the product of undue influence lacks the support of clear and convincing evidence. We disagree.\\nThe proponent of a will bears the burden of establishing by a preponderance of the evidence that the will was duly executed. Estate of Turf, 435 A.2d 1087, 1089 (Me.1981); 18-A M.R.S.A. \\u00a7 3-407 (1981). Once prima facie evidence of due execution is presented, the contestant bears the burden of proving that probate should not be ordered because of a \\\"lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation.\\\" 18-A M.R. S.A. \\u00a7 3-407 (1981). We have held that undue influence must be established by clear and convincing evidence. Estate of Dodge, 576 A.2d 755, 757 (Me.1990).\\nUndue influence in connection with the execution of a will means influence exerted at the time the will is made that amounts to moral coercion, destroys free agency or presents an opportunity that could not be resisted by the testator. Estate of Bridges, 565 A.2d 316, 317 (Me.1989). Undue influence may be proven by circumstantial evidence. Id. An inference of undue influence is permitted where a confidential relationship exists between the testator and the one who is asserted to have influenced her and all of the testator's property is unexpectedly transferred in a will to only one of several equally related persons. Id. Although proof of such circumstances permits the Probate Court to draw an inference, it does not raise a presumption of undue influence and more is required to establish that undue influence has occurred. Id. On appeal, the Probate Court's finding on the issue of undue influence will not be disturbed unless clearly erroneous. Estate of Dodge, 576 A.2d at 756.\\nCecelia contends that undue influence may be inferred from the relationship that existed between Ralph and Mrs. Langley at the time the 1983 will was executed and the fact that the will transfers all of Mrs. Langley's property to Ralph, leaving Cecelia with nothing but $100. Cecelia further contends that she presented clear and convincing evidence of undue influence by her testimony that Ralph intentionally used a series of family disputes to drive a wedge between Cecelia and Mrs. Langley and cause Mrs. Langley to blame Cecelia for the family's problems. The Probate Court considered all of Cecelia's evidence but concluded that she had not established undue influence. The court noted that, taken as a whole, the evidence produced at trial indicates that Cecelia's disinheritance cannot be attributed to influence by Ralph any more than it can be attributed to Cecelia's failure to reconcile with her mother during the five years of estrangement preceding Mrs. Langley's death. Our review of the record reveals no evidence that would compel a different conclusion. Cecelia has failed to present clear and convincing evidence of undue influence.\\nCecelia also contends that the Probate Court committed reversible error by failing to consider testimony contained in two depositions. We find that although the court did err in failing to consider the deposition testimony, the error was harmless. Our review of the deposition testimony indicates that it is highly probable that the error did not affect the judgment. State v. True, 438 A.2d 460, 467 (Me.1981).\\nThe entry is:\\nOrder affirmed.\\nAll concurring.\\n. The depositions at issue were taken several days prior to the hearing on Cecelia's petition but the transcripts were not available until after the court entered its order denying the petition. The parties and the court had agreed, however, that the deposition testimony would be admitted as evidence.\"}"
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+"{\"id\": \"7863126\", \"name\": \"OPINION OF THE JUSTICES of the Supreme Judicial Court Given Under the Provisions of Section 3 of Article VI of the Constitution\", \"name_abbreviation\": \"Opinion of the Justices of the Supreme Judicial Court Given Under the Provisions of Section 3 of Article VI of the Constitution\", \"decision_date\": \"1996-04-03\", \"docket_number\": \"\", \"first_page\": \"693\", \"last_page\": \"699\", \"citations\": \"673 A.2d 693\", \"volume\": \"673\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:29:22.132111+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"OPINION OF THE JUSTICES of the Supreme Judicial Court Given Under the Provisions of Section 3 of Article VI of the Constitution.\", \"head_matter\": \"OPINION OF THE JUSTICES of the Supreme Judicial Court Given Under the Provisions of Section 3 of Article VI of the Constitution.\\nSupreme Judicial Court of Maine.\\nQuestions Propounded by the House of Representatives in a Communication Answered April 3, 1996.\", \"word_count\": \"3363\", \"char_count\": \"20597\", \"text\": \"STATE OP MAINE\\nIn House March 26, 1996\\nWHEREAS, it appears to the House of Representatives of the 117th Legislature that the following are important questions of law and that this is a solemn occasion; and\\nWHEREAS, the Constitution of Maine, Article VI, Section 3, provides for the Justices of the Supreme Judicial Court to render their opinion on important questions of law upon solemn occasions; and\\nWHEREAS, there is now before the 117th Legislature for its consideration Initiated Bill 6, Legislative Document Number 1827, \\\"An Act to Seek Congressional Term Limits\\\"; and\\nWHEREAS, the bill may have constitutional infirmities that can not be corrected by revision or amendment; and\\nWHEREAS, it is vital that the Legislature be informed as to the questions propounded in this order; now, therefore, be it\\nORDERED, that, in accordance with the provisions of the Constitution of Maine, the House of Representatives respectfully requests the Justices of the Supreme Judicial Court to give the House of Representatives their opinion on the following questions of law:\\nQuestion 1. If initiated bill 6 becomes law, would section 2 of the bill violate the constitutional principle that one Legislature may not bind future Legislatures?\\nQuestion 2. Is it within the constitutional authority of the Legislature of the State of Maine, or the electors of the State of Maine by means of initiated legislation, to direct the members of the State's congressional delegation, the Governor or members of the Maine Senate or Maine House of Representatives to use their powers to make application to the Congress of the United States for a Constitutional Convention, as proposed in sections 2, 3 and 4 of Initiated Bill 6?\\nQuestion 3. If the answer to question 1 is in the affirmative or the answer to question 2 is in the negative, must Initiated Bill 6 nevertheless be submitted in its current form to the voters at referendum pursuant to the Constitution of Maine, Article IV, Part Third, Section 18 if the Legislature fads to enact it in its current form?\\nPage 1-LR3183(1)\\nQuestion 4. In view of the fact that there is some concern that the question that appeared on the printed petition for Initiated Bill 6 does not accurately describe the content of Initiated Bill 6, particularly that portion of the initiative that directs the Legislature, the Governor and the State's congressional delegation to call for a Constitutional Convention, is it within the authority of the Legislature, pursuant to the Maine Constitution, Article IV, Part Third, Section 20, to reform the ballot question prepared by the Secretary of State for Initiated Bill 6?\\nSPONSORED BY: /s/ Harry L. True\\n(Representative TRUE)\\nTOWN: Fryeburg\\nPage 2-LR3183G)\\nTo the Honorable House of Representatives of the State of Maine:\\nIn compliance with the provisions of section 3 of article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following responses to the questions propounded by the House of Representatives on March 26,1996.\\nWe begin with a reminder that the opinions propounded pursuant to section 3, article VI of the Constitution of Maine are not binding decisions of the Supreme Judicial Court. They are the opinions of the individual Justices, rendered within a tight time schedule and without the benefit of full factual development, oral argument, or full briefing by all interested parties. In the present case, the opinion is requested in the waning days of the legislative session, and extensive study and analysis is not possible. The presented questions are complex and probe to the very heart of our state and federal forms of government. Notwithstanding these limitations, we offer the following advice in furtherance of our constitutional obligation.\\nQuestion 1 asks, \\\"If initiated bill 6 becomes law, would section 2 of the bill violate the constitutional principle that one Legislature may not bind future Legislatures?\\\" As noted by the Attorney General in his brief to the Justices, the question really asks, \\\"If this bill becomes law and subsequent Legislatures do not follow it, will the law be enforceable by the courts?\\\" The answer to this question is clearly in the negative. This bill, if enacted, will be on equal footing with every other law passed by the Legislature: subsequent sessions of the Legislature may choose to follow it, or they may choose to repeal it, either expressly or by implication. See Manigault v. Springs, 199 U.S. 473, 487, 26 S.Ct. 127, 133, 50 L.Ed. 274 (1905) (bill requiring Legislature to give direct notice to all interested parties and to publish the notice in a major newspaper, prior to the granting of a private right or privilege by special bill, could be \\\"repealed, amended, or disregarded by the legislature\\\" and was \\\"not binding upon any subsequent legislature.\\\"), cited by Sierra Club v. Froehlke, 816 F.2d 205, 215 (5th Cir.1987) (\\\"courts cannot set aside legislation because it is inconsistent with prior legislation\\\"), cited also in Peterson v. United States Department of the Interior, 899 F.2d 799, 808 (9th Cir.1990) (upholding Congressional alteration of a previously enacted government contract, recognizing \\\"the fundamental principle that Congress always has the power to amend, repeal or ignore legislation passed by earlier congresses\\\"). To read this statute as binding upon future Legislatures is to read it as an attempt to amend the Constitution of the State of Maine through improper means. Such a bill would not be enforced by the courts against future Legislatures.\\nWe now address Question Two, which asks:\\nIs it within the constitutional authority of the Legislature of the State of Maine, or the electors of the State of Maine by means of the initiated legislation, to direct the members of the State's congressional delegation, the Governor or members of the Maine Senate or Maine House of Representatives to use their powers to make application to the Congress of the United States for a Constitutional Convention, as proposed in sections 2, 3 and 4 of Initiated Bffl 6?\\nThe question actually poses six different issues of law: 1) may the Legislature direct the activities of the congressional delegation in this manner; 2) may the electors direct the activities of the congressional delegation in this manner; 3) may the Legislature direct the activities of the Governor in this manner; 4) may the electors direct the activities of the Governor in this manner; 5) may the Legislature direct the activities of the Legislature in this manner; and 6) may the electors direct the activities of the Legislature in this manner?\\nIssues one and two of Question Two are clearly answered in the negative. Although they may certainly petition or urge, neither the electors of the State of Maine nor the Legislature of the State of Maine may control the state's delegates to the United States Congress in the performance of their congressional duties. Such an exercise of control would violate the essence of federalism. Congressional delegates, although elected by the states and commonly viewed as representatives of the interests of their home states, act on behalf of the entire nation. The United States Supreme Court recently held as unconstitutional a state's attempt to directly limit the term limits of its own congressional delegates, stating:\\nIn [our] National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation.... [E]ach Member of Congress is 'an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states.... Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.' Representatives and Senators are as much officers of the entire union as is the President.\\nU.S. Term Limits, Inc. v. Thornton, \\u2014 U.S. -, -, 115 S.Ct. 1842, 1855, 131 L.Ed.2d 881 (1994) (citations omitted).\\nIssues three and four of Question Two ask whether the Legislature or the electors may constitutionally direct that\\n[t]he Governor . use all of the Governor's delegated powers to aid the Legislature in making the application specified in Sec. 2 to the Congress of the United States under Article V of the United States Constitution.\\nThe Governor of the State of Maine (or of any state in the nation) has no delegated powers under Article V of the United States Constitution. Thus, the proposed initiative, by requiring the Governor to \\\"use all of [his] delegated powers\\\" to promote the proposed amendment, fails to indicate any specific duties imposed upon the Governor. As a result, it is our opinion that Section 3 is merely precatory language, having the effect of a request, rather than a directive, to the Governor.\\nBecause Question Two is stated in the present tense, issue five of Question Two asks only whether the current Legislature of Maine can order itself to make an application to the United States Congress for a constitutional convention? We stated in our response to Question One that the current Legislature cannot bind future Legislatures to obey the directives of this proposed legislation. It is clear, however, that the current Legislature may bind itself. By enacting this law by simple majority, the Legislature would bind itself to make an application to Congress for a constitutional convention in the time remaining, if any, of the legislative session. The Legislature could also vote directly in favor of an application to Congress for a constitutional convention. Although Section 2 of the proposed bill would be proce durally awkward, it is not constitutionally prohibited.\\nIssue six of Question Two asks whether the electors of the State of Maine may direct the Legislature of the State of Maine to make an application to the United States Congress for a constitutional convention? Our answer to Question One, that the present Legislature cannot bind future Legislatures without passing a constitutional amendment, applies equally to the electors: the initiative, if passed, cannot be binding upon future sessions of the Legislature. In contrast to our response to issue five, however, we are of the opinion that the electors are also unable to bind the current Legislature in this manner. The provision for amending the United States constitution is stated as follows:\\nThe Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress....\\nU.S. Const, art. V (1985). Thus, while article V contemplates ratification of amendments either by the legislatures of the states or by popular vote via Conventions, the article specifically. reserves the power to propose amendments to Congress and the state legislatures. Although they may petition or urge the Legislature to do so, it is not within the power of the electors to propose a constitutional amendment. The proposed initiative, if enacted by a referendum vote, would allow the electors to do indirectly that which they are forbidden to do directly. This aspect of the proposed initiative does not conform to the clearly stated procedural requirements of article V and would not appear to be constitutional.\\nQuestion Three essentially asks, must the Legislature submit an initiated bill without any amendment to the voters at referendum, notwithstanding the fact that the bill is unconstitutional as written? The answer is clearly in the affirmative. The Maine Constitution provides that\\nThe [initiated bill] thus proposed, unless enacted without changed by the Legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the Legislature, and in such manner that the people can choose between the competing measures or reject both.\\nMe. Const, art. IV, pt. 3, \\u00a7 18, els. 2 (1985). The word shall is a mandatory directive to submit the question to referendum. The clause contains no exceptions to such a directive. See Wagner v. Secretary of State, 663 A.2d 564, 566 n. 3 (Me.1995) (stating, prior to addressing the substantive constitutional challenges to a proposed initiative, that \\\"[s]ince the Legislature has not enacted the initiative without change, it must be referred to the electors.\\\"). See also, Opinion of the Justices, 623 A.2d 1258, 1264 (Me.1993) (answer of Glassman and Clifford, JJ.) (\\\"Me. Const, art. IV, pt. 3, \\u00a7 18 requires that the initiated bill, [if not enacted by the Legislature], be submitted to the voters in its current form regardless of our opinion as to its constitutional validity.\\\"), citing Farris ex rel. Dorsky v. Goss, 143 Me. 227, 60 A.2d 908, 911 (1948) (\\\"The right of the people . to enact Legislation . is an absolute one and cannot be abridged directly or indirectly by any action of the legislature\\\").\\nQuestion Four asks:\\nIn view of the fact that there is some concern that the question that appeared on the printed petition for Initiated Bill 6 does not accurately describe the content of Initiated Bill 6, particularly that portion of the initiative that directs the Legislature, the Governor and the State's congressional delegation to call for a Constitutional Convention, is it within the authority of the Legislature, pursuant to the Maine Constitution, Article IV, Part Third, Section 20, to reform the ballot question prepared by the Secretary of State for Initiated Bill 6?\\nThe Maine Constitution provides that\\nThe full text of a measure submitted to a vote of the people under the provisions of the Constitution need not be printed on the official ballots, but, until otherwise provided by the Legislature, the Secretary of State shall prepare the ballots in such a form as to present the question or questions concisely and intelligibly.\\nMe. Const, art. IV, pt. 8, \\u00a7 20 (1985) (emphasis added). We read this sentence as a grant to the Legislature of the power to designate which official(s) will be responsible for drafting the ballot question on a citizen initiative. The Legislature has exercised that power by providing that the Secretary of State shall draft the ballot question, and that he will do so at the time he certifies the initiative petition for circulation. 21-A M.R.S.A. Section 901(4) (1993 & Supp.1995). This statute may be altered or repealed by the Legislature at any time, and the authority to draft the ballot question may be vested in another named official.\\nIt is clear that the Maine Constitution preserves the option of the Legislature to delegate the authority to draft ballot questions to any named officer, and perhaps even to reserve the power unto itself. It is doubtful, however, whether the Legislature may interfere with the exercise of that delegated authority with respect to the drafting of this specific initiative ballot question, which has proceeded so far along in the initiative process. Although the constitution does not explicitly limit the Legislature's power in this manner, a finding of any additional implied powers under this clause would be contrary to the spirit of the citizen initiative provision. See, e.g., Op.Me.Att'y Gen. 86-9, 1986 WL 288888 (\\\"[T]he entire initiative process is designed as a means of overcoming a Legislature that refuses to enact the measure itself.\\\") Accordingly, we answer Question Four in the negative.\\nDated at Portland, Maine, this third day of April, 1996.\\nRespectfully submitted:\\n/s/ Daniel E. Wathen Daniel E. Wathen Chief Justice\\n/s/ David G. Roberts David G. Roberts\\n/s/ Paul L. Rudman Paul L. Rudman\\n/s/ Howard H. Dana, Jr. Howard H. Dana, Jr. Associate Justices\\nANSWER OF JUSTICE GLASSMAN, JUSTICE CLIFFORD AND JUSTICE LIPEZ\\nTo the Honorable House of Representatives of the State of Maine:\\nWe do not concur in the opinion of our colleagues on the Court and pursuant to article VI, section 3 of the Maine Constitution, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit our separate response to the questions propounded by the House of Representatives on March 26,1996.\\nWe first address Question Three that essentially asks whether L.D. 1827 must be submitted to the voters even if it is the opinion of the Justices that the bill is unconstitutional. We agree with our colleagues that the question must be answered in the affirmative. Me. Const. art. IV, pt. 3, \\u00a7 18 (Supp.1995) requires that the initiated bill be submitted to the voters regardless of our opinion as to its constitutional validity. The right of the people to enact legislation is absolute and cannot be abridged by any direct or indirect action of the Legislature. Farris ex rel. Dorsky v. Goss, 143 Me. 227, 231, 60 A.2d 908 (1948). We also agree with our colleagues that Question Four should be answered in the negative. Finally, we also agree with our colleagues that, in light of the fact that the request for an advisory opinion is made in the closing days of the legislative session, \\\"extensive study and analysis [of the issues] is not possible.\\\"\\nThe answer to Question Three prompts us to reach a different conclusion from our colleagues as to Questions One and Two. We believe that Questions One and Two do not constitute important questions of law upon a solemn occasion requiring an advisory opinion and, therefore, decline to answer them. Although the Legislature has the option of enacting L.D. 1827 in its current form, the initiated measure cannot be amended nor can it be kept from the voter referendum. The Legislature may submit a competing mea sure to voter referendum along with L.D. 1827, pursuant to Me. Const, art. IV, pt. 3, \\u00a7 18, but there is nothing before us to indicate that a competing measure free from the same constitutional questions is being considered. Opinion of the Justices, 623 A.2d 1258, 1264 (Me.1993).\\n\\\"The matters with regard to which advisory opinions are proper are those of instant, not past nor future, concern; things of live gravity.\\\" Opinion of the Justices, 134 Me. 510, 513, 191 A. 487 (1936). Only recently the Law Court held that whether a proposed initiative would be ineffective as an attempt to limit future legislative action is a question not ripe for judicial review prior to approval by the voters. Wagner v. Secretary of State, 663 A.2d 564, 567 (Me.1995). Ripeness concerns the fitness of an issue for judicial decision and the hardship to the parties of withholding court consideration. Maine Pub. Serv. Co. v. Public Util. Comm'n, 524 A.2d 1222, 1226 (Me.1987). Like the proposed initiative at issue in Wagner, this measure may never become effective, and we thus are not faced with a concrete, certain, or immediate legal problem. Except in rare circumstances, not present here, we believe \\\"it is inappropriate to address the constitutionality of an initiative measure before it has been presented to the voters,\\\" Opinion of the Justices, 623 A.2d at 1264, and prefer to allow the electorate to express its view prior to rendering our opinion on the measure.\\nWe believe we should not interfere with or in any way handicap the people's right of franchise by offering an opinion on the enforceability of an initiated measure before the electorate has expressed its view.\\nAccordingly, we answer Question Three in the affirmative and Question Four in the negative. We respectfully decline, however, to answer Questions One and Two.\\nRespectfully, submitted,\\n/s/ Caroline D. Glassman Caroline D. Glassman\\n/s/ Robert W. Clifford Robert W. Clifford\\n/s/ Remit V. Lipez Kermit V. Lipez Associate Justices\\n. We have previously opined that questions posed by the Legislature regarding the constitutionality of a proposed initiative present us with \\\"important questions of law, . upon [a] solemn occasion[]\\\" and we will therefore address the merits of the Legislature's questions. Me. Const. art. VI, \\u00a7 3 (1985). See, Opinion of the Justices, 623 A.2d 1258 (Me.1993).\"}"
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+"{\"id\": \"7870927\", \"name\": \"STATE of Maine v. David L. POULIN\", \"name_abbreviation\": \"State v. Poulin\", \"decision_date\": \"1988-03-04\", \"docket_number\": \"\", \"first_page\": \"278\", \"last_page\": \"279\", \"citations\": \"538 A.2d 278\", \"volume\": \"538\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T02:28:29.417395+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.\", \"parties\": \"STATE of Maine v. David L. POULIN.\", \"head_matter\": \"STATE of Maine v. David L. POULIN.\\nSupreme Judicial Court of Maine.\\nArgued Jan. 5, 1988.\\nDecided March 4, 1988.\\nDavid W. Crook (orally), Dist. Atty., Augusta, for plaintiff.\\nJohn D. Pelletier (orally), Augusta, for defendant.\\nBefore McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.\", \"word_count\": \"718\", \"char_count\": \"4377\", \"text\": \"WATHEN, Justice.\\nDefendant David L. Poulin appeals from a conviction of gross sexual misconduct (17-A M.R.S.A. \\u00a7 253(1)(A) (Supp.1987)) following a jury trial in the Superior Court (Kennebec County). As a result of a single incident of sexual intercourse between defendant and complainant, defendant was tried and convicted of both rape (17-A M.R. S.A. \\u00a7 252(1)(B) (Supp.1987)) and gross sexual misconduct. On appeal, defendant contends that the conviction of gross sexual misconduct should be vacated as violative of the prohibition against double jeopardy and requests resentencing on the single conviction of rape. We agree and vacate the judgment of conviction of gross sexual misconduct.\\nThe Maine Constitution provides that \\\"[n]o person, for the same offense, shall be twice put in jeopardy of life or limb.\\\" Me. Const, art. I, \\u00a7 8. It is well established, however, that \\\"the same facts may constitute a violation of several criminal statutes, and that each offense may be punished separately.\\\" Newell v. State, 371 A.2d 118, 119 (Me.1977). \\\"[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.\\\" Id. (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)).\\nApplying the Newell test, we find that the particular variants of rape and gross sexual misconduct charged in this case, are the same offense for purposes of double jeopardy. \\\"A person is guilty of rape if he engages in sexual intercourse . [w]ith' any person and the person submits as a result of compulsion_\\\" 17-A M.R.S.A. \\u00a7 252(1)(B) (Supp.1987). \\\"Sexual intercourse\\\" is defined in 17-A M.R.S.A. \\u00a7 251(1)(B) (1983) as \\\"any penetration of the female sex organ by the male sex organ.\\\" \\\"A person is guilty of gross sexual misconduct . [i]f he engages in a sexual act with another person and . [t]he other person submits as a result of compulsion .\\\" 17-A M.R.S.A. \\u00a7 253(1)(A) (Supp.1987). \\\"Sexual act\\\" is defined in 17-A M.R.S.A. \\u00a7 251(1)(C)(1) (Supp.1987) as \\\"[a]ny act between 2 persons involving . direct physical contact between the genitals of one and the genitals of the other.\\\"\\nIn the present case, there was no testimony of separate incidents of sexual activity. The evidence supporting both charges consisted solely of the complainant's assertion that \\\"[h]e put his penis in my vagina.\\\" Accordingly, the charge of gross sexual misconduct did not involve the proof of any fact beyond the facts required for the charge of rape. Both charges require proof of compulsion. Although rape requires proof of the additional element of penetration, the genital-to-genital touching involved in the proof of the sexual act is a necessary part of the penetration. Therefore, the proof of gross sexual misconduct involved no facts other than those necessary to prove rape. In this particular case, rape and gross sexual misconduct constitute the same offense for purposes of double jeopardy. We therefore vacate the judgment of conviction of gross sexual misconduct. Because the sentences for both convictions are so interrelated, we vacate the sentence on the rape conviction and remand to the Superior Court for resentencing. See State v. Bunker, 436 A.2d 413, 419 (Me.1981).\\nThe entry is:\\nJudgment of conviction of gross sexual misconduct vacated.\\nSentence on conviction of rape vacated and remanded to Superior Court for resen-tencing.\\nAll concurring.\\n. The Constitution of the United States similarly provides in pertinent part that \\\"nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.\\\" U.S. Const, amend. V.\\n. Both rape and gross sexual misconduct may be committed on alternative grounds. When a statute specifies two independent types of an offense, each type is viewed separately. State v. Carmichael, 405 A.2d 732, 735 (Me.1979). Our finding is limited to the grounds applicable to the facts of this case.\"}"
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+"{\"id\": \"7889343\", \"name\": \"Albert FRYE v. Leon PLANCHE, et al.\", \"name_abbreviation\": \"Frye v. Planche\", \"decision_date\": \"1989-01-12\", \"docket_number\": \"\", \"first_page\": \"550\", \"last_page\": \"550\", \"citations\": \"552 A.2d 550\", \"volume\": \"552\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T20:30:06.019176+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and HORNBY, JJ.\", \"parties\": \"Albert FRYE v. Leon PLANCHE, et al.\", \"head_matter\": \"Albert FRYE v. Leon PLANCHE, et al.\\nSupreme Judicial Court of Maine.\\nArgued Jan. 10, 1989.\\nDecided Jan. 12, 1989.\\nGrover Alexander (orally), Gray, for plaintiff.\\nWilliam Kayatta, Jr. (orally), Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, for defendants.\\nBefore McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and HORNBY, JJ.\", \"word_count\": \"128\", \"char_count\": \"871\", \"text\": \"MEMORANDUM OF DECISION.\\nContrary to Albert Frye's contention, the Superior Court (Cumberland County, Fritzsche, J.) properly granted summary judgment on Frye's complaint to the defendants, Leone H. Planche, Mark Austin, Thomas Burgess, Milton Calder, Joseph Charron, Ronald Legere and Thomas Ryan, on the ground that Frye failed to serve notice as required by 14 M.R.S.A. \\u00a7 8107(4) (Supp.1988). See Darling v. Augusta Mental Health Institute, 535 A.2d 421, 430 (Me.1987).\\nThe entry is:\\nJudgment affirmed.\\nAll concurring.\"}"
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+"{\"id\": \"7908363\", \"name\": \"DIRECTOR OF BUREAU OF LABOR STANDARDS, et al. v. FORT HALIFAX PACKING COMPANY\", \"name_abbreviation\": \"Director of Bureau of Labor Standards v. Fort Halifax Packing Co.\", \"decision_date\": \"1986-06-02\", \"docket_number\": \"\", \"first_page\": \"1054\", \"last_page\": \"1064\", \"citations\": \"510 A.2d 1054\", \"volume\": \"510\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:54:41.578868+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C.J., and NICHOLS, ROBERTS, GLASSMAN and SCOLNIK, JJ.\", \"parties\": \"DIRECTOR OF BUREAU OF LABOR STANDARDS, et al. v. FORT HALIFAX PACKING COMPANY.\", \"head_matter\": \"DIRECTOR OF BUREAU OF LABOR STANDARDS, et al. v. FORT HALIFAX PACKING COMPANY.\\nSupreme Judicial Court of Maine.\\nArgued Nov. 15, 1985.\\nDecided June 2, 1986.\\nJames E. Tierney, Atty. Gen., William H. Laubenstein, III, Thomas D. Warren (orally), Asst. Attys. Gen., Augusta, for Director of Bureau of Labor Standards.\\nMartha E. Geores, Lewiston, for Raymond Bourgoin.\\nCurtis, Thaxter, Lipez, Stevens, Broder & Micoleau, Sidney St. F. Thaxter, II (orally), Portland, for Fort Halifax Packing.\\nPerkins, Thompson, Hinckley & Keddy, Linda D. McGill, Richard G. Moon, John H. Rich, III, Portland, for amici curiae, Chamber of Commerce of the U.S. of America and Maine Chamber of Commerce and Industry.\\nBefore McKUSICK, C.J., and NICHOLS, ROBERTS, GLASSMAN and SCOLNIK, JJ.\", \"word_count\": \"5538\", \"char_count\": \"34400\", \"text\": \"ROBERTS, Justice.\\nFort Halifax Packing Company (hereafter Halifax) appeals from a judgment rendered in the Superior Court, Kennebec County, granting severance pay in varying amounts to over 80 of its employees pursuant to 26 M.R.S.A. \\u00a7 625-B (Pamph.1985). On appeal Halifax claims that the Maine severance pay statute is preempted by both the Employee Retirement Income Security Act of 1974, 29 U.S.C. \\u00a7 1001 et seq. (1985) (hereafter ERISA) and the National Labor Relations Act, 29 U.S.C. \\u00a7 157 and 158 (1985) (hereafter NLRA). Halifax also raises issues concerning the constitutionality of the severance pay statute, the propriety of the trial justice's denial of a jury trial, the appropriateness of several findings of fact and the necessity of arbitration. Although we modify the trial justice's calculation of severance pay owing to ten employees, we affirm the judgment of the Superior Court in all other respects.\\nI. Facts & Procedural Background\\nHalifax began packaging and processing poultry in Winslow in 1972 when it purchased the assets of Ralston Purina, a corporation that had conducted similar operations on the site since 1961. On May 23, 1981 Halifax ceased processing operations at the Winslow plant and laid off all of its workforce except several maintenance men and clerical employees.\\nAt the time of the closing, Halifax had over 100 individuals on the payroll. These employees worked (1) directly in the processing plant, (2) on \\\"live-haul\\\" duty, (3) as supervisory or administrative employees, or (4) in one of the Corbett Brothers feed mills. Many of the employees who worked directly in the plant were represented by Local 385 of the Amalgamated Meat Cutters & Butcher Workmen of North America (hereafter Local 385) and had a contract with Fort Halifax. This contract had effective dates from June 2, 1979 to June 2, 1982 and contained no provision for severance pay. In fact, at the time of the closing Halifax had no contract or agreement regarding severance pay that governed any of the employees delineated above.\\nFollowing the closing, Halifax met with officials of the State of Maine and union representatives to discuss the possibility of reopening the plant. Specifically in the fall of 1981 Halifax suggested that reopening was possible and sought concessions from Local 385 in the form of amendments to the union contract. The amendments, inter alia, sought to add a severance pay provision to the contract that would shield Halifax from severance pay liability for union members under 26 M.R.S.A. \\u00a7 625-B in the event that the plant reopened. Although Local 385 signed the agreement on November 1, 1981, Halifax never resumed operations before the expiration date of the proposed amendments, June 2, 1984.\\nPrior to the signing of the amendments, on October 30, 1981 eleven employees of the plant filed suit against Halifax in Superior Court seeking severance pay pursuant to 26 M.R.S.A. \\u00a7 625-B. A few days later the Director of the Bureau of Labor Standards also commenced an action to enforce the provisions of Maine's severance pay law as to all Halifax employees pursuant to 26 M.R.S.A. \\u00a7 625-B(5). At a trial held in the Superior Court without a jury, the trial justice found that Halifax was liable for severance pay and provided a precise computation of the amounts owing to eligible individuals.\\nII. ERISA Preemption\\nAs its first contention on appeal, Halifax in conjunction with amici, argues that it is not liable for severance pay under 26 M.R.S.A. \\u00a7 625-B because that statute is preempted by ERISA. For the reasons set forth below, we disagree. It is through operation of the supremacy clause of the United States Constitution that federal law preempts conflicting state law. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-211, 6 L.Ed. 23 (1824). A conflict warranting preemption may be direct in that the state regulation obviously contradicts federal regulation, or it may arise from congressional intent, either express or implied, to occupy a particular area. McDermott v. State of Wisconsin, 228 U.S. 115, 132-134, 33 S.Ct. 431, 435-436, 57 L.Ed. 754 (1913); Metropolitan Life Ins. Co. v. Massachusetts, \\u2014 U.S. -, 105 S.Ct. 2380, 2393, 85 L.Ed.2d 728 (1985) (citing Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978)). Preemption, however, is not a favored concept, and federal regulation will be deemed to be preemptive of state regulatory powers only if grounded in \\\"persuasive reasons \\u2014 either the nature of the regulated subject matter permits no other conclusion or that Congress has unmistakably 'so ordained.' \\\" Alessi v. Raybestos-Manhattan, Inc. 451 U.S. 504, 522, 101 S.Ct. 1895, 1905, 68 L.Ed.2d 402 (1981) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963)).\\nAs the preamble to the Act indicates, ERISA was enacted in 1974 for the purpose of regulating private employee benefit plans established and maintained by employers and employee organizations. 29 U.S.C. \\u00a7 1001(a) (1985). See also Hutchinson & Ifshin, Federal Preemption of State Law Under the Employee Retirement Income Security Act of 1974, 46 U.ChLL. Rev. 23 (1978). Prior to ERISA's passage regulation of privately created employee benefit plans was generally confined to state laws that were not uniquely adapted to protect the participants of such plans. Hutchison, 46 U.Chi.L.Rev. at 25. Growth in size of employee benefit plans and a concomitant increase in loss of benefits by employees compelled Congress to establish uniform disclosure, reporting, vesting and funding standards meant to ensure that employees would not lose benefits in plans created by employers or employee organizations. See generally H.R.Rep. No. 533, 93d Cong., 2d Sess. (1973), U.S.Code Cong. & Admin.News 1974, p. 4639. Essentially, ERISA is concerned with regulating two types of privately created employee benefit plans \\u2014 pension plans that provide for retirement or deferred income (29 U.S.C. \\u00a7 1002(2)) and welfare benefit plans that provide for medical, sickness, accident and other non-pension fringe benefits (29 U.S.C. \\u00a7 1002(1)). The Act specifically states that its requirements are meant to cover those plans created by employers and employee organizations. 29 U.S.C. \\u00a7 1003(a).\\nWith an eye towards making regulation of private employee benefit plans exclusively a federal concern, ERISA also contains an express preemption provision which provides:\\nExcept as provided in subsection (6) of this section, the provisions of this title and title IV shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title....\\n29 U.S.C. \\u00a7 1144. Thus, in this case we must address the question of whether in light of the ERISA's purposes and the existence of an express preemption provision Congress has \\\"unmistakably . ordained\\\" preemption of Maine's severance pay law.\\nIn Shaw v. Delta Airlines, 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), the Supreme Court gave a rather broad con struction to the \\\"relate to\\\" language in ERISA's preemption provision. In Shaw the Court held that Section 1144 not only preempts state laws dealing with the subject matters covered by ERISA, e.g. reporting, disclosure, and fiduciary responsibility, but also those state laws that have \\\"a connection with or reference to\\\" employee benefits plans covered by the statute. Id. at 97, 98. Inasmuch as Maine's severance pay law does not attempt to regulate the reporting, disclosure, and fiduciary subjects covered by ERISA, our statute will be preempted only if it can be said to have \\\"a connection with or reference to\\\" employee benefit plans that are within ERISA's coverage.\\nOur inquiry in this regard is made simple by the fact that the Maine severance pay statute does not affect employee benefit plans that are within ERISA's regulatory reach. Title 29 U.S.C. \\u00a7 1003(a) and 1002(1) make it clear that the employee benefit plans intended for coverage under ERISA are those created by employers or employee organizations. Thus, the preemptive effect of section 1144 is on those State laws that affect plans created by either of these private parties. In this case the severance pay liability created by Section 625-B is not a plan created by an employer or employee organization. Instead, it is a state created fringe benefit passed within the police power for the purpose of dealing with the economic dislocation that accompanies the shut-down of large establishments. Inasmuch as Section 625-B does not implicate a plan created by an employer or employee organization, it cannot be said to be preempted by ERISA.\\nMoreover, Section 625-B contains an explicit provision that totally eliminates state regulation if a plan covering severance pay is created by an employer or employee organization. Specifically, Section 625-B(3)(B) provides: \\\"There shall be no liability for severance pay to an eligible employee if: . [t]he employee is covered by an express contract providing for severance pay,.... \\\" Such a contractual arrangement presumably would constitute a plan created by an employer or employee organization for purposes of ERISA. It would be subject to the full panoply of requirements created in that statute and would then be immune from state regulation. Because Maine's severance pay statute is operative only when a privately created employee benefit plan covering severance pay is not in existence, it does not have a \\\"connection with or reference to\\\" an employee benefit plan covered by ERISA and is thus not preempted by Section 1144.\\nIII. NLRA Preemption\\nUnlike ERISA, the NLRA does not contain an explicit preemption provision. As a result, the NLRA's preemptive effect must be discerned by implication from the policies of the act. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Halifax and amici argue that because the Maine severance pay statute mandates the substantive terms of its collective bargaining agree ment, this state statute is preempted by the NLRA.\\nThe NLRA was enacted in 1935 for the purpose of addressing industrial strife by encouraging collective bargaining. 29 U.S.C. \\u00a7 151. Aimed at redressing \\\"the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate association,\\\" the NLRA's goal was to restore equality of bargaining power in the hope that depressed wage rates would thereby be resolved. 29 U.S.C. \\u00a7 151. The act protects employees' rights to organize and to engage in concerted action in Section 7 and defines unfair labor practices by employers and labor organization in Section 8. 29 U.S.C. \\u00a7 157, 159. As the Supreme Court noted in Metropolitan Life Insurance Co. v. Massachusetts, \\u2014 U.S. -, 105 S.Ct. 2380, 2396, 85 L.Ed.2d 728 (1985), \\\"The NLRA is concerned primarily with establishing an equitable process for determining terms and conditions of employment, and not with particular substantive terms of the bargain that is struck when the parties are negotiating from relatively equal positions.\\\" (Emphasis added.)\\nGrounding its decisions in the policies of the NLRA, the Supreme Court has discerned two different principles of preemption that flow from the act. The first is based on implied congressional intent to leave certain conduct that is neither protected nor prohibited by either Section 7 or 8 of the act unrestricted from most forms of regulation by either the NLRB or the states. Teamsters Local 20 v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964); Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 140, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396 (1976). Cases dealing with this type of preemption . \\\"rely on the understanding that in providing in the NLRA a framework for self-organization and collective bargaining, Congress determined both how much the conduct of unions and employers should be regulated and how much should be left .\\\" to the free play of economic forces. Metropolitan Life, 105 S.Ct. at 2395.\\nDespite the seeming broad range of this branch of NLRA preemption, state laws of general application that impose minimal substantive requirements on contract terms are not preempted. As the Supreme Court noted in Metropolitan Life:\\nMost significantly, there is no suggestion in the legislative history of the Act that Congress intended to disturb the myriad of state laws then in existence that set minimum labor standards, but were unrelated in any way to the processes of bargaining or self-organization. To the contrary, we believe that Congress developed the framework for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and safety. The states traditionally have had great latitude under their police powers to legislate as \\\" 'to the protection of lives, limbs, health, comfort and quiet of all persons.' \\\" Slaughter-House Cases, 16 Wall. 36, 62 [21 L.Ed. 394] (1873) quoting Thorpe v. Rutland & Burlington R. Co., 27 Vt. 140, 149 (1855). \\\"States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety . are only a few examples.\\\" DeCanas v. Bica, 424 U.S. 351, 356 [96 S.Ct. 933, 936, 47 L.Ed.2d 43] (1976). State laws requiring that employers contribute to unemployment and workmen's compensation funds, laws prescribing mandatory state holidays and those dictating payment to employees for time spent at the polls or on jury duty all have withstood scrutiny. See e.g., Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469 (1952).\\nId. 105 S.Ct. at 2398.\\nMaine's severance pay law is a statute of general application that affects union and nonunion employees equally. Designed to protect Maine citizens from the economic dislocation that accompanies closing of large establishments, the severance pay statute is a legitimate exercise of the state's police power. Shapiro Bros. Shoe Co., Inc. v. Lewiston Auburn S.P.A., 320 A.2d 247, 254 (Me.1974); State v. Union Oil Co of Maine, 151 Me. 438, 120 A.2d 708 (1956). The statute, in fact, has a very limited impact on the collective bargaining process inasmuch as it does not ever apply when the parties have reached an agreement on the subject of severance pay via an express contract. Although Section 625-B does affect the collective bargaining relationship by encouraging employers to either agree to some form of severance pay contract or face liability under the act, it does not limit the rights of self-organization or forms of collective bargaining protected by the NLRA and is not preempted by the act.\\nThe second line of preemption that can be discerned from Supreme Court cases interpreting the NLRA protects the primary jurisdiction of the NLRB to determine what kind of conduct is either prohibited or protected by the NLRA and was most thoroughly explored in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Under the Garmon rule, preemption of a state law must occur\\nwhen it is clear or may fairly be assumed that the activities which a state purports to regulate are protected by \\u00a7 7 of the National Labor Relations Act, or constitute an unfair labor practice under \\u00a7 8.\\nId. at 244, 79 S.Ct. at 779. Garmon preemption accomplishes Congress's purpose of creating an administrative agency in charge of creating detailed rules to implement the act, rather than having the act enforced and interpreted by the state or federal courts.\\nAs a result, state statutes that have been held to be preempted under Garmon involve state action that attempts to directly regulate conduct protected under Section 7 or prohibited under Section 8. Thus, in Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971) the Supreme Court held that a state court did not have jurisdiction of a claim filed against a union by an employee who was fired for failure to pay union dues because the union's conduct was covered by either Section 7 or 8 and thus subject to the jurisdiction of the NLRB.\\nConversely, other Supreme Court cases denying preemption often recognize the importance of the state interest involved and uphold the state activity. In Farmer v. United Brotherhood of Carpenters & Joiners of America, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), the Court held that the NLRA did not preempt the state tort action for intentional infliction of emotional distress arising in connection with a claim of employment discrimination by the union because the state had a substantial interest in protecting its citizens from the outrageous conduct alleged.\\nHalifax and amici contend that the Maine severance pay law regulates con duct protected by the NLRA by (1) imposing a different resolution to a bargaining impasse than is required by Section 8(d) and (2) interfering with the employer's right under section 7 to implement its last best offer unilaterally. Despite Halifax's attempt to characterize the severance pay statute as interfering with these employer rights and thus with the jurisdiction of the NLRB, its arguments on this score simply amount to a restatement of the position that Maine may not employ its police power to enact a law of general application that has an effect on the collective bargaining process. As such, Halifax's contentions do not even implicate Garmon-type preemption. Moreover, even if we were to decide that Section 625-B does interfere with the jurisdiction of the NLRB, the statute would be saved from preemption under the reasoning of Farmer set out above because it reflects the state's substantial interest in protecting Maine citizens from the economic dislocation that accompanies large-scale plant closings.\\nIV. Constitutional Challenge\\nHalifax also contends that the application of section 625-B in these circumstances will result in an unconstitutional impairment of contractual obligations and the imposition of liability without due process. Halifax apparently considers that the impact of the statute will impair the agreement between Halifax and its predecessor as well as the agreement between Halifax and its employees. First, Halifax has not identified any obligation between itself and its predecessor that will be impaired by the statute's operation. Second, the collective bargaining agreement governing Halifax's employees was executed in 1979, almost four years after the effective date of the statute. We have previously observed that \\\"the law in effect at the time of the execution of a contract becomes part of that contract.\\\" Portland Savings Bank v. Landry, 372 A.2d 573, 575 (Me.1977).\\nHalifax relies principally upon the decision of the Supreme Court in Allied Structural Steel v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978). Halifax asserts that the facts in Allied Structural Steel were remarkably similar to the facts in the case at bar. That assertion overlooks the fact that the Minnesota statute struck down in Allied Structural Steel was applied to a preexisting contract and may even have been aimed at a particular employer. See Energy Reserves Group v. Kansas Power and Light Co., 459 U.S. 400, 412, 103 S.Ct. 697, 704, 74 L.Ed.2d 569 n. 13 (1983). A careful reading of Allied Structural Steel reveals the significance of the temporal application of the Minnesota statute. The Court stated that a basic term of the contract was substantially modified retroactively and described the effect as a severe disruption of contractual obligations. Allied Structural Steel, 438 U.S. at 246, 47, 98 S.Ct. at 2723. Halifax, on the other hand, entered into its 1979 labor agreement with the severance pay statute already on the books. Thus, Halifax fails to get across the threshold inquiry of whether the state law has operated to impair substantially a contractual relationship. Energy Reserves, 459 U.S. at 411, 103 S.Ct. at 704.\\nFinally, Halifax claims that the inclusion of pre-1975 periods of employment in the computation of severance pay constitutes an unconstitutional retroactive application of section 625-B. The Supreme Court has stated that a \\\"statute is not retroactive merely because it draws upon antecedent facts for its operation.\\\" Lewis v. Fidelity & Deposit Co. of Maryland, 292 U.S. 559, 571, 54 S.Ct. 848, 853, 78 L.Ed. 1425 (1934). The operative events in the application of the severance pay statute are the relocation or termination of a covered establishment rather than the previous periods of employment. Cf. Adams v. Buffalo Forge Co., 443 A.2d 932, 941-42 (Me.1982) (application of strict liability statute to products sold prior to the effective date of the act). The severance pay statute does not violate due process even though the legislation imposes liability based in part on past acts. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976).\\nV. Denial of Jury Trial\\nHalifax also argues that it was improperly denied a jury trial by the Superior Court. Article I, Section 20 of the Maine Constitution provides in part:\\nIn all civil suits, and in all controversies concerning property, the parties shall have a right to trial by jury, except in cases where it has heretofore been otherwise practiced....\\nIn State v. Anton, 463 A.2d 703, 708 (Me.1983), we held that this provision of the Maine Constitution preserves the right to a jury trial in civil actions where that right existed when the Maine Constitution was adopted. Specifically, in Anton the Court noted:\\nWhen a new type of statutory action is created, the existence of a constitutional right to jury trial under article I, section 20 depends on the nature of the action. (Citation omitted.) If it is a kind that was heard and determined by a common law court with a right to jury trial prior to adoption of the Maine Constitution, then article I, section 20 guarantees that right today.\\nId. at 709.\\nThus, Article I, Section 20 does not apply to suits in equity or to civil proceedings not tried by jury in the common law courts. Id. at 708. Although Halifax attempts to characterize the present action as an \\\"employment contract dispute,\\\" it is, instead, an action to recover severance pay under 26 M.R.S.A. \\u00a7 625-B. Inasmuch as Maine's severance pay statute creates a new cause of action unknown to the common law, no right to a jury trial existed for proceedings of this nature at the time the Maine Constitution was adopted. As a result, the trial justice correctly denied Halifax's request for a trial by jury.\\nYI. Findings of Fact\\nAlthough Halifax questions several factual findings made by the Superior Court, we determine that the court committed clear error only in its calculation of severance pay for 10 of the employees held to be eligible under Section 625-B. Halifax contends that one month's severance pay was already disbursed to these 10 individuals and that this payment should have been subtracted from the final figure calculated by the Superior Court. We agree.\\nPursuant to a March 28, 1985 Superior Court order, the parties to this action submitted a list of all Halifax employees and provided information regarding disputed severance pay. As part of complying with this order Halifax and the State agreed as follows:\\nThe parties agree that vacation pay (column YII of Attachment A) and severance pay (column VIII) must be subtracted from gross pay before obtaining the correct weekly average wage which is set forth in column XI.\\nThe list submitted discloses that column VIII contains a severance pay figure for 10 individuals. By agreeing that this figure termed \\\"severance pay\\\" should be subtracted from the \\\"gross pay\\\" column before average weekly wage is determined, the State, in effect, has admitted that these 10 employees were already paid one week's severance pay by Halifax. As a result, the Superior Court's calculation of severance pay for these 10 employees must be altered by subtracting the amount listed in column VIII from the gross severance pay due these employees.\\nVII. \\\"Live-Ha\\u00fal\\\" Employees\\nHalifax also challenges the Superior Court's legal conclusion that the \\\"live-haul\\\" employees were employed by a \\\"covered establishment\\\" for the purpose of Section 625-B. It is Halifax's contention that the \\\"covered establishment\\\" phrase applies only to those who work physically within a plant. As a result, Halifax seeks to have this Court reverse the trial justice with respect to his award of severance pay to \\\"live-haul\\\" employees.\\nAs was discussed above, Section 625-B requires that employers who terminate a \\\"covered establishment\\\" pay severance benefits to their employees. The term \\\"covered establishment\\\" moreover, is defined by the Act as \\\"any industrial or commercial facility or part thereof which employs or has employed at any time in the preceding 12-month period 100 or more persons.\\\" 26 M.R.S.A. \\u00a7 625-B(l)(A).\\nThe Halifax packaging and processing plant in Winslow fits squarely within the definition of \\\"covered establishment\\\" delineated above. The \\\"live-haul\\\" employees, moreover, were employed by this facility. Although most of their activity occurred outside the physical space of the plant, the following facts support the trial justice's ultimate conclusion that they were employees of a \\\"covered establishment\\\" for purposes of the Act: (1) the men were paid by Halifax, (2) their jobs were essential to Halifax's poultry processing operations, (3) \\\"live-haulers\\\" reported to the plant and were supervised by Halifax foremen, (4) these employees were rendered unemployed by the closing. As a result, the Superior Court's award of severance pay to the \\\"live-haul\\\" employees must be sustained.\\nVIII. Necessity of Arbitration\\nAs its final issue on appeal, the employer argues that questions concerning liability for severance pay should have been first submitted to arbitration in light of the mandatory arbitration provision in the collective bargaining agreement with Local 385. We disagree.\\nArticle IV, Section 5 of the collective bargaining agreement in existence between Halifax and Local 385 does provide for arbitration when \\\"grievances arise concerning the interpretation or application of the terms\\\" of the contract. However, the claim for severance pay that is the subject of this suit does not arise out of the contract. In the first place, the State is the central party bringing this action under Section 625-B for all Halifax employees, union and non-union alike. Second, the contract in existence between Halifax and Local 385 at the time of the closing did not address severance pay. Consequently, resort directly to the courts by the Director of the Bureau of Labor Standards was appropriate.\\nThe entry is:\\nJudgment modified in accordance with the opinion herein to subtract severance pay already paid, and as so modified, affirmed.\\n.26 M.R.S.A. \\u00a7 625-B (Pamph.1985) provides in part:\\n2.Severance pay. Any employer who relocates or terminates a covered establishment shall be liable to his employees for severance pay at the rate of one week's pay for each year of employment by the employee in that establishment. The severance pay to eligible employees shall be in addition to any final wage payment to the employee and shall be paid within one regular pay period after the employee's last full day of work, notwithstanding any other provisions of law.\\n3.Mitigation of severance pay liability. There shall be no liability for severance pay to an eligible employee if:\\nA. Relocation or termination of a covered establishment is necessitated by a physical calamity;\\nB. The employee is covered by an express contract providing for severance pay;\\nC. That employee accepts employment at the new location; or\\nD. That employee has been employed by the employer for less than 3 years.\\n. \\\"Live-haul\\\" duty employees were used by Halifax to travel to various farms to catch, crate and transport poultry grown by independent farmers for sale to Halifax.\\n. Corbett Brothers is a subsidiary of Halifax that produced table and hatching eggs as well as broilers. Halifax used this subsidiary, inter alia, to raise the poultry necessary for processing.\\n. 26 M.R.S.A. \\u00a7 625-B(5) provides in part:\\n5.Suits by the director. The director is authorized to supervise the payment of the unpaid severance pay owing to any employee under this section. The director may bring an action in any court of competent jurisdiction to recover the amount of any unpaid severance pay. The right provided by subsection 4 to bring an action by or on behalf of any employee, and of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the director in an action under this subsection, unless the action is dismissed without prejudice by the director. .\\n. The Chamber of Commerce of the United States and the Maine Chamber of Commerce and Industry filed an amicus brief pursuant to M.R.Civ.P. 75A(f)(l) in support of Halifax's preemption arguments.\\n. Part one of ERISA covers the reporting and disclosure requirements for both types of plans. The basic purpose of these requirements is to keep employees informed of their rights and to enable the Secretary of Labor to assess the financial soundness of plans. Consequently, under Part one fund administrators must furnish plan participants with a description of the plan and provide a copy of the annual report. Such information must also be supplied to the Secretary of Labor.\\nParts two and three of ERISA address pension benefit plans only. These sections establish minimum vesting, participation and funding requirements.\\nPart four applies to both types of plans and sets the fiduciary standards for plan management. A \\\"prudent man\\\" standard is established for fund administrators and a list of prohibited financial transactions is given.\\nPart five of ERISA contains the enforcement provisions of the Act. It creates broad criminal and civil penalties and gives the Secretary of Labor investigative powers and authority to promulgate regulations.\\n. Title 29 U.S.C. \\u00b6 1003(a) provides in part:\\n(a) . [T]his subchapter shall apply to any employee benefit plan if it is established or maintained\\u2014\\n(1) by any employer engaged in commerce or in any industry or activity affecting commerce; or\\n(2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or\\n(3) by both.\\n. Consequently, those state laws that have been held by the Supreme Court to be preempted implicate plans that have been created by employer or employee organizations. In Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981) a New Jersey state law was held to be preempted because it eliminated a method for calculating pension benefits in a privately created plan that was permitted by ERISA. The statute implicated in Alessi was the New Jersey Workers' Compensation Act, which prohibited employers from reducing a retiree's pension benefits by an amount equal to the workers' compensation award for which the retiree was eligible. The Supreme Court held that ERISA leaves to the private parties who create the pension plan the determination of the amount of benefits that, once vested, cannot be forfeited. Since the parties in Alessi agreed on the offset, the Court held that the New Jersey law was preempted insofar as it eliminated this method of calculating pension benefits.\\n. We need not decide whether the \\\"express contract\\\" exclusion of section 625-B(3)(B) must necessarily reach every informal plan meeting the ERISA definition. See Gilbert v. Burlington Industries, Inc., 765 F.2d 320 (2d Cir.1985).\\n. Those state laws that have been held by the Supreme Court to be preempted invariably involve attempts by the state to regulate employer or employee conduct and control the collective bargaining process. Thus, in Teamsters Local 20 v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), the Court struck down an Ohio law that prohibited a type of secondary boycott and ruled that if the state law were allowed to deprive the union of this self-help weapon \\\"the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available and to upset the balance of power between labor and management expressed in our national labor policy.\\\" Id. at 260. Similarly, in Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed. 396 (1976), the Court overruled a state law that penalized a concerted refusal to work overtime and held that this conduct by organized employees was intended to be unregulated as a self-help mechanism.\\n. Section 8(d) provides in part:\\n(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession....\\n(Emphasis added.)\"}"
