burden, rests upon a party, to prove negligence, the evidence in support of it must have some legal weight. A case must not necessarily be submitted to the jury because there is a scintilla of evidence. That doctrine has long been exploded, inasmuch as it would avail nothing for a jury to find a verdict which the court would set aside for the want of evidence having any legal weight to sustain it. Connor v. Giles, 76 Me. 132; Nason v. West, 78 Me. 253, 256, 3 Atl. 911.

Here the plaintiff had built the staging himself, from materials of his own selection. There is no evidence that these materials were unsuitable. On the contrary, the evidence seems to be conclusive that they were suitable, from the fact that the staging had done its work, and held up the brick and mortar of a great mill, and was being leveled to the ground at the time of the accident. There is no evidence that the defendants, or either of them, personally superintended the removal of the staging. The plaintiff had built it, and worked for months upon it. He knew how it was constructed, and how it was to be taken down, for he had himself

taken down more than three-fourths of it around the mill, and was removing the balance. It might well be supposed that by that time he knew something about the work he was doing, and understood and appreciated the dangers incident to it. The very platform upon which he was standing when he fell had just before been lowered by him from the story above, and was about to be lowered again. He had been instructed by one of the defendants how to remove the staging. They were not obliged to see that no accident happened to the plaintiff. He assumed the ordinary risks incident to the work in which he was engaged, including the negligence of fellow servants. This principle is too well settled to require the citation of authorities.

But it is claimed there was a defect in the staging; that one of the stays extending through a window, and fastened to the floor, had been loosened or unfastened from the floor, which allowed the stage to spread and precipitate the plaintiff, with the plank upon which he was standing, to the ground. There is no evidence, however, that the defendants were in any way responsible for the unfastening of the stay. The only evidence bearing upon this (and that is very meager) goes to show that, if loosened by any one, it was done by one of the masons at work on the inside of the building, and he was a fellow servant.

There is no evidence that any fellow servant of the plaintiff was incompetent, or negligently selected or employed by the defendants. Nor would such evidence be ad missible, from the fact that the declaration contains no such averment. Such negligence, if relied on in support of the plaintiff's claim, must be averred in the declaraV.30A.no.2-5

tion and established by proof. Dunham v. Rackliff, 71 Me. 345, 349; Blake v. Railroad Co., 70 Me. 60; Lawler v. Railroad Co., 62 Me. 463.

The case appears to be one where an accident has happened to the plaintiff, but for which no one is responsible in law. See Kelley v. Norcross, 121 Mass. 508. Exceptions overruled.

LEE v. MCLAUGHLIN.

(Supreme Judicial Court of Maine. May 14, 1891.)

NEGLIGENCE-DANGEROUS LEASED PREMISESLANDLORD AND TENANT-LIABILITY.

1. The tenant, who has full possession and occupancy, and not the landlord, is bound, as between himself and the public, to keep buildings and other structures abutting upon highways and streets in repair, so that they may be safe for the use of travelers passing along the same.

2. The owner of a building with a steep and unguarded roof, who lets it to a tenant, with the entire right of possession and occupancy, is not liable to a person injured by a with due care upon the adjoining highway; it fall of snow from the roof, while traveling not appearing that the tenant might not, by the use of reasonable care, have prevented the accident.

3. An ordinance of the city of Bangor requires owners of stores and houses bordering on the streets to put, within 30 days after notice, upon the roofs of such buildings, railings or other protections, to prevent slides of snow and ice. Held, that the ordinance did not affect the parties in this action, it appearing that no notice had been given.

(Official.)

Report from supreme judicial court, Penobscot county.

Action by John L. Lee against Henry McLaughlin for personal injuries caused by defendant's negligence. Heard on report. Judgment for defendant.

H. L. Mitchell, for plaintiff. Wilson & Woodard, for defendant.

FOSTER, J. The defendant was the owner of a brick store, with a slated roof, situated on the westerly side of Broad street and easterly side of Pickering square, in Bangor.

It appears from the evidence and admitted facts that for several years prior to, and at the time of, the accident, "the whole store, the real estate and building, were in the occupation of Thurston & Kingsbury, under a tenancy at will from the defendant."

A quantity of snow which had fallen upou the roof of the building slid off into the street and upon the sidewalk, thereby causing a horse which was attached to a truck wagon, and belonging to one John C. Mooney, to start and run away; and in its course it came into collision with the horse and sleigh of the plaintiff, who was thrown from the sleigh,

and received the injuries for which he seeks to recover compensation of the defendant in this suit.

