point, taken in connection with floating mass of ice, was, under the rule of law already laid down in 99 Me. 134, 58 Atl. 674, unprecedented and of such character that the defendant should not be legally held to have anticipated its occurrence. It is not our purpose to review all this testimony. It is from the plaintiffs' own witnesses, and we think a fair conclusion from the summary of all of it brings the decision of the case within the rule above stated. The defendant is certainly entitled to have its rights tested upon inferences drawn from the plaintiffs' witnesses, who had the best opportunity to know and the intelligence to comprehend the situation and conditions surrounding the negligence with which it is charged. We have read the testimony of all the witnesses, and we find that Thomas F. French is a good representative of this class. He was a resident of Palmyra and lived about 50 rods west of the bridge at the time of the freshet. His testimony satisfies us that the freshet of April 10, 1901, was the highest since 1887. While he testifies that he has seen the water run over the road at the ends of the bridge two or three times, yet he says it would not come within a foot or 15 inches of the bridge. In answer to direct questions, he says: "Q. The highest water you ever saw at the bridge was when? A. In 1901. Q. April? A. April; yes, sir." With respect to the height of the water in April, 1901, this witness testified: "Q. And did the water come up to the bridge? A. It did." He also said it remained there for a period of three or four days. He further testifies that the water alone did not take the bridge away, and would not have done so if it had flowed over the bridge at a height of five feet, but that a large field of ice, formed in a cove like the one he and others were trying to fasten to prevent them from escaping and striking the bridge, was raised and carried by an extraordinary height of water and the course of the winds into the channel and down the river to the destruction of the bridge; also that this river is a warm stream, that the ice melts away, and the flowage of ice is uncommon. J. F. Rand, of the town of Palmyra, another witness who had opportunity to know, says that in this freshet of 1901 the water was the highest he ever knew, and that it was the "biggest freshet" he had ever seen. While other witnesses testify to the existence of very high water at several times between 1887 and 1901, we are unable to discover that the testimony of any one of them, when fairly analyzed and compared with the monuments by which they seek to determine the height of the water, is in serious conflict with that of the two witnesses above quoted. They speak of the water running over the road at the ends of the bridge; but, as before suggested, when the height of the water over the road to which they testified is com pared to the height of the bridge, it will be seen that at these times the water was considerably below the bottom of the bridge, while at this time it was almost up to it, within an inch or two of it. Under certain conditions a six-inch rise of water may change an ordinary freshet to an extraordinary and damaging one. In the case at bar, we are inclined to think that this was the case. Mr. French, in speaking of the ice in this river, says: "There never is any ice comes down that river. It is a warm river, and we never see any ice in it in the spring coming down. It always thaws before the ice breaks up. There is never any ice any way up in that river, for it thaws out and comes down, and that is all we see in the river." In speaking of the flowage of, the ice, this witness says: "We went up upon this piece of ice that came out of the cove. The river was clear; but there was a cove up above there, perhaps an acre or two, and the wind was to the eastward then; but we went up there to that piece of ice, and I thought I would stick down poles through it to fasten it, and if we could fasten that cake of ice the bridge would stay where it was; but the wind swung around into the northwest and took this on the Billy Moore and Mike Dyer place, and it moved that out into the river, while we were up on the right of the river fastening this other piece. Q. Was that a large cake of ice? A. It was; yes, sir. Q. And thick? A. It was some 12 or 15 inches thick, I should think." No witness in the case testifies to any previous occasion when any menace or injury was threatened to structures upon this river from fields of floating ice. We think that the combination of the elements which produced this floating mass of ice should relieve the defendant from the charge of negligence in not anticipating and providing against it. While they should be held as a matter of common knowledge to anticipate and forestall the ordinary or even the unusual flow of ice, in the ordinary or even the unusual freshets, yet we do not think the rule of law governing this class of cases required them to anticipate the unprecedented raising and loosening of a great square of ice and its passage down the river in one solid mass. The case falls fairly within the principles laid down in China v. Southwick et al., 12 Me. 238. The two cases are somewhat similar. In both cases the dam was legally