and their finding in favor of the defendant was clearly warranted by the evidence.

But in the certificate of the organization of the "Bluehill Central Copper Mining Co." the name of the defendant appears as owner of 1,000 shares of the stock. Thereupon, it is contended by the plaintiff that this was, in legal effect, an assignment to the defendant, on the records of the corporation, of his proportional shares; that it operated as an actual delivery of the shares to the defendant, giving him all the rights of a stockholder; and that the delivery of the certificate was a question between the defendant and the corporation, over which the plaintiff had no control.

But it appears that the defendant did not sign the articles of association, or have any knowledge that his name was inserted as a stockholder. It does not appear that he ever signed any paper relating to the organization of the company, or was present at any meeting of the associates who organized it, or ever subscribed for any stock after it was organized. He never made the contract of membership which gave him the status of a shareholder in the corporation formed. Mor. Priv. Corp. §§ 45, 46, 55. He made a personal contract with the plaintiff, who undertook to deliver certificates of stock which would have constituted the defendant a shareholder. His failure to perform this undertaking was a failure of consideration for the note.

Finally, the plaintiff excepts to the following language in the charge: "It is not sufficient, in my judgment, that the plaintiff, when the corporation was formed, conveys to it the mining property, and the corporation, by a majority vote of its stockholders, should refuse to issue unassessable shares of stock, but voted to issue assessable shares," and expresses a fear that the jury were misled by this reference to assessable shares. It does not appear that the corporation ever voted to issue assessable shares, but this language of the presiding judge, considered in its relation to the context, was manifestly employed for the purpose of illustration, only, and was not calculated to mislead the jury. If the plaintiff thought otherwise, he should have called the attention of the presiding judge to the matter before the jury retired. Smart v. White, 73 Me. 332; State v. Wilkinson, 76 Me. 317, 323.

Motion and exceptions overruled.

PETERS, C. J., and VIRGIN, LIBBEY, EMERY, and FOSTER, JJ., concurred.

HODGE v. SAWYER. (Supreme Judicial Court of Maine. Jan. 27, 1893.)

BASTARDY-Venue-Practice-Waiver.

1. Bastardy complaints are civil actions, to be brought in the county where the complainant resides.

2. A plea to the merits in a civil transitory action waives all matters of abatement.

3. Motions to dismiss civil actions for defects must be filed within the first two days of the return term.

(Official.)

Exceptions from superior court, Cumberland county.

Action in bastardy by Hattie L. Hodge against Herbert T. Sawyer. Plaintiff had judgment, and defendant brings exceptions. Exceptions overruled.

The first exception is based on overruling the defendant's motion to dismiss the proceedings because the complainant's name was left out of the certificate of the oath of the complaint, although it appeared immediately before in the complaint, of which the oath is a part. The next exception was to the refusal of the presiding justice to instruct the jury that upon the testimony given at the trial the action could not be maintained. The defendant's contention herein was that the complainant was never a resident of the state, and had no right, under the statute, to prosecute a bastardy complaint. Clarence Hale, for complainant. Frank & Larrabee, for defendant.

The

HASKELL, J. Bastardy complaint. child was begotten in Cumberland county, in this state, where the defendant was resident and the complainant commorant. Before the child was born, the complainant, a minor, returned to her father's house, in New Hampshire, and was there delivered. Afterwards she came to Portland for the purpose and made this complaint, but has had no residence in this state since the child was born. The complaint alleges her residence to be in Cumberland county.

After motion to dismiss the complaint for causes that will be considered later, the case went to trial on the merits, presumably upon a plea of not guilty, although the record does not state that fact.

At the conclusion of the evidence the defendant requested the court to rule that "the action could not be maintained."

This is a civil action, (Mahoney v. Crowley, 36 Me. 486; Smith v. Lint, 37 Me. 546; Knowles v. Scribner, 57 Me. 495,) criminal in form, but not local, (Dennett v. Kneeland, 6 Greenl. 460.) It is to be brought in the county where the complainant resides. Rev. St. c. 97, § 3. The complaint shows jurisdiction of the court.

It is settled law that a plea to the merits. in a civil transitory action, waives all matters of abatement. Webb v. Goddard, 46 Me. 505; Demuth v. Cutler, 50 Me. 298; Brown v. Webber, 6 Cush. 560; Thornton v. Leavitt, 63 Me. 384.

In applying this rule a distinction must be made between cases over the subject-matter of which the court has no jurisdiction and cases of wrong venue or defective process. A prerequisite to a valid judgment is juris

diction of the subject-matter and of the persons of the parties, so that the "person and case may be rightly understood."

