ly might acquire one of his own by having | moved back to Ft. Kent with his wife, takhis home in a town for 5 successive years ing nearly all his personal property with without receiving supplies as a pauper, di- him, but as he himself testifies, he went only rectly or indirectly. R. S. c. 29, § 1, pars. for a temporary purpose and with the intenII and VI. The plaintiffs contend that when tion of returning to Eagle Lake, which he Dennis became 21, his father's settlement still regarded as his home. After staying in was in Ft. Kent, and the burden was on Ft. Kent about 3 years he returned to his them to sustain this proposition by a fair pre- own house in Eagle Lake, which, during his ponderance of the evidence. This they have absence, he had leased, and he has since refailed to do. All the proof on this point comes mained there. His acts coincide with his from Dennis. His father, Baptiste, although intention. living, was not called as a witness. He could have given the facts as to his residence during the minority of Dennis, and from these his settlement when Dennis reached his majority could have been readily ascertained. Under these circumstances, therefore, the scope of the son's admissible evidence on this point was limited to facts within his own knowledge. Declarations of his father could not be received as they lacked one element requisite to their admissibility on the matter of family history, that is, the death of the declarant before the trial (Northrop v. Hale, 76 Me. 306, 49 Am. Rep. 615: 4 Chamberlayne, Ev. § 2911 et seq.); or in the broader language of Wigmore, the nonavailability of the declarant at the time of trial (2 Wig. Ev. § 1481). The declarations offered were therefore not an exception to the ordinary rule governing the exclusion of hearsay testimony. There was some evidence to the effect that Dennis at one time attempted to sell his home in Eagle Lake, and with the proceeds to purchase other property in Ft. Kent. But this was shortly prior to his return to Eagle Lake, and the selling and purchasing were mere contingent possibilities that never materialized. They did not constitute a wellformed intention to give up the Eagle Lake home, and at the time the possibilities were under consideration the five-year period since first going to Eagle Lake had long since elapsed. [7] The pauper once having established his home in Eagle Lake, by the concurrence of intention and personal presence, his personal presence in that town for 5 successive years was not essential to his acquiring a settlement therein if his intention continued unchanged during that period. Judgment for defendants. LEMBO v. DONNELL. 1918.) Reviewing the testimony in the light of this evidentiary rule, we find that it consists merely of two statements by Dennis: First, that his father was born in Ft. Kent; and, second, that his father was brought up (Supreme Judicial Court of Maine. March 11, in Ft. Kent. He admits, as he must, that his only knowledge came from statements made to him by his father, and therefore this evidence cannot be considered, his father being still alive. The report contains no other facts touching this issue. It is therefore impossible for this court to find, under the established rules of evidence, that the pauper had a derivative settlement in the defendant town and the plaintiffs fail on this vital point. 2. Acquired Settlement. [5] Having reached this conclusion on the first point, it is not strictly necessary to consider the second, that is the acquiring of a settlement by the pauper in Eagle Lake. The burden is on the plaintiffs to prove the settlement in Ft. Kent, not on the defendants to prove it in Eagle Lake, unless the pauper had a derivative settlement in Ft. Kent. PHYSICIANS AND SURGEONS 18(14)-MAL- That plaintiff consented to an illegal operation to procure an abortion on her would be no defense to an action for actual damages suffered from the operation, and subsequent unskilled treatment. Exceptions from Supreme Judicial Court, Androscoggin County. Action by Carrie Lembo against Charles K. Donnell. Defendant's general demurrer was overruled, and he brings exceptions. Exceptions overruled. See, also, 116 Me. 505, 101 Atl. 469. Argued before CORNISH, C. J., and SPEAR, HANSON, and PHILBROOK, JJ. tiff. Tascus Atwood, of Auburn, for defendNewell & Woodside, of Lewiston, for plain ant. [6] It can do no harm, however, to add PHILBROOK, J. This is an action on the that in our opinion the facts are sufficient case brought to recover damages against the to establish the settlement in Eagle Lake. defendant, a physician, for malpractice while The pauper went there with his wife, April | performing an operation to procure an abor29, 1907, and established his home, at first tion on the plaintiff, and for unskilled treatin the house of his father-in-law, and then in his own. This house he has never sold, and this home he has never abandoned. One month before the expiration of 5 years he ment subsequent to the operation. The defendant filed a general demurrer which was overruled and the case comes to us upon exceptions to that ruling. The