that we feel no hesitancy in coming to the conclusion that the exercise of such power is constitutional and valid.

It is true that without some legislative action in relation to the property and existing liabilities of the old town, upon its division, or the incorporation of a new town out of its territory, the old town will be entitled to the entire property, and solely answerable for such liabilities. It is said by Parsons, C. J., in the case of Inhabitants of Windham v. Inhabitants of Portland, 4 Mass. 384, that "a town incorporated may acquire property, real or personal; it enjoys corporate rights and privileges, and is subject to obligations and duties. If a part of its territory and inhabitants are separated from it by annexation to another, or by the erection of a new corporation, the former corporation still retains all its property, powers, rights, and privileges, and remains subject to all its obligations and duties, unless some new provision should be made by the act authorizing the separation." The same doctrine is reiterated by Chief Justice Parker, in the case of Inhabitants of Hampshire County v. Inhabitants of Franklin County, 16 Mass. 86.

In the present case, such new provision seems to have been made, and made, too, in terms plainly indicative of the legislative will, that this defendant and all others resident within the limits of North Yarmouth, as it then existed, should continue to enjoy, so far as relates to the flats and sedge-banks in question, the rights and privileges to which he had been accustomed prior to the incorporation of the new town of Yarmouth.

We do not find, in view of the fact, that the town of North Yarmouth, at the time of the incorporation of Yarmouth, held these flats and sedge-banks in trust solely for its own inhabitants, anything which prevented the legislature from providing by law, upon the separation, that all the inhabitants of both towns should enjoy the rights and privileges to which they were then entitled as cestuis que trust, in the same manner as if no separation had taken place; or, in other words, we see nothing in the circumstances that could restrain the legislature from providing that for the purposes of justice and equity both towns should be regarded as North Yarmouth, so far as should be necessary in order to give efficacy to all the rights and priv ileges to which all the inhabitants were then entitled, and would have continued to be entitled by virtue of the trust, if the new town had not been created. And this is in effect what has been done. For the enjoyment of these rights and privileges, provision was made that the tenancy in common which then existed

under the trust, between the inhabitants upon the whole territory of both towns, should continue in the same manner as if no separation had occurred. So far, then, as the act of incor poration of the new town related to these rights and privileges, no separation did in fact take place, or if it did, the old town must be regarded as holding the legal estate in trust for the inhabitants of both.

This case is wholly unlike the case between these parties, reported in 34 Me. 411, and cited for the plaintiffs, on which much reliance is placed in the argument. The distinction between the two cases is very clear. In that case the corporation which held the funds in trust was a private corporation, and for that reason not subject to legislative control. The attempt of the legislature to change the direction and application of funds so held was very properly regarded as unconstitutional. It is very apparent, from the reasoning and authorities cited in that case, that the court would have come to a different result if the funds, which were attempted to be divided by the legislature, had been in the hands of the town, and not in the hands of a board of trustees, to whom they had been conveyed in trust for specific purposes by an act of the legislature of Massachusetts, passed in 1806. That case turns wholly upon the fact that the trustees of the fund were a private and not a public corporation.

In view of all the facts in this case, we are of opinion that the defendant has established his justification, and is therefore entitled to a judgment in his favor.

Plaintiff nonsuit.

TENNEY, C. J., and HATHAWAY, GOODENOW, and DAVIS, JJ., concurred.

CHARTERS OF MUNICIPAL CORPORATIONS, ALTERATION OF AND LEGISLA TIVE AUTHORITY OVER: See note to Claghorn v. Cullen, 53 Am. Dec. 470473; and on the same point, and especially as to the power of legislatures in regard to the division of towns and the effect thereof on corporate property, see Montpelier v. East Montpelier, 67 Id. 748, and note 754. As to the effect of the division of towns on the corporate liabilities, see Depere v. Bellevue, 81 Wis. 125, where the principal case is cited.

JOYCE v. MAINE INSURANCE COMPANY.

[45 MAINE, 168]

WITNESS CANNOT TESTIFY AS EXPERT, NOR AT ALL, as to whether certain specified facts would increase the rates of insurance upon property in sured, as the question involved is not one relating to matters of science or skill, but calls for the opinion of the witness upon the influence which certain facts would have upon others, and whether they would be induced thereby to charge higher rates of premium.

WHERE BY TERMS OF POLICY INSURED WAS BOUND TO GIVE NOTICE TO

COMPANY OF INCREASE OF RISK, and the company was to have the option thereupon to terminate the insurance, and the insured did increase the risk, but failed to notify the company thereof, and the insured property was subsequently destroyed, but not by reason of such increased risk, the liability of the company on the policy still continued, as it could not be certainly assumed that the company, if notified, would have terminated the insurance.

DESCRIPTION OF HOUSE IN POLICY OF INSURANCE AS "OCCUPIED BY" IN. SURED is a description merely, and does not amount to an agreement that the insured should continue in occupation of it.

Action on policy of insurance against loss by fire. The facts are stated in the opinion.

Shepley and Dana, for the defendants.

Howard and Strout, for the plaintiff.

By Court, TENNEY, C. J. In the defense of this action, which is on a policy of insurance against a loss by fire, the opinions of certain persons, who were shown to have had experience in the business of insurance, as to the comparative risk of a dwellinghouse which had been vacated after the occupation thereof, and when the occupation had continued; and whether the premiums of insurance would or would not be increased in consequence of the owner vacating the house, were offered, and on the plain tiff's objection excluded.