It

In the case at bar the complainant came within the jurisdiction of the court, and attached the defendant, who voluntarily submitted the cause to the jury on its merits. The court had jurisdiction of the subjectmatter, and the parties went to trial. is too late to object to the residence of the plaintiff, and, if it were not, the plaintiff's residence seems sufficient. Alley .v. Caspari, 80 Me. 234, 14 Atl. Rep. 12; Peabody v. Hamilton, 106 Mass. 217.

In local actions wrong venue may be pleaded in abatement, or taken advantage of on trial, but can only be set up as a defense once. Cassidy v. Holbrook, 81 Me. 589, 18 Atl. Rep. 290.

The defendant is a resident of this state. It would be unreasonable to hold that he was not amenable to our laws, because from distress the complainant sought shelter in her father's house, in another state,-the only place for her to go outside the almshouse.

Exceptions to the overruling of motions to quash in criminal cases do not lie. State v. Maher, 49 Me. 569; State v. Hurley, 54 Me. 563. In civil actions they must be filed within the first two days of the return term. The motion in this case was not filed until the eighth day of the eighth term. For any defect in the complaint, it came too late. No other defect appears upon the record. The declaration, filed before trial, appears plainly enough to have been sworn to by her.

Exceptions overruled.

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

STATE v. OSGOOD.

(Supreme Judicial Court of Maine. Jan. 27, 1893.)

NUISANCE-INDICTMENT-SUFFICIENCY.

An indictment that charges in the language of the statute the keeping and maintaining of a certain place, etc., used as a house of ill fame, to the common nuisance of the people, is sufficient.

(Official.)

Exceptions from supreme judicial court, Knox county.

Josie Osgood was indicted for maintaining a common nuisance by keeping a house of ill fame, and from an order overruling a demurrer to the indictment she brings exceptions. Exceptions overruled.

The defendant demurred to an indictment found against her, and which charges that she, "on the 13th day of April, in the year of our Lord one thousand eight hundred and ninety-one, and on divers other days and times between that day and the day of the

finding of this indictment, at Rockland, aforesaid, in the county of Knox, aforesaid, unlawfully did keep and maintain a certain place, to wit, a certain building occupied by the said Josie Osgood as a dwelling, situated on Main street in said Rockland, then and on said divers other days and times there used as a house of ill fame, then and on said divers other days and times there resorted to for lewdness and gambling, and which said place, being so used as aforesaid, was then and there a common nuisance. to the great injury and common nuisance of all good citizens of said state, against the peace of said state, and contrary to the form of the statute in such case made and provided."

Washington R. Prescott, Co. Atty., for the State. Mortland & Johnson, for defendant.

HASKELL, J. Rev. St. c. 17, §§ 1, 2, among other things, provides that "all places used as houses of ill fame" are common nuisances, and "whoever keeps and maintains such nuisance" shall be punished.

This indictment charges that the defendant did keep and maintain a certain place, to wit, etc., used as a house of ill fame, to the common nuisance, etc., in the precise language of the statute, and is sufficient. v. Stanley, 84 Me. 555, 24 Atl. Rep. 983; State v. Ryan, 81 Me. 107, 16 Atl. Rep. 406. Exceptions overruled.

State

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

HEYWOOD v. MAINE MUT. ACC. ASS'N. (Supreme Judicial Court of Maine. Jan. 27, 1893.)

ACCIDENT INSURANCE-CONDITION OF POLICYNOTICE OF INJURY.

An accident policy of insurance, stipulating that failure to notify the company of an injury for the space of 10 days after it is received shall bar all claim under the policy, is valid; and when such stipulation has neither been complied with nor waived the assured cannot recover upon the policy. (Official.)

Report from supreme judicial court, Hancock county.

Action on a policy of accident insurance by Warren A. Heywood against the Maine Mutual Accident Association. Heard on report. Judgment for defendant.

This was an action of assumpsit upon an accident policy, dated April 20, 1889, and under which the plaintiff sought to recover for injuries received by him April 23, 1899. Plea was the general issue, with a brief specification relying for defense, among other grounds, upon the two following conditions in the certificate or policy:

"Second. In the event of an accidental injury for which claim may be made under this certificate, or in case of death resulting

therefrom, immediate notice shall be given in writing, addressed to the secretary of this association at Portland, stating the full name, occupation, and address of the insured, with full particulars of the accident and injury; and failure to give such written notice within ten days of the occurrence of such accident shall invalidate all claims under this certificate; and, unless direct and affirmative proof of the same, and of the death or duration of total disability, shall be furnished to the association within one year from the happening of such accident, then all claims shall be waived and forfeited to the association."