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+"{\"id\": \"7909295\", \"name\": \"In re ROBERT D., et al.\", \"name_abbreviation\": \"In re Robert D.\", \"decision_date\": \"1985-01-03\", \"docket_number\": \"\", \"first_page\": \"134\", \"last_page\": \"137\", \"citations\": \"486 A.2d 134\", \"volume\": \"486\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T02:27:38.625556+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NICHOLS, ROBERTS, VIOL-ETTE, WATHEN and GLASSMAN, JJ., and DUFRESNE, A.R.J.\", \"parties\": \"In re ROBERT D., et al.\", \"head_matter\": \"In re ROBERT D., et al.\\nSupreme Judicial Court of Maine.\\nArgued Nov. 20, 1984.\\nDecided Jan. 3, 1985.\\nArthur R. Dingley (orally), Holder & Grover, P.A., Portland, for appellants.\\nLendall Smith, Asst. Atty. Gen., (orally), Augusta, for appellees.\\nBefore NICHOLS, ROBERTS, VIOL-ETTE, WATHEN and GLASSMAN, JJ., and DUFRESNE, A.R.J.\", \"word_count\": \"1638\", \"char_count\": \"10079\", \"text\": \"WATHEN, Justice.\\nThe ten appellants in this consolidated appeal are mentally retarded residential clients of Pineland Center (Pineland), a state institution for the mentally retarded located in New Gloucester. They appeal the judgment of the Superior Court (Cumberland County) affirming the District Court's (Portland) decision certifying their eligibility for admission to Pineland pursuant to 34-B M.R.S.A. \\u00a7 5475(4) (Supp.1984-1985). Counsel for the appellants argues that for purposes of admission by judicial certification, it is totally irrelevant whether an opening in a community based setting is actually available and therefore the District Court erred in considering whether a less restrictive alternative to the care provided by Pineland was available. We find no error and we deny the appeal.\\nI.\\nPetitions for \\\"judicial certification of eligibility for admission to facility for mentally retarded\\\" were filed in District Court in regard to the ten appellants. The District Court held a hearing on all ten petitions. Evidence was offered on eight of the petitions that the client's needs could be met in a community based group home but that no openings existed at the time of hearing. The relevant facts developed at each hearing are as follows:\\nRobert D.\\nRobert is 33 years old and has lived at Pineland since 1960. He is epileptic, deaf and profoundly retarded. A social worker testified that Robert will be referred to a group home in the community as soon as one is available. Currently he is on a waiting list for a proposed home which is \\\"very much\\\" in the planning stages. Robert was certified for admission to Pineland for 24 months.\\nRichard A.\\nRichard is 23 years old and has lived at Pineland since 1967. He is severely mentally retarded and deaf. There was testimony that he would be referred to a community home as soon as an opening existed and that there were three community homes (with no present openings) suitable for Richard's needs. Richard was certified for admission to Pineland for 24 months.\\nKurt L.\\nKurt is 27 years old and has been at Pineland since 1973. He is epileptic and profoundly mentally retarded. There is conflicting evidence as to whether his needs could be met in a community setting and he is on a waiting list for a group home in the community. Kurt was certified for admission to Pineland for 24 months. Norman T.\\nNorman is 37 years old and has been at Pineland since 1953. He is profoundly mentally retarded and he exhibits several \\\"socially objectionable behaviors\\\" which preclude his acceptance in a community home. Norman was certified as eligible for admission to Pineland for 24 months.\\nRobert M.\\nRobert is 50 years old and has been at Pineland since 1946. He is profoundly mentally retarded and given to aggressive behavior. There was testimony that his needs could be met in a community setting but no available opening exists. Robert was certified for admission to Pineland for 24 months.\\nDavid H.\\nDavid is 31 years old and has been at Pineland since 1960. He is profoundly mentally retarded. He has been recommended for community placement but no home has agreed to accept him. David was certified as eligible for admission to Pine-land for 23 months.\\nPaul M.\\nPaul is 36 years old and has been at Pineland since 1954. He is profoundly mentally retarded and is given to aggressive behavior including slapping, biting, kicking, pushing, and head-butting. He is so unsteady on his feet that he wears a hockey helmet for protection when walking. There is no evidence that he is ready for community placement and he is not on any waiting list for admission to a community home. Paul was certified as eligible for admission to Pineland for 24 months.\\nNorman L.\\nNorman is 41 years old and has been at Pineland since 1950. He is profoundly mentally retarded. There is testimony that Norman's needs could be met in a community setting and he has been recommended for a nursing home but there are no available openings. Norman was certified as eligible for admission to Pineland for 18 months.\\nTheodore B.\\nTheodore is 57 years old and has been at Pineland since 1937. He is epileptic and profoundly mentally retarded. There was testimony that if a community placement were available, he could leave. He is on a waiting list for a group home. Theodore was certified as eligible for admission to Pineland for 23 months.\\nLinda H.\\nLinda is 33 years old and has been at Pineland since 1956. She is severely mentally retarded but she attends a daily workshop in Freeport. A psychological examiner's response to the question \\\"what do you see as the primary obstacles to Linda's placement into the community\\\" was \\\"availability.\\\" Linda was certified as eligible for admission to Pineland for 9 months.\\nThe District Court, relying in part on the unavailability of a less restrictive alternative, certified each person to be eligible for admission to Pineland. Each individual appeals from the certification order.\\nII.\\nThe statutory basis for admission by judicial certification provides as follows:\\nThe court shall certify the client's eligibility for admission only if the petitioner proves, by clear and convincing evidence, that:\\nA. The client is a person in need of institutionalized services;\\nB. The needed services are available at the facility named in the application; and\\nC. There is no less restrictive alternative to the care provided by the facility, consistent with the best interest of the client.\\n34-B M.R.S.A. \\u00a7 5475(4). The appellants focus on the absence of the word \\\"available\\\" in sub-part C and construe the statute as requiring the state to prove that a community based setting cannot meet a retarded individual's needs. We are unable to agree with appellant's argument.\\nJudicial certification is a component of the procedure for regular admission, as distinguished from judicial commitment (34-B M.R.S.A. \\u00a7 5476) and protective custody (34-B M.R.S.A. \\u00a7 5477). Under the statute, an admission for extended care and treatment requires: (1) an application, (2) a certificate attesting to the fact that compelling needs of the client are not being met, (3) an initial prescriptive program plan for meeting those needs, and (4) either the informed consent of the client or in lieu thereof, judicial certification. In the present context, judicial certification is a substitute for the informed and voluntary consent of the client. The certificate issued by the court bears no similarity to a judicial order of commitment. It serves only to empower the institution to admit the client as a resident (34-B M.R.S.A. \\u00a7 5475(5)) and does not preclude discharge of the client at the request of the parent or guardian (34-B M.R.S.A. \\u00a7 5480). The period of certification is not permitted to exceed 2 years. See 34-B M.R.S.A. \\u00a7 5475(6).\\nViewing the statutory scheme in its entirety, we are persuaded that the District Court committed no error in considering the availability of alternate facilities. The statute clearly seeks to encourage the use of the least restrictive form of treatment, but it fails to mandate the provision of such treatment when it is unavailable. See 34-B M.R.S.A. \\u00a7 5002. At numerous points in the statute, the Legislature has expressly permitted consideration of the availability of less restrictive alternatives to institutional care. The general provisions defining the responsibility of the Bureau of Mental Retardation provides that the Bureau shall:\\nDivert mentally retarded persons from institutional care, whenever professional diagnosis and evaluation, the personal preference of the client or his legal guardian, and the availability of appropriate services indicate that these persons should be placed in community environments and programs.\\n34-B M.R.S.A. \\u00a7 5003(2)(B). At the time of the initial assessment of the clients needs and during the formulation of the prescriptive program plan which precedes any admission, the Bureau is directed to consider the clients needs, the programs offered at the institution, and the availability of appropriate programs in the community. See 34-B M.R.S.A. \\u00a7 5462, 5470.\\nIt is true that the provision dealing with judicial certification, as contained in section 5475(4), does not contain the word available. We readily conclude, however, that the statute permits the court to consider the availability of alternatives to institutional care. The statute must be read as requiring the court to consider the choices which actually exist, and to select among the alternatives, if any exist, in a manner \\\"consistent with the best interest of the client.\\\" In the cases before us, the District Court determined that there are no openings for community placement and although such placement might otherwise be preferable to institutionalization, the best interest of the client will be furthered by admission to Pineland. In reaching its decision, the court did not violate the statute. Any other reading of the statute would require the court to withhold certification and relegate the client to legal limbo. While we recognize the plight of the appellants, caught as they are between an institutional setting and limited alternatives, we are required to fairly apply the language of the statute.\\nThe entry must be:\\nJudgments affirmed.\\nAll concurring.\\n. See 34-B M.R.S.A. \\u00a7 5473(3) provides:\\nThe client may be admitted to a facility by informed consent if the chief administrative officer of the facility or his designee has determined that:\\nA. The client has been informed of and understands both the nature, purpose and proposed duration of the admission, and the provisions of section 5480 regarding the client's right to leave and the limitations on the right; and\\nB. The client voluntarily consents to the proposed admission.\"}"
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+"{\"id\": \"7916630\", \"name\": \"STATE of Maine v. Robert E. HARDING\", \"name_abbreviation\": \"State v. Harding\", \"decision_date\": \"1986-04-22\", \"docket_number\": \"\", \"first_page\": \"471\", \"last_page\": \"477\", \"citations\": \"508 A.2d 471\", \"volume\": \"508\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T01:22:40.863036+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ.\", \"parties\": \"STATE of Maine v. Robert E. HARDING.\", \"head_matter\": \"STATE of Maine v. Robert E. HARDING.\\nSupreme Judicial Court of Maine.\\nArgued June 3, 1985.\\nDecided April 22, 1986.\\nJanet T. Mills, Dist. Atty., Mark A. Bee-de, Asst. Dist. Atty. (orally), Auburn, for plaintiff.\\nP. Jane Andrews (orally), Lewiston, for defendant.\\nBefore McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ.\", \"word_count\": \"3986\", \"char_count\": \"24846\", \"text\": \"ROBERTS, Justice.\\nRobert E. Harding appeals his conviction after a jury trial in the Superior Court, Androscoggin County, of operating a motor vehicle while under the influence of intoxicating liquor, 29 M.R.S.A. \\u00a7 1312-B (Supp.1985) and operating after being adjudicated an habitual offender, 29 M.R.S.A. \\u00a7 2298 (Supp.1985). Harding contends, inter alia, that all evidence resulting from his arrest should have been suppressed because the arrest was unlawful. We reject Harding's contention and affirm his conviction.\\nI.\\nOn November 8, 1983, at approximately 10:00 p.m., Raymond Cloutier was stopped in his car at a railroad crossing in Liver-more Falls behind a green van driven by Harding. The van rolled back into Cloutier's car. Cloutier approached the van and asked Harding if the police should be called. Harding apparently responded that he lived at 9 Church Street in Jay and that he would take care of any damage without recourse to the police. Harding did not inform Cloutier of his name or show his motor vehicle operator's license nor did Cloutier request any information. The two men inspected the vehicles and apparently agreed that neither vehicle was damaged. Shortly after Cloutier got back into his car, the van again rolled back and bumped into his car. Both vehicles then left the crossing and Cloutier proceeded to the Liver-more Falls police station to report the incident.\\nAt the station Cloutier told Officer Benson of the Livermore Falls police department that he had been involved in an accident and that the other driver lived at 9 Church Street in Jay. He also told Officer Benson that there was little damage to his car but that he thought the other driver might be intoxicated. Benson left for Church Street in his cruiser followed by Cloutier in his own car. En route, Officer Benson radioed Officer Poisson, a Jay police officer, to meet him at Church Street. The Jay address, although physically proximate to the scene of the incident, is in another town and county.\\nAs Officer Benson arrived at 9 Church Street, he saw a van meeting Cloutier's description backing into the driveway. He parked his cruiser in front of the driveway, blocking any escape of the van. Benson approached Harding who had left the driver's seat and entered the back of the van. Benson requested that Harding get out of the van and began asking him questions. Harding did not identify himself and became agitated and angry. After speaking to and observing Harding, Benson concluded that he was intoxicated and arrested him for OUI.\\nBenson testified that he went to the Church Street address to investigate the report of a hit and run accident and a possible violation of 29 M.R.S.A. \\u00a7 894 (Class E offense of leaving the scene of an accident without giving name, address and registration number of the vehicle). He further testified that it was not then his intention to make an arrest for OUI.\\nHarding was indicted for operating under the influence and operating after being adjudicated an habitual offender. Both indictments arose out of the incident and arrest that occurred on November 8, 1983. Harding's Motion to Suppress Evidence obtained as a result of the stop and arrest on November 8, 1983, was denied. A jury trial resulted in a guilty verdict on each count.\\nII.\\nHarding contends that all the evidence resulting from his arrest should have been suppressed because the pursuit and initial stop were unlawful under 30 M.R.S.A. \\u00a7 2364 (1978). The motion justice determined that Benson's pursuit of Harding was instant pursuit with intent to apprehend as required under \\u00a7 2364 for misdemeanors and traffic infractions. We disagree. We explained in State v. Carey, 412 A.2d 1218, 1220-22 (Me.1980) that the section 2364 distinction between felonies and misdemeanors has its origin in the common law limitation upon the power of a police officer to make a warrantless arrest. Because an officer can arrest without a warrant for the class E violation of section 894 only when the offense is committed in his presence, the officer can be in instant pursuit within the meaning of section 2364 only after such an offense has been committed in his presence. Our determination that Benson did not pursue Harding \\\"instantly,\\\" however, does not mean Harding's arrest was rendered unlawful by section 2364.\\nSection 2364 deals with the power of a municipal law enforcement officer to arrest persons outside the limits of the municipality. Nothing contained therein prohibits Benson's trip to Church Street to investigate the possible violation of section 894. Even if we consider Benson's approach to Harding as a \\\"stop,\\\" such an investigatory stop was easily justified in these circumstances. See State v. Cyr, 501 A.2d 1303 (Me.1985). After Benson approached Harding and observed his condition, Benson had ample probable cause to believe the offense of operating under the influence had occurred in Livermore Palls. We now analyze Benson's authority to arrest for that offense under the interpretation of section 2364 adopted in Carey.\\nIn Carey we applied the \\\"felony\\\" standard of fresh pursuit to an OUI arrest specifically because the Legislature has authorized arrest for OUI without a warrant upon probable cause. The felony standard is merely \\\"pursuit without unreasonable delay\\\" rather than \\\"instant pursuit.\\\" Comparing the uncontroverted facts in this case with those in Carey, we have no hesitation in saying that at the moment of arrest Benson had pursued Harding without unreasonable delay. We see no reason why Benson's authority should not be measured at the moment of arrest and by the nature of the offense upon which arrest was effected regardless of the nature of the offense he set out to investigate. The ruling of the trial court was correct, albeit for the wrong reason.\\nOther claims of error asserted by Harding are unpreserved, without merit and do not warrant discussion.\\nThe entry is:\\nJudgment affirmed.\\nMcKUSICK, C.J., and NICHOLS, WATHEN and GLASSMAN, JJ., concurring.\\n. 30 M.R.S.A. \\u00a7 2364 (1978) states\\nEvery municipal law enforcement officer in fresh pursuit of a person who travels beyond the limits of the municipality in which the officer is appointed shall have the same power to arrest such person as the officer has within the said municipality. This section shall apply to felonies, misdemeanors and traffic infractions.\\nWith respect to felonies, the term \\\"fresh pursuit\\\" as used in this section shall be as defined in Title 15, section 152; with respect to misdemeanors and traffic infractions, \\\"fresh pursuit\\\" shall mean instant pursuit of a person with intent to apprehend.\"}"
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+"{\"id\": \"7919704\", \"name\": \"A. L. BROWN CONSTRUCTION CO., INC. v. James J. McGUIRE and Nancy S. McGuire\", \"name_abbreviation\": \"A. L. Brown Construction Co. v. McGuire\", \"decision_date\": \"1985-07-11\", \"docket_number\": \"\", \"first_page\": \"794\", \"last_page\": \"798\", \"citations\": \"495 A.2d 794\", \"volume\": \"495\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:14:03.127447+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NICHOLS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ. and WERNICK, A.R.J.\", \"parties\": \"A. L. BROWN CONSTRUCTION CO., INC. v. James J. McGUIRE and Nancy S. McGuire.\", \"head_matter\": \"A. L. BROWN CONSTRUCTION CO., INC. v. James J. McGUIRE and Nancy S. McGuire.\\nSupreme Judicial Court of Maine.\\nArgued June 10, 1985.\\nDecided July 11, 1985.\\nTaylor, Keane & Blanchard, P.A., John E. Lyons, Jr. (orally), Portsmouth, for plaintiff.\\nBell & Geores, Martha E. Geores (orally), Lewiston, for defendant.\\nBefore NICHOLS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ. and WERNICK, A.R.J.\", \"word_count\": \"1510\", \"char_count\": \"9285\", \"text\": \"SCOLNIK, Justice.\\nA.L. Brown Construction Co., Inc. (Brown) brought suit against James and Nancy McGuire for the balance due on a contract under which Brown built the McGuires a house in York, Maine. The McGuires counterclaimed, alleging that there were substantial defects and that Brown had never obtained a certificate of occupancy. The parties negotiated a settlement agreement on the morning of trial, April 9, 1984. The McGuires repudiated the agreement, prompting Brown to institute the present action to compel performance. After a hearing, the Superior Court, York County, declared the settlement agreement void \\\"for lack of consideration, and against public policy.\\\" We disagree on both counts, finding the agreement to be valid and enforceable. Accordingly, we vacate the judgment.\\nUnder the settlement Brown agreed to repurchase the McGuires' house \\\"as is and where is.\\\" To effect the sale, paragraph 6 of the agreement stated, \\\"the Buyer through Meadowbrook Associates, shall have the right to show the home and advertise its sale subject to reasonable notice at all times to Seller.\\\" The closing was to take place \\\"prior to\\\" July 9, 1984, with the McGuires permitted to remain in the house until that date. At the closing the McGuires would deliver title to Brown \\\"or his nominee.\\\" \\\"Simultaneously therewith Buyer or his nominee shall pay the purchase price . the parties shall deliver to each other general releases and the above mentioned action shall be dismissed with prejudice and without costs.\\\" The court was notified and the suit was continued.\\nThe closing never took place, so Brown brought this action for specific performance of the settlement agreement. According to the testimony at the hearing, the McGuires rebuffed Meadowbrook Associates' first attempt to show the house to a potential buyer. After signing the agreement they had become concerned that they would be liable for the defects if title passed directly from them to a third party. They insisted that Brown could not show the house while they still owned it. James McGuire told Meadowbrook Associates that, as far as he was concerned, \\\"the contract is void and nullable, [Brown] did not own the house and I did not want anything more to do with it.\\\"\\nAt some point a third party signed a purchase and sale agreement without having seen the house's interior, but Brown was forced to refund her deposit when it became clear by July 27 that the McGuires would not go through with the closing. As far as the McGuires were concerned, \\\"[we] didn't need Mr. Brown to sell our house.\\\"\\nThe Superior Court made few factual findings since it determined that the agreement was unenforceable. In support of that determination the McGuires rely principally on the court's ruling that the agreement was \\\"against public policy.\\\" The court itself gave no explicit basis for this ruling. Its most pertinent finding is that, \\\"defendants are justified in feeling that there might be some liability exposure (whichever way an eventual determination of liability or non-liability is made) because of known deficiencies.\\\" This, alone, is not reason to hold a contract completely void. The law does not prohibit one from entering into an agreement the performance of which might subject him to future liability to third parties. Cf. Murray v. Inhabitants of Town of Lincolnville, 462 A.2d 40, 43, n. 4 (Me.1983) (\\\"the fact that the performance called for by a contract would violate state law if undertaken without some license or permit does not render the contract invalid or unenforceable on its face....\\\")\\nThis is not a contract to commit a crime. Nor is it a contract to perpetrate a fraudulent conveyance, as the McGuires seem to argue here. They suggest that they would inevitably be party to misrepresentation if they performed the agreement. See Restatement, Contracts, \\u00a7 577. This contention is flawed in at least two respects. First, not only was there no finding that Brown had misrepresented anything to any third party or would do so in the future, there was no evidence at all that would support such a finding. Sec ond, the McGuires did not show that they themselves could not have disclosed any defects to the prospective purchasers. Finally, this was not \\\"a contract of adhesion . exacted by the overreaching of a party [where] the defense of unconscionability may be asserted.\\\" Dairy Farm Leasing Co., Inc. v. Hartley, 395 A.2d 1135, 1139, n.3 (Me.1978). Rather than being against public policy, the encouragement of litigation settlement is very much in the public interest.\\nThe Superior Court's alternative ground for invalidating the settlement agreement was the asserted lack of consideration. It is unclear upon which of its factual findings it based this ruling. The McGuires rely on none of them, arguing instead that a contract that public policy makes unenforceable is also void for lack of consideration. Thus, in their view, failure of consideration is not an independent ground for the judgment, and, if we adopt their view, it falls with the public policy argument.\\nBecause the Superior Court gave principal emphasis to the question of consideration, we prefer to analyze it independently of the policy issue. The finding upon which the court apparently based its ruling is that, \\\"[t]he action allegedly being settled and resolved has not been dismissed or otherwise terminated and could be reactivated by either party.\\\" In this it overlooked paragraph 8 of the agreement itself, which provides that the parties would not dismiss the lawsuit until the closing. Dismissal was an element of the promised performance, not of the consideration for the settlement.\\nAlso part of Brown's performance was the payment of the agreed price. Thus, if, when the court stated, \\\"[Brown] has never made an offer of the purchase price to Defendants, nor has it put in evidence any capability to raise the money,\\\" it meant that the consideration had failed, it was in error. Mutual promises to exchange releases and settle claims are, themselves, adequate consideration for a contract. Dom J. Moreau & Son v. Federal Pac. Elec. Co., 378 A.2d 151, 153 (Me.1977). In this case, Brown's forbearance from prosecuting its claim was not, as the Superior Court thought, necessary for there to be consideration. Its promise to do so and the McGuires' promise to drop their counterclaim were sufficient. The parties' mutual promises regarding the sale of the house provided additional consideration.\\nIt is more likely that the court's finding that Brown had made no offer pertained to the standard for granting specific performance of a contract to convey real estate, one element of which is that the plaintiff demonstrate its ability to perform. Pelletier v. Dwyer, 334 A.2d 867, 871 (Me.1975). If so, the finding was unnecessary to the Superior Court opinion, since that court held the agreement unenforceable in any event. We, however, hold the agreement to be valid, so we will address the issue in order to promote judicial economy. See Kimball v. State, 490 A.2d 653, 659 (Me.1985); Brengelmann v. Land Resources, Etc., 393 A.2d 174, 177 (Me.1978).\\nWhether or not the Superior Court's finding of no offer was correct, Brown was excused from tendering performance by the McGuires' renunciation of the agreement. O'Halloran v. Oechslie, 402 A.2d 67, 70 (Me.1979). It is true that Alvin Brown appears to have continued hopeful that the parties would perform the agreement even after James McGuire's statement that it was \\\"void and nullable.\\\" Whether or not Brown interpreted the statement as a repudiation at that time, the McGuires' refusal to permit the third party buyer to see the house or to convey it by July 9 makes clear that any tender would have been futile and thus unnecessary as a condition precedent to this action.\\nAccordingly, we hold that the settlement agreement is an enforceable contract, and that the Plaintiff is not barred from seeking specific performance on the ground that it did not tender the price before July 9, 1984. We stop short of ordering specific performance, however, because we are not sure that the record on appeal fully reflects the parties' circumstances in their entirety. On remand Brown may move for entry of judgment in its favor. However, .should the Superior Court determine that there are unresolved issues remaining, it may, if necessary, receive further evidence.\\nJudgment vacated.\\nRemanded to the Superior Court for proceedings consistent with the opinion herein.\\nAll concurring.\\n. While \\\"unconscionable\\\" contracts are specifically made unenforceable in 11 M.R.S.A. \\u00a7 2-302, governing sales of goods, the Law Court has also long applied the doctrine of uncon-scionability as part of the equity power. See, e.g., Bither v. Packard, 115 Me. 306, 314, 98 A. 929, 933 (1916).\\n. The only testimony was that Alvin Brown did not pay the price, not that he made no offer.\"}"
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+"{\"id\": \"7946978\", \"name\": \"STATE of Maine v. ROY E. S.\", \"name_abbreviation\": \"State v. Roy E. S.\", \"decision_date\": \"1982-02-02\", \"docket_number\": \"\", \"first_page\": \"1025\", \"last_page\": \"1028\", \"citations\": \"440 A.2d 1025\", \"volume\": \"440\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:30:11.215884+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C. J., and NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.\", \"parties\": \"STATE of Maine v. ROY E. S.\", \"head_matter\": \"STATE of Maine v. ROY E. S.\\nSupreme Judicial Court of Maine.\\nArgued Nov. 16, 1981.\\nDecided Feb. 2, 1982.\\nDavid M. Cox, Dist. Atty., Gary F. Thorne (orally), R. Christopher Almy, Asst. Dist. Attys., Bangor, for plaintiff.\\nPaine & Lynch, Martha J. Harris, Bangor, for defendant.\\nBefore McKUSICK, C. J., and NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.\", \"word_count\": \"1123\", \"char_count\": \"6793\", \"text\": \"NICHOLS, Justice.\\nOn January 6, 1981, the District Court (Bangor), sitting as the Juvenile Court, found Roy E. S. guilty of arson, 17-A M.R. S.A. \\u00a7 802(1)(A) (Supp.1980) and committed him to the Maine Youth Center for an indeterminate period to end not later than on his twenty-first birthday. The juvenile appealed to the Superior Court (Penobscot County), pursuant to 15 M.R.S.A. \\u00a7 3402 (1980). The Superior Court denied his appeal, finding that (1) the dispositional order of the Juvenile Court was authorized by 15 M.R. S.A. \\u00a7 3314; (2) the entry of this disposi-tional order was not an abuse of discretion; (3) the State adequately proved the corpus delicti of the juvenile crime of arson before introducing the juvenile's inculpatory statements; (4) the evidence was sufficient to support the conviction; (5) admission of the expert testimony of State Fire Marshal William McPeck was not an abuse of discretion; (6) exclusion of identification evidence as a sanction available under M.R.Crim.P. 16(d) was not an abuse of discretion. The juvenile appeals from the Superior Court decision.\\nWe affirm the judgment.\\nOur Court on appeal does not have jurisdiction to consider the propriety of the dispositional order of the Juvenile Court. The Superior Court's conclusion that the Juvenile Court did not abuse its discretion in committing the juvenile to the Maine Youth Center is final. 15 M.R.S.A. \\u00a7 3407(2)(A) (Supp.1981-82) is the statute governing appeals to the Law Court from decisions of the Superior Court after an appeal there from the Juvenile Court; under that statute only Superior Court decisions concerning the Juvenile Court adjudication may be appealed to the Law Court. Contrary to the broader scope of our prior jurisdiction to review Superior Court decisions in juvenile matters, the 1980 amendment to 15 M.R.S.A. \\u00a7 3407(2)(A) restricted our review to decisions of the Superior Court on appeal from the Juvenile Court concerning the Juvenile Court adjudication.\\nIn reviewing the merits of the juvenile's remaining arguments, we attach no presumptive validity to the Superior Court order. We must independently review the record. The Superior Court, functioning below as an intermediate appellate court, was in no better position than we to determine whether the Juvenile Court erred. See State v. Michael Z., Me., 427 A.2d 476, 477 (1981).\\nThe juvenile first argues that the Juvenile Court erred in admitting the deposition of Miles Guptill before the State established the corpus delicti of the juvenile crime of arson. A person is guilty of arson if he \\\"starts, causes, or maintains a fire . . on the property of another with the intent to damage or destroy property thereon,\\\" 17-A M.R.S.A. \\u00a7 802(1)(A) (1980).\\nThe evidence shows that on June 26,1980, shortly after 10:00 P.M. a fire occurred in Orono at a house owned by Edna Otto. The fire originated in a mattress stored in a second floor closet. McPeck, the State Fire Marshal, testified that the fire was of human origin. In arriving at this conclusion, McPeck considered and discounted other possible sources of the fire. He examined the light fixture in the closet and found no evidence indicating that the fire was electrical in origin. Edna Otto, owner and sole occupant of the house, testified that the only objects in the closet were a mattress and a chest of drawers. No flammable liquids were stored in the closet. On the night of the fire, Mrs. Otto locked the house doors and retired to bed at 10:00 P.M.\\nWe conclude that the State adequately proved that someone started, caused, or maintained a fire at the Otto house with the intent to damage or destroy that property.\\nThe juvenile next challenges the sufficiency of the evidence that he was the perpetrator of the arson. We find sufficient evidence. Miles Guptill testified as to the juvenile's statement that he and another person had gone to the apartment in the Otto house and lit the fire. The juvenile told Guptill that he put some cigarettes and matches on the mattress. At trial Peter Pickering recounted the juvenile's plea of \\\"Don't hang me\\\" in a conversation about the upcoming trial.\\nThe juvenile also challenges the admission into evidence of the expert opinion of McPeck on two grounds. First, he challenges the qualification of McPeck as an expert. We review the trial court's ruling on the qualification of an expert only for an abuse of discretion. State v. Anderson, Me., 434 A.2d 6, 9 (1981). In the case before us we find no abuse of discretion. The experience, education, and training that McPeck received in fire investigation was sufficient for the Juvenile Court to conclude that he was qualified as an expert fire investigator.\\nAs another point, and for the first time on appeal, the juvenile argues that McPeek's testimony should be excluded because his fire investigation was conducted after the second floor closet had been cleaned. We find no obvious error in the admission of this testimony. The court was aware of the basis of the opinion and could determine the weight to be given the opinion.\\nFinally, the State failed to disclose that one of its witnesses, Guy Carmel, had failed to identify the juvenile's photograph in a high school yearbook. The juvenile's attorney first learned of this failure to identify during trial. The State's failure to disclose was a violation of M.R.Crim.P. 16(a). See State v. Bishop, Me., 392 A.2d 20, 26 (1978). We review the court's choice of sanctions for an abuse of discretion. State v. Hutchins, Me., 433 A.2d 419, 421 (1981). Exclusion of evidence in the form of an in-court identification, rather than dismissal of the charge of arson, was not inappropriate. The choice of this sanction did not prejudice the juvenile's substantial rights. Any possible taint from the attempt at pretrial identification was removed by exclusion of the in-court identification.\\nThe entry, therefore, is:\\nAppeal denied.\\nJudgment affirmed.\\nAll concurring.\\n. See State v. Joey F\\\" Me., 438 A.2d 1273 (1982).\\n. Because the Juvenile Court correctly ruled that the State had established the corpus delicti before admitting the juvenile's inculpatory statements, we need not decide, and we intimate no opinion whatsoever, on the continued validity of the order-of-proof requirement subsequent to the promulgation of M.R.Evid. 611(a). See State v. Snow, Me., 438 A.2d 485, 487 n.2 (1981); R. Field & P. Murray, Maine Evidence \\u00a7 611.1 at 154 (1976).\"}"
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+"{\"id\": \"7961989\", \"name\": \"ESTATE OF Stephen L. BALDWIN\", \"name_abbreviation\": \"Estate of Baldwin\", \"decision_date\": \"1982-03-01\", \"docket_number\": \"\", \"first_page\": \"529\", \"last_page\": \"537\", \"citations\": \"442 A.2d 529\", \"volume\": \"442\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T02:27:06.560571+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C. J., and GOD-FREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.\", \"parties\": \"ESTATE OF Stephen L. BALDWIN.\", \"head_matter\": \"ESTATE OF Stephen L. BALDWIN.\\nSupreme Judicial Court of Maine.\\nArgued Jan. 6, 1982.\\nDecided March 1, 1982.\\nGoranites & Libby, Peter J. Goranites, guardian ad litem (orally), Portland, for appellant.\\nCollins, Crandall & Hanscom, P. A., Stephen W. Hanscom (orally), Rockland, for Connecticut Nat. Bank.\\nBefore McKUSICK, C. J., and GOD-FREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.\", \"word_count\": \"5480\", \"char_count\": \"33015\", \"text\": \"McKUSICK, Chief Justice.\\nThis probate proceeding centers on the Port Clyde General Store, the principal asset of the estate of the late Stephen L. Baldwin. The guardian of the decedent's minor children, displeased with the executor's handling of that asset, brought a petition in the Knox County Probate Court asking, among other things, that the executor, The Connecticut National Bank, be sur charged as appropriate. The probate judge found that the Bank as executor had met its fiduciary obligations under Maine law, and the children's representative brings this appeal. The probate judge's finding was clearly erroneous; we therefore reverse and remand the case to the Probate Court for determination of the appropriate surcharge to be levied against the executor.\\nI.\\nOn May 30, 1979, Stephen L. Baldwin, a Maine domiciliary, died in a Downeast Airlines plane crash, leaving a widow, Tracy C. Baldwin, and three minor children by a former marriage. The children, aged 13 and younger, lived in Westport, Connecticut, with their mother, now Mrs. McKane. In his will the decedent divided his estate into two equal shares, one share to go to the widow and the other, to his three children.\\nAfter his 1976 divorce from his former wife, Stephen Baldwin, then a Connecticut resident, had remarried; and in late 1978 he and his second wife Tracy moved to Port Clyde, Maine, where he had bought all the assets and operating business of the Port Clyde General Store. At the hearing in this proceeding, the general store was described as a \\\"mom and pop\\\" operation. The Baldwins lived in an apartment over the store. The property included a wharf and also a small lunchroom operated during the summer. Its gross revenues, warranted by its prior owners to be about $260,000 per ye\\u00e1r, were heavily dependent upon the seasonal tourist business on outlying islands, including Monhegan, and on the mainland in the vicinity of Port Clyde village. At the time of Baldwin's death on May 30, 1979, less than eight months after his purchase of the Port Clyde properties, he held title to all of the real estate, and the store business was operated by Stephen L. Baldwin, Inc., of which he owned 90% of the stock and his wife Tracy, 10%. After Baldwin's death his widow continued to live in the upstairs apartment and operated the general store by herself.\\nIn his will, made in 1977 when he lived in Connecticut, Baldwin nominated as executor The Connecticut National Bank, located in Bridgeport, Connecticut. After Stephen Baldwin's death, the Bank at first filed a declination of the appointment, but later withdrew it at the urging \\u2014 as the Bank's trust officer, Mr. Bedworth, later testified \\u2014 of Baldwin's family in Connecticut who \\\"had been customers of ours for many years.\\\" The Bank was appointed executor by the Knox County Probate Court on October 26,1979. In the course of the following year, the children's mother and other representatives became concerned that the widow was not running the store well and repeatedly urged the Bank to supervise the store and to obtain from the widow sufficient information to evaluate the store's performance. The Bank resisted those im-portunities, maintaining \\\"a neutral posture\\\" for fear its action \\\"could be interpreted as intimidation\\\" by the widow. No one at the Bank ever inspected the store or audited its operation. No one at the Bank ever had any meaningful discussion with the widow about her business experience or her management of the store. The Bank never received, or ever requested, periodic financial reports from the widow. Sometime after March, 1980, the Bank did receive a copy of the federal income tax return filed by the corporation for its initial period ended April 30,1979, that is, prior to Baldwin's death, and also by late summer 1980 the Bank got an appraisal of the real estate for the purpose of filing the probate inventory. See n. 2 above. By early summer 1980 the Bank knew \\u2014 its trust officer later testified \\u2014 that the store was \\\"not doing well.\\\"\\nOn October 1, 1980, the children's guardian initiated the present proceeding by filing in the Probate Court a petition asking that the necessary persons be compelled to give account of the operations of the Port Clyde General Store; that the Bank be surcharged if it were found not to have met its fiduciary obligations; and that the Bank, if necessary, be ordered to take over the store. Two weeks after the children's petition was filed, the Bank sent the widow a letter asking her for the first time to account for her operation of the store. On October 17 the Bank petitioned the Probate Court for a license to sell real estate, representing that the estate's liquid assets were insufficient to meet its obligations. After a preliminary hearing on the pending petitions, the Probate Court appointed a guardian ad li-tem for the children and ordered that the widow turn over to the other parties all financial records relating to the Port Clyde General Store and Stephen L. Baldwin, Inc. A quantity of such material was later produced and was examined by a business consultant retained by the guardian ad litem.\\nOn January 22, 1981, the Probate Court held a joint hearing on the pending petitions. Mr. Robert Bedworth, a trust officer of the Bank with more than thirty years of experience in the business, testified as the Bank's representative in charge of the Baldwin estate. The parties later filed briefs, and the Bank filed financial statements for the store for periods through February 28, 1981, showing its operation continuously at a loss.\\nOn April 6, 1981, the Probate Court entered its decree, making extensive findings of fact and concluding that the Bank had committed no breach of fiduciary duty. The Probate Court also granted the Bank's petition for a license to sell real estate, a matter that on appeal is not contested by the children's representatives. We are informed by counsel that the Probate Court on June 29, 1981, authorized the Bank to loan the estate sufficient funds to redeem the store property from a second mortgage then in foreclosure and to pay delinquent taxes. We are also informed by counsel that on October 31, 1981, the Bank sold all the real estate and improvements of the Port Clyde General Store for $100,500, and on the same day Stephen L. Baldwin, Inc. sold all of its assets to the same purchaser for about $29,000.\\nII.\\nUnder the case law and the statute applicable to the administration of this estate prior to January 1, 1981, the effective date of the Probate Code, the fiduciary obligations of an executor are defined in very general terms. Under the prior statute, 18 M.R.S.A. \\u00a7 4054 (1965), the executor must \\\"exercise the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs.\\\" The executor is required to use good faith and prudence consistent with his duty. Hanscom v. Marston, 82 Me. 288, 297, 19 A. 460, 462 (1890). But good faith and prudence are not alone enough; the executor must take care to enlighten his judgment. Mattocks v. Moulton, 84 Me. 545, 551, 24 A. 1004, 1006 (1892). The executor must preserve from depletion the total fund in which all of the beneficiar ies will share. In re Estate of Morine, Me., 363 A.2d 700, 704 (1976). The executor must be impartial among beneficiaries. Id An executor representing that he has more skill than an ordinary person is under a duty to use that skill. See Restatement (Second) of Trusts \\u00a7 174 (1959). The executor is under a general duty not to delegate to others the responsibilities of administering and distributing the estate. See id, \\u00a7 171. Even before the Probate Code, 18-A M.R.S.A. \\u00a7 3-703(a) (1981), explicitly declared that\\n[a] personal representative is under a duty to settle and distribute the estate of the decedent . as expeditiously and efficiently as is consistent with the best interests of the estate[,]\\nthe law imposed on executors a comparable duty of diligence. See Mattocks v. Moulton, supra 84 Me. at 551-52, 24 A. at 1006 (duty of diligence); Matter of Larson, 87 Misc.2d 397, 402, 385 N.Y.S.2d 720, 724 (Surr.Ct.1976) (duty to liquidate estate assets \\\"as soon as practicable\\\"). Expeditious settlement of decedents' estates was implicit in the statutory provisions requiring the executor to file an inventory within three months of his appointment, 18 M.R.S.A. \\u00a7 1501(1), 1801 (1965), and a just and true account of his administration within a year, id, \\u00a7 1501(3).\\nIII.\\nUpon its appointment as executor of the Baldwin estate on October 26, 1979, the Bank was immediately faced with a situation crying out for its speedy attention. The principal asset of the estate was the Port Clyde General Store, an operating business conducted by a corporation over which the Bank through its 90% stock ownership could by general corporate law wield complete control. More specifically, the bylaws of that corporation, Stephen L. Baldwin, Inc., expressly provided:\\nThe business and affairs of the corporation shall be managed by its shareholders.\\nPresumably, that bylaw reflected an identical provision in the articles of incorporation, which thus brought into effect the following provision of the Business Corporation Act:\\nIf the articles of incorporation of a close corporation expressly so provide, the business of such close corporation shall be managed by the shareholders of the close corporation rather than by a board of directors; .\\n13-A M.R.S.A. \\u00a7 701(2) (1981). Thus, the Bank by accepting appointment as executor assumed the direct functions and responsibilities of management nominally performed by the corporation's board of directors.\\nFor the five months since Stephen Baldwin died, his widow had been operating the store and occupying the second floor apartment in the store building. As equal beneficiaries under the Baldwin will, the second wife and the three minor children, under the custody and guardianship of Mrs. McKane, had by law become vested with title to the real estate as tenants in common. Continued operation of the store business held a great risk of operating losses; but, at the same time, its operation in a satisfactory fashion for a limited period might help to maintain the resale value of the real estate and the store business as an operating unit. Since the second Mrs. Baldwin rather than the children would in the natural course of events desire to take the Port Clyde General Store in distribution of her half of the net estate, it might be seen by some, as later claimed by the children's representatives, that it was in her personal interest in the short run to operate the store in a way to depress the property's value for purposes of distribution. The potential for suspicion and animosity between the widow and the first wife who served as guardian of the children was obvious from the outset, and that potential quickly, turned into reality when the Bank within a couple of months started to receive demands for information about the store from the children's representatives.\\nIt also should have been clear to the Bank at an early date \\u2014 at the latest on expiration of the six-month period for filing claims against the estate \\u2014 that funds would have to be raised from the Port Clyde properties in order to pay debts and expenses of administration. Those necessary funds might be raised by a sale to a third person, which was in fact what ultimately happened, or by a distribution in part and a sale in part to the widow. The Bank had a duty to take into account the wishes of the widow who enjoyed the lifestyle she and her deceased husband acquired with the purchase of the Port Clyde General Store; at the same time, it had to administer and distribute the estate with impartiality.\\nIV.\\nWith the 20-20 vision of hindsight, we can now see what optimally an executor of the Baldwin estate should have exercised himself to do promptly upon his appointment. The executor should at once have informed himself of the nature of the Port Clyde properties and the quality of the store management by the widow, by an on-site inspection in person, aided by a knowledgeable appraiser and a competent accountant. Recognizing that an executor cannot countenance continuation of a losing business \\u2014 except as it might be briefly justified to maintain the sale value of the real estate or of the going concern \\u2014 the executor should have promptly determined the profit-and-loss prospects of the store. If the widow's bookkeeping methods were inadequate to permit meaningful financial reporting on a frequent periodic basis, and she was to be left in control and management of the store, the executor should have seen that she had help in setting up at least a minimally adequate system for that purpose. Simultaneously, the executor should have determined as quickly as possible the debts and probable expenses of administration and the taxes, if any, in order to know whether liquid or liquifiable assets of the estate were adequate to discharge those obligations so that sale of the Port Clyde real estate would not be required. Through such investigation, the executor would have immediately found that the store was operating at a loss and also that at least part of the Port Clyde properties would have to be sold to pay the estate's debts and expenses. Armed with those findings, the executor would have been compelled to proceed promptly to a decision on how to distribute or sell the Port Clyde business and real estate. That decision was his alone to make and he was duty-bound to make it with diligence. See Kaufman v. Kaufman's Adm'r, 292 Ky. 351, 166 S.W.2d 860 (1942). He could and should have given the widow an opportunity to take the Port Clyde General Store as her distributive share upon her making an appropriate compensating payment to the estate; but the executor's negotiations with her to that end should not have been permitted to delay an early offer of the properties for sale to others.\\nV.\\nNo executor, any more than any other human being or human institution, can be expected to be endowed with foresight that is always equal to hindsight. Nor is it true that a single judgment call will always be the one and only judgment call that will satisfy the standard of prudence imposed upon executors. Nonetheless, even allowing for the limitations on human foresight and even giving a reasonable range for the prudent exercise of judgment, this court sees from a recitation of \\\"what might have been\\\" in the administration of Stephen Baldwin's estate at least two legally critical shortcomings in the Bank's performance as executor of the Port Clyde properties during the period between October 26, 1979, and October 17, 1980.\\nHirst, the Bank, at no time during that year and least of all within the limited time required for expeditious settlement of the estate, did anything to investigate adequately the nature, value, existing management, and profit-and-loss circumstances of the store.\\nSecond, during that year the Bank exercised no judgment, informed or otherwise, on the disposition of the Port Clyde General Store, whether by sale or distribution or a mixture, and took no action whatever to resolve that issue. Rather, as to the Port Clyde General Store, it abdicated its affirmative obligation to settle and distribute the estate expeditiously. It passively stood by in a hope that the warring beneficiaries would come to an agreement for the disposition of the major asset of the estate.\\nBy way of confession and avoidance, the Bank puts forth a variety of defenses, none of which we find excuse its fiduciary lapses. First, the Bank complains that it initially declined the nomination as executor and agreed to withdraw its declination only at the urging of relatives of the decedent who had long been its customers. The reasons for the Bank's accepting the Probate Court's appointment as executor are entirely irrelevant. The Probate Court, not certain unidentified Baldwin family members, appointed the Bank as executor. Regardless who persuaded the Bank to change its corporate mind, its appointment imposed the same responsibilities upon it as are imposed upon any executor.\\nAs a second justification for its inaction, the Bank on appeal asserts that the impartiality mandated of an executor by such cases as In re Estate of Morine, supra, prevented the Bank from taking any initiative in resolving the issue of the disposition of the Port Clyde General Store. Mr. Bed-worth testified that exceptionally acute differences and animosities among the beneficiaries made him fearful that affirmative action on the Bank's part would give offense and involve the Bank as a disputant. The Bank's error was fundamental. The responsibility for expeditious settlement and distribution of the Baldwin estate rested exclusively upon the Bank, and not to any degree upon Mrs. Baldwin or her stepchildren or their respective lawyers or other representatives. See Restatement (Second) of Trusts \\u00a7 171. While a negotiated agreement among the beneficiaries would of course have eased the Bank's task, the record contains no evidence that the Bank took any serious action to mediate between the combatants. The inherent conflicts between the beneficiaries, which should have been apparent to the Bank from the start and which soon broke out into open conflict, would to a prudent executor have been clear warning signals that this estate required particularly aggressive attention and that the Bank would rely at its peril on the parties' reaching a negotiated settlement to take the place of what it was appointed to decide and do. We do not condone unwarranted contentiousness on the part of the beneficiaries and their attorneys and other representatives, but the unpleasantness of the fray was no justification for the executor to retreat from responsibilities that belonged solely to it. On the contrary, the executor should have known that it had to exert more effort and diligence than ever to make up for the absence of a happy family, united in agreement on the handling of the estate.\\nAs a third justification, the Bank's trust officer at trial urged that the Bank necessarily relied upon the widow's management of the store because the Bank lacked expertise to run the store itself, the estate could not afford to hire an outside manager, and the Bank knew no one in Maine to examine and report on the store's functioning. Ordinary prudence did not necessarily demand that the Bank take over direction of the store to the exclusion of the widow; indeed, prudence might suggest no disruption in the existing management arrangement, at least if investigation showed it going satisfactorily. Rather, the Bank's default lay in its making no meaningful investigation at all. It deliberately \\\"flew blind.\\\" The position taken by Mr. Bedworth strongly suggests that the Bank was ill-suited to administer the principal asset of the Baldwin estate, located as it was far distant from the Bank's headquarters and involving as it did a \\\"mom and pop\\\" operating business without any established method of reporting to shareholders. Obviously, the inappropriateness of appointing the Bank as executor of such property does not excuse the Bank for its failure to carry out the trust it nonetheless accepted. The Bank plainly failed to demonstrate the skills that the law expects of the professional fiduciary it holds itself out to be. See Restatement (Second) of Trusts \\u00a7 174. The fact that the Baldwin estate did not consist of a neat portfolio of listed securities provides no excuse for the Bank's abdication of its responsibilities.\\nIn sum, the Bank's after-the-fact justifications reveal an unduly relaxed conception of its duty as executor of an estate whose principal asset consists of- a small, closely held business. We conclude that the Bank did not live up to its fiduciary obligations and that the children's prayer for a surcharge against the Bank should have been granted. On this record the Probate Court's finding to the contrary was clearly erroneous.\\nVI.\\nTo determine the appropriate amount of surcharge, we must remand this proceeding to the Probate Court. That determination shall be made on the existing record amplified by such further evidence as the parties and the court may find necessary in light of this opinion. On the surcharge issue the Bank, on the one hand, and the beneficiaries, on the other, will be adversaries. See Restatement (Second) of Trusts \\u00a7 199(c). We find nothing in this record to require the Probate Court to replace the Bank with another fiduciary who could represent the estate in asserting the surcharge claim against the Bank. See id., Comment e; 18-A M.R.S.A. \\u00a7 3-614(2) (appointment of special administrator \\\"where a general personal representative cannot or should not act\\\"). The Port Clyde General Store, to which alone the Bank's dereliction relates, has already been sold and all the beneficiaries are represented by counsel who will fully represent the estate's interest adverse to the Bank. At the same time, the Bank is in the best position to complete economically the administration of the Baldwin estate, of which the unfinished aspects are apparently of a routine nature.\\nThe deficiencies in the Bank's handling of the Port Clyde General Store resulted in delay of its sale, which was ultimately accomplished on October 31, 1981. The Probate Court needs to estimate the length of that delay caused by the Bank's shortcomings; fixing the amount of an appropriate surcharge will, at a minimum, involve determination of any operating losses of Stephen L. Baldwin, Inc., as well as any shrinkage in the value of the real estate, that occurred during that period of delay. See Restatement (Second) of Trusts \\u00a7 205 (measure of liability for breach of trust); see also 3 Scott on Trusts \\u00a7 209 (3d ed. 1967). The trial court may find the present circumstances appropriate for its direct appointment of one or more expert witnesses pursuant to M.R.Evid. 706. The court will get maximum benefit from expert witnesses who testify to their opinion on the direct question of any loss in operations or property values during the period of unreasonable delay in selling the store. Cf. Van Horn v. Hillcrest Foods, Inc., Me., 392 A.2d 52 (1978) (workers' compensation case directing comparative medical testimony on petition for review of incapacity).\\nWe also hold clearly erroneous the Probate Court's finding that the date-of-death values for the Port Clyde General Store that the Bank used in the probate inventory filed on September 8, 1980, were reasonable. The children's guardian ad li-tem argues that those inventory values are too low and that they therefore understate the extent to which the property lost value as a result of the Bank's breach of fiduciary duty. The probate judge appears to have based his acceptance of the date-of-death values at least in part on the following finding:\\nThe Warrant and Inventory was presented by the Executor in September 1980 and contained date of death valuations. Form 3 of the Inheritance Division of the Maine Bureau of Taxation as well as I.R.S. Form 706 were filed and contained the same data and were accepted by the parties.\\nThere is no evidence in the record that either the inventory or the tax return values were ever accepted by the children's guardian ad litem. In August, 1980, the Bank's local counsel sent the guardian ad litem a proposed inventory, to which the guardian made vigorous objection. The Bank filed the inventory anyway on September 8, 1980, but there is no evidence that any notice of the filing ever went to the guardian ad litem. Indeed, at the hearing on January 22, 1981, the guardian apparently still did not realize that an inventory had been filed, but was objecting to the inventory as proposed. Under these circumstances, any finding by the probate judge that the inventory values were \\\"accepted\\\" in any affirmative sense was clearly erroneous, and we vacate that finding. In any event, we would be unwilling to elevate the consequences of a procedural default to the level of proof of the date-of-death values that then could be used as a starting point for determining the amount of surcharge, if any, to be assessed against the Bank. On remand, the Probate Court will determine what, if any, loss was in fact suffered by the estate by reason of the Bank's lack of proper attention to its fiduciary obligations. That determination must be made free of any estoppel or other consequences of the values used in the probate inventory and the federal and state tax forms.\\nThe entry is:\\nJudgment of Knox County Probate Court reversed.\\nCase remanded for further proceedings consistent with the opinion herein.\\nAll costs on appeal taxed against The Connecticut National Bank in its individual capacity.\\nAll concurring.\\n. Decedent devised a one-half interest in his estate to his three minor children in equal shares per stirpes, subject to the further provision that the share of each child be held in trust until he or she reaches the age of 21. Decedent designated The Connecticut National Bank as trustee.\\n. The probate inventory, filed on September 8, 1980, set the total value of the estate assets in Maine at about $166,000 on the date of the decedent's death. Of that total, the following values related to the Port Clyde General Store:\\nReal estate $ 81,200.00\\n90% of stock in Stephen L. Baldwin, Inc. $ 0\\nPersonal loans by the decedent to Stephen L. Baldwin, Inc. $ 38,779.05\\nThe remainder of the estate assets in Maine consisted of a lobster boat and sundry other personal property, and a bank account, all inventoried at a value aggregating about $46,000. In addition, decedent owned a lot of land on Martha's Vineyard in Massachusetts, which the Bank's trust officer later testified was worth only about $5,000 because a search for drinking water on the lot had proven unsuccessful.\\nThe decedent bought the entire assets of the store on October 5, 1978, for approximately $145,000. As described by Mr. John Pervear, an appraiser hired by the Bank in the late fall of 1980 to appraise the Port Clyde real estate separately from the appraisal done earlier for the probate inventory, the store occupied a parcel of land of about 5500 square feet, located directly on the harbor at Port Clyde. The structures on the property were a two-and-a-half story frame building, occupied by the store and a second floor apartment; a two-story warehouse; a small frame lunchroom; and a wharf. The buildings were constructed in the mid- to late-1800s and according to Mr. Pervear were in need of repair.\\nAt oral argument, counsel informed the court-that a tort recovery is expected, arising out of decedent's death in an air crash. Any such recovery would not be part of the estate, but would be distributed to the widow and children in accordance with the provisions of 18 M.R. S.A. \\u00a7 2551-2553 (1965 & Supp.1980), now replaced by 18-A M.R.S.A. \\u00a7 2-804 (1981 & Supp.1981).\\n. The minor children's mother, Mrs. McKane, was appointed their guardian by a Connecticut court in September of 1979. Mrs. McKane's attorney in Maine was appointed guardian ad litem for the Baldwin children by the Knox County Probate Court on October 21, 1980.\\n. The corporation's income tax return for the year ended April 30, 1980, was not prepared until mid-October, 1980, and therefore was not available to the Bank until after this proceeding had commenced. All tax returns showed operating losses.\\n.At the January 22, 1981, hearing Mr. Bed-worth for the Bank testified that the debts and expenses of administration of the estate amounted to about $56,712, exclusive of counsel fees for attorneys for the beneficiaries. By the time of the hearing the Bank had accumulated an aggregate of liquid assets of only about $29,000 for payment of those debts and expenses. The probate judge found the estate to be insolvent.\\n. Under the Probate Code, executors and other persons acting in a fiduciary capacity with respect to decedents' estates are called \\\"personal representatives.\\\" 18-A M.R.S.A. \\u00a7 1-201(30) (1981).\\n. Under the Probate Code, the standard has been changed to that of \\\"a prudent person dealing with the property of another.\\\" 18-A M.R.S.A. \\u00a7 7-302(a) (1981), made applicable to personal representatives by id. \\u00a7 3-703(a).\\n. This rule has now been codified in 18-A M.R. S.A. \\u00a7 7-302(a) (1981).\\n. See also 18-A M.R.S.A. \\u00a7 3-704 (1981), providing:\\nA personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate....\\n.The Bank as 90% shareholder of Stephen L. Baldwin, Inc., had the duty to exercise its power over that corporation for the benefit of the estate. In re Hubbell's Will, 302 N.Y. 246, 97 N.E.2d 888, 891 (1951); Matter of Auditore, 249 N.Y. 335, 341, 164 N.E. 242, 243 (1928); Cahn, Estate Corporations, 86 U.Pa.L.Rev. 136, 137-38 (1937). Even though the requirement of 18 M.R.S.A. \\u00a7 1403 (1965) that the executor get court authorization before it carried on the decedent's business may not apply to an incorporated business, even though wholly or predominantly owned by the decedent, J. Ritchie, N. Alford & R. Effland, Decedents' Estates and Trusts 1224-25 (5th ed. 1977), the executor's responsibilities in regard to the controlled corporation's continuing business are exactly the same as in regard to the unincorporated business. The Business Corporation Act gives a 90% shareholder complete authority to liquidate the corporation and terminate its business, 13-A M.R.S.A. \\u00a7 1103 (1981), or to change its management or manner of doing business, see id. \\u00a7 202, 401, 701, 714, powers that duplicate those of the executor owning an unincorporated business. The executor must exercise the identical standard of care over the continuing operation of the decedent's business, whether or not incorporated.\\n. Mr. Bedworth testified that the Bank had never obtained a copy of the bylaws of the corporation.\\n. See Desmond v. Persina, Me., 381 A.2d 633, 637 (1978).\\n. 18 M.R.S.A. \\u00a7 2402 (Supp.1980).\\n. At the hearing Mr. Bedworth conceded that, within two or three months of the Bank's appointment in October, 1979, he knew the estate had \\\"a cash problem.\\\" Yet the Bank did not file its petition for license to sell the Port Clyde real estate until October 17, 1980, following the children's petition commencing the proceeding now here on appeal.\\n. See In re Estate of Kurkowski, 487 Pa. 295, 302, 409 A.2d 357, 361 (1979); Bowen v. Lewis, 198 Kan. 706, 712, 426 P.2d 244, 250 (1967); In re Hubbell's Will, supra, 97 N.E.2d at 892.\\n. See Matter of Ridosh, 5 A.D.2d 67, 169 N.Y. S.2d 54 (1957); Poindexter v. First National Bank of Winston-Salem, 244 N.C. 191, 92 S.E.2d 773, 775-76 (1956); In re Newcomer Estate, 70 York 162, 170, 9 Pa.D.&C.2d 99, 116-17 (Pa.Orph.1956).\\n. Restatement (Second) of Trusts % 174, Comment b, states:\\nWhether the trustee is prudent in the doing of an act depends upon the circumstances as they reasonably appear to him at the time when he does the act and not at some subsequent time when his conduct is called in question.\\n. The date of the Bank's appointment as executor.\\n. The date the Bank filed with the Probate Court a petition for sale of the Port Clyde real estate.\\n. We are not at all concerned here with the question of how far a corporate trustee may go in acting through human agencies other than its own directors, officers, and employees. See 2 Scott on Trusts \\u00a7 171.4 (3d ed. 1967). The Bank's breach of fiduciary duty consisted of failing to act at all in making a proper investigation or exercising the needed judgment. Cf. Estate of Talbot, 141 Cal.App.2d 309, 296 P.2d 848 (1956) (trustee surcharged for not exercising independent judgment in selling stock and buying bonds at request of one beneficiary).\\n. Restatement (Second) of Trusts \\u00a7 174, Comment c (1959) states that a trustee \\\"does not use proper care unless he acquaints himself . with the nature and circumstances of the trust property.\\\"\\n. We do not mean to tie the hands of the Probate Court if it concludes on remand that the Bank should be removed as executor. We simply emphasize that, in whatever is done, concern must be had for avoiding any unnecessary additions to the expense of administering this relatively modest estate.\\n. We express no opinion on what compensation should be allowed the Bank, 3 Scott on Trusts \\u00a7 243 at 2138-44 (3d ed. 1967), or on whether the operating and property losses suffered because of the delay in selling the store constitute the limit of the appropriate surcharge against the Bank, 3 Scott on Trusts \\u00a7 205.\"}"