None of the inquiries related to matters of science and skill: 1 Greenl. Ev., sec. 440. A witness cannot give his views on the manner in which others would probably be influenced, if the parties acted one way or the other. Therefore the opinion of a person conversant with the business of insurance, upon a question whether a premium would have been increased by the communication of certain specified facts, has been held inadmissible: Id., sec. 441, and notes 1, 2.

The defendants offered to prove that a small stable standing on a lot adjoining the one upon which the dwelling-house insured was situated, owned by a third person, was removed to a

spot nearer to the house insured than that on which it stood at the date of the policy, and had been raised in height, and increased in other respects; this evidence was excluded on the plaintiff's objection.

made and ac

It is stated in the policy that "this policy is cepted in reference to the application for it, and to the conditions hereto annexed, which are hereby made a part of this contract, and are to be resorted to, in order to ascertain and determine the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for." In the conditions referred to, as stated in the body of the policy, is the following, in number 4: "If after insurance is effected on any building or goods in this office, etc., the risk shall be increased by any means whatsoever within the control of the assured, or if such building or premises shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect. If during the insurance the risk be increased by the erection of buildings, or by the use or occupation of neighboring premises, or otherwise, of which prompt written notice shall be given to the company by the assured, or if for any other cause the company shall so elect, it shall be optional with the company to terminate the insurance, after notice given to the assured or his representative, of their intention to do so, in which case the company will refund a ratable portion of the premium."

By the former of the two periods, quoted from the conditions, the acts of the assured therein specified are to be followed by a forfeiture of all benefit from the policy. In the latter it is otherwise. If the evidence offered would embrace such a case as last described, which may well be doubted, but upon which no opinion is given, such use of the neighboring premises does not avoid the policy; but prompt notice to the company is alone required by the terms of the condition. The company cannot assume that they would have terminated the insurance if the notice had been given of the removal of the stable from one part of the lot to another, of which the plaintiffs had no control; and as the fire which destroyed the building was not due to the removal of the stable, no injury would be proved to have been done to the company if this evidence had been admitted.

The house insured is represented in the policy as occupied in part by William H. D. Joyce. This cannot be an agreement that

he should continue in the occupation, but it is merely descrip tive of the house, such as is common in a deed of conveyance.

We are satisfied that the rulings were free from legal error. According to the agreement of the parties, judgment is to be entered for the plaintiff.

HATHAWAY, CUTTING, MAY, GOODENOW, and DAVIS, JJ., con

curred.

OPINION EVIDENCE AS TO PROBABLE EFFECT IF PARTIES HAD ACTED IN DIFFERENT MANNER.-Opinion evidence of itself is not in general to be received. Facts should be stated, and not inferences from them: Pennsylvania Co. v. Conlan, 101 Ill. 93; Hames v. Brownlee, 63 Ala. 277; Cook v. Fuson, 66 Ind. 521; Parsons v. Lindsay, 26 Kan. 426; Barts v. Morse, 126 Mass 226; Page v. Parker, 40 N. II. 47; People v. Greenfield, 23 Hun, 454; Rail road Co. v. Smith, 52 Tex. 178; Weeks v. Lyndon, 54 Vt. 638; Veerhusen v. Chicago etc. R. R. Co., 53 Wis. 689. The rule should therefore apply more strongly that opinion evidence is not generally admissible as to the probable effect of certain acts or circumstances upon other individuals, as in the prin cipal case. Greenleaf lays down the rule that "witnesses cannot state their views as to the manner in which other persons would probably be influ enced if the parties acted in one way rather than in another:” 1 Greenl. Ev., 14th ed., sec. 441; and the rule is supported in the abstract by the authori ties: Campbell v. Rickards, 5 Barn. & Adol. 846; Milwaukee etc. Co. v. Kel logg, 94 U. S. 469; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Hill v. Lafayette Ins. Co., 2 Mich. 476. This proposition is different from that of asking a witness what his own conduct would be in a particular state of circumstances. An individual may know what his probable conduct would be, though even such evidence is uniformly rejected, but he cannot say with any greater degree of certainty than the jury could what the probable effect of certain acts or circumstances would be upon the conduct of others, and the reason for the refusal by the courts to receive the evidence seems to be founded in the theory that if an inference is to be drawn as to how parties would have acted in a given case, the jury is as competent to draw that inference as would be the person whose opinion is asked, provided, of course, the matter is not one of science or skill: Jefferson Ins. Co. v. Cotheal, 7 Wend. 72. The inference is one from common knowledge, and it is well settled that as to such matter the opinion of witnesses is not admissible: Milwaukee R. R. Co. v. Kellogg, 94 U. S. 473; Keller v. New York Central R. R. Co., 2 Abb. App. Dec. 480; Hill v. Portland etc. R. R. Co., 55 Me. 438; Muloy v. Insurance Co., 2 Gray, 541; note to Hammond v. Wood, 66 Am Dec. 229.

The cases in which the rule has been applied are few, and confined to decisions on insurance law. Thus a witness, though an expert on insurance matters, is not permitted to give his opinion whether the risk or rate of premium would have been increased by the existence of certain facts, or whether the concealment of certain facts, at the time of execution of the policy, affected the policy, so that had the facts been disclosed the policy would have been denied, or higher rates charged: 1 Greenl. Ev., 14th ed., sec. 442; 2 Id., sec. 397; Luce v. Dorchester Ins. Uo., 105 Mass. 298; Marshall v. Insurance Co., 27 N. H. 157; Hill v. Lafayette Ins. Co., 2 Mich. 476; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72. Considerable discussion is found in the books on this proposition. From the various cases, however, a general rule may be gathered,