(108 A.)

was of the most solemn character known to the law, which sternly called for the life of the prisoner if he was sane, but humanely spared it if he was not. By the common law and by our Penal Code the plea of insanity made for him, if sustained by competent testimony, stayed the punishing hand of justice; but the jury were told that he was "of a class vulgarly called cranks," and that "those beings, who live with these unsettled minds, who are not taken care of by friends, relatives, or the state, when caught in the act of crime must be punished." This is not, and never was, the law, here or in England, since the repeal of a bloody statute passed in the reign of Henry VIII, which enacted that one found guilty of treason should be sent to the gallows, even if he became mad after his conviction. Instead of being tried according to law, the prisoner was tried against it, for the only defense which could have been made for him, and which the law distinctly recognizes as a complete one, if established by fairly preponderating evidence, was denied him by the trial judge. It was for him to guide the jury in making a true deliverance; but he misguided them,

and, in effect, told them to disregard the lawful defense made for the appellant. Further discussion could not make this clearer.

The second assignment of error is sustained, and the judgment reversed, with a venire

facias de novo.

Freyman, Thomas & Branch, of Mauch Chúnk, A. T. Walsh, of Pittston, and P. F. O'Neill and F. W. Wheaton, both of WilkesBarre, for appellant.

Arch. T. Johnson, of Philadelphia, Jacob C. Loose, of Mauch Chunk, and Duane, Morris & Heckscher, of Philadelphia, for appellee.

KEPHART, J. In this case the court below enjoined appellant from diverting the waters of Pine creek to the prejudice of the Palmer Water Company, the latter having appropriated the waters of Big creek, of which Pine creek is a tributary. An examination of the record discloses numerous inconsistent findings of fact, some of which have a tendency to sustain the decree, while others are adverse to it. It is the duty of the court below to make its findings clear and consistent, and we are compelled to remit the record that this duty may be properly performed. As illustrative thereof, we may point to the following, leaving to counsel for the respective parties the task of calling attention to any others which may seem imper

fect to them:

(A) Compare finding of fact No. 5, p. 13,

"Big creek is a mountain stream whose minimum yield is approximately 14,000,000 gallons per day," with finding No. 17, p. 26, "The continuous minimum flow of Big creek and the maximum flow has been as high as is 24,000,000 gallons every 24 hours, 41,000,000 gallons every 24 hours," and finding No. 26, p. 27, "The average daily flow

of 29,000,000 gallons per day is 2.5 times the capacity of the pipe used by the Palmer Water Company to convey water to the New Jersey Zinc Company." What is the minimum flow?

(B) Compare finding No. 10, p. 53, "The Palmer Water Company has not condemned more water than its present and future needs require," being (finding No. 2, p. 13) "all the water of Big creek at and above the Parryville dam," in order to deliver it to its "one consumer, the New Jersey Zinc Company" (see finding No. 21, p. 26), and its needs measure the appellee's requirements, and finding No. 8, p. 14, "The New Jersey Zinc Company (of Pennsylvania) requires for its manufacturing uses at the present time 16,000,000

Appeal from Court of Common Pleas, Car- gallons of water per day," and (finding No. bon County.

Bill in equity for an injunction by the Palmer Water Company against the Lehighton Water Supply Company. From a decree awarding an injunction, defendant appeals. Reversed, exceptions reinstated, and record remitted for proper and consistent findings of

fact and for entry of a decree according to

law.

9, p. 14) "its probable requirements [will be] tion of four years," with finding No. 25, p. twenty million gallons per day at the expira27, "The maximum capacity of the pipe line leading from the Parryville dam of the Palmer Water Company to the plant of the New Jersey Zinc Company of Pennsylvania is 11,500,000 gallons per day," and with par. (A)

above.

(C) Also compare findings Nos. 29, 30, and Argued before BROWN, C. J., and MOSCH-34, pp. 28 and 29, "That on an average of ZISKER, FRAZER, SIMPSON, and KEP- 17,000,000 gallons of water every 24 hours HART, JJ. passes down the sluiceway of the Carbon Iron

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the testimony that he had removed his residence and changed his domicile to another state before the assessment, will be affirmed on appeal.

TAXATION 495-FINDING ON APPEAL AS TO to have a residence in the state of Pennsyl

vania. The residence so acquired the appellant has kept and maintained as his permanent home ever since."

On the foregoing findings the appeal is dismissed, at the costs of the appellant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

118 Me. 404)

(108 A.)

premises. The issue is whether the lease had OREN HOOPER'S SONS v. STERLING- been renewed or had expired. COX SHOE CO. et al. (Supreme Judicial Court of Maine.

