minorities to the will of majorities, but it is equally true that the contrary doctrine subjects majorities to the will of minorities; and, since one side or the other must yield, it seems to us to be more in harmony with the principles of natural justice that it should be the minority.

In this case, the plaintiff town holds only about one twentieth of the bouded debt of the Knox & Lincoln Railroad, and a much less proportion of its stock. The defendant towns and cities hold the balance. The latter all voted to sell the road. The plaintiff town (Waldoborough) declined. We think it was the right of the majority, and especially of so large a majority, to control.

The court will at all times protect a minority of the stockholders of a corporation against a fraudulent, collusive, or oppressive exercise of power by the majority. And, if in this case the court could see in the action of the majority anything fraudulent, collusive, or oppressive, the relief prayed for would be granted. But nothing of the kind is discoverable. Nothing is seen but an honest difference of opinion as to the expediency of accepting an offer to purchase or lease the railroad and its franchises, and take an assignment of the mortgages upon it. Upon such a question, we think it was the right of the majority in interest to decide.

Bill dismissed, with costs.

PETERS, C. J., and VIRGIN, EMERY, FosTER, and HASKELL, JJ., concurred.

(84 Me. 465)

STATE V. NEWELL.

(Supreme Judicial Court of Maine. April 19, 1892.)

GAME LAWS-VIOLATION BY INDIAN-TREATY PRIVILEGES.

1. The Indians resident within this state are not "Indian tribes," within the treaty-making powers of the federal government.

2. Nor are they in political life or territory the successors of any of the various "eastern tribes of Indians" with whom treaties were made by the crown, or the colonies, in colonial times; and hence they cannot effectually claim any privileges or exemptions under such treaties.

3. While they have a partial organization for tenure of property and local affairs, they have now no separate political organization, and are subject as individuals to all the laws of the state. (Official.)

Report from supreme judicial court, Washington county.

Peter Newell, a member of the Passamaquoddy tribe of Indians, was indicted for unlawfully killing two deer, and on arraignment pleaded that he was guilty, unless the court should find that he had a lawful right to do the acts charged by reason of certain treaties. On report. Judgment for state.

Charles E. Littlefield, Atty. Gen., and F. 1. Campbell, Co. Atty., for the State. George M. Hanson, for defendant.

EMERY, J. The defendant admittedly killed two deer in this state, contrary to the form, letter, and spirit of the statute for

the preservation of deer and other game animals. The only matter of fact he interposes in defense is that he is an Indian, one of the Passamaquoddy tribe, a tribe living on and near Lewey's island, in the eastern part of the state.

Whatever the status of the Indian tribes in the west may be, all the Indians, of whatever tribe, remaining in Massachusetts and Maine, have always been regarded by those states and by the United States as bound by the laws of the state in which they live. Danzell v. Webquish, 108 Mass. 133; Murch v. Tomer, 21 Me. 535. Their position is like that of those Cherokees who remained in North Carolina. It was said of them by the United States supreme court, in Cherokee Trust Funds, 117 U. S. 288, 6 Sup. Ct. Rep. 718, that they were inhabitants of North Carolina and subject to its laws.

Indeed, the defendant concedes that he is bound by all the laws of the state, except those restricting the freedom of hunting and fishing. As to these restrictive statutes, he contends they must give way as to him before certain Indian treaties, named in the report of the case Не claims that these treaties are made, by the fifth section of the act of separation, (incorporated into our constitution,) a constitutional restraint upon the power of the legislature to limit the freedom of the Passamaquoddy Indians in hunting and fishing.

99

The defendant's counsel, with much zeal and industry, has furnished us with many and interesting papers concerning the various treaties with the Indians of Maine and the east. The treaty of 1713 was "the submission and agreement of the eastern Indians" to and with Gov. Dudley at Portsmouth. It purported to be executed by delegates from "all the Indian plantations on the rivers of St. John, Penobscot, Kenybeck, Amascogon, Saco, and Merrimack. The conference of 1717 was simply a confirmation of the same treaty. The treaty of 1725 was after the French and Indian wars of that period, and was between the governors of Nova Scotia, New Hampshire, and Massachusetts Bay, on the one hand, and "the several tribes, viz., the Penobscot, Norridgewock, St. Johns, Cape Sable, and other tribes, inhabiting within New England and Nova Scotia, "on the other hand. This treaty was further confirmed in 1727. In 1749, after another Indian war, commissioners from Gov. Phipps made a treaty of peace with "the Indians of the tribes of Penobscot, Norridgewock, St. Francois, and other Indians inhabiting within his majesty's territory of New England." The conference in 1752 was only a confirmation of the treaty of 1749. What is called in the report" the treaty of 1780" appears to be (so far as any papers or citations are furnished us) simply a letter of thanks and kind assurances from Gov. Bowdoin to the "different tribes of Indians under Col. John Allan.' It contains no mention of hunting and fishing.

