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made by counsel, but find no merit in them. , ville 'as aforesaid, the above piece or parcel is No error appearing, the entry will be:

conveyed on condition and in consideration of Exceptions overruled.

promise made by said inhabitants that a good and substantial fence shall be forever main

tained by them inclosing the said premises." (112 Me. 245)

The plaintiff contends that the foregoing INHABITANTS OF TOWN OF FRENCH- language should be regarded as a covenant VILLE V. GAGNON.

merely, for breach of which an action would (Supreme Judicial Court of Maine. Oct. 8, lie. On the other hand, the defendant says 1914.)

that it is a condition subsequent. And, act1. DEEDS ($ 155*) - CONSTRUCTION – CONDI- ing upon that assumption, in 1912 he entered TION SUBSEQUENT.

and took possession of the premises, as for a Courts are reluctant to declare a forfeiture, breach of condition, with the intention of reand will not construe the language in a deed into a condition subsequent, unless the language, vesting title in himself. This constitutes the construed strictly against the grantor, will ad- trespass complained of. Whether the lanmit of no other reasonable interpretation.

guage in the deed constitutes a covenant or [Ed. Note. For other cases, see Deeds, Cent. a condition, in either event the case shows a Dig. $$ 488–495; Dec. Dig. § 155.*]

breach. It follows that if it be a covenant, 2. DEEDS ($ 155*) — CONSTRUCTION — CONDITION SUBSEQUENT.

and not a condition, the title remains in the Even the use of apt words to create a con- plaintiff, even though there has been a dition subsequent in a deed will not be con- breach, and the town is entitled to judgment. strued to do so, if the language of the whole on the contrary, if it be a condition subseinstrument shows a contrary intent of the par-quent, the title is in the defendant; he comties.

[Ed. Note. For other cases, see Deeds, Cent. mitted no trespass; and he must have judgDig. $8 488–495; Dec. Dig. § 155.*]

ment. 3. DEEDS (8 155*) - CONSTRUCTION – CONDI [1-3] Courts are reluctant to declare forTION SUBSEQUENT.

feitures. Conditions subsequent as the basis A condition subsequent may be created in a of forfeiture are not favored in law. This is deed without the use of either a forfeiture clause the rule in this state and everywhere else. or a clause of re-entry.

[Ed. Note.-For other cases, see Deeds, Cent. Bray V. Hussey, 83 Me. 329, 22 Atl. 220. Dig. 88 488-495; Dec. Dig. $ 155.*]

Langauge in a deed will not be construed in4. DEEDS ($ 145*) - CONSTRUCTION -CONDI- to a condition subsequent, unless the terms of TION SUBSEQUENT.

the grant will admit of no other reasonable Where a deed conveyed premises to be used interpretation. The language is to be confor school purposes, and stated that, in addition to the cash consideration, the conveyance strued strictly against the grantor. No lanwas made "on condition and in consideration guage will be construed into a condition subof the promise” of the grantee to keep the lot sequent, contrary to the intention of the parfenced, the language at least leaves it doubt- ties, when the intent can be gathered from condition or a covenant, and the doubt must be the whole instrunent, read in the light of surresolved in favor of the covenant.

rounding conditions. Wier v. Simmons, 55 [Ed. Note.-For other cases, see Deeds, Cent. Wis. 637, 13 N. W. 873. The strongest words Dig. § 471; Dec. Dig. § 145.*]

of condition will not work a forfeiture of the Report from Supreme Judicial Court, Aroos- estate, unless they were intended so to operate. took County, at Law.

Bragdon v. Blaisdell, 91 Me. 326, 39 Atl. 1036. Trespass by the Inhabitants of Frenchville Apt words, from which a clear implication against Michael Gagnon. On report from the arises, are necessary for the creation of a Supreme Judicial Court. Judgment entered conditional grant, but the use of apt words for the plaintiff.

does not always create a condition. Bray v. Argued before SAVAGE, C. J., and COR- Hussey, supra. The intention shown by the NISH, BIRD, HALEY, HANSON, and PHIL whole deed controls. Sometimes the use of BROOK, JJ.

words, such as "null and void," indicative of Hersey & Barnes, of Houlton, for plaintiff. an intention of forfeiture, or the insertion of Peter C. Keegan, of Van Buren, and Madigan a clause of re-entry, are held conclusive on & Pierce, of Houlton, for defendant.