1919.)

Dec. 19,

A sublease for one year granted by defendants, lessees and sublessors, to plaintiffs, providing that "the lessee shall have the right of renewal to July 1, 1921," which was the end of the term of defendant's lease, gave plaintiffs an absolute right to a sublease to such date after the expiration of the one-year sublease, and, the contract being a lease and not a mere agreement to lease, it could create an additional term to commence in the future which is regarded as arising from the original demise. 2. LANDLORD AND TENANT 86(2) ELECTION BY SUBLESSEE TO CONTINUE SUBLEASE AND NOTICE OF ELECTION.

Facts held to show that the sublessee legally and seasonably exercised the right of renewal to a fixed date, under the sublease option provision, by words sufficient to constitute an election to continue the lease and to constitute adequate notice thereof to sublessors.

3. LANDLORD AND TENANT 90(6)-CONTINUANCE OF TENANCY UNDER LEASE PROVISION. The continuance of a tenancy beyond the specified term and the payment of rent are strong, and in many cases conclusive, evidence of lessee's intention to avail himself of the option to renew for a further term provided in the lease or sublease, and obviate the necessity of written notice; the right granted being wholly lessee's.

The essential facts may be stated as follows: J. B. Brown & Sons, being the owners of a certain building located on Commercial street in the city of Portland, on July 1, 1916, leased the easterly half thereof to the defendant for a term of five years. That lease therefore will expire on July 1, 1921.

On August 29, 1916, the Sterling-Cox Shoe Company sublet the ground floor of this building to the plaintiff corporation for the term of one year from September 1, 1916, at the rental of $25 per month playable monthly; the first payment to be made on October 1, 1916. That lease contained the following renewal clause: "The lessee shall have the right of renewal to July 1, 1921." The Hooper Company entered into possession under the lease.

On October 2, 1916, a supplementary arrangement was made between the plaintiff and the defendant, by which, in consideration of the space turned over by the plaintiff to the defendant on the lower floor of the building, the latter agreed to give the plaintiff twice the amount of floor space on the top floor, together with access thereto and elevator service without charge. On August 3, 1917, before the expiration of the first year, the plaintiff wrote the defendant:

"We inclose herewith our check for July rent and wish to give you notice herewith that we desire to renew our lease for another year in accordance with the terms of our present lease."

No written acknowledgment of this letter, although requested, appears in the case; but, in a conversation between the representatives of the parties a few days later, Mr. Cox was asked by Mr. Hooper why he had not acknowledged receipt of this communication, and replied, as he says, that they did not want to renew the lease, that the conditions had

Appeal from Supreme Judicial Court, Cum- been violated repeatedly, and they did not berland County, in Equity.

Suit by Oren Hooper's Sons against the Sterling-Cox Shoe Company and another. Decree for plaintiff granting an injunction, and defendant corporation appeals. Appeal dismissed, decree of sitting justice affirmed, and temporary injunction made perpetual.

Argued before CORNISH, C. J., and HAN-
SON, PHILBROOK, DUNN, MORRILL, and
DEASY, JJ.

Ernest M. White, of Portland, for appellant.
Maurice E. Rosen, of Portland, for appel-

lee.

CORNISH, C. J. This is an appeal by defendant corporation from a decree of the sitting justice enjoining it from interfering with the plaintiff's possession of certain leased

care for the plaintiff as a tenant. However, he did not refuse to renew the lease, and nothing was done to that end by the defendant. The plaintiff continued to occupy during the second year, the same as during the first.

In June and July, 1918, arrangements were made by the plaintiff to sublet the lower floor for restaurant purposes. This necessitated certain alterations in the interior of the building, the installation of restaurant fix

tures, etc.

On June 25, 1918, a written agreement was entered into between the plaintiff and the defendant under which the plaintiff agreed to take care of all claims made by the owners of the building against the defendant for alterations or damages done to the property, and also to pay the defendant all sums for additional insurance caused thereby.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
108 A.-23

This agreement was sent to the plaintiff by the defendant inclosed in a letter of the same date, June 25, 1918, in which the defendant also asked the plaintiff to rear- to do so. 1 range the goods on the upper floor, and stated that, in moving the plaintiff's goods from the lower to the upper floor to make room for the restaurant, it would be obliged to make a small charge for elevator service. This letter speaks of "alterations and added insurance due to your subletting portions of" your "floor space."

trial should desire to renew for the balance of the term held by the shoe company, that is, to July 1, 1921, it had the absolute right It was not a lease from year to year. Had it been, the last year would run to September 1, 1921, which would be two months beyond the term held and controlled by the shoe company. There were two separate terms and only two, an absolute term of one year and at its expiration an optional term of three years and ten months. It is a lease and not a mere agreement to lease. A

On July 1, 1918, the lease was made from lease may create a term to commence in futhe plaintiff to the sublessee.

