The Portland daily press., 1890-02-22

tOhh COUNI1.
II. S.iCrayen Ell al. VS.. Mabel o. Turner
Rescript-By Foster j. When petition
for removal of an action to Circuit Court OF
me me United states is flied In a case pending IN
the state Court, on the ground of diversity of
citizenship OF the parties, the only question then
Tor the state Court to determine Is. the question
petition TO be true, 1t appears on the face of the
record, including the petition and pleadings down
to that time, that the petitioner is entitled to re-
moval
If an issue Of fact is raised upon the petition
That $50 mnst be tried in the Circuit Court in
stead OF the state Court
BY the act of Congress of March g. 1897
tamended by act of August Is, 1889 the petl-
tlon may be filed lat the time or any time before
State, or the rule OF the State Court in which such
suit is brought TO answer or plead to the declara-
ton or complaint of the plaintiff"
fleaS In abatement, or other dillatory pleas
which do not reach the merits of the cause, are
not pleas or answers to the declaration within the
meaning Of the act anduntil they are disposed of
the time OF filing petition for removal has not
expired.
cause between citizens of different states,
state where the action is brought may be removed
into the Circuit Court OF the United States for that
district although such court could not have juris-
ulcllon OF an original suit between the parties.
Exceptions sustained.
Sarah r. Ames vs. Joseph 2. Shaw.
hescTtpt-By Haskell j. The motion is ground
ed upon evidence tending to establish way by
adverse use, distinct and separate from the one
described IN the Raynes deed that was supposed.
Suppose this contention be established, the re-
spectlye rights of the parties are the same. The
ueeo grants an agricultural way, and the evidence
reported shows no more than a way of the same
KIND way for agricultural purposes 1t is true,
tnat way gained by adverse use gives rights
commensurate with the adverse use, but ii the
use be for agricultural purposes only. then the
way becomes way for that use, use to be ex-
ercsed In reasonable manner, and reasonable
use OF way for agricultural purposes, whether
created by grant or adverse use. may properly
be subjected t. gates and bars not professionally
mo frnfra nA xxrtfI,
being so obstrucIed at ALL but 1t Is nevertheless
way ior particular use, and in the enjoyment of
mat use, unreasonable distractions only are pro-
hibited. The nature of the easement gained de-
termlnes its character, and not the particular
manner OF the use that created the right. Short
A N H., $50. Bakerman VS.. Talbot, 81 N. "
SeS. Brill vs.. Brill. los NY, 81.
since s I'll the case shews the defendant entitled to
-ssa.s+Sl whether his rights arise under the deed
or by adverse use, and new trial could do him
the same. The plaintiff did not unreasonable
obstruct the defendants way, and he must use Il
subject thereto.
LINCOLN COUNTY.
Mary A. Hutchins VS.. Charles w. Ford
Rescrfpt-By Haskell j. The policy written by
the Portland Lloyds covers barratry Of The mari.
ners, but not OF the master when the assured is
l. In suit upon such policy, it is not necessa-
ry to negative in the declaration the Limitation
beyond the $1,000 paid in and premiums nndi.
vided. IL may be used in defence.
Ill. AS bearing upon the seaworthiness of the
vessel IL was competent for the master TO testify
IN relation TO the selection of mate; II had every
reason 10 suppose the man was sufficient for a
coasting mate. believed at the time he was ca
I'LL The master of ship who is part owner.
may be guilty OF barratry towards his co-owners,
so as TO avoid policy of Insurance. that does not
cover the risk OF barratry of the master, written
In their favor.
w.. The evidence sustains the verdict, that the
vessel insured was seaworthy at the inception Of
the voyage.
V. marine policy covers negligence of the
master aud mariners.
vi. The evidence sustains the verdict that the
from the barratrous acts Of the master but rather
IRON his irresponsible condition, accustomed from
temporary insanity, resulting from exposure
patent drugs loss OF sleep, or excessive drinking
OF liquors. or from all of them combined.
VII The conduct OF the mate In not assuming
command when the master became incapacitated
IS excusable upon the ground of erroneous judg
ment Of his duty.
VIII. The masters statement as he was about
TO go below at the end of the storm: 81 feel tired
inc and see If can't get chance to sleep.
have not slept for three days." was admissible !
a part OF his act In relinquishing command of tn e
deck for the time being.
Ia. Ine testlm0ny OF an experienced seaman.
relative 10 proper measures that ought to have
been taken TO prevent the stranding; 81 do NOT
know what could have been done. do not know
that the mate could have done ANYTHING else %
was competent as bearing upon the proper navi-
gatlon OF the vessel, a question that was wholly
Ter me jury to consider.
X. The opinion of physician, who had NOT
made mental diseases special study, as to the
insanity OF the master. was properly excluded
Motion and exceptions overruled.