the question of intention, But a condition

subsequent may be created without either a SAVAGE, C. J. Trespass quare clausum. forfeiture clause or clause of re-entry. ThomThe case comes before this court on report, as v. Record, 47 Me. 500, 74 Am. Dec. 500. with a stipulation that, if the plaintiff is en

[4] In the clause under consideration, the titled to recover, the damages shall be as- words “on condition” are apt words to create sessed at $20. The premises in question were a condition; but the additional words "and conveyed by the defendant to the plaintiff in consideration of promise made by said in

. town in 1898 for a schoolhouse lot by a war- habitants” are not. In a deed, they are ranty deed which contained, between the de-words appropriate to covenant. When the scription and the habendum, the following language in a deed makes it doubtful whether language:

a condition or a covenant be meant, it is al"In addition to the consideration of $225 ways to be construed as a covenant. Bragpaid by the inhabitants of the town of French- I don v. Blaisdell, supra; Hoyt v. Kimball, 49

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

N. H. 322; Woodruff v. Woodruff, 44 N. J. 6. FRAUD ($ 53*)—ACTIONS-ADMISSIBILITY OF Eq. 349, 16 Atl. 4, 1 L. R. A. 380.

EVIDENCE. It is sufficient, for the purposes of this automobile which the seller agreed to overhaul

In an action for fraud in the sale of an case, to say that the language used, if it be and put in first-class condition, testimony by the not construed strictly as a covenant, leaves plaintiff that he took the car to defendant's it in doubt whether the parties intended to garage on account of some newly discovered decreate a condition or a covenant; whether tion that the car was in good running order was

fect was relevant to show that the representathey intended the grantor's remedy for breach false. should be by forfeiture, whereby the town [Ed. Note. For other cases, see Fraud, Cent. would lose not only the land, but the school- Dig. § 49; Dec. Dig. & 53.*1 house, if any, upon it; or whether it should 7. EVIDENCE (8 182*)-SECONDARY EVIDENCEbe by ordinary action at law for damages. PRELIMINARY PROOF-RECEIPT OF LETTER. In accordance with the principles already

Proof that a letter properly addressed to stated, that doubt must be resolved in favor facie its delivery

to the addressee, and evidence of a covenant and against a condition, so as of the contents of the letter is not inadmissible to avoid forfeiture.

because of failure to show that the defendant

received it. Judgment for plaintiff for $20.

[Ed._Note.-For other cases, see Evidence,

Cent. Dig. $$ 601-604; Dec. Dig. § 182.*] (112 Me. 223)

8. EVIDENCE ($ 220*)— SELF-SERVING LETTER, ROSS v. REYNOLDS.

In an action for fraud in the sale of an au(Supreme Judicial Court of Maine. Oct. 8. tomobile, a letter written by the buyer to the 1914.)

seller, stating that he had misrepresented the

car, though self-serving in a sense, is admis1. FRAUD (8 12*)-FRAUDULENT REPRESENTA. sible as being calculated to evoke a reply so TIONS-PROMISE.

as to afford an inference of the truth of the In an action for deceit in the sale of a charge if no reply was made. secondhand automobile, the buyer cannot recov [Ed. Note.-For other cases, see Evidence, er for a breach by the seller of his agreement Cent. Dig. 88 771-785; Dec. Dig. $ 220.*] to overhaul the car and put it in first-class shape.

9. WITNESSES (8 372*)-IMPEACHMENT-BIAS. [Ed. Note.-For other cases, see Fraud, Cent. A witness may be asked on cross-examinaDig. 8 14; Dec. Dig. 12.*]

tion if he had not, during the preceding year,

been in litigation with the opposite party, in 2. APPEAL AND ERROR (1050*)_HARMLESS order to show his bias or prejudice. ERROR — ADMISSION OF EVIDENCE – IRRELE

[Ed. Note.-For other cases, see Witnesses, VANT TESTIMONY.

Irrelevant testimony if not prejudicial is Cent. Dig. $8 1192-1199; Dec. Dig. § 372.*i no ground for reversal.

