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show that this was error so prejudicial to should have been paid by Oliver, are entitled, the defendant as to require a new trial. in equity, to have Oliver's one-half of the Exceptions sustained. New trial granted. farm subjected to its payment. This right

is unaffected by the discharge of record of

the mortgage. It may be treated in equity (97 Me. 283)

as still subsisting for the protection of BenLOOK v. HORN et al.

jamin and Martin, or Oliver's one-half may (Supreme Judicial Court of Maine. Jan. 21, be regarded as subject to a lien for the 1903.)

amount paid on the mortgage for Oliver's MORTGAGE-RENTS AND PROFITS–PAYMENT benefit. In no event can the plaintiff, as BY ONE JOINT MORTGAGOR--REIMBURSE

Oliver's grantee, recover rents and profits MENT-EQUITABLE LIEN. 1. Where a mortgage is discharged on pay

until Benjamin and Martin have been reimment made by one of the joint mortgagors, or

bursed their payment for Oliver, either from his successor in interest, it may be treated in the rents and profits of Oliver's one-half, or equity as still subsisting for the protection of

in some other manner. the party making payment, or the delinquent's share in the mortgaged premises may be re

It is very clear from the evidence that garded as subject to a lien for the amount paid the net profits from the farm for the time on the mortgage for bis benefit.

covered by plaintiff's claim have been little, 2. In no event can the grantee of the delin

if anything, in excess of necessary repairs quent recover rents and profits until the parties making payment of the mortgage have been

and taxes-certainly wholly insufficient to reimbursed the amount paid for the delinquent, reimburse the payment for Oliver on the either from the rents and profits of the delin

mortgage. Whatever net profits defendants quent's interest in the premises, or in some other manner; and the net profits received may

may have received from one-half of the farm, be held towards reimbursement.

they are entitled to hold towards their reim(Official.)

bursement. Until that is accomplished, plainReport from Supreme Judicial Court, Som

tiff can have no claim upon the rents and erset County.

profits. Action by Charles V. Look against Martin

Judgment for defendants. Horn and others. Case reported, and judgment for defendants.

(97 Me. 375) Assumpsit for rents and profits of one-half

STATE v. NADEAU. of a farm in Fairfield formerly occupied by Benjamin Horn as a homestead, for the six

(Supreme Judicial Court of Maine. Jan. 7,

1903.) years immediately preceding January 26, 1901.

INTOXICATING LIQUORS-ILLEGAL TRANSPOR

TATION-ARREST. Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, ing illegally transported on September 17, 1901,

1. Intoxicating liquors were seized while beand SPEAR, JJ.

and a complaint was made against the defend

ant therefor six days later, when, a warrant F. L. Ames, for plaintiff. S. J. and L. L

was issued for his arrest. The defendant was Walton, for defendants.

arrested on October 16th-29 days after the seizure, and 23 days after the warrant for his

arrest was issued. STROUT, J. On March 31, 1876, Benjamin

Held, that the warrant was served within a Horn and Oliver R. Horn received convey reasonable time. ance of a farm in Fairfield from Samuel 2. The provisions of the statute (Rev. St. C. Kimball, and on the same day the Horns

27) known as the “Search and Seizure Pro

cess, and requiring an immediate arrest, do mortgaged the farm to Kimball to secure the

not apply to a case like this. payment of $534.50 of the purchase money.

(Official.) Benjamin occupied the farm thereafter, except a piece conveyed to his son Calvin, till

Report from Supreme Judicial Court, Anhis conveyance to his son Martin, one of the

droscoggin County. defendants, on May 12, 1898, since which

Alphonse Nadeau was indicted for illegal time Martin his been in possession, Benja

transportation of intoxicating liquors. Case min and his son paid the mortgage to Kim- reported. Judgment for the state. ball, and had it discharged of record on Prosecution under Rev. St. c. 27, 8.31, for January 23, 1895. Oliver never paid any the illegal transportation of intoxicating liqthing and never occupied the farm. Oliver uors. The defendant was convicted of the R. Horn, by deed of January 27, 1881, under offense in the Lewiston municipal court, and took to convey one-half of the farm to the took an appeal to this court at nisi prius, sitplaintiff; but, the mortgage to Kimball being ting January, 1902. After the evidence was then in force, Oliver's deed conveyed only his taken out in the court below, it was agreed one-half of the equity of redemption from to report the case to the law court for deterthat mortgage.