Of the several positions taken in defense of this action, it becomes necessary to consider only one, and that which we think is decisive of this case.

The plaintiff can hold the defendant liable only upon the ground that he was guilty of negligence towards him. Upon no other theory can such an action as this be maintained. The plaintiff seeks to recover of the defendant as owner of the building upon which the snow accumulated, producing the injuries of which the plaintiff complains.

Whatever may be the rights of travelers receiving injuries from the fall of snow or ice from a roof which is subject to the use and control of the owner, as in Shipley v. Fifty Associates, 101 Mass. 251, 106 Mass. 194, and other cases of that nature, it can no longer be regarded as an open question whether or not the owner of a building is liable in such a case as this, when the entire control and occupation belong to the tenants. That question must be regarded as fully settled by the cases of Kirby v. Association, 14 Gray, 249; Leonard v. Storer, 115 Mass. 86; Clifford v. Cotton Mills, 146 Mass. 47, 15 N. E. 84; Lowell v. Spaulding, 4 Cush. 277.

The principle enunciated by these decisions is that the occupier, and not the landlord, is bound, as between himself and the public, to keep buildings and other structures abutting upon highways and streets in repair so that they may be safe for the use of travelers passing along the same, and that the occupier is prima facie liable to persons injured through any defect in the same or want of care in the use of such buildings.

The case of Clifford v. Cotton Mills, supra, was an action for personal injuries occasioned to the plaintiff by the fall of snow from the defendant's house into the highway. The house was three stories high, with a steep slate roof slanting towards the sidewalk, with no protection or railing to keep the snow from falling upon the sidewalk. The court held that the owner of a building with a steep and unguarded roof, who lets it to a tenant, reserving only the right to enter the premises to repair the same, is not liable to a person injured by a fall of snow from the roof while traveling with due care upon the adjoining highway; it not appearing that the tenant might not, by the use of reasonable care, have prevented the accident. In the course of the opinion the court say: "The defendant's house was not a nuisance in itself. If it was, half the householders in Boston are indictable at the present moment. It was certain to become so at times by the mere working of nature alone, unless the tenant cleared the roof, or took other steps to prevent it. But, so far as appears, the tenant could have done so by using reasonable care. If he could, it was his duty to do

so, and the landlord was not liable, for the reasons which we have stated."

Very similar to the case last cited was that of Leonard v. Storer, supra, in which the court held the same doctrine, afterwards more fully considered in the opinion in Clifford v. Cotton Mills. In that case, occupancy by the tenant included the roof as well as the interior; and it did not appear that he might not have cleared the roof of snow by the exercise of due care, or that he might not, by proper precautions, have prevented the accident. That being the case, there was no neglect of duty or wrongful act on the part of the owner, such as to render him liable for the injury.

In the case of Shipley v. Fifty Associates, 101 Mass. 251, and 106 Mass. 194, where the owners were held responsible for injuries resulting from the fall of ice and snow from the roof upon a traveler, it will be observed that the roof was not in the control of the various occupants of the building, but of the onwers, and for that reason they were held liable. The same is true in the case of Kirby v. Association, 14 Gray, 249; Simonton v. Loring, 68 Me. 164; Toole v. Beckett, 67 Me. 544, and many other cases that fall within that class, where the owners have been held responsible for injuries resulting from their negligence or wrongful acts. Upon the same principle were the decisions in McCarthy v. Bank, 74 Me. 315; Milford v. Holbrook, 9 Allen, 17; Allen v. Smith, 76 Me. 335.

In the present case the tenants had the full control and occupancy of the building. It included the exterior as well as the interior. It is immaterial whether such control and occupancy existed in consequence of a tenancy at will, or by virtue of a written lease. The principle is the same. The building was not in itself a nuisance, and could become such only by reason of the action of the elements at certain seasons of the year. If there was any duty to keep the roof clear of snow and ice, it belonged to the tenants. If there was any neglect, it was theirs, and not the owner's. Nor is there anything in the case to show that the tenants might not, by the exercise of due care, have cleared the roof of snow, or, by proper precautions, have prevented the accident. The tenants, for the time being, were in the place of the owner. Nor is it necessary to determine how far the tenant might be warranted in placing suitable guards upon the roof, to prevent snow and ice from falling into the street. It has been held that the tenant would have such right, even in cases where the right is reserved to the landlord to enter and make repairs. Clifford v. Cotton Mills, supra; Boston v. Worthington, 10 Gray, 496, 500.