erected and maintained, and not calculated to cause any damage to the plaintiffs' bridge at the usual and ordinary stages of the water throughout the year, including the usual recurring, and to be expected, freshets at the different seasons as they occurred in the series of years. In the Southwick Case, the loss was occasioned by great rains and by the violence of the wind, and the court say in this case: "If the dam had not raised the water to a certain height, the rain and wind superadded might not have done the damage. Their connection, however, was fortuitous, and resuited from the extraordinary and unusual state of things." So, in the case at bar, while the dam may have contributed to the causes which produced the loss of the bridge, it was not, however, responsible for the combination of wind, water, and ice that swept it away. Exceptions overruled. (102 Me. 335) THOMPSON v. RICHMOND. (Supreme Judicial Court of Maine. Dec. 18, 1906.) 1. COVENANTS-ACTION FOR BREACH - WHO MAY BRING. When land conveyed with covenants of warranty has passed by subsequent conveyances, with like covenants of warranty, through the hands of various covenantees, the last covenautee or assignee in whose possession the land was when the covenant was broken can alone sue for the breach, and he has a right of action against any or all of the prior warrantors. No intermediate covenantee can sue his covenantor until he himself has been compelled to pay damages on his own covenant. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 78-82.] 2. SAME-COVENANTS RUNNING WITH LAND. General covenants of warranty in a deed of land are prospective and run with the estate, and consequently vest in assignees and descend to heirs. But covenants of seisin and those against incumbrances are personal covenants in præsenti, which do not run with the land and are not assignable by the general law. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 59-64.] (Official.) Report from Supreme Judicial Court, Franklin County. Action by Roscoe H. Thompson against Frederick S. Richmond, trustee. Case reported. Judgment for plaintiff. Action of covenant broken to recover damages for a breach of the covenant against incumbrances brought by the original covenantee against the original covenantor after conveyance of the land by the former. The land to which this action relates is situate in the town of Jay. Plea, the general issue, and a brief statement alleging as follows: "(1) That the defendant has fulfilled, performed, and kept all and singular the covenants, grants, and agreements on his part to be fulfilled and performed. "(2) That the plaintiff has never been disturbed in the quiet enjoyment of the premises described in his said declaration, or in his right to use said premises according to the true intent and meaning of said grant. "(3) That at the time of the commencement of the plaintiff's said action he had no right, title, or interest in and to the premises described in his said declaration." This action came on for trial at the May term, 1906, of the Supreme Judicial Court, Franklin county. An agreed statement of facts was filed and the case was withdrawn from the jury and reported to the law court, with the stipulation that the law court should "render judgment in accordance with the law and the facts of the case." All the material facts are stated in the opinion. Argued before WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ. E. E. Richards and R. H. Thompson, for plaintiff. Joseph C. Holman, for defendant. WHITEHOUSE, J. This is an action of covenant broken to recover damages for a breach of the covenant against incumbrances brought by the original covenantee against the original covenantor after conveyance of the land by the former. December 26, 1887, the defendant, Richmond, conveyed the premises in question to the plaintiff, Thompson, by warranty deed containing the usual covenant against incumbrances. At that time the premises were subject to a mortgage given by the defendant to Adeline B. Crafts, dated May 20, 1882. June 27, 1901, the plaintiff conveyed the premises by warranty deed to Helen C. Thompson, who, in like manner, by warranty deed of November 20, 1895, conveyed to Augusta M. Bean. The latter by warranty deed of June 21, 1897, conveyed the premises to Israel Bean, who died intestate in May, 1905, leaving two sons, George H. and Perley Bean, to whom the title descended and who now have title and possession. They had no notice of the incumbrance on the premises until after the commencement of this action. The mortgage constituting the incumbrance was foreclosed and by assignment came to Herbert C. Whittemore July 28, 1898. Whittemore quitclaimed his interest in the premises to the plaintiff, Thompson, by deed dated December 1, 1904, for which it is claimed the plaintiff gave him a note for $250. December 26, 1887, the defendant, Richmond, conveyed to Alvin Record the real estate covered by the Crafts mortgage given by him excepting the lot in question which he had previously conveyed to the plaintiff, Thompson. By this deed Richmond conveys the land to Record subject to the Crafts mortgage, but, in the language of the agreed statement, "Richmond says that Record was to pay the Crafts