The Portland daily press., 1891-06-04

Aoiio"ins ueclslohS with reScrlpts from the
law court:
sAGADAHoC COUNTY.
John A. Morse ct al. VS.. Warner Mora
heScrtpt by Peters, Q. J.-Where a seller
contracts to deliver at a certain time and
place good, clear, merchantable ice, il is a
warranty, or condition precedent of the ma
ture and effect of warranty, that the lee af-
forwards delivered is of the kind and quality
described In the contract.
The warranty survives acceptance. the
vendee by accepting the ice is not precluded.
In an action by the vendor for the contract
price, from setting up breach of the war
Tanty or condition, in partial or total de-
Tense of the action.
The fact Of acceptance by the yendee NAV
pc evidence tending to show complete per-
torrance OF the contract by the vend or or to
snow waiver OF more exact performance,
the force and effect of the fact as evidence
depending upon the circumstances peculiar
to each case.
Exceptions sustained
HANCOCK COUNTY.
Benning g. Addition, Tr. In Eq, VS.. Har-
riet N. Smith ct ais.
bill in equity praying for judicial construc-
ton of the will of Jacob G. Smith, late Of
Bangor.
l.. The annuities to the widow and niece
are In tne nature OF general legacies. Each
Is simple bequest. an absolute gift of def
mite quantity. In such case there is a pre-
sumption of intended quality. which mist
prevail unless the will contains uneOuiyocai
evidence OF an intention to give prefer
ence. Such evidence Is not here disclosed
on the contrary there is clearly discernible
through the language of the codicils a posi-
tive intention to place the two annuities up-
on Dasls OF equality. The testator mani
Iestly had no doubt whatever that his estate
these two annuities with a residue
for Mrs. Cushing. The clause
IN the codicil giving the annuity to
Addle Hill is to be examined in connection
would have been If inserted between the
nrst and second items. The effect of all the
clauses taken together is that the testator
ccaryes two annuities from his estate, one for
MS VIE ana one Tor his niece, and gives the
nuities thus stand on basis of equality
=. These annuities must also be held a
charge upon the entire estate. They are not
contingent upon the suficiency OF the income
DHt II mat proves inadequate, they are pay
aDle az all events out of the entire principal
available for that purpose under the terms
OF the will, suffering proportional abate
ment, however, whenever there are NOT
available funds sufficient to make full paw
Decree according to rescript.
KNOX COUNTY.
pd May Y. Farnsworth, complt. VS.. City of
Rescript by Judge Walton.-Tbe statpte
Wnlcn declares that when buildings which
nave Ior more than twenty years fronted IN
on PUBIC way or street Shall be deemed
the bounds thereof, means that portion of
the building which rests upon the ground,
and does In fact bound and limit the wav'
ana not the cornices or other projections
Wnlcn lar above the heads of travellers NAV
happen to overhang the sidewalk.
Inc owner Of land over which a public
way passes has the right to occupy the land
ABOVE and below its surface to any extent
t 5mat VIII not impair its usefulness for a way.
Inc pubic must not be made to suffer any
ieal Inconvenience, nor should the owner be
uIepIiVeo Oh any such reasonable use of his
ian9 as VIII not incommode the public.
When land is conveyed by deed and a
building is one Of the boundaries, the par
Ties are presumed to intend that such line
snail be wholly on one side of every portion
OF the building But, in the case Of 4 RIGHT
OF way, even ii created by express grant. II
is not an unreasonable presumption that IL
was intended to extend under the projecting
finish Of building
The plaintiff was the owner of building.
which for more than thirty -five years had
ironted on the street, and was conceded to
pc one OF its boundaries. In proceedings
taken by the city for the widening
OF the street, under which the
PialntlI was compelled to move the building
Dack, Held, that in order to ascertain the
amount OF lad nso taken, and for which dam
ages should be allowed, the measurement
should commence on line with the side Of
the building, and not on line with the cor
nice on the gable end of the building which
projected beyond 1t into and over The street
Exceptions sustained.