basis of defendant's exceptions lies to his position that as the plaintiff consented to the operation she cannot recover because the operation is an illegal one. structions, all of which were refused, except as given in the charge. [1] The first five related to punitive damages, and in urging that the same should In a similar case, Miller v. Bayer, 94 Wis. have been given the defendant's attorney in 123, 68 N. W. 869, the court said: "It is further contended that plaintiff cannot recover, because she submitted to the operation performed upon her. Such is not the law. Consent by one person to allow another to perform an unlawful act upon such person does not constitute a defense to an action to recover the actual damages which such person thereby received." Citing 2 Greenleaf, Ev. § 85; Shay v. Thompson, 59 Wis. 540, 18 N. W. 473, 48 Am. Rep. 538; Fitzgerald v. Calvin, 110 Mass. 153; Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328; Grotton v. Glidden, 84 Me. 589, 24 Atl. 1008, 30 Am. St. Rep. 413. We agree that this statement of the law is EXCESSIVENESS. 40—DAMAGES An award of $800 for compensatory and punitive damages for an unusually severe, unprovoked, and malicious assault upon a person incapacitated by physical defects by one in good health was not excessive. Exceptions and Motion from Supreme Judicial Court, Lincoln County, at Law. Action of trespass for assault and battery by Levi W. Brann against Noah M. Leavitt. Verdict for plaintiff, and defendant brings exceptions and a motion. Exceptions and motion overruled. Argued before CORNISH, C. J., and SPEAR, KING, HANSON, and PHILBROOK, JJ. L. M. Staples, of Washington, Me., and A. S. Littlefield, of Rockland, for plaintiff. George A. Cowan, of Damariscotta, and Harold R. Smith, of Whitefield, for defendant. HANSON, J. This is an action of trespass for assault and battery. The plaintiff recovered a verdict in the sum of $800, and the case is before the court on exceptions and motions by the defendant. The defense was the general issue, with a brief statement alleging self-defense. At the conclusion of the charge of the presiding justice, the defendant requested certain in his brief quotes as the law that, "unless the assault was intentional, reckless, wanton, or malicious, there should be no punitive damages." And that is the law in this state. Robichaud v. Maheux, 104 Me. 524, 72 Atl. 334; Webb v. Gilman, 80 Me. 177, 13 Atl. 688; Lord v. Maine Central Railroad Co., 105 Me. 258, 74 Atl. 117. [2] The justice presiding in his charge upon the question of damages instructed the jury that "the plaintiff is entitled, if he is entitled to anything, to actual compensation for his injuries," and in conclusion charged the jury as follows: "But the plaintiff invokes a further rule in this case, and it is a rule well recognized in law. He says that, under the circumstances, the defendant should be made to pay punitive damages, smart money,' not because the plaintiff is entitled to that as compensation, but befendant should be punished. And it is a rule cause the common good requires that the de in a case of this kind that, when an assault is . wanton, unprovoked, causeless with a desire to hurt, to gratify anger or malice, the jury are warranted, if they think the actual damages awarded are not sufficient punishment, they are warranted in adding to the actual damages such a sum as smart money, or punitive damages which, taken together with the actual damages, will afford a sufficient punishment to the person who has done the wrong. Juries are not compelled to do this; they are not required to do it; they are allowed to do it. Whether they will add punitive damages or not is left solely to the discretion of the jury. You have a right in this case, if you find that this was a wanton, wicked assault, not provoked by the plaintiff himself to add to the actual damages a sufficient sum of money as punitive damages to afford sufficient punishment, provided the actual damages themselves are not sufficient. wise not." Other The charge was explicit and more favorable to the defendant than the instructions sought in the requests. The defendant was not injured by the refusal, and can take nothing by these exceptions. The sixth and seventh requests relate to the question of self-defense raised by the pleadings, and much of the charge was devoted to the subject, fully covering the points urged and the law correctly stated. The defendant was not aggrieved, and can take nothing by those exceptions. The Motion. [3] The record discloses an assault of unusual severity when the physical condition of the parties is taken into consideration; the plaintiff incapacitated by physical defects; the defendant in perfect health and strength. It discloses that the assault was unprovoked and malicious; that the verdict was fully justified, and the amount manifestly not excessive. Exceptions overruled. Motion overruled. WEBBER et al. v. GRANVILLE CHASE CO. (Supreme Judicial Court of Maine. March 11, 1918.) 