10. FRAUD (8 18*) – ACTIONABLE MISREPRE[Ed. Note. For other cases, see Appeal and

SENTATION-AGE OF AUTOMOBILE. Error, Cent. Dig. $$ 1068, 1069, 4153-4157, A representation, made as an inducement 4166; Dec. Dig. $ 1050.*]

in the sale of a secondhand automobile as to

its age, or the length of time it had been used, 3. CONTRACTS ($ 28*)-ACTIONS-ADMISSIBIL-is material and, if false, is actionable. ITY OF EVIDENCE. When the terms of an oral contract are in Dig. § 16; Dec. Dig. § 18.*]

[Ed. Note. For other cases, see Fraud, Cent. dispute, the whole conversation concerning the trade and the various negotiations leading up 11. FRAUD ($ 11*) - MISREPRESENTATIONS — to it are, as a rule, admissible in evidence, STATEMENT OF OPINION-CONDITION OF AUthough much that is said may not bear directo

TOMOBILE. ly upon the disputed points.

A representation, made as an inducement [Ed. Note.-For other cases. see Contracts, in the sale of a secondhand automobile, that it Cent. Dig. 88 133-140, 1755, 1782–1784, 178512, was in good running order, while not actionable 1820, 1821; Dec. Dig. & 28.*]

if the statement was a mere expression of opin.

ion, might be a statement of a fact, and if, 4. APPEAL AND ERROR ($ 1048*)-HARMLESS being fairly susceptible of being so understood, ERROR-QUESTION NOT ANSWERED.

it was understood by the buver as a statement Where the defendant objected to a ques- of fact, the misrepresentation is actionable. tion asked by the plaintiff for a specific purpose, and the court ruled the evidence admissible for

[Ed. Note. For other cases, see Fraud, Cent. that purpose, an exception to the ruling will not Dig. 88 12, 13; Dec. Dig. 11.*] be sustained where the question was not answered and no further question on that line was

On Motion and Exceptions from Supreme asked at that time.

Judicial Court, Washington County, at Law. [Ed. Note.-For other cases, see Appeal and Action by George W. Ross against Foster Error, Cent. Dig. $$ 4140-4145, 4151, 4158-s. Reynolds. Verdict for plaintiff, and de 4160; Dec. Dig. § 1048.*]

fendant excepts and moves for a new trial. 5. APPEAL AND ERROR_(8_1050*)– HARMLESS Exceptions and motion overruled.

ERROR-ADMISSION OF EVIDENCE-IMMATE-
RIAL EVIDENCE,

Argued before SAVAGE, C. J., and CORIn an action for fraud in the sale of a NISH, BIRD, HANSON, and PHILBROOK, secondhand automobile, testimony by the plain-JJ. tiff that defendant wanted a mortgage on certain real estate for security, though immaterial, H. E. Saunders, of Lubec, W. R. Pattenwas not harmful. [Ed. Note.-For other cases, see Appeal and gall

, of Waterville, and R. J. McGarrigle, of Error, Cent. Dig. 1068, 1069, 4153-4157, Calais, for plaintiff. J. H. Gray, of Lubec, 4166; Dec. Dig. $ 1050.*]

for defendant.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

SAVAGE, C. J. Action for deceit in the tiff testifying that he, the defendant, wanted sale of an automobile. The verdict was for a mortgage on certain real estate for securithe plaintiff, and the case comes up on the ty. Though the evidence was immaterial, it defendant's exceptions and motion for a new could not have been harmful. trial.

[6] 4. The plaintiff was permitted to tes[1] In his writ the plaintiff alleged that tify that he took the car to the defendant's the defendant in making the sale to him de- garage to be overhauled. Whether it was beceived him in three respects, namely, that he cause of the agreement to make repairs, or said the car had not been in use for more because of some newly discovered defect in than a year, and that it was in good running the car, the record fails to disclose. If the car order and condition, and that the defendant was taken to the garage on account of some agreed that he would give the car a thorough newly discovered defect, the evidence of it overhauling and put it in first-class shape. would be relevant to the alleged false repreThe presiding justice properly ruled that no sentation that the car was in good running recovery could be had in this case for fail-order and condition. If the car was taken to ure to keep this agreement.

the garage for the repair of defects as agreed The exceptions are eight in number and to be made, the evidence of it was immaterirelate to the admission and exclusion of evi- al, but, in view of the express ruling of the dence.

