it was in a place or places two inches over the line. The trouble was then noticed by the contractor, and the wall was gradually drawn in until at the top it projected over the line about a quarter of an inch. The result was that when the wall was completed there was an area on its side, towards the easterly end, 20 to 30 feet high and 30 to 40 feet long, which overhung the plaintiff's land, and the overhang was 2 inches at the most, and from that down to a point at the bottom, and a quarter of an inch at the top. "It is not shown that any of the defendant's officers or agents knew of the bulging until after the building was completed. The contractor testified, and I find, that, although he knew of the bulging before the wall was completed, he did not think it was over the line. fendant has gone on without right and with hand, where, by an innocent mistake, erections have been placed a little upon the plaintiff's land, and the damages caused to the defendant by removal of them would be greatly disproportionate to the injury of which the plaintiff complains, the court will not order The plaintiffs have not been guilty their removal, but will leave the plaintiff to of laches, and have in no sense acquiesced. his remedy at law. * The doctrines "It is not disputed that the plaintiffs, own- applied by the court of equity in cases of ing the soil in fee, owned also ad usque col- this kind call for a consideration of all the um, and the overhang of the wall is an inva- facts and circumstances which help to show sion of their rights. They have already what is just and right between the parties.' brought two successive actions of trespass "I think the case at bar falls within the quare clausum fregit for the trespass, and second class of cases mentioned in the Mashave recovered judgment in each. The plain-sachusetts case. Here there was no intention tiffs now bring this bill for a mandatory in- nor attempt to appropriate the plaintiff's junction to compel the defendant to remove property. The contractor made a mistake. the overhang of the wall which is over their The injury to the plaintiffs is now trivial, line. and at no time can it be so great that it would not be many times outweighed by the expense, damage, and loss which would necessarily be occasioned to the defendant if it should be compelled to remove the overhang of its wall. I do not think that equity requires or permits the court to use its strongest arm to produce a result so inequitable. I think the bill should be dismissed, but, under the circumstances, without costs. For further discussion, see Methodist Epis. Soc. v. Akers, 167 Mass. 560, 46 N. E. 381; Harrington v. McCarthy, 169 Mass. 492, 48 N. E. 278, 61 Am. St. Rep. 298; Levi v. Worcester Consolidated St. Ry., 193 Mass. 116, 78 N. E. 853; Kendall v. Hardy, 208 Mass. 20, 94 N. E. 254; Kershishian v. Johnson, 402; Hunter v. Carroll, 64 N. H. 572, 15 Atl. 210 Mass. 135, 96 N. E. 56, 36 L. R. A. (N. S.) 17. "The plaintiffs have a three-story wooden tenement building on their lot, standing so near the offending brick wall of the defendant that it will be impossibie to remedy a very considerable portion of the overhang by working on the outside. The wall will have to be torn out from the inside and rebuilt, if abatement is ordered. The plaintiffs are sustaining no pecuniary damage at the present time, and will not so long as their present use of their property is unchanged. "It is not disputed that equity has jurisdiction to order the invasion of the plaintiff's premises to be abated. The grounds of such jurisdiction, as usually stated, are the want of a complete remedy at law, since full compensation for the entire wrong cannot be obtained in an action at law for damages (see 4 Pomeroy's Eq. Juris. § 1357, and note) and to prevent a multiplicity of actions, since a plaintiff might be compelled to bring a succession of actions in order to obtain relief. See 1 Pomeroy's Eq. Juris. § 252, and 5 Pomeroy's Eq. Juris. §§ 496, 516. "But it does not follow that a writ of mandatory injunction should be granted in all cases. It is a discretionary writ. The discretion, however, is not an arbitrary one, but is to be exercised in accordance with settled rules of law. The rules by which I think this case must be tested are stated in Lynch v. Union Institution for Savings, 159 Mass. at page 308, 34 N. E. at page 364, 20 L. R. A. 842, in these words: 'In general, where a de "It is therefore ordered, adjudged, and decreed that the bill be dismissed." Appeal denied. (111 Me. 1821 SYKES V. MAINE CENT. R. CO. (Supreme Judicial Court of Maine. Oct. 13, 1913.) 1. TRIAL ( 159*) - MOTION FOR NONSUIT OPERATION AND EFFECT. A motion for a nonsuit is in the nature of question of law arising in the course of the a demurrer to the evidence, and raises every trial, regardless of particular exceptions. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 341, 359-367; Dec. Dig. § 159.*] 2. NEGLIGENCE (§ 93*)-IMPUTED NEGLIGENCE | on the completion of the plaintiff's testimony -NEGLIGENCE OF DRIVER. The negligence of the driver of a carriage in which plaintiff's testator was riding at the time of a railroad crossing collision could not be imputed to the testator. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 147-150; Dec. Dig. § 93.*] 3. RAILROADS (§ 350*)-CROSSING ACCIDENTS -FAILURE TO EMPLOY FLAGMAN. Under Rev. St. c. 51, § 71, providing that the officers of a town may request gates to be erected at a crossing, that on refusal they may apply to the railroad commissioners, and that when they decide that such a request is reasonable, or that a flagman or automatic signals are necessary, they may order a flagman to be stationed at such crossing, and the railroad shall comply with such order, it is not negligence, as a matter of law, for a railroad to omit the use of a flagman at a crossing, unless requested to employ one. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 4. RAILROADS (§ 347*)-CROSSING ACCIDENTS -ACTIONS EVIDENCE. In an action for the death of a person struck by a railroad train, evidence that to the knowledge of the person with whom decedent was riding the company at certain times employed a flagman at the crossing, offered as bearing upon the question of the driver's negligence, was immaterial, no attempt being made to bring this information home to the decedent, since the driver's negligence was not imputa ble to her. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 1124-1137; Dec. Dig. § 347.*] 5. RAILROADS (§ 348*)-CROSSING ACCIDENTS -ACTIONS-EVIDENCE. In an action for death caused by a railroad crossing collision, evidence held insufficient to show that the engineer was negligent after discovering that the person with whom the decedent was riding was attempting to cross in front of the train. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*] 6. RAILROADS (§ 310*)-CROSSING ACCIDENTS -CARE REQUIRED AS TO PERSON SEEN NEAR CROSSING. a Those in charge of trains have a right to expect an unobstructed right of way at crossing; and, when an approaching train could be seen 650 feet from the crossing, they were not required to anticipate that a traveler would attempt to cross in front of the train, but had a right to assume that he would observe the law in looking and listening, and would not attempt to cross. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 982-987; Dec. Dig. & 310.*] Exceptions from Superior Court, Cumberland County, at Law. Action by Emery H. Sykes, executor, against the Maine Central Railroad Company. A nonsuit was ordered, and plaintiff brings exceptions. Exceptions overruled. Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and PHILBROOK, JJ. George C. Webber, of Auburn, for plaintiff. Symonds, Snow, Cook & Hutchinson, of Portland, for defendant. the presiding judge, upon motion, ordered a nonsuit. This motion is in the nature of a demurrer to the evidence, and raises every question of law arising in the course of the trial, regardless of particular exceptions. [2] The plaintiff's decedent was crossing the railroad track at Gray, in the rear seat of a carriage driven by Mr. Isaac Lord. It is unnecessary to state the situation in detail since, upon the evidence, the contributory negligence of Mr. Lord seems quite conclusive. Yet, whether the decedent was in the exercise of due care, Lord's negligence, not being imputable, raises a question for the jury, under proper instructions. Accordingly, the one question for determination is whether the defendant was in the exercise of due care. We think the evidence fails to show negligence. The plaintiff, however, contends that the defendant was negligent upon two grounds: First, because it had no flagman to inform travelers of approaching trains; second, because the fireman when he first saw the team did not inform the engineer that he might impede the progress of the train or stop it. Under the evidence the only question here involved is that of subsequent negligence, or last chance doctrine. [3, 4] Upon the first proposition we do not think it can be said, as a matter of law, that it is negligence for a railroad to omit the use of a flagman at a crossing, unless requested to employ one under R. S. c. 51, § 71. No evidence of such request appears. But upon this point the plaintiff offered to show that the defendant had, and did, upon the passage of certain trains, employ a flagman, and that Mr. Lord, the driver of the team, had been so informed, as bearing upon the question of Mr. Lord's contributory negligence. But as Mr. Lord's contributory neg. ligence could not be imputable to the decedent, and as no attempt was made to bring this information home to her, it became finmaterial, as the issue, under the order of nonsuit, is whether the due care of the decedent should have been submitted to the jury; and we have found, if the defendant was negligent, it should. [5] Upon the second proposition the plaintiff contends that the defendant was negligent through the failure of the fireman to communicate to the engineer the presence of the Lord team when he first saw it, and the consequent failure of the engineer to retard or stop the train. The only evidence upon this issue is that of the fireman, John Frank, called by the plaintiff. While the photographs show the relative locations of the places and objects involved in the accident, it may yet be well to give a brief description. The two tracks at this point are lo SPEAR, J. [1] This case was tried in the cated north and south; the station is on the superior court in Cumberland county. Up-east side of the track; and the platform is We are unable to discover any evidence that would warrant a jury in finding that the defendant was negligent. Exceptions overruled. (110 Me. 552) Oct. 13, GAMMON et al. v. LIBBY. (Supreme Judicial Court of Maine. 