1. LOGS AND LOGGING 3(2)-PERMIT To CUT STANDING TIMBER-NECESSITY OF RECORDING "BARGAIN AND DELIVERY.' Rev. St. 1883, c. 111, § 5, provided that no agreement that personal property bargained and delivered to another for which a note was given should remain the property of the payee until the note was paid was valid unless made and signed as a part of the note, and that no such agreement, though made and signed in a note for more than $30, was valid except as between the original parties unless recorded. As amended and now contained in Rev. St. 1916, c. 114, § 8, the statute provides that no agreement that personal property bargained and delivered to another shall remain the property of the seller until paid for is valid unless in writing and signed, and that when so made it shall not be valid except as between the original parties unless recorded. Held, that the amendment has not changed the subject-matter to which the statute applies and a permit to cut timber in the usual form with a provision that the grantor reserves and retains full and complete ownership and control of all timber cut until all matters in connection with the license are settled and the sum due for stumpage is fully paid is not within the statute as amended, and is valid against third parties, though not recorded; such a permit not being a "bargain and delivery" of personal property. in the case was in the ordinary form, containing a clause in which it is agreed that the grantor shall reserve and retain full and complete ownership and control of all lumber cut from the premises until all matters in connection with the license are settled and the sum due for the stumpage and all paper given therefor shall be fully paid. [1] The only question here involved is whether this permit, either before the severing of the timber began, or from time to time after it began, should have been recorded so as to give notice to innocent third parties, intending to purchase, that the timber, and lumber made therefrom, were subject to a lien. No claim could be made in favor of such record prior to the act of 1895, now found as section 8, chapter 114, R. S. 1916. Prior to the enactment of this statute, it had been clearly established in this state that a permit need not be recorded to enable the permittor to retain title to the lumber until the stumpage was paid and the conditions performed. Sawyer v. Fisher, 32 Me. 28; Crosby v. Redman et al., 70 Me. 56. See, also, Putnam v. White, 76 Me. 551, where the matter is fully discussed. Does chapter 32 of the Public Laws of 1895 require the recording of a permit to give it validity against innocent third purchasers? The letter of the statute does not. A permit is not an agreement for the bargain and delivery of personal property. It is a license authorizing the permittee to convert real property into perJudg-sonal property. But the letter of the statute 2. STATUTES 230-CONSTRUCTION-AMENDMENT OF STATUTE PREVIOUSLY CONSTRUED. The Legislature in amending a statute is presumed to have had in mind the decisions construing the former statute. Action by Charles P. Webber and others against the Granville Chase Company. ment for plaintiff. Argued before CORNISH, C. J., and SPEAR, KING, HANSON, and PHIL BROOK, JJ. C. B. & E. C. Donworth, of Machias, for plaintiffs. Reed V. Jewett, of Calais, and J. H. Gray, of Lubec, for defendant. does not always control. Was it, then, the SPEAR, J. The plaintiffs in 1894 were the owners of Hinckley township in Wash-ed and delivered to another, for which a note ington county. Herbert E. Allen, Dennyville, in the winter of 1913-14 entered upon the land, under a written permit from the plaintiffs, and cut and hauled therefrom the logs and lumber described in the plaintiffs' writ. On June 30, 1913, the defendants made a contract with Allen to purchase from him these logs and lumber, to be delivered, properly boomed, at the mouth of Musquash stream in said township. The logs were received by the defendants at their mill at Browning and paid for in full on May 16, 1914. On May 18, 1914, the plaintiffs wrote and advised the defendant that Allen had not paid the stumpage due on the logs. The defendants had no knowledge of a permit or its terms and conditions when it purchased the logs. The action is a suit in trover for the value of the logs and lumber. The permit The statute of 1895, now found in R. S. c. 114, § 8, reads as follows: "No agreement that personal property bargained and delivered to another, shall remain the less the same is in writing and signed by the property of the seller till paid for, is valid unperson to be bound thereby. And when so made it shall not be valid, except as between the original parties thereto, unless it is recorded," etc. * By a comparison of these statutes it will be seen that the subject-matter is precisely the same in each, namely, "no agreement that personal property bargained and delivered to another," etc., and expressed in exactly the same words. The amendment did not change the subject-matter. Nothing touching the "agreement" is found in the amendment which was not embraced in the original statute. But the original has been specifically construed. In Crosby v. Redman, 70 Me. 56, the exact point here