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Jury would be justified in coming to a conclu chise of the lessor during the period of the sion either way, as credence be given to the lease might be paid by the lessee and deducted

from the rent. Within a few months after the witnesses upon the one side or the other, it

execution of the lease the defendant purchased is the duty of the court to submit such an

for $92,215.10 certain parcels of land in Lewisissue to the jury, however firmly convinced ton adjoining, but without the location of the the presiding justice may be that there is

plaintiff's road. On this land railroad sidings

have been constructed and buildings erected, eino doubt as to where the truth lies. And,

ther leased to the patrons of the road, or built even where the surrounding circumstances upon portions of the premises leased to said merely make the story of a witness improb- patrons. The defendant took the title to this able, it is still the right of the litigant to

real estate in its own name, enjoys the income

from it, and for 23 years paid the taxes upon it have the issue thereby raised submitted to the without making any claim to deduct such taxes tribunal created by the Constitution and the from the rent. laws for the determination of such ques

Held that, construing the two indentures and

lease together, the defendant was not bound to tions.

acquire this land for the plaintiff; that it is pot But this cannot be so when the undisput the corporate property of the plaintiff, within ed circumstances show that the story told the true intent and meaning of the lease; and by a witness upon a material issue cannot

that the taxes so paid cannot be deducted from

the rent therein reserved. by any possibility be true, or when the tes

4. For 18 years the defendant paid taxes timony of a witness, necessarily relied up lawfully assessed upon the corporate property on, is inherently impossible.

In this case,

of the plaintiff, but did not deduct them from

the rent. as we have seen, the plaintiff, when he was

Held, that they cannot be deducted now; that 25 feet distant at least from the place of the the true intent and meaning of the lease is that

as fast as the taxes are paid they should be de. tunity to stop or turn aside, could have seen

ducted from the installment of rent falling due

next after such payment, and, if not deducted the approaching train if he had looked, as

then, they cannot be taken out at all. was his duty. As we have already said, he 5. The defendant has paid an annual franchise either did not look, or did look and saw the tax to the state, assessed upon the basis of the

gross earnings of all the leased lines operated approaching train, but attempted to cross,

by it within the state, divided by the total numregardless of it. Under these circumstances, ber of miles so operated. it does not help him that he testified that he Held, that this is not a tax upon the frandid look and did not see the train; nor did

chises of such leased roads alone; that it is ei

ther a tax upon the franchise of the defendant this testimony, under the circumstances of

alone, or upon its franchise and the franchise the case, raise an issue of fact which of its leased roads. If the latter, it is incapable should have been submitted to the jury. of apportionment in this case, and no part of Exceptions overruled.

the tax so paid can be deducted from the rent reserved.

(Official.) (97 Me. 261)

Report from Supreme Judicial Court, AnLEWISTON & A. R. CO. V. GRAND TRUNK

droscoggin County. RY. CO. OF CANADA.

Action by the Lewiston & Auburn Railroad (Supreme Judicial Court of Maine. Jan. 1,

Company against the Grand Trunk Railway 1903.)

Company of Canada. Case reported. De LEASE-INTERPRETATION RAILROADS-TAX

fendant defaulted. Damages to be assessed -FRANCHISE-CONTRACT-PAYMENT OF at nisi prius.

TAXES-DEDUCTION FROM RENT. 1. In determining the intention of the parties

Action to recover the sum of $18,000, with to a contract, the interpretation which they interest, alleged to be due from the defendthemselves by their own acts put upon it is justo ant to the plaintiff as rental for the plaintiff's ly entitled to great weight. 2. The court will not adopt a construction of

railroad, station grounds, buildings, sidings, a contract which does not comport with the in etc., and the property and estate of every terest of either party at the time it is made, un kind belonging to the plaintiff, appurtenant less expressed in clear terms. 3. The plaintiff agreed with the defendant to

to and designed for the purposes of maintainconstruct and build the plaintiff's road as de

ing and operating the plaintiff's railroad; the scribed in its charter, in a substantial and per allegation being that the rental is due under manent manner, with suitable station grounds the terms of a lease from the Lewiston & and buildings, and with the necessary sidings at its terminus in Lewiston. By a subsequent

