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point, taken in connection with floating mass pared to the height of the bridge, it will be of ice, was, under the rule of law already seen that at these times the water was conlaid down in 99 Me. 134, 58 Atl. 674, un siderably below the bottom of the bridge, precedented and of such character that the while at this time it was almost up to it, defendant should not be legally held to have within an inch or two of it. Under certain anticipated its occurrence.
conditions a six-inch rise of water may It is not our purpose to review all this tes change an ordinary freshet to an extraorditimony. It is from the plaintiffs' own wit nary and damaging one. In the case at bar, nesses, and we think a fair conclusion from we are inclined to think that this was the the summary of all of it brings the decision case. Mr. French, in speaking of the ice of the case within the rule above stated. in this river, says: “There never is any ice The defendant is certainly entitled to have comes down that river. It is a warm river, its rights tested upon inferences drawn from and we never see any ice in it in the spring the plaintiffs' witnesses, who had the best coming down. It always thaws before the ice opportunity to know and the intelligence to breaks up. There is never any ice any way comprehend the situation and conditions sur up in that river, for it thaws out and comes rounding the negligence with which it is down, and that is all we see in the river." charged.
In speaking of the flowage of the ice, this We have read the testimony of all the witness says: "We went up upon this piece witnesses, and we find that Thomas F. of ice that came out of the cove. The river French is a good representative of this class. was clear; but there was a cove up above He was a resident of Palmyra and lived there, perhaps an acre or two, and the wind about 50 rods west of the bridge at the time was to the eastward then; but we went up of the freshet. His testimony satisfies us there to that piece of ice, and I thought I that the freshet of April 10, 1901, was the would stick down poles through it to fasten highest since 1887. While he testifies that it, and if we could fasten that cake of ice he has seen the water run over the road at the bridge would stay where it was; but the ends of the bridge two or three times, the wind swung around into the northwest yet he says it would not come within a foot and took this on the Billy Moore and Mike or 15 inches of the bridge. In answer to Dyer place, and it moved that out into the direct questions, he says: “Q. The highest | river, while we were up on the right of the water you ever saw at the bridge was when? river fastening this other piece. Q. Was that A. In 1901. Q. April? A. April; yes, sir." a large cake of ice? A. It was; yes, sir. With respect to the height of the water in Q. And thick? A. It was some 12 or 15 April, 1901, this witness testified: “Q. And inches thick, I should think.” did the water come up to the bridge? A. It No witness in the case testifies to any predid." He also said it remained there for a vious occasion when any menace or injury was period of three or four days. He further threatened to structures upon this river from testifies that the water alone did not take the fields of floating ice. We think that the combridge away, and would not have done so if bination of the elements which produced this it had flowed over the bridge at a height of floating mass of ice should relieve the de five feet, but that a large field of ice, formed fendant from the charge of negligence in not in a cove like the one he and others were anticipating and providing against it. While trying to fasten to prevent them from escap they should be held as a matter of common ing and striking the bridge, was raised and knowledge to anticipate and forestall the carried by an extraordinary height of water ordinary or even the unusual flow of ice, in and the course of the winds into the chan the ordinary or even the unusual fresbets, nel and down the river to the destruction of yet we do not think the rule of law governthe bridge; also that this river is a warm ing this class of cases required them to anticistream, that the ice melts away, and the pate the unprecedented raising and loosening flowage of ice is uncommon.
of a great square of ice and its passage J. F. Rand, of the town of Palmyra, an down the river in one solid mass. other witness who had opportunity to know, The case falls fairly within the principles says that in this freshet of 1901 the water laid down in China v. Southwick et al., 12 was the highest he ever knew, and that Me. 238. The two cases are somewhat simi. it was the "biggest freshet" he had ever lar. In both cases the dam was legally erectseen. While other witnesses testify to the ed and maintained, and not calculated to existence of very high water at several times cause any damage to the plaintiffs' bridge between 1887 and 1901, we are unable to dis at the usual and ordinary stages of the water cover that the testimony of any one of them, throughout the year, including the usual rewhen fairly analyzed and compared with the curring, and to be expected, freshets at the monuments by which they seek to determine different seasons as they occurred in the the height of the water, is in serious conflict series of years. In the Southwick Case, the with that of the two witnesses above quoted. loss was occasioned by great rains and by the They speak of the water running over the violence of the wind, and the court say in road at the ends of the bridge; but, as be this case: "If the dam had not raised the fore suggested, when the height of the water water to a certain height, the rain and wind over the road to which they testified is com superadded might not have done the damage.
Their connection, however, was Franklin county. An agreed statement of fortuitous, and resulted from the extraordi- facts was filed and the case was withdrawn nary and unusual state of things." So, in from the jury and reported to the law court, the case at bar, while the dam may have con with the stipulation that the law court should tributed to the causes which produced the "render judgment in accordance with the loss of the bridge, it was not, however, re law and the facts of the case.” sponsible for the combination of wind, water, All the material facts are stated in the and ice that swept it away.
opinion. Exceptions overruled.
Argued before WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.
E. E. Richards and R. H. Thompson, for (102 Me. 335)
plaintiff. Joseph C. Holman, for defendant. THOMPSON V. RICHMOND. (Supreme Judicial Court of Maine. Dec. 18,
WHITEHOUSE, J. This is an action of 1906.)
covenant broken to recover damages for a 1. COVENANTS — ACTION FOR BREACH – WHO
breach of the covenant against incumbrances MAY BRING.
brought by the original covenantee against When land conveyed with covenants of war. ranty has passed by subsequent conveyances,
the original covenantor after conveyance of with like covenants of warranty, through the the land by the former. hands of various covenantees, the last cove. December 26, 1887, the defendant, Richnautee or assignee in whose possession the land was when the covenant was broken can alone
mond, conveyed the premises in question to sue for the breach, and he has a right of action the plaintiff, Thompson, by warranty deed against any or all of the prior warrantors. No containing the usual covenant against inintermediate covenantee can sue his covenantor
cumbrances. At that time the premises were until he himself bas been compelled to pay damages on his own covenant.
subject to a mortgage given by the defend(Ed. Note.-For cases in point, see Cent. Dig.
ant to Adeline B. Crafts, dated May 20, 1882. vol. 14, Covenants, $8 78-82.]
June 27, 1901, the plaintiff conveyed the 2 SAME-COVENANTS RUNNING WITH LAND. premises by warranty deed to Helen C.
General covenants of warranty in a deed of Thompson, who, in like manner, by warranland are prospective and run with the estate, ty deed of November 20, 1895, conveyed to and conseguently vest in assignees and descend
Augusta M. Bean. The latter by warranty to heirs. But covenants of seisin and those against incumbrances are personal covenants in
deed of June 21, 1897, conveyed the prempresenti, which do not run with the land and ises to Israel Bean, who died intestate in are not assignable by the general law.
May, 1905, leaving two sons, George H. and (Ed. Note.–For cases in point, see Cent. Dig. Perley Bean, to whom the title descended and vol. 14, Covenants, 88 59-64.)
who now have title and possession. They (Official.)
had no notice of the incumbrance on the Report from Supreme Judicial Court,
premises until after the commencement of Franklin County.
this action. Action by Roscoe H. Thompson against
The mortgage constituting the incumbrance Frederick S. Richmond, trustee. Case re
was foreclosed and by assignment came to ported. Judgment for plaintiff.