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+"{\"id\": \"7992021\", \"name\": \"STATE of Maine v. Charles E. BISHOP\", \"name_abbreviation\": \"State v. Bishop\", \"decision_date\": \"1978-09-29\", \"docket_number\": \"\", \"first_page\": \"20\", \"last_page\": \"27\", \"citations\": \"392 A.2d 20\", \"volume\": \"392\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:58:05.765995+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C. J., and POMER-OY, WERNICK, DELAHANTY, GOD-FREY and NICHOLS, JJ.\", \"parties\": \"STATE of Maine v. Charles E. BISHOP.\", \"head_matter\": \"STATE of Maine v. Charles E. BISHOP.\\nSupreme Judicial Court of Maine.\\nSept. 29, 1978.\\nMichael Seitzinger (orally), Charles K. Leadbetter, Asst. Attys. Gen., Augusta, Frank F. Harding, Dist. Atty., Rockland, for plaintiff.\\nLittle & Watkinson by Stephen A. Little (orally), Rockland, for defendant.\\nBefore McKUSICK, C. J., and POMER-OY, WERNICK, DELAHANTY, GOD-FREY and NICHOLS, JJ.\", \"word_count\": \"4032\", \"char_count\": \"24918\", \"text\": \"McKUSICK, Chief Justice.\\nDefendant Charles Bishop, an inmate at Maine State Prison, appeals from his conviction for trafficking in prison contraband in violation of 17-A M.R.S.A. \\u00a7 757 (Supp. 1978). We deny the appeal.\\nThe record warranted the jury's making the following findings of fact. Defendant was serving a to 20 year sentence at Maine State Prison. On December 5, 1977, Bishop participated in a basketball game in the prison gymnasium which pitted a group of inmates against a team of nonprison civilians. Following the game, prison guards conducted a \\\"routine\\\" search of defendant and his teammates in which \\\"you just take their clothes off and check them.\\\" A guard ordered Bishop to take off his clothes, and defendant complied. Before removing his undershorts, Bishop pulled out a small bag wrapped in black tape and handed it to the guard. Chemical analysis later revealed that the bag contained marijuana, although the evidence admitted before the jury did not establish the exact amount.\\nDefendant alleges four grounds for challenging his conviction, namely: (1) that the guard's ordering defendant to strip constituted an illegal search and seizure in violation of the federal (U.S.Const. amends. XIV, IV) and state (Me.Const. art. I, \\u00a7 5) constitutions; (2) that a chemist's certificate admitted in evidence to establish that the bag contained marijuana was inadmissible hearsay; (3) that the presiding justice erred by not imposing any sanction upon the prosecution for failing, in violation of Rule 16(a)(l)(A)(i), M.R.Crim.P., to provide defendant with a statement describing evidence to be used at trial which had been obtained through a search of defendant; and (4) that marijuana does not constitute \\\"contraband\\\" within 17-A M.R.S.A. \\u00a7 757. We reject each contention.\\nI.\\nLegality of the Search and Seizure\\nBefore addressing the merits of defendant's challenge to the constitutionality of the search, it is necessary to consider the State's argument that defendant waived his right to object to the admission of evidence of the marijuana by failing to make the motion to suppress prior to trial pursuant to Rule 41(e), M.R.Crim.P. Rule 41(e) provides in part:\\n\\\"A person aggrieved by an unlawful search and seizure may move the Superi- or Court in the county in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that . . . [t]he property was illegally seized without warrant .\\n\\\"The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.\\\" (Emphasis added)\\nThis court has previously reserved decision on this issue. In State v. Hazelton, Me., 330 A.2d 919, 922 n. 3 (1975), holding that a pretrial motion to suppress \\\"saves defendant's point for appellate review\\\" without repeating the motion at trial, we withheld judgment on the question \\\"whether Maine should adopt the prevailing federal practice that, in general, a defendant loses his right to object to the admissibility as evidence at trial of matters which he could have moved, but failed to move, to suppress prior to trial.\\\" Accord, State v. Parkinson, Me., 389 A.2d 1, 6 (1978).\\nThere remains no reason now why we should not enforce, at least prospectively, the clear language of Rule 41(e). The language of Rule 41(e) is direct and unequivocal: \\\"The motion shall be made before trial or hearing\\\" unless specifically designated circumstances warranting a departure from the general rule exist. (Emphasis added) The use of the word \\\"shall\\\" makes compliance mandatory.\\nFurthermore, there are strong policy reasons in favor of enforcing the rule. Those reasons are well stated in the comment to Rule 451(c)(4) of the Uniform Rules of Criminal Procedure (1974), as follows:\\n\\\"Requiring the motion to suppress to be made before trial is supported by the following considerations: (1) the pretrial motion assists orderly presentation of evidence at trial by eliminating from the trial disputes over police conduct not immediately relevant to the question of guilt; (2) it avoids the possibility of having to declare a mistrial because the jury has been exposed to unconstitutional evidence; (3) it spares the state, as well as the defense the expense of useless trials in cases where a purely legal determination by the judge alone will settle disposition of the case; (4) by giving the prosecutor advance notice of defendant's objection (or lack thereof), the pretrial motion enables the prosecutor to determine which officers, if any, must be available to testify at the hearings on any pretrial motion and at trial; (5) it facilitates prosecution and defense preparation for trial (and possibly plea negotiation) by giving them advance knowledge of the eviden-tiary status of the seized items; and (6) by requiring that objection be made before defendant is placed in jeopardy, it facilitates utilization of provisions for interlocutory appeal by the prosecution. These considerations will ordinarily offset the inconvenience of police officers having to appear at the suppression motion hearing and then, if the motion is denied, at the trial; in the exceptional case where the inconvenience to witnesses appears to outweigh the advantages cited, the court may schedule the hearing immediately before or even during the trial so as to minimize or eliminate such inconvenience.\\\" Id. at 215.\\nSee also American Law Institute, A Model Code of Pre-Arraignment Procedure \\u00a7 290.-1(2) (1975) and commentary therein, id. at 557.\\nAlthough the pretrial motion requirement of Rule 41(e) was imposed by the Maine Rules of Criminal Procedure as originally promulgated by this court to be effective December 1, 1965, subsequent events add force to the reasonableness of its enforcement now in strict accordance with its plain terms. Maine trial courts now follow the uniform practice of appointing counsel for indigent criminal defendants at an early stage in the proceeding; and by the January 3, 1978 amendment adding the \\\"automatic discovery\\\" provision of Rule 16(a) to the criminal rules, defense counsel have the benefit of being informed by the prosecution \\\"within a reasonable time\\\" of any evidence intended to be used at trial which was obtained through a search and seizure. Furthermore, in 1968 the Maine legislature for the first time gave the State the right to appeal a pretrial order suppressing evidence, P.L. 1968, ch. 547; to permit defense counsel to delay raising the suppression issue until after jeopardy attaches would frustrate the legislative objective of protecting the prosecution from legally erroneous suppression orders.\\nRule 41(e) does, of course, recognize two exceptions to its requirement that all motions to suppress be made before trial. First, the waiver will not be imposed in situations where the defendant lacked an opportunity to make a pretrial motion to suppress or had no notice of the grounds for such a motion prior to trial. Early compliance by the prosecution with the \\\"automatic discovery\\\" provision of Rule 16(a)(l)(A)(i), M.R.Crim.P., would normally give the defense both notice and a timely opportunity to make the pretrial suppression motion. Thus, occasion for permitting a late motion should be infrequent under the rules. Second, Rule 41(e) also permits the presiding justice \\\"to entertain the motion at the trial or hearing.\\\" This exception, however, does not permit such action by the presiding justice at will, without his discretion being subject to review for principled exercise. There must be good cause shown to authorize such a departure from the customary rule. Cf. Rule 451(c), Unif. R.Crim.P., supra (\\\"Unless otherwise ordered by the court for cause shown\\\"). There may be countervailing considerations, such as the availability of witnesses at trial, but not before, that will constitute cause for hearing and deciding the motion at trial on the request of either the defense or prosecution. However, the six public policy reasons well stated in the above-quoted comment to the Uniform Rules of Criminal Procedure should not be lightly overridden.\\nIn the instant case, although aware that the State had seized marijuana from his possession, defendant failed to utilize his opportunity to file a pretrial motion to suppress. However, given our past reluctance to require adherence to the requirement of Rule 41(e), upon which defense counsel may have relied, we will here consider on its merits defendant's challenge to the constitutionality of the search and seizure. Recognizing that in determining the effect of our rulings it is permissible for us to choose \\\"between the principle of forward operation and that of relation backward,\\\" we hold that enforcement of Rule 41(e) adopted herein will apply only to prosecutions hereafter commenced and pending prosecutions in which reasonable time remains to permit the suppression motion to be made, heard and ruled upon without delaying the start of a scheduled trial.\\nOur review of the merits of defendant's claim that his constitutional rights were infringed under the circumstances of this case reveals nothing that by any possibility would justify exclusion of the analysis of the contents of the bag seized during the prison search. Defendant was returning to the secure areas of the prison after having had contact with outsiders under circumstances in which passage to him of prohibited material could easily escape detection. He was ordered to remove his clothes. Before completely stripping, he handed over the bag of marijuana to the guard. Under the facts of this case, this search and seizure in no way ran afoul of either the federal or state constitution.\\nII.\\nAdmissibility of Chemist's Certificate\\nDefendant argues that the presiding justice erred in admitting in evidence a sworn chemist's certificate establishing that the substance taken from defendant was marijuana over defendant's objection that the certificate constituted inadmissible hearsay. The court's resolution of this issue turns on the proper interpretation of 17 \\u2014 A M.R.S.A. \\u00a7 1112(1) (Supp.1978), which creates a statutory exception to the hearsay rule for sworn chemist's certificates that establish the content of substances submitted to qualified laboratories for analysis. Section 1112(1) provides in full:\\n\\\"A laboratory which receives a drug or substance from a law enforcement officer or agency for analysis under this chapter shall, if it is capable of so doing, analyze the same as requested, and shall issue a certificate stating the results of such analysis. Such certificate, when duly signed and sworn to by a person certified as qualified for this purpose by the Department of Human Services under certification standards set by that department, shall be admissible in evidence in any court of the State of Maine, and shall be prima facie evidence that the composition and quality of the drug or substance is as stated therein, unless with 10 days written notice to the prosecution, the defendant requests that a qualified witness testify as to such composition and quality.\\\" (Emphasis added)\\nSection 1112(1) appears in chapter 45 of the Maine Criminal Code, and defendant claims that the phrase \\\"under this chapter\\\" in the first sentence limits the application of the section to prosecutions for chapter 45 offenses. Defendant was prosecuted for trafficking in prison contraband, a chapter 31 offense.\\nWe find no support for defendant's restrictive reading of section 1112. The only words imposing any limitation to trial of a chapter 45 offense appear in the first sentence in the phrase \\\"for analysis under this chapter.\\\" The reference plainly is to analysis of the drug or substance for purposes of determining its \\\"composition and quality\\\" under such sections of chapter 45 as section 1101 (\\\"Definitions\\\") and section 1102 (\\\"Schedules W, X, Y and Z\\\"). The substance in the seized bag was analyzed to be \\\"marijuana,\\\" which is defined in section 1101(1) and is classified as a Schedule Z substance by section 1102(4)(B). The consequences of that analysis in court proceedings are determined at various other places in the statutes, both in and outside chapter 45 of the criminal code. The second sentence of section 1112 makes a statutory exception to the hearsay rule for a proceeding \\\"in any court of the State of Maine,\\\" in terms without limitation to a prosecution for a chapter 45 offense or even to a criminal prosecution.\\nIn the case at bar the prosecution is for an offense defined in chapter 31 of the criminal code proscribing the trafficking by a prison inmate in \\\"any . . . thing which a person confined in official custody is prohibited by statute or regulation from possessing.\\\" 17-A M.R.S.A. \\u00a7 756. Then, in turn, that element of the offense is made out, the State argues, by the fact that under 22 M.R.S.A. \\u00a7 2383 (Supp.1978) \\\"[possession of a usable amount of marijuana is a civil violation for which a forfeiture of not more than $200 may be adjudged.\\\" The legislature evinced no intention to restrict the use of its statutory hearsay exception to the very narrow limits urged by defendant. On the contrary, the beneficient purpose of avoiding needless waste of the chemist's time and effort is equally present whatever the type of proceeding involved. The inherent trustworthiness of the chemist's certificate, and the effectiveness of giving the party against whom it is to be offered an opportunity to require the chemist's presence, depend not at all on the nature of the criminal prosecution in which his certificate is offered in evidence. There is no conceivable reason for the legislature to limit its statutory hearsay exception in the way here urged by defendant. We hold that it has not done so.\\nIII.\\nFailure of the Prosecution to Provide Automatic Discovery\\nMaine's new \\\"automatic discovery\\\" provision, Rule 16(a)(l)(A)(i), M.R. Crim.P., which became effective January 3, 1978, states in pertinent part:\\n\\\"The attorney for the State shall furnish to the defendant within a reasonable time . [a] statement describing any testimony or other evidence intended to be used against the defendant which . [w]as obtained as a result of a search and seizure . . . .\\\"\\nRule 16(d), M.R.Crim.P., prescribes the sanctions that may be imposed for the State's failure to comply with the automatic discovery requirement:\\n\\\"If the attorney for the State fails to comply with this rule, the court on motion of the defendant or on its own motion may take appropriate action, which may include, but is not limited to, one or more of the following: requiring the attorney for the State to comply, granting the defendant additional time or a continuance, relieving the defendant from making a disclosure required by Rule 16A, prohibiting the attorney for the State from introducing specified evidence and dismissing charges with prejudice.\\\" (Emphasis added)\\nThe State seized marijuana from defendant and at trial offered the marijuana, photographs of the marijuana, and a sworn chemist's certificate in evidence. However, the prosecuting attorney had not furnished defendant with the statement required by Rule 16(a)(l)(A)(i), and at trial defendant objected to admission of the evidence. The presiding justice overruled the objection and imposed no sanction for the violation of the rule, finding that the indictment and the circumstances of the seizure effectively forewarned defendant that evidence relating to the marijuana would be introduced at trial. On appeal defendant asserts this ruling constitutes reversible error.\\nWe uphold the lower court's ruling. By the express terms of Rule 16(d), the presiding justice \\\"may\\\" take \\\"appropriate\\\" action to remedy a violation of Rule 16(a). The imposition of a sanction is not mandatory. The \\\"appropriate\\\" sanction may be nothing at all.\\nIn the instant case the presiding justice properly found that defendant was not prejudiced by the failure of the prosecutor to comply with the automatic discovery rule. Prison authorities seized the marijuana directly from defendant. Defendant was consequently put on notice of the likelihood that the marijuana or evidence establishing the content of the seized bag would be introduced at trial. Further, the indictment specifically charged that defendant \\\"did traffic in prison contraband by intentionally possessing contraband, to wit, 69 grams of marijuana.\\\" Given these special circumstances indicating that defendant was apprised of the likelihood that the marijuana or evidence of the marijuana would be introduced at trial, the presiding justice's decision not to impose a sanction for violation of the \\\"automatic discovery\\\" rule cannot be said to be an abuse of discretion.\\nAlthough no sanction was imposed in this case for the State's noncompliance with Rule 16(a), we cannot emphasize too strongly the necessity for prosecutors to set up and maintain a system for routine and timely disclosure to defense counsel of the information listed in subdivision (a)(1). The adoption as of January 3, 1978, of new Criminal Rule 16, relating to discovery from the prosecution, and of its counterpart Rule 16A, relating to discovery from the defendant, was intended to enhance the quality of the pretrial preparation of both the prosecution and defense and to avoid surprises at trial \\u2014 all to the end of making the result of criminal trials depend upon the merits of the case rather than on the demerits of lawyer performance on one side or the other. It is true that automatic revelation to the defense of all the items listed in Rule 16(a)(1) may, as in the instant case, merely tell defense counsel something that he already knows or has reason to know. However, only by having an established system that operates automatically for such disclosure will the State effectuate the purpose of the new rule and be sure to avoid the imposition of sanctions that could cripple an otherwise meritorious prosecution.\\nIV.\\nWhether \\\"Contraband\\\" Includes Marijuana\\nDefendant's final claim is that prison \\\"contraband\\\" does not include marijuana. 17-A M.R.S.A. \\u00a7 757 defines \\\"contraband\\\" by reference to 17 \\u2014 A M.R.S.A. \\u00a7 756, subsection 2, which provides:\\n\\\"As used in this section, 'contraband' means a dangerous weapon, any tool or other thing that may be used to facilitate a violation of section 755, or any other thing which a person confined in official custody is prohibited by statute or regulation from making or possessing.\\\" (Emphasis added)\\nDefendant makes two arguments. First, noting that 17-A M.R.S.A. \\u00a7 755 referred to in the first sentence of section 756 deals with escapes from official custody, defendant contends that \\\"contraband\\\" includes only those \\\"things\\\" which aid in escapes. Second, defendant argues that the term \\\"prohibited by statute\\\" in the second sen tence of the statute refers to criminal, not civil prohibitions.\\nWe find no merit in defendant's position. The definition of \\\"contraband\\\" in section 756, incorporated by reference into section 757, reaches beyond the instrumentalities of escape to include in broad terms \\\"any other thing which a person confined in official custody is prohibited by statute or by regulation from making or possessing.\\\" The possession of marijuana is prohibited by statute. 22 M.R.S.A. \\u00a7 2388 makes possession of a \\\"usable amount of marijuana\\\" a civil violation. Nothing in the language of section 756 or 757 excludes \\\"things\\\" subject to civil prohibition from the \\\"contraband\\\" that an inmate is prohibited from possessing.\\nAccordingly, the entry must be:\\nAppeal denied.\\nJudgment affirmed.\\nARCHIBALD, J., did not sit.\\n. 17-A M.R.S.A. \\u00a7 757 states in part:\\n\\\"1. A person is guilty of trafficking in prison contraband if:\\n\\\"B. Being a person in official custody, he intentionally makes, obtains or possesses contraband.\\\"\\n. The fact that the Superior Court justice who will sit at trial is different from the justice hearing pretrial motions is not adequate cause by itself to depart from the usual rule. Rule 41(e) provides that the motion is made to the Superior Court, without the slightest suggestion of a limitation to the justice who is to preside at trial. In our circuit system the Superior Court justice who happens to be hearing motions when the motion to suppress is presented must hear and decide that motion, barring extraordinary circumstances other than the fact that he does not expect to preside at trial.\\n. Great Northern Ry. v. Sunburst Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). In upholding the Montana Supreme Court's prospective application of a rule interpreting a state railroad rate-fixing statute which overruled an earlier case, the Court stated:\\n\\\"A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly, that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted.\\\" (Emphasis in original) Id. at 364, 53 S.Ct. at 148.\\nSee also Douglass v. County of Pike, 101 U.S. 677, 25 L.Ed. 968 (1829), in which the Court equated a change in judicial construction of a statute with a legislative amendment:\\n\\\"The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.\\\" Id. at 687.\\nSee generally Traynor, \\\"Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility,\\\" 28 Hastings L.J. 533 (1977); Annot., 14 L.Ed.2d 992 (1966).\\n. 17-A M.R.S.A. ch. 45, \\u00a7 1103 prohibits the \\\"unlawful trafficking\\\" in a scheduled drug defined in 17-A M.R.S.A. \\u00a7 1102 and not subject to the exceptions stated in section 1103(1).\\n. See further discussion of the definition of \\\"contraband\\\" in part IV of this opinion.\\n. Rule 16(a), M.R.Crim.P., reads in full as follows:\\n\\\"(a) Automatic Discovery.\\n\\\"(1) Duty of the Attorney for the State. The attorney for the State shall furnish to the defendant within a reasonable time:\\n\\\"(A) A statement describing any testimony or other evidence intended to be used against the defendant which:\\n\\\"(i) Was obtained as a result of a search and seizure or the hearing or recording of a wire or oral communication;\\n\\\"(ii) Resulted from any confession, admission, or statement made by the defendant; or\\n\\\"(iii) Relates to a lineup, showup, picture, or voice identification of the defendant;\\n\\\"(B) Any written or recorded statements and the substance of any oral statements made by the defendant.\\n\\\"(C) A statement describing any matter or information known to the attorney for the State which may not be known to the defendant and which tends to create a reasonable doubt of the defendant's guilt as to the offense charged.\\n\\\"(2) Continuing Duty to Disclose. The attorney for the State shall have a continuing duty to disclose the matters specified in this subdivision.\\\"\\n. At trial the presiding justice ruled that the statutory hearsay exception did not extend to the quantity of marijuana reported in the chemist's certificate. Consequently, there was no evidence admitted before the jury to support the allegation in the indictment that defendant possessed 69 grams (over 2.4 ounces) of marijuana. Without deciding whether the ruling of the presiding justice was correct, we must assume, on this state of the record, that defendant was convicted of possessing less than IV2 ounces of marijuana, the amount necessary to trigger the statutory presumption that defendant committed the criminal offense of furnishing scheduled drugs under 17-A M.R.S.A. \\u00a7 1106(3). Possession of less than IV2 ounces of marijuana by persons other than prison inmates generally constitutes a civil violation, subjecting defendants to a forfeiture not to exceed $200 under 22 M.R.S.A. \\u00a7 2383.\"}"
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+"{\"id\": \"8046394\", \"name\": \"Jay Bruce BARTNER and Claire Doheny Bartner v. Dwight B. CARTER and Lewis E. Moore\", \"name_abbreviation\": \"Bartner v. Carter\", \"decision_date\": \"1979-08-09\", \"docket_number\": \"\", \"first_page\": \"194\", \"last_page\": \"206\", \"citations\": \"405 A.2d 194\", \"volume\": \"405\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:45:15.176061+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C. J., and POMER-OY, WERNICK,'ARCHIBALD, GODFREY and NICHOLS, JJ.\", \"parties\": \"Jay Bruce BARTNER and Claire Doheny Bartner v. Dwight B. CARTER and Lewis E. Moore.\", \"head_matter\": \"Jay Bruce BARTNER and Claire Doheny Bartner v. Dwight B. CARTER and Lewis E. Moore.\\nSupreme Judicial Court of Maine.\\nAug. 9, 1979.\\nJames E. Mitchell (orally), Jed Davis (orally), Augusta, for plaintiffs.\\nHale & Hamlin by Barry K. Mills (orally), Blue Hill, for defendants.\\nBefore McKUSICK, C. J., and POMER-OY, WERNICK,'ARCHIBALD, GODFREY and NICHOLS, JJ.\", \"word_count\": \"5923\", \"char_count\": \"35807\", \"text\": \"GODFREY, Justice.\\nAppellants Jay and Claire Bartner brought an action against real estate brokers Dwight Carter and Lewis Moore alleging, in separate counts, fraud and a violation of the Maine Unfair Trade Practices Act, specifically 5 M.R.S.A. \\u00a7 213 (1979). The action arose out of the purchase of residential property by the Bartners. Ap-pellees Carter and Moore, relying on information furnished by the seller, advertised the property in the following language:\\n\\\"BASS HARBOR\\n6 rooms \\u2014 completely renovated combination garage and barn \\u2014 % acre. $32,000.\\\"\\nAppellants, who lived in Minnesota at the time of their negotiations for purchase of the premises, testified that they were in Maine in the summer of 1976 looking for residential property to buy; that they noticed the premises with a \\\"For Sale\\\" sign but decided not to stop because the lot looked too small; that they became interested after reading the advertisement in the Bar Harbor Times stating that the lot contained three-fourths of an acre; that when appellant Jay Bartner was looking over the property with appellee Moore, Moore informed him, in reply to a question, that the lot contained three-fourths of an acre, and that appellants relied on that figure when they executed the purchase and sale agreement. Appellant Jay Bartner testified that the premises were offered for sale at $32,000, that the Bartners made a counter-offer of $28,000, and that the price agreed on was $30,000. A real estate agent called as a witness by the appellants testified that the premises were worth $30,000 at the time of sale.\\nThe appellees did not controvert that testimony. They admitted that, relying on information supplied by the seller, they had placed advertisements stating that the lot contained three-fourths of an acre. Respondent Moore acknowledged that the amount of acreage is an important part of an advertisement for the sale of real estate.\\nThe closing was originally set for October 5, 1976. On October 1, appellants wrote to Moore stating that on an examination of the deed to the property they had noticed a reference to the area of the lot as being one-half acre, that the discrepancy caused them some concern, and that they \\\"would like to settle it before the closing on October 5th.\\\" They suggested that the diminution in acreage represented a diminution in market value amounting to $1,500. In a telephone conversation with appellants, Moore acknowledged that there had been a mistake and that the lot was somewhere between one-half and three-fourths of an acre. Appellants' demand for a reduction of the price was refused, but the seller himself, in a telephone conversation in early October, told the Bartners they could terminate the contract. According to appellants' testimony, the seller did not offer at that time to return their $3,000 deposit.\\nThe closing was postponed to October 18. On October 9, appellants wrote to Moore, stating that they had written the Maine Real Estate Commission complaining of ap-pellees' \\\"misleading representation of the property\\\" and were preparing to file a formal complaint. On October 10, they wrote again to Moore stating that they had sent to their lending institution in Maine the executed documents necessary to accomplish the purchase. In this letter they reaffirmed a decision they had communicated to appellees, apparently on or about October 3, to complete the purchase at the $30,000 price, but the purported to reserve \\\"the right to sue for the difference between the advertised description of the property and that stated in the deed.\\\" They demanded, apparently in accordance with an earlier commitment by the seller in a telephone conversation, that a survey be prepared at the expense of the seller and delivered to them by the time of the closing or soon thereafter. At the closing, the seller himself offered to let the Bartners rescind the purchase agreement and to return their deposit. Appellants refused the seller's offer of rescission and accepted title, paying the rest of the $30,000 price.\\nIn Count I of their complaint appellants demanded \\\"restoration\\\" to them of the value of .175 acres of land in the location of the premises, \\\"namely, $1,050\\\", reimbursement of their telephone toll charges, their wasted time, and the extra costs of counsel incurred in the closing as a result of the dispute, and reasonable counsel fees incurred pursuing this action.\\nAfter a trial without a jury in the Superi- or Court, Hancock County, the trial justice ordered judgment in favor of the defendants, having made the following findings of fact:\\n\\\"1. The premises subject to this action contain between 0.50 acres and 0.60 acres.\\n2. The defendants advertised the property and made representations of its size to plaintiffs believing, in good faith, that the premises contained three-quarters of an acre.\\n3. The plaintiffs and defendants had equal opportunities to examine the quantity of land and condition of buildings.\\n4. The plaintiffs contracted to purchase the buildings and land in gross. The amount of the purchase price was not determined oh a \\\"per acre\\\" basis.\\n5. The plaintiffs were not misled concerning either the value or condition of the premises or the use to which the premises can be put because of the advertising or other representations made by defendants.\\n6. The plaintiffs did not suffer any loss of money or property, real or personal, as a result of the use or employment by either defendant, of a method, act or practice declared unlawful by 5 M.R.S.A. section 207 or by any rule or regulation issued under 5 M.R.S.A. section 207, subsection 2.\\n7. In themselves, the advertisements and representations that the premises contained three-quarters of an acre were not material inducements for the plaintiffs to purchase the premises. Such advertisements and representations were not significant.\\\"\\nThe trial judge also made certain conclusions of law, among them the following:\\n\\\"2. The representations made by defendants as to the size of the lot must be interpreted in the light of the facts and circumstances of this particular case. Under these facts and circumstances, the defendants committed no fraud or unfair trade practice.\\\"\\nWe deny the plaintiffs' appeal.\\nI. The Unfair Trade Practices Act\\nIn 1969, Maine enacted the Unfair Trade Practices Act, chapter 10 of title 5 of the Maine Revised Statutes. Originally consisting of sections 206 to 212 of title 5, the 1969 act prohibited unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce and established procedures by which the Attorney General might implement and enforce that prohibition. In its original form, the act made no provision for a suit by a private individual to enforce the liability of a defendant who violated a provision of the act. In 1971, section 209 was amended to permit the court, in an action by the Attorney General, to make such other orders or judgments as may be necessary \\\"to restore to any person who has suffered any ascertainable loss\\\" by reason of the use of such an unlawful method, act or practice \\\"any moneys or property, real or personal, which may have been acquired by means of such method, act or practice.\\\" The right of a private citizen to sue under the Act was not established until 1973 with the addition of section 213, subsections (1) and (2) of which provide as follows:\\n\\\"1. Court action. Any person who purchases or leases goods, services or property, real or personal, primarily for personal, family or household purposes and thereby suffers any loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 207 or by any rule or regulation issued under section 207, subsection 2 may bring an action in the Superior Court for restitution and for such other equitable relief, including an injunction, as the court may deem to be necessary and proper.\\n2. Fees and costs. If the court finds, in any action commenced under this section that there has been a violation of section 207, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action.\\\"\\nThe substantive rights that an individual plaintiff may now enforce under section 213 of title 5' are derived from section 207, which provides as follows:\\n\\\"Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.\\n\\\"1. Intent. It is the intent of the Legislature that in construing this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.\\n2. Rules and regulations. The Attorney General may make rules and regulations interpreting this section. Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts interpreting the provisions of 15 U.S.C. 45(a)(1) (The Federal Trade Commission Act) as from time to time amended. Evidence of a violation of a rule or regulation made by the Attorney General shall constitute pri-ma facie evidence of an act or practice declared to be unlawful by this chapter in any action thereafter brought under this chapter.\\\"\\nIt is apparent that in enacting the Unfair Trade Practices Act in 1969, the Legislature sought to bring into Maine law the federal interpretations of \\\"unfair meth ods of competition and unfair or deceptive acts or practices\\\" and envisioned the Maine Attorney General as being in a position comparable to that of the Federal Trade Commission with respect to implementing the act by regulation and enforcing it. In some respects, particularly in the characterization of a defendant's acts or practices as \\\"unfair or deceptive,\\\" federal interpretations give clear guidance to the Maine courts. For example, the federal decisions are clear that a method, practice or act may be \\\"deceptive\\\" even though defendant had no purpose to deceive, Beneficial Corp. v. Federal Trade Comm'n, 542 F.2d 611 (3d Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377, and acted in good faith, Montgomery Ward & Co. v. Federal Trade Comm'n, 379 F.2d 666 (7th Cir. 1967). In view of those decisions, ap-pellees cannot avoid liability merely because they made the misrepresentation in good faith and without purpose to deceive.\\nThe federal courts have applied section 5(a)(1) to a broad range of conduct and have permitted the Federal Trade Commission considerable scope in the exercise of its authority. It has been held that the Commission may prevent deceptive advertising even though consumers of the advertised product normally become aware of the truth before making their purchases. E. g., Resort Car Rental System, Inc. v. Federal Trade Comm'n, 518 F.2d 962 (9th Cir. 1975), cert. denied, 423 U.S. 827, 96 S.Ct. 41, 46 L.Ed.2d 42; Carter Products v. Federal Trade Comm'n, 186 F.2d 821 (7th Cir. 1951). The Supreme Court itself has held that the Commission may prevent false advertising as unfair and deceptive even though the product ultimately purchased is worth what the consumer pays for it. Federal Trade Comm'n v. Colgate-Palmolive Co., 380 U.S. 374, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965); Federal Trade Comm'n v. Standard Educ. Soc'y, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141 (1937).\\nIf the case were one in which the Attorney General sought to enjoin a real estate agency under section 207 from misrepresentation of acreage in its advertisements, no defense would be permitted, under federal interpretations of the Federal Trade Commission Act, based on the real estate agency's good faith or lack of intent to deceive, or their customers' awareness of the truth before executing their contracts of purchase and sale, or on the fact that the real estate purchased is actually worth what the customer paid for it. However, the present appeal arises from an action brought by private individuals under section 213. The appellants were required to show that they purchased the property primarily for personal, family or household purposes and thereby suffered \\\"loss of money or property\\\" as a result of appellees' misrepresentations about the acreage. Without question, they come .within the scope of section 213 as purchasers of property \\\"primarily for personal, family or household purposes.\\\" Their difficulty arises from the nature of their claim to relief in view of the requirements for recovery under that section.\\nAlthough in the interpretation of section 207 the courts of Maine must be guided by federal interpretations of section 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. \\u00a7 45(a)(1), an important difference between the Maine and federal acts renders impossible an all-inclusive application of that principle in a case arising under section 213 of the Maine statute: The federal statute has no provision like section 213 under which an individual may pursue his own remedy for a violation of the Act. An individual consumer may not bring a private action under section 5(a)(1). Holloway v. Bristol-Myers Corp., 158 U.S.App.D.C. 207, 485 F.2d 986 (D.C. Cir. 1973). Hence there is no body of federal law to which we may resort to determine the meaning of certain provisions of section 207 in the context of a private suit under section 213. In particular, the individual suing under section 213 must prove that by purchasing or leasing he has suffered a \\\"loss\\\" of money or property as a result of the prohibited conduct of the defendant. Under the Federal Trade Commission Act, if representations have a \\\"capacity or tendency to deceive\\\" the Commission may maintain an action for false advertising without proof of actual deception of any consumer. Resort Car Rental System, Inc. v. Federal Trade Comm'n, 518 F.2d 962 (1975), cert. denied, 423 U.S. 827, 96 S.Ct. 41, 46 L.Ed.2d 42; Regina Corp. v. Federal Trade Comm'n, 322 F.2d 765, 768 (3d Cir. 1963). Although in an action brought by the Maine Attorney General under section 207 the Maine courts might apply a similar rule, an individual consumer suing privately under section 213 cannot establish that by his purchase or lease he has suffered a loss as a result of false representations by proving merely that the representations had a \\\"capacity or tendency to deceive.\\\"\\nIn a private suit, the requirement of loss to the plaintiff consumer resulting from defendant's wrongful act unavoidably limits the scope of the provision of section 207 that the courts, in interpreting section 207 of the Maine statute, be guided by federal decisions under section 5(a)(1) of the Federal Trade Commission Act. The Supreme Judicial Court of Massachusetts has recognized the similar limiting effect of the private-rights section of the Massachusetts unfair trade practices statute. Baldassari v. Public Finance Trust, 369 Mass. 33, 337 N.E.2d 701 (1975).\\nThe same difficulty appears in another aspect: The Federal Trade Commission Act is designed primarily to protect the public, not to punish wrongdoers or to afford direct remedies to private citizens. Its primary purpose is to afford a preventive remedy, not a compensatory one, and the Commission does not have to demonstrate the violation of some private right as a basis for its remedial action. The Commission and the federal courts are mainly concerned, in applying section 5(a)(1), with defendants who are engaged in continuing or repeated acts or practices deemed by the Commission to be unlawful under that section. Because the primary purpose is to stop unfair or deceptive practices, the chief remedy of the Commission is the cease-and-desist order enforceable by civil penalties in the federal courts. Section 213 of the Maine statute, on the other hand, gives the consumer-plaintiff the remedies of \\\"restitution\\\" and \\\"such other equitable relief, including an injunction, as the court may deem to be necessary and proper.\\\" Since there is no analogue in the federal statute for the remedy by a consumer's action and since the preventive purpose of the Commission's action under the federal act is different from the restitutionary purpose of individual private relief under the Maine statute, the federal decisions afford uncertain guidance in the interpretation of the Maine private remedial provisions.\\nAnalysis of section 213 reveals that when the Maine Legislature revised the Unfair Trade Practices Act to include a right of direct private action by injured consumers, it circumscribed the basis of recovery. Private suits were added in 1973 to the official remedies already available in Maine primarily to enable consumers who have given value for inferior goods or services as a result of deceptive acts or practices to obtain restitution directly from the merchants thereby unjustly enriched. To avoid discouragement of such consumers by the expense of litigation, they were given the right, under the conditions specified in section 213, to the award of costs and reasonable attorneys' fees.\\nIt was perceived, however, that consumers had been given a powerful weapon which was capable of being used improperly for harassment and improper coercive tactics by plaintiffs in view of the rigorous application the federal courts had given to section 5(a)(1) of the Federal Trade Commission Act in the context of preventive litigation by the Government. Some limitation was necessary; otherwise, for example, it was possible that a private citizen, even though personally unaffected, could maintain an action to enjoin the misrepresentation of a product or service by showing merely that it constituted a \\\"material factor in a purchaser's decision whether to buy.\\\" Federal Trade Comm'n v. Colgate-Palmolive Co., 380 U.S. 374, 386, 85 S.Ct. 1035, 1043, 13 L.Ed.2d 904 (1965). Hence the requirement in section 213 that the plaintiff consumer have suffered a loss as a result of his purchase. As stated by the Massachusetts court in Baldassari v. Public Finance Trust, 369 Mass. 33, 46, 337 N.E.2d 701, 709 (1975):\\n\\\"According to the principal draftsman of G.L. c. 93A, \\u00a7 9, the 'sole purpose' of the requirement that the plaintiff suffer loss of money or property 'is to guard against vicarious suits by self-constituted private attorneys general when they spot an apparently deceiving advertisement in the newspaper, on television or in a store window.' Rice, New Private Remedies for Consumers: The Amendment of Chapter 93A, 54 Mass.L.Q. 307, 314 (1969). Cf. Nostrand, Treble Damage Actions for Victims of Unfair and Deceptive Trade Practices: A New Approach, 4 New England L.Rev. 171, 174 (1969). The plaintiffs here have alleged grievances which are not at all 'vicarious', but we do not think they have alleged 'loss of money or property'.\\\"\\nSection 213 contains an additional limitation not present in the Massachusetts statute. The consumer's action under section 213 is not for damages generally but for \\\"restitution.\\\" Not only must the consumer suffer a loss of money or property by his purchase as a result of a method, act or practice unlawful under section 207, but his statutory action is \\\"for restitution\\\" and for other necessary and proper equitable relief, including an injunction. In its technical sense, \\\"restitution\\\" refers to a person's recovery of benefits he has conferred on another in circumstances making it unjust or inequitable for the other to retain those benefits. See Restatement of Restitution, passim, especially Introductory Note and \\u00a7 1, 3, 4, 21, 28, 150, 151 (1937). On the facts of the present case, if appellants' claim under the statute must be based on the restitution of benefits conferred by them on the appellees, their loss recoverable from appellees would have been the $3,000 they paid on the purchase price. They did not assert a claim for that loss. Instead, they affirmed the agreement by closing the transaction, accepting title from the seller, and paying the rest of the price. Appellants' purported reservation of a right to recover damages measured by the alleged difference between the value of the land as represented and its actual value had no relation to the right they once had to restitution under section 213. The value of the difference in acreage might have been appropriate as a measure of damages for fraud and deceit, but such damages are not restitutionary in the technical sense: they do not represent the value of any benefit appellants conferred on appellees during the transaction.\\nThe chief question is whether the provision of section 213 that the consumer's loss be recoverable by an action in the Superior Court \\\"for restitution\\\" is to be understood in the technical sense. It is arguable, of course, that the word \\\"restitution\\\" could be taken in the broad sense to include whatever amount is necessary to make the plaintiff whole, regardless of any enrichment of the defendant. However, there are several reasons supporting the conclusion that the legislative purpose was to use the word in its technical sense.\\nFirst, the \\\"loss\\\" for which an action for restitution is permitted by section 213 is a loss \\\"of money or property.\\\" On its face, without the benefit of a strained interpre tation, that language appears to rule out recovery, under the statute, of several kinds of non-restitutionary damages, such as damages for personal injury, mental distress or loss of time. No reason appears for supposing that it was the purpose of the language to exclude an action for some kinds of non-restitutionary relief but include it for others. Common law actions for negligence and breach of warranty are available in appropriate cases for non-resti-tutionary damages in situations where personal injuries or damages to property have occurred.\\nSecond, the language of subsection (1) of section 213 is closely similar to that of subsection (1) of the Massachusetts provision for private remedies, with the exception that instead of authorizing an \\\"action for restitution\\\" the Massachusetts statute authorizes an \\\"action for damages.\\\" The fact that the Maine Legislature made that singular change in a subsection otherwise nearly identical to the corresponding Massachusetts provision suggests that the change was made carefully and with the purpose of rendering the Maine remedy more limited in scope than its Massachusetts prototype.\\nThird, when section 213 of title 5 was enacted, section 209 had already been amended to permit the court, in an Attorney General's action under section 207, to make orders to restore to any person who has suffered \\\"any ascertainable loss\\\" because of the use of an unlawful method, act or practice, any money or property \\\"which may have been acquired by means of such method, act or practice.\\\" The restoration contemplated in section 209 is plainly resti-tutionary: the money or property to be \\\"restored\\\" to the consumer is that which has been \\\"acquired\\\" \\u2014 namely, by the defendant. Although it is conceivable that two different measures of recovery for consumers were intended by sections 209 and 213, the similarity of much of the relevant language in the two sections suggests otherwise. It is more likely that the theory of recovery by a consumer's action under section 213 was intended to be similar to the theory of recovery on behalf of consumers in an Attorney General's action under section 209.\\nWe conclude that the \\\"action in the Superior Court for restitution\\\" referred to in section 213 is available to a consumer to recover any benefits he has conferred on a person who by violation of section 207 has caused the consumer to suffer loss of money or property. Count I of appellants' complaint does not state a claim for restitution. Their prayer for relief is not a demand for rescission of the transaction. The basis of Count I is that appellants were entitled to the dollar value of .175 acres of land in the neighborhood of the premises; that is, the difference in value between the acreage as misrepresented and the acreage as it was in fact.\\nAs a matter of non-statutory law, if the parties to the contract had arrived at the contract price of $30,000 on the basis of a computation from some price per acre and if appellants had then completed their purchase and paid the price in ignorance of the mistake in acreage, appellants might have maintained an action for restitution of the difference. Restatement of Restitution \\u00a7 21 and Comments (1937). But the trial court found that appellants contracted to purchase the buildings and land in gross and that the amount of the purchase price was not determined on a \\\"per acre\\\" basis. Those findings are supported in the record by the testimony of appellants' own witness that the property was worth the contract price and by the fact that appellant affirmed the contract despite the seller's offers of rescission.\\nIn such circumstances, when appellants discovered the misrepresentation about acreage, their restitutionary remedy was to rescind the contract, obtaining return of their payments on the price. They were not entitled to reformation of the contract either directly or by abatement of the price, there having been no understanding among the persons involved as to any relationship between price and acreage. No basis existed for reformation of the price term in the contract. The appellants' own ideas about the market value of .175 acres in that neighborhood could not be imposed on the seller in the form of an abatement of price. Hence, after appellants rejected rescission, affirmed the contract, paid the rest of the $30,000 and accepted title, they no longer had any restitutionary remedy. The \\\"reservation\\\" in their letter to Mr. Moore on October 10 \\\"of the right to sue for the difference between the advertised description of the property and that stated in the deed\\\" could not have been effective to reserve any restitutionary right after they completed their purchase of the property, for no such right existed.\\nAs a consequence, the demand in Count I of appellants' complaint for the dollar value of .175 acres of land does not state a claim cognizable in an action for restitution under section 213. Appellants' other claims in Count I, for reimbursement of their expenses related to the transaction, cannot form the basis of an action for restitution. Those expenses do not represent any benefits conferred on the appellees. Thus, for reasons different from those stated by the trial justice, we think his decision was correct, that appellants are not entitled to recover under 5 M.R.S.A. \\u00a7 213.\\nII. Fraud\\nIn addition to their claim under the Unfair Trade Practices Act, appellants' complaint included a non-statutory claim for \\\"fraud in the inducement.\\\" They challenge on appeal the finding of the trial justice that, in the facts and circumstances of the case, appellees did not commit fraud.\\nIn Letellier v. Small, Me., 400 A.2d 371, 376 (1979), we stated the elements of fraud as follows:\\n\\\"To summarize, a defendant is liable for fraud or deceit if he (1) makes a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or to refrain from acting in reliance upon it, and (5) the plaintiff justifiably relies upon the representation as true and acts upon it to his damage.\\\"\\nIt is thus a necessary element of the cause of action that the misrepresentation have been made with knowledge of its falsity or in reckless disregard of whether it was true or false.\\nThe trial justice found as a fact that the appellees \\\"advertised the property and made representations of its size to plaintiffs believing, in good faith, that the premises contained three quarters of an acre.\\\" That finding has support from competent evidence in the record. Appellees testified that they misrepresented the area as three-quarters of an acre because they were relying on the seller's statement of acreage at the time he listed the property with them. The seller's own testimony confirmed appel-lees' explanation of their mistake. In the light of the testimony, the trial justice's finding must be interpreted as a conclusion that appellees neither knew their representation to be false nor made it in reckless disregard of whether it was true or false. Appellees could not have made \\\"in good faith\\\" a representation in reckless disregard of whether it was true or false.\\nOn the evidence the trial justice was warranted in concluding that appellants had not proved their claim for fraud.\\nIII. Appellants' Motion for Discovery Sanctions\\nActing pursuant to Rule 36, M.R.Civ.P., appellants requested that appellees make a pre-trial admission of three facts:\\n(1) That the premises contained an area less than 0.6 acres;\\n(2) That the combination garage and barn had not been completely renovated;\\n(3) That a \\\"Por Sale\\\" sign remained on the premises from August 10,1976, to October 10, 1976, without any notice of the pending sale.\\nAppellees denied all three requests. Appellants established the truth of the matters at trial and moved for costs pursuant to Rule 37(c), M.R.Civ.P. The trial justice denied the motion.\\n\\\"The Court denies plaintiffs' motion for expenses and attorney's fees on grounds that, in each case, the admission sought was of no substantial importance, or the defendants had reasonable grounds to believe that they might prevail on the matter, or defendants had other good reason for failure to admit.\\\"\\nThe justice's ruling is reversible only for abuse of discretion. 1 R. Field, V. McKusick & L. Wroth, Maine Civil Practice \\u00a7 37.5 (2d ed. 1970).\\nThe admissions sought in requests numbered \\\"2\\\" and \\\"3\\\" could be reasonably characterized as being \\\"of no substantial importance.\\\" They refer to two instances of conduct on the part of the appellees which, even if they were found to be unfair or deceptive acts under 5 M.R.S.A. \\u00a7 207, could not have resulted in any loss of money or property by the appellants under 5 M.R.S.A. \\u00a7 213. Appellees' advertisement in the Bar Harbor Times, quoted at the beginning of this opinion, was, as a result of its punctuation, open to an interpretation that the barn, as well as the house, was completely renovated. Other advertisements of the same property clearly indicated that only the house was completely renovated. By their own testimony, appellants, having inspected the barn and noted its condition during their visit in August, 1976, were not misled as to its condition.\\nIt is not necessary to consider whether the retention of the \\\"For Sale\\\" sign on the property after the execution of the Bart-ners' purchase and sale agreement could have constituted \\\"bait-and-switch\\\" advertising prohibited by section 207. The retention of the sign had no effect on the appellants and could not have caused them any loss of money or property.\\nWith respect to appellants' request numbered \\\"1\\\": Appellee Moore testified that in October of 1976, after appellants began questioning the accuracy of the representation of acreage, he personally computed the area of the lot at approximately .65 acres. Although by the time of the request for admission it was clear that the lot contained less than three-quarters of an acre, the exact area was not certain. Surveyors appearing for the appellants at the trial testified, in effect, that the exact area depended on whether the westerly lot line ran along the edge of a certain road or between certain pins that seemed to mark the corners of the lot on its westerly side. Each surveyor testified that if the lot extended to the edge of the road it contained more than .6 acres. Thus appellees may have had \\\"reasonable ground to believe\\\" that they might prevail on the matter, or at least good reason for not admitting the amount requested. The justice acted within the permissible range of his discretion in denying appellants' motion.\\nThe entry is:\\nAppeal denied.\\nJudgment affirmed.\\nDELAHANTY, J., did not sit.\\n. The Maine statute is of a type sometimes referred to as a \\\"little FTC act\\\" since it is modeled on the federal act and prohibits both unfair methods of competition and unfair or deceptive acts or practices and contains an express statement of legislative intent that the act be interpreted consistently with the Federal Trade Commission Act. See J. Sebert, Enforcement of State Deceptive Trade Practice Statutes, 42 Tenn.L.Rev. 689, 699 (1975).\\n. P.L. 1971, ch. 229.\\n. P.L. 1973, ch. 251, as amended by P.L. 1973, ch. 788, \\u00a7 13.\\n. Regina Corp. v. Federal Trade Comm'n, 322 F.2d 765 (3d Cir. 1963).\\n. Holloway v. Bristol-Myers Corp., 158 U.S.App.D.C. 207, 485 F.2d 986 (D.C. Cir. 1973).\\n. Rothschild v. Federal Trade Comm'n, 200 F.2d 39 (7th Cir. 1952), cert. denied, 345 U.S. 941, 73 S.Ct. 832, 97 L.Ed. 1367 (1953). On the contrary, the Federal Trade Commission may not use its powers solely for the purpose of vindicating private rights. Montgomery Ward & Co. v. Federal Trade Comm'n, 379 F.2d 666, 672 (7th Cir. 1967). In 1975, the Federal Trade Commission Act was amended to give the courts jurisdiction, in an action by the Commission, to grant relief for the redress of injury to consumers or other persons. See 15 U.S.C. \\u00a7 57b(b).\\n. Nelson v. Leo's Auto Sales, Inc., 158 Me. 368, 185 A.2d 121 (1962).\\n. Before it was amended in 1978, subsection (1) of Mass.Gen.Laws Ann. ch. 93A, \\u00a7 9, provided as follows:\\n\\\"(1) Any person who purchases or leases goods, services or property, real or personal, primarily for personal, family or household purposes and thereby suffers any loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of said section two may, as hereinafter provided, bring an action in the superior court in equity for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.\\\"\\nBy 1978 Mass. Acts ch. 478, \\u00a7 45, subsection (1) of section 9 was amended in respects not material here.\\n. See text at notecall 2, supra.\\n. We are not called upon to decide whether in a properly grounded action for restitution some of those expenses might be recoverable in the discretion of an equity court under the clean-up maxim.\\n. We do not interpret the language of section 213(2) to require the award of attorney's fees where the consumer has failed to establish his claim under section 213(1).\\n. Rule 37(c) provides as follows:\\n\\\"(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.\\\"\"}"
