jury would be justified in coming to a conclusion either way, as credence be given to the witnesses upon the one side or the other, it is the duty of the court to submit such an issue to the jury, however firmly convinced the presiding justice may be that there is no doubt as to where the truth lies. And, even where the surrounding circumstances merely make the story of a witness improbable, it is still the right of the litigant to have the issue thereby raised submitted to the tribunal created by the Constitution and the laws for the determination of such questions.

But this cannot be so when the undisputed circumstances show that the story told by a witness upon a material issue cannot by any possibility be true, or when the testimony of a witness, necessarily relied upon, is inherently impossible. In this case, as we have seen, the plaintiff, when he was 25 feet distant at least from the place of the collision, and when he had ample opportunity to stop or turn aside, could have seen the approaching train if he had looked, as was his duty. As we have already said, he either did not look, or did look and saw the approaching train, but attempted to cross, regardless of it. Under these circumstances, It does not help him that he testified that he did look and did not see the train; nor did this testimony, under the circumstances of the case, raise an issue of fact which should have been submitted to the jury. Exceptions overruled.

(97 Me. 261)

LEWISTON & A. R. CO. v. GRAND TRUNK RY. CO. OF CANADA.

(Supreme Judicial Court of Maine. Jan. 1,

1903.)

LEASE-INTERPRETATION RAILROADS-TAX

-FRANCHISE-CONTRACT-PAYMENT OF

TAXES-DEDUCTION FROM RENT.

1. In determining the intention of the parties to a contract, the interpretation which they themselves by their own acts put upon it is justly entitled to great weight.

2. The court will not adopt a construction of a contract which does not comport with the interest of either party at the time it is made, unless expressed in clear terms.

3. The plaintiff agreed with the defendant to construct and build the plaintiff's road as described in its charter, in a substantial and permanent manner, with suitable station grounds and buildings, and with the necessary sidings at its terminus in Lewiston. By a subsequent indenture the defendant agreed to construct and complete the railroad as already located and partially constructed in a substantial manner, and in all respects in accordance with the previous agreements of the plaintiff. The next day the plaintiff leased the road to the defendant for 99 years, with full power to finish and complete it as previously agreed between the parties, and to make and construct any new buildings and tracks necessary and beneficial to be used for he working of the railroad. A rental of $9,000 was to be paid every six months, and the lease provided that all taxes which might lawfully be assessed upon the corporate property or fran

1. See Contracts, vol. 11, Cent. Dig. § 753.

chise of the lessor during the period of the lease might be paid by the lessee and deducted from the rent. Within a few months after the execution of the lease the defendant purchased for $92,215.10 certain parcels of land in Lewiston adjoining, but without the location of the plaintiff's road. On this land railroad sidings have been constructed and buildings erected, either leased to the patrons of the road, or built upon portions of the premises leased to said patrons. The defendant took the title to this real estate in its own name, enjoys the income from it, and for 23 years paid the taxes upon it without making any claim to deduct such taxes from the rent.

Held that, construing the two indentures and lease together, the defendant was not bound to acquire this land for the plaintiff; that it is not the corporate property of the plaintiff, within the true intent and meaning of the lease; and that the taxes so paid cannot be deducted from the rent therein reserved.

4. For 18 years the defendant paid taxes lawfully assessed upon the corporate property of the plaintiff, but did not deduct them from the rent.

Held, that they cannot be deducted now; that the true intent and meaning of the lease is that as fast as the taxes are paid they should be deducted from the installment of rent falling due next after such payment, and, if not deducted then, they cannot be taken out at all.

5. The defendant has paid an annual franchise tax to the state, assessed upon the basis of the gross earnings of all the leased lines operated by it within the state, divided by the total number of miles so operated.

Held, that this is not a tax upon the franchises of such leased roads alone; that it is either a tax upon the franchise of the defendant alone, or upon its franchise and the franchise of its leased roads. If the latter, it is incapable of apportionment in this case, and no part of the tax so paid can be deducted from the rent reserved.