mination of the question as to whether the The plaintiff seeks in this action to recover arrest of the defendant was not unreasonably one-half of the rents and profits of the farm delayed. from January 26, 1895, to January 26, 1901. Argued before WISWELL, C. J., and

Benjamin Horn and his sons, having paid STROUT, SAVAGE, POWERS, PEABODY, that portion of the Kimball mortgage which and SPEAR, JJ.

W. B. Skelton, Co. Atty., for the State. J. rant to issue to search for Intoxicating liquors. G. Chabot, for defendant.

The complaint is against the particular liq.

uors or deposits at the date of the complaint, SPEAR, J. bis case comes to the law and the warrant, under the Declaration of court on report, and grows out of a complaint Rights, § 5, can be issued against these liqfor the illegal transportation of liquors, and uors only." Weston v. Carr, 71 Me. 356; the proceedings following therefrom. It is State v. Riley, 86 Me. 144, 29 Atl. 920. “The admitted that the respondent, at the time al. officer is expressly directed by the warrant leged in the complaint, was engaged in the and the statute to 'make immediate return of illegal transportation oľ liquors. The liquors said warrant and to have the respondent described in the warrant were seized on the forthwith’ before the magistrate for trial." 17th day of September, 1901. The complaint State v. Guthrie, supra. charging the respondent with the illegal trans The reason that underlies the prohibition of portation of the liquors seized was made on unreasonable search and seizure, the protecthe 23d day of September, 1901, six days aft tion of the people against oppression, is tbe er the seizure, and the warrant for his arrest very reason that urges the issue of a warwas issued on the same day. The respondent rant for the apprehension of a person charged was arrested on the 16th day of October, 29 with the commission of a criminal offense. days after the seizure, and 23 days after the Judgment for the state, warrant for his arrest was issued.

The stipulation of the parties is: “If the law court are of opinion that the warrant was

(97 Me. 286) served within a reasonable time, judgment is

SMALL V. ROSE. to be rendered for the state, no other question

(Supreme Judicial Court of Maine. Jan. 29, being in issue; otherwise, complaint quash

1903.) ed."

BILLS AND NOTES-EVIDENCE-STATUTE OF The state must prevail.

LIMITATIONS - PARTIAL PAYMENTS - IN The report of the evidence does not war DORSEMENTS-BOOKS OF ACCOUNT-ENTRIES

AGAINST INTEREST. rant the finding that the officer was either

1. The provisions of Rev. St. c. 81, § 100, do dilatory or negligent in obtaining or serving

not prevent the admission, in accordance with the warrant. The case shows that the of. established rules, of evidence of payments to fense with which the respondent was charged

take actions on bills and notes or other writcomes within the general principles of law

ings out of the statute of limitations, but mere.

ly exclude indorsements or memoranda made applying to criminal offenses. The respond thereon by or in behalf of the party to whom ent bad violated the criminal law of the state. the partial payments purport to have been His offense was not barred by the statute of

made.

2. Entries in account books of a deceased teslimitations. He was properly apprehended,

tator of payments received by him on bills or tried, convicted, and fined. The cases cited notes, supported by the executor's suppletory in the defendant's brief do not apply to the

oath, but made after the statute of limitations case at bar. The warrant in each case was

has run, are not entries against testator's inter

est; it being to his advantage to show a part issued under the statute relating to search

payment on the note. Such entries are not ad. and seizure. The search and seizure process missible to prove the fact of payment. is in a class by itself. The Constitution of (Official.) the state has so placed it. The Bill of Rights,

Exceptions from Superior Court, Cumber§ 5, provides that the people shall be secure

land County. in their persons, houses, papers, and posses

Action by Henry M. Small against Albert sions from all unreasonable search and sei.

