The Portland daily press., 1898-11-04
LAW COURT.
Five Rescripts Sent Down Yesterday.

The following rescripts were received
from the law court yesterday:
Washington, SIS. Cornelius Sullivan VS..
Joseph n Greene and Tr. g. Lewis ID.
Greene, Claimant. Rescript by Savage,
j.
Lewis d. Greene the claimant OF the
funds in the hands of the trustees is the
son of the defendant, and he claims by
virtue of an assignment from his father
The claimant says that he was the con-
6ractor who built the Mount Desert
branch of the Maine Central railroad and
that his profits in that operation after
having been loaned to another railroad
company and recovered, came into the
possession of his father, and were retained
by him (for the most part) and this in
debtedness of the father is alleged 60 be
the consideration of the assignment.
The plaintiff claims that the assign
1nent was without consideration and
fraudulent.
Aside from the relations and conduct of
the parties disclosed by the evidence, we
think the evidence in support OF the
claimants position is vague, indefinite
make full, true and explicit answers to all
questions propounded to him in relation
TO the Indebtedness to him of the princl-
pal defendant. This claimant has failed in
This respect.
The court is unable to believe that it
WAS ever understood between Joseph N.
Greene and his son that the latter was in
TACT, although he was in name, the con-
tractor for the construction of the Mt.
Desert branch. We think Joseph N.
Greene was the real contractor. 1t follows
that the profits of the operation belonged
to Joseph N. Greene, and that the money
loaned to and recovered of the Grand
Southern Railroad company was the
money of Joseph n. Greene. By the use
of that money Joseph N. Greene did not
become indebted to the claimant and the
assignment made to secure such assumed
Indebtedness is void. The findings of the
Justice who heard the case, to this effect,
are fully sustained by the evidence.
Exceptions overruled.
Penobscot, SIS. Austin I. Harvey VS..
Maine Condensed Milk company, Edward
Z. Leach VS.. DO, James Ii. French VS..
do, Caro- II h. Folsom We. do. Reseript,
Savage, j.
Upon covenant of the defendant
made with another corporation 'to pay
all outstanding debts and liabilities of
the iattur corporation, it is held that as
sumpsit will not lie against the defendant
by creditors of the other corporation,
Who're debts were outstanding at the time
the covenant was made. The benefciaries'
remedy is in equity.
2.-Upon an agreement " to pay all out
standing debts, without names of
creditors, without amounts of debts,
without any designation or limit what
ever, no acJion a5 law lies in favor Of a
beneficiary. as upon an implied promise.
In each case plaintiff nonsuit.
Lincoln, SIS. Nettie S. Johnston vs..
Norris Fl. Hussey, exr. Rescript by
Savage. j.
in Jlhnston VS.. Hussey, $50 Maine, 46S,
it was held rh at a certain letter written
to the defendant by the plaintiffs hus-
band, and subscribed also by the defend
ants testator was insufficient to remove
the bar Of the statute OF limitations which
had been pleadsd. Uponsss retrial Of the
case, the plaintiff introduced oral testi-
mony to explain and elucidate the
meaning of the language all words in the
letter as used and understood by the
parties. Notwithstanding which the pre-.
siding judge ordered a n0nsuit This
ruling was right. The new evidence re.
lied upon afforded no aid i'll interpresa-
ton OF the letter. 1t was really additional
to the letter.
To remove the bar of the statute Of
Limitations the acknowledgment or
promise must be expressed in writing
and signed by the party chargeable khsgs-
by. The acknowledgment must be in the
writing jteif, AND cannot be read into it
NY JAStzbS VI OTaA oS5bIuCUg. AQo words
of the Defendants testator which are re-
lied npon are not in the letter, nor are
any words having an equivalent mean
ing. We cannot write them in.
Exceptions overruled. Nonsuit con.
irmed.
Penobscot, IS. Joseph E. Friend VS..
joseph Pitman. Rescript by Savage. J,
Ihe want of an avermant in the declara-
tion on a note payable five months after
date. that the five months have elapsed or
that the note was overdue, is not fatal n
demurrer
Exceptions oTerBuled.
York. S. John NJ. Thompson, admir-,
vs.. William w. Mason ct ais, exrs,
Savage, J.
Where referee awards costs against a
defeated party, and in his report states
specifically what items Iof costs he
awarded, whether the award is erroneous,
or not, is question of law, and exeep.
lions will lie as matter of right to the
acceptance of the report. But when such
a report is accepted and the defeated
party, without fraud, accident or mis-
take, fails to reserve his rights by taking
exceptions to the acceptance of the report,
error will not afterwards lie to reverse the
Judgment against him.
Judgment affirmed with costs for de-
fendant is IN error.