to said lease or indenture. And defendant | Under it, the plaintiff had the burden to show that the tenancy had been thus determined in the manner prescribed by the statute for notice. further says that any occupancy of the whole or any part of said premises by any party or parties claiming in any manner under said defendant was with the full knowledge and consent of said Gilbert and those under whom he claims; and defendant further says that neither his estate or tenancy in the premises by virtue of said lease or indenture, or otherwise, nor the estate or tenancy in the premises of those claiming under him, was lawfully terminated either at the time alleged in said writ and declaration, or at the time of the bringing of said action, or at any time previous thereto." [3, 4] The written notice given was as follows: "Bangor, Maine, July 1, 1910. "James F. Gerrity, etc.: "You are hereby notified that your tenance on the premises now occupied by you in the city of Bangor, being numbered 112 and 114 Exchange St. in said Bangor will terminate in thirty days from date. "[Signed] Fred A. Gilbert." The day named in the notice to be the end of the tenancy was July 31, 1910; that being the thirtieth day from the date. Hence for the notice to effect a termination of the tenancy it should have been given to the defendant as early as the day of its date, July 1, 1910. It was left on that day at the residence of the defendant, in his absence from the city, and did not come to his At the conclusion of the evidence in the Supreme Judicial Court, the case was reported to the law court for determination. The case is stated in the opinion. Argued before EMERY, C. J., and SPEAR, CORNISH, KING, BIRD, and HALEY, JJ. George E. Thompson, for plaintiff. Matthew Laughlin and E. M. Simpson, for de- knowledge till his return the next day, July fendant. EMERY, C. J. [1] The plaintiff, the owner of certain business premises on Exchange street, Bangor, leased to the defendant, seeks to recover possession by the statutory process of forcible entry and detainer. The process is summary, and to sustain it a plaintiff must bring himself completely within the terms and conditions of the statute authorizing it. B. & M. R. R. Co. v. Durgin, 67 Me. 266. The process is authorized in but four cases, viz., against a disseisor who has not acquired any claim by possession and improvement; against a tenant occupying under a written lease which has terminated; against such tenant when the lease is forfeited; against a tenant at will, whose tenancy has been terminated by a prescribed statutory notice in writing. In the second and third cases, the process must be commenced within seven days from the expiration or forfeiture of the term. In the fourth case, the tenancy at will must have been "determined by thirty days notice in writing for that purpose given to the other party or by mutual consent or by operation of law." R. S. c. 96, §§ 1 and 2. (There are some exceptions in section 2, which, however, do not affect this case). [2] The declaration in this action states a case within the fourth class only. No disseisin, no expiration or forfeiture of a lease, is alleged. The allegation is simply that the defendant, before August 1, 1910, had lawful and peaceable entry into the premises; that his estate was determined on that day; that he refused to quit, although he had been given notice in writing, 30 days before that day, to terminate his estate. The defendant clearly is declared against only as tenant at will, whose tenancy was terminated by 30 days notice in writing. 2d, 29 days only before the day named for the termination of the tenancy. It does not appear that any one at his residence was informed of the contents or purpose of the notice. The residence was in a different part of the city from the demised premises. The plaintiff contends that by thus leaving the notice at the defendant's residence, though in his absence from town, it was then "given to the other party," as required by the statute. Whatever might be the effect of giving the notice, the writing, to some agent of the tenant, or leaving it with some one on the demised premises, in the absence of the tenant himself, we think it clear that merely leaving the notice at some other place in his absence, and not with any agent, nor with any explanation to any one of its contents or purpose, is not a compliance with the statute, even though that other place be his residence. Nothing in the statute indicates that a notice thus left is to be regarded as sufficient. No mode of giving the notice is prescribed, but it is broadly declared that the notice shall be "given to the other party"; that is, that the other party shall have notice. Under such a statute, to lay the foundation for such a summary process, we think something more is required than merely leaving the notice at the tenant's residence, at a distance from the demised premises, in his absence, without more. The notice in this case, therefore, was not effectual to terminate the defendant's tenancy on the day named for its termination, nor was it effectual to terminate the tenancy on any later day. The notice must name the day on which the tenancy is to terminate, and will not operate to terminate it on any other day. For that purpose, a new notice must be given. Currier v. Barker, 2 Gray (Mass.) 224; Steward v. Harding, 2 Gray (Mass.) 335. Exceptions from Supreme Judicial Court, Penobscot County. Action by Fred E. Miles against the United Box Board Company. A demurrer to the complaint was sustained pro forma, and defendant excepts. Exceptions overruled. Argued before SPEAR, CORNISH, KING, BIRD, and HALEY, JJ. W. H. Mitchell, for plaintiff. Norman L Bassett, for defendant. BIRD, J. [1] This complaint for flowage comes before this court upon exceptions to [5] But the plaintiff claims he can maintain this process upon another ground. It appears from the evidence that the defendant went into possession under a written lease for a term of years, which had not expired. The plaintiff claims, however, that the defendant's rights under the lease had been forfeited because of the use of the premises for purposes prohibited in the lease, and that therefore, upon the ground of forfeiture, this process is maintainable. But the plaintiff did not state any such ground in his declaration. He did not allege any written lease; nor any relation of landlord and tenant; nor any date of for- the pro forma ruling of the Presiding Justice, feiture; nor any forfeiture at all. He only sustaining defendant's demurrer to the comstated a case of a tenancy at will, terminat-plaint. The ground of demurrer relied upon is that the allegations of the complaint show ed by a notice in writing. The rule that a a prescriptive right in defendant to mainplaintiff cannot recover by stating one case tain the height of water occasioning the and proving another and different case applies to actions of forcible entry and detain- damages sought to be recovered. The question is to be determined by the rules of pleader, as well as to other actions. Small v. ing in equity. Moor v. Shaw, 47 Me. 88, 90. Clark, 97 Me. 304, 54 Atl. 758; Eveleth v. Gill, 97 Me. 315, 54 Atl. 756. Further, the evidence shows that the plaintiff made no entry for breach of condition, as authorized in the lease, but noti-age to complainant. fied the defendant, both orally and in writing, that because of the misuse of the premises he should consider him a tenant at will only. We must hold that in this case the process cannot be sustained upon either the ground of forfeiture, or of terminated tenancy at will. No other ground is relied up on. Plaintiff nonsuit. (108 Me. 270) MILES v. UNITED BOX BOARD CO. (Supreme Judicial Court of Maine. July 6, 1911.) 1. WATERS AND WATER COURSES (§ 179*)FLOWAGE-PLEADING. Whether a complaint for flowage shows a prescriptive right in defendant to maintain the height of water occasioning the damage sought to be recovered, so as to be demurrable, is to be determined by the rules of pleading in equity. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 179.*] 2. WATERS AND WATER COURSES (§ 164*)— FLOWAGE RIGHTS-GRANT-PRESUMPTIONS. We think the complaint does set out maintenance of the dam, with flowage in each of 21 consecutive years, with appreciable dam [2] The objection of complainant that such flowing is not alleged to be adverse is not tenable. A grant is presumed after 20 consecutive years of flowage, with appreciable damage in each year, without damages paid or claimed by the party aggrieved. But when no damages have followed the flowing has been adverse. a grant is presumed only when the flowing Prescott v. Curtis, 42 Me. 64, 71; Augusta v. Moulton, 75 Me. 284, 286; Foster v. Improvement Co., 100 Me. 196, 199, 201, 60 Atl. 894. [3] Matter in bar can be taken advantage of by demurrer, when it is stated without sufficient avoidance in the bill itself. Tappan v. Evans, 11 N. H. 311; Post v. Beacon Vacuum, etc., Co., 89 Fed. 1, 32 C. C. A. 151. See, also, Mooers v. K. & P. R. R. Co., 58 Me. 279, 280, 281; Baker v. Atkins, 62 Me. 205, 209. The entry must therefore be: Exceptions overruled. Demurrer sustained. (84 Conn. 613) WYNEHOUSE et al. v. MANDELSON. (Supreme Court of Errors of Connecticut. July 31, 1911.) Grant of flowage right is presumed after 20 consecutive years of flowage, with appreciable damage in each year, without damages paid to or claimed by the party aggrieved; but when 1. WITNESSES (§ 3311⁄2*)-IMPEACHMENT EVIno damages have followed the flowing a grant is presumed only when the flowing has been ad verse. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 210-212; Dec. Dig. § 164.*] 3. PLEADING (§ 193*)-MATTER IN BAR. Matter in bar can be taken advantage of by demurrer when it is stated without sufficient avoidance in the bill itself. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 428-443; Dec. Dig. § 193.