(Official.)

Report from Supreme Judicial Court, Androscoggin County.

Action by the Lewiston & Auburn Railroad Company against the Grand Trunk Railway Company of Canada. Case reported. Defendant defaulted. Damages to be assessed at nisi prius.

Action to recover the sum of $18,000, with interest, alleged to be due from the defendant to the plaintiff as rental for the plaintiff's railroad, station grounds, buildings, sidings, etc., and the property and estate of every kind belonging to the plaintiff, appurtenant to and designed for the purposes of maintaining and operating the plaintiff's railroad; the allegation being that the rental is due under the terms of a lease from the Lewiston & Auburn Railroad Company to the Grand Trunk Railway Company dated March 25, 1874.

The defense was based upon a provision in the lease that "all taxes which may be lawfully assessed upon the property or franchises of the lessors during the period of their lease may be paid by the lessee, and, if so paid, shall be deducted from the rent herein covenanted to be paid by said lessee." The defendant claimed to have paid taxes, and to be entitled to deduction of taxes of the nature referred to in the lease to an amount considerably in excess of any rentals claim

ed to be due, and that, with such deductions made, no balance was due the plaintiff.

Argued before EMERY, STROUT, POWERS, PEABODY, and SPEAR, JJ.

H. W. Oakes, J. A. Pulsifer, F. E. Ludden, W. H. Newell, and W. B. Skelton, for plaintiff. C. A. & L. L. Hight, J. W. Symonds, D. W. Snow, C. S. Cook, and C. L. Hutchinson, for defendant.

POWERS, J. Assumpsit for two semiannual installments of rent, of $9,000 each, from June 10, 1898, to June 10, 1899, under a lease from the plaintiff to the defendant.

The plaintiff corporation was organized under a special charter (Laws 1872, c. 88, approved February 10, 1872), which empowered it to locate, construct, and complete a railroad from some point in the city of Lewiston to a point of connection with the Atlantic & St. Lawrence Railroad, otherwise known as the Grand Trunk Railroad, within the limits of the city of Auburn. It was also authorized to lease its road, either before or after its completion, upon such terms as it might be able to agree with the Grand Trunk Railway Company. August 27, 1872, the plaintiff and defendant entered into an indenture, by which, in consideration of the defendant's agreeing, among other things, to take a lease of the road, when completed, for the term of 99 years, the plaintiff agreed to proceed with all diligence to construct and build the road, in a substantial and permanent manner, with suitable station grounds and buildings, and with the necessary sidings at the terminus at Lewiston. March 24, 1874, the parties entered into another written agreement, by which the defendant, in consideration of $220,000 in cash and bonds paid to it by the plaintiff, agreed to "proceed with all diligence to construct and complete the railroad, known as the Lewiston and Auburn Railroad, as already located and partially constructed, in a substantial manner, and in all respects in accordance with the obligations, promises, and agreements" of the plaintiff contained in the indenture of August 27, 1872, to which reference is expressly made.

The next day, March 25, 1874, the lease was executed. By it the plaintiff leased to the defendant "the railroad of the said Lewiston and Auburn Railroad Company as now chartered, located and constructed, extending from the city of Lewiston to its point of junction with the Atlantic and St. Lawrence Railroad in the city of Auburn, together with all its station grounds and buildings, and all its rights of way and other easements and rights, and all the property and estate of every kind belonging to said Lewiston and Auburn Railroad Company, appurtenant to and designed for the purpose of maintaining and operating said railroad, full power and authority to finish and complete said railroad, as heretofore agreed between the respective parties hereto." The

with

lessee was further authorized "to make or construct any new buildings or tracks necessary and beneficial to be used for the working of said railroad." The lease provided that all taxes which might lawfully be assessed upon the corporate property or franchise of the lessor during the period of the lease might be paid by the lessee, and, if so paid, they should be deducted from the rent covenanted to be paid by the lessee.

