Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-04-15
RESCRIPTS
uE3E'l
From Law Court in Seven I'M
portant Cases.
City of Augusta Loses Case With
Mrs. Ella c. Turner.
Somerset, Knox and Waldo and Other
Cases Decided.

received her INJURY was defective, and
not reasonably safe for travellers, was
Il question of fact. 1t has been passed
upon by jury, and by them found to
be defective and unsafe. No other
question is raised. The place was on
the most freQuented walk of the city.
The defect was an uneven surface,
caused by settling of bricks, leaving
sharp shoulders near the center of the
walk. A merchant, whose place OF
business was near it had complained of
it's condition to the street commissioner
before the accident, who promised to
repair it, but did not. Both of them
then appeared to regard it as Il bad
place. Other persons had tripped and
fallen there.
In view of all the facts in evidence,
paying due respect to the opinion of the
jury, we cannot say that the verdict is
so clearly wrong that the court ought
to disturb it.
Motion Overruled.
Knox case. Elisa ]. Willoughby
Eek, VS.. The Atkinson Furnishing Co.
Rescript by Strout, j.
In a former suit plaintiff recovered
Judgment for the same breach of con-
tract complained of here, which has
been paid. There was but one breach
of contract, and only one suit for that
breach can be maintained. In the alb
sencc of fraud or concealment by de-
PENDANT which is not shown, plaintiff
could have recovered her full dana geS
in her first suit. If she neglected to
include therein all items which she
could have recovered for. 1T is her
fault. She cannot subject the defend
ant to another action therefor. Pha
Judgment in the prior suit is a bar to
this.
Judgment for defendant.
Somerset case: Ticonic National
Bank VS.. Mary G.. Turner, rescript by
Powers, ].
A Judgment should follow the writ
and declaration. When the suit is
against an executor, judgment for the
debt or damage should be entered up
against the goods and estate of the
testator. If it is not so entered, it is
the error of the clerk and not of the
court, and the court will order it to be
corrected.
In an action against an executor or
administrator. wherein judgment is
costs also, two executions should be
awarded. one for the debt or damages
against the goods or estate of the de-
ceased in the hands of the executor or
administrator, and the other for the
costs, against the goods, estate and
body of the executor or administrator
The amount of such execution for
costs is to be allowed to the executor or
IL Il ,ig+t,. ion, r,r-
count. unless the judge of probate de-
cides that the suit was defended with
out reasonable cause.
r. S. c. 81. Sec. ., is not intended to
give a creditor a cumulative remedy of
which he may avail himself or not at
his lection. without depriving him of
the right to have an execution for costs
against the goods and estates of the
deceased. The remedy for costs there
given is exclusive, and is intended Tor
the protection of the estates of deceased
persons, to prevent them from being
frittered away in frivolous and ground
less suits by ndiscreet or litigious eX-
ccutors or administrators.
Where, in an action against an eX-
ccutor. one execution issues for both
debt and costs against the goods and
estates of the deceased in his hands,
and is satisfied by levying the same
upon the lands of the testator, such
levy is void.
Judgment for defendant.
Waldo case: Ella A. NJ. Wiggin VS..
Jospeh II. Mullen ct ais. Rescript
Strout, J.
In 1919 Joseph Stetson gave by parole
to the town of Lincolnville a lot of land
100 feet square for town house. The
lot was abounded on two sides by high
ways, and on the other two sides 1t was
not fenced, till within few years
when the defendants, by direction OF
the selectmen, erected a fence there
This fence was within the 100 fee
square. The action is trespass foi
entering and building the fence.
In 1920 Lincolnville built town house
upon the lot. and has used it as towr
house for town purposes ever since
Plaintiff owns the adjoining land. She
claims that the title of the town ex
tended only to the space occupied by
the town house.
Upon all the evidence It is the opinion
of the court that the town has acquired
and now has absolute title to lot l0
feet square, according to the origina
gift. The fence complained of bein,
within that limit, the defendants ar
not guilty of trespass.
York case. Inhabitants of Hitter,
VS.. Charles c. Dixon. Rescript b,
Strout, ].
Action to recover of a husband ex
penses paid by the town for the sup
port of his insane wife in the insan
hospital. To maintain the actor
plaintiff must show that in the commit
ment to the hospital the requirement
of the statue We're fully complied viii
The statute requires that "the evidenc
and certificate of at least two respect
able physicians, based upon due en-
quiry and personal examination of tn
person to whom insanity is imputed
must be had. The certificate of tn
physicians is not enough-they mus
be examined as witnesses by the mum
cipal officers and testify from actu;
examination of the patient. There
no evidence that any physicians gay
evidence before the municipal officer
nor does their certificate state this