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+"{\"id\": \"8068145\", \"name\": \"Clarence CANNING v. STATE of Maine DEPARTMENT OF TRANSPORTATION\", \"name_abbreviation\": \"Canning v. State Department of Transportation\", \"decision_date\": \"1975-11-20\", \"docket_number\": \"\", \"first_page\": \"605\", \"last_page\": \"609\", \"citations\": \"347 A.2d 605\", \"volume\": \"347\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:44:08.084246+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WER-NICK, ARCHIBALD and DELAHANTY, JJ-\", \"parties\": \"Clarence CANNING v. STATE of Maine DEPARTMENT OF TRANSPORTATION.\", \"head_matter\": \"Clarence CANNING v. STATE of Maine DEPARTMENT OF TRANSPORTATION.\\nSupreme Judicial Court of Maine.\\nNov. 20, 1975.\\nLocke, Campbell & Chapman, by Harry N. Starbranch, Nicholas M. Lanzilotta, Augusta, for plaintiff.\\nDonald L. Beckwith, Legal Division Department of Transportation, Augusta, for defendant.\\nBefore DUFRESNE, C. J., and WEATHERBEE, POMEROY, WER-NICK, ARCHIBALD and DELAHANTY, JJ-\", \"word_count\": \"2098\", \"char_count\": \"13051\", \"text\": \"WEATHERBEE, Justice.\\nThis is an appeal by both the claimant and his employer under 39 M.R.S.A. \\u00a7 103 from a pro forma decree of the Superior Court for Waldo County sustaining an Industrial Accident Commission decree ordering total disability compensation to the claimant during a period of hospitalization occasioned by an attack of angina. The claimant contends that he is permanently disabled and that the Commissioner's conclusion that the claimant's disability, and hence his compensation, ended with his discharge from the hospital is in error. The employer, on the other hand, protests that the Commissioner's order of compensation during the period of hospitalization was error, and argues that the claimant's angina is not a compensable injury as that term is used in the Maine Workmen's Compensation Act. 39 M.R.S.A. \\u00a7 1-195. We deny both appeals.\\nAfter a hearing on October 8, 1974, the Commissioner found the following facts: At the time of the injury, Clarence Canning, the claimant, was employed as a highway maintenance man by the State Department of Transportation. On April 30, 1974, while shoveling dirt from under the wheel of a truck, the claimant experienced sudden severe chest pain. He immediately consulted Dr. Caswell, a physician, who admitted him to the cardiac unit of the Waldo County Hospital and performed certain tests including a cardiogram. The results of these tests were negative. Dr. Caswell concluded that the claimant had a coronary insufficiency that resulted in an attack of angina induced by excessive exertion on April 30, 1974. Dr. Caswell testified that the coronary insufficiency preexisted the shoveling incident and that except for heavy labor the claimant was not disabled at the time of the hearing.\\nReports of a second physician, Dr. Knu-uti, were admitted by agreement of counsel and were considered as testimony. Dr. Knuuti concluded from his examination of the claimant and a study of the records that the claimant had not experienced a myocardial infarction. His diagnosis was that the claimant suffered from diabetes, mild hypertension and probable arterios-clerotic heart disease with angina. Dr. Knuuti stated that he could not relate the chest pain to a heart condition and that in his opinion the exertion on April 30 did not aggravate the claimant's condition.\\nBased on the testimony of the two physicians, the only witnesses at the hearing, the Commissioner concluded that on April 30, 1974, the claimant engaged in exertion heavier than his pre-existing heart condi tion could endure, causing the attack of angina. The Commissioner further found that pain produced by this episode totally disabled the claimant during his hospitalization and ordered full compensation during that period. The angina pain which the claimant continues to suffer on exertion is, in the Commissioner's words, \\\"related to an underlying arteriosclerotic heart disease not caused by the shovelling incident in April 1974, and not arising out of his employment.\\\"\\nBefore addressing the issue raised on this appeal, this Court must consider the preliminary question of the parameters within which those issues are to be resolved. The criteria for entitlement to compensation for injury are established by section 51 of the Maine Workmen's Compensation Act which, at the time the claimant was injured, require, inter alia, that the injury be received \\\"by accident\\\". We note, however, that the Commissioner nowhere characterizes the claimant's chest pains as an \\\"injury by accident\\\" and we must now decide whether the criterion of accidental injury should be applied to the claimant in this case.\\nThe phrase \\\"injury by accident\\\" has been an integral part of the Maine Workmen's Compensation Act since the statute was introduced in 1915. P.L.1915 ch. 295. Yet effective October 3, 1973, the Legislature deleted the words \\\"by accident\\\" from section 52, a section which enables the claimant to receive certain hospital and medical services and aids and assistance in rehabilitation if he otherwise qualifies under the act, but the words were not deleted from section 51 which provides for payment of compensation.\\nWas it the 1973 Legislature's intention that the law should remain that compensation could be awarded only if the injury was \\\"by accident\\\" but that the employee should be entitled to reasonable medical aids and services and rehabilitation at the employer's expense for any work related injury? Or did the 1973 Legislature intend a broad liberalization of the criteria for qualification for all benefits for industrial injuries?\\nOddly enough, so radical a change in Workmen's Compensation law passed both houses of the Legislature without debate or comment. In applying the Workmen's Compensation Act to the facts of this case our primary duty is to effectuate the intent of the Legislature and that intent must now be hypothesized by inferences to be drawn from legislative action and our own understanding of the Act.\\nWe have no doubt that the Legislature intended the extended coverage to include both types of benefits. Indeed, there seems no rational basis for distinguishing between eligibility for the two types of benefits which would support their differential treatment by the Legislature.\\nWe also note that when it was introduced as a Legislative Document the bill which amended section 52 was entitled AN ACT to Modify the Test for Determining Coverage of Injuries under the Workmen's Compensation Act. The very general language of the title strongly suggests that the Legislature meant to modify the criteria for coverage under the entire Act and not merely under section 52 relating to a rather specialized type of benefits.\\nWe believe that the modification was intended to avoid results such as the one represented by our later decision in Towle v. Department of Transportation, Me., 318 A.2d 71 (1974) in which we held that a claimant who suffered a gradual back strain as a result of the posture he was required to assume in discharging his duties was not entitled to compensation because he was not the victim of an \\\"accident\\\" within the meaning of the Act. Although the majority of the Court viewed the Towle holding as necessitated by Maine law, it is clear that in avoiding the inevitable results which transpired in that line of cases of which Towle is only an example, the Legislature was attempting to sharpen or reemphasize the original purpose of the Act. Stated quite simply, this purpose was to compensate employees for injuries suffered while and because they were at work. See, e.g., Bartley v. Couture, 143 Me. 69, 55 A.2d 438 (1947). This attempt to liberalize the Act could be achieved fully only by excising the accident standard from the entire Act.\\nWe therefore believe that the Legislature intended to delete from the entire Act the criterion that injury be received \\\"by accident\\\" but, through some oversight, failed to do so. This Court is required to effectuate the intent of the Legislature, not its oversights. See, Maine Central Institute v. Inhabitants of Palmyra, 139 Me. 304, 30 A.2d 541 (1943). We will therefore review this appeal as if the deletion of the phrase \\\"by accident\\\" from section 51 was effective on October 1, 1973.\\nIn turning to the issues presented, it is necessary to note that the Commissioner's findings of fact are final if supported by some competent evidence and by reasonable inferences that may be drawn therefrom. 39 M.R.S.A. \\u00a7 99; Soucy v. Fraser Paper, Me., 267 A.2d 919 (1970); Starbird v. Livermore Shoe Co., Me., 239 A.2d 170 (1968). Whether a disability exists and the extent and nature of that disability are questions of fact. Bolduc v. Pioneer Plastics Corp., Me., 302 A.2d 577 (1973); White v. Monmouth Canning Co., Me., 228 A.2d 795 (1967). Finally, the burden of proving the absence of any competent evidence upon which the Commissioner could have supported his conclusions rests with the moving party. Baker's Case, 143 Me. 103, 55 A.2d 780 (1947).\\nWe consider first the appeal of the claimant who urges that the injury on April 30 permanently disabled him and that the Commissioner therefore erred in refusing to allow compensation beyond the date of hospitalization. Although Dr. Caswell testified that he believed the angina pains which the claimant suffered following the shovelling incident resulted from a pre-ex-isting \\u2014 and permanent \\u2014 coronary insufficiency which was itself unaffected by the incident, he later said:\\n\\\"I think the symptoms [the angina pains] still disable him as far as the time period goes. I don't think his symptoms disabled him only for his hospital period. I think he's still disabled by these symptoms.\\nCOMMISSIONER: Which you trace to the incident in April of 1974?\\nWITNESS: Well, I think he's \\u2014 that since the incident in 1974 he has been disabled and that he is still disabled. I think that before April 1974 if he had perhaps done something equivalent in effort to what he did then, he would have had them at that time.\\\"\\nThe doctor had earlier expressed his opinion that the claimant was not disabled from any work and that, for example, he can drive a truck but that\\n\\\"I believe that his coronary insufficiency disables him from strenuous physical exertion.\\\"\\nThe chest pains, he said, were symptoms of this insufficiency. The Commissioner could reasonably \\u2014 and correctly, we believe \\u2014interpret the doctor's statement as to present disability to mean that the claimant's shovelling episode, precipitating, as it did, chest pains, demonstrated that his pre-existing coronary insufficiency will not permit him to engage in such strenuous labor without further angina attacks. He used the word \\\"disabled\\\", it appears clear, to refer to the claimant's pre-existing and permanent limitations and not in the legal meaning of disability as an inability \\\"to perform or obtain work suitable to the employee's qualifications and training.\\\" Bolduc v. Pioneer Plastics Corp., supra, 302 A.2d at 580.\\nAn employee is, of course, entitled to compensation for a disability proximately caused by his employment regardless of whether his condition at the time of injury was average or subnormal. Thus, a work injury that aggravates a pre-existing condition is compensable even though a physically normal employee would have been unaffected, provided the injury occurs under conditions that would otherwise entitle the employee to compensation. Soucy v. Fraser Paper, supra; Bernier v. Coca-Cola Bottling Plants, Inc., Me., 250 A.2d 820 (1969); Healey's Case, 124 Me. 54, 126 A. 21 (1924). To be compensable, the injury must arise out of the employment, that is, it must not be independent of the employment, but must be causally related to the conditions under which the employee worked. Gooch's Case, 128 Me. 86, 145 A. 737 (1929). Our review of the testimony of the two physicians convinces us that the Commissioner was not clearly in error in concluding that the claimant's condition, after his release from the hospital, was the same as it had been before the injury and hence was not an incident of his employment. There was, moreover, no evidence suggesting that the deteriorated arterial condition itself was caused by the claimant's employment.\\nThe employer, in turn, contends that the claimant's chest pains were not the result of a personal injury arising out of and in the course of his employment because the record fails to prove either the nature of the injury or its occurrence as something other than \\\"the result of a natural progression\\\". We think that the Commissioner had competent evidence upon which to base his conclusion that the chest pains which were brought on by the shovelling constitute a compensable injury. Dr. Caswell testified that the claimant's unusual exertion brought on his pains which required the brief hospitalization. A decision by the Commissioner based on any medical testimony will not be disturbed on appeal. Mailman's Case, 118 Me. 172, 106 A. 606 (1919). That a pre-existing condition was in part responsible for the claimant's period of disability does not in itself render the injury noncompensable. Soucy v. Fraser Paper, supra.\\nThe entries will be:\\nEmployee's appeal denied.\\nEmployer's appeal denied.\\nOrdered that $350.00 to cover fees and expenses of counsel for the employee be paid by the employer to the employee.\\nAll Justices concurring.\\n. While it is not possible to determine the intent of one legislature from the actions of a succeeding legislature, we note that the 107th Legislature deleted the words \\\"by accident\\\" from section 51 and eliminated other references to accident in various other sections of the Workmen's Compensation Act. P.L.1975 ch. 480.\"}"
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+"{\"id\": \"8084398\", \"name\": \"STATE of Maine v. Frederick COPELAND\", \"name_abbreviation\": \"State v. Copeland\", \"decision_date\": \"1978-10-05\", \"docket_number\": \"\", \"first_page\": \"836\", \"last_page\": \"839\", \"citations\": \"391 A.2d 836\", \"volume\": \"391\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:28:21.343674+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McKUSICK, C. J., and POMER-OY, WERNICK, DELAHANTY, GOD-FREY and NICHOLS, JJ.\", \"parties\": \"STATE of Maine v. Frederick COPELAND.\", \"head_matter\": \"STATE of Maine v. Frederick COPELAND.\\nSupreme Judicial Court of Maine.\\nOct. 5, 1978.\\nDavid M. Cox, Dist. Atty., Gary F. Thorne, Asst. Dist. Atty. (orally), Bangor, for plaintiff.\\nHarold C. Hamilton, II (orally), Bangor, Sharma Trager, Law Student, for defendant.\\nBefore McKUSICK, C. J., and POMER-OY, WERNICK, DELAHANTY, GOD-FREY and NICHOLS, JJ.\", \"word_count\": \"1605\", \"char_count\": \"9764\", \"text\": \"McKUSICK, Chief Justice.\\nDefendant Frederick Copeland appeals from a Superior Court conviction in Penob-scot County for operating a motor vehicle under the influence of intoxicating liquors in violation of 29 M.R.S.A. \\u00a7 1312(10). His sole ground for appeal is his claim that the conduct of the Bangor police deprived him of his due process and statutory right to a blood test, which might have tended to exculpate him. We deny the appeal.\\nBangor Police Officer Welch arrested Copeland at about 5:15 a. m. on Sunday morning, October 23, 1977. At the police station, officers informed Copeland of his rights under the motorist's implied consent law, 29 M.R.S.A. \\u00a7 1312. Copeland requested a blood test. In accordance with the standard procedure of the Bangor Police Department, Officer Welch then took Copeland to St. Joseph's Hospital. On arriving at St. Joseph's Copeland told Welch that he was an adherent of osteopathic medicine and that he wished to be taken to the James A. Taylor Hospital instead. Though Officer Welch refused to take him there on the ground that the police department's standard operating procedure dictated use of the facilities at St. Joseph's, Welch did undertake to find an osteopathic physician to draw defendant's blood. Welch called four or five physicians selected by Copeland from the telephone directory but failed to obtain their services. Only after this diligent, good faith effort to secure an osteopathic physician for Copeland did Officer Welch attempt to convince defendant to let St. Joseph's Hospital personnel draw his blood.\\nThe attending nurse who would have drawn Copeland's blood told him that he was required to sign a printed hospital liability release, which purported to absolve the hospital from any liability whatsoever which might result from the blood drawing procedure. Copeland was reluctant to sign the release, but after being informed that failure to submit to the test would automatically result in a three-month suspension of his driving privileges, he agreed to sign. However, before signing his name, Copeland added a written comment to the form, reading \\\"person had no signed I.D. saying she had right to draw blood from me.\\\" As soon as the nurse observed the language added by Copeland, she refused to draw his blood, treating the inscription as a limitation upon the required unqualified release. Officer Welch informed Copeland that the added language made it impossible for St. Joseph's personnel to take a sample of his blood. Thereupon, officer Welch transported Copeland back to the police station and no blood test was ever performed. Defendant was convicted on evidence other than the results of any alcohol test.\\nAs this court said in State v. Ayotte, Me., 333 A.2d 436, 439 (1975), the motorist's implied consent law does not guarantee that facilities will always be available for intoxication tests for the benefit of arrested persons. On the other hand, once the defendant has elected to take the blood test under the statute, the police, \\\"consistent with security and with other police responsibilities,\\\" are obliged to cooperate in assisting him to procure his selected test. Id. at 439. Compliance with this police obligation arising from the implied consent statute will at the same time satisfy the due process requirements declared in State v. Munsey, 152 Me. 198, 201, 127 A.2d 79, 81 (1956), long prior to the enactment of the statute, that the arrestee be accorded \\\"a reasonable opportunity, [consistent with safe custody] . to procure the seasonable taking of a blood sample for test purposes.\\\"\\nThis case, which was tried to a jury in March of this year, is controlled by our decision certified on April 11, 1978, in State v. Deering, Me., 384 A.2d 447 (1978). In the case at bar, defendant did ask to be taken to another hospital from St. Joseph's, but nothing appears in the record to indicate the other hospital would have drawn his blood at that hour early Sunday morning. Furthermore, in this case the arresting officer went to considerable length, at defendant's request, to try to find an osteopathic physician to draw his blood. As in Deering, id. at 449, we find no violation of defendant's statutory or constitutional rights on the facts of the present case. The police officer appropriately cooperated with this defendant in an attempt to get a blood test, as he was required to do by the statute, and he a fortiori \\\"afforded [defendant] the reasonable opportunity [to attempt to procure a blood test] to which he was entitled as a matter of fair play.\\\" State v. Munsey, supra, 152 Me. at 204, 127 A.2d at 83.\\nThe trial justice submitted to the jury the due process question whether the police had done \\\"anything to affirmatively prevent [defendant] from obtaining exculpatory evidence\\\" or whether there was \\\"any reasonable doubt that [defendant] was accorded governmental fair play.\\\" This was a mistake. The due process issue went to the very root of the prosecution. It was inappropriate to call upon the jury to consider and determine whether or not governmental misconduct barred the prosecution from going forward. Due process issues involving alleged police interference with the efforts of a defendant to gather exculpatory evidence are to be heard and decided by the court, not by a jury. State v. Couture, 156 Me. 231, 248, 163 A.2d 646, 655 (1960); cf. State v. Collins, Me., 297 A.2d 620, 631-36 (1972).\\nThe reasons for entrusting the trial justice, rather than the jury, with this responsibility were well stated by Justice Web-ber:\\n\\\"He [a juror] has not been schooled by legal training to concern himself with the methods by which guilt is shown. He tends understandably to resist the concept that the man who is obviously guilty must nevertheless go free unless his guilt can be demonstrated by legally admissible evidence lawfully obtained. It is reasonable to hope and believe that one trained in law and fortified by judicial experience can more readily insulate his mind from the near certainty of guilt and make a dispassionate judgment as to the methods by which the blood test evidence was obtained.\\\" State v. Merrow, 161 Me. 111, 121, 208 A.2d 659, 664 (1964) (Web-ber, J., concurring.)\\nAlthough the question whether defendant's due process rights were violated should not have gone to the jury, that error avails defendant nothing on appeal. By its guilty verdict the jury answered that question in the negative. The circumstances of this case, where there is no dispute as to the pertinent facts, compelled that answer\\u2014 whoever was to decide the question. Thus, the conviction in this case was unaffected by the misallocation of function between the judge and the jury.\\nThe entry must be:\\nAppeal denied.\\nJudgment affirmed.\\nARCHIBALD, J., did not sit.\\n. The implied consent law provides in part:\\n\\\"Any person who operates or attempts to operate a motor vehicle within this State shall be deemed to have given consent to a chemical test to determine his blood-alcohol level by analysis of his blood or breath, if arrested for operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor.\\n\\\"He shall be informed by a law enforcement officer of the tests available to him, and said accused shall select and designate one of the tests. At his request he may have a test of his blood administered by a physician of his choice, if reasonably available.\\\"\\n.Courts in other jurisdictions have discussed the impropriety of submitting similar constitutional questions to juries.\\nReferring to the defense of entrapment in a concurring opinion representing the views of himself and Justices Brand\\u00e9is and Stone, Justice Roberts wrote: \\\"It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. . . . \\\" Sorrells v. United States, 287 U.S. 435, 457, 53 S.Ct. 210, 218, 77 L.Ed. 413 (1932) (Roberts, J., concurring).\\nA number of courts have held that a claim of discriminatory enforcement of the law, in violation of the equal protection clause, should be decided by the trial court, and not submitted to juries:\\n\\\"The claim of discriminatory enforcement should not be treated as a defense to a criminal charge, to be tried before the jury and submitted to it for decision, but should be treated as an application to the court for a dismissal or quashing of the prosecution upon constitutional grounds. Insofar as a question of fact may be involved, the court should take evidence in the absence of the jury and should decide the question itself.\\\" People v. Utica Daw's Drug Co., 16 A.D.2d 12, 18, 225 N.Y.S.2d 128, 131-32 (1962).\\nSee also United States v. Berrigan, 482 F.2d 171 (3rd Cir. 1973); Murgia v. Municipal Court, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44 (1975).\\n. Anything to the contrary said in State v. Munsey, 152 Me. 198, 203-04, 127 A.2d 79, 82-83 (1956), must be considered rejected.\\n. Similarly, Justice Frankfurter observed that in order to resolve due process issues, judges must be endowed with special characteristics not shared by laymen:\\n\\\"To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that one's own views are incontestible and alert tolerance toward views not shared.\\\" Rochin v. California, 342 U.S. 165, 171, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952).\"}"
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+"{\"id\": \"8101199\", \"name\": \"Joseph A. FOURNIER d/b/a Royal Siding & Rooting Co. v. MAINE EMPLOYMENT SECURITY COMMISSION\", \"name_abbreviation\": \"Fournier v. Maine Employment Security Commission\", \"decision_date\": \"1965-02-05\", \"docket_number\": \"\", \"first_page\": \"925\", \"last_page\": \"927\", \"citations\": \"206 A.2d 925\", \"volume\": \"206\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:10:18.048670+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WILLIAMSON C. J., and WEB-BER, TAPLEY, SULLIVAN, SIDDALL, and MARDEN, JJ.\", \"parties\": \"Joseph A. FOURNIER d/b/a Royal Siding & Rooting Co. v. MAINE EMPLOYMENT SECURITY COMMISSION.\", \"head_matter\": \"Joseph A. FOURNIER d/b/a Royal Siding & Rooting Co. v. MAINE EMPLOYMENT SECURITY COMMISSION.\\nSupreme Judicial Court of Maine.\\nFeb. 5, 1965.\\nJohn G. Marshall, Lewiston, for plaintiff.\\nFrank A. Farrington and Milton L. Bradford, Asst. Attys. Gen., Augusta, for defendant.\\nBefore WILLIAMSON C. J., and WEB-BER, TAPLEY, SULLIVAN, SIDDALL, and MARDEN, JJ.\", \"word_count\": \"804\", \"char_count\": \"4914\", \"text\": \"WEBBER, Justice.\\nThe appellant Fournier is engaged in the business of selling and installing roofing and siding materials. He is admittedly a covered employer within the meaning of the Maine Employment Security Law, R.S. 1954, Ch. 29 (now 26 M.R.S.A. \\u00a7 1041 et seq.). The only issue raised is whether or not additional contributions are due from appellant based upon remuneration paid as \\\"commissions\\\" to \\\"salesmen\\\" in 1959 and subsequently; -The ' appellant denies liability and contends that the individuals who received such remuneration were without exception independent contractors, brokers or so-called \\\"free lancers\\\" and not employees within the meaning of the Act.\\nDecision necessarily rests on the application of the so-called ABC tests set forth as R.S.19S4, Ch. 29, Sec. 3, Subsec. XI, Par. E, Subpars. 1, 2 and 3; now 26 M.R.S.A. \\u00a7 1043, sub. 11, par. E (1,2,3). Exemption is established only if all three conditions are met. Hasco Mfg. Co. v. Maine Employment Security Commission (1962) 158 Me. 413, 185 A.2d 442. The Commission found that the employer had failed to meet any of the three required tests. On appeal the Superior Court determined as a matter of law that the Commission was in error as to proof of the A and B tests but sustained its conclusion with respect to the C test. Since the employer may prevail here only if the decision below was \\\"clearly erroneous\\\" (Hasco, supra), we confine ourselves to the allegation of error with respect to the C test as set forth in Subparagraph 3.\\nThe pertinent portion of the statute is as follows:\\n\\\"E. Services performed by an individual for remuneration shall be deemed to be employment subject to the provisions of this chapter unless and until it is shown to the satisfaction of the commission that: and\\n\\\"3. Such individual is customarily engaged in an independently established trade, occupation, profession or business.\\\" (Emphasis ours.)\\nIt is not disputed that certain individuals received remuneration from the appellant treated on his books as \\\"commissions\\\" paid for services rendered. The latter then has the burden of satisfying the Commission as to the application of the elements of the C test set forth in Subpara-graph 3 above to these individuals. In this connection the Commission stated in its decision, \\\"We find that the salesmen in question are not engaged in an independently established trade, occupation, profession or business.\\\"\\nThe record before us discloses no error. We are not informed as to the names of the persons whose remuneration has been included for computation purposes. The sole witness with respect to the C test was the appellant himself. His testimony was in general terms and with respect to other alleged business activities of his \\\"salesmen\\\" may properly have been regarded by the Commission as vague and inconclusive. None of the so-called \\\"salesmen\\\" was presented to describe his business activities apart from services performed for the appellant. There was no other independent or impartial evidence as to the activities of these individuals. Reference was made by the appellant to his business transactions with a firm known as Lotti & Stuart. This testimony was not helpful since it appears that Lotti & Stuart was treated for computation purposes as a straight subcontractor and was not included as a claimed \\\"employee.\\\" Reference was also made to a Mr. Goldstein but the record is nowhere clear as to whether or not he was ever paid for services and, if so, when or in what amount. The appellant testified in part with respect to Mr. Goldstein: \\\"So, when I seen that that was the kind of man he was, I refused to take his contract and I told him that I wouldn't have no business with him whatsoever.\\\" Whether or not Mr. Goldstein may have operated an independent business is not material unless it is first shown that an effort is being made to treat him as an \\\"employee\\\" of the appellant. The same may be said of references in the testimony as to alleged independent activities of a Mr. Berg-eron. The appellant indicated that there are at least three other unnamed \\\"salesmen\\\" who \\\"really never sold for anybody but (appellant).\\\"\\nWe cannot see beyond the record here presented. The weight and credibility of the appellant's testimony was for the Commission. We can only say that the evidence before us does not show with any certainty whatever that each of these unidentified \\\"employees\\\" was \\\"customarily engaged in an independently established trade, occupation, profession or business\\\" as required by the so-called C test.\\nAppeal denied.\"}"
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+"{\"id\": \"8180697\", \"name\": \"CAMDEN NATIONAL BANK v. CREST CONSTRUCTION, INC. et al.\", \"name_abbreviation\": \"Camden National Bank v. Crest Construction, Inc.\", \"decision_date\": \"2008-07-10\", \"docket_number\": \"\", \"first_page\": \"213\", \"last_page\": \"218\", \"citations\": \"952 A.2d 213\", \"volume\": \"952\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:01:43.488603+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: CLIFFORD, ALEXANDER, LEVY, SILVER, and GORMAN, JJ.\", \"parties\": \"CAMDEN NATIONAL BANK v. CREST CONSTRUCTION, INC. et al.\", \"head_matter\": \"2008 ME 113\\nCAMDEN NATIONAL BANK v. CREST CONSTRUCTION, INC. et al.\\nSupreme Judicial Court of Maine.\\nArgued: Nov. 5, 2007.\\nDecided: July 10, 2008.\\nMichael S. Haenn, Esq. (orally), Bangor, ME, for Camden National Bank.\\nJ. Hilary Billings, Esq. (orally), Law Office of J. Hilary Billings, Portland, ME, for Anne Morrow.\\nPanel: CLIFFORD, ALEXANDER, LEVY, SILVER, and GORMAN, JJ.\", \"word_count\": \"2443\", \"char_count\": \"14329\", \"text\": \"CLIFFORD, J.\\n[\\u00b6 1] Camden National Bank appeals from the judgment of the Superior Court (Penobscot County, Mead, J.) entered following a jury trial held in connection with Anne Morrow's counterclaims for negligence and breach of fiduciary duty brought against Camden National Bank in response to the Bank's complaint against Morrow and Crest Construction, Inc. for foreclosure. The jury found in favor of Morrow on those counterclaims and the court subsequently denied the Bank's M.R. Civ. P. 50(b) motion for a judgment as a matter of law. The Bank contends that the jury's finding of negligence against the Bank cannot stand as a matter of law because in the circumstances of this case, the Bank, as a mortgagee, owed no duty to Morrow, who was a mortgagor, but not a borrower. The Bank also contends that, as a matter of law, there was no fiduciary duly or confidential relationship between itself and Morrow to warrant the jury's finding that such a fiduciary duty or confidential relationship was breached.\\n[\\u00b6 2] Morrow cross-appeals contending that the trial court erred when it granted the Bank's M.R. Civ. P. 50(a) motion during the trial with respect to her claims that the Bank violated an implied covenant of good faith and fair dealing and that there was an implied agency relationship. Morrow also argues that the trial court erred in fading to allow the jury to consider evidence of attorney fees incurred by Morrow in collateral litigation that she alleges were proximately caused by the conduct of the Bank. We affirm the judgment in part, and vacate the judgment in part.\\nI. BACKGROUND\\n[\\u00b6 3] Viewing the evidence in the light most favorable to the jury verdict, the record establishes the following facts. See Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94, \\u00b62, 878 A.2d 509, 513. In 2004, Morrow was living with Orville Patterson Jr., in Bangor, at his residence. Morrow and Patterson were the parents of twin children and were in need of a larger living space.\\n[\\u00b6 4] Morrow and Patterson discussed with Joseph Dipaolo, the President of Crest Construction, Inc., their desire to construct a home down the street from their residence on Kittridge Road. Morrow contracted with Dipaolo on June 12, 2004, for Crest to build the house for $265,000.\\n[\\u00b6 5] Morrow and Dipaolo purchased the property from Patterson, holding the property as joint tenants in order to facilitate financing the construction of the house. Dipaolo, acting for Crest, applied for financing for the project through Camden National Bank, and Crest, not Morrow, was the borrower. The Bank required Morrow, as the prospective buyer of the house, to submit documents regarding her pre-approval for takeout financing as a prerequisite to the construction loan to Crest, but the loan was made to Crest and not to Morrow.\\n[\\u00b6 6] Dipaolo was in his mid-twenties, had limited experience as a builder, and had no substantial assets of his own. Dipaolo's credit report stated that he had \\\"serious delinquency,\\\" as the result of getting behind on personal car payments and a mortgage. The Bank's loan officer, Larry Quinn, was aware of those facts, but overrode the recommendation of the Bank's credit department, and approved the mortgage loan to Crest.\\n[\\u00b6 7] The first loan from the Bank to Crest was made on July 13, 2004, and was in the amount of $162,723. The second loan was for $70,000. The mortgages were executed by Dipaolo in his capacity as President of Crest Construction, Inc. Because she was a joint owner of the property, Morrow also signed the mortgage deeds in her individual capacity. The Bank did not, nor was it permitted to, share information with Morrow regarding the loan.\\n[\\u00b6 8] About a week after Morrow signed the documents necessary for the $70,000 loan, Morrow and the Bank reviewed the invoices and discovered that even though there were invoices and money had been disbursed, many things had not been done: there was no power on site; there was no well installed; there were no kitchen cabinets; the wiring was only rough and unfinished; there was no plumbing, the septic tank was not completely set-up; there were no interior doors; there was no trim on or around the doors; the flooring was not down; and there was no sheetrock. It was at that time that Quinn first visited the site and learned that much of the work had not been completed.\\n[\\u00b6 9] Morrow and Dipaolo had a falling out, and Dipaolo did no further work on the property. On December 20, 2004, the Bank filed a complaint for foreclosure against Dipaolo and Morrow. Morrow filed counterclaims against the Bank alleging negligence, breach of fiduciary duty, breach of implied covenant of good faith and fair dealing, and breach of implied agency by the Bank. The court entered an order and judgment of foreclosure in favor of the Bank after a bench trial on the issue. During the jury trial on the counterclaims, the court granted the Bank's Rule 50(a) motion with respect to Morrow's claims that the Bank violated an implied covenant of good faith and fair dealing and that there was an implied agency relationship. At the close of the evidence, the jury returned a verdict in favor of Morrow for $54,072, on her counterclaims for negligence, and breach of fiduciary duty. After the jury returned its verdict, the court orally granted the Bank's Rule 50(b) motion for judgment as a matter of law as to Morrow's counterclaims for negligence and breach of fiduciary duty. . The next day the court sua sponte reversed that ruling, vacated its Rule 50(b) judgment, and directed the clerk to enter judgment in favor of Morrow on her counterclaim in the amount of the jury verdict plus interest and costs. This appeal by the Bank as well as Morrow's cross-appeal followed.\\nII. LEGAL ANALYSIS\\nA. Negligence\\n[\\u00b6 10] The Bank contends that the court erred in vacating its prior ruling on the Bank's Rule 50(b) motion as to the counterclaim for negligence, and in restoring the jury verdict based on the finding that the Bank was negligent. In order for a party to be negligent, there has to be a breach of the duty of care. \\\"Whether a party owes a duty of care is a question of law that we review de novo.\\\" Benham v. Morton & Furbish Agency, 2007 ME 83, \\u00b6 14, 929 A.2d 471, 474.\\n[\\u00b6 11] No duty of care by the Bank to Morrow arose in the circumstances of this case. While the Bank was aware that Morrow had a contract with Crest and Dipaolo, and that Morrow had an interest in the financing arrangement between Crest and the Bank, and although it required Morrow to provide documentation of pre-approval for a takeout loan, nevertheless, the Bank did not loan money to Morrow. Morrow signed the mortgage deeds and was a mortgagor, but no lender-borrower relationship existed between her and the Bank. A mortgagee-mortgagor relationship does not, without more, create a duty of care between a bank and a customer. See, e.g., Morris v. Resolution Trust Corp., 622 A.2d 708, 712 (Me.1993) (upholding a jury's finding of a fiduciary duty between a lender and a borrower).\\n[\\u00b6 12] Extending a duty of due care to the Bank would substantially change the role of the Bank in a mortgage loan transaction such as this one, and would require the mortgagee Bank to assume the role of supervisor of the construction job, with duties similar to those of a clerk of the works. Rather than disbursing money according to the Bank's own policies and procedures, the Bank would be responsible for assuring the timeliness and quality of the work being performed. Absent an explicit agreement to undertake these obligations, we are reluctant to impose such an expansive legal duty on a mortgagee in a case such as this. Accordingly, because the Bank owed no duty of care to Morrow, in this case, Morrow has no cognizable claim for negligence against the Bank.\\nB. Breach of Fiduciary or Confidential Relationship\\n[\\u00b6 13] The Bank also contends that the facts of this case do not support the existence of a confidential or fiduciary relationship between Morrow and the Bank. \\\"The salient elements of a confidential relation are the actual placing of trust and confidence in fact by one party in another and a great disparity of position and influence between the parties to the relation.\\\" Ruebsamen v. Maddocks, 340 A.2d 31, 35 (Me.1975).\\nStanding alone, a creditor-debtor relationship does not establish the existence of a confidential relationship. To demonstrate the necessary disparity of position and influence in such a bank-borrower relationship, a party must demonstrate diminished emotional or physical capacity or . the letting down of all guards and bars. We cannot overthrow the findings of the trial court simply because the parties were mature individuals in full possession of their faculties. Confidential relations can, and do, exist between such people. On the other hand, an allegation of one party's inexperience or trust will not by itself warrant an adjudication of a confidential relation without a statement of the facts indicating the actual placing of confidence and trust, and the abuse of the relation.\\nStewart v. Machias Sav. Bank, 2000 ME 207, \\u00b6 11, 762 A.2d 44, 46 (internal citations and quotation marks omitted).\\n[\\u00b6 14] We have upheld the finding of such a relationship between a lender and a borrower when the loan officer professed superior knowledge of a contractor's integrity and work performance, the borrower placed her trust in that superior knowledge when she continued with the contractor rather than seeking an alternate contractor, and the loan officer had extensive prior experience with the contractor and knew about his financial position. See Morris, 622 A.2d at 712.\\n[\\u00b6 15] In this case, the relationship between the Bank and Morrow was that of a mortgagee-mortgagor, and not a lender-borrower. If a lender-borrower relationship alone does not give rise to a fiduciary duty, then a relationship of a mortgagee-mortgagor alone likewise is not sufficient to create such a fiduciary duty.\\n[\\u00b6 16] There is nothing in the facts here to indicate that the Bank had superi- or knowledge of Dipaolo's integrity or that Morrow placed her trust in the Bank's knowledge of Dipaolo. It was Dipaolo who approached the Bank after Morrow and Dipaolo had already contracted for construction of the house; the Bank did not vouch for Dipaolo as a contractor. Dipao-lo, as the Bank's loan customer, was the only person to whom the Bank had a duty. Although the Bank was aware of Morrow's interest in the project, it was under no obligation to her; she was neither a borrower nor otherwise a customer of the Bank. Therefore, even when the facts are viewed in the light most favorable to her, Morrow failed to present evidence from which a jury could conclude that a fiduciary duty or confidential relationship existed between the Bank and Morrow.\\nC. Motion for Judgment as a Matter of Law\\n[\\u00b6 17] In her cross-appeal, Morrow contends that the Superior Court erroneously granted judgment to the Bank on its M.R. Civ. P. 50(a) motion for a judgment as a matter of law. She contends that the Bank breached an implied covenant of good faith and fair dealing and that an implied agency relationship existed with Morrow.\\n[\\u00b6 18] Contrary to Morrow's contentions, the relationship between Morrow and the Bank is that of a mortgagor to a mortgagee of real estate and is not governed by the Uniform Commercial Code. See 11 M.R.S. \\u00a7 9-1109(4)(K) (2007). There is no duty of good faith and fair dealing when a transaction of this nature is not governed by the U.C.C. Haines v. Great N. Paper, Inc., 2002 ME 157, \\u00b6 15, 808 A.2d 1246, 1250. Accordingly, there was no implied duty of good faith and fair dealing, and the trial court properly granted judgment as a matter of law as to that count of the counterclaim.\\n[\\u00b6 19] Morrow also contends that there was an implied agency between her and the Bank and that the Bank was acting on her behalf. We disagree.\\nAgency is the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. The relationship of agency, however, may be either \\\"actual\\\" or \\\"apparent\\\" in its derivation. Moreover, there are two types of actual authority \\u2014 express authority or implied authority.\\nLibby v. Concord Gen. Mut. Ins. Co., 452 A.2d 979, 981 (Me.1982). Implied authority is actual authority circumstantially proved from the facts and circumstances attendant to the transaction, such as the words used or the customs and relations of the parties. Id. at 982. Implied authority depends on a manifestation of consent by the principal and goes to the perceptions of the agent not the third party. Id.\\n[\\u00b620] The evidence in this case does not support a finding that Morrow manifested consent to the Bank to act as her agent, or that the Bank believed itself to be the agent of Morrow. Accordingly, the trial court properly granted the Bank's Rule 50(a) motion for judgment as a matter of law on that count of the counterclaim.\\nThe entry is:\\nJudgment on Morrow's counterclaims regarding the implied covenant of good faith and fair dealing and implied agency relationship is affirmed. Judgment on Morrow's counterclaims as to negligence and breach of confidential relationship or fiduciary duty is vacated, and remanded to the Superior Court for entry of a judgment in favor of Camden National Bank.\\n. Morrow also contends that the Bank's appeal was not filed in a timely manner. This is in part a foreclosure action, and the judgment of foreclosure referred to the future entry of a final judgment. In view of the wording of the judgment, the Bank's appeal was timely filed.\\n. Because there was no legal basis for the jury to find negligence on the part of the Bank or the existence of a fiduciary duty or a confidential relationship, we need not address Morrow's argument regarding attorney fees incurred by her in collateral litigation.\"}"
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+"{\"id\": \"8188976\", \"name\": \"MAINE HEALTH CARE ASSOCIATION WORKERS' COMPENSATION FUND v. SUPERINTENDENT OF INSURANCE et al.\", \"name_abbreviation\": \"Maine Health Care Ass'n Workers' Compensation Fund v. Superintendent of Insurance\", \"decision_date\": \"2009-01-13\", \"docket_number\": \"\", \"first_page\": \"968\", \"last_page\": \"973\", \"citations\": \"962 A.2d 968\", \"volume\": \"962\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:50:38.719105+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.\", \"parties\": \"MAINE HEALTH CARE ASSOCIATION WORKERS\\u2019 COMPENSATION FUND v. SUPERINTENDENT OF INSURANCE et al.\", \"head_matter\": \"2009 ME 5\\nMAINE HEALTH CARE ASSOCIATION WORKERS\\u2019 COMPENSATION FUND v. SUPERINTENDENT OF INSURANCE et al.\\nSupreme Judicial Court of Maine.\\nArgued: Sept. 17, 2008.\\nDecided: Jan. 13, 2009.\\nMichael E. Saucier, Esq. (orally), Jason P. Donovan, Esq., Thompson & Bowie, LLP, Portland, ME, for the Maine Health Care Association Workers\\u2019 Compensation Fund:\\nG. Steven Rowe, Attorney General, Thomas C. Sturtevant, Jr., Asst. Atty. Gen. (orally), Augusta, ME, for the Superintendent of Insurance.\\nPanel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.\\nAlthough not present at oral argument, Justice Clifford participated in this opinion. See M.R.App. P. 12(a) (\\\"A qualified justice may participate in a decision even though not present at oral argument.\\u201d).\", \"word_count\": \"2173\", \"char_count\": \"13764\", \"text\": \"SAUFLEY, C.J.\\n[\\u00b6 1] The Maine Health Care Association Workers' Compensation Fund appeals, pursuant to 5 M.R.S. \\u00a7 11008 (2008) and M.R. Civ. P. 80C, from a judgment of the Superior Court (Kennebec County, Ja-bar, J.) affirming an order of the Superintendent of Insurance, Maine Bureau of Insurance (Wake, HO). The order compelled disclosure of information by the Fund to former members of the Fund in the course of an adjudicatory proceeding before the Superintendent. The Fund contends that the Superintendent erred as a matter of law in ordering the disclosure of the information because it is designated as confidential and privileged from discovery pursuant to 39-A M.R.S. \\u00a7 403(15) (2008). We affirm the Superior Court's judgment.\\nI. BACKGROUND\\n[\\u00b6 2] The Fund is a tax-paying trust established for the purpose of administering a workers' compensation group self-insurance program for certain long-term care facilities and nursing homes in accordance with the Workers' Compensation Act of 1992, 39-A M.R.S. \\u00a7 101-409 (2006). Three former members terminated their participation in the Fund effective January 1, 2007. By both statute and administrative rule, each terminated member of a group self-insurer must provide the group with capital necessary to fund that member's proportionate share of the group's exposure to the ninety-five percent confidence level. 39-A M.R.S. \\u00a7 403(3)(C)(2) (2008); 6 C.M.R. 02 031 250-33 \\u00a7 111(E)(4) (1997). Accordingly, the Fund made an actuarial determination of its workers' compensation liabilities and levied proportionate supplemental assessments against the three former members in November of 2006. Each former member was provided with a one-page actuarial table supporting the assessment. By order dated January 17, 2007, the Bureau approved the Fund's security calculation.\\n[\\u00b6 3] On February 14, 2007, pursuant to 24-A M.R.S. \\u00a7 229(3) (2008), the former members requested a hearing to challenge the January 17 order, specifically alleging that the Fund had not followed appropriate methodologies in calculating the supplemental assessments. In their request for hearing, the former members requested documentation from the Fund that would allow them to \\\"verify the methodology followed and ascertain the appropriateness of the supplemental funding requested.\\\" This requested documentation included, among other things, financial records of other, current Fund members, all of which had been supplied to the Superintendent as part of the approval process.\\n[\\u00b6 4] The Fund objected to the disclosure request, arguing that the documents are designated as confidential by section 403(15), that the information is protected as business or proprietary trade secrets, and that the former members had already received ample documentation allowing them to evaluate the accuracy of the assessments. On April 6, 2007, the hearing officer appointed by the Superintendent to adjudicate the dispute issued an order compelling discovery of the requested documents under a protective order, concluding that section 403(15) did not prohibit disclosure. The order conditioned disclosure of \\\"competitively sensitive\\\" information to an \\\"eyes of counsel and expert consultant only\\\" basis.\\n[\\u00b6 5] On April 9, 2007, the Fund filed a three-count complaint with the Superior Court, appealing the hearing officer's discovery decision and seeking declaratory and injunctive relief. The Superior Court affirmed the hearing officer's order in all respects, concluding that \\\"[t]he conditions issued by the hearing officer in its order on the motion to compel seem well calculated to protect the proprietary value of the evidence.\\\" The Fund timely filed this appeal.\\nII. DISCUSSION\\nA. Final Judgment Rule\\n[\\u00b6 6] We first note that the hearing officer's order compelling disclosure in this matter is not \\\"final agency action,\\\" and we may dismiss an appeal sua sponte if we determine that it is interlocutory and taken from an agency decision that is not final. Brickley v. Horton, 2008 ME 111, \\u00b6 9, 951 A.2d 801, 802; see M.R. Civ. P. 80C; 5 M.R.S. \\u00a7 11001(1) (2008). However, pursuant to the \\\"death knell\\\" exception to the final judgment rule, interlocutory appeals are appropriate when \\\" 'substantial rights of a party will be irreparably lost if review is delayed until final judgment.' \\\" In re Estate of Kingsbury, 2008 ME 79, \\u00b6 5, 946 A.2d 389, 392 (quoting Bruesewitz v. Grant, 2007 ME 13, \\u00b6 8, 912 A.2d 1255, 1258).\\n[\\u00b6 7] Here, the information sought pursuant to the discovery request is claimed by the Fund to be highly proprietary, confidential, and protected by the trade secret privilege. Disclosure pending a final action in the adjudicatory proceeding before the Superintendent would render moot any claims of absolute confidentiality, a concern made more acute by the fact that the former members are competitors with some members of the Fund. Accordingly, we conclude that the order compelling disclosure of material claimed to be protected by statute is immediately appealable pursuant to the \\\"death knell\\\" exception, and thus proceed to the merits of the Fund's appeal.\\nB. Confidentiality of Requested Material\\n[\\u00b6 8] When a Superior Court acts as an intermediate appellate court reviewing agency acts pursuant to Rule 80C, we review the agency's decision directly. Melanson v. Sec'y of State, 2004 ME 127, \\u00b6 7-8, 861 A.2d 641, 643-44. Decisions made by the agency are re viewed for errors of law, abuse of discretion, or findings of fact not supported by the record. Id. When reviewing an agency's interpretation of a statute it administers, we look to the plain meaning of an unambiguous statute in order to give effect to the intent of the Legislature. Guilford Transp. Indus. v. Pub. Utils. Comm'n, 2000 ME 31, \\u00b6 11, 746 A.2d 910, 913.\\n[\\u00b6 9] The contention by the Fund that the information requested by the former members is deemed confidential by statute is based on the following provision:\\nConfidentiality of information. All written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, all information contained in the minutes of trustee meetings and all information relating to individual compensation cases, that a self-insurer is required to file with or make available to the superintendent under this section, section 404 or rules adopted pursuant to it are confidential and are not public records.\\nThe confidential nature of this information does not limit or affect its use by the superintendent in administering this Act, including, but not limited to, communications with the service agent, the Workers' Compensation Board or the Maine Self-Insurance Guarantee Association.\\n39-A M.R.S. \\u00a7 403(15).\\n[\\u00b6 10] The statute is unambiguous in protecting records filed with the Superintendent from public requests made pursuant to the Maine Freedom of Access Act, see 1 M.R.S. \\u00a7 408(1) (2007), but is noticeably silent with regard to discovery requests between private litigants. We have previously placed great emphasis on express legislative language, or the lack thereof, when considering whether a statute provides for protection against discovery. See Pooler v. Me. Coal Prods., 532 A.2d 1026, 1028 (Me.1987); Me. Sugar Indus., Inc. v. Me. Indus. Bldg. Auth., 264 A.2d 1, 5-6 (Me.1970); see also 8 John Henry Wigmore, Evidence in Trials at Common Law \\u00a7 2377, at 781 (McNaughton rev. 1961). The provision of section 403(15) indicating that material in the hands of the Superintendent is not a public record does not, by its terms, prevent restricted disclosure between private parties in the scope of an adjudicatory proceeding between the Fund and its former members.\\n[\\u00b6 11] Furthermore, there is no question that a hearing officer has the authority to compel disclosure of information between two private parties that is both relevant and necessary to an adjudicatory proceeding before the Superintendent. See 24-A M.R.S. \\u00a7 210, 231, 232 (2008). The record before us contains no indication that the hearing officer exceeded that authority in this instance. The Fund conceded at oral argument that it did not address before the hearing officer the issue of what specific information should be protected, either under the statute or as a trade secret, and instead relied on a blanket theory of absolute confidentiality in its effort to preclude disclosure of any of the requested information. Lacking any such specific identification, the hearing officer acted more than reasonably in formulating the protective order, engaging in appropriate balancing between the former members' need for the information and the confidentiality concerns of the Fund. Cf. Me. Sugar, 264 A.2d at 6 (balancing the injury resulting from disclosure against the public interest in fair and just adjudication).\\n[\\u00b6 12] The order, by its terms, accomplished three critical results. First, it prevented public disclosure of the records, thus effectuating the Legislature's directive that they are not public records. Second, it limited access to the records to counsel and experts, thereby minimizing the disclosure of information among market competitors. Finally, it leaves open the opportunity on the part of the Fund to identify going forward information that is \\\"competitively sensitive between present or former members of the Fund.\\\" Nothing in this carefully balanced order violates the terms or the spirit of section 403(15). We affirm the judgment of the Superior Court.\\nThe entry is:\\nJudgment affirmed.\\n. The Act has since been amended, see 39 M.R.S. \\u00a7 101-409 (2008), but the portions relevant to this opinion remain unchanged.\\n. The requested information, as outlined in the former members' request for hearing, includes: (1) actuarial reports for 2003 through 2006; (2) standard premiums listed by Fund member for 1992 through 2006; (3) a calculation of the proportionate share for each Fund member by year from 1992 to 2006 compared with the aggregate standard premium for each of those years; (4) details of all Fund losses, including the name of the claimant and employer, paid losses, case reserves, and incurred losses for the years 1992 through 2006 inclusive; (5) development of indicated loss reserves, projected ultimate losses, and expected losses, comparison of actual versus expected incurred loss, development of present value factors, summary of excess workers' compensation insurance, and discount factors applied and presumptions employed; and (6) accounting of all funds received from or returned by the Fund to each former member for the calendar years 2005, 2006, and 2007, including the date, amount of payment, purpose of payment, and invoice to which each payment relates.\\n. Upon appointment, the hearing officer acted as the Superintendent, pursuant to 24-A M.R.S. \\u00a7 210 (2008).\\n. Count I of the complaint alleged that the order compelling disclosure violated the Maine Freedom of Access Act, count II was an appeal of a final agency action pursuant to M.R. Civ. P. 80C, and count III sought a declaratoiy judgment that the documents ordered to be disclosed are designated confidential by statute, are privileged as trade secrets, and are not subject to disclosure under the FOAA. A court order, on agreement of the parties, dismissed counts I and III, leaving only the Rule 80C appeal before the Superior Court for adjudication.\\n. Tide 1 M.R.S. \\u00a7 408(1) has since been amended, but the relevant language remains the same. P.L. 2007, ch. 501, \\u00a7 1 (effective June 30, 2008) (codified at 1 M.R.S. \\u00a7 408(1) (2008)).\\n. The Legislature has, in other contexts, made a statutory privilege against discovery in litigation explicit. See, e.g., 24 M.R.S. \\u00a7 2510-A (2008) (\\\"[A]ll professional competence review records are' privileged and confidential and are not subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and are not admissible as evidence in any civil, judicial or administrative proceeding.\\\"); 24-A M.R.S. \\u00a7 1420-N(6) (2008) (\\\"[A]ny documents, materials or other information in the control or possession of the [Bureau of Insurance] that is furnished by an insurer or producer . is confidential, is not subject to subpoena and is not subject to discovery or admissible in evidence in any private civil action....\\\"); 24-A M.R.S. \\u00a7 6807(7)(B) (2008) (stating that all information pertaining to an investigation of a settlement provider by the Superintendent of the Bureau of Insurance \\\"[is] confidential by law and privileged, [is] not subject to subpoena and [is] not subject to discovery or admissible in evidence in any private civil action\\\"); 24-A M.R.S. \\u00a7 6818(6) (2008) (providing that evidence provided to the Superintendent pertaining to fraudulent viatical or life settlement acts is \\\"privileged and confidential and is not a public record . and is not subject to discovery or subpoena in a civil or criminal action\\\").\"}"
