The Republican journal. [volume] (Belfast, Me.) 1829-current, 1888-02-02
Decisions from the Law Court.


Emily W. johnson ais, VS.. Mary II. Merri-
to obtain possession of real estate in Belfast
Capt. A. W. Nickerson, wife and three children
sailed from Scotland, Feb. Sd, $780, in brig Josie
e.. Hazeltnc, and were never heard from. The
property in dispute was owned by Capt. Nicker-
son, he receiving it by deed from his mother. Six
months after the supposed death of Capt Nicker-
son. Mr.. Aaron Nickcrson, the father of the cap
tain, decided the property to deft who is the moth
er Of the captains wife. The pls. are the sisters
of Capt. Nickcrson. They say first, their mother
ery, and second that, in law the father could not
claim and transfer the property for there had not
been sufficient lapse of time after the supposed
mandant for an undivided two-th,,ls of the prem
Uses demanded. Rescript:
Mrs. Hatch, one of the defendants, is a COM
petent witness in her own behalf us she demands
in her own right and is not made party as "heir
Of a deceased party The court is of the opinion
that the supposed deed from Margaret +. Ncker-
son to her son, Aaron Nickerson, did not operate
as a conveyance of the property to him. The time
court considers that the vessel upon which Capt.
Nlckerson and his family sailed must have been
lost with all on board within six months following
her departure from Scotland, and that her master
and his family died prior to Sept. II, 1850. When
several lives are lost in the same disaster there is
no presumption from age that either sur
vived the other, is it presumed that all died at
the same moment, but the fact of survivorship,
like every other fact, must be proved by the party
asserting 1t. In the absence of evidence from
which the contrary may be inferred all may he
considered to have persisted at the same moment,
not because that fact is presumed but because
from failure to prove to the contrary of those
sorting it, property rights must necessarily he set
tied on that theory. The children of Capt Nirkcr
son are not proved to have survived their father
he % wifi iSsIt and ana
third of the demanded premises dtSccnds to his
father Aaron, prior to the date Of the lattcrs quit
claim to the tenant and passed to her under it.
Mary l.. Nickerson VS.. Rufus l.. Nckerson trus-
tee This action was tried at the January term
1897, and was to recover the insurance ON Il dwell
ing house burned at Scarsmont Dee ), lss5 and
insured in the Dwelling House Insurance Com
pany. Rufus l.. Nickerson had taken his parents
to maintain them for the farm, the mother taking
back Il mortgage of the place. When the place
was insured the parties said there WAS no mort
gage upon it. The father accused the son of burn
ing the PREMISES and the son never claimed the
insurance, surrencring the policy to the company,
the latter agreeing not to bring Il criminal action
against him. The mother, the pill. who held the
mortgage claimed the insurance. At the trial the
Judge asked the jury TO decide whether the in
cumbrancc upon the property increased the risk
and the burning of the property the wilful act
or gross negligence of Rufus l.. Both questions
were answered in the negative. The Judge then
told the jury to answer "No to the following:
"Was sufficient proof of loss, particular account
thereof as the nature of the will admit OF,
made to the company or waivcd by ii under the
rules which have given YOU Exceptions We're
taken. The law court says, exceptions sustain
ed; motion sustained; new trial granted Re
script:
An insurance company can neither he subjected
to suit upon policy of insurance b. the as sur
red nor 10 the trustee process, in favor of the
gage other creditor until the preliminary
proofs or loss, as required by statute, have been
furnished or waived. After the notice provided
by the statute has been given by Il mortgage OF
real estate TO an insurance company having issued
Il policy of insurance upon the same, he becomes
the equitable owner of the policy qHa his mort
gage, and, inasmuch as preliminary proofs are re
CURED to fix the liability OF the insurance com
pany, and he must commence hi. action within
sixty days after the loss, lie may furnish the re
qusitc proofs of loss in his own name if the as
sured neglects refuses to furnish them, III order
that he may avail himself of his rights under the
policy, and he may avail himself of any waiver OF
such proofs by the insurance company. Such
waiver may be question of fact for the jury. and
was so IN this case, and the ruling of the presiding
justice touching that question was erroneous The
issues of fact submitted to the jury in this
not supported by the evidence.
