which he seized and libeled the liquors. Lat-writing and under oath. The claim must er the Eastern Steamship Company appeared state specifically certain matters specified by and filed its claim for them in the proper statute, such as the nature of the right form. The case came by appeal to the Su- claimed and the foundation thereof. Having preme Judicial Court, and a hearing was had filed such a claim he is admitted as a party. before the court without a jury. At the con- | Filing the claim does not prove the right. It clusion of the hearing, the presiding justice merely entitles the claimant to be heard. ordered judgment to be entered for a forfeit- Then the statute provides that: ure of the liquors, and the claimant excepted. No finding of specific facts was made. At the hearing the claimant offered no evidence, and the record does not show upon what grounds it claimed a right to the liquors, or the possession of them. [1] The claimant argues, in the first place, that the justice below erred in not making a finding of facts, on which to base the judgment. 'If the complaint were well founded, the claimant can take no advantage of the failure to find facts, for it has taken no exceptions on that ground. But the complaint is not well founded. It was not necessary that the presiding justice should place on record specific findings of facts. His order of judgment of forfeiture meant, and it must be so assumed, that he found for the state upon all issues of fact necessary to sustain the libel. Chabot & Richard Co. v. Chabot, 109 Me. 403, 84 Atl. 892. "The magistrate shall proceed to determine the truth of the allegations in said claim and fered by the libelant or claimant. If the magislibel, and may hear any pertinent_evidence oftrate is, upon the hearing, satisfied that said. liquors were not so kept or deposited for unlawful sale, and that the claimant is entitled to the an order in writing," for a return of "the liqcustody of any part thereof, he shall give him uors to which he is found to be entitled. If the magistrate finds the claimant entitled to no part of said liquors, he shall render judgment taxed as in civil cases before such magistrate, against him for the libelant for costs, to be and issue execution thereon, and shall declare said liquors forfeited to the county where seized." It will be noticed that in order to secure an order for the return of the liquors, two things must be found to be true, namely, that the liquors were not kept or deposited for unlawful sale, and that the claimant is entitled to their custody. State v. Intoxicating Liquors, 85 Me. 304, 27 Atl. 178. And, further, if it fails to appear that the claimant is entitled to their custody, judgment for costs against the claimant, and forfeiture of the liquors follow. The pivotal question in this case is, Has it been made to appear that the claimant is entitled to the custody of the liquors? If it has, the judgment for forfeiture was error, but otherwise it was not. [2-4] The complainant further contends that the complaint and warrant were defective and void, and that, as the libel is based upon the warrant, proceedings for forfeiture cannot be maintained. The objections to the complaint and warrant are that the warrant was not obtained within a reasonable time after the original seizure; that instead of taking out 1 warrant for all the liquor seized, the officer took out 18, presumably 1 for each party to whom the parcels were severally marked; that the officer in his complaint al-titled to the custody. And the burden on this leged that the liquors were kept by persons unknown, which was not true, so it says, and, finally, that the officer, having made out and signed the formal complaint, and filled out the warrant for signature, made out the return and signed it before he swore to the complaint. Whether any of these objections would be tenable if interposed by one who had an interest in the liquors, and a right to have them restored to him in case the seizure was found to be invalid, we think we have no need to consider. It is a fundamental rule that exceptions will not be sustained unless the excepting party shows affirmatively that he is aggrieved. And he cannot be aggrieved unless he has a legal interest in the subjectmatter of the controversy. Allen v. Lawrence, 64 Me. 175; Merrill v. Merrill, 67 Me. 70; Smith v. Smith, 93 Me. 253, 44 Atl. 905. We think the claimant has failed to show that it has any valid claim to have the liquors restored to it, in any event. The statute (R. S. c. 29, § 51) provides that if any person appears and claims intoxicating liquors seized, he shall file a claim in It is not enough under the statute to show that the seizure was invalid. It must be shown that the claimant is the party en issue is on the claimant. State v. Robinson, 49 Me. 285. It might show that it was the owner, or that it was a carrier, still responsible for the liquors to the shipper or consignee, or it might show any other facts which would entitle it to the custody. But it must show them. No matter who else might be wronged by an invalid seizure, the wrongs of others cannot be redressed at the suit of the claimant, if it has no right to custody, on its own account. The injured party must seek his own redress. The claimant has not sustained the burden of showing its right. The claimant's relation to the liquor