An ordinance of the city was introduced in evidence, requiring owners of stores and houses bordering or the streets to put upon the roof of such buildings railings or other protections to prevent slides of snow and ice, in cases where they have been notified to

1. Fire insurance is in effect a contract of indemnity against loss or damage suffered by an owner or person having an interest in the property insured.

2. An attaching creditor has an insurable interest in the buildings covered by his attachment. But where he fails to procure any insurance on such interest, and the debtor takes out a policy at his own expense, held, that the latter effects insurance on his own interest in the property, and not on that of his creditor.

3. After the adjustment and payment of loss under such policy, the funds being held through an assignment of the debtor to his sureties and a mortgage of the premises insured, the creditor claimed on account of the unsatisfied part of his judgment a lien on the insurance money, and of which there was an excess in the hands of the sureties above their claim, upon the ground that the mortgage and assignment of the policy were in fraud of his rights. Upon a bill in equity to enforce the lien, held, that the bill cannot be sustained; that there is no privity of contract or of estate, between the plaintiff and either of the defendants, that could form a basis for such a lien.

4. Also, that the assignment of the policy to the sureties, with the consent of the company, was a new and original contract of indemnity with the assignees, who were not indebted to the plaintiff, and who had no contractual relations with him.

(Official.)

Report from supreme judicial court, Androscoggin county.

Bill by Isaiah Donnell against Kingsbury Donnell and others to enforce an attachment lien on certain money in the hands of defendants Potter and Donnell. Heard on bill, demurrer, answers, and testimony. Bill dismissed.

J. W. & C. B. Mitchell, for plaintiff. Savage & Oakes, for defendants.

WHITEHOUSE, J. The question involved in this case will appear from the following statement of facts:

The defendant, Kingsbury Donnell, owned certain real estate, with buildings thereon, and was indebted to the plaintiff. September 4, 1891, the plaintiff brought suit on his debt,

October 28, 1891, Kingsbury Donnell procured two policies of insurance on his buildings. January 18, 1892, Kingsbury conveyed this real estate to his sons, the defendants Benjamin F. and Charles K. Donnell, and on the same day assigned to them the insurance policies.

The defendants Potter and Bryant were sureties on Kingsbury Donnell's bond as executor of an estate, and this bond has been put in suit. Thereupon, April 28, 1892, B. F. and Charles K. Donnell mortgaged the premises to Potter and Bryant to secure them for their liability on this bond.

The buildings were burned September 20, 1892, and due notice of the loss was given to the defendant insurance companies. Potter and Bryant, as mortgagees, also gave notice to the companies, and seasonably began suit to enforce their lien as provided by statute. September 22, 1892, Benjamin F. and Charles K. Donnell gave an order to the insurance companies, directing the money to be paid for the benefit of Potter and Bryant. December 8, 1892, they further secured Potter and Bryant by a written assignment of the policies and the money due thereunder.

The plaintiff's attachment was perfected by a sale of the land on execution December 10, 1892, and his judgment thus satisfied in part. The debtor had no other property available and sufficient for the payment of the plaintiff's claim.

The insurance companies, having been indemnified for so doing, paid the insurance money to Potter and Bryant, who now have in their hands a balance of $523.49, after paying the amount for which they were liable on Kingsbury Donnell's bond.

The plaintiff claims that he has a lien on the insurance money, which can be enforced by this bill in equity, on the ground that the conveyance of the real estate, and the assignment of the insurance policies from Kingsbury Donnell to his sons, were made with a fraudulent purpose towards creditors.

We cannot concur in this view. There was no privity of contract or of estate between the plaintiff and either of the defendants that could form a basis for such a lien. "An insurance of buildings against loss by fire," says Shaw, C. J., in Wilson v. Hill, 3 Metc. (Mass.) 68, "although, in popular language, it may be called an insurance of the estate,' is in effect a contract of indemnity with an owner or other person having an interest in the preservation of the buildings, to indemnify him against any loss which he may sustain in case they are destroyed or damaged by fire." So in Carpenter v. Insurance Co., 16 Pet. 503, it is said that "policies of insurance against fire are not deemed, in their nature, incident to the property insured; but they are only special agreements with the persons insuring against such loss as they may sustain, and not the loss that any other person having an interest, as grantee or mort