1913.) NEW TRIAL (8 71*)-VERDICT CONTRARY TO EVIDENCE. cient to sustain the action of the jury, it is not The evidence being conflicting, and suffiground for new trial that the court, had the issue been submitted to it, might have found differently. located between the station and the track, [uation, he notified the engineer, but the case and extends south past the south end of the is devoid of evidence to show that this warnstation 102 feet. The team was standing at ing was in season to enable the engineer to the end of this platform facing the track; avoid the accident. the horses' heads being "very near over the track," as stated by Mr. Wood. The train was coming from the north. The highway crossed the track some little distance south of the end of the platform, so that it was necessary for the team to travel south parallel, or nearly so, with the track this distance before making the turn over the track. The evidence as a whole will show that when the fireman first saw the team moving. there was sufficient time to check or halt the train before it reached the place of accident. Upon this situation the fireman testified as follows: "Q. How were they traveling at the time that you first saw them? A. Apparently away from the platform and away from the railroad track. Q. Now, were you going fast? A. They were. Q. What did you think in relation to them when you first saw them? A. My first thought was they were going up over the hill and away from the station and railroad. Q. You mean up this road here (indicating on chalk)? A. I mean that way, yes. Q. Was the horse headed for this road here? A. No, he wasn't, but he made a turn for that road. The first step that he took, he turned his head in that direction. Q. Did you sound any signal? A. I had nothing to do with the sounding of the whistles, other than to warn the engineer. Q. Did you warn the engineer? A. I did. Q. Immediately? A. Immediately I discovered they were going to cross the track. Q. When you first saw the team did you notify or warn the engineer? A. No." [6] Upon this testimony was the defendant negligent? It must be conceded that trains, to make their time, must have a right to expect an unobstructed right of way; that, when the approaching train can be clearly seen 650 feet from the crossing, the engineer and fireman cannot be expected or required to anticipate that any team will attempt to cross the track in front of that train; that if a team is in sight of the train and the train in sight of the team, the engineer has a right to assume that the occupants will observe the law in looking and listening for the train, and that they will not attempt to cross the track. Garland v. Railroad Co., 85 Me. 519, 27 Atl. 615. We think the engineer and fireman in the case at bar, under the testimony, had a right to assume that the team would not attempt to cross the track, with the approaching train in full view, however near the team might drive to it. Accordingly the only question is, Was the engineer guilty of negligence in the management after he saw that the team was actually going to attempt to cross in front of the train? The fireman says that "immediately" when he discovered this to be the sit [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 144, 145; Dec. Dig. § 71.*] On Motion from Supreme Judicial Court, Oxford County, at Law. Action by James G. Gammon and others against John P. Libby. Defendant moves for new trial. Motion overruled. Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, and PHILBROOK, JJ. Frederick R. Dyer, of Buckfield, and McGillicuddy & Morey, of Lewiston, for plaintiffs. E. M. Briggs, of Lewiston, and John P. Swasey, of Canton, for defendant. PER CURIAM. A real action for the recovery of a strip of land in Hartford. The verdict was for the plaintiff, and defendant files a motion for a new trial. The evidence was conflicting, and, while it is possible that upon the evidence the court, if the issue had been submitted to it, might have come to a different conclusion, it is our opinion that there was sufficient evidence to sustain the action of the jury, and that the motion must be overruled. Motion overruled. An administrator's private claim for moneys expended for the benefit of the estate is not barred by failure to present it for allowance until after the statutory limit for suits against executors had passed. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 789-800, 802, S03, 805; Dec. Dig. § 225.*] Appeal from Supreme Judicial Court, Cumberland County, at Law. Judicial settlement of the estate of James H. Nealley as administrator of an estate. Or der was passed allowing the private claim of the administrator, over an objection that the claim was barred by limitations, and objectors appeal. Dismissed. Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and PHILBROOK, JJ. U. G. Mudgett, of Bangor, for appellant. Eben W. Freeman, of Portland, for appellees. PER CURIAM. This case involves an appeal from the judge of probate of Cumberland county with reference to the settlement of a final account of an administrator involving his private claim against the estate. This account involves quite numerous items amounting to $176.94. It was not filed by the administrator within the statutory limitation for bringing suits. While several reasons of appeal are noted, by a stipulation they are all waived except those involving this private claim; and, under this stipulation, the only question raised was, that the private claim of the administrator was barred by the statute of limitation, because it was not presented to the probate court for allowance until the statutory limit for suits had been passed. PER CURIAM. Appeal Nc. 341 is from a judgment entered in a proceeding by a purchaser of land at a sheriff's sale to recover possession from the defendants in the execu tion. Possession was resisted by virtue of a parol agreement, made at or about the time of the sale, by which the plaintiff in the execution, who became the purchaser at the sale, gave the defendants the privilege of redeeming the land by payment to him of his liens against it within 60 days. It was claimed by the defendants that the agreement made the plaintiff a mortgagee with no right of possession. The court found that on the defendants' own showing the agreement, even if valid, was merely an option to purchase, and that it had expired and nearly a year had elapsed without the defendants availing themselves of the privilege granted. The judgment is affirmed. Appeal No. 69 involves the same facts, and it is dismissed ex rel. WEHRLE SCHOOL DIST. OF ALTOONA et al. (Supreme Court of Pennsylvania. May 22, 1913.) This precise question was raised in Re Palmer, 110 Me. 441, 86 Atl. 919, and decided 1. SCHOOLS AND SCHOOL DISTRICTS (§ 154*)— June 12, 1913. No valid reason seems to be presented for disturbing so recent an utterance of the court. Appeal dismissed, with costs. (241 Pa. 232) YOUNG v. McCAMANT. SAME v. McCAMANT et al. (Supreme Court of Pennsylvania. May 22, 1913.) EXECUTION (8 280*)-RECOVERY OF POSSESSION BY EXECUTION PURCHASER-DEFENSES. An agreement by an execution plaintiff, made at or about the time of the sale to plaintiff, that defendant in the execution might have an option to purchase was no defense to an action by the purchaser to recover possession of the land, where the option had expired and defendant had not availed himself of the privilege. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 806-814; Dec. Dig. § 280.*] Appeals from Court of Common Pleas, Blair County. Actions by Blair B. Young against John G. McCamant, and by the same plaintiff against the same defendant and another, under Act April 20, 1905 (P. L. 339), to recover real estate purchased at sheriff's sale. There was a judgment for petitioner in both cases, and respondents appeal. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART and MOSCHZISKER, JJ. Wm. L. Pascoe, of Tyrone, and Andrew H. McCamant, of Hollidaysburg, for appellants. B. F. Warfel and Marion D. Patterson, both of Hollidaysburg, for appellee. PUPILS-RIGHT TO ADMISSION TO SCHOOLMANUAL TRAINING SCHOOLS-"ADDITIONAL SCHOOL." A manual training school conducted in the same building, with an elementary public school, but independent of and wholly apart therefrom, and under the management of instructors not qualified to teach in the elementary public school, is an "additional school" within Act May 18, 1911 (P. L. 329) § 401, providing that no pupil shall be refused admission to the courses of additional schools or departments established as an integral part of the public school system by reason of the fact his elementary or academic education is being or has been received in a school other than a public school, and hence a pupil who is attending a private school is entitled to admission to such manual training school. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 326, 327; Dec. Dig. § 154.*] 2. STATUTES (§ 122*)—SUFFICIENCY OF TITLE. The title to Act May 18, 1911 (P. L. 309), is sufficiently broad to include the provisions therein that no pupil shall be refused admission to the courses in the additional schools or departments provided for by such act, by reason of the fact that his elementary or academic education is being, or has been, received in a school other than a public school. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 175; Dec. Dig. § 122.*] 3. SCHOOLS AND SCHOOL DISTRICTS (§ 10*) SCHOOL FUND-USE FOR PRIVATE OR SECTA. BIAN SCHOOLS. School Code May 18, 1911 (P. L. 329) § 401, providing that school districts may maintain additional or departmental schools for the education and recreation of persons residing in the district, which shall be an integral part of the public school system in such district, and that no pupil shall be refused admission to the courses in such additional schools or departments by reason of the fact that his elementary •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes INGS. Mestrezat, J., dissenting. Appeal from Court of Common Pleas, Blair County. Mandamus by the Commonwealth, on the relation of Thomas Wehrle, guardian of William Alexander, against the School District of the City of Altoona and others. From an order awarding a peremptory writ, defend ants appeal. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ. R. W. Woods, of Carlisle, J. J. Kintner, of Lockhaven, and M. M. Morrow, of Altoona, for appellants. Thomas C. Hare, of Altoona, for appellee. * academic education is being, or has been, receiv- | question involved in this appeal is, Did the ed in a school other than a public school, is not court below commit error in finding as a fact violative of Const. art. 9, § 7, and article 10, that "the said school district has established § 2, in that it gives to private and sectarian schools the use of moneys raised for the public and maintains an additional school or deschools. partment known as the manual training [Ed. Note.-For other cases, see Schools and school, * under the immediate direcSchool Districts, Cent. Dig. § 13; Dec. Dig. §tion and control of teachers and instructors 10.*] 4. TRIAL (§ 397*)-TRIAL BY COURT-FIND- sively"; for this is the school or department employed to teach manual training excluWhile there is no requirement in the act of to which admission was sought? If there 1874 (P. L. 109) that the court shall specifical- was any evidence to sustain the finding in ly answer upon the record all the requests for findings of fact, the court must cover all facts question, we must treat it as though the facts therein contained had been fixed by the verstated in the request which are material. [Ed. Note. For other cases, see Trial, Cent. dict of a jury (Brown v. Boom Co., 109 Pa. Dig. $$ 940-945; Dec. Dig. § 397.*] 57, 70, 1 Atl. 156, 58 Am. Rep. 708; Rohrheimer v. Hofman, 103 Pa. 409; Com. v. Railway Co., 188 Pa. 205, 210, 41 Atl. 607; First National Bank v. Slate Co., 229 Pa. 27, 31, 77 Atl. 1100); and after reading all the testidence sufficient to that end. In this connecmony we cannot say that there was no evition we cannot do better than quote from the opinion of Judge Reed in the court below: "The trial judge has found as a fact that the manual training school to which admission is sought is established and maintained as an additional school or department for manual training under section 401, and since the evidence warrants this finding it must be treated as conclusive on this question. If it be conceded, however, that the school board never formally established a separate and independent manual training school under section 401, it cannot be contended, under the evidence, that it has not been maintaining and conducting such This manual training school is maintained and conducted independent of and wholly apart from the elementary public school. It is exclusively under the management and instruction of persons not qualified to teach in the elementary public school, and the instruction given in it is not in vital touch with the course of study prescribed for such school. It does not constitute any part of the curriculum of the elementary school, and while it is conducted in a room in the same building where the elementary schools established under section 1607 are conducted, it is as separate and distinct from those schools as if it were conducted in a building in some other part of the city. In brief, this manual training school has all the earmarks of one established and maintained under section 401, and absolutely none of the elementary schools established under section 1607. If it be admitted that it is the climax of the manual training received in the elementary public school, there is no more reason for excluding this applicant from its benefits because he is not matriculated in such elementary school than there would be for excluding him from the public school because he had not qualified for admission to it in the elementary public schools." MOSCHZISKER, J. This proceeding was tried by a judge without a jury under the act of April 22, 1874 (P. L. 109), and resulted in the issuance of a mandamus to compel the admission of William Alexander, a boy of 13 years of age, to a certain public school in the city of Altoona; the school district has appealed. * * * [1] Section 401 of the act of May 18, 1911, P. L. 309 (School Code), provides that "the board of school directors in every school district * shall establish, a sufficient number of elementary public schools, *; and may establish, and maintain the following additional schools or departments for the education and recreation of persons residing in said districts, which said additional schools or departments, when established, shall be an integral part of the public school system in such school district, and shall be so administered, namely: manual training schools * * together with such other schools or additional departments as they, in their wisdom, may see proper to establish: Provided, that no pupil shall be refused admission to the courses in these additional schools or departments, by reason of the fact that his elementary or academic education is being or has been received in a school other than a public school." * * 串 It appears that William Alexander is a pupil in a private school, so the principal a school. [2, 3] But the appellant contends that, even |