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+"{\"id\": \"8380019\", \"name\": \"LOI VAN NGO v. STATE of Maine\", \"name_abbreviation\": \"Loi Van Ngo v. State\", \"decision_date\": \"2008-04-29\", \"docket_number\": \"\", \"first_page\": \"424\", \"last_page\": \"430\", \"citations\": \"946 A.2d 424\", \"volume\": \"946\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:51:20.753056+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.\", \"parties\": \"LOI VAN NGO v. STATE of Maine.\", \"head_matter\": \"2008 ME 71\\nLOI VAN NGO v. STATE of Maine.\\nSupreme Judicial Court of Maine.\\nArgued: Jan. 18, 2008.\\nDecided: April 29, 2008.\\nRobert A. Levine, Esq. (orally), Portland, ME, for Loi Ngo.\\nStephanie Anderson, District Attorney, Julia Sheridan, Asst. Dist. Atty. (orally), Portland, ME, for the State of Maine.\\nPanel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.\\nMajority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.\\nConcurrence: LEVY. J.\", \"word_count\": \"2814\", \"char_count\": \"17431\", \"text\": \"ALEXANDER, J.\\n[\\u00b6 1] Loi Van Ngo appeals from a judgment of the Superior Court (Cumberland County, Wheeler, J.) dismissing his petition for post-conviction review pursuant to 15 M.R.S. \\u00a7 2121-2132 (2007). Ngo argues that as a non-citizen awaiting the outcome of deportation proceedings that were instituted based on prior State convictions, he is subject to the functional equivalent of an indirect impediment within the meaning of 15 M.R.S. \\u00a7 2124(3)(C). He also asserts that his construction of the statute avoids rendering the post-conviction review statute unconstitutionally arbitrary as applied to him. We affirm the judgment.\\nI. CASE HISTORY\\n[\\u00b6 2] Loi Van Ngo is a citizen of Vietnam and has been a resident of the United States since 1993. In February 1998, while represented by counsel, Ngo pled guilty to two Class D offenses: sexual abuse of a minor, 17-A M.R.S.A. \\u00a7 254 (Supp.1998), and criminal threatening, 17-A M.R.S. \\u00a7 209 (2007). The sex offense involved a sex act with an underage child. The criminal threatening offense involved a domestic dispute in which Ngo was alleged to have threatened his wife with a knife. As part of the plea agreement, the criminal threatening charge was reduced from a Class C felony to a Class D misdemeanor. The court sentenced Ngo to two consecutive terms of 364 days in jail and one year of probation, with the entire term suspended on criminal threatening offense and all but ninety days suspended on sexual abuse of a minor offense. Ngo served his sentence, and his probation was terminated early at the request of his probation officer on August 25,1999.\\n[\\u00b6 3] In April of 2006, federal immigration officials instituted deportation proceedings against Ngo based on his 1998 criminal convictions. Ngo was detained for some time after the deportation proceedings began. However, at oral argument, counsel advised that although the deportation proceedings continue, Ngo has been released from detention because the government of Vietnam has advised that they will not allow his return.\\n[\\u00b6 4] After his deportation detention, Ngo filed a motion to vacate his 1998 convictions pursuant to M.R.Crim. P. (l)(c), asserting that he was deprived of effective assistance of counsel and due process because neither his attorney nor the court warned him that the misdemeanor offenses to which he pled guilty constituted deportable offenses. The District Court (Portland, Beaudoin, J.) entered a judgment dismissing Ngo's motion. Ngo appealed that judgment, arguing that the District Court improperly determined that it lacked jurisdiction to decide his motion and that the post-conviction review statutes are unconstitutional as applied to him. State v. Ngo, 2007 ME 2, \\u00b6 1, 912 A.2d 1224, 1224-25. We affirmed the judgment, holding that the District Court lacked jurisdiction because M.R.Crim. P. 1(c) does not provide a remedy to substitute for the post-conviction review process. Id. \\u00b6 6, 7, 912 A.2d at 1226. We declined to rule on Ngo's constitutional claim because he failed to preserve that issue for appeal, but we noted that Ngo was free to raise a constitutional challenge in the context of a post-conviction proceeding. Id.\\n[\\u00b6 5] Ngo then filed a petition for post-conviction review pursuant to 15 M.R.S. \\u00a7 2121-2132, and challenged the constitutionality of the post-conviction review statute to the extent that it does not afford him the opportunity to challenge his prior convictions. The Superior Court dismissed his petition because Ngo failed to demonstrate that the criminal judgment he sought to challenge was causing him a present restraint or impediment within the meaning of 15 M.R.S \\u00a7 2124(1). Ngo filed a timely appeal pursuant to M.R.App. P. 19. We granted a certificate of probable cause \\\"on the sole issue of whether the requirement of 15 M.R.S. \\u00a7 2124 (2006) is constitutional as it applies to Mr. Ngo.\\\"\\nII. LEGAL ANALYSIS\\nA.Functional Equivalent of 15 M.R.S. \\u00a7 2124(3)(C)\\n[\\u00b6 6] Ngo argues that he satisfies the jurisdictional prerequisite of the post-conviction review statute, 15 M.R.S. \\u00a7 2124, which requires that the challenged criminal conviction impose a defined restraint or impediment, because his situation is the functional equivalent of the impediment described in section 2124(3)(C) (a challenged conviction being an element of a subsequently charged crime).\\n[\\u00b6 7] Title 15 M.R.S. \\u00a7 2124 provides in relevant part:\\n\\u00a7 2124. Jurisdictional prerequisite of restraint or impediment\\nAn action for post-conviction review of a criminal judgment of this State or of a post-sentencing proceeding following the criminal judgment may be brought if the person seeking relief demonstrates that the challenged criminal judgment or post-sentencing proceeding is causing a present restraint or other specified impediment as described in subsections 1 to 3:\\n1. Present restraint by criminal judgment. Present restraint or impediment as a direct result of the challenged criminal judgment:\\nA. Incarceration pursuant to the sentence imposed as a result of the criminal judgment which is challenged;\\nB. Other restraint, including probation, parole, other conditional release or a juvenile disposition other than incarceration or probation, imposed as a result of the sentence for the criminal judgment which is challenged;\\nC. A sentence of unconditional discharge resulting from a criminal judgment, for a period of 2 years following the date of sentence;\\nD. Incarceration, other restraint or an impediment specified in paragraphs A, B and C which is to be served in the future, although the convicted or adjudicated person is not in execution of the sentence either because of release on bail pending appeal of the criminal judgment or because another sentence must be served first; or\\nE. A fine imposed by the challenged criminal judgment which has not been paid;\\n3. Present indirect impediment. Present restraint or impediment resulting indirectly from the challenged criminal judgment of this State:\\nC. A pending trial or any of the restraints or impediments specified in subsection 1 following a criminal judg ment in this State, another state or in a Federal Court for a crime for which proof of the criminal judgment of this State that is challenged constitutes an element of the subsequent crime.\\n[\\u00b6 8] In State v. Trott, 2004 ME 15, 841 A.2d 789, we addressed a case of a non-citizen who was detained in the course of deportation proceedings that were instituted based on prior convictions, for which he was sentenced to time served without probation. We held that Trott was not experiencing a restraint \\\"other than incarceration or probation, imposed as a result of the sentence for the criminal judgment which is challenged\\\" within the meaning of 15 M.R.S. \\u00a7 2124(1)(B) because \\\"this restraint is imposed as a result of the judgment itself, not the sentence for the judgment.\\\" 2004 ME 15, \\u00b6 8-10, 841 A.2d at 791-92. However, following the rule of statutory construction that we do \\\"not construe legislation to create absurd results,\\\" Town of Eagle Lake v. Comm'r, Dep't of Educ., 2003 ME 37, \\u00b67, 818 A.2d 1034, 1037, we held that Trott's sentence to time previously served, imposed without any additional term of probation or other restriction on the individual, was the \\\"functional equivalent\\\" of a \\\"sentence of unconditional discharge resulting from a criminal judgment, for a period of 2 years following the date of sentence\\\" within the meaning of section 2124(1)(C). Trott, 2004 ME 15, \\u00b6 13, 841 A.2d at 792-93. We reasoned that a \\\"sentence to time served without probation or other form of restraint or supervision is identical to an unconditional discharge in that it represents a determination by the court that, at the time of sentencing, 'no proper purpose would be served by imposing any condition or supervision' on an offender's release.\\\" Id. \\u00b6 12, 841 A.2d at 792 (quoting 17-A M.R.S.A. \\u00a7 1201(2) (1983)).\\n[\\u00b6 9] Like Trott, Ngo cannot demonstrate a restraint or impediment that falls within the plain meaning of those described by the post-conviction review statute. Unlike Trott, Ngo is not experiencing the functional equivalent of any of the restraints or impediments described by the statute. Contrary to Ngo's contention, a pending deportation proceeding that will determine whether Ngo is deportable because of his prior state convictions is not the functional equivalent of \\\"[a] pending trial . for a crime for which proof of the criminal judgment of this State that is challenged constitutes an element of the subsequent crime\\\" within the meaning of section 15 M.R.S. \\u00a7 2124(3)(C).\\n[\\u00b6 10] The United States Supreme Court has consistently held that deportation proceedings are civil proceedings and that deportation is a civil rather than a criminal sanction. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); Galvan v. Press, 347 U.S. 522, 530-32, 74 S.Ct. 737, 98 L.Ed. 911 (1954). Although the government must prove Ngo's prior convictions as an element to establish that he is a deportable alien, being deportable is not a separate crime. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (\\\"Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted.\\\").\\n[\\u00b6 11] Contrary to his contention, Ngo is not being tried for what is \\\"effectively\\\" the crime of trespass because, until an immigration judge decides that he is, in fact, removable, his presence in this country is lawful. See, e.g., 17-A M.R.S. \\u00a7 402 (2007) (defining criminal trespass in relevant part as remaining \\\"in any place in defiance of a lawful order to leave\\\"). Although the outcome of the deportation proceedings, like the outcome of a criminal trial, could lead to a deprivation of liberty, and although \\\"the consequences of deportation may assuredly be grave,\\\" unlike imprisonment, deportation is not imposed as punishment. Reno, 525 U.S. at 491, 119 S.Ct. 936; See Galvan, 347 U.S. at 530-31, 74 S.Ct. 737; see also Resendiz v. Kovensky, 416 F.3d 952, 957 (9th Cir.2005) (holding that immigration consequences of a state conviction continue to be collateral). Because of these distinctions, Ngo's situation is not the functional equivalent of 15 M.R.S. \\u00a7 2124(3)(C).\\nB. Constitutionality of the Post-conviction Review Statute's Jurisdictional Prerequisite\\n[\\u00b6 12] Ngo argues that if the jurisdictional prerequisite of the post-conviction review statute does not allow him to maintain a cause of action for post-conviction review, then the statute is unconstitutionally arbitrary as applied to him.\\n[\\u00b6 13] The right to post-conviction review is not a fundamental right and thus, the statute is constitutional if it is rationally related to the government's interest. See Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir.1991); Swan v. Sohio Oil Co., 618 A.2d 214, 219 (Me.1992).\\n[\\u00b6 14] \\\"When a statute is reviewed under the rational basis standard, it bears a strong presumption of validity.\\\" Anderson v. Town of Durham, 2006 ME 39, \\u00b6 29, 895 A.2d 944, 953. \\\"A statute runs afoul of the Due Process Clause only if it 'manifests a patently arbitrary classification, utterly lacking in rational justification.' \\\" United States v. Neal, 46 F.3d 1405, 1409 (7th Cir.1995) (quoting Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)). \\\"[T]he statute's justification need not be expressly articulated or readily apparent 'so long as a court can divine some rational purpose.' \\\" Id. (quoting United States v. Cyrus, 890 F.2d 1245, 1248 (D.C.Cir.1989)).\\n[\\u00b6 15] The jurisdictional prerequisite of the post-conviction statute, 15 M.R.S. \\u00a7 2124, is constitutionally sound. Limiting actions for post-conviction review is rationally related to legitimate state interests in promoting timely resolution of criminal charges, protecting the finality of judgments, and providing closure for injured victims. See Daniels v. United States, 532 U.S. 374, 378-80, 383, 121 S.Ct. 1578, 149 L.Ed.2d 590(2001).\\n[\\u00b6 16] There is a rational distinction between Ngo's situation and the restraints and impediments described by section 2124, which are all imposed by a government as a criminal punishment. The deportation that Ngo may face, based on the criminal judgment he seeks to challenge, is a civil sanction and one that is not imposed as punishment for a crime. See Reno, 525 U.S. at 491, 119 S.Ct. 936; INS v. Lopez-Mendoza, 468 U.S. at 1050, 104 S.Ct. 3479. Federal courts treat the immigration consequences of state court convictions that Ngo potentially faces as collateral consequences, not as punishment. See, e.g., Resendiz, 416 F.3d at 957; United States v. Gonzalez, 202 F.3d 20, 27-28 (1st Cir.2000). Therefore, it is rational to distinguish between persons in Ngo's position and persons who can demonstrate one of the direct or indirect impediments described in 15 M.R.S. \\u00a7 2124. Because the jurisdictional prerequisite of the post-conviction review statute is not \\\"utterly lacking in rational justification,\\\" Neal, 46 F.3d at 1409, it is not unconstitutionally arbitrary as applied to Ngo and does not violate his right to substantive due process.\\nThe entry is:\\nJudgment affirmed.\\n. Title 17-A M.R.S.A. \\u00a7 254 has since been amended. See P.L. 2003, ch. 138, \\u00a7 2-4 (effective Sept. 13, 2003), P.L. 2001, ch. 383, \\u00a7 21, 156 (effective Sept. 21, 2001) (codified at 17-A M.R.S. \\u00a7 254 (2007)).\\n. M.R.Crim. P. (l)(c) provides:\\nProcedure When None Specified. When no procedure is specifically prescribed the court shall proceed in any lawful manner not inconsistent with the Constitution of the United States or of the State of Maine, these rules or any applicable statutes.\\n. The full text of 15 M.R.S. \\u00a7 2124(3)(C) (2007) allows a defendant to bring an action for post-conviction review if the defendant is facing \\\"[a] pending trial or any of the restraints or impediments specified in subsection 1 following a criminal judgment in this State, another state or in a Federal Court for a crime for which proof of the criminal judgment of this State that is challenged constitutes an element of the subsequent crime.\\\" (emphasis added.) However, Ngo cannot demonstrate any of the restraints or impediments specified in subsection (1) because he did not receive a sentence of unconditional discharge within the meaning of subsection (1), paragraph (C) and because, as we held in State v. Trott, a non-citizen who is being restrained in the course of deportation proceedings that were instituted because of the non-citizen's prior convictions is not undergoing a present restraint within the meaning of subsection (1), paragraphs A, B, D, or E. 2004 ME 15, \\u00b6 9, 841 A.2d 789, 791-92; 15 M.R.S. \\u00a7 2124(1). Accordingly, we address only whether Ngo's situation is the functional equivalent of a \\\"pending trial.\\\" See 15 M.R.S. \\u00a7 2124(3)(C).\\n. Fundamental rights are those that are \\\"deeply rooted\\\" in our Nation's history, legal traditions, and practices. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). The right Ngo is asserting is the right to challenge the constitutionality of a prior criminal conviction when he is facing the possibility of deportation based on that conviction but is no longer facing a restraint or impediment resulting directly or indirectly from the challenged conviction. Such a right is not deeply rooted in our nation's history, traditions, and practices. See Daniels v. United States, 532 U.S. 374, 380-81, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) (recognizing that criminal convictions must be constitutional, but holding that the right to challenge the constitutionality of pri- or convictions is not an infinite one).\"}"
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+"{\"id\": \"8390624\", \"name\": \"MacMAHAN ISLAND ASSOCIATION v. Nathalie Taft ANDREWS et al.\", \"name_abbreviation\": \"MacMahan Island Ass'n v. Andrews\", \"decision_date\": \"2008-03-18\", \"docket_number\": \"\", \"first_page\": \"592\", \"last_page\": \"595\", \"citations\": \"943 A.2d 592\", \"volume\": \"943\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T01:59:32.338844+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and ALEXANDER.\", \"parties\": \"MacMAHAN ISLAND ASSOCIATION v. Nathalie Taft ANDREWS et al.\", \"head_matter\": \"2008 ME 52\\nMacMAHAN ISLAND ASSOCIATION v. Nathalie Taft ANDREWS et al.\\nSupreme Judicial Court of Maine.\\nArgued: Jan. 18, 2008.\\nDecided: March 18, 2008.\\nEdward A. Brown, Esq., Brown & Pols, P.A., Brunswick, ME, Edward C. Mendler, Esq. (orally), Wayland, MA, for MacMa-han Island Association.\\nAlbert G. Ayre, Esq. (orally), Portland, ME, for Nathalie Taft Andrews, Frederick L. Taft and Eleanor Taft Ethridge.\\nPanel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and ALEXANDER.\", \"word_count\": \"1636\", \"char_count\": \"10186\", \"text\": \"ALEXANDER, J.\\n[\\u00b6 1] MacMahan Island Association (the Association) (formerly Sheepscot Island Company (SI)) appeals from a summary judgment by the Superior Court (Sa-gadahoc County, Warren, J.) determining that Si's conversion to the Association, a nonprofit organization, was invalid. The Association argues that (l )the court erred in finding its plan for nonprofit conversion (the plan) was invalid; (2) Frederick Taft, Nathalie Taft Andrews, and Eleanor Taft's (the Tafts) statutory appraisal rights provide them with the exclusive and proper remedy in this case; (3) the Tafts lack standing to contest the validity of the conversion; and (4) the conversion is protected by the business judgment rule. The Tafts cross-appeal, arguing that (1) the trial court erred in dismissing their claims of inadequate disclosure, and (2) additional shares issued by SI are void.\\n[\\u00b62] Because the plan for nonprofit conversion did not include any provision for the reclassification of the shares of the for-profit corporation following conversion, as required by Maine law, see 13-C M.R.S. \\u00a7 931(3)(B) (2007), the trial court correctly concluded that the nonprofit conversion was invalid. Accordingly, we affirm and address only that limited issue.\\nI. CASE HISTORY\\n[\\u00b63] This appeal arises from a shareholder dispute that began when Sheepscot Island Company, a for-profit stock corporation, attempted to convert into a nonprofit organization called the MacMahan Island Association.\\n[\\u00b64] SI provided services to cottage owners on MacMahan Island, which is located near the mouth of the Sheepscot River. There are forty cottages on the island. All the cottage owners are assessed certain fixed costs to support the island's common paths and roads, a yacht club building, several floats, and tennis courts. SI also receives payments for additional services provided to cottage owners. These services include storage and sewer maintenance, water, plumbing, and firewood. The Tafts are each stockholders of SI. Frederick Taft owns a cottage on the island, but Nathalie Taft Andrews and Eleanor Taft do not.\\n[\\u00b6 5] Prior to 2000, SI was authorized to issue 3500 shares. Over ninety percent of the shares are owned by cottage owners or members of families of cottage owners. There are a few shareholders who are neither cottage owners nor family members of the cottage owners.\\n[\\u00b6 6] In October of 2000, the shareholders of SI voted to increase the number of authorized shares by 20,000. The amendment to the SI articles of incorporation authorizing the issuance of additional shares was not completed until February 2006, after the attempted conversion to the Association occurred.\\n[\\u00b6 7] In 2004, the SI Board of Directors created a committee to explore the feasibility of converting SI to a nonprofit organization, using the new name \\\"Mac-Mahan Island Association.\\\" In late 2004 or early 2005, the committee submitted its report to the Board. The report contained a plan for nonprofit conversion and proposed bylaws of the new association. At its April 2005 meeting, the Board voted unanimously to endorse the plan and bylaws and to present them to the shareholders.\\n[\\u00b6 8] Pursuant to the plan, shareholders who do not own cottages would not have any right to share in any liquidation, sale, or other realization of the assets of the corporation. Non-cottage owners would lose any equity interest in Si's assets. All shares of SI would be deemed surrendered, but the owners of each of the forty cottages on MacMahan Island would be entitled to one cottage membership in the new Association. Pursuant to the articles of nonprofit conversion and bylaws of the Association, cottage members would have the right to receive services from the association; have access to the island's common paths and roads, the yacht club building, several floats, tennis courts; and be able to vote at meetings of the Association. Family members, household guests, and renters of cottages would have privileges to use the facilities and services of the Association, but no right to vote in the governance of the Association.\\n[\\u00b6 9] The shareholders were sent the plan, the articles of conversion, and a proxy. A shareholders' meeting was held on August 6, 2005. Prior to the meeting, the Tafts delivered written notice of their intent to assert their rights of appraisal and demand payment pursuant to 13-C M.R.S. \\u00a7 1301-1306 (2006); 13-C M.R.S. \\u00a7 1321-1327 (2006). A majority of the votes cast at the August meeting were in favor of the plan. However,'there is an issue, that we do not address, regarding which shares were valid and should have been counted in the vote. The Tafts each voted against the plan.\\n[\\u00b6 10] The articles of nonprofit conversion were filed with the Maine Secretary of State's Office in August 2005, stating an effective date of October 30, 2005, for the conversion from SI to the Association.\\n[\\u00b6 11] In September 2005, the Tafts received notices as to payment from SI. SI estimated that the fair value of the shares was ten dollars per share. Applied to the 3500 original shares, this suggested that the Board valued the assets of SI, including the common paths and roads, the yacht club building, several floats, and the tennis courts of this coastal island property at $35,000.\\n[\\u00b6 12] The Tafts notified SI that they rejected the amount offered and would pursue their rights of appraisal. The Association filed its complaint in December 2005 for judicial determination of the fair value of shares and accrued interest pursuant to 13-C M.R.S. \\u00a7 1331 (2006). The Tafts filed an answer and counterclaim, arguing that SI had unlawfully issued and over-issued shares, and that the plan was null and void. In March 2006, the Association filed a motion for summary judgment. A hearing was held in October 2006.\\n[\\u00b6 13] Following the hearing, the court issued several orders addressing a wide range of issues in dispute between the parties. Because the court determined that the nonprofit conversion plan was invalid for failure to address the manner and basis of reclassifying shares as required by 13-C M.R.S. \\u00a7 931(3)(B), many of the issues were addressed by the trial court as dictum or advisory rulings that were not essential to the resolution of the dispute. In its final order issued December 20, 2006, the court declared the plan invalid because it did not \\\"reclassify the shares of non-cottage owning shareholders.\\\" This appeal followed that order.\\nII. LEGAL ANALYSIS\\n[\\u00b6 14] The requirements for a nonprofit conversion plan of a for-profit corporation are succinctly stated in 13-C M.R.S. \\u00a7 931(3). Among other things, a nonprofit conversion plan must include a statement specifying:\\nB. The manner and basis of reclassifying the shares of the corporation following its conversion into memberships, if any, or securities, obligations, rights to acquire memberships or securities, cash, other property or any combination thereof;\\n13-C M.R.S. \\u00a7 931(3)(B).\\n[\\u00b6 15] Thus, any conversion plan must include a statement describing the process for reclassifying shares of the for-profit corporation into memberships, securities, obligations, rights to acquire memberships or securities, cash, other property, or a combination of the described rights or interests. The SI conversion plan included no such process for reclassification of the shares of the corporation. Instead, the conversion plan indicated that (1) all shares of SI would be deemed to be surrendered; (2) non-cottage owning shareholders would lose any equity interest in Si's assets; and (3) the corporate assets would be transferred to the Association, which would be controlled by the cottage owners who would be entitled to cottage memberships in the new nonprofit entity.\\n[\\u00b6 16] A surrender and effective cancellation of shares and termination of the equity interest of some shareholders, to be followed by a post-conversion action to determine value of shares, is not a reclassification as required by section 931(3)(B). Accordingly, the Superior Court correctly determined that the nonprofit conversion plan was invalid. Having determined that the conversion plan was invalid, the Superior Court was not required to address the other issues that the parties presented for its consideration regarding disputes in implementing the now invalidated conversion plan.\\n[\\u00b6 17] In affirming the Superior Court's determination that the conversion plan was invalid because it lacked the requisite provision for reclassifying the shares of the corporation, we express no opinion on any other issue that was addressed as dictum by the Superior Court.\\nThe entry is:\\nJudgment affirmed.\\n.During the summary judgment hearing, the parties addressed the 2000 version of title 13-A of the Maine Revised Statutes as the applicable statute in this case. It is unclear from the record exactly why this was decided. The actions affecting the present action \\u2014 the attempted nonprofit conversion and the request for appraisal rights \\u2014 occurred in 2005. The last amendments to the relevant statutes occurred in 2003, and therefore, the statute applicable to this matter is the 2006 version of title 13-C. Title 13-C has since been further amended. P.L.2007, ch. 289, \\u00a7 32-40 (effective Sept. 20, 2007) (codified at 13-C M.R.S. \\u00a7 1304, 1321-1325).\\n. Eleanor Taft and Nathalie Taft Andrews received payments, but Frederick Taft did not because there was a dispute as to whether he had adequately certified that he had owned shares prior to the announcement of the plan. However, this dispute is not part of the current appeal.\\n. Title 13-C M.R.S. \\u00a7 1331 has since been amended. P.L.2007, ch. 323, \\u00a7 C-17 (effective July 1, 2008) (codified at 13-C M.R.S. \\u00a7 1331 (2007)).\"}"
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+"{\"id\": \"8738995\", \"name\": \"The Middle Bridge Propr's vs. Warren Brooks\", \"name_abbreviation\": \"Middle Bridge Propr's v. Brooks\", \"decision_date\": \"1836-06\", \"docket_number\": \"\", \"first_page\": \"391\", \"last_page\": \"397\", \"citations\": \"13 Me. 391\", \"volume\": \"13\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T21:12:00.960162+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Middle Bridge Propr\\u2019s vs. Warren Brooks.\", \"head_matter\": \"The Middle Bridge Propr\\u2019s vs. Warren Brooks.\\nWhether a duty imposed upon a corporation bylaw is merely directory, oris essential to'the enjoyment of some of their rights, must be determined by its nature and object, by the public convenience, and by what may be understood to have been the intention of the legislature.\\nIf the act granting the right to erect a toll bridge require, that the rates of toll shall constantly be kept exposed to the view of passengers at the place where the tolls are collected; no action can be maintained for the recovery of the penalty given for forcibly passing the bridge without paying toll, unless the corporation have complied with this requirement.\\nWhere there has once been a compliance with this provision on the part of the corporation, and the board on which the rates of toll were established was afterwards unlawfully destroyed, such action cannot be maintained, unless the rates of toll are again exposed to view, as soon as may be.\\nIt was held, that an action could not be maintained after the corporation had delayed for six days to exhibit the rates of toll.\\nThis was a writ of error brought to reverse a judgment of the Court of Common Pleas.\\nThe original action was trespass brought before a justice of the peace, and carried by appeal to the Court of Common Pleas. By the action the Middle Bridge proprietors, by their treasurer, sought to recover of Brooks a penalty of not less than five nor exceeding fifty dollars, under the special stat. of 1827, ch. 357, for forcibly passing their Bridge without paying the legal toll.\\nThe testimony given at the trial, before Perham J. was spread on the record, as were several requested instructions, the refusal of the Judge to give them, and the instructions actually given. Thirteen distinct causes of error were assigned, part of which were for alleged material defects in the declaration, and part originating from imputed errors of the Judge in refusing to give the instructions requested by the counsel of the original defendant, and in giving such as were given. As the opinion of the Court was confined to but two particulars, both embraced by the same state of facts, so much only of the case will be given, as is pertinent to this inquiry. The statute granting the right to build the bridge and to take toll, has in it these words: \\u201c and the toll shall commence on the day of the first opening of said bridge lor passengers, and may be collected, as shall be prescribed by said corporation ; and at the place where said tolls are collected, the rates of toll aforesaid, and all others which may be granted, shall be fairly and legibly painted in large or capital letters, and kept constantly exposed to the view of passengers.\\u201d There was no averment in the declaration, that any part of this provision of the statute had been complied with, unless from the statement, that the corporation, on the fifteenth of May, 1834, when it was alleged that Brooks passed the bridge without paying toll, though demanded of him, that the corporation were lawfully entitled to require toll of him. It appeared in evidence, that the defendant, on that day passed over the bridge, the gates being open, without paying toll, although the toll gatherer requested payment thereof. It also appeared, that a board with the rates of toll painted thereon had been erected, but that on the ninth day of the same May, and the witness did not know how long before that time, the board had been broken, and the rates of toll torn offj and as he supposed from hearsay, which testimony was objected to by the defendant, by some evil minded person; and that the board continued in that condition for some months afterwards, when it was replaced by a proper one.\\nIt appeared from the reeord, that the counsel of the original defendant, Brooks, contended at the trial, that the action could not be supported, unless it was proved, that the rates of toll were fairly and legibly painted in large or capital letters, and kept constantly exposed to the view of passengers at the place where the toll was collected, and that this had not been done; and he requested (he Judge to instruct the jury, that, as there was no evidence that the rates of toll were fairly and legibly painted and exposed to the view of passengers, as required by the statute granting the charter, at the time of the alleged passing of the bridge by Brooks, and as there was evidence that the rates were down more than a reasonable time, that, the facts proved by the plaintiffs did not constitute such a forcible passing, as was contemplated by the statute. The Judge refused to give this instruction, and instructed them, that it was necessary for the plaintiffs to show, that they had a board with the rates of toll written legibly exposed to the view of passengers, as required by the statute; but that if they were satisfied, that the plaintiffs had erected such board, and it was broken down by violence, or any other cause, contrary to the wishes of the corporation, and it was not permitted to be down for an unreasonable extent of time, that they had complied with the law in this respect. The jury found a verdict for the plaintiffs ; and the defendant filed exceptions.\\nAmong other errors assigned was this: Because it is not alleged in said declaration, that the rates of toll are, or ever were, fairly and legibly painted in large or capital letters, and kept constantly exposed to the view of passengers at the place where the tolls are or were collected.\\nAnother of the errors assigned was founded on the refusal of the Judge to give the instruction requested, and giving instead thereof the one by him given on this subject.\\nAll the questions raised by the assignment of errors were fully argued by J. Granger, for the plaintiff in error, and by T. J. D. Fuller, for the original plaintiffs.\\nWith respect to tiiese errors, it was argued for Broolcs, that the omission to aver in the declaration, that the corporation had observed the requisition in their charter in relation to keeping the rates of toll exposed to view was a fatal defect, and that it was not cured by the verdict. The action cannot be maintained, unless enough appears from the declaration to show, that a cause of action existed. In a declaration upon a penal statute, or a penal provision in a statute, every material fact should be accurately averred, or distinctly alleged, in the declaration, or it will be error. Barter v. Martin, 5 Greenl. 76.\\nIt was certainly necessary to prove the fact on the trial, that this provision of the law had been complied with. Both the erection and continuance of the notice to passengers of the rates of toll, they were required to pay, were conditions precedent to the right to recover toll. Nichols v. Bertram, 3 Biclc. 342. If the corporation had put up a notice of this kind, and it was destroyed, by accident or design, it was their duty to replace it, as soon as one could be made. This they did not do. This question of what was, or was not, a reasonable time, should have been decided by the Court, and not left to the jury for them to decide for the Court. Atwood v. Ciarle, 2 Greenl. 249. But the jury were erroneous in their law, as well as the Court.\\nFor the corporation, it was argued, that this provision was of the same character of the other requirements of the statute, such as the dimensions and location of the bridge, the time when the same should be completed, and others of that description ; and that it was no more necessary to allege in the declaration, that the rates of toll were put up, than to aver that the bridge was made at least twenty-two feet wide, as required by the statute. It is enough to allege, that the corporation were entitled to receive toll of those who pass the bridge. Angel\\u00ed & A. on Corporations, 377; 2 Cowen\\u2019s R. 770; 4 Randolph\\u2019s R. 578. Whether the corporators have complied in every particular with the requirements of the charter or not, the issue cannot be made in this collateral way. If the proprietors are holding a franchise by wrong, until a seisure of it into the hands of the government of the State, no individual can complain or object. The only condition, the failure to perform which destroys the rights of the corporators under it, is that the bridge should be completed within two years. This was done. 7 Mass. R. 185.\\nMust the corporation, at the peril of suffering any one to use the bridge without payment of the stipulated compensation, keep their bridge in every particular in constant repair, especially when broken down by some malicious individual. The terms of the statute no more makes the keeping up the rates of toll a condition precedent to the right to take it, than it does the keeping of the bridge constantly railed. If the corporation cannot collect the toll by law, then they cannot recover the penalty; they are concurrent remedies, aud if a man forcibly passes the bridge without paying toll, if the corporation are entitled to toll, they may recover the penalty. There is a very material difference between this act and the general turnpike act. In that it is expressly enacted, that no toll shall be collected, unless the rates are kept up. There is no such provision in this. The only provision. on the subject in the charter of this corporation is merely directory, like the other regulations about the mode of building the bridge, and keeping it in repair. For any omission or accident in this respect the corporation are only answerable to the government. But unless the rates of toll under all circumstances are to be kept up; and if they are broken down by force, that any person may pass forcibly with impunity until another is made and put up, the requirement of the law was fully complied with. It was but six days after the breaking of the board that the defendant forcibly passed the bridge. Whether it was the special duty of the Judge or jury to decide, as to what was a reasonable time to repair a mischief of this description, it is enough, if the decision was right. To make a sign-board of this character requires a skilful artist, who could only be found at particular places. Six days time is too short to find the artist and to have the board made, painted, lettered, varnished, and in order to be put up.\", \"word_count\": \"2610\", \"char_count\": \"14815\", \"text\": \"The action was continued for advisement, and the opinion of the Court afterwards drawn up by\\nWeston C. J.\\nThe assignment of errors in this case has been extended to a great number of specifications, most of which have been satisfactorily answered. By the third section of the act, under which the plaintiffs were incorporated, it is provided that they shall, at the place where the tolls are collected, cause the rates of toll to be fairly and legibly painted in largo or capital letters, and kept constantly exposed to the view of passengers. It is true, that many provisions in a charier, or in the by-laws authorised under it, may be regarded as directory merely. Others are such, as are to be inquired of only between the government and the corporation ; or such as relate to the internal management of their affairs with their officers, or with the individual corporators, which are not to be called in question by a stranger.\\nWhether a duty imposed upon a corporation by law is directory, or essential to the enjoyment of some of their rights, must be determined by its nature and object, by the public convenience, and by what may be understood to have been the intention of the legislature. Bank of the United States v. Dandridge, 12 Wheat. 64. The duty referred to is one which, from its nature and object, ought by no means to be remitted. It answered a double purpose; as an admonition to passengers, of what was required from them, and to protect them from the imposition of being called upon to pay a higher rate of toll, than was authorised by law. And that the intention of the legislature might not be misunderstood, they have directed, that what they required to be done, should be constantly exhibited to public view.\\nIt is a regulation, in the fulfilment of which, a party charged with having incurred a penalty, for passing without the payment of toll, when thereto required, is interested. And we are of opinion, that the corporation is not authorised to enforce the penalty,while there is a failure, from whatever cause, to exhibit the rates of toll in the manner required by law. It does not appear to us, that they have a claim to exact a penalty from a passenger, who passes without payment of toll, although demanded of him, which was all that was proved against the original defendant, while they omitted to exhibit to his eye, one of the evidences of their right, which it'is their duty constantly to expose to view.\\nThe defendant used no other force, than what is merely constructive. It may have been enough to bring his case within the operation of the statute, provided the plaintiffs had done their duty in regard to the subject matter, but we think not otherwise. Nor does it in our judgment make any difference, that their toll-board may have been wantonly and mischievously destroyed. For an injury of this sort, they have a remedy by action ; and their property is protected by penalties. If their board is destroyed, or the letters become obliterated by time, accident or design, they should cause it forthwith, as-soon as may be, to be restored and the letters renewed. It cannot otherwise be constantly exposed to the view of passengers.\\nNichols v. Bertram et al. 3 Pick. 342, was an action for forcibly passing a turnpike gate, without paying toll. After the corporation was established, in whose behalf the plaintiff, their treasurer, sued, it was provided by a general law, that turnpike corporations should not be entitled to demand or receive toll, unless they erected a sign-board, with the rates of toll written or printed in a certain manner. In the act by which they were created, the duty w'as imposed in somewhat different language; and it was not in terms made a condition, upon which their right to receive toll depended. The Court held, that their rights and duties were to be determined by their act'of incorporation, and not by the subsequent general law. They further held, that the corporation had complied with the act. And the implication evidently is, that had it been otherwise, the penalty sought could not have been recovered.\\nIn this case the evidence is, that the toll-board of the corporation was destroyed, at least as early as the ninth of May. On the fifteenth, when the alleged trespass was committed by the defendant, it had not been restored. There was at that time no such board exhibited to the view of passengers. And in our opinion the Judge below should have charged the jury, as requested, that this omission was fatal to the action.\\nJudgment reversed.\"}"
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+"{\"id\": \"8739454\", \"name\": \"Holbrook vs. Holbrook & Trustee\", \"name_abbreviation\": \"Holbrook v. Holbrook\", \"decision_date\": \"1834-06\", \"docket_number\": \"\", \"first_page\": \"361\", \"last_page\": \"365\", \"citations\": \"11 Me. 361\", \"volume\": \"11\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:56:29.477072+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Holbrook vs. Holbrook & Trustee.\", \"head_matter\": \"Holbrook vs. Holbrook & Trustee.\\nPreston and another gave Holbrook a promise in writing to indemnify and save him harmless from all claim, right and title one S. I\\u00cd. had in certain lands, on his, Holbrook's conveying the same to Preston \\u2014 Held that, a bond then subsisting, given by Holbrook to S. H. conditioned for the conveyance of the same land to him, was a claim, right and title contemplated by the contract; and that Preston and another were liable to Holbrook, for the amount he had been compelled to pay S. II. in a suit on the bond.\\nBut Holbrook, prior to said conveyance to Preston and promise of indemnity, having given a bill of sale to S. H. of a barn standing on the premises; it was holden that, it did not pass by the conveyance to the latter, though not excepted, and that consequently, the latter was not liable to Holbrook, for the value of said barn, which he, Holbrook, had paid to S. H. under his supposed liability to him.\\nAssumpsit upon the following contract, viz: \\u201c This may certify that we Joseph Holbrook, as principal, and Warren Preston, I 11 as surety, do agree to indemnify and save harmless Samuel Hol-brook, from all claim, right and title Saul Holbrook has in the premises conveyed by said Samuel to the said Preston by deed dated April 29, 1828.\\nJoseph Holbrook,\\nWarren Preston.\\nDated, June 7, 1828.\\u201d\\nIt appeared, that prior to the making of this contract, viz : June 21, 1826, the plaintiff gave to Saul Holbrook a bill of sale of the barn standing on said Samuel\\u2019s farm. And also on the 9th day of June, 1827, gave to said Saul a bond conditioned to give him a good and sufficient deed of a certain parcel of land on or before the 1st day of March, 1828, on payment by him, to the plaintiff, of the sum of $135.\\nOn the 29th of April, 1828, Samuel Holbrook conveyed the same land, not excepting the barn, by deed of warranty, which was not delivered till June 9, 1828, to Warren Preston; the defendants at the same time, making and executing the writing, declared on in this action.\\nAt the November term of the Court of Common Pleas, in this county, Saul Uolbroolc commenced his action against Samuel Holbrook for a breach of the covenants in his obligation aforesaid of the 9th of June, 1827, which was continued to March, 1828, when said Saul recovered on default, the sum of $143,43 damage, and costs of suit taxed at $12,44. At the June term, 1829, he also commenced his action against Samuel, the plaintiff, to recover back the price paid for the barn aforesaid, in which he recovered on the default of said Samuel, the sum of $50,16 damage, and costs of suit taxed at $7. Both of these judgments, it was admitted, had been paid by the present plaintiff. And Saul Holbrook testified, that he never had any other claims upon the premises than what were contained in the bond and bill of sale aforesaid.\\nThe defendant\\u2019s counsel contended, that by a legal construction of the contract declared on, they were not bound to save harmless the plaintiff from the claim of Saul Holbrook, against the plaintiff, arising either from the bond or bill of sale aforesaid, but Weston J. instructed them, that by the said contract the defendants were bound to save the plaintiff harmless from both said claims.\\nThe jury returned their verdict for the plaintiff. If they were not properly instructed, the verdict was to be set aside, and a new trial granted ; otherwise judgment was to be rendered thereon.\\nBout elle and Wells, for the defendants,\\ncontended that the plaintiffs were not entitled to recover, because Said Holbrook by virtue of the bond and bill of sale had no \\u201c claim, right or title in the premises.\\u201d They constituted a personal claim merely against Samuel Holbroolc, but could give him no interest in the land itself. And it was against claims of the latter description only, that the defendants agreed to indemnify the plaintiff. They contended also, that the plaintiff was estopped by the covenants in his deed, to deny that he had a perfect title to the land conveyed by him. Fairbanks v. Williamson, 7 Greenl. 96.\\nAllen and Tenney, for the plaintiff,\\nmaintained that the terms of the contract declared on, were broad enough to embrace the claim of Saul Holbroolc under the bond and bill of sale aforesaid. The bill of sale was directly of a portion of the premises \\u2014 and the obligation might have been enforced in a suit at equity, and specific performance of it obtained. They may therefore be very properly denominated claims in the premises. Ensign v. Kellog al., 4 Fide. 1 ; Getchell v. Jewett, 4 Greenl. 350.\", \"word_count\": \"1583\", \"char_count\": \"8880\", \"text\": \"Mullen C. J.\\nOn the 9th of June, 1827, Samuel Holbroolc, the plaintiff, gave a bond to Saul Holbroolc, conditioned to give him a good and sufficient deed of a certain parcel of land, on or before the -1st of March, 1828, on payment by him to the plaintiff of the sum of $135. On the 29th of April, 1828, a deed of said land was made, bearing the above date, by the plaintiffj conveying the same to said Preston, one of the defendants, but it was never delivered till June 9th, 1823: at which time also the contract declared on was executed, though that also bears the date of April 29th, 1828. By this contract the defendants agreed to indemnify and secure the plaintiff harmless from all claim., right and title which said Saul then had in the premises. What is the true construction of this contract ? By the terms of it, both defendants must be considered as knowing of the existence of the abovementioned bond, and that the condition of it had been violated. They must have considered Saul as having some claim, right or title in the land, whatever might have been the fact, on strictly legal principles ; and it would seem that the indemnity intended, was against the consequences of his assertion of his claim and right. It is true, that on the 9th of June, 1828, Saul had no legal title to the land, but he had to damages for the breach of the condition, equal to the value of the land. For what purpose could the defendants' contract have been made, but to save the plaintiff harmless from the payment of those damages which Saul has since recovered and the plaintiff has paid ? Is the defendant, Preston, to avoid his contract, and his surety also, by explaining away all its meaning ? Mr. Preston, as a lawyer, must have known that Saul Holbrook, in virtue of Samuel Hol-brook's bond, had not acquired any legal title in and to the land, though he had what was probably considered by all concerned as an equivalent. For some reason, Preston was desirous of obtaining a legal title to the land, and for the sake of succeeding, he and his surety agree to stand between the plaintiff and all harm and damage, in consequence of the bond he had given to Saul. This is the common-sense understanding of the transaction, and in evident accordance with the truth and justice of the case. In this view of the cause we think the instruction of the Judge was correct, with respect to the plaintiff's right to recover the amount which the jury allowed on account of the sum which he had paid for the non-conveyance of the land in question to Saul, in satisfaction of the judgment he recovered.\\nThe subject of the barn, and the instruction of the Judge as to the plaintiff's right to recover its value, next claim our consideration. The bill of sale bears date June 21, 1826. In virtue of this, Saul Holbrook immediately became owner of the barn, and the bam immediately became personal property, in the same manner as though he had built it at his own expense upon the land, by the consent of the plaintiff; and therefore, according to our decision in the case of Russell v. Richards & al. 1 Fairf. 429, it did not pass by the plaintiff's deed to Preston. He should have defended the action which Saul brought against him, and prevented his recovering back the price which be paid for it: but instead of doing this, he consented to the claim and was defaulted. His surrender to that claim, furnishes no foundation 'for a claim against the defendants. Besides, the agreement of the defendants, declared on, has no reference to the sale of the barn, which was made two years before; but exclusively relates to the claim, title and interest of Saul in the real estate or premises in question. The case before us, furnishes no proof of any promise of indemnity or reimbursement on account of the barn or its value. We are therefore of opinion, that the instruction as to this portion of the plaintiff's claim cannot be approved. The consequence is, that the verdict must be set aside and a new trial granted, unless the plaintiff will release on record, so much of the amount of the verdict as is composed of the sum allowed by the jury, on account of the judgment rendered against the plaintiff for $50,16 damage, and $7,00, costs. Should such sum be so released, judgment is to be entered on the verdict for the residue.\"}"
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+"{\"id\": \"8739828\", \"name\": \"Cleaves, by guardian, vs. Foss\", \"name_abbreviation\": \"Cleaves v. Foss\", \"decision_date\": \"1826-04\", \"docket_number\": \"\", \"first_page\": \"1\", \"last_page\": \"10\", \"citations\": \"4 Me. 1\", \"volume\": \"4\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:54:03.532889+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cleaves, by guardian, vs. Foss.\", \"head_matter\": \"Cleaves, by guardian, vs. Foss.\\nAfter a \\u00bfale of lands at auction, by license Of Court, it is the duty of the seller to make and tender a deed within a reasonable time. Two days after the sale is a reasonable time for this purpose. And the purchaser is justified in delaying to complete the contract till he has had a reasonable time to take legal advice respecting the formality and validity of the deed tendered.\\nin a declaration upon a contract required by the statute of frauds to be in writing, it is not necessary expressly to allege that the contract was reduced to writing.\\nThe auctioneer, in a sale of lands, is the agent of both parties; and his entry of the name of the purchaser on his book or memorandum containing the particulars of the contract, is a sufficient signing, within the statute of frauds.\\nThis was an action of the case, which came before the Court upon a general demurrer to the declaration, in which were recited the following facts.\\nThe plaintiff\\u2019s guardian having obtained license of the Supreme Judicial Court to sell a certain lot of land for his benefit, and having given bond, and complied with the requisitions of law in such cases, and having duly advertised the land; it was exposed to sale at public vendue, and struck off to the defendant at the sum of two hundred and ten dollars, he being the highest bidder. The name of the defendant was immediately entered as the purchaser, in the sales-book kept for that purpose, by the clerk of the auctioneer, and by his direction, together with the number and description of the lot, the price at which it was struck off, and for whose account it was sold; and at the close of the sales, there being other property sold, the sales of the day were examined and attested. by the auctioneer, by subscribing his name to the account entered in the book. Two days afterwards the guardian tendered to the defendant a deed of conveyance of the land, with covenants that he had observed the directions of law relative to the sale and proceedings, and that he had good right and lawful authority to make the sale ; and thereupon demanded the consideration money; which the defendant refused to pay. Afterwards the land was again advertised, and sold at auction to another person, for one hundred and sixty dollars. The declaration concluded by charging the defendant as liable for the difference between the first and last sales, with the expenses of the latter, amounting in all, to fifty-four dollars.\\nThe arguments of the counsel were furnished to the Court in writing, of which the following is a brief abstract.\\nN. Emery, in support of the demurrer.\\nNo promise is formally alleged against the defendant, that he would become the purchaser of the land; nor are any conditions of sale stated; nor any terms of payment; nor the nature of the security to be given; nor the time for executing the deed; nor does it appear that any abstract of title was exhibited; nor that it was declared that the highest bidder should be deemed the purchaser. Neither is it stated that there was any agreement or condition in writing that on failure of payment of the money by the defendant a new sale should be made; nor that he should pay the difference between the two sales; nor that he ever signed any memorandum or note in writing, engaging to become the purchaser and to pay the money alleged; nor that any other person made the contract by his authority.\\nUnder these circumstances the defendant considers himself protected by the statute of frauds ; the first section of which is similar to the fourth section of Steel. 29 Car, 2, cap. 3.\\nSales at auction are within the statute of frauds. Hindu v. Whitehouse 7 East 558. Blagdenv. Bradbcar 12 Ves. 4G6. Buck-master v. Harrop 7 Ves. 341. The auctioneer, by entering the name of the purchaser in writing, is not thereby an agent authorized by him to sign an agreement. Stansfield v. Johnson 1 Esp. 101. Walker v. Constable 1 Bos. & Pul. 306. 1 Jacob & Walker 350. The cases on the other side are such as have adopted the opinion that an auctioneer, by his character as such, became agent for both parties, upon the knocking down of the hammer. This opinion is founded on the case of Simon v. Motivos, as reported in 3 Burr 1921. But there is nothing in our statute encouraging such a conclusion ; nor is there any thing in the employment of an auctioneer, which should make him an agent for the purchaser. In the report of that case in Bull. JV. P. 280, it is said that the auctioneer wrote on the catalogue the defendant\\u2019s name, and the price, by the order and assent of the defendant. And in Burrow\\u2019s report it is said that the buyer\\u2019s coming the next day and seeing the goods weighed was an additional circumstance, that deserved attention. This fact of the defendant\\u2019s express order to, write his name on the catalogue, provided the conditions of sale were annexed, might have gone far to influence the decision of the Court. In Emrmrson v. Heelis 2 Taunt. 45, the Chief Justice thought it a great misfortune that the case of Simon v. Motivos was not overturned before any others were decided upon it.\\nThe case of Coles v. Trecothick, as reported in 9 Ves. 250, has not fairly represented the meaning of Lord Eldon as to there being no distinction between the 17th and 4th section of the Eng lish statute of frauds. He meant that he did not consider the auctioneer an authorised agent in either case. 1 Jacob & Walker 350. See 4 Wheat. 96, note. In England brokers are regulated by statute. Not so here. But an auctioneer is not necessarily a broker, even there. His business is to sell publicly; not to buy and sell, like a broker. Wilkes v. Ellis 2 II. Bl. 555.\\nThis is a mere parol contract; and many cases have been decided in equity in favor of parties who proposed to sell, and made some entries in writing, and did other acts, and for whom auctioneers have done acts; as strong as the present case. Whaley v. Bagucl 1 Bro.. Pari. Ca. 345. Mason v. Jlrmitage 13 Ves. 1. Buckmaster v. Harrop 13 Ves. 456. Mortlockv. Butler 10 Ves. 310. Symonds v. Ball 8 D. & E. 151. Judicial sales in England, under a decree in Chancery, even when confirmed by a master\\u2019s report, are not invariably binding; but on special circumstances the Court will open the bidding. Ryder v. Gower 6 Bro. Pari. Ca. 306. An entry by a clerk, of a purchaser\\u2019s name, has been holden insufficient. Blore v. Sutton & als. 3 Meriv. 237.\\nIn New-York, a sheriff\\u2019s sale of lands is deemed within the statute of frauds. Jackson ex dem. Gratz v. Cotlin 2 Johns 248. Writing a name, and affixing a seal, on the back of a lease, is a nullity. Jackson v. Titus 2 Johns. 480\\nThe Courts in the United States do not appear disposed to go the length of the English decisions on this subject. Webster & al. v. Hoban 8 Cranch 399. See also Stackpolev. Jlrnold 11 Mass. 21. Winslow v. Loring 1 Mass. 392. The relaxation of the statute of frauds has been the occasion of much perjury and fraud; and it is a subject of regret that the statute has not been rigorously observed. Lindsay v. Lynch 2 Sch. & Lefr. 1 Gh'ant v. Naylor 4 Cranch 235.\\nAgainst, the position that the auctioneer is the agent of both parties, it may be observed that in a point of fact the auctioneer writes down the name of the buyer in furtherance of his own views, or by direction of the seller. No man bids at an auction under the idea that the auctioneer is to become his agent to make a contract for him, and finally bind him by knocking down the hammer and writing his name. The bidding is made upon the impulse of the moment, to which a locus peniten\\u00face ought to be allowed; and if the bidder is not called on to confirm his offer by Writing,his name to the conditions of sale, or giving express directions that it should be done, he ought not to be bound. He could not suspect that the auctioneer, who is not of his own selection, was to be forced upon him as his own agent. The whole address of the auctioneer is always exerted to get the best possible terms for the seller, whose will and interests are his own.\\nThe character of an agent implies responsibility to his principal. But could the purchaser of land maintain an action ^against the auctioneer for not writing his name, after the hammer was knocked down ? And might not the auctioneer with propriety contend that he struck down the hammer to signify that his employer the seller was satisfied with the offer, and that the bidder might perfect the contract by writing his own name, or calling on some one to write it for him ?\\nIt seems the most correct conclusion, that whenever an omission is made at un auction to state in writing the conditions of the sale, and the last bidder does not sign or expressly authorize the signing of an agreement.to become the purchaser, the case should be governed by the rule laid down by the Court in Winslow v. Loving 7 Mass. 392: \\u2014 that \\u201c when the highest bidder at a sheriff\\u2019s \\u201c sale refuses to take and pay for the article he has bid off, the officer has authority to set up the article again at auction, and \\u201c to sell it to the highest bidder.\\u201d This mode terminates the controversy at once, neither party being bound if the purchaser neglects to take and pay. There is no difference in principle between the cases of the sheriff and the guardian. Both wish to raise the money. Indeed it seems more important that here the liberty should be given to the party bidding for land to remain unbound till he signs an agreement: because it is not the practice in general to give abstracts of the title, and therefore time should be allowed to look into it. And if an abstract were exhibited at the sale, still the purchaser ought to be permitted to recur to the records and satisfy himself that the title is good; and to consult counsel respecting both the land and the deed proposed to bo given ; as well as to examine the actual condition of the land.\\nThe plaintiff, therefore, if every thing relating to the subject of the supposed contract had been binding, has been much too precipitate. It is true he was bound to tender the deed on the day of sale. Hagedorn v. LaingG Taunt. 162. Berry v. Young 2 lisp. 640. Cornish v. Rowley 1 Selw. Jf. P. 160. But the defendant was entitled to a reasonable time to determine whether it was prudent for him to accept it, and the length of this period may perhaps be determined by reference to the notice to quit, allowed to tenants at will. Such notice from the 17th to the 30th of September was decided in Massachusetts to be insuffi cient. Ellis v. Paige & al. 1 Pick. 43. In the present case the deed was tendered on the 15th of November, and the land resold on the 27th of the same month. The plaintiff having thus, before the lapse of reasonable time, chosen to seek his redress in a new sale, he ought not to be admitted to another remedy.\\nBy the declarations and pleadings on these subjects, so far as they appear in the English books of reports, it seems usually to be one of the conditions of sale that the highest bidder shall be the purchaser, and shall sign an agreement to complete the conditions of sale; and the plaintiff alleges a compliance with all the requisites to make out his case. But the case at bar is manifestly an attempt to make the most of one altogether defective. 16 East 44.\\nAs the conditions of sale did not set forth the kind of deed to be given, it was natural for the purchaser to conclude that he was to be protected by a general warranty; such deeds being often given by guardians in similar cases. And the want of such covenants in the deed offered, may constitute another reason to justify the defendant in refusing to complete the parol agreement.\\nE. Shepley for the plaintiff.\\nThe only question in this case is whether an action can be maintained for a refusal to perform a Contract for the sale pf real estate at auction ; the purchaser\\u2019s name having been written down against the lot, at the time, by the auctioneer.\\nIn 1794, Eyre C. J. in the case of Stansfield v. Johnson 1 Esp. 104 held the negative of this question, considering the contract as within the statute of frauds, and therefore not binding, because not signed by the party or his agent. This was only a nisiprius decision, without consideration or argument.\\nIn 1798 the case of Walker v. Constable 1 Bos. & Pul. 306 was decided in the same way, and rests principally on the authority of Stansfield v. Johnson. It is only a brief note by the reporter of what the Court decided; and the case appears to have received very little consideration.\\nThe case of Buclcmaster v. Harrop 7 Ves. 341 was decided in 1802 by Sir William Grant upon the authority of these two pre ceding cases, and without any examination of the principle upon which they were determined.\\nIn New-York in 1804, the English authorities, as they then stood, were followed in Simonda v. Catline 2 Caines 61, by Kent C. J. who held that sheriffs\\u2019 sales of real estate at auction were within the statute of frauds. And upon the authority of this case were decided those of Jackson v. Catlin in 1807, in 2 Johns. 248, and in 1811 in 8 Johns. 520.\\nThus has been reared a superstructure of imposing appearance, having no foundation in principle, and very little in authority ; resting upon nothing more than the dictum, of a single Judge at nisiprius. It had never received an examination by the powerful minds of the gentlemen then at the bar, and on the bench ; until that of the Lord Chancellor was applied in 1804 to a revision of the principle of the former decisions in the case of Coles v Trecothick 9 Ves. 249, in which their authority was deliberately rejected. And several years after this decision, in the case of Emmerson v. Heelis 2 Taunt. 38, the principle of Coles v. Treco-thick was adopted in the Common Pleas upon full argument and great consideration ; and was followed in 1811, by that of White v. Procter 4. Taunt. 209. And in 1814 Sir Win. Grant, in the case of Kemeys v. Procter, 3 Ves. & Beame. 57, retraces his own steps, and decides that sales at auction are not within the statute of frauds. Thus it is finally settled in England, both at common law and in chancery. In New-York the doctrine holden in chancery is at variance with their decisions at common law. McComh v. Weeks 4 Johns. Chan. 659. Will this Court decide this question in accordance with the later authorities, which have been settled upon principle, after argument, and upon mature deliberation ; and which have overruled the earlier decisions; or in accordance with decisions of an older date, which had been made without argument, or deliberation ; which would not stand the test of principle, and have therefore been repudiated ?\", \"word_count\": \"3618\", \"char_count\": \"20157\", \"text\": \"Weston J.\\ndelivered the opinion of the Court.\\nThe first point taken against the declaration is, that it contains no distinct averment of a promise on the part of the defendant t\\u00a9 become the purchaser of the land, which was offered for sale. But the facts relied upon, by which to charge him, are set forth, his liability thereupon and an assumpsit in consideration of that liability averred, which is sufficiently formal in this particular, if such promise can be raised or implied by law from the facts. It is objected that it does, not appear, from- any conditions of sale, that the highest bidder was to be the purchaser ; but this is implied from the nature of the transaction. It is also urged that the terms of payment or security required were not agreed: it must then be understood that payment was to be made, when the conveyance should be executed. It is further objected that no abstract of title was furnished ; but this is not practised among us. It was in the power of the purchaser to satisfy himself upon this point at the register's office, or by other inquiries. It is insisted that, notwithstanding what was done, a locus penitential. remained to the defendant, until he could satisfy himself as to the title, and as to the condition of the land ; but in regard to these particulars, he should have satisfied himself, before he offered to become the purchaser. He had.an opportunity to do so; and it was a course suggested and required by common prudence.\\nIt is contended that the defendant was justified in refusing to complete the purchase and to accept the deed because it contained no covenant of general warranty ; but the plaintiff was Under no obligation to enter into such covenant ; it would be unreasonable to require it; its omission therefore could not discharge the defendant from the performance of his engagement.\\nThe plaintiff, before he could entitle himself to this action, was bound to perform, or offer to perform, whatever it was incumbent on him to do on his part; and this within reasonable time ; and we are of opinion that the tender of a deed within two days of the sale was within reasonable time. The law would justify the defendant in delaying to complete the contract, until he should have had opportunity to take advice, as to the formality and validity of the instrument tendered. Whether a reasonable time had been afforded for this purpose, before the plaintiff again proceeded to sell the land, might possibly have been called in question, if the defendant, instead of requesting time to take advice, had not promptly refused to accept the deed and to pay the money, without making any objection to the form of the conveyance.\\nIt has been argued by the counsel for the defendant that, by the statute of frauds, the memorandum, required to be made by its provisions, should appear by the declaration to have been in writing. This position is not warranted by the authorities ; and if it was, it does appear by this declaration that the contract relied upon was made in writing, if signed by a party authorized to do so, as the agent of the defendant.\\nBut the principal point presented in this case is, whether in a sale of real estate at auction, the auctioneer is to be regarded as the agent of the purchaser, and as such competent to charge him by his signature. This is a question of great importance ; and one which does not appear to have been decided, either in this State or in Massachusetts.\\nIt may be urged that the auctioneer, who is directly employed and deputed to act for the seller, ought in no case to be regarded as the agent of the purchaser. If this were res integra, strong reasons might be and have been offered in support of this position. But since the case of Simon v. Motivos, & Burr. 1921, 1 W. Bl. 599, it has been uniformly held that in sales of goods at auction, the auctioneer is to be considered as the agent of both parties ; and that his memorandum, stating the price and conditions of sale, with the name of the buyer, is a sufficient signing to charge him within the statute of frauds. This is a principle generally known to the commercial part of the community ; and has become toa firmly established to be shaken. In regard to the question, whether the auctioneer is to be deemed the agent of both parties in Ihe sale of land, or any interest therein, there has been less uniformity of opinion. The origin of the cases in which the negative has been adopted, and their history and progress, together with a series of later cases in which the affirmative has prevailed, as it would seem upon more mature consideration, has been clearly exhibited by the counsellor the plaintiff. We adopt the latter as the better opinion. There does not appear to be any good reason, why ihe auctioneer should be viewed as the agent of the purchaser in the sale of goods, which does not equally apply in the sale of land. The manner of conducting sales at auction must be presumed to be well known to all who resort to them in the character of bidders. Whoever bids, does in effect authorize the auctioneer to sign his name as purchaser, if no other person bids a higher, sum. The locus penitent ice may be considered as continuing until this is actually done, or at least until his offer is accepted. But if the bid is not seasonably retracted, the memorandum of the auctioneer may be considered as deliberately authorized ; and this is all which the statute requires.\\nThe declaration is adjudged good.\"}"