does not clearly appear. It does appear that it came to the defendant's shed in Bangor, by way of the Maine Central Railroad from Bucksport, and one of the state's witnesses testified that he knew it came from the claimant's boat, which we presume was at Bucksport. And we may assume that the carriage from Bucksport to Bangor was part of a through transportation from some place in or out of the state to Bucksport by water, and thence to Bangor by rail, all controlled by the claimant. Now, doubtless, there are cases where the situation | vate cemeteries by purchase or eminent domain of the liquor when seized may afford some legitimate inference, as to whether a carrier still has it in transit, and, whether for that or other reasons, it is legally entitled to the custody, if the seizure is not sustainable. But we think no inference either way is warranted by the evidence in this case. The liquors involved in this case were a part of a large lot brought by the claimant to its shed in Bangor Saturday night. Sunday night it was found that they had been unloaded, and had been assorted and piled in four piles close to the delivery doors of the shed, and each pile had been tagged with the name of some man, as if he were the owner, or a truckman for the owner. The pile containing the liquors in question was tagged with the name of a truckman. Who unloaded them? Who piled them up? Who tagged them? Had they been delivered by the claimant to the consignee? Was the steamship company still responsible for them? Or had they been been received by the consignee, piled and tagged, and merely left where they were to be removed at his convenience? If the latter conjecture is the true one, it is manifest that the steamship company has no ground for claiming a return of the liquors. It had no special property in the liquors. The trouble is that we have no means of telling which of several conjectures is the The claimant might have made it clear by evidence, but it offered none. Its right to custody is not proved. Hence it has no interest in the determination of the question whether the seizure was valid. Others may have, but the claimant has not. And having no interest, it could not be aggrieved by a ruling thereon, and its exceptions cannot be maintained. So far as the claimant is concerned, the only flaw discoverable in the order of the presiding justice is that he did not order judgment against the claimant for costs. Exceptions overruled. (112 Me. 143) MAY v. CITY OF AUBURN. and presenting the matter in behalf of the city to a vote of the city council, since such services before a committee of the Legislature pursuant were not such as a layman would ordinarily be employed to perform for others and were therefore "professional acts," which the city solicitor vote of the council designated him as city sowas required to perform, especially where the licitor and not in his private capacity, and he at the time did not notify the council that such acts were not within his official duties. Corporations, Cent. Dig. §§ 357-367, 369, 372, [Ed. Note.-For other cases, see Municipal 374; Dec. Dig. § 162.*] Action by Seth May against the City of Auburn. Judgment for plaintiff for a part of the amount sued for. Argued before SPEAR and CORNISH, KING, BIRD, HALEY, and HANSON, JJ. Seth May, of Auburn, pro se. Tascus Atwood, of Auburn, for defendant. CORNISH, J. The plaintiff was city solicitor of Auburn for the municipal year March, 1912, to March, 1913. At a legal meeting of the city council held on January 6, 1913, it was voted that "efforts be made to secure either a general law, which would apply to all cities and towns, or a special act which will authorize our city to acquire or control private cemeteries by purchase or eminent domain and that the city solicitor be directed to present the matter to the Legislature." Pursuant to this vote, the plaintiff prepared a bill for the purpose and presented the matter in behalf of the city at a hearing before the judiciary committee of the Legislature. For this service he seeks to recover in this action the sum of $35. The defendant raises no objection to the amount of the charge if legally collectible, but contends that the services rendered were embraced in his duties as city solicitor, for which he received a stated salary, and therefore no separate charge could be made therefor. That is the single issue involved. The other items in the account are for cash disbursements, and these are not disputed. A fair and reasonable construction of the city ordinances relating to the duties of the city solicitor sus (Supreme Judicial Court of Maine. July 9, tains the contention of the defendant. Chap 1914.) MUNICIPAL CORPORATIONS (§ 162*)-OFFICERS -COMPENSATION-EXTRA Under city ordinances providing that the city solicitor should be an attorney and counselor at law and should act as the legal adviser and solicitor of the city, except where the city council authorized or required him to secure the service of additional counsel, that no money should be paid from the city treasury for legal advice or services, except as expressly authorized thereby, and that the city solicitor should do all professional acts incident to the office or which might be required of him by the mayor, city council, or either branch thereof, the city solicitor was not entitled to compensation in addition to his