Auburn Railroad Company to the Grand indenture the defendant agreed to construct and

Trunk Railway Company dated March 25, complete the railroad as already located and 1874. partially constructed in a substantial manner, The defense was based upon a provision in and in all respects in accordance with the previous agreements of the plaintiff. The next day

the lease that “all taxes which may be law. the plaintiff leased the road to the defendant for fully assessed upon the property or fran99 years, with full power to finish and complete chises of the lessors during the period of their it as previously agreed between the parties, and to make and construct any new buildings and

lease may be paid by the lessee, and, if so tracks necessary and beneficial to be used for

paid, shall be deducted from the rent herein .he working of the railroad. A rental of $9,000 covenanted to be paid by said lessee.” The was to be paid every six months, and the lease defendant claimed to have paid taxes, and provided that all taxes which might lawfully

to be entitled to deduction of taxes of the be assessed upon the corporate property or fran

nature referred to in the lease to an amount ( 1. See Contracts, vol. 11, Cent. Dig. $ 753.

considerably in excess of any rentals claim.

ed to be due, and that, with such deductions lessee was further authorized "to make or made, no balance was due the plaintiff.

construct any new buildings or tracks necArgued before EMERY, STROUT, POW essary and beneficial to be used for the workERS, PLABODY, and SPEAR, JJ.

ing of said railroad.” The lease provided that

all taxes which might lawfully be assessed H. W. Oakes, J. A. Pulsifer, F. E. Ludden,

upon the corporate property or franchise of W. H. Newell, and W. B. Skelton, for plain

the lessor during the period of the lease tiff. C. A. & L. L. Hight, J. W. Symonds, D. W. Snow, C. S. Cook, and C. L. Hutchin

might be paid by the lessee, and, if so paid,

they should be deducted from the rent coveson, for defendant.

nanted to be paid by the lessee.

Immediately upon the execution of the POWERS, J. Assumpsit for two semian lease the Grand Trunk Railway Company nual installments of rent, of $9,000 each, took possession of the property and franchises from June 10, 1898, to June 10, 1899, under a of the Lewiston & Auburn Railroad Comlease from the plaintiff to the defendant. pany, and proceeded to construct and com

The plaintiff corporation was organized un plete said railway in accordance with the der a special charter (Laws 1872, c. 88, ap agreement and obligation existing between proved February 10, 1872), which empowered the parties. While the work of construction it to locate, construct, and complete a rail was in progress, and before the completion road from some point in the city of Lewiston of the road, the Grand Trunk Railway Comto a point of connection with the Atlantic & pany, on July 17, 1874, purchased for the sum St. Lawrence Railroad, otherwise known as of $2,215.10 certain parcels of land, and on Nothe Grand Trunk Railroad, within the limits vember 20, 1874, another parcel of land for of the city of Auburn. It was also author the sum of $90,000, all situated in the city of .ized to lease its road, either before or after Lewiston, adjoining the original location of its completion, upon such terms as it might the Lewiston' & Auburn Railroad Company. be able to agree with the Grand Trunk Rail The defendant took and still retains the title way Company. August 27, 1872, the plain to all land so purchased. On this land certain tiff and defendant entered into an indenture, railroad sidings have been constructed, and by which, in consideration of the defendant's certain buiidings erected. Some of these agreeing, among other things, to take a lease buildings have been built by the defendant, of the road, when completed, for the term of and leased to the patrons of its leased road, 99 years, the plaintiff agreed to proceed with the Lewiston & Auburn Railroad. Others all diligence to construct and build the road, have been built by the patrons of said leased in a substantial and permanent manner, with road upon portions of said premises leased suitable station grounds and buildings, and to them by the defendant. The lease and the with the necessary sidings at the terminus at two written contracts named are all parts of Lewiston. March 24, 1874, the parties en the same transaction, and are to be construed tered into another written agreement, by together. which the defendant, in consideration of .. During the period of the lease, and pre$220,000 in cash and bonds paid to it by the vious to the date of the writ, the defendant plaintiff, agreed to "proceed with all dili has paid taxes to the amount of $31,427.75 gence to construct and complete the railroad, legally assessed by the city of Lewiston, from known as the Lewiston and Auburn Rail 1875 to 1898, inclusive, upon the land so purroad, as already located and partially con chased in July and November, 1874. These structed, in a substantial manner, and in all taxes the defendant claims the right to derespects in accordance with the obligations, duct from any rental accruing under the promises, and agreements” of the plaintiff lease. The question is, are they taxes upon contained in the indenture of August 27, 1872, the corporate property of the plaintiff ? In to which reference is expressly made.