court, not prejudicial. [2, 3] 1. The plaintiff testified that in one ,[7] 5. The plaintiff was permitted to testiof the conversations he had with the defend- fy as to the contents of a letter which he ant relative to the purchase of the car, the said he wrote to the defendant, to the effect defendant suggested that he make a trade that he had misrepresented the car; that it with a Mr. Calkins with regard to the securi- was in bad condition, and not in running orty to be given. Exception was taken to the der. The letter itself was not produced, and admission of this testimony. This evidence notice to produce was waived. The defendmay not be relevant to the issue of deceit, but ant objected that it was not competent to it is not perceived how it can be regarded as show the contents of the letter, .until it was prejudicial. To secure the reversal of a rul- shown that the defendant received it. And ing, on exceptions, it is necessary to show, in this contention the defendant was right. not only that the ruling was erroneous, but But the plaintiff testified that he mailed the also that it was harmful. Bath v. Reed, 78 letter properly addressed to the defendant. Me. 276, 4 Atl. 688. Besides, when the terms That is prima facie evidence of delivery by of an oral contract are in dispute, it is prop- due course of mail to the addressee. Chase er, as a general rule, to let in the whole con- v. Surrey, 88 Me. 468, 34 Atl. 270; Johnson versation concerning the trade, and the vari. v. N. Y., N. H. & H. Railroad, 111 Me. 263, 88 ous negotiations leading up to the trade. Atl. 988. Though much that is said may not bear di [8] 6: The next exception is to the contents rectly upon the disputed points, it may never- of the letter itself. Such a letter is clearly theless throw valuable light upon the in- admissible. Though in a sense self-serving, quiry; it may help to strengthen the proba- it is admissible because, if the charge conbilities and improbabilities, the one way or tained in it is untrue, it is calculated to the other. When a witness is asked to nar- evoke a reply. If no reply is made, that fact, rate a conversation which ended in a con- unexplained, may afford an inference that tract, it is impossible to tell in advance how the charge is true. much of it may be wheat, and how much 7. The subject-matter of this exception is chaff. It must be left to the discretion of the same as that stated under exception 4, the court to keep the witness within as nar- and this exception must fall with that one. row limits as reasonably may be, for the [9] 8. The plaintiff, on cross-examination eliciting of the truth and the whole truth. It of one of the defendant's witnesses was peris within bounds to say that few verdicts mitted to draw out from him the fact that could stand if the admission of merely irrele- he had within the preceding year been in litivant evidence were a good ground for re- gation with the plaintiff. This was admisversal.

sible to show bias or prejudice in the witness. [4] 2. There were certain obvious defects It is a common and proper mode of impeachin the car, which the plaintiff knew about ment. and which he alleges the defendant agreed to No one of the defendant's exceptions repair. His counsel was asking him about should be sustained. them in detail, for the purpose, as he stated We will briefly discuss the motion for a to the court, of explaining why the plaintiff new trial. The false representations relied took the car immediately to the defendant's upon as alleged are that the car had not garage. The defendant then objected. The been in use for more than one year, and that court ruled the evidence admissible for that it was in good running order and condition. purpose. But no answer was made to the The trade was in 1912. The plaintiff claims question objected to, and no further question that the defendant told him that the car was on this line was asked at that time.

one year old then, and that in fact it was . [5] 3. The defendant objected to the plain-two years old. The defendant admits that

1

the car was a 1910 car and claims that he ,3. REVIEW (8 13*) — CAPACITY TO SUE - STATtold the plaintiff so. The plaintiff claims UTES. that the defendant represented that the car review in civil actions may be granted on peti

Rev. St. c. 91, § 1, cl. 3, provides that a was in good running order and condition, and tion of a party in interest who was not a that in fact it was not. The defendant ad party to the record, setting forth the fact of mits that he told the plaintiff that the car such interest, and on filing a bond, etc. Held, was in good running condition; and claims that where petitioner inherited the assets of a

grantor under a warranty, and a real action that it was so in fact. These are the issues. I was brought against the party succeeding to

[10, 11] A representation made as an in- her ancestor's title, and he vouched petitioner ducement in the sale of an automobile, as to to defend, but she failed to do so, and judgment its age or the length of time it has been in was authorized by such section to file a writ

was rendered against such grantee, petitioner undoubtedly material as affecting val- of review. ue; and, if false, it is actionable. A repre [Ed. Note. For other cases, see Review, sentation under like circumstances that it is Cent. Dig. § 14; Dec. Dig. & 13.*] in good running order may be the expression 4. REVIEW (8 8*)—GROUNDS—"FRAUD, ACCIof an opinion, or it may be the statement of DENT, MISTAKE, OR MISFORTUNE." a fact. If the former, it is not actionable;

The words "fraud, accident, mistake, or if the latter, and false, it is actionable. If misfortune,” as used in' Rev. St. c. 91, § 1, cl.