raised was specifically put in issue, in argument, and expressly considered by the court, who said, "Here is no 'bargain nor delivery' of personal property within R. S. 1871, c. 111, § 5." If the permit did not come within the purview of "bargain and delivery" under the old statute, it does not come within the purview of "bargain and delivery" under the new statute, for, as above shown, the meaning of "bargain and delivery," the subject-matter of each statute is precisely the same in the one as in the other. The subject-matter was not enlarged; that the agreement of bargain and delivery should be recorded to give it effect against innocent purchasers was all that was sought to be accomplished by the amendment. [2] Nor do we think the Legislature intended the amendment of 1895 to apply to a permit. The decisions which specifically exclude the application of the old statute to a permit was promulgated before the new statute was enacted. The Legislature is presumed to have in mind the decision of the court. If, therefore, the Legislature in the amendment had intended to change the application of these decisions, touching the recording of permits, they would have done so by the use of some apt language rather than to have left their intention to the uncertainty of implica tion. Judgment for plaintiff for $1,467.33, and interest from June 1, 1914. GROVE MFG. CO. v. JACOBS. SPEAR, J. This is an action on the case brought by the plaintiff to recover for the sale and delivery of an assortment of goods containing various kinds of articles to the amount of $49. But in addition to the assortment of goods the sale included a device for the distribution of the goods, called a punch board. The defense is that this combination, as a whole, constituted a gambling device, within the law. The agreed statement contains the following description of the sale: "The assortment described in plaintiff's writ consisted of a board containing seven hundred holes in each of which was a slip of paper with a number printed thereon. The board was covered with a paper upon which were spots indicating where each hole was located. A list of premiums, so called, was printed on the paper cover. "The collar buttons did not exceed in retail value the sum of five cents, and the premiums, consisting of seventy articles, varied in value from fifty cents to two dollars, except the one designated as 'last punch,' which was in this case a meerschaum pipe of the retail value of about five dollars. "Upon the purchase of a collar button for ten to punch out the slip of paper in any hole cents,, a person was entitled to the further right which he might choose. If the number upon the slip of paper in the hole punched by him corresponded with the number placed opposite any premium described on said board, such premium became the property of such person. "That the intention of the plaintiff was that the said assortment should be used according to the specifications of said board." The construction of our statute in its ap plication to the decision of what constitutes a gambling device has been fully declared several times in this state, and recently reviewed in the case of State v. Googin, 102 Atl. 970, not yet officially reported. In this case the statute is fully quoted and analyzed in the light of the decisions in this and other jurisdictions. An extended opinion, therefore, upon this question would be but a repetition of the interpretation already given our statute. Under this recent decision there can (Supreme Judicial Court of Maine. March 11, be no question of doubt that the device here 1918.) An assortment of goods including a device for distribution called a punch board, which the purchaser of a collar button worth five cents for ten cents was entitled to punch, and which entitled him to a premium if the number on the slip punched corresponded with a number placed opposite any premium, was a "gambling device" within statute. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, "Gambling Device."] Action by the Grove Manufacturing Company against Frank Jacobs. Heard on agreed case. Judgment for defendant. Argued before CORNISH, C. J., and SPEAR, KING, and PHIL BROOK, JJ. HANSON, described comes fully within the ban of the statute as a gambling device. In accordance with the stipulation: LUBIN v. BENTON & F. RY. (Supreme Judicial Court of Maine. March 11, 1918.) MASTER AND SERVANT 166-NEGLIGENCEPROXIMATE CAUSE. To authorize recovery, causal relation beplaintiff's injury, in addition to negligence of tween deafness of defendant's employé and defendant in not discovering such defect, must be shown. Motion and Exceptions from Superior Court, Kennebec County. Action by Antoin Lubin against the BenGeorge A. Cowan, of Damariscotta, for ton & Fairfield Railway. Verdict for plainplaintiff. Weston M. Hilton, of Damariscot- tiff, and defendant brings exceptions, and ta, for defendant. motion for new trial. New trial granted. Argued before CORNISH, C. J., and A. Bradford. Verdict for plaintiff was set SPEAR, KING, HANSON, and PHIL- aside, and new trial ordered, and plaintiff BROOK, JJ. brings