*] DENCE. Where a conditional buyer suing a third person for conversion of the chattels testified that before payment of the price the chattels were stolen, while in his possession, that after payment of the price and the promise of the seller to deliver the chattels, the seller, since deceased, unsuccessfully prosecuted him for the theft of the chattels, and that several months later he discovered the chattels in the possession of the third person, who showed that the seller never retook possession, and that the property disappeared from the possession of the buyer at about the maturity of the first note for the | defendant, who refused to surrender the price, and that the buyer refused to pay the property upon written demand. notes for the price because the chattels had been stolen, evidence that, within a week after the buyer's alleged payment of the price and the seller's promise of delivery, the buyer knew where the chattels were, but made no effort to obtain possession of them for six or seven months thereafter, was admissible to discredit the testimony of the buyer. The defendant, among other things, claimed and offered evidence to show that Weill had never retaken possession of the horses; that the horses disappeared from the visible possession of the plaintiff at about the time when the first note given by him for the [Ed. Note. For other cases, see Witnesses, horses became due; that upon demand, after Dec. Dig. § 3312.*] 2. EVIDENCE (§ 99*)-COMPETENCY. Unless excluded by a rule or principle of law, any fact may be proved which logically tends to aid in the determination of the issues, and evidence should be admitted, unless it is shown to be incompetent. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. § 99.*] Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge. Action by Hyman Wynehouse and another against Samuel Mandelson for the conversion of two horses and other personal property. There was a judgment for plaintiffs, and defendant appeals. Reversed, and new trial or dered. the notes became due, the plaintiff Wynehouse refused to pay, because the horses, as he claimed, had been stolen, and also because he had no money to pay for them; that the notes have never been paid. Numerous errors are assigned; one relating to the exclusion of evidence is as follows: "The plaintiff Hyman Wynehouse testified on his own behalf and upon direct examination that he was arrested charged with theft of these horses and other articles of property in Brooklyn, N. Y., within two or three days after the payment of the notes February 13, 1906; plaintiff appeared in the magistrate's court upon the charge he had a conversation with Bernard Weill, and asked Weill what he that at the time the John C. Chamberlain, for appellant. Sam- meant by causing the plaintiff's arrest, after uel J. Witz, for appellees. RORABACK, J. The plaintiff offered evidence to show that the horses in question were purchased under a conditional bill of sale from one Bernard Weill, and that the title to the horses was to remain in Weill until the balance of the purchase price, $325, was paid; that about the time the first payment of the purchase price became due the horses, with other property, were stolen from the barn of the plaintiff; that the morning after the property was stolen information was received that they were in the barn of Weill, the vendor; that in consequence of this information the plaintiff went to Weill who informed him that if he would pay the notes at this time he would return the notes, the conditional bill of sale, with the horses and other property; that to obtain this property the plaintiff Wynehouse paid Weill $325 in cash, when Weill for the first time informed him that the notes were in the bank where he kept his account, and that Weill then agreed that he would return the horses, together with other property, the notes, and the bill of sale at the plaintiff's home; that within three days thereafter Weill caused the arrest of the plaintiff Wynehouse upon the charge of disposing of this property belonging to Weill under the conditional bill of sale, of which offense Wynehouse was tried about the middle of February, 1906; that the horses and property, notes, and conditional bill of sale were never delivered by Weill, because he died shortly after the payment of the $325; that during the month of October, 1906, Wynehouse located the horses in Stamford, Conn., in the possession of the he paid him the notes and after Weill had promised to return to the plaintiff the notes, the conditional bill of sale, the horses, and property; that this conversation was between the 16th and 19th day of February, 1906. Upon cross-examination, the plaintiff testified that seven or eight months after this conversation he ascertained that the horses were in Stamford, Connecticut." [1] At the close of the evidence, the following offer, ruling, and exception occurred: "Mr. Rowell [attorney for the defendant]: Now, if your honor please, I offer in evidence an exemplified copy of the record in the case of the People of the State of New York against Wynehouse & Goldstein, which has been referred to so often here. I offer it for the purpose of proving the date and rebutting Mr. Wynehouse's testimony. He testified that he had been arrested within a few days after the theft of these horses. I offer this for the additional rebuttal of Mr. Wynehouse's statement that he did not learn where these horses were until six or eight months after this trial in special sessions. The rec ord will show, first, the date of the arrest, and will show it to be different from that which Mr. Wynehouse states, showing that it was not for some months-The Court: You should not state what it will show. The jury will disregard this statement about what it will show, of course. Mr. Rowell: It will also show that Mr. Wynehouse at the time of this trial knew that the horses were in Stamford. Mr. Slade: I shall object to it, if