which the team could be stopped did not ap- | Atl. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. ply to the situation at the place of accident, 1917E, 924. if well founded, cannot affect the result. One Magill saw where the accident occurred, and testified that the team could be stopped there "almost immediately"-"within three or four feet." [3] The argument that Gillis had to choose between the danger of pulling the horses back upon the boy and that of the wheels striking him would deserve consideration on the issue of fact involved, but for the testi to stop. If upon this evidence the jury could be permitted to find that he hesitated for the reason suggested, they certainly could find that he did not do so. It is true, as the defendant argues, that if there was delay the suggestions offered may or may not be of reason for it must be sought. The various weight with the jury who are to determine the fact. The important point here is that no reason exonerating Gillis from fault for the delay is conclusively shown to exist. In this state of the proof the jury could find that no such reason did exist, and that the delay was due to Gillis' failure to use reasonable care to act promptly. Gillis was called as a witness by the plain-mony of Gillis himself that he at once tried tiff, and testified that he stopped as quickly as he could. From this it is argued that, upon the proof produced by the plaintiff, no fault upon Gillis' part could be found. But there was other evidence, to the effect that the team could reasonably have been stopped in season to prevent the accident. The jury were at liberty to believe this evidence, and if they did they might find Gillis in fault. In reaching that conclusion they might find, either that his testimony that he stopped as soon as he could was untrue, or, if it was true, that his conduct, although it expressed his best judgment and ability, still failed to measure up to the standard of average care. Warren v. Railway, 70 N. H. 352, 47 Atl. 735; Carney v. Railway, 72 N. H. 364, 57 Atl. 218; Garland v. Railroad, 76 N. H. 556, 564, 86 Former result affirmed. WALKER, J., was absent. The others concurred. (111 A.) (119 Me. 472) STATE v. ALBANO. (Supreme Judicial Court of Maine. Dec. 23, 1920.) Jury 110(14) Accused, not having exhausted peremptory challenges, cannot complain of overruling of challenge for cause. A party, still having peremptory challenges unused, who permits an incompetent juror to take his seat or remain on the panel, with full knowledge of his prejudicial views, thereby waives his exceptions to an erroneous ruling of the trial court denying his challenge for cause, unless it appears that by using one of his peremptory challenges to remove such incompetent juror he would later have been compelled to accept an objectionable juror, even though not incompetent, through the exhaustion of his peremptory challenges. right under section 100, c. 87, R. S., to challenge one from the panel after it was complete. While the answer of the juror to the inquiry of the court may have indicated a state of mind that was not open and impartial such as should be required of a juryman of a criminal case, still we think by permitting the juror to serve, knowing his views, when he could have removed him by the exercise of one of his peremptory challenges, the respondent must be held to have waived his rights under his exception, unless it is made to appear that he would have been prejudiced by the use of one of his peremptory challenges for this purpose, which the case does not disclose. It is held by the overwhelming weight of authority that where a juror was incompetent, though the trial court erred in overrul Exceptions from Superior Court, Cumber- ing a challenge for cause, if the juror is then land County. Frank Albano was convicted of keeping and maintaining a gambling nuisance, and he brings exceptions. Exceptions overruled. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ. removed by a peremptory challenge, the respondent cannot maintain an exception to the erroneous ruling of the court, unless it appears by reason of thus exercising one of his peremptory challenges he is finally compelled to accept an objectionable juror against his wishes. Bishop, Crim. Procedure, vol. 1, § 943a; State v. Hoyt, 47 Conn. 518, 519, 36 Carroll L. Beedy and Clement F. Robinson, Am. Rep. 89; State v. Gaffney, 56 Vt. 451; 24 Cyc. 323, XIII, E, 8. both of Portland, for the State. W. H. Murray, of Portland, for defendant. WILSON, J. The respondent was being tried on an indictment charging him with keeping and maintaining a gambling nuisance. A drawn jury was requested by the respondent. The eleventh juryman upon being sworn on his voir dire in reply to a question by respondent's counsel as to his views on card and pool playing said: Since the rights of a respondent can be fully preserved in case he is finally compelled to accept an objectionable juror through having used a peremptory challenge to remove an incompetent juror by reason of his challenge for cause being erroneously overruled, we think the interests of justice require that he should first use all the means the law has provided him to obtain an impartial jury, and, if it then appears that he has been prejudiced by an