We do not find that the federal government ever, by statute or treaty, recognized these Indians as being a political

community, or an Indian tribe, within the meaning of the federal constitution. The defendant's counsel calls our attention to the mission of Col. John Allan, as an envoy from the continental congress to these Indians. Col. Allan was appointed by congress, in 1777, "agent for Indian affairs in the eastern department," and held that office till 1784. He was instructed to visit "the tribes of Indians, inhabitants of St. John and Nova Scotia, and, by threats, persuasions, and arguments of various kinds, to endeavor to convince them it would be for their interest not to take part against the United States in the war then raging. He made his headquarters at Machias, and assumed a general supervision and a quasi control over the various tribes of Indians from the St. John to the Penobscot. Many of his letters have been preserved by the Indians, and by them submitted to the court. They are full of kindly assurances of protection, including hunting and fishing, but it cannot be seriously claimed that they amount to a treaty between two political communities, however savage one of them may have been.

In the treaties of 1713, 1725, 1749, the contracting Indians reserved to themselves "and their natural descendants, respectively, the privilege of fishing, hunting, and fowling, as formerly." These treaties were made by the crown with actual political communities, which had an internal government, however rude, and an external responsibility, however unsatisfactory, which could wage war and make peace. But, whatever may have been the original force and obligation of these treaties, they are now functus officio. One party to them, the Indians, have wholly lost their political organization and their political existence. There has been no continuity or succession of political life and power. There is no mention in the treaties of a tribe called "Passamaquoddy,' ard we cannot say that these present Indians are the successors in territory or power of any tribe named in the treaties, or are their natural descendants.

Though these Indians are still spoken of as the "Passamaquoddy Tribe," and perhaps consider themselves a tribe, they have for many years been without a tribal organization in any political sense. They cannot make war or peace; cannot make treaties; cannot make laws; cannot punish crime; cannot administer even civil justice among themselves. Their political and civil rights can be enforced only in the courts of the state; what tribal organization they may have is for tenure of property and the holding of privileges under the laws of the state. They are as completely subject to the state as any other inhabitants can be. They cannot now invoke treaties made centuries ago with Indians whose political organization was in full and acknowledged vigor.

What the report calls "the treaty of 1794" was simply a grant by the commonwealth to the Passamaquoddy tribe of Indians of certain lands, and the privilege of fishing in the Schoodiac river, in consideration of their releasing all claims to

(Supreme Judicial Court of Maine. May 27, 1992.) INTOXICATING LIQUORS-ILLEGAL TRANSPORTATION. A complaint for the illegal transportation of intoxicating liquors is fatally defective if it omits to state that the defendant knew that the liquors transported by him were intoxicating. (Official.)

Exceptions from supreme judicial court, Sagadanoc county.

Martin McDonough was convicted of an unlawful transportation of intoxicating liquors, and excepts. Exceptions sustained, and judgment arrested.

C. D. Newell, Co. Atty., for the State. George E. Hughes, for defendant.

WALTON, J. All unnecessary prolixity in criminal as well as civil pleadings ought to be avoided. But it is a fundamental rule of the criminal law, from which no departure can be allowed, that no one shall be convicted of a crime unless the complaint or indictment upon which he is tried contains a direct allegation of every material fact which it is necessary to prove in order to establish his guilt. In other words, whatever it is necessary to prove must first be averred, and averred directly, and not by way of argument, implication, or inference merely. State v. Philbrick, 31 Me. 401; State v. Paul, 69 Me. 215. In the case first cited the implication was exceedingly strong, but the allegation was not direct, and the indictment was held insufficient.

In the present case the complaint alleges that the defendant transported intoxicating liquors from the office of the N. E. Dispatch Express Company, in Bath, to the building No. 152, on the west side of Commercial street, with intent that said liquors should be sold in this state in violation of law. But it will be noticed that the complaint omits to allege that the defendant knew that the liquors were intoxicating. This was a fatal omission. The statute upon which the complaint was founded (Rev. St. c. 27, § 31) declares that no person shall "knowingly" transport, etc. Knowledge that the liquors were intoxicating is thus made important. It is the very essence of the offense, and should be direct y averred.