your honor please. The Court: It is excluded. Mr. Rowell: Will your honor note an exception? The Court: Yes." The plaintiff Wynehouse had testified that he did not know of the location of his horses until October, 1906. | admissibility or rejection addresses itself to It was material and proper for the defendant to show that Mr. Wynehouse knew of the whereabouts of these horses when he was arrested and tried in February. In denying a motion to set aside the verdict in the case, the trial court stated: "Both of the counsel in their arguments to the jury and the court also in the charge especially emphasized the importance of determining the truthfulness of the testimony of Wynehouse and his son that, after the horses had been taken from the possession of the plaintiff, he paid Weill the outstanding notes and received from the latter a promise to return the notes, and to see that the horses also were returned. The jury must have believed this testimony, and must have rendered a verdict for the plaintiff because they believed it. Weill was dead, and the defendant was necessarily obliged to oppose the evidence of Wynehouse and his son by showing the intrinsic improbability of their story, especially in connection with the conduct of the plaintiff and Weill, and the untrustworthiness of its narrators, as shown by their appearance on the witness stand and by their contradiction upon other points, by other witnesses. It cannot be said that the story of the plaintiff and his son was impossible; the most that can be said is that it would be a severe tax upon the credulity of the average trier to believe it." If the defendant was in the possession of proper evidence to show that within a week after the alleged payment and promise of delivery the plaintiff Wynehouse knew that these horses were in Stamford, and yet made no effort to obtain possession of them for six or seven months thereafter, such conduct would have tended to discredit the testimony of Wynehouse. Such inaction, particularly after an arrest for criminally disposing of this identical property, would hardly be consistent with the conduct of an ordinary individual under like circumstances. the court as one to be answered with a view to practical, rather than theoretical, considerations." Plumb v. Curtis, 66 Conn. 154, 166, 33 Atl. 998, 1000. Under the peculiar circumstances which the court below has found existed upon the trial of this action, we think that in this instance these rulings were so prejudicial to the defendant as to warrant a new trial. The other errors assigned we deem unnecessary to consider, as none of them furnish any ground for a new trial. There is error, and a new trial is ordered The other Judges concurred. GLASER v. WAAS. (Supreme Court of Errors of Connecticut. APPEAL AND ERROR (8_1005*)-REVIEW-VER- Where a verdict is based on conflicting evidence, and the court has denied a motion to set it aside, it will not be set aside on appeal for insufficiency of the evidence. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3948; Dec. Dig. § 1005.*] Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge. Action by Harry Glaser against Jules Waas. Verdict and judgment for plaintiff for $500, and defendant appeals. Affirmed. Walter P. Judson, for appellant. Charles L. Brooks and Harry L. Brooks, for appellee. RORABACK, J. This action is for personal injuries sustained by the plaintiff in October, 1910, while in the employ of the defendant, and while he was operating a derrick belonging to the defendant. The jury returned a verdict for $500 for the plaintiff, which the defendant moved to set aside because it was against the law and the evidence. This appeal is taken only from the [2] It does not appear why this testimony denial of the motion to set aside the verdict. was excluded, but it must have been upon On behalf of the plaintiff it was alleged, and the theory that the trial court considered evidence was offered to prove, that his inthat it was irrelevant. "Unless excluded by juries were occasioned by the negligence of some rule or principle of law, any fact may the defendant in directing the plaintiff to be proved which logically tends to aid the work on a derrick that was inappropriate trier in the determination of the issue. Evi- and dangerous for the work it was designed dence is admitted, not because it is shown to by the defendant to perform, and because the be competent, but because it is not shown to defendant furnished no helper to assist the be incompetent. No precise and universal plaintiff in the operation of the derrick; test of relevancy is furnished by the law. that the defendant failed to explain the The question must be determined in each dangers connected with the operation of the case according to the teachings of reason derrick to the plaintiff, who was under the and judicial experience. Thayer's Cases on age of 21 years, wholly unacquainted with Evidence, 2, 3. 