other words, is the land so purchased by the The next day, March 25, 1874, the lease defendant, the title to which is now held by was executed. By it the plaintiff leased to it, and of which it has the exclusive use, benthe defendant "the railroad of the said Lew efit, and control, the corporate property of iston and Auburn Railroad Company as now the plaintiff, within the true intent and meanchartered, located and constructed, extend ing of the lease? We cannot believe that ing from the city of Lewiston to its point of such was the intention of the parties. It is junction with the Atlantic and St. Lawrence true that by the indenture of August 27, 1872, Railroad in the city of Auburn, together with the plaintiff agreed to construct and build all its station grounds and buildings, and all the road, with suitable station grounds and its rights of way and other easements and buildings, and with the necessary sidings at rights, and all the property and estate of the terminus at Lewiston, and that it was every kind belonging to said Lewiston and necessary to acquire a part at least of the Auburn Railroad Company, appurtenant to land purchased, in order to provide suitable and designed for the purpose of maintaining station grounds and necessary sidings and and operating said railroad,

with terminal facilities. When, however, this obfull power and authority to finish and com ligation to so construct and complete the road plete said railroad, as heretofore agreed be passed from the plaintiff to the defendant, as tween the respective parties hereto." The it did by the indenture of March 24, 1874,

it was therein confined to the road "as al rental under the lease. The first tax was asready located and partially constructed.” In sessed in 1875. The terms of the contract the first indenture there is no reference to must then have been fresh in the minds of any location, and, being executed but a few the parties. Yet this claim was allowed to months after the granting of the charter, it slumber for 23 years, until the amount paid is probable that none had been made. The in taxes on the property aggregated many road is therein described in general terms, times the amount of the semiannual rental, following the language of the charter, which Such conduct can be accounted for on only at that time afforded the best and only de one rational theory—that the parties never inscription of it. When, however, the second tended that this land should be considered the indenture was entered into, the road had corporate property of the plaintiff, within the been located and partially constructed. By true intent and meaning of the lease. it the defendant was to construct and com 2. It is admitted that from 1880 to 1898, plete the road, not in the vague and general inclusive, the defendant paid annual taxes terms of the charter, but, specifically, “the lawfully assessed by the city of Auburn upLewiston and Auburn Railroad as now lo on the corporate property of the plaintiff to cated and partially constructed.” These the amount of $1,585.25. The defendant words "as now located” modify all that fol claims that it should be permitted now to delows, including the reference to the prior duct these taxes; that its right to make such agreement, and must have been used for the deduction is a continuing one, and may be purpose of limiting the obligation of the de exercised at any time during the period of fendant within some bounds capable of be the lease. We do not think such was the ing readily ascertained and accurately de intention of the parties. They must have fined. If not so intended, they are meaning known that the taxes would be assessed and less. The construction contended for by the payable annually. The lease states that, if defendant wholly ignores them, and makes the taxes are paid by the lessee, they “shall its obligation apply to the road as described be deducted from the rent herein covenanted in the prior agreement. The same may be to be paid by said lessee," and the lessee said of the lease. It is “the railroad of the covenants to pay the rent semiannually. We said Lewiston and Auburn Company as now think this plainly imports that, as fast as chartered, located and constructed" that is the taxes were paid, they should be deducted leased to the defendant. There is no claim from the installment of rent falling due next that the lands purchased are within the loca after such payment, and, if not deducted tion of the plaintiff's railroad, or covered by then, they could not be taken out at all. any plans for its construction and comple The defendant could have desired at the time tion in existence at the time that the lease no other contract, for the sooner the tax was was executed.

deducted the better it would be for the lesAgain, it is difficult to believe that the par see. The plaintiff must have desired and inties ever understood or intended that the de tended to secure from the rental some kind fendant was bound to acquire for the plaintiff of a fixed and certain income for its stockland of the value of $92,000. If such an holders. The lease was for 99 years, and if onerous obligation were intended to be im the taxes could be allowed to accumulate for posed, we should expect to find it set forth half a century, more or less, and be deducted in clear and specific terms, and not left to any time at the will and pleasure of the lesinference from general language relating to see, it is evident that such great uncertainty other subjects. By giving force to the words in regard to the amount to be received on "as already located," the rights and duties of any pay day-in fact, in time as to whether the parties become fixed, certain, definite anything at all would be received at the the very object, we have no doubt, for which time for the next semiannual payment of the words were used. By disregarding them, rent-would most seriously and injuriously and adopting the construction for which the affect the market value of the defendant's defendant contends, its obligations would be stock. Such an intention, which does not vague, uncertain, indeterminate, a fruitful comport with the interest of either party to source of litigation-the very things which the lease at the time it was executed, should such solemn indentures are intended to avoid. be expressed in clear terms. . It cannot be

Perhaps, however, the most satisfactory, as deduced from the language here used. The it is the most conclusive, answer to the de case does not clearly show whether any of fendant's contention, is found in its own con these taxes were paid after the last payment duct. In determining the intention of the of rent was made on June 10, 1898. If so, parties to a contract, the interpretation which they should be deducted from the amount of they themselves by their own acts put upon the rental which fell due next after this pay. it is justly held entitled to great weight. The ment. defendant purchased the land with its own 3. From 1889 to 1893 the state assessed a money. It took and still retains the title in franchise tax against the plaintiff corporaits own name. For 23 years it paid taxes up. tion, which was paid by the defendant. The on this land, aggregating in all nearly $30, construction, already given to the lease above, 000, without making any claim that it was in regard to the taxes in Auburn, renders it entitled to have them deducted from the unnecessary to determine whether this tax

and from the result thus obtained the amount of the tax is determined by a scale of vary. ing percentages on the gross receipts per mile operated. No distinction is made between the receipts of one leased line and of another, or between these and those of the operating road. They all go in together to make up the total of gross receipts, which in like manner is divided by the total number of miles operated, to get the one sum which fixes the rate of taxation. In short, there is but one tax. It is assessed against the operator upon the basis of all its operations on all its operated roads within this state. Where the operator is a corporation, it must be regarded either as a tax upon its franchises alone, or as a tax upon its own franchises and those of its leased roads, and in the last case it is incapable of apportionment. In either event the defendant's contention cannot be sustained.

As the case leaves it uncertain whether the defendant has paid any taxes to the city of Auburn since June 10, 1898, and prior to June 10, 1899, which it is entitled to have deducted, the defendant should be defaulted, and damages assessed at nisi prius in accord. ance with this opinion,

So ordered.

was lawfully assessed. Not having been deducted from the rental falling due next after their payment, they cannot be deducted now.

From 1894 to 1898, both inclusive, the state tax has been assessed directly against, and paid by, the defendant. In making up the taxes for these years the gross earnings of all the lines operated by the Grand Trunk in this state, the Atlantic & St. Lawrence Railroad, the Norway Branch Railroad, and the plaintiff's road, have been taken together, and divided by their total mileage in Maine, to get the gross earnings per mile upon which to base the tax.