mortgage as a part of the consideration of the deed to Record." The following statement also appears among the facts reported: "Roscoe H. Thompson says that he gave his note for $250 to Herbert C. Whittemore for the quitclaim deed of the premises at the time of the conveyance to him of December 1, 1904." The plaintiff, Thompson, has never been sued on his covenants in his deed of the premises to Helen C. Thompson, nor was he ever threatened with suit or claim on account of such covenants by any person except Whittemore. The plaintiff was first notified of the incumbrance in question on the real estate described in the writ, by H. C. Whittemore, a few weeks before the date of the writ and payment demanded. The defendant refused to do anything to satisfy Whittemore before the plaintiff made the settlement with him. It is agreed that the sum paid is a fair and reasonable amount to free the real estate from the incumbrance named. The case is reported to the law court upon an agreed statement of facts. When land conveyed with covenants of warranty has passed by subsequent conveyances, with like covenants of warranty, through the hands of various covenantees, the last covenantee or assignee in whose possession the land was when the covenant was broken can alone sue for the breach, and he has a right of action against any and all of the prior warrantors. No intermediate covenantee can sue his covenantor until he himself has been compelled to pay damages on his own covenant. 2 Chitty on Cont. 1388; Crooker v. Jewell, 29 Me. 527. General covenants of warranty in a deed of land are prospective and run with the estate, and consequently vest in assignees and descend to heirs; but covenants of seisin and those against incumbrances are personal covenants in præsenti, which do not run with the land, and are not assignable by the general law. Allen v. Little, 36 Me. 170. The provisions of section 30, c. 84, Rev. St., only authorize the assignee of a grantee to maintain an action for the breach of such covenants after eviction by an older and better title, and are therefore not applicable to the case at bar where there has been no eviction of the owners of the premises in question. In the intermediate conveyances from the plaintiff to the Beans, who are the present owners, the deeds have all contained covenants of warranty. If the present owners, who are in possession of the estate, had been evicted by the enforcement of Whittemore's mortgage claim, they could have availed themselves of the covenants in the deeds of the prior warrantors, and thus the defendant, Richmond, the first covenantor, might ultimately have been vouched in to defend. It appears, however, that the Beans, the present owners, have never been disturbed in their quiet possession of the premises by any one claiming any right or title thereto by virtue of the Crafts mortgage, and never knew there was such a mortgage until the commencement of this suit. It further appears that the plaintiff has never been sued on his covenants in his deed of the premises to Helen C. Thompson, and was never threatened with any suit or claim on account of such covenants by any person, except Whittemore. According to the agreed statement of facts reported, the plaintiff Thompson "says" that he gave his note for $250 to Whittemore for the quitclaim deed of the premises in 1904. If this statement ascribed to Thompson is presented for the consideration of the court as one of the "facts agreed" by the parties, it must be assumed that the plaintiff paid $250 to purchase the outstanding title from Whittemore. But prior to his conveyance of all his interest in the estate to Helen C. Thompson, by deed with covenants of warranty, the plaintiff had sustained no damage on account of the Crafts mortgage; and after a grantee of land has conveyed his estate he can maintain no suit upon such covenants unless prior to his conveyance he had been damnified. Allen v. Little, 36 Me. 170; Griffin v. Fairbrother, 10 Me. 91. A covenantee who has conveyed his estate to a second grantee with warranty cannot maintain an action against his covenantor for a breach of the warranty subsequently occurring, unless he is compelled to pay damages upon his own covenant of warranty, so that the first covenantor may not be liable to be twice charged. Wheeler v. Sohier, 3 Cush. (Mass.) 219. Prior to his purchase of the outstanding interest claimed by Whittemore the plaintiff had not suffered any damage, and might never have sustained any. His voluntary act in purchasing the outstanding title without the request or the consent of the present owner of the estate does not entitle him to recover in this suit the amount thus expended. But, as there was a breach of the covenant against incumbrances at the time the plaintiff received his deed from the defendant, he is entitled to recover nominal damages in this action. Judgment for plaintiff for $1. INTOXICATING LIQUORS-MAINTAINING NUISANCE-EVIDENCE-UNITED STATES LICENSE. The defendant was tried upon an indictment charging him with keeping and maintaining a liquor nuisance. The state proved that during the period covered by the indictment the defendant had paid a United States special tax as a retail liquor dealer. The defendant offered to show the circumstances in relation to his taking out this license, and why the tax had been paid by him, which evidence was excluded. The fact of the payment of this special tax is equivalent to an admission claimed to have been made; but it is always competent, not only to deny the fact of an admission, but, as well, to explain its significance by showing other facts which may have that effect. The real question as to the importance and weight of the fact of the payment of this tax is as to the intent of the person who made the payment at the time, and, whenever the intent of a person is relevant to the issue, that person may testify as to what his intention was, although the value of such testimony is always for the jury. Held, that the defendant was entitled to make an explanation of the fact relied upon by the state, and to have the jury consider it in connection with that fact. (Official.) Exceptions from Supreme Judicial Court, York County. John B. Morin was convicted of keeping and maintaining a liquor nuisance, and excepts. Exceptions sustained. The state proved that in January, 1905, during the period covered by the indictment, the defendant paid a United States special tax as a retail liquor dealer. See Rev. St. c. 29, § 49. The defendant then "offered to explain why and how he came to pay the tax," which evidence was excluded by the presiding justice. To this ruling the defendant took exceptions. Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, and SPEAR, JJ. George L. Emery, Co. Atty., for the State. George F. & Leroy Haley and John P. Deering, for defendant. WISWELL, C. J. The defendant was tried upon an indictment charging him with maintaining a liquor nuisance between July 1, 1904, and the day of the finding of the indictment, at the May term, 1905, of the court. The state proved that in January, 1905, during the period covered by the indictment, the defendant paid a United States special tax as a retail liquor dealer. There upon counsel for the defendant sought by various questions asked of the defendant to show the circumstances in relation to his taking out this license, and why the tax had been paid by him; one question being: "Why did you pay this special tax?" The question and others of a similar character asked for the same general purpose were exIcluded. We think that this was erroneous. It is provided by one of the clauses of the Revised Statutes (chapter 29, § 49) that "the payment of the United States special tax as a liquor seller shall be held to be prima facie evidence that the person or persons paying said tax, * * are common sellers of intoxicating liquors, and the premises so kept by them common nuisances." This provision was construed in State v. Intoxicating Liquors, 80 Me. 57, wherein it was declared by the court that the meaning of this clause was that "such evidence is competent and sufficient to satisfy a jury in finding the defendant guilty, provided it does, in fact, satisfy them of his guilt beyond a reasonable doubt, and not otherwise." This was affirmed in State v. O'Connell, 82 Me. 30, 19 Atl. 86. That is, the weight to be given to the fact of the payment of this special tax, upon the question of the guilt of the person paying the tax, is entirely for the jury. The process of reasoning, by which guilt may be inferred from this fact, is that it is probable, or. at least, more probable than otherwise, that a person would not pay a tax as a liquor dealer unless he intended to engage in that business, and that consequently it is a prop er inference by induction from the fact of such payment that he is engaged in such business. But it is not impossible that the fact of the payment of this tax may be consistent with For some other hypothesis. instance, suppose a duly appointed liquor agent should be informed by an official connected with the internal revenue department of the United States that it was necessary for him as a liquor agent to pay this special tax, and, believing that this was necessary, and solely for the purpose of complying with the requirements of the United States laws, he pays the special tax, would it not be admissible for him to explain the circumstances of the payment and the reasons why he made the payment? It is equally true that the payment of the tax may be consistent with some other hypothesis besides that of an intention to engage in the business of unlawfully selling liquor. As said by Prof. Wigmore in his work on Evidence (volume 1, § 31): "The peculiar danger, then, of inductive proof, is that there may be other explanations than the desired one for the fact taken as the basis of proof." For this reason, whenever a fact is relied upon as tending to prove a proposition, it must be competent and proper to offer an explanation of that fact for the purpose of showing that, whatever inference may be ordinarily drawn therefrom, that the fact relied upon is consistent with some other hypothesis, or to show, by the explanation offered, that the probable inference, or the inference desired to be drawn from the fact, is not the true one. "On the general logical principle of explanation, the opponent may always introduce such facts as serve to explain away on some other hypothesis the apparent