erroneous ruling of the trial "I feel that a community would be better off court, this court will grant him proper relief. without either pleasure, as a whole." And in response to an inquiry by the court as to whether he thought his views would prevent him from rendering a true verdict upon the evidence presented in court said: “No, sir, I think I should not be prejudiced, if the evidence indicated there was nothing wrong." While New York and a few other states hold to the contrary (People v. McQuade, 110 N. Y. 284, 18 N. E. 156, 1 L. R. A. 273; Brown v. State, 57 Miss. 424; Birdsong v. State, 47 Ala. 68; Dowdy v. Com., 9 Grat. [Va.] 727, 60 Am. Dec. 314), the great weight of authority supports the rule above laid down, that a party still having peremptory challenges unused, who permits an incompeWhereupon the respondent challenged for tent juror to take his seat or remain on the cause on the ground that such a bias or prej-panel with full knowledge of his prejudicial udice was disclosed by the juror's answer to the court's inquiry that it would require evidence to remove it. His challenge for cause was overruled by the presiding Justice, and the case is now before this court on the respondent's exception to this ruling. views, must be held to have waived his exceptions to an erroneous ruling of the trial court denying his challenge for cause, unless it appears that by using one of his peremptory challenges to remove such incompetent juror he would later have been compelled to accept an objectionable juror, even though not incompetent, through the exhaustion of his peremptory challenges. State v. Smith, Preswood v. State, 50 Tenn. People v. Aplin, 86 Mich. 393, It appears from the bill of exceptions that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Merrill & Merrill, of Showhegan, for plain 49 N. W. 148; People v. Durrant, 116 Cal. 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 hay of the defendant and took delivery of it in the barn, although he had paid no part of the consideration. 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 jurisdictions having been so uniformly contrary to the New York rule, and for so long a time, 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 requirement | er 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 law: Was there a delivery of the hay to Chase at Thompson's Crossing? The evidence shows that he ordered cars, employed men to 2. Sales 201(3)—Deposit elsewhere after transport of hay purchased in barn a delivery. Where the buyer of hay in the barn order-haul the hay, and that the hay was actually ed 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. 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 perReport from Supreme Judicial Court, Som- to the vendee. This principle is so well settled son or at such place is a completed delivery erset 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. as to hardly require citations." ed evidence shows a delivery of this hay to Under the above rule of law the undisputChase 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 (119 Me. 463) (111 A.) NORTH NAT. BANK v. HALL et al. overrule these decisions and follow the Massachusetts case, which was expressly considered by our court but not followed. We (Supreme Judicial Court of Maine. Dec. 20, find no ground either in reason or law, for 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 ad ministratrix 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 administratrix 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 ▼. Wadleigh, 26 Me. 273, 45 Am. Dec. 108, or pursuing the latter course. It may not be improper to observe, as bearing upon the reason for the Maine decision, that our Negotiable Instrument Act follows our court. (Supreme Judicial Court of Maine. Dec. 22, 1920.) 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 "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 care to do so. A place may not be reasonably safe, and on account of not being so, may be the proximate cause of an injury, and yet if the employer has exercised reasonable care to make it reasonably safe he is not liable. 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. "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. Gray and at least 30 days before the commenceIt accordingly appears that the definition ment of this suit, the claim herein declared on of the duty of an employer in furnishing a was presented in writing to the said adminisplace for his workmen is in no sense tech-tratrix and payment thereof demanded, yet nical, but one which carefully differentiates the said defendant has never paid the same, between making the employer an insurer of etc." 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: 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 or some other person cognizant thereof, the reasonable care to furnish for his servant a claim declared upon in said declaration as rereasonably safe place for him to do his work."quired by the stautes of the state of Maine Exceptions sustained. (119 Me. 465) HOWE v. GRAY. (Supreme Judicial Court of Maine. Dec. 22, 1920.) 1. Executors and administrators Claim presented to representative be supported by affidavit. 227 (3)need not 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 |