the bill of sale to Mr. Duncan. Duncan never went to the mill but the receiver continued in possession and operated the mill up to the 1st of November, 1901, when it was leased by him and operated by his tenants until the ninth day of November, 1901, when the mill building and contents were entirely destroyed by fire. The receiver furnished the defendant a proof of the loss December 13, 1901.

Previous to the loss by fire, at the request of the receiver made to the agent who negotiated the policies, the total insurance was reduced to fifteen thousand dollars and the policy in suit was modified so as to cover four hundred dollars on the buildings, four hundred and sixty-six dollars and sixty-seven cents on the machinery and one hundred and thirty-three dollars and thirty-three cents on lumber and material. 417 Upon his application to the equity court the receiver was given permission to bring suit against the several insurance companies, and the suit under consideration was commenced April 3, 1902.

On the twenty-eighth day of November, 1902, on the petition of Duncan, the order and decree confirming the sale to him were vacated and rescinded and the one thousand dollars paid by him to the receiver was ordered to be repaid.

The policy is in the Maine Standard form and contains the provision that it shall be void, "if without the consent in writing or in print of the company, said property should be sold, or this policy assigned," etc. Our court has held that such a provision is valid: Waterhouse v. Gloucester Fire Ins. Co., 69 Me. 409. So the case depends primarily upon the legal effect on the policy of the receiver's sale and its confirmation by the court.

To avoid the policy under this provision the sale must be such as passed title in the property insured: Orrell v. Hampden Fire Ins. Co., 13 Gray, 431; Pitney v. Glen Falls Ins. Co., 65 N. Y. 6; Brabin v. Hyde, 32 N. Y. 519; Boston & Salem Ice Co. v. Royal Ins. Co., 12 Allen, 381, 90 Am. Dec. 151. There was no actual delivery of possession by the receiver to Duncan. In cases of the sale of personal property between individuals where there is no question in relation to the statute of frauds or rights of subsequent bona fide purchasers, or of attaching creditors without notice, the title may pass without delivery of the property: Dixon v. Yates, 5 Barn. & Adol. 313; Morse v. Sherman, 106 Mass. 430; Cummings v. Gilman, 90 Me. 524, 38 Atl. 538. But the validity of the judicial sales depends

upon somewhat different rules. By decree of the court the receiver was authorized and empowered to proceed to sell all the assets of the International Wood Company at public auction to the highest bidder, giving such notice of the time and place of the sale as to the court should seem reasonable and proper. The decree gave specific directions as to the notice of sale, that the sale should be subject to the approval of the court, that the receiver should make report to the court for confirmation and hold the proceeds subject to the further order of court. The auction sale was held September 16, 1901, according to the required notice, and the sale was made to Duncan, 418 he being the highest and only bidder. The receiver filed his report of the sale and it was confirmed by a decree of the court which, after reciting facts upon which it was based, concludes as follows: "Ordered, adjudged and decreed that said sale be approved and confirmed and that said William W. Mitchell, receiver, is authorized and directed to make, execute and deliver to said George F. Duncan all necessary bills of sale and assignments to carry said sale into complete effect, upon the payment to him by said Duncan of the amount of the purchase price according to the terms of sale." A bill of sale was prepared and executed by the receiver to Duncan on the day of the confirmation; which the evidence shows may have been handed to Duncan, but if so it was not retained, and no further payment of the purchase price was made by him. It is claimed. by the defendant that thus everything had been done to entitle: the purchaser to the property and the receiver to the purchase price. But we do not think that this is the legal result of the transaction. The authorities hold that until there has been a delivery of a deed of real estate sold at a judicial sale the title did not pass: Slowhidsky v. Phenix Ins. Co., 53 Neb. 816, 74 N. W. 270; Manhattan Ins. Co. v. Stein, 5 Bush (Ky.), 652; Haight v. Continental Ins. Co., 92 N. Y. 51; Marts v. Cumberland etc. Ins. Co., 44 N. J. L. 478. In these cases it may be assumed that the converse would be true, that the title would pass by the delivery of the deed and a compliance with the conditions of the sale. In judicial sales of personal property the execution of instruments of conveyance is a part of the requisites of the sales. The failure of the officer of the court to comply with statutory provisions or with the decree of an equity court ordering and confirming a sale would render it nonjudicial: Freeman on Void Judicial Sales, secs. 43, 44; Mason v. Ham, 36 Me. 573.

There is some conflict of testimony relative to the fact of delivery of the bill of sale to Duncan. If made at all it must have been only provisional. It was not such a delivery as was contemplated and directed in the confirmatory order. It was to be made by the receiver simultaneously with the payment to him of the price which he was to hold for further order of the court. Such delivery only was authorized or could have any legal effect to pass the title. This 419 conclusion would negative a complete sale; and a mere executory contract or inchoate sale resulting from the auction and the deposit of money by the bidder would not make the policy void under the forfeiture clause. The effect of the decree of the court vacating and rescinding the order of sale may be briefly considered. In Woodard v. Bullard, 27 N. J. Eq. 508, the court say: "The right of the court of chancery to set aside sales made by its officers and restrain the delivery of the deeds to purchasers cannot be doubted upon the proper case made": Campbell v. Gardner, 11 N. J. Eq. 423, 69 Am. Dec. 598. In Collier v. Whipple, 13 Wend. 224, where the deed had been delivered by the receiver to the purchaser the order of the chancellor for a resale, on appeal to the court of errors, was affirmed. Mr. Justice Nelson, in delivering the opinion of the court, said: "As to the deed it was taken subject to the jurisdiction of the chancellor over the sale."