exceptions. Exceptions overruled. Argued before SPEAR, KING, HANSON, and PHILBROOK, JJ. Weeks & Weeks, of Fairfield, for plaintiff. W. R. Pattangall, of Augusta, Frank E. Brown, of Waterville, and H. E. Locke, of Augusta, for defendant. PER CURIAM. A careful study of the testimony in this case fails to reveal any sufficient evidence of liability on the part of the defendant. The allegations in the writ are reduced in the testimony to the single charge of incompetency of an employé of the defendant, through deafness, and a want of due care on the part of the defendant in failing to discover such incompetency. The plaintiff was a brakeman on a train of defendant, consisting of an electric shifter, and empty freight car. The alleged incompetent servant was motorman. While under the familiar rules of law, we think the plaintiff has failed to sustain the burden that the defendant, under the circumstances of the case, was guilty of negligence in failing to discover the defective hearing of this motorman, there is another indubitable reason why the plaintiff cannot recover. If we assume the motorman to be deaf and incompetent, to the extent claimed by the plaintiff, we utterly fail to find any causal relation between the motorman's deaf ness and the plaintiff's injury. In other words, there is a failure of evidence to show that the deafness had anything to do with Currier C. Holman, of Farmington, for plaintiff. K. A. Rollins and Thos. D. Austin, both of Farmington, for defendant. SPEAR, J. This was an action for breach of warranty in the sale of a horse. A jury trial was had and a verdict returned for the plaintiff for $65. The motion to set aside the verdict sufficiently states the case: entitled action after verdict and before judg"And now comes the defendant in the abovement, and moves that the verdict may be set aşide, and a new trial ordered for the following reasons, to wit: entertained by and occupied the house of H. A. "(1) That the plaintiff, Amos N. Walker, was Compton, a juryman on the panel which rendered the verdict in the above-entitled cause, prior to and during the trial of said action, and while the said H. A. Compton was also occupying and living in said house, all without the knowledge of the said defendant, Walter A. Bradford, or of his attorneys, prior to said verdict." This motion was addressed to the presiding justice, who made the following finding: "After hearing the testimony of H. A. Compton, the above-named juryman, I grant the motion and set the verdict aside. The plaintiff has 30 days in which to file exceptions." [1] To this finding-setting aside the verdict-the plaintiff filed exceptions. From inspection, it is evident that the motion presented no question of law. The finding of the presiding justice was upon a pure question of the accident. As it can serve no useful purfact. The plaintiff's exceptions, therefore, pose to analyze the testimony upon a ques-raise no question of law, and for this reason tion so plain as this seems to be, without further discussion, we think the entry must bring nothing to the law court, and should be be made: Motion sustained. New trial granted. WALKER v. BRADFORD. dismissed. [2] But, inasmuch as it is claimed that a motion to set aside a verdict for misconduct of a juror should be based on section 109, chapter 87, R. S., it may be regarded as proper to add that in the opinion of the court it is unnecessary to inquire whether the proceedings herein considered were authorized or in (Supreme Judicial Court of Maine. March 11, accordance with any provision of the statute. 1918.) 1. APPEAL AND ERROR 842(7) — REVIEW QUESTIONS OF FACT. The finding, setting aside the verdict, being on a pure question of fact, exceptions thereto raise no question of law, and so bring nothing to the law court. It is a proceeding that may be instituted independent of any statute. It has been held, from time immemorial, that courts of record, during term time, at least, are vested with inherent powers to compel obedience to, or remove unwarranted in2. NEW TRIAL 44(1)—MISCONDUCT OF JU-terference with, the administration of justice, BOR-EFFECT OF STATUTE. Proceeding to set aside a verdict for misconduct of a juror may be instituted independent of any statute. CRETION. 3. APPEAL ANd Error 978(3)-NEW TRIAL 44(1) REVIEW NEW TRIAL DISMotion to set aside verdict for misconduct of juror is entirely within the discretion of the trial judge, so that the granting thereof in the proper exercise of such discretion is final. Exceptions from Supreme Judicial Court, Franklin County, at Law. and to protect their proceedings against imposition, fraud, or any other conduct involving contempt. Such is the rule in all common-law courts, at least. It is a power inherent in the Constitution of a court and necessary, not only to the exercise of its functions, but to its very existence. See note in Clark v. People, 12 Am. Dec. 178. Accordingly the common law, independent of any statute, vests the court with plenary power over the conduct of its own proceedAction by Amos N. Walker against Walter ings, including improper interference with, or |