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+"{\"id\": \"8844270\", \"name\": \"Samuel L. Miller vs. Louis F. Fallon\", \"name_abbreviation\": \"Miller v. Fallon\", \"decision_date\": \"1936-02-03\", \"docket_number\": \"\", \"first_page\": \"145\", \"last_page\": \"153\", \"citations\": \"134 Me. 145\", \"volume\": \"134\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:39:59.971774+00:00\", \"provenance\": \"CAP\", \"judges\": \"SittiNg: Dunn, C. J., Sturgis, Barnes, Thaxter, Hudson, Manser, JJ.\", \"parties\": \"Samuel L. Miller vs. Louis F. Fallon.\", \"head_matter\": \"Samuel L. Miller vs. Louis F. Fallon.\\nKennebec.\\nOpinion, February 3, 1936.\\nCarleton & Donovan,\\nClifford & Clifford, for plaintiff.\\nLoche, Campbell & Reid, for defendant.\\nSittiNg: Dunn, C. J., Sturgis, Barnes, Thaxter, Hudson, Manser, JJ.\", \"word_count\": \"2750\", \"char_count\": \"15776\", \"text\": \"Sturgis, J.\\nThis is an action on the case to recover compensation for losses suffered by the plaintiff as a result of alleged malpractice by the defendant, a practicing physician and surgeon. The defendant having seasonably pleaded the statute of limitations, by consent of the parties the case is reported on an agreed statement of facts.\\nThe report shows that on November 18, 1929, the defendant operated on the plaintiff for hemorrhoids and, until January 9, 1930, following, continued with post-operative treatment. It is agreed that the acts and omissions of alleged malpractice charged in the writ occurred between November 18, 1929, and January 15, 1930, which confines the accrual of the plaintiff's cause of action, if any, to that period. This suit was begun on August 15, 1935, and duly entered at the return term.\\nThe general statute of limitations in force when this malpractice is alleged to have been committed barred the maintenance of any action of assumpsit or upon the case founded upon any contract or liability, express or implied, and all other actions on the case except for slanderous words and for libel, if not commenced within six years after the cause of action accrued. 11. S. 1916, Chap. 86, Sec. 85. Actions for assault and battery, and for false imprisonment, slander and libel, were then barred unless commenced within two years after the cause of action accrued. R. S. 1916, Chap. 86, Sec. 87. These limitations upon personal actions were embodied without change in the next revision of statutes. R. S. 1930, Chap. 95, Secs. 90, 92.\\nRy Public Laws 1931, Chap. 62, approved March 20, 1931, and effective July 2, 1931, the time allowed for the commencement of action for malpractice, which had previously been governed by the general law, was reduced to two years by an amendment adding this class of actions to R. S., Chap. 95, Sec. 92, which now reads:\\n\\\"Actions for assault and battery and for false imprisonment, slander and libel, and malpractice of physicians and all others engaged in the healing art, shall be commenced within two years after the cause of action accrues.\\\"\\nThe defendant invokes this statute and, on the brief, argues that it should be construed as retroactive, barring the plaintiff's suit upon this cause of action which accrued prior to the passage of the law and upon which suit was postponed until after the new limitation had expired.\\nThere can be no well-grounded dissent from the settled rule that the legislature has full power and authority to regulate and change the form of remedies in actions if no vested rights are impaired or personal liabilities created. There is no constitutional inhibition against the enactment of retroactive legislation which affects remedies only. Soper v. Lawrence Bros. Co., 98 Me., 268, 56 A., 908; MacNichol v. Spence, 83 Me., 87, 21 A., 748; Berry v. Clary, 77 Me., 482, 1 A., 360; York v. Goodwin., 67 Me., 260; Sampson v. Sampson, 63 Me., 333; Proprs. Ken. Purch. v. Laboree, 2 Me., 293. Statutes of limitation fall within this rule. They are laws of process and where they do not extinguish the right itself, are deemed to operate on the remedy only. Lamberton v. Grant, 94 Me., 508, 518, 48 A., 127; Lunt v. Stevens, 24 Me., 537; Mason v. Walker, 14 Me., 166; Proprs. Ken. Purch. v. Laboree, supra. It is equally well settled that statutes of limitation may be made applicable to existing rights and causes of action provided a reasonable time is allowed for the prosecution of claims thereon before the right to do so is barred. Carpenter v. Hadley, 118 Me., 440, 108 A., 679; Soper v. Lawrence Bros. Co., supra, affirmed 201 U. S., 359; MacNichol v. Spence, supra; Sampson v. Sampson, supra; Proprs. Ken. Purch. v. Laboree, supra; Cooley's Const. Lim. (7th Ed.), 523; Lewis' Sutherland Stat. Const. (2nd Ed.), Vol. II, Sec. 706; Wood on Lim. of Action, Vol. 1, Sec. 11.\\nIt does not follow, however, that, because the legislature possessed the power to enact a retroactive statute of limitations, that it did so in the passage of the amendment under consideration. The language of that act is general and makes no reference to causes of action which had already accrued. It contains no provision expressly embracing causes of action which had accrued prior to its passage as in the statute construed in Quimby v. Buzzell, 16 Me., 470. There is no saving clause expressly exempting such causes of action from its operation, indicating a legislative intent to make it apply only to future actions, as in Weymouth v. Gorham, 22 Me., 385. Nor is a period provided for the presentation of accrued claims after the passage of the act, clearly demonstrating an intention to make the new limitation effective upon such claims, as in Sampson v. Sampson, supra, and Soper v. Lawrence Bros. Co., supra.\\nBarren of such express commands or convincing implications, the limitation can not be deemed to have been intended to be retroactive. It must be construed by the fundamental rule of statutory construction strictly followed by this Court that all statutes will be considered to have a prospective operation only, unless the legislative intent to the contrary is clearly expressed or necessarily implied from the language used. Carpenter v. Hadley, supra; Dyer v. Belfast, 88 Me., 140, 33 A., 790; Deake, Appellant, 80 Me., 50, 12 A., 790; Rogers v. Greenbush, 58 Me., 397; Cooley's Const. Lim., 455; Endlich on Inter. of Stat., 271, 279; Wood on Lim. of Action (2nd Ed.), Vol. 1, p. 41.\\nIn Hathaway v. Merchants' Trust Co., 218 Ill., 580, 75 N. E., 1060, that Court said:\\n\\\"While it is undoubtedly within the power of the legislature to pass a statute of limitations or to change the period of limitation previously fixed and to make such statute or changes applicable to existing causes of action, yet such a statute is not to be readily construed as having a retroactive effect, but is generally deemed to apply merely to causes of action arising subsequent to its enactment, and the presumption is against any intent on the part of the legislature to make the statute retroactive. . . . The statute will only be given a retroactive effect when it was clearly the intention of the legislature that it should so operate. . . . And even where this intention clearly appears, it will not be given effect if to do so would render it unreasonable or unjust. If a reasonable time is given for bringing a suit or filing claims after the amendment takes effect, it may be valid and binding. . . .\\n\\\"The plaintiffs in error contend that as there were about eight months after the act was approved and six months and thirteen days after it took effect within which the defendant in error could have filed its claim, this was a reasonable time, and that the new limitation should prevail. The act must be applied generally to all claims and to all estates. A single claim or a single estate can not be pointed out in which the act applies, and then say it does not apply to any other claim or to any other estate. It an estate had been pending for more than one year at the time the amendment went into effect, then all outstanding claims which had not been filed in the probate court would be entirely cut off, as far as the statute is concerned, without any opportunity to recover against the estate unless an equitable rule was applied. If an estate had been pending less than a year at the time the amendment went into effect, then the time within which claims might be filed would be cut down all the way from one day to one year. Applying the rule of uniformity to this amendment, we can not say that a reasonable time was left creditors in which to file claims or that it was the intention of the legislature that the amendment should be retroactive.\\\"\\nThe application of this last observation to the limitation we are considering is obvious. Giving the limitation a retroactive effect would bar actions of malpractice which had accrued more than two years before it went into effect and cut down the time in which actions had accrued within two .years could be begun all the way from one day to two years. Hathaway v. Merchants' Trust Co. is affirmed in George v. George, 250 Ill., 251, 95 N. E., 167. The principles there enunciated are reviewed and adopted in Adams & Freese C. v. Kenoyer, et al., 17 N. D., 302, 116 N. W., 98.\\nIn Casto v. Greer, 44 W. Va., 332, 30 S. E., 100, 101, that Court said:\\n\\\"A cardinal rule in interpreting statutes is to construe them as prospective in operation in every instance, except where the intent that they shall act retrospectively is expressed in clear and unambiguous terms, or such intent is necessarily implied from the language of the statute, which would be inoperative otherwise than retrospectively. In doubt it should be resolved against, rather than in favor of, retrospective operation. Statutes of limitations are no exceptions to the rule that statutes are prima facie to be given only prospective operation. . . .\\n\\\"The provisional relied on in this case is contained in chapter 4, acts 1895, re-enacting section 2, chapter 123, Acts 1891, being section 2, chapter 74, Code, and is in these words: 'But if such transfer or change be admitted to record within eight months after it is made, then such suit to be availing must be brought within four months after such transfer or charge was admitted to record.' Nothing is contained in the enactment indicating in any way that this provision was to apply to transfers or charges made prior to the passage thereof, nor could it so apply without being made to bar all such prior preferences recorded four months prior to the passage of the act. The circuit court meets this difficulty by amending the act so as to make it read that, to avoid any such preferences now in existence, suit must be brought within four months after the passage thereof. This is a good suggestion, and it would probably have been adopted by the legislature had it been presented in time, but the courts are not authorized to supply the omissions of the legislature, even though such omissions do produce confusion. It is the duty of the courts to construe, and not to legislate.\\\"\\nIt is the rule also in Michigan that statutes of limitation must be construed to operate prospectively only, unless their terms clearly indicate a different intent, and legislation in general terms not indicating a contrary intent, must be deemed to have a prospective operation only. McKisson v. Davenport, 83 Mich., 211, 47 N. W., 100, and cases cited. And in respect to lack of uniformity in the operation of such a statute, in Ludwig v. Stewart, 32 Mich., 26, 28, it is said:\\n\\\"It is very evident that there is no definite time fixed by this statute within which actions shall be commenced, in so far as it is intended to have a retroactive operation. Under it cases will arise where the time within which the action must be commenced would be so short that it would be held unreasonable and void, while in others the time would be ample. Whether the time allowed in a given case would be sufficient or not must depend altogether upon the question as to the time when the cause of action accrued. And it is doubtful whether any two cases would be found alike. A decision under such a statute, while applicable to all cases coming within the time passed upon in such case would have but little, if any application in most others likely to arise. The effect of such a statute is to compel every man to decide for himself and at his peril, what will be considered a reasonable time within the judgment and opinion of the court of last resort. Again, cases must necessarily arise so near the dividing line that it would become a difficult matter for the court to say, under all the circumstances, whether the time allowed was sufficient and reasonable or not. And in all these cases it would still remain a matter of doubt whether the legislature would have come to the same conclusion and would have passed a statute fixing the same time which the court did. Indeed, it is evident that the limitation would be one fixed by the court, and not by the legislature. This court assumes no such power.\\\"\\nThe doctrine of the cases just cited is- upheld in Bonfils v. Public Utilities Com., 67 Col., 563, 189 P., 775; Thoeni v. Dubuque, 115 Iowa, 482, 88 N. W., 967; Boyd v. Barrenger, 23 Miss., 269; Nichols v. Briggs, 18 S. C., 473; Day v. Pickett, 4 Munf. (Va.), 104.\\nWe are fully aware that in Massachusetts a different rule prevails. It is there held that, inasmuch as statutes of limitation relate only to the remedy, they may control future procedure upon existing causes of action where they contain no language clearly limiting their application to causes arising in the future. Mulvey v. Boston, 197 Mass., 178, 83 N. E., 402. But, as is pointed out by that Court, the adoption of this rule is a direct repudiation of the principle that statutes are presumed to be prospective and not retroactive in operation. This is the interpretation put upon Mulvey v. Boston in the recent case of E. S. Parks Shellac Co. v. Jones, 265 Mass., 108, 112, 163 N. E., 883.\\nNor have we overlooked the Federal rule, as it is termed, that such a statute is deemed to affect existing causes of action only from the time they are first subjected to its operation. Sohn v. Waterson, 17 Wall. (U. S.), 596. See Carson v. Railroad Company, 128 N. C., 95, 38 S. E., 287; Culbreth v. Downing, 121 N. C., 205, 28 S. E., 294. This rule is also in direct conflict with the presumption that statutes of limitation operate prospectively. Under it, the Court, of its own volition, extends the period of limitation prescribed by the legislature. The rule is founded on the hypothesis that, if the new limitation be made to apply only to causes arising aft\\u00e9r the passage of the act, all existing actions would be without limitations, a result not intended by the legislature. Sohn v. Watterson, supra. No such result would follow in the case at bar. The old statute of limitations still applies to existing causes of action.\\nCounsel for the defendant urge this Court to construe Chapter 62, P. L. 1931, as applying to such existing causes of action only as have already run out a portion of the original statutory time but which still have a reasonable time left for prosecution before the bar of the new statute attaches, thus leaving all other actions accruing prior to the passage of the law unaffected by its provisions. We find no support for this rule. It has been adverted to by law writers, but its general acceptance is not recorded. It was re jected as arbitrary and unsound in Sohn v. Watterson, supra. It violates the rule of uniformity of Hathaway v. Merchants' Trust Co., supra, and Ludwig v. Stewart, supra. Under it, the statute would be unconstitutional as to actions which had accrued two years or more before its passage, or at a time which did not allow a reasonable period for their prosecution thereafter. This rule is not accepted in the opinions of this Court in Sampson v. Sampson, supra, or in MacNichol v. Spence, supra. There is nothing in the opinions in those cases to support that argument advanced on the brief.\\nWe are of opinion, therefore, that the time for the commencement of this action for malpractice here in suit is limited only by the provisions of the general statute of limitations in R. S. 1930, Chap. 95, Sec. 90. It is not barred by P. L. 1931, Chap. 62. In accordance with the stipulations of the report, the cause must be remanded to the Superior Court for trial.\\nSo ordered.\"}"
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+"{\"id\": \"8844314\", \"name\": \"Alonzo P. Chesley vs. Bradbury F. King\", \"name_abbreviation\": \"Chesley v. King\", \"decision_date\": \"1882-11-29\", \"docket_number\": \"\", \"first_page\": \"164\", \"last_page\": \"178\", \"citations\": \"74 Me. 164\", \"volume\": \"74\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:41:26.658267+00:00\", \"provenance\": \"CAP\", \"judges\": \"Walton, Daneorth, Peters and Libbey, JJ., concurred.\", \"parties\": \"Alonzo P. Chesley vs. Bradbury F. King.\", \"head_matter\": \"Alonzo P. Chesley vs. Bradbury F. King.\\nKennebec.\\nOpinion November 29, 1882.\\nEight to water percolating the soil. Digging of well, motive. Injuring water supply of another. Practice.\\n\\u2022One has a legal right to dig a well anywhere on his own land for the purpose of obtaining water for his own use or for the benefit of his estate, and although the effect of it may be to withdraw the water percolating the ground to a spring from which another has the right to take water by an aqueduct, and dry up the spring; the owner of the soil will not be liable to an action on that account, so long as he acts in good faith with an honest purpose. But | f if he digs the well for the solo purpose of inflicting damage upon- the party \\\" who has rights in the spring, he will be liable.\\n'Where the jury give damages upon two distinct grounds, and do not return how much was given upon each, the only remedy is to set aside the verdict if it was against law or evidence as to either.\\nOn report, on motion to set aside the verdict, from superior \\u25a0court.\\nThe writ is dated October 6, 1880 ; in it the plaintiff alleges that on October 12, 1863, he was the owner of a certain farm, of ninety acres in Mount Yernon, and on that day sold the plaintiff ten acres therefrom, on which there was a valuable spring of living water so elevated and situated that the water from the same would run and could be conducted and conveyed in pipes to his dwelling, barn and pasture, and that in the conveyance he expressly reserved the right and privilege of taking and drawing-water from the spring by^ an aqueduct to his dwelling, barn and pasture, for the use and supply of the same ; that in June, 1870, he put an aqueduct into the spring to convey water to his premises and used the same till August, 1879, when the defendant cut off the aqueduct logs ; that the plaintiff then run another aqueduct to the spring, when the defendant, \\\"further intending to injure the said Chesley and to deprive him of his said right and privilege in said spring and -water, wrongfully and unlawfully opened a well on his said land above said spring, and cut off and turned aside the vein of water supplying the same, diverted said vein of water from its natural course and How to said spring, so that said spring became dry and useless to the plaintiff, and he was wholly deprived of the privilege and benefit of the same and that the defendant \\\"unlawfully and wrongfully and injuriously opened and dug ditches over, through and across the premises of the plaintiff\\u2019s said logs and pipes in the same to said spring and well, and drew off' and subverted the water therefrom and continued such unlawful and. injurious drawing and subversion, intending to deprive the plaintiff of the use and benefit of the same and greatly him injure and damage thereby.\\u201d\\nThe plea was the general issue.\\nAt the trial the jury returned special verdicts that the defendant dug \\\"the well in question and the trench connected with it, for the mere, sole and malicious purpose of diverting the veins of water which supplied the spring in question and not for the purpose of procuring a better supply of water for himself and improving his estate,\\u201d and that the \\\"defendant was liable for severing and disconnecting the aqueduct on his own land in 1879,\\u201d\\u2019 and returned a general verdict for the plaintiff, for 152.95.\\nTlie deed from Chesley to King of the ten acre lot, contained this clause : \\\"And I, the said Chesley, do reserve to myself the privilege of talcing water from a spring on said land by an aqueduct to my house and barn, also to my pasture.\\u201d\\nThe opinion states the material facts.\\nBea/yamd Beane, for the plaintiff,\\ncontended that the aqueduct and tank made in 1870, was the property of both parties, that they were tenants in common, and therefore the acts of the defendant in 1879, in cutting the logs of this aqueduct were unauthorized and the jury were right in awarding damages to the plaintiff therefor.\\nThe water in the spring was changed in qqality and reduced in quantity by the acts of the defendant. The declaration covers this by the words \\\" drew off and subverted the water,\\u201d etc. To subvert'is \\\"to overthrow\\u201d; \\\"to ruin utterly\\u201d ; \\\"to corrupt\\u201d; \\\"to destroy\\u201d. See Webster.\\nThe defendant had no right to cut off the natural channels of water running to this spring, no right to change the underground currents and the cases cited by counsel do not apply to this case.\\nIn all those cases the claim for damages was by one owner of real estate for the act of the adjoining owner done on his own land. Not this case.\\nThe doctrine claimed as applicable to this case amounts to this : A grants to B a valuable right and yet he has the legal power to deprive him at once of the use and benefit of the thing granted by the exercise of a lawful act and upon the land in which the granted right exists and out of which it naturally and necessarily arises. That cannot be good law. Vickerie v. Buswell, 13 Maine, 289 ; Ballard v. Butler, 30 Maine, 94; Pillsbury v. Moore, 44 Maine, 154; Winthrop v. Fairbanks, 41 Maine 307 ; Hammond v. Woodman, 41 Maine, 177; Jordan v. Mayo, 41 Maine, 552; Dolliff v. B. and M. B. B. Go. 68 Maine, 173; \\u25a0Mendell v. Delano, 7 Met. 176; Newell v. Hill, 2 Met. 180; Forbush v. Lombard, 13 Met. 114, 526; Allen v. /Scott, 21 .Pick. 25 ; Thayer v. Payne, 2 Cush. 327; Oocheco M. Go. v. Whittier, 10 N. II. 305.\\nL. C. Cornish (Joseph Baker with him,) for the defendant,\\ncited : Greenleaf v. Francis, 18 Pick. 117 ; Addison on Torts, c. 1, \\u00a7 1; Angel\\u00ed on \\u2019Watercourses, \\u00a7 \\u00a7 95, 114; Elliot v. Fitchburg B. 11. Co. 10 Cush. 193 ; Pillsburyv. Moore, 44 Maine, 154 ; Wash. Easements, 543, 475 ; Foley v. Wyeth, 2 Allen, 131; Auburn Company v. Douglass, 9 N. Y. 444; Hunt v. Simonds, 19 Mo. 583 ; Glendon Iron Company v. TJhler, 75 Pa. St. 467 ; S. C. 15 Am. Eep. 599 ; Rawstron v. Taylor, 11 Exeh. 369 ; Walker v. Cronin, 107 Mass. 555 ; Jenkins v. Fowler, 24 Pa. St. 308; Benjamin v. IFYeeier, 8 Cray, 409 ; South Roydlton Bank v. Suffolk Bank, 27 Yt. 505 ; Mahan v. Brown, 13 Wend. 261; Roath v. Driscoll, 20 Conn. 533; 25 Conn. 593; Rixley y. Clark, 35 N. Y. 520 ; Clmtfteld v. TPi'istm, 28 Yt. 49 ; Mcfcur v. Blundell, 12 Mees, and W. 335 ; CYase v. Silverstone, 62 Maine, 175 ; Phelps v. JSTowlen, 72 N. Y. 39 ; S. C. 28 Am. Eep. 93 ; Chasemore v. Richards, 7 H. L. Cas. 388; Bliss v. Greeley, 45 N. Y. 671; S. C. 6 Am. Eep. 157 ; Brain v. Marfell, Eng. Ct. of App. in Am. Law Eeg. Feb. 1881, p. 93.\", \"word_count\": \"5542\", \"char_count\": \"31111\", \"text\": \"Barrows, J.\\nDamages were claimed by the plaintiff for two acts of the defendant alleged to be wrongful and injurious. I. The cutting off in August, 1879, of certain aqueduct logs lying in the defendant's land and leading from a spring at which the plaintiff had the right and privilege of taking and drawing water by an aqueduct, which aqueduct plaintiff alleges he put into the spring in 1870, for the purpose of supplying his premises. II. The digging a well in the defendant's land above said spring with the malicious intent of cutting off the sources of supply from said spring, the result of which was that it became dry and useless.\\nIt appears by the special findings that the jury affirmed the plaintiff's right to recover on both grounds, and as the amount of damages found upon each is not ascertained, the general verdict must be set aside if either is found to be against law or evidence.\\nI. Touching the first claim for damages by reason of interference with, the aqueduct in 1879. Yery clearly the plaintiff did not put those aqueduct logs into the spring. The defendant did it and the assistance which the plaintiff rendered was but trifling. But the plaintiff claims that under the circumstances it may be regarded as proved that he was an owner in conjmon with the defendant in the aqueduct,'and therefore entitled to maintain an action against his cotenant for the destruction of the common property. The jury must have so found, to give the plaintiff damages on this score. \\\"VVe think the finding was manifestly against the evidence. The plaintiff himself does not assert that there was any verbal arrangement even for a common proprietorship in the aqueduct. In the absence of any such arrangement or of any adjustment between the parties so as to equalize the labor and expense of putting in the aqueduct down to the point where it branched off to conduct the water to the respective homesteads, it seems improbable that either pai'ty contemplated an ownership of the aqueduct in common. Plaintiff sold the land to defendant in 1863, reserving-a right to take water from the spring by an'aqueduct to his house, barn and pasture. Up to 1870, neither party seems to have made any use of the spring-except to conduct it in a spout two or three rods to the highway where they had a tub for a public watering place, and they shared the abatement of taxes thence accruing equally. For this purpose, shortly after the conveyance, they seem to have been jointly engaged in putting a wooden tank into the spring and laying the. spout to the road, and the entire labor and expense was so trifling-that, as to that, perhaps it might fairly be inferred that they were willing to let what one did offset what was furnished by the other, without a precise reckoning. But as to the more expensive and laborious job of putting in the aqueduct, years afterwards, it is not credible that they should have had any understanding for joint ownership without either previous arrangement or subsequent adjustment of the cost. The movement to put an aqueduct in the spring originated with the defendant in 1870, and his first plan was to come into the road from his own land. It is easy to see that the plaintiff had a strong interest to induce the defendant, if he could, to build his aqueduct in such a direction that he himself might supply his own premises by merely laying- a branch of not more than tenor twelve rods in length, connecting with the defendant's. He did so induce him by suggesting to the defend ant that he would find the distance shorter and the digging easier by going through his (plaintiff's) field until he was opposite his own premises, and by promising some little assistance which he rendered and was largely compensated therefor by the use of the defendant's aqueduct down to the point of departure of his own, for eight or nine years and the subsequent abandonment to him of all that paid which lay in his own field. But upon the whole evidence it is clear that there was no thought on .the part of either of a common ownership in any part of the defendant's aqueduct. Plaintiff in his testimony speaks of it as \\\"his,\\\" (defendant's), and not ours, and the labor and expense of constructing it was almost wholly borne by defendant-. Defendant had a perfect right to discontinue the use of that part of it which went through plaintiff's field when ho saw fit, and the verdict of the jury, so far as it gives damages for that act, is manifestly against the evidence.\\nII. The special finding that defendant dug the well, &c. in 1880, for the mere, sole, and malicious purpose of diverting the veins of water which supplied the spring, and not for the purpose of procuring a better supply of water for himself and improving his estate, is without any sufficient evidence to support it and must have been the offspring of an unreasoning bias or prejudice.\\nBut if damages are recoverable for the act without the special finding, it would be idle to set aside the verdict on that account only. We proceed, therefore, to inquire whether there was any wrong to the plaintiff (which is covered by his declaration in this suit) in what the defendant did in the matter of digging the well, etc. in September, 1880. It is necessary throughout our discussion to bear in mind precisely what is charged in the writ as the wrongful act causing damage for which the plaintiff in this branch of the case seeks redress, as well as the evidence offered to support the charge. The plaintiff alleges his rights in the spring and supports his allegations by the production of his deed to the defendant, dated October 12, 1868, containing a reservation of \\\"the privilege of taking water from a spring on said land by an aqueduct to my house and barn, also to my pasture.\\\" He alleges that the defendant on September 6, 1880, intending to injure him and deprive him of said right, \\\"wrongfully and unlawfully opened a well on his said land above said spring, and cut off and turned aside the vein of water supplying the same, diverted said vein of water from its natural course and flow to said spring, so that said spring became dry and useless,\\\" and that he \\\"dug ditches, . . . and laid logs and pipes in the same to said spring and well and drew off and subverted the water therefrom.\\\"\\nWe do not think these allegations give the defendant any' notice that he would be called upon to answer any charge of corrupting the water in the spring. \\\"Subvert\\\" has no such natural signification as applied to material objects like a vein or stream of water, however it may be as to \\\"the minds of the hearers\\\" spoken of in 2 Tim. 2,14, by which Webster illustrates the definition on which the plaintiff's counsel relies.\\nThe allegations plainly relate to a diversion and consequent withdrawal of water from tlm spring and nothing more. No evidence could properly be introduced as to the effect produced upon the taste and properties of the spring water by the pipe through which the overflow from the well found its way into the spring. The evidence was received subject to objection, and cannot properly constitute an element of damages under this declaration. Neither does the evidence warrant the conclusion that the defendant, by means of the well and pipes, withdrew water from the spring which had once actually entered it, but only that he diverted that which was percolating through the ground to the spring, to his well and thence to his own premises.\\nNow touching the alleged claim for damages on account of such withdrawal of water from the spring, we regard it as settled law in this state that any one may, for the convenience of himself or the improvement of his property, dig a well or make other excavations within his own bounds, and will be subject to no claim for damages although the effect may be to cut off and divert the water which finds its way through ahidden veins which feed the well or spring of his neighbor. The reasons of the rule have been heretofore so fully discussed that we have no occasion in this connection to do more than cite some of the authorities. Chase v. Silverstone, 62 Maine, 175; Greenleaf v. Francis, 18 Pick. 117; Acton v. Blundell, 12 Mees. and Wels. 335; Broadbent v. Ramsbotham, 11 Exch. 602; Chasemore v. Richards, 7 H. L. Cases, 349; Wheatley v. Baugh, 25 Penn. St. 528; Ellis v. Duncan, 21 Barb. 230; Delhi v. Youmans, 50 Barb. 316; Radcliff's Ex'rs v. Mayor, &c. 4 Comstock, 200; Roath v. Driscoll, 20 Conn. 533; and numerous other cases, both in England and this country, where the doctrine is amply discussed and affirmed by courts of the hig'hest character.\\nAs remarked by Virgin, J., in Chase v. Silverstone, \\\"We see less difficulties in applying' the rule cujus solum, &c. than that of sic utere, &c. to cases of this character.\\\" Manifestly the plaintiff here can have no greater right by reserving merely an easement in the spring than he would have had if he had excepted from his conveyance the ground in which it stands and a way to it from his own land. He cannot impose a heavier burden upon the property which he conveyed, by this reservation of an easement than he could by an exception of the land covered by the spring.\\nThe same rule applies to cases where one has granted the right to use the waters of a spring, as in the case of adjacent proprietors. Bliss v. Greeley, 45 N. Y. 671; S. C. 6 Am. Rep. 157; Brain v. Marfell, Eng. Court of Appeals, given in Am. Law Register, (February, 1881,) N. S. vol. 20, p. 93.\\nIII. Seeing it is settled that this injury of which the plaintiff complains, is, in ordinary cases, where the owner of the adjacent land exercises his paramount right in good faith for his own or the public convenience or advantage, merely damnum absque injuria and no proper foundation for an action, the next inquiry is, whether it becomes a good cause of action where the proprietor of the land makes his excavations not for the purpose of accommodating or benefiting himself or others, but merely to do a damage to his neighbor who has some qualified rights in the spring. There is a conflict of authority either in decisions or dicta upon this point, \\u2014 some courts of high standing, notably those of New York, Pennsylvania and Vermont, having said in some of their cases broadly, in substance as in Glendon Iron Co. v. Uhler, 75 Penn. Stat. 467, S. C. 15 Am. Rep. 599, that \\\"the commission- of a lawful act does not become actionable although it may proceed from a malicious motive.\\\"\\n^ In view of the very numerous cases where \\\" the commission of a lawful act does become actionable \\\" by reason of the mere carelessness of him who does it, when it results in damage to innocent parties, it sounds strangely to. say that its commission for the solo purpose of inflicting damage upon another and without any design |to secure a benefit to its doer or others, is not actionable' when damage intended is thereby actually caused. We rather incline to the view that there may be cases where an act, otherwise lawful, when thus done may combine the necessary elements of a tort,: \\\"an actual or legal damage to the plaintiff and a wrongful act committed by the defendant, \\\"\\u2014 or in other words may be an invasion of the legal rights of another accompanied by damages. One of the legal rights of every one in a civilized community would seem to be security in the possession of his property and privileges against purely wanton and needless attacks from those whose hostility he may have in some way incurred. fWe think there is more unexceptionable truth in the statement of (the general principle^ in Com. Dig. Action on the Case, A : \\\"In all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damagesand in the remark of the court in Walker v. Cronin, 107 Mass. 562, thereupon'{ \\\"The intentional causing of such loss to another without justifiable cause and with the malicious piarpose to inflict it, is of itself a wrong.\\\" J\\nAt all events it is worth while to examine the cases which are cited .in support of the proposition above quoted from Glendon Iron Co. v. Uhler, to see how far the decision rests upon this doctrine, and how -far upon other matters.\\nWe think it will be found in most, if not all of them, the case was well disposed of, either on the ground that the plaintiff had not the right or property which he claimed in the subject of the injury, or that the defendant's acts might well be regarded as done not from the sole desire to inflict damage upon his neighbor, but partly at least, from \\u00e9justifiable, perhaps laudable design, to promote his own advantage or that of others, or protect his own property from subjection to some servitude by doing acts which, as between himself and the plaintiff, he lawfully might do, \\u2014 or because for reasons of public policy the plaintiff was precluded from asserting an act to be maliciously done which was within the scope of the defendant's authority or right, and might well bo referred to legitimate motives. 1\\nThe particular case of Glendon Iron Co. v. Uhler, ubi supra, seems really to have turned upon the point that plaintiffs could have no exclusive right to use a mere geographical appellation as a trade mark, and that the defendant actually manufacturing the same article at the same place was equally entitled to consult his own advantage by using the same name as a trade mark. Where the plaintiff had no property to protect, it is perhaps not strange that the court should refuse to go into an inquiry as to the defendant's motives in doing an act which could not constitute an injury. That there ivas an admixture of what the law regards as a malicious motive for the defendant's act with other indifferent or laudable designs, could not bo expected to confer a right of property on the plaintiff which he did not before possess. ,* The case most relied upon to support the doctrine seems to be Phelps v. Nowlen, 72 N. Y. 39, and 28 Am. Rep. 93; and as it approaches the case at bar perhaps as nearly in its facts as any other citation on the same side, it should receive careful examination. It presents the case of the withdrawal of a favor which the plaintiff had previously received from defendant in the maintenance of an embankment around a spring on defendant's land, which embankment raised the water in the plaintiff's well. The defendant dug through the embankment with the knowledge that such digging would diminish the water in the plaintiff's well and with the intention to do it; and the case finds \\\"that in so far as such intent and purpose under the circumstances above found can constitute malice, his motive was malicious.\\\" But gt is difficult to see how the simple withdrawal of a favor which has conferred no vested right to its continuance, can constitute actionable malice. While the court, undoubtedly, arguendo, refer iipprov-ingly to the doctrine under consideration as laid down very broadly in the cases cited, it is noticeable that it adverts with satisfaction to the probable existence of a lawful motive, thus : ^\\\"It may have been lawfully done by the defendant to prevent a | diversion of water, the use of which he claimed, and which, if ! allowed to continue, by lapse of time might ripen into a claim of right by prescription; and hence, although the ostensible object was to diminish water which has been unlawfully appropriated by another, the intent canned well be considered as malicious, or the purpose a wrongful one. / That it proves injurious to another is more the fault of the party who reaps a benefit from that which does not belong to him, than of the one who was originally entitled to it and is only claiming his just rights.\\\" ) In further discussion of cited cases, the learned court also advert to the doctrine imported from the civil into the common law, as stated in Acton v. Blundell and Chasemore v. Richards, ubi supra, and remark thereon, \\\"The rules last stated may, perhaps, be applied in cases where it is entirely obvious that the act was done solely for the purpose of inflicting a wrong, and with no intention of vindicating a right or preventing a wrong being done to the interests of another.\\\" Certainly the support given by this case to the doctrine contended for is somewhat equivocal, and the case_ seems really to have turned upon the want of any right in the plaintiff, and the probability of lawful and not (properly speaking) malicious motives in the defendant. The same elements are obvious in other cases cited to maintain this questionable dogma.\\nThus in Auburn Plank Road Co. v. Douglass, 5 Selden, 444, the court seem to have held5 that, in a case of the dedication of his land by a man to the public for use as a way, they would not inquire into his motives, at the instance of the corporation -with a charter right to take toll, who alleged malicious injury. The motive might have been charitable and the court apparently would not repress benevolence or public spirit by such an inquiry into its motives. But upon the same facts it was held that equity would restrain the dedicator from keeping his road open in such a way as to enable those who travelled on the plank road to avoid the toll-gate. 12 Barb. 553.\\nWe see no reason why a man sliould maintain an action against an underwriter or an insurance company for refusing to contract to insure his property because he has injected into his declaration an allegation that the refusal was malicious. Neither law nor equity could compel them to insure the property of those with whom they did not choose to contract. There is a plain lack of right in the plaintiff, and the proposed inquiry into motives is immaterial. Hunt v. Simonds, 19 Missouri, 583.\\nThe general doctrine of Walker v. Cronin, 107 Mass. 555, is not what counsel claim, but rather that while a man has no right to protection against competition, he \\\" has a right to be free from malicious and wanton interference, disturbance and annoyance.\\\" The dictum in Walker v. Oronin, adverse to this same doctrine as it was shadowed forth in Greenleaf v. Francis, 18 Pick. 117, seems to be based upon what we conceive to be the erroneous assumption that the ovmer of a spring has no rights whatever in water percolating through the soil of adjacent proprietors, because his rights therein are assuredly subject to /the paramount claims of the owner of the soil, operating in good faith in his own land, \\\"for a justifiable cause.\\\"\\nWhy anybody should have supposed that the courts would deem it worth while to indulge a litigious spirit so far as to inquire into the motives of a man who has thrown down fences on 1ns own land, put there to mark the lines of a road never lawfully laid out, is not apparent. Such an immaterial inquiry was properly enough refused in Jenkins v. Fowler, 24 Penn. St. 308.\\nLitigation would be endless if the motives of those who are simply enforcing a legal claim were made the subjects of inquiry. It ivas rightly held they were not, in South Royalton Bank v. Suffolk Bank, 27 Vt. 505. And this is in harmony with the doctrine that proof of malice alone, will not support an action for malicious prosecution when there is probable cause. Nor would it be wise as matter of public policy, to throw down the bars which protect public officers from suits for acts done within the scope of their duty and authority, by recognizing the right of every one who chooses to imagine or assert that he is aggrieved by their doings, to make use of an allegation that they were malicious in motive to harass them with suits on that ground, and it was rightly forbidden in Benjamin v. Wheeler, 8 Gray, 409. And here wo come to the reasons well worthy to be considered, given for the rule in Phelps v. Nowlen: \\\"A different rule would lead to the encouragement of litigation, and prevent in many instances a complete and full enjoyment of the right of property which inheres to the owner of the soil. . . . Malice might easily be inferred sometimes from idle and loose declarations, and a wide door be opened by such evidence to deprive an aowner of what the law regards as well defined rights.\\\"\\nApparently it is the danger of just such verdicts as that which was rendered in the case at bar, which has induced these courts of high standing, to make a sweeping denial of the right to inquire into motives in such cases as we have been reviewing, where no substantial right of the parties complaining has been infringed.\\n-' We are not satisfied, however, that the rule can be maintained as broadly as it has been asserted on this account, and we think there is a still greater danger of its being perverted into a bulwark of oppression and injustice, by the denial of a remedy | where a substantial right has been invaded. It seems to us that J:the denial is broader' than the cases required. We think it j cannot be regarded as a maxim of universal application that \\\"malicious motives cannot make that a wrong which in its own ' essence is lawful.\\\"\\nChatfield v. Wilson, 28 Vermont, 49, is an authority not to be overlooked, for the instructions of Polakd, J., there considered and condemned, were not substantially different from those given in the case at bar, and the court say: \\\"It may be laid down as a position not to be controverted that an act legal in itself, violating no right, cannot be made actionable on the ground of the motive which induced it,\\\" \\u2014 apparently assuming that the wanton infliction of damage is not a violation of legal right. Washburn in his Treatise on Easements, &c. has an instructive i*eviewof decisions touching- this point, (pp. 488-492, \\u2022Id ed.) and notices (as do the court in Phelps v. Nowlen,) the fact that in the later case of Harwood v. Benton, 32 Vt. 737, the Vermont court remark upon the absence of any imputation of wanton and improper motive as an element in the defendant's liability, and seem purposely to avoid expressing any opinion as to the correctness of Chatfield v. Wilson on that point.\\nIn commenting upon the general aspect of the question, Washburn says in substance, that courts unequivocally recognize one's right to have his well or spring supplied by underground sources so far as to protect it against invasion by a stranger, and he adds : \\\"It would therefore seem to constitute a something of which meum and tuuni might be predicated, and in regard to which the maxim sic utere tuo, &c. would not be wholly foreign, especially when the party destroying it does it by using bis property, not for bis own benefit, but solely for the purpose of depriving his neighbor of what he would otherwise have rightfully enjoyed.\\\"\\nUpon the whole wo are better satisfied with the view of the law on this point which we get from Acton v. Blundell, Roath v. Driscoll, Wheatley v. Baugh, hereinbefore cited, and from Panton v. Holland, 17 Johns. 92, 98, and from the instructions approved in Greenleaf v. Francis, 18 Pick. 119, than with that given in Chatfield v. Wilson.\\nWe think this plaintiff had rights in that spring, which, while they were completely subject to the defendant's right to consult his own convenience and advantage in the digging of a well in his own land for the hotter supply of his own premises with water, should not be ignored if it were true that defendant did 'it \\\"for the mere, sole and malicious purpose\\\" of cutting off the sources of the spring and injuring the plaintiff, and not for the improvement of his own estate.\\nBut the testimony is of a character that conclusively negatives the defendant's guilt. The vital facts in the case show that he suffered from a short supply of water now' and then during all the years that his aqueduct ran through the plaintiff's land because the plaintiff's premises were lower than his, and the plaintiff persisted even in dry times in exercising the advantage which'he thereby had.. The conclusion upon the whole evidence is irresistible that the defendant, after a long trial, was justified in severing his aqueduct from that which ran to the plaintiff's premises. Upon his doing so, the plaintiff continued his aqueduct as he had a right to do to the spring, and entered it at a point lower than the defendant, and defendant was again deprived of a sufficient supply. There is no testimony which, fairly weighed, can lead to the conclusion that he dug the well for any purpose except to supply the deficiency that he experienced. The special finding on this point is altogether against the weight of evidence and must be set aside.\\nMotion sustained. Verdict set aside.\\nNew trial granted.\\nWalton, Daneorth, Peters and Libbey, JJ., concurred.\\nAppletoN, C. J., concurred in the result.'\"}"
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+"{\"id\": \"8845061\", \"name\": \"Lewis F. Stratton vs. European and North American Railway; Same vs. Hannibal Hamlin and another, trustees\", \"name_abbreviation\": \"Stratton v. European & North American Railway\", \"decision_date\": \"1883-02-21\", \"docket_number\": \"\", \"first_page\": \"422\", \"last_page\": \"428\", \"citations\": \"74 Me. 422\", \"volume\": \"74\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:41:26.658267+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\u25a0AfpletoN, C. J., Virgin and Symonds, JJ., concurred.\", \"parties\": \"Lewis F. Stratton vs. European and North American Railway. Same vs. Hannibal Hamlin and another, trustees.\", \"head_matter\": \"Lewis F. Stratton vs. European and North American Railway. Same vs. Hannibal Hamlin and another, trustees.\\nPenobscot.\\nOpinion February 21, 1883.\\nRailroads. Fires set by locomotives. Trustees. R. S., c. SI, \\u00a7 \\u00a7 32, 50, 51. Btat. 1876, c. 123.\\n.An action was brought for an alleged injury to property by fire, under B. S., c. 51, \\u00a7 32, which provides : \\u201c When a building or other property is injured by fire communicated by a locomotive engine the corporation using it is responsible for such injury.\\u201d The injury occurred while the road was operated by the trustees named in a mortgage to secure the bondholders and before the mortgage was foreclosed. Subsequently the bondholders organized a new corporation and toot possession of the road. No malfeasance or fraud was alleged on the part of any one, and there was no allegation of funds in the hands of the trustees. Held;\\n1. That i\\u00bfhe new corporation was not liable, because it was not then the \\u2022 owner of the road or using the engine.\\n, 2. That the trustees were not the agents of the bondholders, but were operating the road upon their own responsibilities as principals, subject only to the liabilities and obligations imposed by the terms of the trust.\\n3. That the trustees were not liable for the alleged injury, because B. S., c. 51, \\u00a7 61, as amended by stat. 1876, c. 123, expressly limits their liability as such, to the moneys received, and their personal liability to malfeasance or fraud.\\nOn report.\\nThese two actions were for one and the same cause, being for .an alleged injury suffered by the plaintiff to his woodland in JMattawamkeag, from fire communicated by a locomotive engine, accidentally, while passing along its track across his land. No malfeasance or fraud is alleged or suggested on the part of any one. The first named action was commenced and writ dated December 2, 1880 ; the last named on October 21, 1881.\\nA single question was raised for the decision of the full court on law, viz : whether any action can be maintained against either of the defendants in said suits, and if .so, against which ?\\nThe opinion states the material facts.\\nA. W. Paine, for the plaintiff.\\nThe plaintiff has been injured in his property. It is the exact ease provided for by R. S., c. 51, \\u00a7 32.\\n\\\"Every person for an injury done him in his person, property or immunities shall have a remedy by due course of law.\\u201d Const. Art. 1, \\u00a7 19.\\nThis provision is imperative. Preston v. Drew, 33 Maine, 558. Indeed no maxim of the law is more familiar or better preserved in practice from the. earliest time than ubi jus, ibi remedium. Ashby v. White, 2 Ld. Raymond, 95.3; Broom\\u2019s Maxims, *193, *210, *211; Stearns v. A. and St. L. P. R. Go. 46 Maine, 95.\\nThe counsel in an able argument contended that the new corporation was liable in that it was .new only in name, and would prevent circuity of action and needless litigation. Walmsby v. Gooper, 11 A. and E. 216; Oharles v. Alton, 15 C. B. 62. See also, Hamlin v. Jerrard, 72 Maine, 62; State v. E. and JV. A. R. R. Go. 67 Maine, 479; Bean v. A. and St. L. R. R. Go. 63 Maine, 293 ; 44 Maine, 362; 46 Maine, 95.\\nThe relation of principal and agent, for Hamlin and Hayford were really the agents of the bondholders who composed the new company, imposes the liability upon the company. So, too, would the relation of trustee and cestui que trust. Pierce v. Emery, 32 N. II. 484; 2 Redf. Ry. Cas. 631, 648. See Shaw v. R. R. Go. 5 Cray, 162; S. C. 16 Gray, 407.\\nThe case at bar is very much of the same nature as that of national banks formed from state banks. Bank v. Harris, 118 Mass. 147. See Bank v. Weeks, 53 Vt. 119 ; Langdon v. R. R. Go. 53 Vt. 228; Chaffin v. R. R. Go. 53 Vt. 345.\\nBut 'if tbe company are not liable and the action against them cannot be maintained, then that against the trustees must be. Ubi injuriam, ibi remedium.\\nO. P. Stetson, for the defendants,\\ncited: Jones, Bailroad Securities, c. 23, \\u00a7\\u00a7 653, 656 ; Sullivan v. P. and. K. R. R. Oo. 94 U. S. 810; Vilas v. Prairie Du Ghien Ry._ Go. 17 Wis. 497; Gilman v. Fond Du Lac R. 37 Wis. 318; Hopkins v. Railroad Go. 2 Dillon, 396; Morgan v. Thomas, 76 Ill. 120 ; /Grand Tower \\u25a0M\\u2019f\\u2019g Go. v. Ulman, 89 Ill. 244; JBallou v. Famum, 9 Allen, 47 ; Daniels v. Hart, 118 Mass. 543 ; Sprague v\\u2018. Smith, 29 Yt.. 421; Barton v. Wheel&r, 49 N. I-I. 9.\", \"word_count\": \"2553\", \"char_count\": \"14317\", \"text\": \"Danforth, J.\\nHere are two actions for the same cause, and the question is presented upon a statement of facts, whether either of them can be maintained. They are founded upon B. S., c. 51, \\u00a7 32, which provides that, \\\"When a building or other property is injured by fire communicated by a locomotive engine, the corporation using it is responsible for such injury.\\\" The facts agreed show that the European and North American Bail-way Company was incorporated in 1850 and organized in 1853 ; that March 1, 1869, it mortgaged its railway, appurtenances and rolling- stock to T. Edgar Thompson and Hannibal Hamlin as trustees, to secure bonds issued by the company to the amount of two million dollars. Subsequently Thompson died, and William P. Hayford was legally. appointed in his place. Hamlin and Hayford took possession of the road for a breach of the condition of' the mortgage, October 1, 1876, and operated it until October, 1880. On October 3,1877, they commenced proceedings for the foreclosure of the mortgage, which was legally foreclosed,October 3, 1880 ; and on October 13, 1880, the bondholders under the provisions of the statute organized a new corporation, adopting the name of the European and North American Bailway, and immediately took possession of the road and have ever since managed it as owner. This corporation is the defendant in the first named action. The fire which caused the injury for which the plaintiff claims to recover began June 16, 1880, and continued several days. Thus it appears that the injury complained of happened while the trustees were in possession, before the mortgage was foreclosed and before the defendant corporation had any existence as such.\\nIt would seem to be quite evident that a non-existing corporation cannot be the owner or in possession of a railway, or be in the use of an engine, so as to make it liable after it comes into existence for injuries previously accruing. A non-existing body can neither make a contract or be guilty of a tort. Nor is this claimed ; but it is said that the trustees who, in fact, were using the engine, wore acting for, and were the agents of the bondholders who afterwards became the corporation. This, however, does not diminish the difficulty. They could not thus be the agents of the corporation, for that implies a principal and a contract. The corporation could neither ho a principal nor make a contract until it was organized. The bondholders were individuals and if they were liable either individually or collectively, that liability would not be changed by a subsequent organization into a corporation. That could have no effect of itself upon previous individual indebtedness. It might be that not a single bondholder at the time the injury accrued would become a member of the corporation. That, by the law, is composed of those who w;ere bondholders when the right of redemption was foreclosed, or as many of them as chose to come in. The bonds were negotiable and each of them might have and many of them probably did change hands after the injury and before the foreclosure.\\nBut those who were bondholders at the time of the injury could not he held liable. They were not using the engine either by themselves, servants or agents. There was no such relationship existing between them and the trustees as would render them liable for their contracts or torts, no tests to show that the relationship of principal and agent existed. The trustees were not appointed by the bondholders, hut by the original corporation before the bonds were issued. They could not discharge them, they could not fill vacancies, except by the sanction of the court, nor could they control their action except so far as such control shall he consistent with the terms of the trust. B. S., c. 51, \\u00a7 47, as amended in 1876, c. 105 ; and \\u00a7 52 ; and yet these are tests to be applied to show the liability of a principal for the acts of a supposed agent. Ballou v. Farnum, 9 Allen, 47.\\nTrue, the trustees act for the bondholders, but they act for the original corporation as well, and are liable to account to it for their doings. K,. S., c. 51, \\u00a7 51. The legal title to the road is in them and when in their possession, is operated upon their own responsibility as trustees indeed, but controlled only by the terms of the trust as found in the mortgage and the statutes in relation thereto. Even after the foreclosure the new corporation obtains title only by a conveyance from the trustees. K>. S., c. 51,.\\u00a755. They are principals rather than agents, operating the road as an independent body, as trustees, accountable to all persons interested for the faithful discharge of their trust, but not accountable to third persons for their doings in that respect. State v. E. and N. A. R. Co. 67 Maine, 479; Daniels v. Hart, 118 Mass. 543.\\nAnother ground on which it is claimed to sustain this action against the new corporation is, that it takes the road subject to all the duties and obligations resting upon it, as well as the rights attached to it. E. S., c. 51, \\u00a7 55. But these duties and obligations are by the express terms of the statute, such as arise from the charter and relate to the future and not the past management of road, or of paying any debts or damages which may have accrued by virtue of any contract or wrong doing by its predecessors. The new corporation takes its title from the conveyance of the trustees as of the date of the foreclosure, and necessarily subject to all prior incumbrances and liens upon the road, but clear of all debts or obligations which rest upon former owners and are not legally liens upon the property. Thus in any view we can take of the case, the new corporation is not liable.\\nAre the trustees, the defendants in the second action, liable ? This question must also be answered in the negative. It is true they, through their - servants, were using the engine which is said to have caused the injury, and for any negligence of those servants would have been liable. Ballou v. Farnum, supra. But in this case no negligence, or wrong doing, is alleged. The trustees, though having the legal title to the road and using the engine not as agents but as principals, were still using it as trustees, liable to all the duties and obligations resting upon them as such, and no other, unless arising from personal contract or tort. These duties and obligations are defined by the mortgage and by the statutes applicable thereto. It is not pretended that there is any foundation for this suit by reason of anything contained in the mortgage. In It. S., c. 51, \\u00a7 50, it is provided that after taking possession of the road and all property covered by the mortgage, they shall \\\"have all the rights and powers and be subject to all the obligations of the directors and corporation of such road.\\\" If this were all, they would be liable in this suit, for such an obligation is imposed upon the corporation, as held in Daniels v. Hart, 118 Mass. 543. But in the next section we find their duties more fully defined. In this section, as amended by the statutes of 1876, c. 123, they are required to \\\" keep an accurate account of the receipts and expenditures of such road, and exhibit it, on request, to any officer of the corporation, or other person interested. They shall, from the receipts, keep the road, buildings and equipments in repair, furnish such new rolling stock as is necessary, and the balance, after paying running expenses, shall be applied to the payment of any damages arising from misfeasance in the management of the road, and after that according to the rights of the parties under the mortgage. They shall not be personally liable except for malfeasance or fraud.\\\" Thus their liability as trustees is limited by the amount of money received, and their personal liability to \\\" malfeasance or fraud.\\\" It is possible that in the proper process, under an allegation of receipts beyond what is necessary to liquidate prior claims, the trustees might be required to appropriate enough to pay this claim, either as an incident to and a part of the running expenses, or as \\\" damages arising from misfeasance in the management of the road.\\\" But in this process there is no such allegation, nor any of \\\"malfeasance or fraud.\\\" The suit therefore does not rest upon any liability of the defendants, personally or as trustees.\\nBut, says the counsel, it is a \\\"legal maxim that for every right there is a remedy,\\\" and therefore one of these actions must be maintainable. The maxim we admit in its full force, but the conclusion does not follow. In the legal sense there is no difficulty about the remedy, which is a \\\"judicial means of enforcing a right or redressing a -wrong.\\\" The trouble here is in establishing the right. The right to redress for such an injury as is here complained of, is given by the statute and by that alone. A railroad corporation in the exercise of its chartered and legal rights, without negligence, is not responsible for consequential damages except so far as they are given by statute, and when given it must necessarily include some agent who is accountable; otherwise the injury is one which must be borne whore it falls. Here the statute gives the right against a specified corporation. What the statute gives it may take away. If then, the corporation which by the statute would be liable, has withdrawn and the road, as in this case, is operated by parties whom the legislature says shall not be liable, then what would have been a right but for the withdrawal, is not so now. It is not the.remedy alone which fails, but the right also.\\nThe principle involved here is the same as that in State v. E. and N. A. R. Co. supra, in which at'the close of the opinion it is said, \\\"This corporation cannot be held, and, for the act alleged, as the statute now stands, we do not see how any person or party can be.\\\"\\nIn each case, plaintiff nonsuit.\\nAfpletoN, C. J., Virgin and Symonds, JJ., concurred.\\nWaltoN, Bareows and Peters, JJ., did not sit.\"}"