The decree of annulment was based upon the finding as matter of fact, that the sale of Duncan had not been completed, that the title did not vest in him; and upon that ground the money paid by him at the time of making his bid was ordered returned to him. This certainly would determine the status of the title between the parties to the sale, and we think the validity of the decree cannot be impeached collaterally by the insurance company in this case: Brande v. Bond, 63 Wis. 140, 23 N. W. 101; Libby v. Rosekrans, 55 Barb. 202.

The plaintiff is entitled to recover the proportion of the loss sustained which the sum insured by the policy in suit, one thousand dollars, bears to the whole amount insured therein, fifteen thousand dollars. The evidence shows that the loss exceeded the whole amount insured.

Judgment for plaintiff for one thousand dollars and interest thereon from February 11, 1902.

An Insurance policy is not avoided by a sale of the property not fully consummated: Magoun v. Firemen's Fund Ins. Co.. 86 Minn. 486, 91 Am. St. Rep. 370; Hanover etc. Ins. Co. v. Brown, 77 Md. 64,

39 Am. St. Rep. 386. When the statute gives the debtor time for redemption, and permits him to remain in possession during that time, a sale of property at execution does not avoid the insurance thereon: Wood v. American etc. Ins. Co., 149 N. Y. 382, 52 Am. St. Rep. 733.

LANG v. MERWIN.

[99 Me. 486, 59 Atl. 1021.]

GAMBLING, What is.-It is not essential to gambling, under the statutes of Maine, that both parties shall stand to lose by the chance. It is enough that one of them stands to lose or win by chance. (p. 295.)

GAMBLING-Nickel-in-the-Slot Machines.-A slot machine into which a customer drops a nickel, and thereupon receives, in any event, a five cent cigar, and may receive an additional number without further payment, is a gambling device. (p. 295.)

Petition by the requisite number of legal voters of the town of Skowhegan against the tenant of a certain room to restrain him from holding it to be used as a place of gambling. The justice made the following findings of fact: "The defendant was possessor of a nickle-in-the-slot machine which he operated in his cigar-store. The machine, so far as necessary to describe it, consisted of a cylinder, in five sections, made so as to revolve on a shaft. Upon the outer surfaces of the sections were representations of playing-cards. When the sections were at rest five cards would be in sight. By pressing a lever the sections were made to revolve, and the mechanism of the machine was such that the sections revolved at different rates of speed, no two alike. The points at which the sections would severally stop and the combinations of cards which would thereby be left exposed to view was purely a matter of chance. The machine was played by those who resorted to the defendant's store according to the following scheme: The player deposited a 'nickel' in the slot of the machine and pressed the lever. The player in any event was entitled to a five cent cigar, and the defendant testified, and I find, that he might select any five cent cigar in the store. If three cards of a kind were exposed after the sections ceased to revolve, the player was entitled to two additional cigars; if a 'straight,' four additional cigars; if a 'flush,' six additional cigars; if a 'full hand,' eight additional cigars; if 'four of a kind,' ten additional cigars; if a 'straight

flush,' twenty-five additional cigars; if a 'royal flush,' fifty additional cigars. The player had the right to exchange two five cent cigars for a ten cent cigar. By this arrangement, the player for five cents placed in the machine received the same returns that he would if he had paid five cents on the counter. And he might receive more. If he received more at any play, it follows that the defendant lost on that play, which loss he could only recoup by the profit on the cigars sold thereby when the player won no extra ones. And the defendant expected to make such profit by an increased sale of cigars through the use of the machine. The machine was in operation on this plan three weeks, and the defendant estimated the results as amounting on the average to the sale of six five cent cigars for twentyfive cents." The justice dismissed the petition and the plaintiff appealed.

Butler & Butler, for the plaintiffs.

Forrest Goodwin, for the defendant.

488 EMERY, J. The defendant had in his cigar-store a slot machine of the kind, and operated in the manner, described in the finding of facts by the justice of the first instance. It is agreed by the parties that if using the machine in the manner described constituted "gambling" in the statutory sense of the word, then the defendant's cigar-store was resorted to for "gambling" within the purview of the statute upon which this petition in equity is based: Rev. Stats., c. 22, sec. 1.

The word "gambling" as a legal term has been variously defined by courts and legal authors. By some of these definitions both parties to the transaction in question must stand to lose by chance as well as to win. Judged by these definitions the transaction in this case does not constitute gambling, since the operator does not stand to lose anything by chance but only to win. By other definitions, however, it is not essential that both parties should stand to lose by chance; it is enough if one party stands to lose, or to win by chance. If such be the statutory meaning of the term then the transaction described does constitute gambling, since the operator stands to win something by chance, and the cigar dealer to lose by chance. In view of the conflict of authority the justice of the first instance dismissed the petition, practically pro forma, that the case might have upon appeal an authoritative determination. Our task now is to ascertain in what sense, the narrow or the broad,