Immediately upon the execution of the lease the Grand Trunk Railway Company took possession of the property and franchises of the Lewiston & Auburn Railroad Company, and proceeded to construct and complete said railway in accordance with the agreement and obligation existing between the parties. While the work of construction was in progress, and before the completion of the road, the Grand Trunk Railway Company, on July 17, 1874, purchased for the sum of $2,215.10 certain parcels of land, and on November 20, 1874, another parcel of land for the sum of $90,000, all situated in the city of Lewiston, adjoining the original location of the Lewiston & Auburn Railroad Company. The defendant took and still retains the title to all land so purchased. On this land certain railroad sidings have been constructed, and certain buildings erected. Some of these buildings have been built by the defendant, and leased to the patrons of its leased road, the Lewiston & Auburn Railroad. Others have been built by the patrons of said leased road upon portions of said premises leased to them by the defendant. The lease and the two written contracts named are all parts of the same transaction, and are to be construed together.

1. During the period of the lease, and previous to the date of the writ, the defendant has paid taxes to the amount of $31,427.75 legally assessed by the city of Lewiston, from 1875 to 1898, inclusive, upon the land so purchased in July and November, 1874. These taxes the defendant claims the right to deduct from any rental accruing under the lease. The question is, are they taxes upon the corporate property of the plaintiff? In other words, is the land so purchased by the defendant, the title to which is now held by it. and of which it has the exclusive use, benefit, and control, the corporate property of the plaintiff, within the true intent and meaning of the lease? We cannot believe that such was the intention of the parties. It is true that by the indenture of August 27, 1872, the plaintiff agreed to construct and build the road, with suitable station grounds and buildings, and with the necessary sidings at the terminus at Lewiston, and that it was necessary to acquire a part at least of the land purchased, in order to provide suitable station grounds and necessary sidings and terminal facilities. When, however, this obligation to so construct and complete the road passed from the plaintiff to the defendant, as it did by the indenture of March 24, 1874,

it was therein confined to the road "as already located and partially constructed." In the first indenture there is no reference to any location, and, being executed but a few months after the granting of the charter, it is probable that none had been made. The road is therein described in general terms, following the language of the charter, which at that time afforded the best and only description of it. When, however, the second indenture was entered into, the road had been located and partially constructed. By it the defendant was to construct and complete the road, not in the vague and general terms of the charter, but, specifically, "the Lewiston and Auburn Railroad as now located and partially constructed." These words "as now located" modify all that follows, including the reference to the prior agreement, and must have been used for the purpose of limiting the obligation of the defendant within some bounds capable of being readily ascertained and accurately defined. If not so intended, they are meaningless. The construction contended for by the defendant wholly ignores them, and makes its obligation apply to the road as described in the prior agreement. The same may be said of the lease. It is "the railroad of the said Lewiston and Auburn Company as now chartered, located and constructed" that is leased to the defendant. There is no claim that the lands purchased are within the location of the plaintiff's railroad, or covered by any plans for its construction and completion in existence at the time that the lease was executed.

Again, it is difficult to believe that the parties ever understood or intended that the defendant was bound to acquire for the plaintiff land of the value of $92,000. If such an onerous obligation were intended to be imposed, we should expect to find it set forth in clear and specific terms, and not left to inference from general language relating to other subjects. By giving force to the words "as already located," the rights and duties of the parties become fixed, certain, definitethe very object, we have no doubt, for which the words were used. By disregarding them, and adopting the construction for which the defendant contends, its obligations would be vague, uncertain, indeterminate, a fruitful source of litigation-the very things which such solemn indentures are intended to avoid.