gagee or creditor or otherwise, may sustain." When Kingsbury Donnell effected the insurance in question the property was subject to the plaintiff's attachment. The plaintiff then had a right in the property which the court would enforce against it,-a right so closely connected with it, and so much dependent for value upon the continued existence of it, that a loss of the property would cause pecuniary damage to him. He therefore had an insurable interest in the property. Rohrback v. Insurance Co., 62 N. Y. 54; Her kimer v. Rice, 27 N. Y. 163; Wood, Ins. § 298; Cumberland Bone Co. v. Andes Ins. Co., 64 Me. 466. But he omitted to procure any insurance on his interest as an attaching creditor, and, when Kingsbury Donnell took out the policies in question, he effected insurance on his own interest in the property, and not on the plaintiff's interest. So far as appears, the plaintiff was in no respect instrumental in procuring this insurance, was under no obligations to pay the premium for it, and in fact paid no part of the premium. If the buildings had been destroyed by fire before the conveyance of the property by Kingsbury Donnell, and the assignment of the policies to his sons, the insurance money would obviously have belonged to Kingsbury Donnell. The plaintiff would have no interest in it, legal or equitable, for the simple reason that the contracts of indemnity were not with him, but with Kingsbury Donnell. They did not relate to his interest in the property, but to that of Kingsbury Donnell. He could only have made it available for the payment of his claim by the ordinary trustee process, as a debt due from the insurance companies to Kingsbury Donnell. His situation would not have been so favorable as that of a mortgagee at common law, since the mortgagee's interest arises from contract, while the process of acquiring a lien by attachment is wholly in invitum. Our statute (Rev. St. c. 49, § 52) gives the mortgagee a lien upon any policy of insurance procured by the mortgagor, to take effect from the time he files a written notice with the company as there provided. But in the absence of such a statute a mortgagee would have no more right than any other creditor to claim the benefit of insurance effected by the mortgagor. "We know of no principle of law or equity," says Mr. Justice Story in Insurance Co. v. Lawrence, 10 Pet. 512, "by which a mortgagee has a right to claim the benefit of a policy underwritten for the mortgagor, on the mortgaged property, in case of loss by fire. It is not attached or an incident to his mortgage. It is strictly a personal contract for the benefit of the mortgagor, to which the mortgagee has no more title than any other creditor."

But if the plaintiff would have had no claim to the insurance money if the loss had occurred while the title to the property remained in Kingsbury Donnell, and the contracts of indemnity were with him, then a fortiori he

has no right to it after alienation of the property, and the assignment of the policies of insurance to his sons. The conveyance would have rendered the contracts of insurance with Kingsbury Donnell null and void, if the companies had not consented to the assignment of the policies. The effect of this transaction was to make a new and original contract of indemnity with the assignees, who were not indebted to the plaintiff, and had no contract relations with him. Wilson v. Hill, supra. It is the opinion of the court that the entry must be,

Bill dismissed, with costs.

CITY OF ROCKLAND v. FARNSWORTH. (Supreme Judicial Court of Maine. Aug. 17, 1894.)

MUNICIPAL CORPORATION-TAXES-VALIDITY-ACTION TO COLLECT STATE AND CITY TAXES — DEFENSE.

1. A city tax is invalid when the resolve raising it by the city council has not been legally passed or approved by the mayor, as required by the city charter.

2. In action of debt to recover state, county, and city taxes assessed in solido, it is no defense to the suit for the unpaid part of the state and county taxes that the city tax included in such assessment is invalid.

3. See Rockland v. Farnsworth, 83 Me. 228, 22 Atl. 103.

(Official.)

Report from supreme judicial court, Knox county.

Action of debt by the city of Rockland, Me., against Mary C. Farnsworth, to recover state, county, and city taxes for the year 1885. Heard on report. Judgment for plaintiff for part of amount claimed.

W. H. Fogler, City Sol., for plaintiff. Mortland & Johnson, for defendant.

HASKELL, J. The defendant's tax for the year 1885 was $552. Upon this tax she paid $32, leaving a balance of $460 unpaid, for which this suit is brought.

The defendant contends that the city tax is invalid, and we think it is. Nothing has been called to our attention showing the state and county taxes that are included in the assessment to be irregular or invalid, but it is claimed that the $92 paid more than pays the state and county taxes. This is not so. The state and county taxes included in the assessment against the defendant aggregate more than that sum. They amount to $98.06. Moreover, the $92 paid was levied upon real estate, and was applied by the parties to the payment of that tax, which included state, county, and city taxes. Being so paid in reduction of the defendant's tax, it leaves a balance of $460 now sued for. Of this sum, $80.70 is state and county tax, and, although assessed in solido with the city tax against the defendant, appears to be a valid tax, and may be recovered in this action.