"Seventh. All the provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this certificate, are conditions precedent to the issuing of this certificate."

The plaintiff claimed that the following letters and affidavit constituted due and legal notice and proof of his disability according to the terms and conditions of the certificate:

"C. H. Boothby, Esq., Portland, MaineDear Sir: Will you please send me a blank for indemnity claim, as I am quite seriously injured. Yours, truly, W. A. Heywood. Bucksport, May 19, 1890. (I.)"

"Portland, Me., May 19, 1890. W. A. Heywood, Bucksport, Me.-Dear Sir: Notice of your injury just received. Please inform me by return mail what your injury is, what you were doing at time of injury, and just how the accident happened. Also inform me what physician is attending you, and how long, in his opinion, you will be prevented from attending to the duties of your occupation by reason of your said injury. On receipt of your answer to each of the above inquiries I will mail you a blank on which to prove your claim. Very truly, C. H. Boothby, Sec'y. (Dictated.)"

"O. H. Boothby, Esq.-Dear Sir: Yours of the 27th at hand. In answer I will say that I am patiently waiting for the blanks which I asked for nearly two weeks since, and when they arrive I will be pleased to answer any of the questions contained in such blanks to the best of my ability. Yours, &c., W. A. Heywood. Bucksport, May 28, 1890."

"Portland, Me., May 27, 1890. W. A. Heywood, Bucksport, Me.-Dear Sir: My letter to you of the 19th instant remains unanswered. Will you kindly give it your immediate attention. We wish to know when you were injured, how, what the injury was, and its extent, to what extent you were disabled, what physician is attending you, and how long, in his opinion, you will be totally disabled. In my former letter I requested an immediate answer, and do not understand why you have not attended to it. truly, C. H. Boothby, Sec'y. (Dictated.)" To the Maine Mutual Accident Associa tion, of Portland, Maine. F. L. Shaw, President. C. H. Boothby, Secretary. Affidavit

Very

of Claimant. I, Warren A. Heywood, a resident of Bucksport, county of Hancock, and state of Maine. My occupation was merchant (office duty) and reporter. I am insured in the Maine Mutual Accident Association, of Portland, Maine, under policy No. 5,887, dated April 20th, A. D. 1889, in the principal sum of $5,000, in favor of Ida E. W. Heywood, (wife,) and $25.00 per week indemnity. On the 23d day of April, A. D. 1890, I was in Bucksport aforesaid, when and where I received bodily injuries by accidental means, to wit, while carrying a ladder from my house to a building on fire, some forty rods distant, (which building was owned by my mother,) I received a severe strain, which produced aneurism of the femoral artery in my right leg or groin, from which bodily injury I have been immediately, wholly, and continuously disabled from transacting any and every kind of business pertaining to my occupation as above stated, independently of all other causes which bodily injury has continued from said 23d day of April, 1890, up to the present time, during the space of fifty-two weeks, for which I hereby claim indemnity at the rate of $25 per week, which, when paid, shall be in full of all claim which I have or may have on account of the personal injuries aforesaid. This is the only policy I hold for indemnity. Warren A. Heywood."

"State of Maine, Hancock-ss.: April 20, A. D. 1891. Personally appeared the abovenamed Warren A. Heywood, and made oath to the above affidavit. Before me, O. F. Fellows, Justice of the Peace."

The declaration was in the usual form, and alleged notice of plaintiff's injuries as follows: "And he further avers that within ten days notice was given by him to said defendant after the happening of said accident, in writing, stating his name, occupation, and address, with full particulars of the accident and injury."

The defendant contended that the required notice was not given within 10 days of the occurrence of the accident, and the plaintiff contended there had been a waiver of that condition in the certificate, both by the letters, and from the further fact that the secre tary of the company visited the plaintiff at Bucksport, and had a conversation with him. At this conversation, Boothby, the secretary, asked the plaintiff how he was injured, what his injury was, and, upon being told that it was an aneurism, said that he did not know what it was, and did not know whether it came under the head of the policy or not, and asked him if he was willing to go before a physician, or to go to Bangor before a physician. In compliance with this request, Heywood did go shortly afterwards to Bangor, where he was examined by two physicians who were paid by the company. The view taken by the cour upon the defense thus stated renders a report of other defenses offered immaterial.