Perhaps, however, the most satisfactory, as it is the most conclusive, answer to the defendant's contention, is found in its own conduct. In determining the intention of the parties to a contract, the interpretation which they themselves by their own acts put upon it is justly held entitled to great weight. The defendant purchased the land with its own money. It took and still retains the title in its own name. For 23 years it paid taxes upon this land, aggregating in all nearly $30,000, without making any claim that it was entitled to have them deducted from the

rental under the lease. The first tax was assessed in 1875. The terms of the contract must then have been fresh in the minds of the parties. Yet this claim was allowed to slumber for 23 years, until the amount paid in taxes on the property aggregated many times the amount of the semiannual rental. Such conduct can be accounted for on only one rational theory-that the parties never intended that this land should be considered the corporate property of the plaintiff, within the true intent and meaning of the lease.

2. It is admitted that from 1880 to 1898, inclusive, the defendant paid annual taxes lawfully assessed by the city of Auburn upon the corporate property of the plaintiff to the amount of $1,585.25. The defendant claims that it should be permitted now to deduct these taxes; that its right to make such deduction is a continuing one, and may be exercised at any time during the period of the lease. We do not think such was the intention of the parties. They must have known that the taxes would be assessed and payable annually. The lease states that, if the taxes are paid by the lessee, they "shall be deducted from the rent herein covenanted to be paid by said lessee," and the lessee covenants to pay the rent semiannually. We think this plainly imports that, as fast as the taxes were paid, they should be deducted from the installment of rent falling due next after such payment, and, if not deducted then, they could not be taken out at all. The defendant could have desired at the time no other contract, for the sooner the tax was deducted the better it would be for the les

see.

The plaintiff must have desired and intended to secure from the rental some kind of a fixed and certain income for its stockholders. The lease was for 99 years, and if the taxes could be allowed to accumulate for half a century, more or less, and be deducted any time at the will and pleasure of the lessee, it is evident that such great uncertainty in regard to the amount to be received on any pay day-in fact, in time as to whether anything at all would be received at the time for the next semiannual payment of rent-would most seriously and injuriously affect the market value of the defendant's stock. Such an intention, which does not comport with the interest of either party to the lease at the time it was executed, should be expressed in clear terms.. It cannot be deduced from the language here used. The case does not clearly show whether any of these taxes were paid after the last payment of rent was made on June 10, 1898. If so, they should be deducted from the amount of the rental which fell due next after this pay. ment.

3. From 1889 to 1893 the state assessed a franchise tax against the plaintiff corporation, which was paid by the defendant. The construction, already given to the lease above, in regard to the taxes in Auburn, renders it unnecessary to determine whether this tax

was lawfully assessed. Not having been deducted from the rental falling due next after their payment, they cannot be deducted now. From 1894 to 1898, both inclusive, the state tax has been assessed directly against, and paid by, the defendant. In making up the taxes for these years the gross earnings of all the lines operated by the Grand Trunk in this state, the Atlantic & St. Lawrence Railroad, the Norway Branch Railroad, and the plaintiff's road, have been taken together, and divided by their total mileage in Maine, to get the gross earnings per mile upon which to base the tax.

The question presented is whether the defendant's proportionate part of the tax constitutes a tax upon its franchise, within the intent and meaning of the lease. It is settled that the tax is a franchise tax. State v. M. C. R. Co., 74 Me. 376; Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 12 Sup. Ct. 121, 35 L. Ed. 994. Whose franchise is taxed-that of the lessor or of the lessee; of the plaintiff, who owns the road, or of the defendant, who operates it? Under the statute, the tax can only be assessed against the corporation, person, or association operating the road. "Every corporation, person or association, operating any railroad in the state under lease or otherwise, shall pay to the Treasurer of the state for the use of the state, an annual excise tax, for the privilege of exercising its franchises and the franchises of its leased roads in the state." Rev. St. c. 6, § 41; Laws 1897, c. 75. This tax was assessed against the corporation operating the road "for the privilege of exercising its franchises and the franchises of its leased roads." It is as plain as language can make it that this is not a tax upon the franchises of the leased road alone. The most that can be contended for is that it is a tax upon the franchises of both the lessor and the lessee, because the tax is assessed for the privilege of exercising the franchises of both. By what rule can it be apportioned in the present case? Not pro rata by the mileage, for upon that basis, after deducting the tax upon franchises of the plaintiff, the Atlantic & St. Lawrence Railroad, and the Norway Branch Railway, no tax would remain against the Grand Trunk for the privilege of exercising its franchises. Neither would it be just that the tax upon the franchise of one road should be increased or diminished, as would be the case here, by the amount of business done by other roads, in which it has no interest, and over which it has no control, simply because they are all operated by the same lessee. The manner in which the amount of the tax is determined precludes the conclusion that the franchises of the lessor and lessee are or can be taxed separately. Every railroad corporation must annually make a return to the railroad commissioners "of its operations." Rev. St. c. 51, § 60. Its gross transportation receipts thus returned are to be divided by "the number of miles of railroad operated" (Id. c. 6, § 42), 54 A.-48

and from the result thus obtained the amount of the tax is determined by a scale of vary. ing percentages on the gross receipts per mile operated. No distinction is made between the receipts of one leased line and of another, or between these and those of the operating road. They all go in together to make up the total of gross receipts, which in like manner is divided by the total number of miles operated, to get the one sum which fixes the rate of taxation. In short, there is but one tax. It is assessed against the operator upon the basis of all its operations on all its operated roads within this state. Where the operator is a corporation, it must be regarded either as a tax upon its franchises alone, or as a tax upon its own franchises and those of its leased roads, and in the last case it is incapable of apportionment. In either event the defendant's contention cannot be sustained.

As the case leaves it uncertain whether the defendant has paid any taxes to the city of Auburn since June 10, 1898, and prior to June 10, 1899, which it is entitled to have deducted, the defendant should be defaulted, and damages assessed at nisi prius in accordance with this opinion. So ordered.

SALE ON EXECUTION-VESTED RIGHTS

-PRACTICE-TITLE ACQUIRED.

1. By Rev. St. 1883, c. 46, § 20, the real and personal property of any corporation is liable to attachment ou mesne process, and levy on execution, however it may have been under the earlier statutes.

2. By the repeal of the former limitations upon the right of attachment and seizure and sale on execution of lands of corporations, and the substituted provisions in Rev. St. 1883, it is evidence that the Legislature intended to subject corporate lands to the same liability to attachment on mesne process as those owned by natural persons.

3. After a first valid attachment of real estate has been made, followed by subsequent proceedings to judgment and sale according to law, a second attaching creditor takes nothing by purchase on his execution at a sheriff's sale, unless, perhaps, the right of redeeming from the sale on execution under the first attachment.

4. It is more necessary that the name of the party whose estate is attached should be correctly shown by the records in the registry of deeds than that of the attaching creditor.

5. Where the officer's return of an attachment of real estate filed in the registry of deeds gave the name of the defendant correctly, but gave only the initials to the plaintiff's name, held, that this was a sufficient compliance with the statute to create an attachment lien.

6. After an action has been defaulted and continued for judgment, and is continued on the docket from term to term for several subsequent terms after judgment has been entered, and so remains on the docket in fact, it will be presumed that there is sufficient reason for its so remaining on the docket.

7. There is no vested right in a particular form of remedy. There can be no cause of com

plaint if a substituted remedy is given which does not abridge the usefulness of that existing at the time the right accrued. Held, that a sale of land on execution under Pub. Laws 1899, p. 119, c. 115, is valid, although the action was brought and the attachment made in 1896.

8. The plaintiff claimed title to land by virtue of a sale on execution in favor of the National Hide & Leather Bank against the Monson Maine Slate Company made February 9, 1900. Real estate was attached on the writ in that case on March 23, 1898.

The defendant claimed title to the same land by virtue of a sale on execution in favor of Rodney C. Penney against the Monson Maine Slate Company made June 11, 1900. Real estate was attached on the writ in that case on September 14, 1896.