H. Rose. Verdict for plaintiff, and defend. zure; and that no search warrant shall issue

ant excepts. Exceptions sustained. without a special designation of the place to be searched and the thing to be seized. In

Assumpsit on a promissory note given by alluding to the constitutional prohibition, our

defendant to plaintiff's testator. Defendant court, in State v. Guthrie, 90 Me. 448, 38

plead the general issue and the statute of Atl. 368, say: "The danger of its abuse has

limitations, by way of brief statement. At been so clearly apprehended in this country

the trial the plaintiff introduced, supported that constitutional barriers have been erect.

by the suppletory oath of the executor, a ed against it. • • Nothing in the com

small account book, found among the effects

of the deceased, wbich contained, among oth. plaint or warrant or in law concerning them indicates that, after complaint is made, the

er entries in his handwriting, under the warrant is to be held by the magistrate or

head of money received, an item of $25 from officer as a weapon to be used at his discre

A. H. Rose, March 25, 1897. To the introtion. The very nature of the search warrant

duction of this evidence the defendant seaindicates that when complaint is made the

sonably objected, but the same was admit warrant (if issued at all) should be promptly

ted, and the defendant alleged exceptions. issued and executed. The purpose is to seize

Argued before WISWELL, C. J., and EMthe thing alleged to be at that time in the

ERY, WHITEHOUSE, STROUT, PEABODY, place to be searched, to prevent its removal

and SPEAR, JJ. or further concealment.

Especially F. H. Haskell and A. F. Moulton, for is this so when complaint is made for a war. plaintiff. F. W. Brown, Jr., for defendant.

PEABODY, J. This case is on exceptions ment on the note. This destroys entirely of defendant to the admission of evidence. the probative force of the written memoIt was an action on a promissory note, bear randum, and makes it inadmissible in eviing date December 21, 1882, given by the dence to prove the fact of the payment. defendant to one u. W. Small, plaintiff's tes Rose v. Bryant, 2 Camp. 321; Wood on Limtator.

itations, $ 115; 1 Greenl. Evidence, $ 149; The defense is the statute of limitations. Libby v. Brown, 78 Me. 492, 7 Atl. 114. There were certain indorsements on the note, Exceptions sustained. but not in the handwriting of the defendant, and it does not appear that evidence was introduced tending to show any pay

(97 Me. 281) ment on the note prior to March 25, 1897.

HAUGH v. PEIRCE. As evidence of a payment made by the de (Supreme Judicial Court of Maine. Jan. 10, fendant on that date, the plaintiff intro

1903.) duced, supported by his suppletory oath, the

DOWER-VESTED RIGHTS-EQUITY, small account book found among the effects 1. While before assignment a widow's right of the deceased, in which was written in

of dower is a mere right, to be enforced in such

manner as the law should prescribe, after asthe handwriting of the deceased, under the

signment in any legal mode, whatever is lawheading of money received, and under the fully assigned to her as her dower becomes a date of March 25, 1897, the following words:

vested estate, vested in form as well as in "A. H. Rose, $25.00.” This corresponded in

substance, which she cannot be compelled to

sell or commute. date and amount to one of the indorsements

2. Where there is lawfully assigned "in a on the back of the note. To the admission special manner" to a widow, as her dower, out of this evidence the defendant seasonably

of a parcel of real estate, “the sum of two objected and excepted.

hundred dollars, to be paid annually from the

rents and profits of that parcel," as a third Rev. St. c. 81, $ 100, provides that “no in part of the rents and profits, under Rev. St., dorsement or memorandum of such payment c. 65, § 3, she thereby acquires a vested right made on a promissory note, bill of exchange.

