The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1896-12-29
SUPREME JUDICIAL COURT
The following rescripts were sent down
from the Law court yesterday:
HANCOCK COUNTY.

The following rescripts were sent down
from the Law court yesterday:
HANCOCK COUNTY.
Norris L. Grinile VS.. Alexander c.
Hagerthy. (No opiniou.J
hescript by Strout Upon the
motion to set aside the verdict as against
evidence, we fail to- find, on careful ex-
animation, any groundaasfor sustaining
the molten. The Guestiun was whether
the defendant warranted title to the
stallion, Sultan, upun exchange with
plaintiff. ssThe witnesses each, apparently
disjnterested, testities in effect that he
did. The defendant denies this, and says
he only agreed to release his mortgage.
1t was for the jury to determine, IN this
conflict Of testimony, what was the
truth. Their finding should not be dis
turbed unless it is clear and unmistak-
ably wrong. We cannot say that it is.
Upon the motion grounded upon newly
discovered evidence.
If the defendant was surprised by the
calling by the plaintiff Of Dr.. Nye, who
is alleged to be insane and desired time
to obtain testimony to show the fact he
should have asked for a postponement or
continuance. If he sat by, as hs did in
this case, and took his chances Of obtain
ing verdict, he cannot afterward have
the verdict against him sat inside, upon
the ground of newly discovered evidence
upon that question. Defendant knew
when DR.. Nye was called, that he had
recently been in the insane hospital.
ask delay to do so, if taken by surprise
at his being called. Maynell Va. Sulli
van, 81 Me-, 8l4. Kicker VS.. Horn "a,
Me.
The question of the competency of a
witness is for the court. When DR.. Nye
was called, defendants counsel asked to
examine him as to his mental condition,
but the court ruled that he was com
petent No exception was taken. The
question of competency cannot raised on
this motion,
: An insane person may be a witness, if
be has sufficient understanding to APP
preciate the obligation Of an OATH and to
enable him to give correct account Of
those matters relating to the issue which
he has seen or heard. The weight of his
May, 10 Allen. 1854. Pease VS.
Burrowes. Sc Me-, 158. The evidence
fails to show improper influence exsr-
cised upon DR.. Nye. The defendant can
take nothing by this motion. Both
motions overruled.
David B. Flint in eq uity vs.. Winter
Harbor Land company ct ais. tThree
cases..
Rescript by Strout, J.-When in
conveyance of land, subject to mort
gage, it is provided in the deed that the
conveyance is made subject to mortgage
of the prem seq, (which said mortgage
this grantee by acceptance of this deed
hereby assumes and agrees to pay and
fully discharge the grantee becomes
liable to the mortgage, In equity, for
the mortgage debt, or the mortgages may
maintain assumpsit for the debt against
either the mortgagor or the grantee in
the deed The mortgage debt, in such
Case, is part of the purchase money, and
the promi Use of the grantee to pay it, is a
promise to pay his own debt, and not the
debt of another within the statute of
frauds.
In this case, the MORTGAGE having
foreclosed, the debt ia paid to the extent
of the value Of the mortgaged property,
at the date that the foreclosure became
absoluts. If of loss value than the debt,
complaint is entitled to recover the
deficiency from the original mo, tgaRor
Or from its grantee, and will be entitled
to separate DEGREES against each for the
full amount of such deficiency, but can
have but one satisfaction.
The cases must 60 to master to ascer-
tain and report to the court the value of
the mortgagsd property, at the 1ate
when com pIainant's title became abso-
lutte, and the amount of the mortgage
debt at the same date.
Bill sustained. Master to be appointed
to ascertain and report to the court the
value of the mo1tgaged property, at the
dats when COMPLIMENTS title became
absolute, and the am 1nnt OF the mort
age debt at the same date.
CUMBERLAND COUNTY.
Stephen W. Carr, Insurance Commits
eli in RrOV16nEf
Society.
Rescript by Strout, J.-At the time of
the filing of this bill in October, 1895,
defendant had moItuary fund of a
little more than ten thousand dollars,
which was held as trust fund for the
security of Its certificate holders. About
two months before the bill was filed. the
defendant made a contract with the Bay
State Beneficiary association, by which
it undertook to transfer to the Bay State
all it's risk, and d II it's fluids, including
this mortuary fund, the Bay State to as
sumo the liability of the Provident Aid
upon its outstanding certificates then in
force, and reinsure its members. This
contract was approved by two-th1rds
vote of those present aud voting. at
meeting of the insured in the Providen
Ala, called TO consider he same, on July
80 1895, in accordance with section 81,
chapter 237 of the laws of 1889. Although
this contract bound the Bay State to re-
insure all members of the Provident Aid
who so desired, it became contract only
with such members as consented to the
change. and accepted the liability of the
Bay State in lieu of that OF the Prov1dent
Aid. Those holding certificates in the
Provident Aid, and not elaoiing to accept
the contract with the Bay State, had tho
right to retain theil certificates in the
Proyident Aid, and rely upon it's Iiabili-
IT, Eight hundred and fifty men,
bers of the Provident Aid accepted insur-
anoe In the Bay State, and paid to it the
assessment due October !, 1896, ana six
hundred and seventeen members OF the
Provident Aid did not accept insurance
standing in the Provident Aid. The Bay
State insured the eight hundred and
fifty five transferred to IT., in the sum Of
~. 1898. 500. The amount Of insurance held
by the six hundred and seventeen, who
remained in the Provident Aid is 81, $685.,
500.