As the attachment in the Penney suit had not been lost at the time of the sale on execution in that case, the sale related back to the attachment, and operated to carry the title then existing; and, as the attachment antedated that in the bank suit, held, that the defendant acquired title superior to that of plaintiff. (Official.)

Report from Supreme Judicial Court, Piscataquis County.

Action by Joseph H. Poor against Albert W. Chapin. Case reported, and judgment for defendant.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and PEABODY, JJ.

J. B. Peaks, for plaintiff. Henry Hudson and J. F. Sprague, for defendant.

STROUT, J. This is a writ of entry to recover several parcels of land. Demandant claims title by virtue of a sale on execution issued upon a judgment in favor of the National Hide & Leather Bank against the Monson Maine Slate Company, made on the 9th day of February, 1900. Real estate was attached upon the writ on March 23, 1898. Defendant claims title to the same lands by virtue of a sale on execution issued upon a judgment in favor of Rodney C. Penney against the Monson Maine Slate Company, made on the 11th day of June, 1900. Real estate was attached upon the writ on September 14, 1896. The right of redemption from this sale had expired before the present suit was instituted. If the attachment in the Penney suit was duly perfected and is valid, and the subsequent proceedings were according to law and while the attachment was subsisting, the demandant took nothing by his purchase from the sheriff, unless, perhaps, the right of redemption from the subsequent sale on the Penney execution.

It is very ably argued by the plaintiff's counsel that the statute in force when these attachments were made did not authorize an attachment of real estate of a mining and manufacturing company, which the slate company is.

The right to attach real estate upon a writ is purely a statutory right. Chapter 60, § 2, of the Laws of 1821, provided that "rights in equity of redeeming lands mortgaged, reversions or the remainders," and the lands

of "any turnpike, bridge, canal or other company incorporated by law with power to receive toll," might be attached on mesne process; but that statute included no other corporation, and, by section 13, lands of incorporated banks could be taken on execution and sold, but an attachment of these on mesne process was not authorized. By the general repealing act in 1840 this statute was repealed, and in the chapter relating to corporations (Rev. St. 1841, c. 76, § 17) it was provided that "the corporate property of any company incorporated in this state" "shall be liable to attachment on mesne process, and to be levied upon by execution," in the manner provided by chapters 94, 114, and 117. Chapter 94, § 34, provided that “the lands belonging to any manufacturing corporation" "may be seized and sold on execution." Chapter 114, § 30, provided that all real estate liable to be taken on execution according to chapter 94 may be attached on mesne process.

In the revision of 1857 all these statutes were repealed, and it was then provided that "all real estate liable to be taken on execution" may be attached on mesne process. Rev. St. 1857, c. 81, § 28. But in the chapter on corporations (chapter 46, § 32) it was provided that an officer having an execution against a corporation could not levy upon its real estate until he certified thereon that he was unable to find personal property of the corporation. Under these provisions it may well be doubted whether an attachment of the land could be made on mesne process. These provisions appear in substantially the same language in Rev. St. 1871, c. 46, § 32, and Id., chapter 81, § 54.

But these provisions were repealed in the revision of 1883, and by chapter 46, § 20, on corporations, it is provided that "the property of any corporation" "are liable to attachment on mesne process and levy on execution for debts of the corporation in the manner prescribed by law." This statute was in force when these attachments were made. By the repeal of the former limitations upon the right of attachment and seizure and sale on execution of lands of corporations, and the substituted provision couched in such broad language, it is evident the Legislature intended to subject corporate lands to the same liability to attachment on mesne process as those owned by natural persons. This intention is so manifest that we are not authorized to import into the language any of the conditions or limitations contained in previous statutes.

It is urged that the officer's return of attachment to the registry of deeds was insufficient to create a lien upon the land. The suit was in favor of Rodney C. Penney. The return to the registry followed the statute in every respect, except that it gave the name of the plaintiff as R. C. Penney. The object of the return is to give notice to parties investigating title of an attachment.