to an annuity of $200 from that real estate,

which she cannot be compelled to release for or other writing, by or on behalf of the party

any consideration. to whom such payment is made or purports 3. The owner of the real estate out of which to be made, is sufficient proof of payment to

dower has been so assigned cannot maintain take the case out of the statute of limita

a bill in equity to have the real estate sold

free of the widow's dower, and the present tions." This statute does not affect the ad.

worth of the widow's annuity appraised, and missibility of other evidence tending to show paid to her out of the proceeds. such payment, where the admission of such (Official.) evidence does not conflict with the estab

Report from Supreme Judicial Court, Eq. lished rules. Sibley v. Lumbert, 30 Me. 233.

uity Term, Waldo County. The entry in question was part of a private

Bill by Thomas Haugh against Carrie E. cash account in the back of a small diary.

Peirce. Case reported, and bill dismissed. The account was kept with apparent regularity, and the entry would have probative

Bill in equity, praying to have real estate force to remove the statute bar if it was

sold free of the widow's dower, to have the apparently made by the testator against his present worth of the dower appraised and interest.

paid to her out of the proceeds. The dower So far as appears from the case as pre

was assigned in a special manner, to wit, sented, there was no evidence to overcome

the sum of $200 annually from the rents and the presumption which arises from the date profits, under Rev. St. C. 65, $ 3. of the note that it had become outlawed

The defendant, besides her answer, filed a long prior to the date of the memorandum

demurrer, and the case was reported to the of March 25, 1897; so that, in considering

law court. the effect of a cash entry of that date, we

Argued before WISWELL, C. J., and EM. must have in mind that at the time a pay

ERY, WHITEHOUSE, STROUT, SAVAGE, ment on account of the note would have the

and POWERS, JJ. effect not merely of reducing the indebted J. S. Harriman and Peregrine White, for ness, but also of reviving the note and mak- plaintiff. W. P. Thompson, for defendant. ing it enforceable against the defendant.

Had the entry in the cashbook been made EMERY, J. The case is this: Robert F. a reasonable time before the note became Peirce died in 1892 seised of a parcel of real outlawed, its effect being an admission of estate in Belfast upon which was a brick the reduction of the debt, it might have been block. It appearing to the commissioners admissible if offered in evidence by the plain appointed by the probate court in November, tiff as an entry made by a person since de 1892, to assign the widow's dower that a di. ceased, apparently against his interest. Tay. vision of said parcel by metes and bounds lor v. Witham, 3 Ch. D. 605; 1 Greenl. Evi could not be conveniently made, they assigndence, f 147. But after the statutory bar ed to the widow (the defendant in this case) had become complete, it was clearly not her dower therein "in a special manner as against his interest. but, on the contrary, of a third part of the rents and profits," to bis great advantage, to show a part pay. and fixed as such third part "the sum of two

hundred dollars, to be paid annually from 2. The negligence of the plaintiff cannot be the rents and profits of said brick block." considered as proximately contributing to the

injury, if it is independent of and precedes Rev. St. C. 65, § 3. This action of the com

the negligence of the defendant, and when the missioners, we assume, was confirmed by the defendant, by the exercise of ordinary care, probate court.

might have avoided the injury. The plaintiff afterward, in 1896, acquired

3. A requested instruction, which withdraws

that question from the jury, or which is not title to this parcel of real estate by pur

applicable to the facts of the case on trial, may chase, “subject (in the language of the deed properly be refused. to him] to an annuity of two hundred dol 4. When the jury have been instructed in lars to the widow of Robert F. Peirce de

full and appropriate language as to what con

stitutes due care and contributory negligence, cea sed, during her life.” Later still (in it is not error to decline to instruct them fur1899) the brick block on the lot was destroyed ther upon those subjects. by fire, since which time the lot has remain

5. It is not an expression of opinion upon an

issue of fact arising in the trial of a case for ed vacant, and incapable, in its present con

the presiding justice to state his recollection dition, of yielding any income. The plaintiff, of the testimony. He has the same right to call the owner, has now brought this bill in equity the attention of the jury to the existence and against the defendant, the widow, praying

nonexistence of testimony. If he is wrong in

his recollection, his attention should be called (1) that the said real estate be appraised, and to it, and the error corrected at the time. the interest of the defendant therein be ascer (Official.) tained; (2) that the real estate be sold, and