7, providing that a writ of review may be the representation is capable of being under granted where, through fraud, accident, mistake, stood either as an expression of opinion or as or misfortune, justice has not been done, ima statement of fact, which it is must be de- port something outside of petitioner's own contermined in accordance with the understand- trol, or at least something which a reasonably

prudent man would not be expected to guard ing of the parties. If it was made as a state- against or provide for, and hence do not justify ment of fact and was so understood, it lays the issuance of such writ to review a judgment the basis for an action of deceit. So, if the

in a real action where petitioner had been sea

sonably vouched to defend under her ancestor's statement was fairly susceptible of being uncovenant of warranty, but omitted to defend derstood to be a statement of fact, and not because of her own personal neglect. a mere opinion; and the other party did so [Ed. Note. For other cases,

other cases, see Review, understand it. Hotchkiss v. Coal & Iron Co., Cent. Dig. & 8; Dec. Dig. 8.*] 108 Me. 34, 46, 78 Atl. 708. If an automobile 5. MORTGAGES ($ 226*)-MORTGAGEE IN Posis represented to be in good running condi SESSION-CONVEYANCE-EFFECT. tion, when in fact, as is claimed in this case, the property by deed, the deed will operate as

Where a mortgagee in possession conveys there are hidden defects which prevent its

an assignment of the mortgage the same as if proper operation, it is difficult to see why the the mortgage debt was assigned or transferred representation may not be deemed to be a with the deed. statement of fact, so far as those defects are [Ed. Note. For other cases, see Mortgages, concerned.

Cent. Dig. $8 457, 611-617; Dec. Dig. $ 226.*) A careful examination of the evidence 6. MORTGAGES ($ 274*)—MORTGAGEE OUT OF leads us to conclude that a jury would be POSSESSION-CONVEYANCE. warranted in finding for the plaintiff upon

A deed by a mortgagee, not having made either issue presented. It cannot be said, entry and being out of possession, conveys no

title, unless accompanied by a transfer of the we think, that the verdict is so manifestly mortgage debt, since until entry the mortgagee's wrong as to require or permit the interfer- interest is a chattel interest and not realty. ence of the court.

[Ed. Note. For other cases, see Mortgages, Motion and exceptions overruled.

Cent. Dig. $8 718–724, 728; Dec. Dig. § 274.*]

7. MORTGAGES ($ 292*)-TRANSFER OF PROPER(112 Me. 238)

TY ACTION BETWEEN OWNER OF EQUITY FARNSWORTH v. KIMBALL et al.

AND GRANTEE-DEFENSES. (Supreme Judicial Court of Maine. Oct. 8, 1914.) equity of redemption in mortgaged premises

In a real action by the owner of the 1. DESCENT AND DISTRIBUTION (8 128*)-LIA-against a grantee of the mortgagee before en

BILITY OF HEIR BREACH OF ANCESTOR'S try and while out of possession, such grantee WARRANTY.

for that reason being a re stranger to the An heir is liable for breach of her ances- title, it was no defense that he had a claim tor's warranty of title to land conveyed, to the against petitioner for breach of his grantor's extent of the property and assets which came to

covenant of warranty. her as such heir. [Ed. Note.-For other cases, see Descent and

[Ed. Note. For other cases, see Mortgages, Distribution, Cent. Dig. 88 473-477; Dec. Dig. Cent. Dig. $8 762-771, 790; Dec. Dig. $ 292.*) 8 128;* Covenants, Cent. Dig. § 92.]

Report from Supreme Judicial Court, Han2. COVENANTS ($ 121*) - CONCLUSIVENESS

PERSONS CONCLUDED-HEIRS — BREACH OF cock County, at Law.
ANCESTOB'S WARRANTY.

Petition by Lucy A. Farnsworth for a writ Where a real action was brought as to of review of a former action by Samuel S. real property which had been conveyed to the defendant therein by petitioner's ancestor, whose Kimball and another against George B. Dorr, property and assets she had inherited, and she in which defendants Kimball and another was vouched in to defend the suit by reason of recovered judgment. Petition denied. her ancestor's warranty of title, but failed to do so, she was bound by the judgment.

Argued before SAVAGE, C. J., and COR[Ed. Note.- For other cases, see Covenants, NISH, BIRD, HALEY, HANSON, and PHILCent. Dig. 88 221-223; Dec. Dig. $ 121.*] BROOK, JJ.