True, the complaint avers an intent on the part of the defendant that the liquors should be sold in this state in violation of law, and this may seem to imply a knowledge on his part that they were intoxicating liquors; but this is not a necessary inference, aud, clearly, not such a direct and positive averment of the fact as the rules of criminal pleading require. We think the complaint is fatally defective

and that the motion in arrest of judgment must be sustained.

Exceptions sustained. Judgment ar

rested.

nor had any knowledge of it, a different question arises. Was he professionally negligent in his examinations? He was a physician of seven years' practice, a graduate of Boston University, and must have

Report from superior court, Kennebec county.

Action by Jennie Lewis against Morris K. Dwinell, a physician, for malpractice in a case of obstetrics. Plaintiff obtained

a verdict for $450. On motion to set aside verdict. Motion overruled.

required in such cases. His failure then to discover, after repeated examinations, the serious injury from which the plaintiff was suffering, must be held to be actionable negligence. Reasonable attention from a physician of ordinary intelligence would have discovered so palpable an injury.

Other complications may have caused or increased much of the plaintiff's suffering. Damages in that behalf are not chargeable to the defendant's negligence; but the verdict is moderate, and cannot be considered excessive compensation for the suffering caused by the defendant's failure to exercise that degree of care and skill required from one assuming to practice the healing art.

Motion overruled.

HASKELL, J. No suggestion of error or misdirection on the part of the presiding justice is made, but the case is presented upon a report of the evidence; so the only consideration is whether the verdict is supported by the weight of evidence, and that depends upon what testimony was believed by the jury, and whether they were justified in believing it.

It is a common learning that the credit to be given witnesses is a matter peculiarly suited for a jury to decide. They see them upon the stand, note their appearance, and observe many indications of truth or falsehood, accurate memory or indistinct and unreliable impressions, helps wholly wanting in the perusal of cold type.

It is not disputed that the plaintiff, at some time, suffered, at childbirth, a severe rupture of the perineum; but it is denied that it occurred while she was under the professional care of the defendant. However that may be, he either failed to discover the lesion while she was under his care during her sickness at and for some weeks after the birth of her last child, or, discovering it, concealed it from her.

If the plaintiff's story be true, she repeatedly complained to the defendant of local suffering, and, after repeated examinations, he assured her that she was "all right." The last examination was some four weeks after the birth of the child.

Although it cannot be surely asserted that the plaintiff's rupture was received at the birth of her last child, yet much of the evidence sustains that view, and it cannot be considered that the jury erred in finding that fact to have been proved.

If the defendant knew of the rupture and concealed it from the plaintiff, neither taking measures for its repair or relief himself nor giving an opportunity for other professional skill to be employed, little can be said in his excuse. But, if the defendant neither discovered the lesion, v.24A.no.19-60

(84 Me. 490)

Dow v. PORTLAND STEAM PACKET Co. (Supreme Judicial Court of Maine. May 28, 1892.)

CARRIERS - LIVE STOCK-INJURIES - BURDEN OF PROVING CAUSE,

1. Although a common carrier insures the arrival of the property at the point of destination against everything but the act of God and the public enemy, yet the condition in which it shall arrive there must depend upon the nature of the article to be transported. He does not absolutely warrant live stock against the consequences of its own vitality.

2. But when the animal is delivered to him in a sound, healthy condition, and when delivered at the place of destination is found to be lame or diseased, if the carrier would excuse himself, the burden is upon him to prove that the injury to the animal was from the cause above stated, and without his fault.

John C. & T. H. Cobb, for plaintiff. Benjamin Thompson, for defendant.

LIBBEY, J. The plaintiff claims to recover of the defendant company the value of a horse and a donkey which he delivered to the defendant, a common carrier by water, at Boston, to be carried to Portland. He claims that when delivered to the defendant the animals were in a good condition, and when landed at Portland the horse was paralyzed and the donkey sick, and both died in a few days from their injuries.

There was no contention between the parties as to the rules of law by which the liability of the company must be determined. The contention between them is

upon the instruction of the judge as to the burden of proof in regard to the diseased condition of the animals when landed.