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+"{\"id\": \"8845105\", \"name\": \"City of Auburn vs. Inhabitants of Wilton\", \"name_abbreviation\": \"City of Auburn v. Inhabitants of Wilton\", \"decision_date\": \"1883-02-21\", \"docket_number\": \"\", \"first_page\": \"437\", \"last_page\": \"439\", \"citations\": \"74 Me. 437\", \"volume\": \"74\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:41:26.658267+00:00\", \"provenance\": \"CAP\", \"judges\": \"Appleton, C. J., Barrows, DaNforth, Virgin and Symoxds, JJ., concurred.\", \"parties\": \"City of Auburn vs. Inhabitants of Wilton.\", \"head_matter\": \"City of Auburn vs. Inhabitants of Wilton.\\nAndroscoggin.\\nOpinion February 21, 1883.\\nPauper. Notice.\\nA pauper notice described tlie pauper as Benton L. Blackwell. The pauper\\u2019s true name was Bennetto L. Blackwell; Held, That the town receiving such notice was under no obligation to answer; but answering, and knowing what person was intended, and not objecting on account of the error of name, they are bound thereby, their conduct constituting a waiver of the defect in the notice.\\nO.N report on agreed statement.\\nAssumpsit for pauper supplies furnished one \\\"Benton L. Blackwell\\u201d, amounting to two hundred fifty dollars and-twenty-cents. The writ was dated August 12, 1881.\\nThe opinion states the material facts.\\nW. W. Bolster, for the plaintiffs,\\ncited ; York v. Penobscot,. 2 Maine, 1; JEmhden v. Augusta, 12 Mass. 307 : Shutesbury v. Oxford, 16 Mass. 102.\\nFrye, Ootton and White, for the defendants.\\nThere is nothing in the writ to show that the pauper was any \\u25a0other than Benton L. Blackwell and a judgment founded upon such a writ would be no bar to a suit for supplies furnished Bennetto L. Blackwell. They have not asked to amend their writ and there is nothing to connect this Bennetto with the Benton declared on in the writ.\\nThe recovery, if any, in this action, must be by reason of the statute, and the plaintiffs, to be entitled to such recovery, must show that they have strictly complied with the provisions of the statute. The notice contains nothing by which to identify the .pauper except the name, and the Christian name was entirely wrong. Parker, C. J., remarking on the subject, says, \\\"The mistake of the Christian name gave them a right to refuse to answer the charge, though it can hardly be doubted that they were aware of their liability except for this mistake.\\u201d Shelbourne \\u2022v. Rochester, 1 Pick. 473.\\nIt would be no unusual thing that there should be two Blackwells who had a pauper settlement in the same town, bearing the \\u25a0Christian names of Benton and Bennetto, respectively.\\nIt will be perceived that this is not the case of a defective, indefinite or incomplete description, which can be cured or the \\u25a0defect waived by an answer, but it is a notice distinct and free from ambiguity, yet false in a material and very important particular.\\nThe cases cited by the counsel for the plaintiffs refer entirely to the former kind of notice, while the law with regard to the latter is laid down by the court in an equally well established 'line of decisions. Lanesborough v. New Ashford, 5 Pick. 190 ; Molden v. Olenburn, 63 Maine, 579.\", \"word_count\": \"676\", \"char_count\": \"3936\", \"text\": \"Peters, J.\\nA notice was given to the defendant town that Benton L. Blackwell had fallen into distress, when the truename of the pauper was \\\"Bennetto\\\" and not \\\"Benton.\\\" The defendants need not have answered the erroneous notice. They were not required to investigate, in order to find out whether Bennetto was intended by Benton or not. They were not required .to respond, even if they believed an error had been committed. A want of response might have led the notifying town to see and correct the error. Shelbourne v. Rochester, 1 Pick. 473.\\nBut if the defendant town understood that Benton meant Bennetto, and made an answer,'taking no exception to the notice on account of the error in it, then the notice should be regarded as a good one. The conduct of the overseers in such a case would be a waiver Gf the defective notice. They accept the notice, instead of rejecting it. They thereby admit that the pauper was sufficiently identified to them. Otherwise, the officers of one town could too easily mislead and deceive the officers of another town. York v. Penobscot, 2 Maine, 1.\\nAs a matter of fact, we have no doubt that the officers of Wilton knew what person was intended to be described as the pauper. The official correspondence and other admissible facts show it.\\nJudgment for plaintiffs.\\nAppleton, C. J., Barrows, DaNforth, Virgin and Symoxds, JJ., concurred.\"}"
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+"{\"id\": \"8845386\", \"name\": \"Belfast National Bank vs. Inhabitants of Stockton\", \"name_abbreviation\": \"Belfast National Bank v. Inhabitants of Stockton\", \"decision_date\": \"1881-08-19\", \"docket_number\": \"\", \"first_page\": \"522\", \"last_page\": \"530\", \"citations\": \"72 Me. 522\", \"volume\": \"72\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:53:58.712254+00:00\", \"provenance\": \"CAP\", \"judges\": \"Appleton, C. J., Walton, Barrows, Virgin and Libbey, JJ., concurred.\", \"parties\": \"Belfast National Bank vs. Inhabitants of Stockton.\", \"head_matter\": \"Belfast National Bank vs. Inhabitants of Stockton.\\nWaldo.\\nOpinion August 19, 1881.\\nTowns. Municipal debts. Unauthorized loans.\\nOne who lends money upon the representations of town officers that it is required for municipal purposes, in order to recover against the town therefor, must prove the appropriation of the money lent, to the discharge of legal municipal debts, unless such officers were authorized by a legal vote of the town to effect the loan.\\nSuch appropriation of the money to the purposes stated, must have been by some person who stood in such relation to the town as to render his act of itself effective as between the town and its creditor, to discharge the debt to,which it was applied, or there must have been a ratification or acceptance of such payment on the part of the town.\\nNeither by corporate action, nor by corporate inaction, can a town knowingly retain the benefit of payments made by its agents in discharge of legai municipal debts, with moneys hired in its name without authority, and at the same time withdraw itself from liability for moneys so hired and used.\\nOn REPORT, the law court to render such judgment as the law and evidence warrant.\\nAssumpsit upon the following town order:\\n\\\"$2000. , \\\"Stockton, July 16, 1878.\\n\\\"To Joseph Seger, town treasurer, or his successor : Pay to Belfast National Bank, two thousand dollars, it being for money hired for the year 1878.\\nC. C. Eoberts, ) Selectmen E. H. Crocker, > of No. 68. F. J. Marden, ) Stockton.\\u201d\\n[Across face] \\\"Accepted, Joseph Seger, treasurer.\\u201d\\nThe writ also contained the money counts, and was dated September 19, 1879.\\nPlea, general issue.\\nThe material facts are stated in the opinion.\\nWilliam H. Fogler, for the plaintiff,\\ncited: Augusta v. Leadbetter, 16 Maine, 45; Dennett v. Fevers, 7 Maine, 399; Orneville v. Pearson, 61 Maine, 557; Industry v. Starles, 65 Maine, 167; Bessey v. Unity, Id. 347; Sanborn v. Deerfield, 2 N. H. 251; Andover v. Grafton, 7 N. H. 298; Pike v. Middleton, 12 N. TX. 278 ; TF\\u00e9s\\u00ed v. Enroll, 58 N. H. (Reporter, June 11, 1879,; Dill. Mun. Corp. \\u00a7 \\u00a7 384-, etseq. 750; Green\\u2019s Brice\\u2019s Ultra Vires, (2 Am. ed.) 717, 729 : Sedgwick Stat. and Const. Constr. 73; Dill v. Wareham, 7 Met. 438; Ganse v. Clarksville, (U. S. C. C. E. D. Mo.) 7 Reporter, 579 ; The Mayor v. Bay, 19 Wall. 468 ; Moore v. Mayor, 73 N. Y. 238 ; Wci\\u00ed. Z?a5z& v. Matheius, 98 S. C. 6260; March v. Fulton Go. 10 Wall. 684.\\nA. P. Gould, for the defendants.\\nThere are two counts in the writ.\\nThe action cannot be sustained on the first count which declares on the order, because the selectmen had no authority to issue it. Parsons y. Monmouth, 70 Maine, 262.\\nNor can the count for money had and received be maintained. It was not shown that the money was needed, but it is said that it was needed, and convenient to pay the State tax and outstanding orders.\\nThe selectmen, viriute officii, had no power to borrow money in behalf of the town, -whatever the purpose for which it was obtained. The office is created, and certain specific duties not touching the question now at issue imposed. All the rest is left to inference or implication; see Smith v. Cheshire, 13 Gray, 318.\\nIn New Hampshire, selectmen have always been empowered by statute, \\\"to manage all the prudential affairs of the town,\\u201d still it was there held that \\\" selectmen have not authority, ex officio, without a vote of the town, to borrow money upon the credit of the town. Rich v. Errol, 51 N. IX. 350; see also, Sanborn y. Deerfield, 2 N. H. 251; Parsons v. Monmouth, supra; Hooper v. Emery, 14 Maine, 375 ; Ganse v. Clarksville, 19 Alb. L. J. 253 ; Dill. Mun. Corp. \\u00a7 \\u00a7 5, 81; 1 DanielNego. Xnstr. \\u00a7 420; 2 Do. \\u00a7 1530; Mayor v. Bay, 19 Wall. 4-68; Baiieyville v. Lowell, 20 Maine, 182.\\nTo hold the town as for money received and appropriated to its legitimate expenses, the receipt and appropriation must appear by legal corporate action. Tbe receipt and expenditure of it by the selectmen, is not sufficient, even though they may have used it in payment of debts of the town.\\nWherever towns have been held for money borrowed by their officers, the appropriation has been by authority of the town previous or subsequent, evidenced by some corporate action, not by the mere act of its officers. In Ganse v. Clarksville, supra, and cases there cited, and Dill. Mun. Corp. \\u00a7 \\u00a7 384, 750, and notes, corporate appropriation was shown, and Ganse v. Clarks-ville, clearly and expressly recognized the necessity of showing the appropriation of the money borrowed to lawful municipal purposes, by corporate action. S. p. Herzo v. San Francisco, 33 Cal. 134; Hill v. Wareham, 7 Met. 438; Mayor v. Hay, 19 Wall. 484; Argenti v. San Francisco, 16 Cal. 255; McCracken v. Same, 16 Cal. 591; Pimental v. Same, 21 Cal. 351.\\n\\\"No person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other.\\u201d Salisbury v. Philadelphia, 44 Pa. St. 303; Siebrecht v. Hew Orleans, 12 La. Ann. 496.\\nAn unauthorized contract or act on the part of the officers of a town or city, however advantageous, does not bind the corporation, or subject it to legal liability. Loker v. Brookline, 13 Pick. 343; Jones v. Lancaster, 4 Pick. 149 ; Haskell v. Knox, 3 Maine, 445; Morrell v. Hixfleld, 30 Maine, 157; Moor v. Cornville, 13 Maine, 293; Ingalls v. Auburn, 51 Maine, 352; Field v. Towle, 34 Maine, 405; French v. Aubyrn, 62 Maine, 452 ; Kelley v. Lindsey, 7 Gray, 287 ; Hailroad Hat. Bank v. Lowell, 109 Mass. 214.\\nThe payment of the State tax was unauthorized, and contrary to the statute provisions. E.. S., c. 6, \\u00a7 \\u00a7 38, 39, 60, 44, 123, 126, 127. It did not constitute a debt of the town, or a corporate liability of any kind.\", \"word_count\": \"3505\", \"char_count\": \"19466\", \"text\": \"Symonds, J.\\nIf may be regarded as settled in this State that one who lends money upon the representation of town officers that it is required for municipal purposes, in order to recover against the town therefor, must prove the appropriation of the money lent to the discharge of legal municipal debts, unless such officers were authorized by vote of the town at a legal meeting to effect the loan. \\\"There can be no such thing as a general and unlimited authority in municipal officers, to borrow money on the credit of the town by which they are elected, without regard to the purposes to which it is devoted. To show money had and received to the use of the plaintiff by a town, it will not suffice merely to show money lent by the plaintiff, upon the representations of its officers, that it was required for legitimate expenditures.\\\" \\\"But where the lender proceeds against the town upon this ground, we think he is bound, in order to recover, to show the appropriation of the money to legitimate expenses of the town.\\\" Bessey v. Unity, 65 Maine, 342; Parsons v. Monmouth, 70 Maine, 264.\\n\\\"It is strongly implied in the two cases last cited, that the money thus advanced, and shown to have been actually appropriated to the discharge of legal liabilities of the town, would be held to be legally recoverable in an action for money had and received against the town. Yfe see no good reason for excusing the town from refunding it, when if has been actually thus appropriated.It is the payment of the lawful debts of the town by its own agents with the plaintiff's money, which constitutes the cause of action.\\\" Billings v. Monmouth, ante, p. 174.\\nThe opinion of the court from which the last extract is taken, seems to determine the law of the present case, and to render unnecessary any further discussion of the legal principles involved, which had been elaborately argued in this case before that decision was announced. It is only upon the ground therein stated that the plaintiffs claim to recover. They do not argue that the town gave prior authority for procuring the loan from the bank.\\nYTe do not understand the opinion in Billings v. Monmouth, to be intended to contravene the maxim that no one can make himself the creditor of another by the unsolicited payment of his debts; or to hold the fact that the defendants, without their own act or will, have had the benefit of the plaintiffs' money to be the sole and sufficient ground of liability. Agawam Motional Bank v. South Hadley, 128 Mass. 503.\\nIn order so to charge the town with liability, the use of the moneys loaned, their appropriation to the purpose stated, must bare been by some person who stood in such relation to the town as to render Ms act of itself effective, as between the town and its creditor, to discharge the debt to which they were applied, or there must have been a ratification or acceptance of such payment on the part of the town.\\nWithout corporate act or assent, or the agency of a person exercising some authority, there can be no such thing in a legal sense as the payment of the debt of a town. If a person having no authority assumes to pay a municipal debt, the payment is a nullity at the will of the town. Its relations to its creditor cannot be affected by a stranger against its will; and the act of the creditor alone, while it may destroy the evidence of debt, and deprive him of remedy, cannot (at least theoretically, if it may practically,) extinguish the leg\\u00e1l obligation of the contract against the will of the other party. Nor can any arrangement between the creditor and a stranger, to this effect, be forced upon the acceptance of the debtor.\\nThe language of the court, in the opinion cited, refers to a case where there was in fact and in law a payment of the debt of a town by the use of moneys hired without authority; where the debt was discharged not only in form but in effect. \\\"The vital question of fact,\\\" it is stated, \\\"is whether the plaintiff's money has actually been applied by the town officers to the extinguishment of legal claims against the town.\\\" If one without authority assumes to pay a municipal debt the town may object or may assent. It may, upon discovery of the fact, defeat the attempted discharge of its debts in that way. But neither by corporate action, nor by corporate inaction, can it knowingly retain the benefit of payments so made by its agents, with moneys hired in its name without authority, and thereby give effect, so far as to release itself from the old debt, to the acts of its officers assuming more than their legal powers, and at the same time withdraw itself from liability for moneys so hired and used. This would be for the town tacitly to hold all that was favorable to itself in a single transaction, and openly to reject all that was not beneficial, although it was only a precise equivalent for the advantage gained. The act of the agent in procuring the loan and paying the debt is a thing to be accepted or rejected as a whole. The corporation owes either the old debt or the new, and failure to act, to attempt even the expression of dissent, at legal meetings held after official reports have advised them that such a loan has been made, that their treasurer, or one of the selectmen, has employed it in paying a municipal debt, outstanding and overdue, and that the creditor has accepted the payment and given a formal release of Ms claim, may be clear evidence of the silence which gives consent. Formal corporate action is not always necessary to show the assent of the body corporate. By non-action, after knowledge of the facts, there may bo recognition by the principal of the agent's acts as his own.\\nWe' are aware that it is the object of the law, on urgent grounds of public policy, \\\"to protect cities and towns from the creation of municipal debts, without sufficient necessity and consideration, and without proper provision for payment, and to prevent improvident and reckless expenditures of public money, as a natural consequence of debts so contracted j\\\" and we do not now consider cases in which an agent without authority, in the name, and for the alleged benefit, of the town, incurs debts where none existed before, but confine our attention to the case presented, of an exchange of liabilities, the creation of a new debt on similar terms to pay another which is valid and duo. In such ease, if the first debt is paid, it is precisely as if the town itself had the amount of it in its treasury, derived from the plaintiff's loan.\\nIn this case, with the exception of the $1162.90 paid on account of the State tax, which is an item to be considered by itself, we are not prepared to find as matter of fact upon the evidence reported, that the town received the benefit of the loan from the bank. The claim is, that the balance was turned over by Mr. Roberts, the selectman who effected the loan, to the treasurer in money and town orders which Mr. Roberts had paid. That the treasurer received any part of it in money, the testimony certainly fails to prove. His own statements in support of the plaintiffs' claim on this point are full of contradictions, at one time saying that he received in cash the amount of the loan, except the interest on it and the State tax, then that either cash or its equivalent, that is to say, town orders, to that amount, were received by him, and finally admitting at the close of the cross-examination, that the whole amount of the loan from the bank was paid away by Mr. Roberts. The statements of Mr. Roberts, in regard to cash payments to the treasurer out of this loan are quite as unsatisfactory. When asked if he paid the treasurer as much as five dollars of the sums received from the bank, he replied that he was not able to state anything about it, and this reply seems to contain the substance of his testimony on this point.\\nIt is not proved that the money loaned, or any part of it, passed into the hands of the town treasurer.\\nIs this balance shown to have been applied- by Mr. Roberts to the payment of town debts ?\\nThe treasurer knows nothing of the use of this specific fund. It was hired in July, 1878. The books of the treasurer show no credit of it till March, 1879. He simply knows that Mr. Roberts was accustomed, during the year, to pay orders and turn them over to him on account of the town as cash. He may infer that Mr. Roberts used a part of this loan for that purpose, but he does not know it. He was accustomed to intrust Mr. Roberts with funds of the town to be used in meeting its liabilities, and the case strongly indicates that money from other sources was wrongfully procured by Mr. Roberts in the name of the town. The accounts of the treasurer throw little light on the matter. They present no correct account of the financial affairs of the town, as conducted by the municipal officers. Mr. Roberts' testimony scarcely denies that town orders, to the amount of twenty-six hundred dollars, were issued for money hired prior to the date of this loan, which did not appear in the settlement between the selectmen and the treasurer at the close of the year. Why were they knowingly excluded from the treasurer's accounts and from the settlements with him, if not to serve fraudulent purposes on the part of the principal agent for the town in these transactions ? Nor is this the only sign, which the case gives, of fraudulent mismanagement of the affairs of the town.\\nIn such a state of facts, it is not enough, to charge the town with liability, as to the balance of the loan above the \\u00a71162.90, for Mr. Roberts to testify that it was applied to the payment of quite an accumulation of town orders, while distinctly declaring his inability to designate what order, or what debt, of the town was paid by it. It was part of the plaintiff's case, if they would recover under the rule of law on which they rely, to show that their loan ivas used by the town agents to discharge existing legal municipal obligations. The first step in proving that is to show what debts were paid by it. The case leaves more than a suspicion that municipal funds were misapplied by the agent who effected this loan ; and for all that we see in the evidence, quite as likely this amount as any other. We do not find it proved that the town has ever received the benefit of this unauthorized, loan, except to the extent that it went to pay the State tax.\\nIt is an admission in the ease that on August 1, 1878, Mr. Roberts paid to the State Treasurer the sum of \\u00a71162.90 on account of \\\"the State tax levied by the State upon the said inhabitants of the town of Stockton for the year 1877, then due and unpaid.\\\" Mr. Roberts says, \\\"That sum was paid from the Identical money which I received from the bank.\\\" The act of 1877, c. 390, under which the State tax was levied, provided that each town should be assessed, and should pay, the amount sot against it in the lists ; and the warrant from the Treasurer of State was directed to require the selectmen or assessors to assess the tax, and \\\" to pay, or to issue their several warrants requiring the collectors to pay, the said treasurer on or before January 1, 1878,\\\" the sum against such town in that act contained.\\nHere seems to be a provision authorizing a direct payment o\\u00ed the State tax by the municipal officers to the State Treasurer. It is true the State holds in reserve the power to proceed directly against delinquent assessors or collectors, to compel the performance of official duty on their part, but no default by them can defeat the claim of the State upon the town. If the assessors fail in their duty, they may bo personally liable, and the tax may be levied without their aid. If the collector is deficient, the express provision is that after certain proceedings against him the town shall pay the amount for which he is in default; to be levied finally, like other debts, on the real and personal estate of any inhabitant. But we think it is not the true view of the law to hold that there is no duty resting upon the town to pay the State tax, or to cause it to be paid, until after the State has itself exhausted every process by which it has sought to guard the integrity and efficiency of those who have its assessment and collection in charge. At least under the act of 1877, notwithstanding the precautions taken for the fidelity of officers, the tax remains a liability of the town in such sense that payment of it by the municipal officers is not necessarily in all cases an act beyond their official authority.\\nThe case does not show that the town in any way suffered detriment by the direct payment of the tax which had been assessed upon the polls and estates of its inhabitants and was then overdue and unpaid. There is no proof of default on the part of the collector, for which he was liable and from which liability he or his property was released to the prejudice of the town. The evidence tends to show the contrary \\u2014 that the town received into its treasury the amount of the collected tax. The defendants never disavowed the act of their agent in paying .the tax with borrowed money. We think the course of proceeding has been in effect an adoption of that act, and the tax is paid. To this extent, the town silently holds the plaintiffs' moneys so applied, and reaps the full benefit of them.\\nThe payment was not the act of a stranger who sought to thrust himself into the position of creditor of the town without their consent, but of the principal municipal officer, who assumed to act for them in that respect and whose power to make a valid payment of the tax, the town has never seen fit to question.\\nJudgment for plaintiffs, for \\u20211162.90, and interest from August 1,1873.\\nAppleton, C. J., Walton, Barrows, Virgin and Libbey, JJ., concurred.\"}"
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+"{\"id\": \"8846221\", \"name\": \"Charles Heath versus Joseph Williams\", \"name_abbreviation\": \"Heath v. Williams\", \"decision_date\": \"1845-06\", \"docket_number\": \"\", \"first_page\": \"209\", \"last_page\": \"219\", \"citations\": \"25 Me. 209\", \"volume\": \"25\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T00:14:41.195913+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles Heath versus Joseph Williams.\", \"head_matter\": \"Charles Heath versus Joseph Williams.\\nIn trespass quare clausum, where the plaintiff is in possession of the land, and brings his action for an injury thereto, and on the trial each party sets up title to the land, the burthen of proof is on the defendant to make out, that the title is in himself. If each party shows an independent title thereto precisely equal in strength to that of the other, the defendant fails.\\nPriority of appropriation of the water of a stream confers no exclusive right to the use of it. A riparian proprietor who owns both banks of a stream, has a right to have the water flow in its natural current, without any obstruction injurious to him, over the whole extent of his land, unless his right has been impaired by grant, license, or an adverse possession for more than twenty years.\\nThe common law affords the owner of land a protection against the flow of water back upon his own land to the injury of his mill by the acts of another, without showing any priority of appropriation, or statute provision to aid him. And failing to obtain relief from the continuance of such an injury without it, he may lawfully enter upon the land of the person causing the injury, and remove, so far as necessary, the obstruction which occasioned it; unless his title to the water power which he claimed should prove to be defective, or his full right of use should prove to be impaired.\\nA mortgagee, while he permits the mortgagor to retain the possession, can have no just cause to interfere, or to complain, if the mortgagor be found making improvements upon the estate ; and his rights cannot be impaired by his neglect to do so.\\nWhile one contin\\u00faes to occupy land as the tenant of another, he will not be permitted to deny the title of his landlord ; but after that relation ceases to exist, his rights to the land are not impaired thereby.\\nThe action was trespass quare clausum, and was referred by a rule from this Court to a referee, who made a general report, that the plaintiff had not sustained his action, and that the defendant should recover costs of Court and costs of reference. The referee then proceeded as follows. No copy of the plan, or of either of the deeds referred to in the report, was found among the papers which came into the hands of the reporter.\\nThe plaintiff\\u2019s counsel having specially requested that the legal points arising in this suit may be presented for the determination of the Court, the following exhibit of the case is hereby presented.\\nThis is trespass quare clausum.\\nThe plaintiff owns a lot of land, and claims that it is the lot colored red on the plan. But its southern boundary is disputed by defendant.\\nThe strip in controversy is painted yellow on the plan. The defendant is in possession of the south lot, claiming it as his own. The dividing line was brought into question. There was much testimony. The plaintiff proved his title by evidence which seemed incontrovertible. The defendant proved his, by evidence equally satisfactory and convincing. The proofs were so balanced, that the referee had no other means of deciding which of the parties owned the \\u201c disputed territory,\\u201d than by resorting to the inquiry, \\u201c on whom rested the onus probandiV\\u2019 This he supposed to be on the defendant, and the result was, that he decided defendant had not proved his title. If, in law, the onus is on the plaintiff, then the plaintiff has failed to prove his right to the strip.\\nThe means which the Court will have for deciding this point will appear hereafter.\\nUpon the foregoing grounds, the referee proceeded to examine the other part of the case, acting on the assumption that the plaintiff owned the debatable strip, and it will hereafter be spoken of as being a part of plaintiff\\u2019s lot.\\nPlaintiff owns a tannery mill, which with its flume and the western end of the dam, are on his own land. Eastern end of the dam is on defendant\\u2019s lot. This mill and dam were built between 1829 and 1833.\\nA removal by defendant of the part of the dam which stands on his land would destroy the use of plaintiff\\u2019s mill.\\nDefendant has a clothing mill on the stream above plaintiff\\u2019s dam. It is fed by a dam, which with its predecessor on the same site has stood more than 20 years, prior to the alleged trespass. There has been no abandonment of this privilege.\\nIn the summer of 1842, the parties were operating their respective mills. Plaintiff permitted the water, held by his dam, to rise so high as seriously to impede the operation of defendant\\u2019s mill. Defendant frequently requested plaintiff to let the water off, so that the back-flow should not injure him. This was not done. Defendant notified plaintiff that ho should let the water off, by hoisting plaintiff\\u2019s gate or in some other way, unless plaintiff himself should do it. But plaintiff forbade him to do so. Defendant for that purpose undertook to hoist plaintiff\\u2019s gate, but was not able to. He thereupon removed two or three planks from plaintiff\\u2019s flume, and let the water oil', doing no greater damage than was necessary to remove the back-flow from his mill. That act is the trespass sued for in this action.\\nTo justify that act, defendant relied on his title, as above mentioned, to the land on which the flume stands; and the flume stands on the disputed strip. As above stated, the referee considering the onus of proof to be on defendant, decided that point against him. If the onus was on plaintiff that point is to be decided against Mm.\\nDefendant next contended that, as his mill and dam were the oldest he had a right of priority to the water, and might lawfully break the flume as he did.\\nReferee was of this opinion, unless the legal principle was controlled or rendered inapplicable by other considerations belonging to the case.\\nPlaintiff thereupon contended, that as he owned the land on which defendant\\u2019s dam was built, he might remove that dam, and in that way destroy the use of defendant\\u2019s mill; and that if he might destroy that use in that mode, he might also do it by back-flowing from the lower dam; inasmuch as it must be quite immaterial to defendant, by which of two modes the damage to his mill should happen.\\nIf this should be conceded as a true principle, the referee thought it might be difficult to sustain this action: because defendant by removing that part of the lower dam, which is on defendant\\u2019s land, might in like manner defeat plaintiff\\u2019s mill. And as to the mode of producing that effect, it could make no difference to plaintiff whether it was done by defendant\\u2019s removing the portion of the dam which is on defendant\\u2019s land, or by breaking the flume, as was in fact done.\\nThere may possibly be some question how much, if any, of the upper dam is on the plaintiff\\u2019s land. His deed makes his west line to run ffteen rods, to the stream, thence by the north line of the south (defendant\\u2019s) lot, to the starting point. By the plan it appears that said west line, whether it stop at the margin of the stream, or at its centre, or be continued to any other point, in the same direction, will not strike said north line of the south lot, by several rods.\\nVery probably, however, the construction of the deed may be such as to make plaintiff\\u2019s west line pass down by the centre of the stream, so as to strike said north line in .that direction.\\nSuch a construction would place the east half of the upper dam on plaintiff\\u2019s land, and, (unless for its antiquity,) he might be justified in removing it.\\nOn this hypothesis, plaintiff might by removing his part of the upper dam impede the use of defendant\\u2019s mill. Could he therefore, lawfully, impede it by back-flowing from the lower dam ?\\nIn this connection, the antiquity of the upper dam is to be taken into the account.\\nPlaintiff denies defendant\\u2019s title to the south lot and claims that he is the owner.\\nIt was mortgaged in 1829. The mortgagor conveyed his right to Spaulding in 1831, by a deed of quit-claim, duly recorded. The mortgagor had the possession, and Spaulding continued in possession for a few years, by the mortgagor under him.\\nIn 1831, Spaulding purchased (adjoining) north lot of the mortgagee. Thus the possession of both lots was united in Spaulding. The dam was built while that possession continued, the mortgagee being present and making no objection. Between 1835 and 1837, the mortgagee hired and used plaintiff\\u2019s mill, under Spaulding\\u2019s assignee.\\nIn 1835, the mortgagor, notwithstanding his conveyance in 1831 to Spaulding, relinquished in writing on the back of the mortgage, to the mortgagee his right of redeeming, and, for that consideration solely, the mortgagee gave up to him the notes then due, no part of which has ever been paid. There were four notes, the last of which became payable in 1833. At the same time (1835) the mortgagor, who till then had occupied both lots, under Spaulding, left the town, and the mortgagee went into possession and occupation of the mortgaged lot, and he and those claiming under him have continued that possession and occupation to the present time.\\nDefendant has the mortgagee\\u2019s title; plaintiff has all the rights which belonged to Spaulding in both lots.\\nThe mortgagee never gave any discharge of the mortgage, other than by giving up the notes to the mortgagor in manner above stated. No one claiming under Spaulding has brought any bill in equity or other process, to obtain possession of the upper lot. Defendant contends, that the giving up of the notes under those circumstances did not defeat the mortgage, and that, as the mortgagee went into actual possession of the mortgaged lot in 1835, (which was after the pay day of the notes,) the mortgage was foreclosed in 1838; or at least that he, the defendant, being the assignee of the mortgagee, and being in actual possession, is to be deemed to hold that possession rightfully, as against the plaintiff who is the assignee of the mortgagor.\\nOn the other hand, the plaintiff insists that, as he is the assignee of the mortgagor, who after his assignment took up the notes as aforesaid and destroyed them, the' mortgage became inoperative and void, so that plaintiff\\u2019s title became perfect.\\nThe referee held, that the mortgage was not defeated by the acts of 1835, the notes never having been paid; and that defendant\\u2019s possession of the upper lot was rightful. Plaintiff contended, from the abovenamed unity of possession, and, the mortgagee\\u2019s acquiescence in building the dam partly on the mortgaged lot, and his subsequent hiring of the plaintiff\\u2019s mill, which is fed by that dam, it results in law, that the plaintiff\\u2019s mill is entitled to the prior right of the water.\\nThe referee held otherwise, on the ground that the dam was built on the mortgaged lot by those who were in possession under the mortgagor as they might lawfully do. But that when the mortgagee afterward took posession, he took it freed from all arrangements made by the mortgagor, &c. And that the hiring of the plaintiff\\u2019s mill, for a year or two by the mortgagee could not operate such a grant or license to continue the dam, as would take away from defendant, his priority to the right of water.\\nThe following documents are to be referred to. The Plan. Deed, Potter & al. to Small, 1829. Mortgage back of same date. Small to Spaulding, 1831. Potter to Spaulding. 1831. Spaulding to Otis, 1835. Potter to Small, 2d, 1841. Small, 2d to defendant, 1842. Otis to plaintiff, 1842.\\nThe referee\\u2019s intention was, upon the foregoing facts and the documentary evidence, to decide the action on legal principles.\\nIf the Court shall be of opinion the above written award is in accordance with those principles, the said award is to stand.\\nIf the Court, however, shall think the plaintiff entitled to recover, the award is hereby made that the plaintiff recover the sum of $25, damage, and costs of Court to be taxed by the Court and costs of reference.\\nFull and able arguments in writing were furnished to the Court by\\nOtis, for the plaintiff \\u2014 and by\\nC?. W. Batchelder, for the defendant.\", \"word_count\": \"3727\", \"char_count\": \"21062\", \"text\": \"The opinion of the Court was drawn up by\\nSheplet J.\\nThis is an action of trespass quare clausum, brought to recover damages for an injury done to the flume leading water to the plaintiff's tannery. The defendant admitted, that he removed some planks from it to let the water run off, and contended, that he had a legal right to do so; first, because the flume was upon his land; and secondly, because the plaintiff's mill dam caused the water to flow back upon the wheel of his clothing mill, situated on a branch of the same stream.\\nThe action was referred to the Judge of the Middle District Court, who made a report against the plaintiff's right to maintain the action. He also presented with his report certain deeds of conveyance, facts, and questions of law, for the consideration of this Court, and an alternative report in favor of the plaintiff, if the Court should be of opinion, that he was entitled to recover.\\nThe report states, that the plaintiff's dam caused the water to flow back so much as to seriously impede the operation of the defendant's mill; and that he, after requesting the plaintiff to let the water flow off, so that it would not injure him, removed the planks from the flume, doing no greater damage, than was necessary to remove the water, which was injurious to his mill. The plaintiff owned a lot of land, and contended, that it extended southerly so far as to embrace the land, on which his flume had been built. The defendant claimed to be the owner of a lot of land adjoining it on the southerly side, and contended that his land extended northerly so far as to include the land under the flume. The referee, without a detail of the testimony introduced before him to establish their respective claims, states, that \\\" the proofs were so balanced, that the referee had no other means of deciding, which of the parties owned the disputed territory, limn by resorting to the inquiry, on whom rested the onus probandi. That he supposed it to be on the defendant, and the result was, that he decided, that the defendant had not proved his title.\\\" The counsel for the defendant insists, that this conclusion was incorrect. The plaintiff appears to have been in possession of the land, on which the flume was erected, for several years. That possession was sufficient to enable him to maintain his action against any one, who could not show a superior title, or some legal right to enter upon it. The defendant, failing to show a superior title, could not justify his acts on the ground, that the flume was upon his land.\\nThe report further states, that \\\" defendant has a clothing mill on the stream above plaintiff's dam. It is fed by a dam, which, with its predecessor on the same site, has stood for more than twenty years prior to the alleged trespass.\\\" That the plaintiff's dam and mill were built between the years 1829 and 1833. That the defendant next contended \\\" that as his mill and dam were the oldest, he had a right of priority to the water, and might lawfully break the flume, as he did. Referee was of this opinion, unless the legal principle was controlled or rendered inapplicable by other considerations belonging to the case.\\\"\\nThe cases cited in the arguments of counsel decide, that priority of appropriation of the water of a stream confers no exclusive right to the use of it. A riparian proprietor, who owns both banks of a stream, has a right to have the water flow in its natural current without any obstruction injurious to him over the whole extent of his land, unless his rights have been impaired by grant, license, or an adverse appropriation for more than twenty years. The defendant appears to be the undisputed owner of the land on both banks of the stream below his mill nearly or quite to the plaintiff's dam, unless that title shall prove to be defective in the manner hereafter stated. While it is contended, that the plaintiff's C! dam and mill were erected with such knowledge and concurrence of the defendant's grantors as amounted to a license,\\\" it is not contended, that he has acquired any right by grant or by an appropriation for more than twenty years to cause the water to be flowed back upon the defendant's mill. It is not necessary to decide, whether the defendant had acquired a right to have the water of the stream so used as to prevent its being thereby flowed back upon his mill by an appropriation of it without such an occurrence for more than twenty years, as decided in the case of Saunders v. Newman, 1 B. &. Ald. 258. Although he could not derive any right from the statute, c. 126, \\u00a7 2, or from priority of appropriation, yet the common law would afford him sufficient protection against the flow of water back upon his own land to the injury of his mill by the acts of another. Failing to obtain relief from the continuance of such an injury without it, he might lawfully enter upon the land of the plaintiff, and remove, so far as necessary, the obstruction, which occasioned it; unless his title to the waterpower, which he claimed, should prove to be defectivo, or his full right of use should prove to be impaired.\\nThe plaintiff attempts to set up a title in himself, or in another, to the lot of land occupied by the defendant. He then claims to be the owner of the darn, from which the defendant's mill derives its supply of water; and therefore infers, that he had a right to deprive him of the use of it.\\nThe facts in relation to the title aud the alleged license appear to be these. Amos Potter and Robert Ashford, on July 6, 1829, conveyed by a deed, recorded on March 3, 3 831, the southerly lot now occupied by the defendant, to William Small, who on the same day reconveyed it to them in mortgage to secure the purchase money; and on February 22, 1831, conveyed all his interest in it to Calvin Spaulding. Amos Potter conveyed on May 16, 1831, the northerly lot now owned by the plaintiff, to Calvin Spaulding, who entered into possession of both lots and occupied them by his tenants until the year 1835, when Small, who had continued to occupy under Spaulding, executed a release, written on the back of the mortgage to Potter and Ashford, of his right to redeem the southerly lot; and Potter, without any other payment of them, delivered to him the notes given for the purchase money and secured by the mortgage, and entered into possession of the lot. The plaintiff's dam and mill were erected, while Spaulding was thus in possession of both lots, Potter \\\" being present and making no objection.\\\" After the mill was built, and prior to the year 1837, Potter hired it and occupied it under Spaulding, who had conveyed both lots to John Otis, on December 26, 1835, by deed recorded on October 11, 1842. John Otis, on June 6, 1842, conveyed the northerly, but not the southerly lot, to the plaintiff, whose assertion of title to the southerly lot appears to have been made without any foundation. Until Otis, or some person deriving title from him, shall claim that lot on the ground, that the proceedings between Potter and Small amounted to a payment of the mortgage debt, the defendant must be considered as legally entitled to hold it as assignee of the mortgagee. But as he failed before the referee to establish his title to the northerly bound and line, to which he claimed, he must be considered as failing to establish that line in such a manner as to include within the bounds of his lot the dam, from which his mill derives its supply of water. For the present purpose, that dam may be considered as within the bounds of the plaintiff's lot. The conveyance from Potter and Ashford to Small, from whom the defendant derives his title, contained this clause; \\\" and also the privilege of flowing land and erecting dams on any of the adjoining lands, as much as is necessary for the benefit of machines and mills on the premises.\\\" This was quite sufficient to entitle Small and those claiming the same title and rights from him, as the defendant does, to maintain that dam to flow the water for the use of the mill. Spaulding, by his subsequent conveyance from Potter, must take his title subject to that right. The plaintiff, deriving his title from Spaulding, can have no superior right, and cannot resist the right of the defendant to obtain a supply of water for the use of his mill.\\nWith respect to the asserted license, it is only necessary to remark, that a mortgagee, while he permits the mortgagor to retain the possession, can have no just cause to interfere or to complain, if the mortgagor be found making improvements upon the estate. Iiis rights cannot be impaired by his neglect to do so. While Potter continued to occupy the plaintiff's mill as the tenant of Spaulding, he could not be permitted to deny the title of Spaulding. After that relation ceased to exist, his rights would not \\u2022 thereby be impaired. The rights of Potter to the water connected with the southerly lot, do not appear to have been impaired by any of these transactions, and those rights have been conveyed to the defendant. The report of the referee in his favor is accepted.\"}"
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+"{\"id\": \"8846345\", \"name\": \"Oliver H. Hinckley versus John W. Arey\", \"name_abbreviation\": \"Hinckley v. Arey\", \"decision_date\": \"1847-06\", \"docket_number\": \"\", \"first_page\": \"362\", \"last_page\": \"365\", \"citations\": \"27 Me. 362\", \"volume\": \"27\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:50:01.919821+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Oliver H. Hinckley versus John W. Arey.\", \"head_matter\": \"Oliver H. Hinckley versus John W. Arey.\\n\\u2022As a general principle the same individual cannot be the agent of both parties ; but persons having undertaken certain duties of a peculiar character, such as brokers, are treated as the agents of both parties.\\n'In making a contract for the composition of a debt, the same man cannot be the agent of both parties; but when the composition is agreed upon with the creditor by the agent of the debtor, he can be the agent of the creditor for another and distinct purpose.\\n\\u2018The payment of a part only of a sum due, at the time and place of payment, on a promise to cancel the whole claim, discharges the indebtedness to the \\u2022 amount of the sum paid and nothing more, there being no consideration for the promise to discharge. The least consideration, however, in such case is sufficient to make the agreement binding.\\nAssumpsit on two promissory notes.\\nThe case was submitted on a statement of facts, as it was \\u25a0termed, setting out the testimony of witnesses, and the introduction of depositions, at a trial in the district court; and \\u25a0concluding thus: \\u2014\\n\\u201c The foregoing evidence being out, the case by consent was taken from the jury and submitted to the Court on the \\u25a0question, whether the facts proved constituted a good defence in law, each party reserving the right to appeal. The Court to render judgment by nonsuit or default.\\u201d\\nThe material facts proved by the evidence are given in the \\u2022opinion of the Court.\\nRowe, for the defendant,\\nsaid that the facts appearing in the statement show, that here was an agreement to discharge the debt, made on a good consideration and executed. This is a good accord and satisfaction. Mr. Hubbard was first the agent of the debtor in effecting the settlement, and was then the agent of the creditor in holding the money for his use. Besides, when the plaintiff informed Mr. Hubbard, that he would take the money, which was offered to him, the money became his, and not the money of the defendant. The contract was completed.\\nThe consideration for the promise was sufficient. There was an advantage to the creditor, in obtaining a part of his debt, when otherwise he would have received nothing, and a disadvantage to the debtor, in forbearing to obtain a discharge in bankruptcy in consequence of the agreement to discharge the debt. He cited 16 Johns. R. 86; 22 Wend. 325; 13 Mass. R. 424; 2 Mete. 283; 2 B. & A. 323; 3 Mete. 491; 12 Shepl. 450.\\nJ. Appleton, for the plaintiff,\\ncontended that here was neither payment nor accord and satisfaction.\\nTo constitute an accord and satisfaction, the agreement must be executed. 19 Wend. 516 ; 1 Smith\\u2019s L. Cases, 146 ; 2 T. R. 24 ; 17 Johns. 124 ; 14 Pick. 317.\\nMr. Hubbard could not be the agent of both parties. Nor does the evidence warrant the assumption, that he attempted to act as such, or was so considered by either party. 3 Mete. 139.\", \"word_count\": \"1388\", \"char_count\": \"7751\", \"text\": \"The opinion of the Court was drawn up by\\nTenney J.\\nThe action is upon two promissory notes of hand; and the defence is accord and satisfaction.\\nThe defendant consulted N. Hubbard, Esq. as counsel relative to filing his petition to become a bankrupt. He was advised first to make an effort to compound with his creditors. He acted on that advice and empowered Mr. Hubbard to make an offer to the plaintiff in furtherance of that object; this was done, and an answer was returned by the plaintiff, in which he writes, \\\"you say that Capt. Arey is going to pay his debts in that easy way without he can get his demands in for nothing, and if Mr. Arey will give me $30, you can settle with me.\\\" After several offers on the part of the plaintiff and Mr. Hubbard, by the authority of the defendant, the latter caused to be made the offer to pay $25 in full discharge of all the plaintiff's claims against him, including the notes in suit. In reply to this offer, the plaintiff sent a message to Mr. Hubbard in these words, \\\"you may settle wdth Arey for $25.\\\" Hubbard thereupon informed the defendant, that his offer was accepted, and having obtained the money of one, whom the defendant had engaged to advance it, he informed the defendant, that it was all settled, and the defendant took no further steps to become a bankrupt. In two or three days after receiving the money, Mr. Hubbard informed the plaintiff \\\"that he had settled with the defendant for him for the $25, and had it to give to him.\\\" It being in the evening the plaintiff said he did not wish to go for the demands that night, but would obtain them in two or three days, bring them to him, and take the money.\\nAs a general principle the same individual cannot be the agent of both parties. But persons having undertaken certain duties of a peculiar character, are treated as the agents of both parties; such are brokers. A broker is strictly therefore a middle man, or intermediate negotiator between the parties. Story's Agency, \\u00a7 28. \\\" But primarily he is deemed merely the agent of the party, by whom he- is employed; and he becomes the agent of the other party, only when the bargain or contract is definitively settled as to its terms between the principals.\\\" Ibid. \\u00a7 31. In making a contract for the composition of a debt, the same man cannot be the agent of both parties; but when the composition is agreed upon, by the agent of the debtor with the creditor, he can be the agent of the other party for another and a distinct purpose. The acceptance of the offer made to the creditor by the agent of the debtor, may, with no impropriety, be accompanied with a direction to the person, who had acted as the agent in making the contract, to receive for the creditor the sum agreed upon.\\nMr. Hubbard was the defendant's agent for the specific purpose of making offers for him and receiving those of the other party; the last offer made for the defendant was satisfactory to the plaintiff and he accepted it, by saying, \\\" you may settle with Arey for $25,\\\" and the fair import of the language authorized Mr. Hubbard to receive the money for him. This interpretation of the plaintiff's meaning is confirmed by the language of Mr Ilubbard to him, \\\" that he had settled with the defendant for him, for the $25 and had it to give to him the meaning of this could not be misunderstood by the plaintiff, that for the latter he had received the sum agreed upon from the former. It could not have been legitimately considered as having reference to the agreement of settlement, for that had been before concluded. The plaintiff made no objection to what was done, but said he would take the money when he should receive the demands from the person who had the possession of them.\\nIt is well settled, that the payment of a part only of a sum due, at the time and place of payment on a promise to cancel the whole claim, discharges the indebtedness to the amount of the sum paid and nothing more, there being no valid consideration for the promise to discharge. But the least consideration in such a case has been held sufficient to make the agreement binding.\\nIn this case, the plaintiff was informed, that the defendant contemplated taking the benefit of the bankrupt act, which was then in force. If this intention had been carried out, the plaintiff' would lose the whole debt, beyond what he might receive as a dividend ; and the latter, judging from his letter, he did not consider as very valuable. To save himself from a greater loss under the law, he agreed upon the terms of composition offered. The defendant, upon the agreement and payment to Hubbard, took no further- steps to obtain relief under the bankrupt law.\\nThe payment of the money to Mr. Hubbard was a payment to the plaintiff, and the agreement under which it was paid was upon a good and valid consideration.\\nPlaintiff nonsuit, and judgment for defendant.\"}"
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+"{\"id\": \"8847030\", \"name\": \"Milo A. Taylor versus James E. Robinson & ux.\", \"name_abbreviation\": \"Taylor v. Robinson\", \"decision_date\": \"1849-04\", \"docket_number\": \"\", \"first_page\": \"323\", \"last_page\": \"328\", \"citations\": \"29 Me. 323\", \"volume\": \"29\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:28:30.457827+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Milo A. Taylor versus James E. Robinson & ux.\", \"head_matter\": \"Milo A. Taylor versus James E. Robinson & ux.\\nIn actions of slander, the defendant cannot give the truth in evidence, under the general issue, either as a defence to the suit or in mitigation of damages. The defendant cannot make a defence under a brief statement, which was inadmissible under a special plea.\\nWhere the defendant uttered actionable words without a lawful object, and there are no pleadings under which their truth may be given in evidence, he cannot show' the misconduct of the plaintiff to rebut the presumption of malice ; nor, unless the misconduct gave rise to the charge and lead the defendant to believe him guilty, could it be given in evidence in mitigation of damages.\\nIt seems, in all civil cases, excepting in actions of crim. con., proof of marriage may be established by evidence of collateral facts and circumstances, from which its existence may he inferred.\\nIf in an action of slander, the presiding Judge instruct the jury upon a supposed case wherein actionable words might he spoken with propriety and, to prevent misapprehension, should remark that the case supposed was not intended to he represented as the one before them, it is not erroneous.\\nAction foe slandee. It was tried before Wells, J. and a verdict was rendered for the plaintiff. Exceptions were taken to the rulings at the trial.\\nW. P. Fessenden, for defendants.\\n1. The testimony offered was admissible both as to malice and as to damages. Starkie on Slander, chap. 27, also 25, p. 240; harmed v. Buffington, 3 Maine, 546; Alderman v. French, 1 Pick. 1 ; Brickett v. Davis, 21 Pick. 404.\\n2. The testimony as to the marriage was inadmissible.\\n3. The direction of the Court, that such a state of facts did not exist as to repel the malice, was wrong. Bourage v. Prosser, 4 B. & C. 247; McDougal v. Claridge, 1 Camp. 267.\\nII. A. L. Codman, for plaintiff.\\nStrict proof of actual marriage was not requisite, it was sufficient to present proof from which the jury could infer a marriage.\\nThe instructions of the Judge were unexceptionable and embodied, plainly and distinctly, the familiar, well recognized and fully established principles of law, applicable to actions of this character, and were such as any Court, having regard to justice and right, would be solemnly bound to give.\", \"word_count\": \"2152\", \"char_count\": \"12514\", \"text\": \"Tenney, J.\\nThe action is for slanderous words, alleged to have been spoken by Hannah P. Robinson, one of the defendants of and concerning the plaintiff, charging him with cohabiting, with the woman, who he avers is his lawful wife, without being married to her, and also in keeping one Jerusha Brackett as a prostitute, and living with her as such. The defendants pleaded the general issue, and filed a brief statement, in which they say that Hannah P. Robin son never used the words or made the charges alleged in the writ; that if such words as are imputed to said Hannah were used by her, they were not spoken maliciously or with a design to do injury to the plaintiff; but in the house of her husband, and in the presence of him and her sisters ; and had reference to matters and transactions interesting to her and to them as family affairs, and were not designed or expected to be made public or reported ; and that whatever was said by said Hannah was spoken of as matter of report and not as facts, known by her, and not maliciously or with a design to injure the plaintiff; and as to any words spoken by said Hannah of and concerning the plaintiff and said Jerusha Brackett, (the said Jerusha being a sister of said Hannah) that the character of said Jerusha, and the conduct of the plaintiff with and towards her, w'ere such as to furnish strong grounds of suspicion against the plaintiff of the truth of such words as were spoken on the occasion and times alleged.\\nEvidence was introduced showing that Jerusha Brackett had lived at the plaintiff's house in Cabotville in Massachusetts, after she had lived in Portland ; that she came from Cabotville to Portland, and thence to Fryeburg, to which place the plain tiff went for her, and that they rode together from Fryeburg to Portland. The defendants offered evidence to show that Jeru-sha Brackett's character for chastity was bad, for several years before, and up to the time when she left Portland for the purpose, with other circumstances before shown, to rebut the presumption of malice, and in mitigation of damages. The evidence being objected to, was excluded. To prove his marriage the plaintiff was allowed, against the objection of the defendants, to show that the plaintiff had lived in Cabotville with a woman whom he recognized as his wife, and by whom he had several children ; that for six years before the trial, they had lived together as man and wife. The Judge remarked in his instructions to the jury, \\\" If in the present case, the persons to whom the W'ords were spoken, had been under the care and protection of Mrs. Robinson, and as their adviser and in a proper manner, she had warned them against the plaintiff, although she might use words, which under other circumstances might be actionable, still such a state of facts might repel malice, but such a state of facts did not exist.\\\"\\n1. Was the evidence offered and rejected admissible for the purpose expressed ? \\\" The defendant may in all cases plead the general issue, which shall be joined by the plaintiff, and he may give in evidence any special matter in defence, where the issue is to be joined to the country ; provided, he shall at the same time file in the cause, a brief statement of such special matter.\\\" R. S. c. 115, $18. This provision was intended for the purpose of allowing special matter to be introduced in defence of actions, under the general issue, instead of the requirement, that it should be done under a special plea. It was not designed to allow a greater latitude in defence, by the introduction of evidence, not before admissible. The notice of the special matter, to be offered under the general issue, must contain as clear and distinct grounds of defence as wras necessary under a special plea, previous to the passage of the statute ; and evidence incompetent under the pleadings formerly required would also be inadmissible under the general issue and brief statement. Some facts may be given in evidence under a plea of justification, in an action for slanderous words, that the words alleged to have been spoken by the defendant were true, when they would be inadmissible under the general issue; in such cases the brief statement must, when filed with the general issue, contain as full and precise an allegation of the truth of the charge, as the special plea should do. Brickett v. Davis, 21 Pick. 404.\\nIt is a general rule, that whatever will in equity and conscience preclude the plaintiff from recovering, need not be pleaded, but may be given in evidence, under the general issue. Stark, on Slander, 326. In an action for slander, a malicious intention to injure the plaintiff is an essential ingredient; and it is therefore necessary to introduce into every declaration, an averment of the defendant's malice. Stark, on Slander, 316.\\nAnd it follows, that the defendant may give in evidence any matter, which tends to rebut presumption or evidence of malice, under the general issue, without averring in the form of a plea or brief statement, the truth of the words alleged to have been spoken. 2 Stark. Ev. 873 ; 2 Greenl. Ev. sect. 421.\\nIf the plaintiff in proof of malice, relies on the falsity of the charge made by the defendant, the defendant may rebut the inference by proof of the charge under the general issue. And when the occasion and circumstances attending the speaking of the words, are such, that malice is not presumed, without proof of its existence, the defendant may prove these circumstances, without alleging the truth of the charge. This is allowed where the words complained of, are communications concerning the plaintiff as a public officer, to the appointing power, and in confidential information made in the ordinary course of lawful business from good motives and justifiable ends. If the words are used by the defendant, acting in his character of a judicial officer, legislator, witness, attorney or party in the trial of a cause, before a competent tribunal, these circumstances may be shown under the general issue. But if the plaintiff makes out a prima facie case, by evidence, that the. defendant used the words, which were actionable, the burden of proof is on the defendant to explain it. Without any explanation, the presumption remains, that the defendant intended, what the words import, in their ordinary signification.\\nAnd if he does not attempt under proper pleadings to show the truth, it will not be permitted him, to adduce misconduct of the plaintiff, for the purpose of rebutting the evidence of malice. Lawrence v. Knies, 10 Johns. 142; Shepard v. Merrill, 13 Johns. 475; Usher v. Severance, 20 Maine, 9. If the evidence offered and rejected, had tended to show misconduct on the part of the plaintiff, from the view, which has been taken, it was incompetent for the purpose of rebutling the presumption of malice. It was not accompanied by any evidence, or the offer of any, showing in the least degree, that the words charged were ottered for such lawful object.\\nAt this day, it is regarded as settled, that under the general issue,, the defendant cannot be permitted to give the truth in evidence, as a defence to the suit, or in mitigation of damages. 2 Greenl. Ev. sect. 424. Bui evidence has been allowed for the latter parp\\u00f3se, showing the misconduct of the plaintiff, which gave rise to the charge, in attempting to commit the crime, or in leading the defendant to believe him guilty. Last v. Chapman, 2 C. & P. 570; 2 Greenl. Ev. sect. 275. But, it is believed that no case can be found, where such evidence of the plaintiff's misconduct as was offered in this case, has been admitted. The character of Jerusha Brackett for chastity may have been notoriously bad at Portland while she resided there, and for a long time before. But it does not follow that the plaintiff was guilty of misconduct in doing all which the evidence, in its most unfavorable aspect for him, would indicate that he did do. She may have reformed, before his acquaintance with her, or he may have been entirely ignorant of her character. There is no evidence reported, and there was none offered, that he was aware that her character was at the time, or had been previously, bad for chastity. Her character, unknown to him in this respect, could not tend to throw any just suspicion over his conduct, if it were otherwise unobjectionable.\\nThe instruction to the jury complained of, cannot be regard ed as erroneous. The Judge had stated under what circumstances words, in themselves actionable, might be spoken with propriety, and when malice would not be imputable to their author. To illustrate the proposition, a case was stated, and to prevent any misapprehension, the remark was made, that the case supposed was not intended to be represented as the one before them ; and from the evidence reported, it was certainly not in all respects the same.\\n3. Was the evidence allowed in proof of the plaintiff's marriage incompetent? \\\" It seems to be a general rule, that in all civil personal actions, except that for criminal conversation, general reputation and cohabitation are sufficient evidence of marriage.\\\" 2 Stark. Ev. 939. Mr. Greerileaf in his treatise on Evidence, vol. 2, section 461, says, \\\" the proof of marriage as of other issues, is either by direct evidence establishing the fact, or by evidence of collateral facts and circumstances, from which its existence may be inferred. Evidence of the former kind, or what is equivalent to it, is required upon the trial of indictments for polygamy and adultery and in actions of criminal conversation ; but in all other cases, any other satisfactory evidence is sufficient.\\\" And he says in sect. 462, \\\" It is competent to show their conversation, addressing each other as man and wife. Their cohabitation also as man and wife is presumed to be lawful, till the contrary appears. The evidence introduced in proof of the marriage, was such as has been allowed in all civil cases. And we find no authority for a distinction in cases wher\\u00e9 the party to the marriage is a party to the suit, and wishes to prove the marriage, and \\u00ab'here the attempt to establish the marriage, is by one who is a stranger thereto. Fenton v. Reed, 4 Johns. 52.\\nExceptions overruled.\"}"