Judgment for plaintiff for $80.70, with interest from the date of the writ.

unlawful, unless erected for the convenience of and to facilitate the defendant's business authorized under its charter; that neither the

SHERMAN v. MAINE CENT. R. CO. (Supreme Judicial Court of Maine. May 21, 1894.)

RAILROAD COMPANIES - LIABILITY FOR FIRES PRACTICE-NEW TRIAL-REMARKS OF COUNSEL.

1. The fact that a building in which goods are kept or stored extends a few feet into the location of a railroad, if placed there or permitted to remain there by license of the railroad company or its officers, will not exempt the company from liability for injuries to the goods by fires communicated by its locomotive engines.

2. Irrelevant and improper remarks of counsel in argument to a jury may be a sufficient cause for granting a new trial; and if, upon objection being made, the court declines to call the offending counsel to order, or omits to instruct the jury to disregard the irrelevant and improper remarks, a new trial may be obtained on exceptions. But if, upon objection being made, the court promptly calls the offending counsel to order, and instructs the jury to disregard the irrelevant and improper remarks, exceptions will not lie, and the only mode of obtaining redress is by a motion addressed to the sound discretion of the court.

3. Exceptions lie only to errors of the court. For misconduct of counsel, a motion is the proper remedy.

WALTON, J. This is an action based on that provision of the Revised Statutes which makes railroad corporations responsible for injuries caused by fires communicated by their locomotive engines. Rev. St. c. 51, § 64. The plaintiff was the lessee of a building near the track of the Maine Central Railroad Company in Burnham. He used the upper part of the building for a dwelling house, and the lower part for a store. October 6, 1892, the building and most of its contents were consumed by fire. The plaintiff claims that the fire was communicated to the building by one of the defendant's locomotive engines, and he has obtained a verdict against the company for $5,180.94. The case is before the law court on motion and exceptions.

Exceptions: It appears that one corner of the building extended onto the location of the defendant's roadway some six or eight feet; and at the trial in the court below the defendant's counsel requested the presiding justice to instruct the jury that the erection of that portion of the store which was within the lines of the defendant's roadway was

had a lawful right to erect a building within the defendant's roadway for their own convenience or use alone; that such erection would be inconsistent with the purposes for which the charter was granted; that it was the duty of the company to preserve the roadway for the uses for which it was incorporated, and it had no right to permit other parties to erect buildings thereon for the sole use of parties other than the railroad; that the railroad had the exclusive control of the land within its roadway, and it was not at liberty to alienate any part of it to be used by other parties for purposes not contemplated by its charter; that while Mr. Tucker, the general manager and vice president of the corporation, had the right to license the erection of buildings within the roadway, or the use of those having been previously erected there, provided such erection or use was for the convenience of the railroad, or to facilitate its business, he had no authority to license such erection, or the use of it, for the sole use and convenience of others, in a business not connected with the defendant's.

The presiding justice did not give the requested instructions in the language employed by counsel; but he instructed the jury that if there was a want of ordinary care on the part of the plaintiff, in allowing his goods to remain in a building, a part of which was within the located limits of the defendant's roadway, whether there by license or otherwise, and such want of care caused or contributed to the result, the plaintiff could not recover. Could the railroad company rightfully claim more? Can the proposition be maintained that the mere fact that one corner of a building in which goods are kept or stored extends a few feet over one of the side lines of the roadway (though placed there or permitted to remain there by express license of the railroad company or its officers) will exonerate the company from all liability for injuries to the goods by fires communicated by its locomotive engines? Will that fact alone exonerate the company from all liability under the statute cited? We think not. The statute contains no such exemption in express terms, and we think none is implied. The same question has been presented in Massachusetts and in Vermont, under statutes similar to our own, and answered in the negative, and we I can see no reason for doubting the correctness of these decisions. Ingersoll v. Railroad, 8 Allen, 438; Railroad Co. v. Richardson, 91 U. S. 454.

We now come to another question. The defendant's counsel have included in their bill of exceptions an exception to remarks made by the plaintiff's attorney in his closing address to the jury. Do exceptions lie for such an error? We think not. Exceptions lie