stated salary for preparing a bill authorizing the city to acquire or control pri ter 10, § 1, provides: "The city solicitor shall be an attorney and counselor at law of the courts of the state. He shall act as the legal adviser and solicitor of the city, except in special cases in which the city council may authorize or require him to secure the advice or services of such additional counsel as may be deemed best." Section 2: "No money shall be paid from the city treasury for any legal advice or services, except as expressly authorized by this ordinance." Section 4, after reciting several duties in detail, concludes with this general and comprehensive clause: "And do all professional acts incident to the office or which may be required of him by the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-12 The service under consideration clearly fell within these provisions. The drafting of a legislative act authorizing a city to acquire or control private cemeteries by purchase or eminent domain, and the presentation of the matter to the Legislature, must be regarded as coming peculiarly within the term "professional acts" such as the city solicitor is bound to perform under the ordinances. The drafting of such an act, embracing as it does, the element of eminent domain, is not to be expected of a layman, as the plaintiff would seem to argue, but is a matter for the trained lawyer; and its presentation to the Legislature or a legislative committee, is ordinarily committed, not to the layman, but to an attorney. While a layman often presents his own matters to such a committee, he is rarely employed to present those of another. The services rendered were plainly professional in their nature; they concerned the interests of the city and were required of him by the city council, as appears by the vote before recited. Those elements brought the work into the official sphere of the city solicitor, as prescribed by the ordinances, and therefore the person holding that office was not entitled to extra compensation therefor. Calais v. Whidden, 64 Me. 249, cited by the plaintiff, cannot be regarded as an authority for his claim because the services rendered were of a different nature, and the case fails to show the duties of the city solicitor, as prescribed by the city ordinances. The vote itself, in the case at bar, emphasizes the soundness of our conclusion. The party designated to do the work was not the plaintiff in his private capacity, but the city solicitor. If the plaintiff did not care to perform it as city solicitor, or thought it did not come within his official duties, he might have notified the city council of the fact at the time. Instead he accepted the task and carried it out, without any objection, so far as the evidence discloses. Both parties at that time apparently contemplated that the duty was an official one. The ordinance expressly prohibits the expenditure of money for extra legal services, unless specially provided for by the city council, by whom such legal assistance might be authorized or required in certain cases, if it were deemed best. No such authorization was had nor legal assistance comtemplated in this case. The law officer of the city was requested to perform certain professional acts, and he and he alone was to perform them. The services so performed came within the line of his official duties, and no extra charge is allowable therefor. As the balance of the account, $20.35, is conceded to be due, the entry must be: Judgment for plaintiff for $20.35. (112 Me. 146) WALDRON v. MOORE. (Supreme Judicial Court of Maine. July 13, 1914.) MORTGAGES (§§ 105, 119*)-CONSTRUCTION_IN CONNECTION WITH CONTEMPORANEOUS INSTRUMENT. Where contemporaneously with the execution of a mortgage to secure a note for $2,200, payable in two years and six months, the parthe mortgagor agreed to support the mortgagee ties executed an agreement under seal, whereby for two years and six months and give her the exclusive use of certain rooms in her house, in consideration whereof the mortgagee agreed to indorse upon the note $1,000 each year until it was fully paid, the note and mortgage were connected by direct reference or necessary implication, and should be construed as one paper, and hence, where the mortgagor had performed the agreement, but the mortgagee had left the mortgagor's house without stating any reason, there could be no recovery under the mortgage. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 214, 215, 234; Dec. Dig. §§ 105, 119.*] Report from Supreme Judicial Court, Waldo County, at Law. Writ of entry by Alice J. W. Waldron against Mira A. Moore. On report. Judgment for defendant. Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and PHILBROOK, JJ. Dunton & Morse, of Belfast, for plaintiff. Arthur Ritchie, of Belfast, for defendant. BIRD, J. This is a writ of entry dated November 25, 1912, for the recovery of a lot of land and buildings in Belfast. The plaintiff's pleadings declare upon a mortgage, and at the second term after entry the plaintiff filed a motion for conditional judgment. The case is here upon report. It appears of record that plaintiff loaned defendant the sum of $2,200, wherewith the latter purchased the lot and buildings in question. After the conveyance to the defendant of the premises by deed of May 23, 1910, she on the same day conveyed them to plaintiff in mortgage as security for the payment of a note for the same sum on two years and six months, with interest at rate of 6 per cent., payable semiannually. Contemporaneously and as part of the same transaction, plaintiff and defendant entered into an agreement under seal, whereby the defendant undertook to support the plaintiff for the term of two years and six months from date (being same day as the date of the mortgage and note), or during her life, if she should die within said term, to give her exclusive use of certain rooms in the house upon the lot conveyed to defendant, and to make for her certain other provisions for the sum of $1,000 a year, to be indorsed on the note already mentioned. The plaintiff upon her part agreed, in consideration of the undertaking of the defendant, to indorse upon the note the sum of $1,000 per year until the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes note be fully paid, or as long as she lives if she die before the expiration of the note. Under the agreement, the plaintiff entered into occupation of the rooms allotted her, and remained until March 14, 1911, when she left the premises without stating to defendant why she left, whether or not she would return, or anything as to a rescission of the contract. When the first semiannual payment of interest was due, it was indorsed upon the note in part payment of the sum due defendant under the agreement. Whether or not defendant performed the part of the agreement by her to be performed was disputed. The evidence is conflicting, but we think defendant shows a substantial compliance with its terms while plaintiff remained, and that defendant was thereafter ready and willing to continue in its performance. Can the defendant avail herself of the terms of the written agreement of the parties in this action? Two contemporaneous writings between the same parties, upon the same subject-matter, may be read and construed as one paper; and this rule applies notwithstanding one of the writings is a promissory note, when the action is between the parties to it or their representatives. American Gas, etc., Co. v. Wood, 90 Me. 516, 520, 38 Atl. 548, 43 L. R. A. 449, and cases cited. Here, as in the case cited, the agreement and note are of the same date, and the former expressly refers to the note. They are "connected by direct reference or necessary implication," to use the language of Davlin v. Hill, 11 Me. 434, 438. See, also, Hunt v. Livermore, 5 Pick. (Mass.) 395. Judgment may be entered for defendant as provided in R. S. c. 92, § 11. Burnham v. Dorr, 72 Me. 198, 202. (77 N. H. 320) TYRRELL v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Grafton. June 2, 1914.) Action by Charles C. Tyrrell, administrator, against the Boston & Maine Railroad. Case, for negligently causing the death of Amy A. Tyrrell, the plaintiff's intestate, at a farm crossing. Verdict for the plaintiff. Transferred from the superior court on the defendant's exceptions to the denial of motions for a nonsuit and the direction of a verdict in its favor, and to the admission of evidence that it was Mrs. Tyrrell's habit to listen for trains at the crossing where she was injured. The plaintiff's evidence tended to prove that Mrs. Tyrrell was driving a quiet horse attached to a long-bodied farm wagon. The horse was was walking. When Mrs. Tyrrell reached the gate at the crossing she stopped the horse and waited until a man who was following the wagon opened the gate. She then drove upon the track and was struck by a locomotive running backward. The rear end of the wagon was between the rails. The natural obstructions were such that she could not look up the track in the direction from which the locomotive came until she was within seven or eight feet of the nearest rail. The engineer saw the horse approaching the track when its head was from five to eight feet from the rail, and when the locomo ive was 200 feet from the crossing. Although he applied the emergency brakes, he neither sounded the whistle nor rang the bell. The locomotive was running downgrade at a speed of about 25 or 30 miles an hour, and was not working steam. If it had been properly equipped, or if the engineer had sounded the whistle as he approached the crossing, or even when he first saw the horse's head, the accident would not have happened. Exceptions overruled. Owen & Veazey and Charles B. Hibbard, all of Laconia, for plaintiff. Burleigh & Adams, of Plymouth, and Stephen S. Jewett, of Laconia, for defendant. 1. RAILROADS (§ 338*)-CROSSING ACCIDENTS PEASLEE, J. [1] The defense relied up-RECOVERY NOTWITHSTANDING CONTRIBU-on is that there was no evidence of care on TORY NEGLIGENCE. Where railroad employés, after a person the part of Mrs. Tyrrell; but it appears in was in a dangerous situation at a farm cross- evidence that even after she got in a dangering, could have given warnings which they fail-ous situation the defendant's servants could ed to give, and she might have escaped in safety have given warnings which they failed to, had they been given, her negligence in driving upon the track when and as she did was immaterial. and that, if these warnings had been given, she might have escaped in safety. If the jury took this view of the facts, there would be no occasion to consider whether she was negligent in driving upon the track when and as she