State VS.. Henry Wyman, of Belfast. Single sale,
second offence. The Law Court overrulcs cxcep-
tons. Rescript:
An indictment for single sale containing an
averment that at specified term of court the de
PENDANT was convicted 'fof selling a quantity of in
toNicating liquors. is sufficient
Spencer W Mathews, assignee, vs.. \ "a +. Riggs
Belfast parties. Trial at the January term, 1851.
Pln. is assignee of the insolvcnt estate of Mrs
Christina +. Morrison, and brought this action to
recover eighty shares of Coliseum stock at a par
value of $1,000. Mrs. NJ. was surety on Il note held
by deft. and transferred the shares and took up
the note. Pln claimed that Mrs. NJ. put her prop
erty out of her hands contrary to the rules of the
insolvency court. Deit. claimed that the notes
We're taken up in good faith. The Law Court says
-"Defendant defauted for $1,000 and interest
from March 6, lso6 Rescript:
The evidence shows that the defendant had req
sonable cause to believe his debtor insolvent and
that the defendant received the property sued for
In fralgl of the lnsOlycnt law.
Benz. +. Haskell, in equity, VS.. AIary Thurston&
ais, Belfast parties. The Court says: "Injunc-
ton denied. Bill dismissed without prejudice but
with costs" Rescript--
The evidence does not satisfy the Court that the
apprehended injury would lie irrcpa1itbl. hv an
ordinary action at law.
Isaac Jackson VS.. William P.Castlc. This was
the case where plaintiffs horse was killed by run
ming away. Dy Hclcntl:lnl : Siding IN the
streets. The case went to the Law Court and the
pln. has been non suited The following is the re
script:
sThe declaration does not show negligent or
unlawful conduct to have been the proNimate
cause of the loss or injury
At the April term l>s1, of the :. j. Court
in this city, there WAS tried an interesting
casc-A. J. Stevens VS.. Benz. Kelley x ais
The PHI sued for 4I,50o alleged damage to an ice
crop. The upper paper mill dam, called, on
Goose river stream in Belfast, flows a large body
of water on the land of the pin. and affords a good
ice field. The water i'll the pond is controlled by
the defendants, who let the water out at times from
their own mill and fer those below. In letting out
the water the ice settles to the mud underneath
which renders it worthless PM alleges the water
was let out malicously, while the principal de
PENDANT says he lets the water out solely for mill
purposes his father did before him for forty five
years. The jury gave the verdict for the ,lefts
PHI filed exceptions and ii went to the law court
The law court has passed upon it and the motion
and exceptions are oyerrued. Tie following is
the rescript:
Nothing herein is involved which is dependent
upon OF affected by the mill act. The gravamen f
the plaintiffs complaint is that the defendants
during several of the six years next preceding
the date of the writ, mciously drew of the water
through their dam and thereby let his ice, which
formed on the mill-pond, down into the must and
destroyed it. The case presents an ancient mill
dam though the mill on the dam has been idle for
the past nine years with three more ancient
mills below on the same stream, one of which be
longs to two of the owners of the dam all of them
operated by water vented through the dam an,
! coursing along the natural channel; and the plain
tiffs land flowed by the dam, covered with ice in
the winter season which the plaintiff has more
less frequently harvested So long as the dam
llghtfully stands, it is the bouncn duty of its
ers to vent the water thereof for the of the
mill owners below, SO that each shall have the nat
illal flow of the stream except far as that 1ow
is modified by the reasonable use of the water by
the successive riparian proprietors, The jury have
found that the defendants We're guilty OF no ma
licious intent since they only vented such water
had been done for the long series of years during
which the mills have existed. If the defendants
had let less water from their dam they would have
been liable to the lower mill for the injury
caused by unlawful detention. We think there
fore, that the instruction not preudcial to the
plaintiff and that the verdict is neither against law
nor the evidence.
Acknowledgements.
Senator Hale and Representative Milliken have
thanks for various favors in the way of public