Exceptions from Supreme Judicial Court, the proceeds be divided between the plain

Sagadahoc County. tiff and the defendant according to their

Action by Fred N. Coombs against Wilrights in the premises. The defendant de

liam W. Mason. Verdict for plaintiff. Mo murred, and also answered, saying, among

tion for new trial and exceptions by defendother things, that she did not wish to part

ant. Overruled. with her rights as assigned to her.

The bill cannot be sustained. Its plain Action on the case to recover damages of purpose is to compel the defendant to com

defendant for injuries received by plaintiff mute her annuity for a present specific suin,

while he was riding upon the forward step of and release the land from the charge thus a street car in the city of Bath on the evenimposed upon it. There is no law in this ing of the 29th day of December, 1900. The state requiring her to do so. Before assign

plaintiff claimed that as he was so riding, ment her dower was a mere right, to be his left foot resting upon the forward plat. enforced in such reasonable manner as the form, his right foot resting upon the lower law might prescribe. After assignment iu step leading to that platform, the hub of the any statutory manner, whatever was la bind wheel of a jigger belonging to the defully assigned to her as her dower, whether fendant, and under the care of a servant of one-third of the land or one-third of the the defendant, caught a portion of the calf rents and profits, or, as in this case, a spe

of plaintiff's right leg which was then and cial sum per year, payable out of the land there exposed by reason of its resting upon as one-third of the rents and profits, became said lower and projecting step, and crushed hers absolutely for her life, her vested es a portion of the muscles of his leg against tate for life, vested in form as well as in the end of the projecting horn or end of substance. She cannot be compelled to sell cross-beam which forms the extreme end of it or change its form against her will. It said platform and projects beyond the car must remain in its present form a charge

fender which it supports, thereby causing an upon the land until extinguished by her injury to the exposed limb. death, or by her voluntary release, whatever

The defense was twofold: First, it was the inconvenience to the landowner. This

not the defendant's cart which caused the the plaintiff should have known when he injury; second, the plaintiff, by voluntarily bought the land. Any legislation since this riding in such an exposed position, and redower was assigned cannot affect her estate maining there when he knew, or should have which then vested.

known, of the proximity of the cart and the Bill dismissed, with costs.

natural dangers of his position, was guilty of such contributory negligence as to bar his.

recovery. (97 Me. 270)

Argued before WHITEHOUSE, SAVAGE, COOMBS V. MASON.

POWERS, PEABODY, and SPEAR, JJ. (Supreme Judicial Court of Maine. Jan. 1,

F. E. Southard, for plaintiff. C. W. Lar1903.)

rabee and E. C. Plummer, for defendant. NEGLIGENCE-CONTRIBUTORY NEGLIGENCEINSTRUCTIONS TO JURY-EXPRES

SION OF OPINION. 1. In an action for personal injuries alleged

POWERS, J. Case for negligence. The to have been caused by the defendant's negli evidence establishes the following facts: On gence, the question of the plaintiff's contribu December 29, 1900, at about 4:40 p. m., the tory negligence is to be determined by the jury,

plaintiff boarded an electric car in Bath for and not by the court.

the purpose of going to his home. At the ( 1. See Negligence, vol. 37, Cent. Dig. $ 333.

time the seats, aisle, front and rear plat

car.