The portion of the charge excepted to by the defendant was as follows: "The burden, in the first instance, is on the plaintiff to satisfy you that he delivered the animals to the defendant company in good condition, and that they were not deposited on the wharf here in as good condition. When he has done that, be has prima facie made out a good case against the company. The burden then rests upon the company to satisfy you that they have fulfilled their duty as common carriers in the transportation of the animals; that they have taken good care of them, and that their sickness and death were caused by something outside of their duties, and over which they had no control."

The learned counsel for the defendant contends that this was error; that, to charge it, the burden is still on the plaintiff to prove that the sickness and death of the animals were caused by the fault of the defendant.

We think this is not so. "Although the carrier insures the arrival of the property at the point of destination against everything but the act of God and the public enemy,' yet the condition in which it shall arrive there must depend on the nature of the article to be transported. He does not absolutely warrant live stock against the consequences of its own vitality. Smith v. Railroad Co., 12 Allen, 531. But in that case the court held that if the carrier would excuse himself, he must prove that the loss or injury was from that cause and without his fault. The same rule was held in this state in Shaw v. Ber. ry, 31 Me. 478.

The rule is so stated in Story, Bailm. §§ 574, 576. So in Whart. Ev. § 365.

We have carefully examined the evidence on the notion to set aside the verdict, and see no such cause as courts require to disturb it. The damages assessed by the jury are not large,-$80, probably for the horse only.

Exceptions and motion overruled.

PETERS, C. J., and WALTON, VIRGIN, HASKELL, and WHITEHOUSE, JJ., concurred. (84 Me. 520)

TREAT V. PARSONS et al. (Supreme Judicial Court of Maine. June 2, 1892.) FISHERIES.

1. If a party having constructed a weir, for no other purpose than to take such fish as are named in his grant, finds other fish therein, and he is the first taker of them, such other fish become his property, the same as if taken by other

means.

2. Fish, before they are taken, are the property of no one. When taken, like all animals ferae naturae, they belong to the taker.

(Official.)

Report from supreme judicial court, Waldo county.

Bill in equity by James M. Treat against Abel Parsons and another to regulate the right to take fish on a certain shore front

age. Defendants demur. On report. Bill dismissed.

J. Williamson, for plaintiff. W. H. Fogler, for defendants.

WALTON, J. This is a bill in equity to which the defendants have demurred. It appears by the allegations in the bill that the plaintiff owns land bounded by the shore of Penobscot bay, and that the defendants have obtained by grant "all the right of taking salmon, shad, and alewives, on the whole of the shore frontage of said land, together with all the privileges necessary for carrying on the said fishing." And the plaintiff avers that by means of weirs the defendants take, and cannot avoid taking, fish other than the kinds named in the grant; and he claims that these other fish properly belong to him; and it is upon this ground that he asks for the interposition of the court.

We do not think the relief prayed for can be granted. Fish, before they are taken, are the property of no one. When taken, like all animals feræ naturæ, they belong to the taker. The plaintiff's claim that the fish taken by the defendants, other than the ones named in the grant, properly belong to him, has no foundation in law or equity. The defendants have no right to attach to the plaintiff's land fixtures for the express purpose of taking fish other than those mentioned in the grant; but if, having constructed weirs for no other purpose than to take such fish as are named in the grant, they find other fish therein, and are the first takers of them, we think such fish become their property, the same as if taken by other means, and that the owner of the shore has no property in them. See Matthews v. Treat, 75 Me. 594, an action in which the plaintiff in this suit was defendant, and the rights of the parties under the grant in question were fully considered and defined.

Bill dismissed, with costs.

PETERS, C. J., and VIRGIN, LIbbey, HASKELL, and WHITEHOUSE, JJ., concurred.

(84 Me. 475)

FULLER et al. v. FULLER et al. (Supreme Judicial Court of Maine. May 26, 1892.)

WILLS-CONSTRUCTION-Support of WIDOW.

1. A testator gave, by his will, to his wife the use of his homestead, furniture, etc., for life, and to his son John an undivided third of the homestead, and added this clause: "If the said John, after the death of my wife, will pay to his brother and sisters then living one hundred dollars each, he shall then come in full possession of the house, lot, and furniture, including crockery and other household ware." Held, that the acceptance of the devise creates an obligation to pay the legacies to his brother and sisters; that upon their payment, they being a charge on the real estate, he will then take an absolute title to the property.

2. Also, no duty implying a trust being imposed on the executors respecting the furniture, etc., the legatee, being the widow, having a right to its use for life, is entitled to its use and pos session without giving security to the remainder

man.