Herbert C. Whittemore July 28, 1898. Whit.
temore quitclaimed his interest in the premAction of covenant broken to recover dam
ises to the plaintiff, Thompson, by deed datages for a breach of the covenant against in
ed December 1, 1904, for which it is claimed cumbrances brought by the original covenan
the plaintiff gave him a note for $250. tee against the original covenantor after con
December 26, 1887, the defendant, Richveyance of the land by the former. The
mond, conveyed to Alvin Record the real esland to which this action relates is situate in
tate covered by the Crafts mortgage given the town of Jay.
by him excepting the lot in question which Plea, the general issue, and a brief state
he had previously conveyed to the plaintiff, ment alleging as follows:
Thompson. By this deed Richmond conveys "(1) That the defendant has fulfilled, per the land to Record subject to the Crafts formed, and kept all and singular the cove mortgage, but, in the language of the agreed nants, grants, and agreements on his part statement, “Richmond says that Record was to be fulfilled and performed.
to pay the Crafts mortgage as a part of the “(2) That the plaintiff has never been dis consideration of the deed to Record." The turbed in the quiet enjoyment of the prem following statement also appears among the ises described in his said declaration, or in facts reported: "Roscoe H. Thompson says his right to use said premises according to that he gave his note for $250 to Herbert C. the true intent and meaning of said grant. Whittemore for the quitclaim deed of the
"(3) That at the time of the commence premises at the time of the conveyance to him ment of the plaintiff's said action he had no of December 1, 1904." right, title, or interest in and to the prem The plaintiff, Thompson, has never been ises described in his said declaration." sued on his covenants in his deed of the prem
This action came on for trial at the May ises to Helen C. Thompson, nor was he ever term, 1906, of the Supreme Judicial Court, threatened with suit or claim on account of
such covenants by any person except Whit-, reported, the plaintiff Thompson “sayg” that temore.
he gave his note for $250 to Whittemore for The plaintiff was first notified of the in. the quitclaim deed of the premises in 1904. cumbrance in question on the real estate de If this statement ascribed to Thompson is scribed in the writ, by II. C. Whittemore, a presented for the consideration of the court few weeks before the date of the writ and as one of the "facts agreed” by the parties, payment demanded. The defendant refused it must be assumed that the plaintiff paid to do anything to satisfy Whittemore before $250 to purchase the outstanding title from the plaintiff made the settlement with him. Whittemore. But prior to his conveyance of It is agreed that the sum paid is a fair and all his interest in the estate to Helen C. reasonable amount to free the real estate Thompson, by deed with covenants of warfrom the incumbrance named.
ranty, the plaintiff had sustained no damage The case is reported to the law court upon on account of the Crafts mortgage; and aftan agreed statement of facts.
er a grantee of land has conveyed his estate When land conveyed with covenants of he can maintain no suit upon such covenants warranty has passed by subsequent convey. unless prior to his conveyance he had been ances, with like covenants of warranty, damnified. Allen v. Little, 36 Me. 170; Grifthrough the hands of various covenantees, the fin v. Fairbrother, 10 Me. 91. A covenantee last covenantee or assignee in whose posses who has conveyed bis estate to a second gran. sion the land was when the covenant was tee with warranty cannot maintain an action broken can alone sue for the breach, and he against his covenantor for a breach of the has a right of action against any and all warranty subsequently occurring, unless he is of the prior warrantors. No intermediate compelled to pay damages upon his own cove covenantee can sue his covenantor until he nant of warranty, so that the first covenanhimself has been compelled to pay damages tor may not be liable to be twice charged. on his own covenant. 2 Chitty on Cont. 1388; Wheeler v. Sohier, 3 Cush. (Mass.) 219. Prior Crooker v. Jewell, 29 Me. 527.
to his purchase of the outstanding interest General covenants of warranty in a deed claimed by Whittemore the plaintiff had not of land are prospective and run with the suffered any damage, and might never have estate, and consequently vest in assignees and sustained any. His voluntary act in purchasdescend to beirs; but covenants of seisining the outstanding title without the request and those against incumbrances are personal or the consent of the present owner of the covenants in præsenti, which do not run estate does not entitle him to recover in this with the land, and are not assignable by suit the amount thus expended. But, as there the general law. Allen v. Little, 36 Me. 170. was a breach of the covenant against incumThe provisions of section 30, c. 84, Rev. St., brances at the time the plaintiff received his only authorize the assignee of a grantee to deed from the defendant, he is entitled to maintain an action for the breach of such recover nominal damages in this action. covenants after eviction by an older and bet Judgment for plaintiff for $1. ter title, and are therefore not applicable to the case at bar where there has been no eviction of the owners of the premises in ques
(102 Me. 290) tion.
STATE V. MORIN. In the intermediate conveyances from the (Supreme Judicial Court of Maine. Dec. 18, plaintiff to the Beans, who are the present
1906.) owners, the deeds have all contained cove INTOXICATING LIQUORS-MAINTAINING Nuinants of warranty. If the present owners,
SANCE-EVIDENCE-UNITED STATES LICENSE.
The defendant was tried upon an indictwho are in possession of the estate, had been
ment charging him with keeping and maintainevicted by the enforcement of Whittemore's ing a liquor nuisance. The state proved that mortgage claim, they could have availed during the period covered by the indictment themselves of the covenants in the deeds of
the defendant had paid a United States special
tax as a retail liquor dealer. The defendant the prior warrantors, and thus the defend offered to show the circumstances in relation ant, Richmond, the first covenantor, might to his taking out this license, and why the tax ultimately have been vouched in to defend.
had been paid by him, which evidence was ex
cluded. The fact of the payment of this special It appears, however, that the Beans, the
tax is equivalent to an admission claimed to present owners, have never been disturbed have been made ; but it is always competent, in their quiet possession of the premises by not only to deny the fact of an admission, but, any one claiming any right or title thereto
as well, to explain its significance by showing
other facts which may have that effect. The by virtue of the Crafts mortgage, and never
real question as to the importance and weight knew there was such a mortgage until the of the fact of the payment of this tax is as to commencement of this suit. It further ap
the intent of the person who made the pay.
ment at the time, and, whenever the intent of pears that the plaintiff has never been sued
a person is relevant to the issue, that person on his covenants in his deed of the premises may testify as to what his intention was, alto Helen C. Thompson, and was never threat though the value of such testimony is always for ened with any suit or claim on account of
the jury. Held, that the defendant was entitled
to make an explanation of the fact relied upon such covenants by any person, except Whit
by the state, and to have the jury consider it temore.
in connection with that fact. According to the agreed statement of facts (Official.)
John B. Morin was convicted of keeping Fact of the payment of this tax may be con
Exceptions from Supreme Judicial Court, er inference by induction from the fact of York County.
such payment that he is engaged in such
business. But it is not impossible that the and maintaining a liquor nuisance, and excepts. Exceptions sustained.
sistent with some other hypothesis. For The state proved that in January, 1905,
instance, suppose a duly appointed liquor during the period covered by the indictment,
agent should be informed by an official conthe defendant paid a United States special
nected with the internal revenue department
of the United States that it was necessary tax as a retail liquor dealer. See Rev. St. c. 29, § 49. The defendant then "offered to
for him as a liquor agent to pay this special explain why and how he came to pay the
tax, and, believing that this was necessary, tax," which evidence was excluded by the
and solely for the purpose of complying presiding justice. To this ruling the defend
with the requirements of the United States ant took exceptions.
laws, he pays the special tax, would it not
be admissible for him to explain the circumArgued before WISWELL, C. J., and
stances of the payment and the reasons why EMERY, WHITEHOUSE, SAVAGE, and SPEAR, JJ.
he made the payment? It is equally true
that the payment of the tax may be consistGeorge L. Emery, Co. Atty., for the State. ent with some other hypothesis besides that George F. & Leroy Haley and John P. Deer of an intention to engage in the business of ing, for defendant.
unlawfully selling liquor.
As said by Prof. Wigmore in his work on WISWELL, C. J. The defendant was Evidence (volume 1, § 31): "The peculiar tried upon an indictment charging him with danger, then, of inductive proof, is that there maintaining a liquor nuisance between July may be other explanations than the desired 1, 1904, and the day of the finding of the one for the fact taken as the basis of proof.” indictment, at the May term, 1905, of the For this reason, whenever a fact is relied court. The state proved that in January, upon as tending to prove a proposition, it 1905, during the period covered by the in must be competent and proper to offer an dictment, the defendant paid a United States explanation of that fact for the purpose of special tax as a retail liquor dealer. There showing that, whatever inference may be upon counsel for the defendant sought by ordinarily drawn therefrom, that the fact various questions asked of the defendant to relied upon is consistent with some other show the circumstances in relation to his hypothesis, or to show, by the explanation taking out this license, and why the tax offered, that the probable inference, or the had been paid by him; one question being: inference desired to be drawn from the fact, "Why did you pay this special tax?” The is not the true one. "On the general logical question and others of a similar character principle of explanation, the opponent may asked for the same general purpose were ex
always introduce such facts as serve to excluded. We think that this was erroneous. plain away on some other hypothesis the
It is provided by one of the clauses of the apparent significance of the fraudulent conRevised Statutes (chapter 29, § 49) that "the duct.” Wigmore on Evidence, § 281. The payment of the United States special tax as rule is, of course the same when the explanaa liquor seller
shall be held to be tion offered is to explain away on some othprima facie evidence that the person or per
er hypothesis the apparent significance of sons paying said tax,
some fact relied upon. sellers of intoxicating liquors, and the prem The fact of the payment of this special ises so kept by them common nuisances.” tax is equivalent to an admission claimed to This provision was construed in State v. In
have been made. But it is always comtoxicating Liquors, 80 Me. 57, wherein it petent, not only to deny the fact of the adwas declared by the court that the meaning mission, but, as well, to explain its signifof this clause was that "such evidence is icance by showing other facts which may competent and sufficient to satisfy a jury
have that effect. The real question as to in finding the defendant guilty, provided it the importance and weight of the fact of the does, in fact, satisfy them of his guilt be payment of this tax is as to the intent of yond a reasonable doubt, and not otherwise." the person who made the payment at the This was affirmed in State v. O'Connell, 82 time. It is well settled that, whenever, the Me. 30, 19 Atl. 86.
intent of a person is relevant to the issue, That is, the weight to be given to the fact that person may testify as to what his in. of the payment of this special tax, upon the tention was. The value of such testimony is, question of the guilt of the person paying of course, always for the jury. The exthe tax, is entirely for the jury. The process planation offered in any case may be value of reasoning, by which guilt may be infer. less and unsatisfactory, but the defendant red from this fact, is that it is probable, or, in this case was entitled to make an explanaat least, more probable than otherwise, that tion of the fact relied upon by the state, a person would not pay a tax as a liquor and to have the jury consider it in connecdealer unless he intended to engage in that tion with that fact. business, and that consequently it is a prop Exceptions sustained.
refusing a change of venue, defendant ap peals. 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 appellee.
(28 R. I. 246)
GAUTIERI V. ROMANO. (Supreme Court of Rhode Island. April 16,
1906.) 1. PLEADING - AMENDMENT DECLABATIONTIME OF AMENDMENT-TRESPASS.
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, 88 653-675.) 2. TRIAL-EXCEPTIONS TO TESTIMONY-WAIV. LB.
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 de nied, 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 perrit, 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.
PER CUNIAM. 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 aver. red 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 statate. 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 find. ing 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 satis fied 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.
(217 Pa. 399) PRESBYTERIAN CHURCH V. PHILADEL
PHIA, B. & T, ST. RY. CO. (Supreme Court of Pennsylvania. April 1, 1907.) APPEAL-REVIEW-QUESTIONS OF FACT-VEN
UE-APPLICATION FOR CHANGE-DISCRETION OF COURT.
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
(217 Pa. 425) COMMONWEALTH ex rel. PRICE V. GAR
VEY. (Supreme Court of Pennsylvania. April 1
1907.) MUNICIPAL CORPORATIONS--CITY TREASUREB -ELECTION.
Wher four members of a borough council, before any organization is effected, and while the other four members of the council are in the same room, go through the form of election for a borough treasurer, the person so elected has no title to the office.
[Ed. Note.-For cases in point, see Cent. Dis. vol. 36, Municipal Corporations, $ 201.]