forms of the car were full of passengers. ed. The presiding justice, after defining The plaintiff secured a position at the for what would constitute contributory negliward end of the car, and stood with his left gence, and stating his recollection of the evifoot on the platform, and his right foot upon dence in regard to any change of position on the single step of the car, facing the motor the part of the plaintiff, expressly told the man. A few minutes later, while the car was jury "you will remember it, but that is for standing upon the straight part of a siding you to say." The jury must have underopposite the Phænix Hotel, waiting to pass stood from the entire language of the charge another car, a heavily loaded team of the that all questions as to the plaintiff's posidefendant, consisting of a span of' horses tion and movements at the time of the inand double jigger, driven by his employé, jury were submitted to their determination, passed, going in the same direction as the and that the presiding justice was not excar, and between it and the sidewalk. The pressing any opinion upon an issue of fact, hub of the left hind wheel of the jigger scrap but simply stating his recollection of the evied along the side of the car, and, the plain. dence. If he was wrong in this, it was the tiff still remaining in the same position, duty of defendant to call his attention to it caught the calf of the plaintiff's right leg, at the time, and have the error rectified then pushing it against the fender of the car, and and there. A party cannot sit by in silence, inflicting serious injuries. The car was a and afterwards avail himself of such a miscut-under, and the step on which the plain statement of the evidence as ground for extiff's foot rested was about 3 inches inside ception. An examination of the case, howthe extreme outside edge of the car, but pro ever, shows that the presiding justice was jected about 594 inches beyond the outside of right in uis recollection. There is not in the the car at the sills. The extreme width of

case either testimony, or circumstance from the hind wheels of the jigger was 8 feet from which it can be inferred, that the plaintiff nut to nut, and the driver was seated 12 feet changed his position as the team was passforward of the rear axle. From the outer

ing. The uncontroverted evidence is that he edge of the step upon which the plaintiff was was, at the time of the injury, in the same standing to the edge of the sidewalk there position as when he originally boarded the was over 11 feet of the wrought and trav

There was, therefore, no issue of fact eled way, unobstructed, and in good condi- arising in the case in regard to it. The statetion.

ment that the evidence did not support the Exceptions. The defendant requested the proposition did not require the qualification following instructions:

of it which the presiding justice immediate(1) “The objective point of the horses and

ly gave. He had the same right and duty to jigger was to pass the car, then standing on call the attention of the jury to the existthe siding; and if, while they were passing ence and nonexistence of evidence. If a parthe car, plaintiff exposed his person or bisty request instructions not applicable to the limbs beyond the lines of the body of the facts of the case, he cannot complain that car, he was guilty of contributory negligence, the jury is told that there is no evidence upand cannot recover."

on which to base them. The presiding justice said: "I give you (2) "A passenger who rides upon the platthat, but the testimony does not sustain the form of a car necessarily takes upon himself proposition. If he put himself in a position of the duty of looking out for and protecting danger as the horses were passing, so that it himself against the obvious and usual perils became a part of the act of collision, and it of his position; while a person standing upon was impossible to tell whether the collision the steps of a car is obligated to a still greatwas caused by the act of the plaintiff or the er degree of care, since in such a position he defendant's servant, and the plaintiff's change is subject not only to the same dangers as of position was a negligent act, that would be when standing upon the platform of a car, contributory negligence. But the evidence but is liable also to injury from collision here, as I understand it, and you will re with vehicles." This instruction was propmember it, was that he kept the same posi- | erly refused. Whatever may be thought of tion that he occupied from the time he got on it in an action against a street railway com. the car, and that there was no sudden change pany who, when its cars are full, permits, -but that is for you to say-just as the horses and in legal effect invites, passengers to ride were passing." The requested instruction upon its platforms, it would have been mismight well have been refused, as the ques. | leading in the present case. That a team, tion whether the plaintiff was guilty of con with ample and unobstructed room to pass, tributory negligence was to be determined by and three feet to spare, going at a walk, the jury, and not by the court. It is urged, would be driven against the plaintiff's perhowever, that by giving the instruction, and son, was not an obvious and usual peril. then stating that “the testimony does not Wherever he was riding, the plaintiff was sustain the proposition,” the presiding justice bound to prove affirmatively that he was in invaded the province of the jury, and ex the exercise of due care at the time, such pressed an opinion upon an issue of fact aris. care as persons of ordinary prudence exering in the case. This language was qualified, cise under similar circumstances, and that however, by that which immediately follow no negligence on his part proximately con.

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