On September 20, 1918, in answer to the plaintiff's letter of September 16, 1918, which is not in evidence, the defendant wrote:

"In reply to yours of the 16th, I believe I have remedied your difficulty in getting to our top floor by explaining to your foreman who usually calls here for goods stored, how he can at all times reach the upper story. He has no doubt explained to you before this."

ture, and the additional term is regarded as arising from the original demise. Weed v. Crocker, 13 Gray (Mass.) 219; Willoughby v. Atkinson Co., 93 Me. 186, 44 Atl. 612; Perry v. Lime Co., 94 Me. 325-334, 47 Atl. 534.

[2] Such being the construction of the instrument, did the plaintiff legally and seasonably exercise its right of renewal?

We think it did, and in two ways, the one by words, the other by acts, either of which methods would constitute an election.

On October 1, 1918, the defendant wrote the In the first place, on August 3, 1917, which plaintiff, stating that owing to war condi- was before the expiration of the first year, tions it had been obliged to discontinue shoe the plaintiff wrote to the defendant that it manufacturing and had been forced to make desired to renew its lease for another year, new arrangements for the lease of the build-in accordance with the terms of the existing ing; that the concern taking it over would lease. This language is somewhat ambiguneed the lower floor, and therefore the plainous. The terms of the lease did not permit tiff must leave the building clear of its prop- that it should be renewed for a single year, erty by November 1, 1918. nor, on the other hand, did it require that, if This was followed by a notice to the plain-renewed for the whole term, notice should be tiff, dated November 12, 1918, signed by Neal W. Cox, to the effect that the Sterling-Cox given to the defendant annually. The plainShoe Company had assigned to him its lease tiff testified that he desired to renew till July of the building and immediate possession of the ground floor was demanded.

An assignment appears in the evidence dated November 9, 1918, and is signed by Sterling-Cox Shoe Company by Neal W. Cox, treasurer, and the assignee named is Neal W. Cox in his individual capacity.

1, 1921, but gave the notice in this form because he thought he was obliged to do so. He gave no further notice, however, because on consulting his attorney he ascertained that it was unnecessary.

Mr. Hooper's statement of intention seems reasonable, and the defendant apparently took This bill in equity praying for an injunc- the same view because it made no reply to the tion was brought on November 14, 1918. The plaintiff's letter and never afterward, until injunction was granted by the sitting justice, this litigation arose, raised the point that the and the cause is before this court on appeal. renewal notice was insufficient. In the conFrom the foregoing statement of facts versation between the parties, already rewhich is designedly made quite full, the cor- ferred to, Mr. Cox did not base his partial rectness of the ruling below is apparent. The disinclination to renewal upon the inadequarights of the parties can be readily determined in accordance with settled principles of law.

[1] The lease of August 29, 1916, from defendant to plaintiff, was in proper form and demised the premises for a term of one year from September 1, 1916, to September 1, 1917, with the right of renewal to July 1, 1921, the terse language being, "the lessee shall have the right of renewal to July 1, 1921." The meaning of this renewal clause is obvious. The five-year term of the lease which the shoe company held from the Browns would expire on July 1, 1921. The shoe company therefore gave to the plaintiff a sublease for one year, and if the plaintiff after one year's

cy of the notice, but upon the unsatisfactory character of the plaintiff's occupation.

[3] But apart from this notice, it is firmly settled in this state, whatever the rule may be in some other jurisdictions, that continuance of tenancy beyond the specified term and the payment of rent are strong, and in many cases conclusive, evidence of the lessee's intention to avail himself of the further term, and obviate the necessity of written notice. Sweetser v. McKenney, 65 Me. 225; Holley v. Young, 66 Me. 520; Briggs v. Chase, 105 Me. 317, 74 Atl. 796; Kelleher v. Fong, 108 Me. 181, 79 Atl. 466.

The right granted is wholly in the interest of the lessee and to be exercised by him as a

(108 A.)

matter of choice. In the case at bar no written notice was required, and the continued occupation was strongly probative of the plaintiff's election to renew. The specific term ended September 1, 1917; but the plaintiff continued to occupy and pay rent until October 1, 1918, when the defendant notified it for the first time that the lease was terminated.

[4] The plaintiff's intention is further evidenced by the fact of its subletting the ground floor for a restaurant as late as July 1, 1918, with the knowledge and consent of the defendant and by the agreement which the parties made as to the expense of the changes and the increased insurance. It is unreasonable to suppose that the plaintiff would have entered into this arrangement and subjected itself to this additional expense unless it expected to hold during the balance of the term. And the defendant must have so understood it. Moreover, every motive of self-interest would lead the plaintiff to renew, because it received from the sublessee of a portion of the premises the same amount it paid the defendant for the whole, so that it was enabled by the sublease to use the upper floor for storage purposes without any cost whatever.

The evidentiary strength of continued occupation is reinforced by all the circumstances in the case.

Appeal dismissed, with costs.
Decree of sitting justice affirmed.
Temporary injunction made perpetual.

118 Me. 409)

GRAND LODGE A. O. U. W. OF MAINE v. MARTIN et al.

(Supreme Judicial Court of Maine.

1919.)

substantial requirement, without conformity to which, or waiver by the member during his lifetime, no substitution of the beneficiary can be legally effected.

4. INSURANCE 780, 784(1)-RIGHT OF AS

SURED TO CHANGE BENEFICIARY IN FRA-
TERNAL BENEFIT ASSOCIATION.

A member of a fraternal benefit association
has the unqualified right to change the bene-
when he can no longer speak, the fact of the
ficiary, and also the right to determine how,
change shall be ascertained and verified.
5. INSURANCE 784(7) — FORMALITIES NOT

WAIVED ON CHANGE OF BENEFICIARIES.

Where a member of a fraternal benefit association, whose by-laws permitted the substitution of beneficiaries when revocation and direction were made in a prescribed form, signed by the member and attested by the recorder of his lodge, and forwarded to the Grand Recorder, signed the instrument out of the presence of the recorder, and the recorder later attested it, it cannot be said that the benefit association

waived the failure of such member to sign the
same in the presence of a recorder, in the ab-
sence of a showing that the recorder was au-
thorized to waive any rights.
6. INSURANCE 784(1)-SIGNATURE TO AT-

TESTATION CLAUSE NOT AN AUTHENTICATION
OF CHANGE OF BENEFICIARY.

A signature by a recorder to an attestation clause in an instrument, wherein assured directed a change of beneficiary, was not good as an attestation, where the recorder retained the instrument intending, before forwarding the same to the Grand Recorder, to interview assured to see that the signature, purporting to be that of the assured, was made by him.

7. INSURANCE 784(7)-WAIVER OF RIGHTS OF FRATERNAL BENEFIT ASSOCIATION BY DEPOSIT IN COURT.

Where a fraternal benefit association filed a bill of interpleader and deposited in court a sum due on a contract, the money being claimed

Dec. 23, by different persons, the association thus waiv

1. INSURANCE 718-BY-LAWS OF FRATER-
NAL BENEFIT ASSOCIATION PART OF CONTRACT.
By-laws of a fraternal benefit association
become a part of its contracts of insurance.
2. INSURANCE 784(7) — SUBSTITUTION OF
BENEFICIARY CONTRARY TO BY-LAWS VALID

WHEN ACCEPTED.

When a fraternal benefit association by the voluntary direction of an assured has actually changed the beneficiary by the issuance of a new certificate in lieu of the original, such substitution is valid and effectual, though the formalities provided by the by-laws for a change of beneficiary have not been observed.

3. INSURANCE 784(1)-BY-LAW AS TO REVOCATION OF CERTIFICATE FOR BENEFIT OF AS

SURED.

A requirement of the by-laws of a fraternal benefit association that the revocation of a certificate and direction for substitution of beneficiary must be in the presence of certain offcers of the association is not solely for the benefit of the association, but is a material and

ed rights of its own as to whether or not there was a valid substitution of beneficiaries, but it did not and could not waive the rights of the original beneficiary, who claimed that the substitution of beneficiaries was not valid.

Appeal from Supreme Judicial Court, Penobscot County, in Equity.

Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen of Maine against Forest L. Martin and Georgie A. Penney. From a decree adjudicating that the last-named defendant was entitled to the.. fund involved, the first-named defendant appeals. Appeal dismissed. Decree affirmed.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, WILSON, and DEASY, JJ.

C. J. Dunn, of Bangor, for plaintiff.

W. H. Waterhouse, of Oldtown, and Morse & Cook, of Bangor, for defendant Martin. Walton & Walton, of Skowhegan, for defendant Penney.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes