49 N. W. 148; People v. Durrant, 116 Cal. Merrill & Merrill, of Showhegan, for plaintiff. Butler & Butler, of Showhegan, for defendant. SPEAR, J. This is an action of replevin, brought by the plaintiff to recover a certain lot of pressed hay alleged to be taken and de The plaintiff claims that he purchased the Later the defendant sold the same hay to Merton L. Chase in the barn, and received payment in full thereof. The latter purchas We feel that the practice in so many juris-hay of the defendant and took delivery of it dictions having been so uniformly contrary in the barn, although he had paid no part of to the New York rule, and for so long a time, the consideration. it is fair to presume that no prejudice to the rights of respondents in criminal cases or litigants in civil actions has been found to result. It seems no more than a requirementer had no knowledge of the previous sale, and that all parties shall exercise good faith in the use of the powers the law has intrusted to them for securing an impartial jury. Exception overruled. was, accordingly, an innocent purchaser for value. Arrangements were made by Chase, and cars obtained for delivery of the hay at Thompson's Crossing and shipment therefrom; and the hay was delivered at the crossing, and there deposited when it was replevined. The real question before the court is whether the hay, when it was replevined at Thompson's Crossing, was in the possession of Lancaster, the defendant, or Merton Chase, the second purchaser. Assuming, without deciding, that the plaintiff purchased the hay as he claims, then the case may be resolved into three propositions: (1) At the time of the replevin had the hay been sold to Chase? (2) Was Chase a bona fide purchaser for an adequate consideration, without notice of the previous sale? (3) Was the hay delivered to Chase at Thompson's Crossing, and in his possession? [1, 2] If the defendant sustains the burden upon these propositions, the plaintiff cannot sustain his action. We think he does. There can be no controversy upon proof of the first two. The third involves a proposition of 2. Sales 201 (3)-Deposit elsewhere after law: Was there a delivery of the hay to transport of hay purchased in barn a deliv-Chase at Thompson's Crossing? The evidence ery. Where the buyer of hay in the barn ordered cars for a certain railroad station, employed men to haul the hay there, and had it actually deposited there at a time when it was replevied by a prior buyer as from defendant seller, such acts constituted a delivery of the hay to the second buyer, so that the hay was in his possession, and not in that of defendant seller. Report from Supreme Judicial Court, Somerset County, at Law. Action by Percy H. Williams against Percy J. Lancaster. On report from the Supreme Judicial Court. Judgment for defendant. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ. shows that he ordered cars, employed men to haul the hay, and that the hay was actually deposited at the crossing when taken. We think this proposition, as a matter of law, is fully sustained by Mercier v. Murchie's Sons Co., 112 Me. 72, 90 Atl. 722, where it is said: "Whenever personal property is sold, deliverable to a particular person or at a particular place for the buyer, a delivery to such person or at such place is a completed delivery to the vendee. This principle is so well settled as to hardly require citations." Under the above rule of law the undisputed evidence shows a delivery of this hay to Chase at Thompson's Crossing, and, as a corollary to delivery, the hay was in his possession, and not in that of the defendant. Judgment for the defendant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Index (111 A.) NORTH NAT. BANK v. HALL et al. (Supreme Judicial Court of Maine. Dec. 20, 1920.) Bills and notes 394-Demand upon administrator of maker of note held necessary. Where maker of note had died at time it became due, and an administratrix had been appointed, no place of payment being stated in the note, a demand upon the administratrix was necessary before bringing an action. Exceptions from Supreme Judicial Court, Knox County, at Law. Action by the North National Bank against H. G. Hall and Nancie I. Hall, administratrix. Decision for plaintiff, and defendants bring exceptions. Exceptions sustained. Argued before SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ. Alan L. Bird, of Rockland, for plaintiff. A. S. Littlefield, of Rockland, for defendants. SPEAR, J. This is an action upon a promissory note, dated November 9, 1908, payable on or before six years from said date by G. L. Farrand to H. G. Hall, and by H. G. Hall before maturity indorsed in blank, and negotiated to the plaintiff bank. At the time the note became due, the maker, Farrand, had died, and Helen Farrand had been appointed administratrix of his estate. At the time of maturity of said note, no appraisal had been filed, but later an inventory was returned showing some thousands of dollars of real estate, and several thousands of personal property, all of which except $75 was said to be in the hands of the trustee in bankruptcy of said Farrand. The estate was never represented insolvent. On November 9, 1914, the date of the maturity of the note, E. F. Berry, a notary public, and cashier of the plaintiff bank, made protest thereof, but never did make or attempt to make any demand upon the administratrix of said Farrand; the protest showing that he demanded said note at the said North National Bank, which was the indorsee. No place of payment was stated in the note. No demand was made upon the ad ministratrix of the deceased maker. There is no dispute upon the facts. The justice based his decision upon Hale v. Burr, 12 Mass. 86, a case which was precisely in point, and held that a demand upon the administrator was not necessary. His attention was not called by either side to Gower v. Moore, 25 Me. 16, 43 Am. Dec. 247, which upon the same state of facts decided directly the other way. Accordingly, the only question is whether we shall follow the Maine decision, which was affirmed in Hunt v. Wadleigh, 26 Me. 273, 45 Am. Dec. 108, or Master and servant 101, 102(2) Master need only exercise reasonable care to furnish safe place. It is error to charge that the employer "is bound to furnish a reasonably safe place," instead of charging that he is bound to exercise reasonable care to do so. Exceptions from Superior Court, Kennebec County, at Law. Action by Fred A. Sheaf against George Huff. Decision for plaintiff, and defendant brings exceptions. Exceptions sustained. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ. . Andrews & Nelson, of Augusta, for plain tiff. C. R. Tupper, of Boothbay Harbor, and A. S. Littlefield, of Rockland, for defendant. SPEAR, J. This case comes up on motion and exceptions. One of the exceptions must be sustained. The justice, in his charge, with respect to the duty resting upon the employ er to furnish a place for the employee to work in, stated the measure of duty as follows: "It is necessary for the defendant to furnish a safe, a reasonably safe place, for his employees to work; he is bound to furnish a reasonably safe place." The whole charge is printed and made a part of the case, but a careful examination discloses no modification of the language or meaning of the rule as given above. Nor are we able to say from the record which is also made a part of the exceptions that the evidence so strongly predominates in favor of the plaintiff as to make the inadvertence a case of harmless error. There may be a marked distinction in the duty of being bound to furnish a reasonably safe place, and exercising reasonable For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes If the place is, as a matter of fact, reasonably safe, it is immaterial whether the employer exercises any care. It is only when the place is not reasonably safe that the test of due care is invoked. The question then at once arises: The place not being reasonably safe, has the employer exercised due care to make it reasonably safe? Has he done what a reasonably prudent and careful man would have done, in the particular instance? In Hull v. Hall, 78 Me. 117, 3 Atl. 38, it is said: "The implied duty of the master being measured by the legal standard of ordinary care, his knowledge or want of knowledge of the actual condition of the machinery when it falls below the legal standard of being reasonably safe and causes the injury becomes a material element. ** When the master, therefore, does not know of the dangerous condition of | the machinery and has exercised that standard of care in relation thereto, he has discharged his duty, and there is nothing of which negligence can be predicted; and such is the result of all the cases." But if an employer is bound to furnish a reasonably safe place then the test of due care is entirely eliminated. It matters not how much care the employer has exercised if, as a matter of fact, the place is not reasonably safe, he is liable, so far as the element of place is concerned. Exceptions from Supreme Judicial Court, Oxford County, at Law. Action by Elliott W. Howe against Abbie M. Gray, administratrix, resulting in ruling for plaintiff on demurrer to the declaration, and defendant excepts. Exceptions overruled. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, and MORRILL, JJ. Ralph T. Parker, of Rumford, for plaintiff. Chapman & Brewster, of Portland, for defendant. SPEAR, J. This case comes up on demurrer. The declaration is founded upon two promissory notes against the administratrix of an estate. As to each note the plaintiff alleges as follows: "That on the 1st day of May, 1919, being within 18 months after the qualification of the said Abbie M. Gray in her capacity as administratrix of the estate of the said George C. It accordingly appears that the definition ment of this suit, the claim herein declared on Gray and at least 30 days before the commenceof the duty of an employer in furnishing a place for his workmen is in no sense tech-tratrix and payment thereof demanded, yet was presented in writing to the said adminisnical, but one which carefully differentiates the said defendant has never paid the same, between making the employer an insurer of the reasonable safety of the place, and an observer of the universal rule of reasonable care to furnish such a place. It is unnecessary to cite cases, as the definition of the duty is usually found to be as stated in Elliott v. Sawyer, 107 Me. 201, 77 Atl. 784: etc." To this declaration a special demurrer was seasonably filed as follows: "(1) That it does not appear therein that the plaintiff has ever presented to the defendant in writing or filed at the registry of probate, supported by an affidavit of the claimant "It is admittedly the duty of a master to use reasonable care to furnish for his servant a claim declared upon in said declaration as reor some other person cognizant thereof, the reasonably safe place for him to do his work."quired by the stautes of the state of Maine Exceptions sustained. HOWE v. GRAY. (Supreme Judicial Court of Maine. Dec. 22, 1920.) 1. Executors and administrators ~227 (3) Claim presented to representative need not be supported by affidavit. In view of Rev. St. c. 68, § 65, requirement of chapter 92, § 14, as amended by Pub. Laws made and provided. "(2) That no notice of the claim herein declared upon was given to the defendant 30 days at least before the commencement of this action in the manner and form required and provided for by the statutes of the state of Maine." The demurrer was joined and overruled by the presiding justice, to whose ruling exceptions were taken. [1] R. S. c. 92, § 14, as amended by Public Laws of 1917, c. 133, § 7, under which the action is brought, reads as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes * (111 A.) "All claims against the estates of deceased that he can avail himself of R. S. c. 68, persons shall be presented to the § 65, and demand an affidavit. executor or administrator in writing, or filed We think, when these two statutes are in the registry of probate, supported by an af- read together, it is very apparent that the fidavit of the claimant, or of some other person latter was intended to enlarge the power of cognizant thereof, either before or within eight-the administrator or executor whenever in his judgment he might deem it advisable for een months after his qualification," etc. The real question is: Does the phrase the protection of the estate. It gives him "supported by an affidavit by the claimant" power to accomplish all the defendant claims apply to the claim presented to the adminis- is required by his interpretations of the first trator or executor, as well as to the claim statute, and therefore obviates any necessity filed in the registry of probate? We are of for invoking such interpretation. Accordingly, the opinion that it does not. the reason for the interpretation having failed, the interpretation itself fails. Exceptions overruled. [2, 3] The interpretation of this statute depends upon discovering the intention of the Legislature, and must be considered in pari materia with all other provisions of the statute relating to the same subject-matter. It will serve no useful purpose to consume the time and space in an opinion to correlate the GAROUFALIS v. ELENIKE ORTHODOX different statutes bearing upon the interpre CENOTIS AGIA TRIAS. 1920.) actions tation to be given the statute in question. (Supreme Judicial Court of Maine. Dec. 20, Upon a careful examination of the history of the statute in question and kindred statutes, so ably discussed in the argument of both. Abatement and revival 15-Both actions the plaintiff and the defendant, we are of the commenced on same day for same cause should be abated, though one discontinued. opinion that the weight of authority and two Where plaintiff instituted reason supports the plaintiff's contention. against defendant on the same day for the same cause of action, and served the writs at thé same time, both should be abated notwithstanding discontinuance of one after pleas in abatement were filed, since both are deemed vexatious and do not stand on the same footing as two suits one of which was brought after the other for some good reason. 2. Abatement and revival 8(2)—Simultaneous actions in covenant and assumpsit on same agreement are for same cause. In the first place, we are of the opinion that the statute clearly states, and was intended to give, an alternative in the choice and manner of presenting a claim against an es tate. The first and usual way, and a method that has been generally followed so far as we are aware, is to present the bill against the estate to the administrator or executor. The second and less usual way is to file the claim in the registry of probate supported by affidavit. This latter course was undoubtedly intended as much of a protection to the claimant as to the estate, as in this manner positive record evidence of filing his claim would be preserved. That the first method was intended to be sufficient without affidavit is fully corroborated by the provisions of R. S. c. 68, § 65, which reads as follows: "Executors or administrators may require any person making a claim against the estate of their testator or intestate, to present said claim in writing, supported by the affidavit of the claimant, or of some other person cognizant thereof, stating what security the claimant has, if any, and the amount of credit to be given, according to the best of his knowledge and belief." This later statute is a complement of R. S. c. 92, § 14, with respect to the requirement of an affidavit, and clearly implies that no affidavit is required in the first instance; but says, in effect, if occasion arises in which the administrator may deem it advisable to obtain a more detailed and accurate statement of the debt and credit side of the claim, Two actions begun on the same day by a priest against a church to recover for breach of his contract of employment are for the same cause of action, though one was in covenant on a contract under seal and the other was in assumpsit on a simple contract. 3. Religious societies 27 (5)-Certificate incompetent to show standing of priest four years before, issuance, In an action for breach of contract of em ployment of a priest, where the defense was that plaintiff was not a priest in good standing at the time of employment, a certificate of the official standing of plaintiff four years after the time of his employment had no probative force and was inadmissible in evidence, especially where it did not appear from the case that it was issued by any one with authority in the premises. Exceptions from Supreme Judicial Court, Androscoggin County, at Law. On Action by Constantine Garoufalis against Elenike Orthodox Cenotis Agia Trias. defendant's exceptions to the overruling of its demurrer to the replication and to the admission of evidence. Exceptions sustained, demurrer sustained, and writ abated. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Argued before CORNISH, C. J., and HAN- | offered a certificate issued by a bishop of that SON, PHILBROOK, MORRILL, and WIL SON, JJ. church stationed in the United States, under date of September 16, 1919, to the effect that he was a duly ordained priest and was apWilliam H. Newell, of Lewiston, for plain- pointed minister in the Hellenic Orthodox Community of Holyoke, Mass. The court Ralph W. Crockett, of Lewiston, for defend-received the certificate in evidence subject to the defendant's exception. tiff. ant. WILSON, J. The plaintiff entered into a written contract with the defendant church on the 25th day of November, 1915, to offici- | ate as priest in accordance with the established canons of the Eastern Orthodox Church of Greece for a period of one year. In June, 1916, the plaintiff was discharged by the defendant on the ground that one of the inducements for entering into the contract was that the plaintiff was a regular priest of that faith in good standing, which the defendant claimed it had discovered was not true. The case is now before the court on the defendant's exceptions. We think they must both be sustained. While it is not quite clear from the pleadings just what questions are raised by the defendant's demurrer to the plaintiff's replication, all the authorities appear to be in accord that where two actions are brought for the same cause on the same day, and are served at the same time, both should be abated. Wales v. Jones, 1 Mich. 254; Beach v. Norton, 8 Conn. 71; Davis v. Dunklee, 9 N. H. 545; Haight v. Holley, 3 Wend. (N. Y.) 258; Dengler v. Hays, 63 N. J. Law, 14, 42 Atl. 775; Ency, of Pleading & Practice, vol. 1, p. 753. [1] Where one is brought after the other for good and sufficient reason, the first may be discontinued or the second abated. Brown v. Brown, 110 Me. 280, 86 Atl. 32. But, where both are brought and served at the same time, the court cannot and is not obliged to On the 28th day of October, 1919, the plaintiff sued out two writs against the defendant which were served on the defendant on the same day and at the same time and were both returnable and entered at the January term of the Supreme Judicial Court next following. Both actions were brought to recover dam-determine which is first and which is second. ages for the alleged breach of the contract above set forth, one being an action of covenant broken alleging the contract to be under seal, the other an action of assumpsit as for a breach of a simple contract. Both are deemed vexatious and both should be abated. The practice of bringing two suits for the same cause, though in different form and serving them at the same time, has nothing to commend it and should be disThe defendant seasonably filed a plea in couraged. They do not stand on the same abatement to each action on the ground of footing as two suits one of which is brought the pendency of another action for the same after the other because of some defect in the cause, brought on the same day and served first, or where for some other good reason it at the same time. Whereupon the plaintiff is desired to discontinue the first, or the secfiled a motion to discontinue the action of ond is afterwards brought in good faith and assumpsit which the presiding justice allow-for purposes which are not vexatious, which ed against the defendant's objection. The is the basis of the decision in the case of plaintiff then filed a replication to the defend- Brown v. Brown, supra, and the cases thereant's plea in abatement to the action of cove-in cited. nant broken, to which the defendant demurred. The court overruled the demurrer, to which ruling the defendant excepted. The case then proceeded to trial and chiefly upon the issue of whether the plaintiff was a regular priest in good standing at the time of entering into the contract. Evidence on both sides of this issue was introduced, and also disclosed that a priest in the Eastern Orthodox Church of Greece must receive a certificate of appointment from the Holy Synod at Athens in Greece, presided over by the Archbishop of Athens, and that no person is permitted to officiate as a priest in that church without such a certificate. In proof of his appointment the plaintiff [2] That both these actions were for the same cause there can be no question. Though different in form, a judgment in either would have been a good bar to the other. Newell v. Newton, 10 Pick. (Mass.) 470. Both should have been abated. [3] The certificate of the official standing of the plaintiff in September, 1919, had no probative force on the issue in the case which was the standing of the plaintiff in the church in November, 1915, and should not have been received. Neither does it appear from the case that it was issued by any one with authority in the premises. Exceptions sustained. Demurrer sustained. Writ abated. |