The question presented is whether the defendant's proportionate part of the tax constitutes a tas upon its francbise, within the intent and meaning of the lease. It is settled that the tax is a franchise tax. State v. M. C. R. Co., 74 Me. 376; Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 12 Sup. Ct. 121, 35 L. Ed. 994. Whose franchise is taxed-that of the lessor or of the lessee; of the plaintiff, who owns the road, or of the defendant, who operates it? Under the statute, the tax can only be assessed against the corporation, person, or association operating the road. “Every corporation, person or association, operating any railroad in the state under lease or otherwise, shall pay to the Treasurer of the state for the use of the state, an annual excise tax, for the privilege of exercising its franchises and the franchises of its leased roads in the state." Rev. St. C. 6, § 41; Laws 1897, c. 75. This tax was assessed against the corporation operating the road "for the privilege of exercising its franchises and the franchises of its leased roads." It is as plain as language can make it that this is not a tax upon the franchises of the leased road alone. The most that can be contended for is that it is a tax upon the franchises of both the lessor and the lessee, because the tax is assessed for the privilege of exercising the franchises of both. By what rule can it be apportioned in the present case? Not pro rata by the mileage, for upon that basis, after deducting the tax upon franchises of the plaintiff, the Atlantic & St. Lawrence Railroad, and the Norway Branch Railway, no tax would remain against the Grand Trunk for the privilege of exercising its franchises. Neither would it be just that the tax upon the franchise of one road should be increased or diminished, as would be the case here, by the amount of business done by other roads, in which it has no interest, and over which it has no control, simply because they are all operated by the same lessee. The manner in which the amount of the tax is determined precludes the conclusion that the franchises of the lessor and lessee are or can be taxed separately. Every railroad corporation must annually make a return to the railroad commissioners “of its operations." Rev. St. c. 51, $ 60. Iis gross transportation receipts thus returned are to be divided by "the number of miles of railroad operated” (Id. c. 6, § 42),

54 A,-48

(97 Me. 295) POOR v. CHAPIN. (Supreme Judicial Court of Maine. Feb. 9,

1903.) ATTACHMENT_CORPORATIONS-LEVY AND SALE ON EXECUTION-VESTED RIGHTS

-PRACTICE-TITLE ACQUIRED, 1. By Rev. St. 1883, c. 46, § 20, the real and personal property of any corporation is liable to attachment ou mesne process, and levy on execution, however it may have been under the earlier statutes.

2. By the repeal of the former limitations upon the right of attachment and seizure and sale on execution of lands of corporations, and the substituted provisions in Rev. St. 1883, it is evidence that the Legislature intended to subject corporate lands to the same liability to attachment on mesne process as those owned by natural persons.

3. After a first valid attachment of real estate has been made, followed by subsequent proceedings to judgment and sale according to law, a second attaching creditor takes nothing by purchase on his execution at a sheriff's sale, unless, perhaps, the right of redeeming from the sale on execution under the first attachment.

4. It is more necessary that the name of the party whose estate is attached should be correctly showu by the records in the registry of deeds than that of the attaching creditor.

5. Where the officer's return of an attachment of real estate filed in the registry of deeds gave the name of the defendant correctly, but gave only the initials to the plaintiff's name, hield, that this was a sufficient compliance with the statute to create an attachmeut lien.

6. After an action has been defaulted and continued for judgment, and is continued on the docket from term to term for several subsequent terms after judgment has been entered, and so remains on the docket in fact, it will be presumed that there is sufficient reason for its so remaining on the docket.

7. There is no vested right in a particular form of remedy. There cau be no cause of com

plaint if a substituted remedy is given which of “any turnpike, bridge, canal or other comdoes not abridge the usefuluess of that existing

pany incorporated by law with power to reat the time the right accrued. Held, that a sale of land on execution under Pub. Laws 1899, p.

ceive toll,” might be attached on mesne pro119, c. 115, is valid, although the action was

cess; but that statute included no other corbrought and the attachment made in 1896. poration, and, by section 13, lands of incor8. The plaintiff claimed title to land by vir

porated banks could be taken on execution tue of a sale on execution in favor of the National Hide & Leather Bank against the Mon

and sold, but an attachment of these on son Maine Slate Company made February 9, mesne process was not authorized. By the 1900. Real estate was attached on the writ in general repealing act in 1840 this statute was that case on March 23, 1898. The defendant claimed title to the same

repealed, and in the chapter relating to corland_by virtue of a sale on execution in favor | porations (Rev. St. 1841, c. 76, § 17) it was of Rodney C. Penney against the Monson provided that "the corporate property of any Maine Slate Company made June 11, 1900.

company incorporated in this state" "shall Real estate was attached on the writ in that

be liable to attachment on mesne process, case on September 14, 1896.