did. [2] Evidence of her habit of care is objected to upon the ground that her conduct is fully disclosed, and therefore the evidence is inadmissible. The ev.dence of what she did or did not do as she approached the crossing does not cover all the time. The only eyewitness to the accident who was near her was occupied in closing a gate during the latter part of her approach to the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes breach of duty owed the plaintiff by the defendant, as the legal cause of the injury. crossing. He was then back to her, and, as [ ground must be found, if it exists, in some he himself testified, she might have listened during this time. No other objection to the admission of the evidence was made, and, as the record shows that this one is not supported by the testimony in the case, the excep ion must be overruled. It is therefore unnecessary to consider the argument advanced by the plaintiff to the effect that the admissibility of evidence of habit to prove action upon a particular occasion is not limited to cases where there is not direct proof of what was done. Exceptions overruled. The plaintiff tended a brick conveyor. This machine consisted of two endless cables stretched from the brick-molding machine along in front of sheds in which the brick were dried. At the further end the cables passed over large wheels, thence returning to the power end and passing four to eight inches above the level of a plank walk in front of the sheds. The green brick were placed on short pieces of board called "pallets." The pallets being placed upon the cables, were carried along by the motion of YOUNG, J., did not sit. PLUMMER, J., the cables in front of the drying sheds, where was absent. The others concurred. 2. MASTER AND SERVANT (§ 278*) ACTION FOR INJURY TO SERVANT-SUFFICIENCY OF EVIDENCE. In an action for an injury to a 15 year old boy caused by being caught in the wheels of a brick conveyor at a brickyard, evidence held not to show that defendant was negligent in employing a 15 year old boy to do the work. [Ed. Note.-For other cases, see Master and Servant. Cent. Dig. §§ 954, 9.56-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*] 3. MASTER AND SERVANT (§ 218*)-ASSUMPTION OF RISK-INEXPERIENCED OR YOUTHFUL EMPLOYÉ. A boy, though only 15 years old, assumed the risks of the dangers of an occupation which he knew and understood. [Ed. Note.-For other cases. see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. $ 218.**] workmen called "truckers" removed them from the cables and wheeled the pallets and brick into the drying shed. Another workman collected the empty pallets and placed them on the walk in front of the sheds. The plaintiff was employed to place the empty pallets upon the lower cables so that they would be carried back to the molding machine. He had no work to perform on the upper cables, which passed about two feet above the lower in the opposite direction. When he went to work there was a cover of some sort over the large wheels at the end of the ropeway. After he had been at work about six weeks this cover was removed, as it interfered with the operation of the machine. The only account of the accident which the plaintiff was able to give is that he suddenly found himself resting upon the upper cables and being borne into the wheels; that to save his head he put out his arm, which was caught and torn off. There was no other evidence as to the cause of the accident. There was no claim of any defect in the rope by which he was caught, or anything about the platform which caused him to slip and fall, if he did slip. The history starts with the plaintiff on the ropes being borne into the wheels. There was evidence that when he went to work the plaintiff was instructed Exceptions from Superior Court, Rocking- to look out for the rope. He testified that he ham County; Young, Judge. Action by Aniedee Proulx against William S. Goodrich. Verdict for plaintiff, and plaintiff, and defendant excepts. Exceptions sustained. William H. Sleeper, of Exeter, for plaintiff. Eastman, Scammon & Gardner, of Exeter, and George T. Hughes and Robert Doe, both of Dover, for defendant. PARSONS, C. J. [1] The plaintiff was 15 years of age. There is no evidence of incapacity of mind or body, and he must be assumed to have been of the average capacity of boys of that age. He entered the defendant's employ on May 1st, and continued doing the same work each day until injured on August 8th. The mere fact of injury does not establish the right of recovery. Such knew if he fell onto the cable he would be hurt, if he could not get off before the wheels were reached. In his work he stood 18 inches to 2 feet from the cables. His work did not require him to touch either cable, and had nothing to do with the upper ones. [2, 3] Upon the evidence, the only claim of fault in the defendant must be that intrusting such work to the average boy of 15 years of age was of itself a breach of duty. It cannot be reasonably found upon this evidence that a man of average prudence would not employ such a person to do this work, and that the plaintiff, knowing the danger of injury if he fell upon the cables, did not appreciate the risk. If it was the practice in this business to employ only mature and skilled persons to do work of this character-if *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |