The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1888-12-12

The following decisions with resciipts by Chief
Courts.
YORK COUNTY.
Nicholas 0'Brion vs.. Edward C. Luques.
Rescrfpt-A person who puts up money with a
ers can not Feedyer t N nney hack S
the broker represented he was dealing through a
particular commission house in Chicago, when he
ments with the plaintiff according to the ups and
downs OF the market.
Judgment for defendant.
ANDRoscoGGIN COUNTY.
Peoples Savings Bank VS.. Stetson L. Hill
Rescrtpt-The defendant holding mortgage on
real estate TO secure the m0rtgageor's note TO him.
ana foreclosure of the same Ii wing nearly ex-
pired, the mortgageor arranged with The plaintiff
bank TO furnish him money on a new mortgage to
pay the defendant with. 1t was suggested BY an
attorney OF the bank, as defendant was about 10
receive his none, that, instead Of making new
mortgage, the mortgageor give a note TO the bank
for the money and the defendant assigned his
mortgage 70 the bank, for them to hold as collat-
era security for the new note which was DONE
thoughtlessly on the part of the defendant In
the assignment was inserted clause by which
the defendant covenanted that there was no in
cumprance on his mortgage and that he had a
right to sell and convey. 1t seems that some
years previous to the assignment the defend
had released portion OF the mortgaged premises
TO the mortgageor transaction not remembered
when the assignment v as made. At the date Of
the assignment September, 1882, the property
remaining held under the mortgage was worth
several hundred dollars more than The money ad-
vanced by the bank but when the bank sold the
properly after foreclosure by them, in june 1887,
IL was worth as many hundred dollars less, and
several hundred dollars are now due the bank on
the note.
Held on these facts, that the covenant was
broken the instant it was made, that the bank
stood eycted OF the released portions of the mort
gagged premises as soon as the assignment was
delivered and that in this &C ion commenced in
1887, by the bank on the covenants, no more than
nominal damages are recoverable.
Judgment for plaintiff for ole dollar damages
Parks. W.
:. :Rescrtpt-A bill in equity commenced in the
lifetime OF husband and his wife, 10 annual an
insurance policy issued on her life his benefit
may, after her death during the PEI dency Of the
proceeding, be prosecuted TO final de cree against
the husband alone, as he is, besides the complain
ants, the only person interested A solicy issued
upon statements of the insured in an application
tor life insurance that the applicant has good
the statements be regarded as warrantes or rep
reservations, may be cancelled and declared void
ny court Of equity, upon proof that such state
ments were In TACT untrue. The health of the
body required to make the policy attach does not
mean perfect and absolute health. That seldom
exists. IL Is that which would ordinarily and
reasonably be regarded as good health. There is
obviously close distinction, though recoguiZa-
Die. between incipient disease, or disease In its
nrst stages, a condition which compliments con-
tend existed, and merely bodily condition which
Is susceptible TO the contraction of disease which
defendant contends existed A weak person may
be well and strong person sick AS 1t IS difficult
TO determine the question by any defni general
rule it becomes usually question for the jury to
determine on the facts peculiar to the case. When
the questions propounded by the company in the
examination OF the applicant have been answered
In absolute good faith and there are no reasonable
grounds 10 suspect fraud, the questions and an
swers should be construed literally in favor of
the insured. II a jury TO whom the facts are sub
united In the case tried on the equity side of the
court, render clearly erroneous and unjust YER
alct, the court may not only set the verdict aside
Dul may In Is dscret on pronounce final Judgment
IN NE case adversely to the verdict.
'Motion sustained. Verdict set aside Bill sus-
talned without costs. Policy declared cancelled
premiums received"
FRANKLIN COUNTY.
State VS.. Maine central r. r. Co
RescTapt-A passenger on a railroad excursion
train, which was running rapidly in a dark night
on ROAD OF frequent and sharp curves, having
been last noticed alive whilst he was passing
through car In which there were vacant seats,
about midway of the train. saying or doing moth
Ing TO indicate where on the train he was going or
the purpose OF going, was found dead the next
morning lying on the lack between the rails, his
body being In mutiated condition, at or near the
place OF sharp curve In the road. There was at
the time saloon car hitched to the rear Of the
train. not annexed or the use of passengers, but
presumably TO be transported TO a siation on the
road Inc passenger cars were connected closely
Win one another by the Miller platform, but the
saloon car was attached TO the train in such a
manner as TO leave an open space between iJ and
the preceding car eighteen inches wide. The al:
legatlon Is tat tne passenger while exercising due
care on his part fell through this omen SPACE he
tween the cars, and was thereby Killed by the
negligence OF the defendants -
Held: That tile facts stated do rot proye that
the passenger while exercising cue care WAS
killed in the manner alleged
IL Is some evidence OF negligence on the part of
passenger that he undertakes TO pass through a
train of cars while the train is moving rapidly in
the night time, unless It may be reasonably in
terred that he has some excuse for so doing more
than mere restlessness or curiosity.
NO0Sult confirmed