'If the evidence offered the work he was ordered to do, and the danconduces in any reasonable degree to estab-ger to be apprehended from it. Upon all of lish the probability or improbability of the fact in controversy, it should go to the jury.' Insurance Company v. Weide, 11 Wall. 438, 440, 20 L. Ed. 197. The question as to its these controlling questions the evidence was conflicting, so much so that it was peculiarly within the province of the jury to determine in whose favor there was a preponderance. ANCE OF NOMINAL DAMAGES. Where the court denied any recovery to a contractor suing for the refusal of the owner to permit him to perform the work, on the ground that there would have been no profit to the contractor in the performance of the work, the court would not grant a new trial to permit the recovery of nominal damages for the owner's breach of the contract; such damages being technical for a breach of contract without injurious consequences. Cent. Dig. § 150; Dec. Dig. § 74.*] Appeal from Superior Court, New Haven After a careful consideration of all the | 5. NEW TRIAL (8 74*)-Grounds-DISALLOWevidence we have reached the conclusion that this verdict is not one that would justify us in interfering with the discretion of the Superior Court, in denying the motion to set it aside. "This case presents no exceptional feature which removes it from the strict operation of the familiar principles governing our action upon appeals of this character. These have been stated and discussed in a long line of cases presenting the different conditions under which the court is asked to review the action of trial judges in dealing with the verdicts of juries in their own courts. Bissell v. Dickerson, 64 Conn. 61, 29 Atl. 226; Chatfield v. Bunnell, 69 Conn. 511, 37 Atl. 1074; Loomis v. Perkins, 70 Conn. 444, 39 Atl. 797; Howe v. Raymond, 74 Conn. 68, 49 Atl. 854; Burr v. Harty, 75 Conn. 127, 52 Atl. 724; Uncas Paper Co. v. Corbin, 75 Conn. 675, 55 Atl. 165; Fell v. Hancock, M. L. I. Co., 76 Conn. 494, 57 Atl. 175; Birdseye's Appeal, 77 Conn, 623, 60 Atl. 111." Some recent Connecticut decisions in point are Shaw v. Pope, 80 Conn. 206, 67 Atl. | 495; Badbury v. South Norwalk, 80 Conn. 298, 68 Atl. 321. Action by John Beattie, prosecuted after his death by his executors, John and Peter Beattie, against the New York, New Haven & Hudson River Railroad Company and another, on a contract covering masonry work, for the balance due thereunder for extra work done and material furnished. From a judgment for defendants, plaintiffs appeal. Affirmed. Howard C. Webb, for appellants. John T. Robinson and Francis W. Cole, for appellees. WHEELER, J. The correction of the find There is no error. The other Judges con- ing is the main purpose of this appeal. curred. (84 Conn. 555) BEATTIE v. NEW YORK, N. H. & H. R. R. (Supreme Court of Errors of Connecticut. 1. APPEAL AND ERROR (§ 1011*)-FINDINGSCONCLUSIVENESS. A finding on conflicting evidence is conclusive on appeal. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*] 2. CONTRACTS (§ 321*)-BUILDING CONTRACTS -BREACH. Where an owner refused to permit a contractor to perform his part of a contract, the contractor, not waiving the breach, could recover the resulting damages. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1508-1527; Dec. Dig. § 321.*] 3. NEW TRIAL (§ 74*)-GROUNDS-DENIAL OF "NOMINAL DAMAGES." A new trial will not, as a general rule, be granted to enable the defeated party to recover "nominal damages," which are such as are to be awarded in a case where there has been a breach of contract, and no actual damages can be shown. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 150; Dec. Dig. § 74.* For other definitions, see Words and Phrases, vol. 5, pp. 4815, 4816; vol. 8, p. 7732.] 4. DAMAGES (§ 9*) - INVASION OF LEGAL RIGHTS. Where a real legal right is invaded, a recovery must be had, and in such case the law implies damage, though in fact the breach proved a benefit to the other party to the contract. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 7-15; Dec. Dig. § 9.*1 [1] In most of the particulars in which the finding is complained of, its facts were found upon conflicting evidence, and hence are conclusive. The case was one of great antiquity; it was tried 23 years after the plaintiffs' intestate had completed the contract now sued upon; the plaintiffs relied to prove their case upon a few memoranda of their intestate and the testimony of his son, a boy 15 years of age when the contract was begun and 17 when it was completed, testimony which involved an understanding of the contract and the manner of, and reasons for, doing the work thereunder, and a recollection of unusual character, including the memory of conversations of importance had by his father in connection with the work; opposed to this on vital matters were some facts of established merit, and testimony of reasonableness from men of apparent reliability, who had had the opportunity to know of what they told, and documentary evidence under the hand of the plaintiffs' intestate, of payment for much of the work and material sued for. No doubt considerations such as these led the trial court to its findings, and we cannot say it was in error in its conclusions. By authority of the General Assembly (Sp. L. vol. 9, p. 1026), a commission devised a plan for the elimination of the grade crossing at Asylum street, in Hartford, and ordered its execution by defendant railroads, and in carrying out the orders of the com mission the railroads entered into a contract with John Beattie, the plaintiffs' intestate, for certain masonry work. Subsequently, up |