As the attachment in the Penney suit had and to be levied upon by execution," in the not been lost at the time of the sale ou execu manner provided by chapters 94, 114, and tion in that case, the sale related back to the

117. Chapter 94, $ 34, provided that “tbe attachment, and operated to carry the title then existing; and, as the attachment antedated lands belonging to any manufacturing corthat in the bank suit, held, that the defendant poration" "may be seized and sold on execuacquired title superior to that of plaintiff. tion." Chapter 114, § 30, provided that all (Official.)

real estate liable to be taken on execution acReport from Supreme Judicial Court, Pis cording to chapter 94 may be attached on cata quis County.

mesne process. Action by Joseph H. Poor against Albert

In the revision of 1857 all these statutes W. Chapin. Case reported, and judgment

were repealed, and it was then provided that for defendant.

"all real estate liable to be taken on execuArgued before WISWELL, C. J., and

tion" may be attached on mesne process. WHITEHOUSE, STROUT, SAVAGE, POW

Rev. St. 1857, c. 81, § 28. But in the chapERS, and PEABODY, JJ.

ter on corporations (chapter 46, § 32) it was

provided that an officer having an execution J. B. Peaks, for plaintiff. Henry Hudson against a corporation could not levy upon its and J. F. Sprague, for defendant.

real estate until he certified thereon that he

was unable to find personal property of the STROUT, J. This is a writ of entry to corporation. Under these provisions it may recover several parcels of land. Demandant well be doubted whether an attachment of claims title by virtue of a sale on execution

the land could be made on mesne process. issued upon a judgment in favor of the Na. These provisions appear in substantially the tional Hide & Leather Bank against the same language in Rev. St. 1871, c. 46, § 32, Monson Maine Slate Company, made on the and Id., chapter 81, $ 54. 9th day of February, 1900. Real estate was But these provisions were repealed in the attached upon the writ on March 23, 1898. revision of 1883, and by chapter 46, § 20, on Defendant claims title to the same lands by corporations, it is provided that “the propvirtue of a sale on execution issued upon a erty of any corporation” “are liable to at: judgment in favor of Rodney C. Penney tachment on mesne process and levy on exagainst the Monson Maine Slate Company, ecution for debts of the corporation in the made on the 11th day of June, 1900. Real manner prescribed by law." This statute estate was attached upon the writ on Sep was in force when these attachments were tember 14, 1896. The right of redemption made. By the repeal of the former limitafrom this sale had expired before the present tions upon the right of attachment and seizsuit was instituted. If the attachment in ure and sale on execution of lands .of corthe Penney suit was duly perfected and is porations, and the substituted provision valid, and the subsequent proceedings were couched in such broad language, it is evident according to law and while the attachment the Legislature intended to subject corporate was subsisting, the demandant took nothing lands to the same liability to attachment on by his purchase from the sheriff, unless, per mesne process as those owned by natural haps, the right of redemption from the sub persons. This intention is so manifest that sequent sale on the Penney execution.

we are not authorized to import into the lanIt is very ably argued by the plaintiff's guage any of the conditions or limitations counsel that the statute in force when tuese contained in previous statutes. attachments were made did not authorize an It is urged that the officer's return of atattachment of real estate of a mining and tachment to the registry of deeds was inmanufacturing company, which the slate sufficient to create a lien upon the land. The company is.

suit was in favor of Rodney C. Penney. The right to attach real estate upon a writ The return to the registry followed the statis purely a statutory right. Chapter 60, 8 ute in every respect, except that it gave the 2, of the Laws of 1821, provided that “rights name of the plaintiff as R. C. Penney. The in equity of redeeming lands mortgaged, re object of the return is to give notice to parversions or the remainders," and the lands ties investigating title of an attachment.

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