significance of the fraudulent conduct." Wigmore on Evidence, § 281. rule is, of course the same when the explanation offered is to explain away on some other hypothesis the apparent significance of some fact relied upon. The The fact of the payment of this special tax is equivalent to an admission claimed to have been made. But it is always competent, not only to deny the fact of the admission, but, as well, to explain its significance by showing other facts which may have that effect. The real question as to the importance and weight of the fact of the payment of this tax is as to the intent of the person who made the payment at the time. It is well settled that, whenever, the intent of a person is relevant to the issue, that person may testify as to what his in tention was. The value of such testimony is, of course, always for the jury. The explanation offered in any case may be valueless and unsatisfactory, but the defendant in this case was entitled to make an explanation of the fact relied upon by the state, and to have the jury consider it in connection with that fact. Exceptions sustained. 1906.) AMENDMENT · DECLARATION 1. PLEADING A defect in a declaration in an action of trespass consisting of the omission of the words "vi et armis" may be cured by amendment at any stage of the case. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 653-675.] 2. TRIAL-EXCEPTIONS TO TESTIMONY-WAIVEB. A party's exceptions to the introduction of testimony are waived by subsequent cross-examination on the same subjects. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 181, 974, 975.] Action by John C. Gautieri against Frank Romano. Judgment for plaintiff, and defendant petitions for new trial. Petition denied, and cause remitted for judgment on the verdict. Page & Page & Cushing, for plaintiff. John C. Quinn, for defendant. PER CURIAM. The motion in arrest of judgment must be denied. The defect in the declaration is the omission of the words "vi et armis," which may be cured by amendment at any stage of the case. Barlow v. Tierney, 26 R. I. 557, 59 Atl. 930. The defendant's exceptions to the introduction of testimony were all waived by subsequent cross-examination upon the same subjects. The greater part of the testimony was superfluous, and much of it impertinent. Both parties seem to have endeavored to waste as much time as the court would permit, and extraordinary latitude was allowed. We find the verdict fairly supported by the evidence, and the amount of the verdict is not grossly excessive. The petition for a new trial is denied, and the cause is remitted to the Superior Court for judgment on the verdict. (217 Pa. 399) PRESBYTERIAN CHURCH v. PHILADEL- It is a question of fact to be determined by the trial court whether an application for change of venue, under Act March 30, 1875 (P. L. 35) 1, par. 5, on the ground that a large number of inhabitants in the county have an interest in the question involved adverse to the applicant, justifies a change. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3836.] Appeal from Court of Common Pleas, Bucks County. Action by the Presbyterian Church at Bristol against the Philadelphia, Bristol & Trenton Street Railway Company. From an order refusing a change of venue, defendant appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and ELKIN, JJ. George Quintard Horwitz, Howard I. James, and Layton M. Schoch, for appellant. Yerkes, Ross & Ross and John C. Stuckert, for ap pellee. PER CUFIAM. An application for a change of venue under paragraph 5 of section 1 of the Act of March 30, 1875 (P. L. 35), on the ground that "a large number of inhabitants of the county in which the cause is pending have an interest in the question involved therein, adverse to the applicant," raises a question of fact for the decision of the judge. Everson v. Sun Co., 215 Pa. 231, 64 Atl. 365. What is a large number of inhabitants is a relative question depending on the circumstances. A few hundred might be a large number in some communities, while as many thousands might not be in others. So, in regard to the interest which is averred to be adverse to the petitioner in the application. Its intensity, its particular or general character, its diffusion throughout the county, or confinement to one or more localities, are all elements bearing on its reaching the requirements of the statute. All of them, both as to number and interest, are addressed to the judicial discretion of the judge. In the present case the learned judge below went fully and carefully into the inquiry. It would not be desirable to incumber the report with the details, but the result may be summed up substantially in his finding that the interest in the matter in its widest aspect was confined to a portion of the borough of Bristol, and the population of the borough is less than one-tenth that of the county. He was, therefore, "quite satisfied that there will be no difficulty in obtaining a disinterested and impartial jury, jurors who have never even heard of the case." With his local knowledge of the places and the people, the judge's opinion is much more likely to be correct than ours could be, and we certainly have not been shown any reason to interfere with it. Order affirmed. |