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

White & Carter, of Lewiston, and Hale, We merely mention the situation that it & Hamlin, of Ellsworth, for petitioner. may not serve as a precedent. Deasy & Lynam and E. S. Clark, all of Bar It should be stated further, as preliminary Harbor, for defendants.

to a discussion of the questions involved, that

the Bar Harbor Water Company, the present SAVAGE, C. J. This is a petition for a

This is a petition for a defendant in interest, has commenced an acreview of a real action in which the present tion against her as heir, upon her father's defendants, Kimball and Coffin, were plain covenant of warranty, and the action is now tiffs and one George B. Dorr was defendant, pending. and comes before this court on report. That

[4] A review may be granted "where case was tried and went to judgment at the through fraud, accident, mistake or misforApril term, 1913, of the Supreme Judicial tune, justice has not been done.” R. S. c. 91, § Court in Hancock county. It is admitted 1, cl. 7. But the words "fraud, accident, misthat during the pendency of that action and take or misfortune” are not without limitabefore trial or judgment, the record title of tion. This court said in Pickering v. Cassidy, Dorr, the defendant, passed to the Bar Har- 93 Me. 139, 44 Atl. 683, that: bor Water Company, and that the title of thing outside of the petitioner's own control, or

"The words * * ordinarily import someKimball and Coffin, the plaintiffs, had been at least something which a reasonably prudent bought and paid for by the Bar Harbor Wat- man would not be expected to guard against or er Company and had been conveyed to a provide for. It has long been regarded as estrustee for the benefit of that company. So that, when parties have had their full day in

sential to public order, security, and confidence that the water company at the time of the court,

they should abide the result. trial owned in law, or in equity, all the title * It cannot have been the intention of of all the parties of record in the suit. It is the Legislature to destroy this rule and dealso admitted that the suit was prosecuted quiring or even authorizing the court to open

stroy all reliance upon court judgments, by reto judgment by that company, at its expense; them as often as the defeated party discovers and inasmuch as it owned also the defend- some new evidence or argument." ant's title, it is a fair inference that the Following this rule, a review is denied same company maintained the defense. Ex- when it appears that the petitioner's precept as the judgment might furnish the basis dicament is due to his own fault and want for ulterior proceedings against this present of reasonable diligence. Mere mistakes in petitioner, it was entirely a moot case. opinion or judgment do not bring a case

[1, 2] The Dorr title was deraigned from within the statute. the warranty deed of William A. Farns The petitioner was seasonably vouched worth, the petitioner's father, and the peti- to defend. She then had in her possession tioner, as she is the sole living heir of her all the evidence that she has now, for want father, and the owner of property and assets of which, as she claims, an erroneous order which came to her as such heir, and thus of judgment was made. She showed it to liable upon the covenants of warranty, if her personal counsel. She furnished copies broken, was sufficiently vouched in to de- of it to the counsel defending the Dorr title. fend the original suit, but failed to do so, She says she was advised by her attorney and is accordingly bound by that judgment, that it was not necessary for her to respond as it now stands.

to the voucher, and that the attorneys for [3] It will be noticed that the petitioner Dorr had told her attorney that they would was not a party of record in the original do all they could in defense. If we should suit, and that Dorr, who was a party there, assume that her attorney did not give her is not made a party to this proceeding. For good advice, as we do not, that would not her right to institute the proceeding, the peti- be such mistake or misfortune as the statute tioner relies upon R. S. c. 91, § 1, cl. 3, contemplates. The statute certainly does not which provides that a review in civil actions mean that when a lawyer gives poor advice may be granted “on petition of a party in it is a cause for review. But the record interest who was not a party to the record, leads us to think that disinclination to be setting forth the fact of such interest, and at any expense about it was the prime reaupon filing a bond" and so forth. The peti- son for failing to appear and defend. Nottioner's right to petition is not challenged, but withstanding the advice which she says was we deem it proper to say that we think that given her, she undertook to employ a firm of her case fairly comes within the provision Ellsworth attorneys, but, being unable to get of the statute. It is probable that by strict them to name a price for which they would construction the original defendant, Dorr, take care of the suit for her, she seems to have should have been made a party to this pro decided to let the matter go. For these reaceeding, but the point has not been made. sons we might properly hold, we think, that And as he, as well as his former adversa- the failure of the petitioner to act after beries, are represented by the Bar Harbor ing vouched was due to her own personal, Water Company, their grantee, which is mak- palpable neglect, for which the statute of ing this defense, and makes no point of want reviews affords no remedy. But there are reaof proper parties, we will pass the question. sons why we think it proper to consider the

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