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+"{\"id\": \"8847154\", \"name\": \"Jeremiah Winslow versus Thomas Norton\", \"name_abbreviation\": \"Winslow v. Norton\", \"decision_date\": \"1849-04\", \"docket_number\": \"\", \"first_page\": \"419\", \"last_page\": \"422\", \"citations\": \"29 Me. 419\", \"volume\": \"29\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T17:28:30.457827+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jeremiah Winslow versus Thomas Norton.\", \"head_matter\": \"Jeremiah Winslow versus Thomas Norton.\\nBills of lading are transferable by indorsement, and when thus transferred by the consignee, to a bona fide purchaser, without notice of adverse claims, they pass the legal title, and operate as a sale and transfer of the property to the indorsee.\\nWhere no laches are imputable to the indorsee in taking possession of the property, as soon as its arrival from sea, the sale to him cannot be defeated.\\nTrover for twenty barrels of ale. At the trial, before Wells, J., it appeared that one Carroll shipped at New York, twenty barrels of ale, and took a bill of lading from the master, for the delivery of it at Portland, to R. R. Robinson or to his assigns. The bill of lading was sent to Robinson, together with a draft for the payment of the ale, and was accepted by him before the arrival of the vessel.\\nRobinson not being able to pay the draft, indorsed the bill of lading to the plaintiff. Nathan Winslow acted as the plaintiff\\u2019s agent in doing the business. Nathan paid the draft from the funds of the-plaintiff, kept a lookout for the vessel, and as soon as he heard of her arrival, which was the next day after she arrived, he called on the captain for the ale, and was informed that it was attached by the defendant as a deputy sheriff, on a demand against Robinson, and the sheriff refused to give it up.\\nNathan Winslow was offered as a witness for plaintiff,\\nbut objected to. His testimony was received, evidence being furnished that he had a discharge from the plaintiff of all liability in this matter, but which could not be found at the time of the trial.\\nIt was agreed that the Court might enter a nonsuit or default as the law might require, and if a default was entered, the Court should assess the damages.\\nGoodenow, for defendant, maintained these positions.\\n1. Norton justifies as an officer, attaching the property as R. R. Robinson\\u2019s, on a writ in favor of Elisha Hinds. The property was Robinson\\u2019s, and was attached before any legal transfer to the plaintiff. There was no delivery to plaintiff, and an indorsement of the bill of lading, without delivery of the property, did not pass the property as to third parties. Lanfear v. Sumner, 17 Mass. 110; Buffington & al. v. Curtis &f al., 15 Mass. 528.\\n2. The indorsement of the bill of lading and delivery of it to Nathan Winslow, did not pass the property to plaintiff. Nathan was not the agent at the time. A subsequent ratification by plaintiff of Nathan\\u2019s acts could not affect the vested rights of an attaching creditor. Clark v. Peabody, 22 Maine, 500.\\nFox, for plaintiff.\", \"word_count\": \"1077\", \"char_count\": \"6101\", \"text\": \"Howard, J.\\nThe property, which is the subject of contest in this suit, was shipped by Carroll, at New York, for Portland, January 10, 1848, and consigned to Robinson, or his assigns; and a bill of lading, in the usual form, with a draft on Robinson for the amount, payable at sight, were transmitted at the same time. Robinson received the bill of lading, and accepted the draft, and not being prepared to pay it, indorsed and delivered the bill of lading to the plaintiff, upon the verbal promise of his agent, N. Winslow, to pay it. The draft was paid on that, or the following day, by the agent, for the plaintiff, from the funds of the latter, and several days before the arrival of the vessel, in which the property was shipped.\\nThe agent testified that he made frequent inquiries for the vessel; that he was on the lookout for her, and having heard, about noon, of her arrival one day, he called on the master, for the property, and was then informed that it was attached by a creditor of Robinson. The defendant was the attaching officer, and defends this suit for such creditor.\\nBills of lading are transferable by indorsement, according to well settled principles of commercial law; and when thus transferred by a consignee, whether buyer or factor, or the mere agent for the owner, to a bona fide purchaser, for a good consideration, without notice of adverse claims, they pass the legal title of the property to the indorsee.\\nThe indorsement of the bill of lading, by Robinson, appearing to have been bona fide, and for a valuable consideration, operated as a sale and transfer of the property, then at sea, to the plaintiff. Abbott on Shipping, 381, 382; Walley v. Montgomery, 3 East, 585; Cuming v. Brown, 9 East, 506; Evans v. Marlett, 1 Ld. Raym. 271; Newcomb v. Thornton, 6 East, 22, (Day's Edition) note, opinion of Btjlleii, J. in Lickbarrow v. Mason, before the House of Lords; Conard v. Atlantic Ins. Co. 1 Peters, 445; 2 Kent's Com. 548, 549; Gardner v. Howland, 2 Pick. 599; Peters v. Ballistier & al. 3 Pick. 495; Lanfear v. Sumner, 17 Mass. 112.\\nBut the agent of the plaintiff being on the lookout, took possession of the property, as soon as its arrival was known to him; or was prevented in effecting actual possession, by the interference of the defendant. No laches can be imputed to the plain tiff, in this respect, by which the sale to him can be defeated. Joy v. Sears, 9 Pick. 4; Turner v. Coolidge, 2 Metc. 350; Brinley & al. v. Spring, 7 Greenl. 241; D'Wolf v. Harris, 5 Mason, 515.\\nAfter the assignment of the bill of lading, Robinson ceased to have any interest in the property, either as consignee, or owner. The attachment, therefore, was inoperative, and the defendant a mere stranger.\\nObjection was made to the competency of N. Winslow, as a witness for the plaintiff; but this objection was fully obviated by the plaintiff's release at the trial. Greenl. Ev. <\\u00a7> 416.\\nThe nature and extent of N. Winslow's agency for the plaintiff, although disputed by the defendant, is not now properly in controversy. It is sufficient for the disposition of this case, and for these parties, that the plaintiff recognized, ratified and adopted his acts as agent, in purchasing the property, and in commencing and prosecuting this suit to recover it.\\nUpon the law of the case, and the evidence submitted to us, the defendant must be defaulted, and the plaintiff must have judgment for the value of the property claimed, when converted, deducting freight, with interest since that time.\"}"
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+"{\"id\": \"8848060\", \"name\": \"David Betts vs. Francis Norris\", \"name_abbreviation\": \"Betts v. Norris\", \"decision_date\": \"1839-06\", \"docket_number\": \"\", \"first_page\": \"468\", \"last_page\": \"470\", \"citations\": \"15 Me. 468\", \"volume\": \"15\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T18:46:02.550260+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David Betts vs. Francis Norris.\", \"head_matter\": \"David Betts vs. Francis Norris.\\nAn officer is not bound to make a special service of a writ, by attaching property, without written directions to that effect from the plaintiff, or his agent or attorney.\\nAnd if an officer, without such written directions, make an attachment of property upon a writ, but of loss -value than the full amount of the debt, no action can be maintained against him for not attaching additional property.\\nThe action was for an alleged neglect of duty by the defendant, as a deputy-sheriff of the county of Kennebec. On June 2,1829, the plaintiff commenced an action against Lane & Leadbetter, claiming damages to the amount of two thousand dollars, and delivered the writ to the defendant, a deputy-sheriff, without any written directions on the back thereof, but with verbal directions to attach all their real estate, or the real estate of either of them, in that county. The return of the attachment by the defendant, dated June 12, 1829, was, \\u201c I have attached all the real estate of the within named Jabez Leadbetter, to wit, all the right and interest he owns in the gristmill and stream the said mill stands on, in the town of Wayne, and his farm with his dwellinghou'se, and all other buildings thereon, in said Wayne, in said county.\\u201d At this time Leadbetter owned a house and lot in Wayne village, in which he lived with his family, a farm, which he carried on, on which were buildings and which farm was distant about thirty rods from the house, and owned the gristmill. He also owned a small farm in Leeds, which he conveyed in August, 1830. The house in which Leadbetter lived, was destroyed by fife in the fall of 1833, without any fault of the defendant. The plaintiff recoverd judgment against Leadbetter at the June Term of the Supreme Judicial Court, 1834, for $1558,68, debt, and $317,67, costs, and took out his execution and within the thirty days duly levied the same upon the mill, the farm in Wayne, and upon the lot on which the house, which had beeen burned, stood, leaving a balance unsatisfied of $332,69. The house burned was of much greater value than the balance of the execution. This action was commenced January 20, 1837. A nonsuit was entered by consent, which was to be taken off, if the action could be maintained.\\nThe case was argued by S. W. Robinson for the plaintiff', and by Wells for the defendant, chiefly on views of the case not taken into consideration in the opinion.\\nThe first of seven objections made by Wells was, that the defendant was under no obligation to make any attachment of property on tlie writ, unless he was directed in writing. It was a mere gratuitous act, for which the plaintiff should thank him, but gives no right of action, if the debt was not fully secured by it. Stat. 1821, c. 105, as to officer\\u2019s fees; Si at. 1829, c. 445, <\\u00a7> 3. And such has been the practical construction of the statute,\\nRobinson,\\nin reply, said that there was a sufficient direction to attach property on the face of the writ; and if any thing more was necessary, the verbal orders were sufficient, and it had so been decided. Our statute in relation to fees was merely to remedy an abuse, and was not intended to take away the existing right to giye verbal orders.\", \"word_count\": \"847\", \"char_count\": \"4785\", \"text\": \"After a continuance for advisement, the opinion of the Court was drawn up by\\nWeston C. J.\\nBy the act establishing and regulating fees, statute of 1821, c. 105, the officer is allowed on a capias or attachment, an additional fee for attaching property, which is called a special service, only where he has the written directions of the plaintiff, his agent or attorney, so to do. For the service merely, where no special attachment is made, he is to have a less fee. The same distinction is preserved, in the additional act respecting sheriffs, statute of 1829, c. 445. And the practice has been uniform, to make only a nominal attachment, where no such directions are given.\\nAlthough the precept in eyery writ of attachment is, to attach to the amount therein prescribed, yet where a special attachment is not ordered in writing, the return of a nominal attachment has been received as a sufficient seryiee. And we are of opinion, that by virtue of the statutes, and the settled practice under them, the officer was under no legal obligation to make a special attachment, without written directions to this effect, from the plaintiff, his agent or attorney. He was in this case entitled to no fee for such a sen-vice, and if he has done it gratuitously, by which the plaintiff has been secured lo a large amount, he has no just or legal right to complain, that it has fallen somewhat short of the final amount of his judgment. We are very clearly of opinion, that no official delinquency has been made out against the officer.\\nNonsuit confirmed.\"}"
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+"{\"id\": \"8992105\", \"name\": \"Robert RUNNELLS v. Muriel J. QUINN\", \"name_abbreviation\": \"Runnells v. Quinn\", \"decision_date\": \"2006-01-27\", \"docket_number\": \"\", \"first_page\": \"713\", \"last_page\": \"719\", \"citations\": \"890 A.2d 713\", \"volume\": \"890\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T19:49:04.798447+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.\", \"parties\": \"Robert RUNNELLS v. Muriel J. QUINN.\", \"head_matter\": \"2006 ME 7\\nRobert RUNNELLS v. Muriel J. QUINN.\\nSupreme Judicial Court of Maine.\\nSubmitted On Briefs: Dec. 13, 2005.\\nDecided: Jan. 27, 2006.\\nAaron K. Baltes, Esq., Norman, Hanson & DeTroy, LLC, Frank K.N. Chowdry, Esq., Jensen Baird Gardner & Henry, Portland, for plaintiff.\\nPeter W. Schroeter, Esq., William N. Kany, Esq., Nicole L. Lorenzati, Esq., Smith Elliott Smith & Garmey, P.A., Saco, Aaron Burns, Esq., Michael J. Pearce & Assoc., LLC, Portland, for defendant.\\nPanel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.\", \"word_count\": \"2219\", \"char_count\": \"13416\", \"text\": \"ALEXANDER, J.\\n[\\u00b6 1] Muriel J. Quinn appeals from a judgment entered in the Superior Court (York County, Brennan, J.) after a jury found that (1) Quinn had breached an implied contract with Robert Runnells, awarding Runnells $27,742; and (2) Run-nells had breached a warranty to Quinn, awarding Quinn $14,000. Quinn asserts that the trial court erred in (1) denying her motion for judgment as a matter of law on Runnells's claim for quantum meru-it/implied contract; and (2) granting Run-nells's motion for partial summary judgment on Quinn's claims under the Home Construction Contract Act, 10 M.R.S. \\u00a7 1486-1490 (2005). Runnells cross-appeals, contending that the court erred in failing to offset the jury verdicts and award one judgment and costs to Runnells as the substantially prevailing party. We vacate the grant of partial summary judgment on the Home Construction Contract Act claim, but we affirm the results of the jury's verdict.\\nI. CASE HISTORY\\n[\\u00b6 2] The facts relevant to the appeal can be succinctly stated. Runnells is a home construction contractor. Quinn owns a residence in Saco that includes her living unit and two rental units. In early February 2001, Runnells and Quinn signed a home construction contract for renovations to Quinn's home.\\n[\\u00b6 3] The initial contract set a price of $33,840 for the renovations. Runnells began work on the renovations. Quinn then determined that she needed more renovations, due in part to some personal misfortunes that required greater handicap accessibility. Accordingly, Quinn and Runnells entered into a revised contract, setting a price of $75,470 for the renovations. At the time this revised contract was signed, Quinn had paid Runnells $57,000 toward the cost of the renovations.\\n[\\u00b6 4] Subsequently, Quinn requested that Runnells perform additional renovations, for which she admitted at trial she was obligated to pay. No written contract or change order was signed regarding these additional renovations.\\n[\\u00b6 5] Ultimately Quinn paid Runnells a total of $72,000. With the addition of the work performed as a result of oral agreements, Runnells gave Quinn a final invoice for $99,742.40, indicating $27,742.40 remaining to be paid. When payment was not made, Runnells brought a mechanic's lien complaint in the District Court. Run-nells subsequently amended the complaint to include claims for breach of express and implied contract and to add a claim for defamation arising from reports made by Quinn to the Better Business Bureau and to the Department of Environmental Protection. Quinn filed a counterclaim against Runnells alleging breach of contract, negligence, breach of warranty, unfair trade practices, and violation of the Home Construction Contract Act (HCCA). The case was removed to Superior Court for a jury trial.\\n[\\u00b6 6] Prior to trial, the court granted Runnells's motion for partial summary judgment and dismissed Quinn's counterclaim for violation of the HCCA. After trial, the jury found for Runnells in the amount of $27,742 on his amended complaint for quantum meruit/implied contract. The jury found for Quinn in the amount of $14,000 on her counterclaim for breach of contract/implied warranty. The jury found that the other claims by each party were not proved.\\n[\\u00b6 7] Within ten days of the entry of judgment, Quinn filed a renewed motion for judgment as a matter of law pursuant to M.R. Civ. P. 50(b). The court denied that motion, and this appeal followed.\\nII. LEGAL ANALYSIS\\nA. Runnells's Quantum Meruit Recovery\\n[\\u00b6 8] Quinn asserts that contract law barred the jury's consideration of a quantum meruit/implied contract award for Runnells. She maintains the claim is barred due to Runnells's failure to enter into written change orders with Quinn for the contract extras when their fixed price contract unambiguously provided that there be no extra costs for change orders unless in writing.\\n[\\u00b6 9] Although the home construction contract required that all changes to the contract involving extra costs be in writing, this provision may be modified by the agreement of the parties. Granger N., Inc. v. Cianchette, 572 A.2d 136, 139 (Me.1990). Such a provision does not preclude a contractor from recovering for work that was fully performed. Id. The jury's verdict establishes that the extra work at issue was requested by Quinn and performed by Runnells.\\n[\\u00b6 10] Quantum meruit claims involve recovery for services or materials provided under an implied contract, which is a contract inferred from the conduct of the parties. Paffhausen v. Balano, 1998 ME 47, \\u00b6 6, 708 A.2d 269, 271. \\\"A valid claim in quantum meruit requires: that (1) services be rendered to the defendant by the plaintiff; (2) with the knowledge and consent of the defendant; and (3) under circumstances that make it reasonable for the plaintiff to expect payment.\\\" Id. \\u00b6 8 (quotation marks omitted). See also Forrest Assocs. v. Passamaquoddy Tribe, 2000 ME 195, \\u00b6 11, 760 A.2d 1041, 1045.\\n[\\u00b6 11] Evidence in the record shows that Quinn asked Runnells to do additional work, for which she knew she would be charged additional costs. Thus, the jury could find that Runnells reasonably expected payment for this additional work that he had completed for Quinn with Quinn's knowledge. Therefore, the court did not err in denying Quinn's motion for judgment as a matter of law on Runnells's claim for quantum meruit/implied contract.\\nB. Set-off and Costs\\n[\\u00b6 12] In his cross-appeal, Runnells asserts that the verdicts should have been offset and that one judgment in favor of Runnells should have been entered in the amount of $13,742.40. Although the court, in its discretion, could have offset the verdicts, see Albert Brothers Construction, Inc. v. Gagnon, 611 A.2d 75, 76 (Me.1992), it did not exceed the bounds of its discretion in determining that the jury verdicts should not be offset, considering that there were separate verdict forms on multiple claims.\\n[\\u00b6 13] The court determined that it would not award costs to either party \\\"because, considering the litigation as a whole, neither was a clearly prevailing party.\\\" Runnells contends that the court should have determined that he was the prevailing party, as he was awarded the entire amount of his unpaid bill, whereas Quinn was only awarded approximately half that amount on her breach of warranty claim.\\n[\\u00b6 14] The governing law, 14 M.R.S. \\u00a7 1501 (2005), provides that \\\"[i]n all actions, the party prevailing recovers costs unless otherwise specially provided.\\\" The Maine Rules of Civil Procedure state that \\\"[c]osts shall be allowed as of course to the prevailing party, as provided by statute and by these rules, unless the court otherwise specifically directs.\\\" M.R. Civ. P. 54(d).\\n[\\u00b6 15] We use a functional analysis to determine who is the prevailing party for purposes of awarding costs. Landis v. Hannaford Bros. Co., 2000 ME 111, \\u00b6 6, 754 A.2d 958, 959-60. The nature of this inquiry is essentially one of fact; therefore, the court's determination of the prevailing party is reviewed for clear error. Id. The determination of a successful party is based upon success on the merits, not just upon damages, looking at the lawsuit as a whole. Id. \\u00b6 7. Thus, the fact that Runnells was awarded $27,742.40 on his claim, while Quinn was only awarded $14,000 on hers, does not settle the issue.\\n[\\u00b6 16] The court did not commit clear error in determining that, when looking at the lawsuit as a whole, neither party was the \\\"winner\\\" or the \\\"loser,\\\" and hence there was no prevailing party. See id. \\u00b6 6, 754 A.2d at 959-60. As there was no prevailing party, the Superior Court properly declined to award costs.\\nC. The Home Construction Contract Act Claim\\n[\\u00b6 17] The trial court did not state reasons for granting Runnells's motion for partial summary judgment on the HCCA claim. Runnells asserts that Quinn's property is not subject to the protections of the HCCA because it contains, in addition to Quinn's living area, two rental units, and the rental units are a commercial or business purpose, excluding the building from the protections of the HCCA because it is not a \\\"residence.\\\"\\n[\\u00b6 18] \\\"Residence\\\" is defined in the HCCA as \\\"a dwelling with 3 or fewer living units and garages, if any. Buildings used for commercial or business purposes are not subject to this chapter.\\\" 10 M.R.S. \\u00a7 1486(5) (2005). The limitation in the HCCA to three or fewer living units would appear to contemplate that at least some of those living units might be rental units. This is confirmed in other provisions of the HCCA that anticipate that agreements might be between either contractors and homeowners or contractors and lessees. See 10 M.R.S. \\u00a7 1487 (2005). Thus, residences of homeowners that include one or two rental units would qualify as a residence under the plain meaning of the term \\\"residence\\\" as defined in the HCCA.\\n[\\u00b6 19] Section 1487 of the HCCA requires that any home construction contracts for more than $3000 (1) be in writing; (2) specify a contract price, 10 M.R.S. \\u00a7 1487(4) (2005); (3) establish a limitation on down payments to no more than one-third of the total contract price, id. \\u00a7 1487(5) (2005); and (4) require that any changes in the contract price as a result of changes in specifications or changes in requested work be subject to a written change order, id. \\u00a7 1487(9) (2005).\\n[\\u00b6 20] Summary judgment is precluded if, when the facts are reviewed, there remain disputes as to material facts relating to the viability of any claim. See Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24, \\u00b6 6, 816 A.2d 63, 65. On the available record, there appears to be a dispute as to material fact as to whether the down payment received by Runnells on the second written contract exceeded the one-third of contract price limitation in section 1487(5), and there appears no dispute that' there were oral agreements between Runnells and Quinn that resulted in a significant increase in the cost of the work to be done above the $75,470 figure agreed in the last written contract.\\n[\\u00b6 21] By proving his quantum meruit claim, Runnells also, effectively, proved violation of the HCCA. 10 M.R.S. \\u00a7 1487(9), 1488 (2005). However, proof of violation of the HCCA does not exempt a homeowner from responsibility to pay for work proved to have been completed pursuant to the homeowner's request and under circumstances justifying recovery in quantum meruit. The remedies specified in the HCCA are not so broad. Pursuant to 10 M.R.S. \\u00a7 1490(1) (2005), a violation of the HCCA is viewed as prima facie evidence, subject to rebuttal, of violation of the Maine Unfair Trade Practices Act, 5 M.R.S. \\u00a7 205-A to 214 (2005). In addition, for each violation of the Act found by the court, the court may find a civil violation and order a forfeiture of not less than $100, nor more than $1000, 10 M.R.S. \\u00a7 1490(2) (2005).\\n[\\u00b6 22] Accordingly, the remedy for violation of the HCCA must be adjudicated independently of any determinations relating to the homeowner's responsibility to pay the contractor for work requested by the homeowner and done properly, pursuant to the homeowner's request, by the contractor. Therefore, while the matter must be remanded to the trial court for determination of the HCCA claim and evaluation of any remedies that may be appropriate, including an award of costs, this remand does not require a reopening and reconsideration of the matters decided by the jury. The judgments based on the jury verdicts will be affirmed. The matter will be remanded, to the Superior Court for consideration of the HCCA claim.\\nThe entry is:\\nThe portion of the trial court's judgment dismissing the Home Construction Contract Act claim is vacated. Remanded to the Superior Court for consideration of the Home Construction Contract Act claim. In all other respects the judgment of the trial court is affirmed.\\n. Runnells filed a third-party complaint against a subcontractor plumber with regard to claims made by Quinn against Runnells for the contamination of her basement with asbestos debris. The asbestos claims were settled separately, resulting in dismissal of the subcontractor from the case.\\n. On the backside of all contracts between Runnells and Quinn are the following relevant terms:\\n4. The terms, conditions and representations set forth herein constitute the entire agreement between the parties, and no waiver or modifications shall be valid unless written upon [sic ] attached to this contract.\\n7. Any alteration or deviation from the above contractual specifications that involve extra cost will be executed only upon the parties entering into a written change order.\\n. While we review the trial court's determination as to who is the prevailing party for clear error, we review the decision to award costs to the identified prevailing party for an abuse of discretion. See Mahar v. StoneWood Transp., 2003 ME 63, \\u00b6 26, 823 A.2d 540, 547.\"}"
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+"{\"id\": \"9101321\", \"name\": \"ABN AMRO MORTGAGE GROUP v. Richard WILLIS et al.\", \"name_abbreviation\": \"ABN AMRO Mortgage Group v. Willis\", \"decision_date\": \"2003-07-31\", \"docket_number\": \"\", \"first_page\": \"527\", \"last_page\": \"529\", \"citations\": \"829 A.2d 527\", \"volume\": \"829\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:58:11.403870+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J., and RUDMAN, ALEXANDER, CALKINS, and LEVY, JJ.\", \"parties\": \"ABN AMRO MORTGAGE GROUP v. Richard WILLIS et al.\", \"head_matter\": \"2003 ME 98\\nABN AMRO MORTGAGE GROUP v. Richard WILLIS et al.\\nSupreme Judicial Court of Maine.\\nSubmitted On Briefs: July 9, 2003.\\nDecided: July 31, 2003.\\nMichael Haenn, Bangor, for the plaintiff.\\nMark Kearns, Eliot, for the defendant.\\nPanel: SAUFLEY, C.J., and RUDMAN, ALEXANDER, CALKINS, and LEVY, JJ.\", \"word_count\": \"811\", \"char_count\": \"4958\", \"text\": \"RUDMAN, J.\\n[\\u00b6 1] Richard Willis appeals from a judgment entered in the Superior Court (York County, Brennan, J.) granting ABN AMRO Mortgage Group's (frk/a Atlantic Mortgage & Investment Corporation (AMIQ) foreclosure of Willis's mortgage, pursuant to 14 M.R.S.A. \\u00a7 6822 (2008). Willis contends, inter alia, that ABN was required to provide him with notice of the default and an opportunity to cure, or to provide proof that notice was not required. We disagree and affirm the judgment.\\n[\\u00b62] The property implicated in this foreclosure is located at 19 Ridgeway Circle in Waterboro and is part of Lake Arrowhead Community, a planned unit development. Willis's predecessor-in-interest granted a mortgage on this property to secure a promissory note to evidence a debt to Fleet Real Estate Funding Corporation. Fleet was ABN's predecessor-in-interest.\\n[\\u00b6 3] The mortgage contract includes an acceleration clause in the event of default. The contract defines \\\"default\\\" as \\\"failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment, or . failing, for a period of thirty days, to perform any other obligations contained in this Security Instrument.\\\" On May 10, 1994, Willis assumed the mortgage obligation and agreed to abide by, and fulfill, all the terms and conditions stated in the promissory note and mortgage contract. On June 2, 1998, Fleet assigned Willis's mortgage to AMIC, which later became ABN \\u2014 a Florida corporation. Willis's account was current on the date of assignment.\\n[\\u00b6 4] In July of 1998, Willis defaulted on his obligation by submitting a check that failed to clear. He then failed to bring his account current over the next two years. ABN responded by filing a complaint in December of 2000 seeking to foreclose on Willis's mortgage, pursuant to 14 M.R.S.A. \\u00a7 6321-6325 (2003). Willis answered and asserted eight affirmative defenses, including the defense that ABN failed to comply with the notice procedure set forth in 14 M.R.SA. \\u00a7 6111(1) At trial, Willis offered no evidence. The court found, inter alia, that Willis failed to sustain his burden to prove he was entitled to the benefit of subsection 6111(1), and entered a judgment in favor of ABN. This appeal followed.\\n[\\u00b6 5] Willis's contention that ABN failed to follow subsection 6111(l)'s notice provision is an affirmative defense, and, as such, he had the burden of proving the applicability of the defense. See Patten v. Milam, 480 A.2d 774, 776 (Me.1984) (stating that asserting a failure to comply with statutory notice procedures is an affirmative defense, placing the burden of proof on the party raising the defense); see also Hansen v. Sunday River Skiway Corp., 1999 ME 45, \\u00b6 11 n. 2, 726 A.2d 220, 223 (stating party raising an affirmative defense has the burden of proof). Willis did not present evidence at trial, and the court did not otherwise commit clear error in finding the existence of the facts necessary for application of section 6111(l)'s notice provision not proven. Thus, Willis failed to meet his burden of proof and his contention fails. See Patten, 480 A.2d at 776. Willis's remaining contentions are without merit.\\nThe entry is:\\nJudgment affirmed.\\n. Although Lake Arrowhead Communily was named as a defendant in this action and filed an answer to ABN's complaint, it neither appeared at trial nor submitted a brief on appeal. The court found that Lake Arrowhead was more properly a party-in-interest than a defendant.\\n. The current provisions of the judicial foreclosure proceeding statutes are identical to the versions existing in December of 2000, the date of ABN's complaint. See 14 M.R.S.A. \\u00a7 6321-6325.\\n. 14 M.R.S.A. \\u00a7 6111(1) (2003) provides, in relevant part:\\n1. Notice; Payment. With respect to mortgages upon residential property located in this State when the mortgagor is occupying all or a portion of the property as the mortgagor's primary residence and the mortgage secures a loan for personal, family or household use, the mortgagee may not accelerate maturity of the unpaid balance of the obligation or otherwise enforce the mortgage because of a default consisting of the mortgagor's failure to make any required payment, tax payment or insurance premium payment, by any method authorized by this chapter until at least 30 days after the date that written notice is given by the mortgagee to the mortgagor . that the mortgagor has the right to cure the default by full payment of all amounts that are due without acceleration, including reasonable interest and late charges specified in the mortgage or note as well as reasonable attorney's fees.\"}"
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+"{\"id\": \"9190091\", \"name\": \"COMMERCE BANK AND TRUST COMPANY v. Nancy S. DWORMAN\", \"name_abbreviation\": \"Commerce Bank & Trust Co. v. Dworman\", \"decision_date\": \"2004-11-22\", \"docket_number\": \"\", \"first_page\": \"662\", \"last_page\": \"668\", \"citations\": \"861 A.2d 662\", \"volume\": \"861\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-11T01:06:37.900616+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: SAUFLEY, C.J. and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.\", \"parties\": \"COMMERCE BANK AND TRUST COMPANY v. Nancy S. DWORMAN.\", \"head_matter\": \"2004 ME 142\\nCOMMERCE BANK AND TRUST COMPANY v. Nancy S. DWORMAN.\\nSupreme Judicial Court of Maine.\\nSubmitted On Briefs: Oct. 6, 2004.\\nDecided: Nov. 22, 2004.\\nRita M. Farry, Esq., Kimmel & Beach, Kennebunk, for plaintiff.\\nAlan E. Shepard, Esq., Shepard & Read, Kennebunk, for defendant.\\nPanel: SAUFLEY, C.J. and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.\", \"word_count\": \"2160\", \"char_count\": \"13219\", \"text\": \"ALEXANDER, J.\\n[\\u00b6 1] Nancy S. Dworman appeals from a judgment of the Superior Court (York County, Brennan, J.) denying her motion to dissolve an ex parte attachment. Dwor-man contends that the court erred when it declined to dissolve the attachment because Maine does not have jurisdiction of the underlying action. Because Maine courts may exercise personal jurisdiction over Dworman pursuant to the long arm statute, 14 M.R.S.A. \\u00a7 704-A (2003), we affirm the judgment.\\nI. CASE HISTORY\\n[\\u00b6 2] Dworman is a Massachusetts resident. She has had connections with Maine since 1986 when she purchased a home in Ogunquit. Dworman maintains that her Ogunquit property is merely a \\\"seasonal residence.\\\" However, the available record would allow a court to conclude that Dwor-man has significant contacts with the State. In addition to owning a home and paying taxes, the record indicates that Dworman applied for and received a number of permits in Maine including a wetland alteration permit, multiple building permits and a certificate of occupancy. There is also evidence that Dworman uses the Ogunquit property as more than a seasonal residence.\\n[\\u00b6 3] Commerce Bank and Trust Company commenced an action in the York District Court alleging that Dworman had defaulted on commercial loans, totaling $3,984,160.75, for which she had signed as a personal guarantor for several Massachusetts entities. All negotiations and transactions relating to the loans took place in Massachusetts. The loans contained provisions stating that the laws of Massachusetts would govern. Commerce Bank is incorporated pursuant to the laws of Massachusetts, and its principal place of business is in Massachusetts.\\n[\\u00b6 4] When Commerce Bank filed the action, it also sought an ex parte attachment of the Ogunquit property. M.R. Civ. P. 4A(g). In an affidavit in support of the attachment, Commerce Bank asserted that Dworman has tried to shield property from a judgment against her by transferring property from her name into trusts and by using her Ogunquit property to secure a loan from a foreign lender. The District Court (York, Wheeler, J.) granted Commerce Bank an ex parte attachment of Dworman's Ogunquit property in the amount of $2,100,000.\\n[\\u00b6 5] Dworman filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(1), (2) and a motion to dissolve the attachment pursuant to M.R. Civ. P. 4A(h). The case was then removed to Superior Court, and the court denied both motions. Action in the case was stayed \\\"pending, further order.\\\" The reason for that stay was deference to litigation in Massachusetts. Commerce Bank has commenced a parallel action against Dworman in Massachusetts and obtained a pre-judgment attachment against her assets there.\\n[\\u00b6 6] Dworman appealed the denial of her motion to dissolve the attachment. She contends that Maine courts do not have authority to exercise personal jurisdiction over her, or in rem jurisdiction over her Ogunquit property.\\nII. STANDARD OF REVIEW\\n[\\u00b6 7] An order for attachment is immediately appealable as an exception to the final judgment rule. Liberty v. Liberty, 2001 ME 19, \\u00b6 10, 769 A.2d 845, 847. We review an order for attachment to determine if it is within the range of a sustainable exercise of the court's discretion and if any findings are the result of clear error. Id. \\u00b6 11. Issues of statutory interpretation are reviewed de novo. State v. McLaughlin, 2002 ME 55, \\u00b6 5, 794 A.2d 69, 72.\\n[\\u00b6 8] When a court's jurisdiction is challenged, the plaintiff bears the initial burden of establishing that jurisdiction is proper. Interstate Food Processing Corp. v. Pellerito Foods, Inc., 622 A.2d 1189, 1191 (Me.1993). 'When there has been no testimonial hearing and the court proceeds on the parties' pleadings and affidavits, the plaintiff need only make a prima facie showing that jurisdiction exists.\\\" Id. The record is reviewed in the manner most favorable to the written allegations supporting jurisdiction. Id. See also Bickford v. Onslow Memorial Hospital Foundation, Inc., 2004 ME 111, \\u00b6 10, 855 A.2d 1150, 1155.\\nIII. LEGAL ANALYSIS\\n[\\u00b6 9] In Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the United States Supreme Court abolished prior distinctions between \\\"in personam\\\" and \\\"in rem\\\" or \\\"quasi in rem\\\" jurisdiction as a basis for a state to assume jurisdiction over a cause of action based on a claim against an individual. The court observed that: \\\"The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state court jurisdiction that is' fundamentally unfair to the defendant.\\\" Id. at 212, 97 S.Ct. 2569.\\n[\\u00b6 10] The Court then applied the due process, minimum contacts standard it had adopted in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), to assertions of state court jurisdiction based on either personal contacts or location of property within a state. Shaffer, 433 U.S. at 213, 97 S.Ct. 2569. In Shaffer, the Court determined that ownership of stock in a Delaware corporation created insufficient contacts with Delaware to support a stockholders' derivative suit involving a Delaware corporation, where the stock certificates were not physically present in Delaware, id. at 192, 97 S.Ct. 2569, and it was not alleged that the defendants had \\\"ever set foot in Delaware\\\" or that any act related to the cause of action occurred in Delaware, id. at 213, 97 S.Ct. 2569. Concurring opinions by Justice Powell and Justice Stevens emphasized that the rule announced by the Court might be different had the defendants owned real estate in Delaware. Id. at 218-19, 97 S.Ct. 2569.\\n[\\u00b6 11] The minimum contacts rule announced in International Shoe Co. holds that due process demands that a defendant have sufficient contacts with a state to make it reasonable to require the defendant to defend the particular suit that is brought in the state. International Shoe Co., 326 U.S. at 317, 66 S.Ct. 154. See also Interstate Food Processing Corp., 622 A.2d at 1192.\\n[\\u00b6 12] Applying the minimum contacts requirement, we have held that Maine's jurisdiction over nonresident defendants is controlled by our long arm statute, 14 M.R.S.A. \\u00a7 704-A (2003), and the Due Process Clause of the Maine Constitution. ME. CONST. art. I, \\u00a7 6-A; Murphy v. Keenan, 667 A.2d 591, 593 (Me.1995). The extent of Maine jurisdiction is coextensive with that allowed by the Due Process Clause of the United States Constitution. U.S. CONST. amend. XIV, \\u00a7 1. Bickford, 2004 ME 111, \\u00b6 10, 855 A.2d at 1155; Murphy, 667 A.2d at 593.\\n[\\u00b6 13] The relevant provisions of our long arm statute state:\\n2. Causes of action. Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated in this section, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:\\nC. The ownership, use or possession of any real estate situated in this State;\\nI. Maintain any other relation to the State or to persons or property which affords a basis for the exercise of jurisdiction by the courts of this State consistent with the Constitution of the United States.\\n14 M.R.S.A. \\u00a7 704-A(2).\\n[\\u00b6 14] For the purpose of exercising personal jurisdiction over a nonresident defendant, due process is satisfied when three conditions are met: (1) Maine has a legitimate interest in the subject matter of the litigation; (2) the defendant, by his or her conduct, reasonably could have anticipated litigation in Maine; and (3) the exercise of jurisdiction by Maine's courts comports with traditional notions of fair play and substantial justice. Bickford, 2004 ME 111, \\u00b6 10, 855 A.2d at 1155; Murphy, 667 A.2d at 593. The plaintiff must prove the first two conditions; the burden then shifts to the defendant to prove the negative of the third condition. Bickford, 2004 ME 111, \\u00b6 10, 855 A.2d at 1155.\\nA. Interest in the Subject Matter of the Litigation\\n[\\u00b6 15] An analysis of whether a legitimate state interest exists goes beyond the State's \\\"interest in providing its citizens with a means of redress against noncitizens,\\\" and includes factors such as the protection of state \\\"industries, the safety of its workers, or the location of witnesses and creditors within its border.\\\" Murphy, 667 A.2d at 594. Maine has a legitimate interest in (1) upholding the attachment of property as an accommodation to collection efforts in courts of other jurisdictions, and (2) preventing debtors from using our boundaries as a shelter to shield their persons and their Maine real estate from process and creditors. Thus, the first condition for jurisdiction over this action, to enforce Dwormaris personal guarantees and to attach her real estate to provide security for any judgment, is met.\\nB. Anticipation of Litigation in Maine\\n[\\u00b6 16] To reasonably anticipate litigation in a particular jurisdiction, one must purposefully avail oneself of the privilege of conducting activities within the jurisdiction and benefit from the protection of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).\\n[\\u00b6 17] Dwormaris contacts with the State of Maine were not merely fortuitous or incidental. She purposefully availed herself of the benefits and protections of Maine laws. Dworman benefited from state and municipal public services by purchasing residential property here, by granting a mortgage on the property, and by obtaining building and occupancy permits for it. She used her Maine real estate to support applications for loans, and Commerce Bank asserts that she attempted to conceal assets by attempting to encumber her Maine property with a mortgage to an offshore entity in the British Virgin Islands. Service of the suit was accomplished by delivery of the summons and complaint to Dworman's husband at the Ogunquit property in December 2003. Dworman also demonstrated that she anticipated litigation in Maine when she admitted that she was aware that her Ogunquit property could at some point be subject to an execution if a judgment is obtained against her in Massachusetts. The second condition for personal jurisdiction to attach is met.\\nC. Traditional Notions of Fair Play and Substantial Justice\\n[\\u00b6 18] Traditional notions of fair play and substantial justice require the nonresident defendant to have minimum contacts with the forum state. Shaffer, 433 U.S. at 213, 97 S.Ct. 2569; Interstate Food Processing Corp., 622 A.2d at 1192. In this analysis we consider \\\"the nature and purpose of a defendant's contacts with the forum state, the connection between the contacts and the cause of action, the number of contacts, the interest of the forum state in the controversy, and the convenience and fairness to both parties.\\\" Labbe v. Nissen Corp., 404 A.2d 564, 570 (Me.1979).\\n[\\u00b6 19] Litigation of this action in Maine is consistent with traditional notions of fair play and substantial justice. Dworman has had purposeful contact with the State for eighteen years. There is a risk that Commerce Bank may not recover from Dworman if Maine does not exercise jurisdiction. Finally, jurisdiction is being sought only for the purpose of attaching Dwormaris property. Any further action is stayed pending litigation of the underlying action that is proceeding in Massachusetts.\\n[\\u00b6 20] Maine courts may exercise personal jurisdiction over Dworman because: (1) there are minimum contacts between Dworman and the State of Maine; (2) it may be unfair to Commerce Bank if Maine does not exercise personal jurisdiction over Dworman; and (3) it is neither unfair nor inconvenient for Dworman to be subjected to personal jurisdiction in Maine. Accordingly, the Superior Court did not err in declining to dissolve the attachment. Commerce Bank has established a sufficient basis for personal jurisdiction pursuant to our long arm statute, 14 M.R.S.A. \\u00a7 704-A.\\n[\\u00b6 21] Because we conclude that jurisdiction is established by the long arm statute, we do not address Commerce Bank's sepa rate contention that the attachment is justified based on in rem jurisdiction pursuant to 14 M.R.S.A. \\u00a7 504 (2003).\\nThe entry is:\\nJudgment affirmed.\\n. Service of the suit was accomplished by delivery of the summons and complaint to Dworman's husband at the Ogunquit property in December 2003.\\n. Commerce Bank filed a motion for ex parte attachment and trustee process pursuant to M.R. Civ. P. 4A(g) and 4B(i) and attachment and trustee process in the amount of $2,100,000 was granted. Only the attachment of real estate is at issue here, and the opinion will only reference attachment.\"}"
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+"{\"id\": \"921800\", \"name\": \"Howard G. Yeaton, et al. vs. Orrin Knight, Admr., et al.\", \"name_abbreviation\": \"Yeaton v. Knight\", \"decision_date\": \"1961-03-16\", \"docket_number\": \"\", \"first_page\": \"133\", \"last_page\": \"142\", \"citations\": \"157 Me. 133\", \"volume\": \"157\", \"reporter\": \"Maine Reports\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T23:28:01.249339+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sitting: Williamson, C. J., Webber, Tapley, Sullivan, Dubord, Siddall, JJ.\", \"parties\": \"Howard G. Yeaton, et al. vs. Orrin Knight, Admr., et al.\", \"head_matter\": \"Howard G. Yeaton, et al. vs. Orrin Knight, Admr., et al.\\nCumberland.\\nOpinion, March 16, 1961.\\nElton Thompson, for plaintiff.\\nRobert A. Wilson,\\nJohn C. Fitzgerald, for defendant.\\nSitting: Williamson, C. J., Webber, Tapley, Sullivan, Dubord, Siddall, JJ.\", \"word_count\": \"2387\", \"char_count\": \"14094\", \"text\": \"Dubord, J.\\nThis case is before us on an appeal under M. R. C. P. 73 from the acceptance, by a Justice of the Superior Court of a supplemental report of a referee.\\nIda M. Knight, wife of Orrin Knight, died instantaneously on December 27, 1957, as a result of injuries received by being struck by a motor vehicle, under circumstances giving rise to an action for damages under the provisions of Sections 9 and 10, Chapter 165, R. S., 1954, as amended, known as Lord Campbell's Act or the Death Statute.\\nShe was survived by her husband and eight children by a former marriage. There is no evidence to indicate pecuniary injuries on the part of any of the children.\\nOrrin Knight retained John C. Fitzgerald, and Robert A. Wilson, Portland attorneys to seek to recover damages for his own serious personal injuries and for the alleged tortious death of his wife. Because of certain friendly relations between Attorney Wilson and the father of the driver whose car struck Mrs. Knight, Mr. Wilson assumed only a passive attitude in the case and Mr. Fitzgerald became the active attorney who investigated and pressed the claim to a successful conclusion.\\nNegotiations looking towards the settlement of the claim for damages arising out of the death of Ida M. Knight were entered into with the insurance carrier of the alleged tort feasor. Because of doubtful liability, a compromise offer in the amount of $3,000.00 was accepted. Pending negotiations for a settlement, the eight children of Ida M. Knight retained counsel, and there was agreement on their part to the amount of the proposed settlement.\\nIn accordance with well recognized custom and legal necessity, before payment of the agreed amount was made, letters of administration upon the estate of Ida M. Knight were issued to the widower, Orrin Knight.\\nPayment of the sum of $3,000.00 was made to counsel for Orrin Knight and the claim legally closed.\\nDuring the time which elapsed between the death of Mrs. Knight and the final settlement of the claim arising out of her death, the children, or some of them, paid their mother's funeral bill in the amount of $600.00.\\nAll parties agreed that the amount of $600.00 should be deducted from the total amount received, before division was made between the claimants; and it was understood by all parties that the amount of $600.00 should be refunded to the children who paid the funeral bill, or to their counsel.\\nA dispute arose as to the manner of dividing the balance. It was settled by the agreement that the division should be on a per capita basis between the surviving husband and the eight children.\\nIn the meantime by writ dated January 26, 1959, the eight children had brought suit against Orrin Knight in his capacity as administrator, and his attorney, John F. Fitzgerald, to recover under a general money count the sum of $2,133.36 alleged to have been paid to the defendants under the provisions of Section 10, Chapter 165, supra, for the use of the plaintiffs. No specifications were filed to indicate how the plaintiffs had arrived at the amount they were suing for. Included in the declaration was a count claiming interest from June 13, 1958, this date presumably being the one when the settlement of the claim of Mrs. Knight's estate was effected.\\nBy agreement, the action was referred to a single referee with the right of objections to the acceptance of his report reserved by both parties.\\nBy report filed April 15, 1960, the referee found for the plaintiffs in the sum of $2,133.33, without interest. The docket shows that on the same date, a Justice of the Superior Court entered an order of acceptance, upon agreement of the parties. It is further recorded that judgment was rendered simultaneously.\\nWithin a few days thereafterwards, the plaintiffs in this action (or some of them) brought suit against the defendants in this action to recover the amount of the funeral bill. The defendants, being of the opinion that the- question of the funeral bill had been litigated in the prior action, filed a motion on May 2,1960, praying that the referee file a supplemental report indicating his findings of fact and conclusions of law.\\nPursuant to this motion, the referee filed a supplemental report in which he outlined the facts of the prior litigation in detail.\\nHe indicated that he arrived at his finding by the following process of arithmetic:\\n\\\"Total amount recovered 3000.00\\nLess: Counsel fee 750.00\\n2250.00\\nFuneral bill (Paid by Plaintiffs) 600.00\\nRemaining for Distribution 1650.00\\nOrrin Knight \\u20141/9 of $1650.00 183.33\\nPlaintiffs' share of Distribution 8/9 of $1650.00 . 1466.67\\nReimburse Plaintiffs for paying Funeral bill 600.00\\nTotal Due Plaintiffs $2066.67\\\"\\nThis supplemental report was filed on May 13, 1960. Notice of intention to object to its acceptance was filed by counsel for the plaintiffs. Pursuant to this notice a hearing was set upon the matter and on June 9, 1960, all counsel being present and participating, a Justice of the Superior Court entered a ruling to the effect that the findings of fact were accepted.\\nThereupon the plaintiffs appealed and set forth the following as their statement of points on appeal:\\n\\\"1. The Court erred in allowing Supplementary Report of the Referee after the Referee's report had been allowed and judgment rendered thereon.\\n\\\"2. The Court erred in allowing Supplementary Report of the Referee after the Referee's report had been accepted, as it contained certain statements contrary to the declaration in the writ on which judgment had already been rendered.\\n\\\"3. That the Court erred in allowing Supplementary report of the Referee as the computation of amounts determined were determined by including payment of funeral expenses by Defendants, which in fact have never been paid by said Defendants.\\n\\\"4. That the Court erred in allowing Supplementary report of Referee because it was contradictory to judgment already obtained, and is detrimental to a pending suit for reimbursement to Plaintiffs for payment of the funeral bill which Defendants neglected to pay.\\n\\\"5. That the findings of the Court were clearly erroneous.\\\"\\nWhile the ostensible issue is the supplemental report, we are convinced that the real issue raised by counsel for the plaintiffs is one of division of counsel fees.\\nThat the real bone of contention relates to the fees charged by the attorney for the administrator is clearly shown in brief of counsel for the plaintiffs in which he sets forth the issues as follows:\\n\\\"1. Whether attorneys' fees should have been deducted from the damages prior to distribution.\\n\\\"2. Whether attorneys' fees should be prorated between attorney for Plaintiffs and attorney for Defendant.\\n\\\"3. Whether the Supplementary Report could be an explanation of facts arrived at in the Referee's report which was. filed and accepted on account of basis of computation therein.\\n\\\"4. Whether the Court had a right to allow and accept the Supplementary Report after the original report had been accepted by agreement and judgment entered.\\\"\\nThat the basic contention of counsel for the plaintiffs relates to a division of fees is also indicated by a statement addressed to the General Committee of the Cumberland Bar Association where he says in his statement, made a part of the record, that the matter was being submitted \\\"for determination as to rights of parties and determination of fees.\\\" (Emphasis supplied.) It is indicated that the General Committee of the Cumberland Bar Association declined to render an opinion.\\nIt is conceded that the counsel fee of $750.00, arrived at by a charge of 25% of the collection, is fair and reasonable.\\nCounsel for the plaintiffs contends, that he is entitled to eight-ninths of the counsel fee and he advances the following arithmetical formula as the basis for division of the amount of $3,000.00 collected by counsel for Orrin. Knight:\\n\\\"Amount of settlement, $3,000.00\\nFuneral expenses paid by-children 600.00\\nBalance for division $2,400.00\\nDue Orrin Knight, 1/9 $ 266.67\\nDue children, 8/9 2133.33\\nTotal reimbursement to children $2,133.33\\nplus reimbursement for funeral expenses paid by them, 600.00\\n$2,733.33\\nplus interest from date of payment\\nFees Agreed upon as $750.00 to be divided 1/9 to Mr. Fitzgerald and 8/9 to Mr. Thompson.\\\"\\nWe revert now to the points on appeal specified by the plaintiffs.\\nUnder point No. 1, the plaintiffs allege error on the part of the court in allowing the supplemental report after the original report had been allowed \\\"and judgment rendered thereon.\\\"\\nThis point appears to be well taken. There seems to be no provision in the New Rules of Civil Procedure authorizing the action adopted by counsel for the defendants in filing a motion for a supplemental report indicating findings of fact and conclusions of law. It is alleged in the motion that it was being filed pursuant to the provisions of Rule 53 (e) (1) M. R. C. P. The only reference to findings of fact and conclusions of law to be found in this section of the rules is the first sentence which reads as follows:\\n\\\"The referee shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report.\\\"\\nWhile there seems to be no specific provision in the New Rules of Civil Procedure outlining the method to be used when it is desired that a referee make findings of fact and conclusions of law, a request for such findings must be made before the entry of the order of reference. See \\u00a7 53.7, Page 437, Field & McKusick.\\nSection 5, Chapter 121, R. S., 1954, as amended, specifies what action the court may take upon the report of a referee. It is provided that \\\"the court may accept, reject or recommit the report Consequently, it would seem that after a report of a referee has been filed, and before it has been accepted, if counsel for either side so desires, a request may be addressed to the court for its recommittal, and if granted the cause may be heard anew on such issues as appear pertinent and appropriate.\\nIn support of defendants' position that the motion for a supplemental report seeking to clarify the original findings of the referee was proper procedure, the case of Smith v. Putney, 18 Me. 87, was cited. In that case, after a jury verdict was rendered, but before it was affirmed, at the request of counsel for the defendant, the jury was asked and permitted to answer, how they had arrived at their verdict. This court saw no objection to this procedure, \\\"provided the inquiry be made at the time of giving in the verdict.\\\" (Emphasis supplied.)\\nHowever, the situation in Smith v. Putney, supra, is not analogous to the one in the instant case, because in this case judgment had already been rendered when the motion for a supplemental report was filed. We would see no objection to the application of the doctrine enunciated in Smith v. Putney, supra, to a case where the motion is filed prior to the acceptance of the report of a referee.\\nIn any event, there being no sanction, either by statute or by rule of court, for the procedure adopted in this case, it follows that the appeal of the plaintiffs upon this issue must be sustained.\\nIn view of this finding pertaining to point No. 1, it is unnecessary for us to discuss the remaining points on appeal.\\nHowever, we are constrained to state that failure on our part to give consideration to what we have already indicated is the basic underlying controversy would delay a prompt and equitable conclusion of the litigation in which the parties to this action are involved.\\nAlthough, in view of the opinion we have already expressed, we are not permitted to give consideration to the supplemental findings of the referee, we do not need this information in order to reach a determination of how the referee divided the amount of $3,000.00 collected by counsel for the defendants.\\nUpon this point, there is sufficient information in statements of counsel, made a part of the record, to permit us to conclude for ourselves by the process of arithmetic how division was arrived at. Under the theory of the defendants, division was made after deducting the funeral bill and the counsel fees. On the theory of the plaintiffs, division should be made by deducting the funeral bill and then dividing the balance per capita between the surviving husband and the eight children, and then adding the funeral bill to the amount claimed to be due to the children.\\nWe can reckon for ourselves that upon the theory of the defendants, the amount of $2,066.67 was properly due the plaintiffs. There is nothing in the record to indicate why this amount was increased to $2,133.33. Whether the difference is made up of interest or was arrived at by compromise is immaterial.\\nAction to recover damages under the Death Statute must be brought in the name of the personal representative of the person deceased. Such, is the directive contained in Section 10, Chapter 165, R. S., 1954.\\nThis provision of law presupposes that the personal representative shall be the one to retain counsel. In this case, Orrin Knight retained the other defendant as his attorney. As a result of his efforts, settlement of the claim and collection thereon was effected. He is the attorney who is entitled to the fee.\\nWe are cognizant of the fact that in cases where an attorney has been retained to press a tort claim, he may first properly deduct a reasonable fee from the amount of his collection before he remits to his clients.\\nThe manner in which the referee arrived at his finding was correct. Payment on the part of the administrator of the estate of Ida M. Knight to the plaintiffs of the amount of $2,133.33, will include the funeral bill and preclude successful action in any other litigation to recover a similar amount.\\nThe entry will be:\\nAppeal sustained, without costs.\"}"
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+"{\"id\": \"9485542\", \"name\": \"Alfred WAXLER v. CENTRAL MAINE POWER COMPANY\", \"name_abbreviation\": \"Waxler v. Central Maine Power Co.\", \"decision_date\": \"2001-09-20\", \"docket_number\": \"\", \"first_page\": \"1134\", \"last_page\": \"1134\", \"citations\": \"780 A.2d 1134\", \"volume\": \"780\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Maine Supreme Judicial Court\", \"jurisdiction\": \"Maine\", \"last_updated\": \"2021-08-10T22:10:32.380236+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.\", \"parties\": \"Alfred WAXLER v. CENTRAL MAINE POWER COMPANY.\", \"head_matter\": \"2001 ME 135\\nAlfred WAXLER v. CENTRAL MAINE POWER COMPANY.\\nSupreme Judicial Court of Maine.\\nSubmitted on Briefs: Sept. 19, 2001.\\nDecided: Sept. 20, 2001.\\nAlfred J. Waxier, Portland, For plaintiff.\\nR. Scott Mahoney, Central Maine Power General Office, Augusta, Attorney for defendant.\\nPanel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.\", \"word_count\": \"248\", \"char_count\": \"1554\", \"text\": \"PER CURIAM\\n[\\u00b6 1] Alfred Waxier appeals from an order entered in the Superior Court (Cumberland County, Mills, J.) granting Central Maine Power Company's (CMP) motion for a summary judgment on Waxler's claims for breach of a statutory obligation to provide electrical service, negligence, and conversion by wrongful interference. On appeal, Waxier contends that the Superior Court erred in concluding that CMP was not negligent and was, therefore, entitled to a summary judgment.\\n[\\u00b6 2] Waxler's suit was based on CMP's action in disconnecting electrical service from a property owned by Waxier after being ordered to do so by the Chief Electrical Inspector for the City of Portland. CMP's actions, complying with the mandate of the City of Portland's Electrical Code, \\u00a7 6-34, 6-57 and 6-71, were required by law. They were not negligent.\\n[\\u00b6 3] Waxler's suit in Superior Court and this appeal are both wholly frivolous. Accordingly, pursuant to M.R.App. P. 13(f), CMP is awarded treble costs for this appeal, plus $500 for their attorney fees for defending the suit and this appeal.\\nThe entry is:\\nJudgment affirmed. CMP awarded treble costs for this appeal and $500 towards their attorney fees.\"}"
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