Robinson v. Adams. conversations, declarations, claims and acts, is the most satisfactory evidence. But, in order to fairly judge, the examination must not be confined to a single declaration, or conversation, but must embrace sometimes many years and many different acts and declarations, and sometimes, perhaps, the evidence may, at first view, be remote and far from a demonstration. The judge was very decided and emphatic in his charge to the jury in enforcing upon them the fact, that these declarations of Mrs. Green were admitted to show her state of mind, and of her feelings toward the parties, and whether or not they exhibited evidence of insanity, or delusion amounting to insanity, at any time. "They are not to be regarded as proof that what she said to the witnesses, or wrote in these papers, were facts. They are not given on oath. They are not legal evidence of the facts stated. The judge repeated and elaborated this idea, so that the jury must have understood the weight they could give to this species of evidence. The exceptions, however, as to this part of the case, are that the evidence was not confined to spiritualism and the execution of the will. We think it clear that it should not have been. The chief, if not the only, specification dwelt upon by the counsel is the written statement of Mrs. Green, which has annexed to it a jurat. The counsel is mistaken in saying that it was used as evidence of the facts therein stated. It was admitted expresslythe same as much other evidence of a like character solely to show the state of mind of the testatrix in reference to the very matters in question. The jurat did not, make it a deposition, or give it any greater force or effect. It was still the declaration of Mrs. Green, and the jury were charged distinctly, not to regard it as proof of the actual existence of any fact. The rule given as to the burden of proof was clearly correct. Exceptions and motion overruled. APPLETON, C. J., WALTON and DICKERSON, JJ., concurred. BARROWS, J., did not sit in this case. VOL. XVI.-62 Hunter v. Randall. HUNTER V. RANDALL (62 Me. 493.) Statute of frauds — oral misrepresentations of financial credit of another. Plaintiff was induced to loan money to O. by means of false and fraudulent oral representations made by defendant concerning the financial credit and ability of O. The money was paid by plaintiff to defendant who passed it over to O. Held, that the statute of frauds was a defense to an action for money had and received. It seems that defendant might have been liable in some form of action if the credit had been given to him instead of to O.; or if defendant and O. had conspired to defraud plaintiff; or if defendant's representations had related to specific property of O. instead of to his general character and credit. A CTION for money had and received. The opinion states the case. Tallman & Larabee and W. Gilbert, for defendant. N. M. Whitmore and J. S. Baker, for plaintiff. PETERS, J. In our view of the facts of this case, the instruction complained of was erroneous. There was evidence tending to show that the plaintiff made certain loans to one Ezekiel Oliver; that he was induced to do so by means of certain false and fraudulent oral representations, made by the defendant, concerning the financial credit and ability of Oliver; that the money was paid by the plaintiff into the hands of the defendant, as the bailee or agent of Oliver, and immediately passed by him to his principal. The jury, among other things, were instructed, substantially, that it was immaterial whether the defendant paid the money over to Oliver or not; or that he informed the plaintiff, when he obtained the money, that he got it for Oliver; or that he, in fact, got it for Oliver, and upon his credit, provided it was passed to him through the defendant's hands. We think that these facts would bring the case within the statute of frauds; and that, for that reason, the instruction cannot be sustained. Besure, in this case the statute was not specially pleaded by the defendant, nor was it required to be, where the declaration Hunter v. Randall. contained only the general count of money had and received, as the nature of the claim alleged was not thereby disclosed to him. Boston Duck Company v. Dewey, 6 Gray, 446. Nor does it appear that the evidence alluded to was admitted against the objection of the defer.dant, but it was so interwoven with the other testimony, which was admissible, that any attempt at separation in the story of witnesses would have been impracticable. We are of the opinion that the defendant was guilty of no laches that should debar him of this defer se. The declaration does not, of itself, set out the particular facts whion show the wrong complained of to be within the statute of frauds. Nor is that necessary in order to make a defense under the statute available. The language of the act is that "no" action shall be maintained "by reason of" any representation. It does not require that the plaintiff must, in terms, declare upon the representation. The true test whether the cause of action, in whatever form alleged, comes within the statute is, whether the action can be sustained without proof of the representation. If such proof is essential to the action, the statute applies. It is immaterial that the defendant may have had some design of obtaining an advantage to himself in consequence of the loan to Oliver, or that such a thing resulted from the transactions, provided the primary object of the representations was to induce the procurement of a credit to Oliver, and the loans were obtained thereby. In such case the protection extended by the statute is absolute and complete. These propositions are directly maintained by the following authorities: Kimball v. Comstock, 14 Gray, 508; Wells v. Prince, 15 id. 562; Mann v. Blanchard, 2 Allen, 386; McKinney v. Whiting, 8 id. 208; Haslock v. Ferguson, 7 Ad. & Ell. 94; Browne on Statute of Frauds, § 184; Hearn v. Waterhouse, 39 Me. 96. This view of the case does not necessarily deprive the plaintiff of all remedy. The rulings and instructions now complained of would undoubtedly be right, should it appear in another trial that the credit for the loans was given to the defendant, instead of to Oliver. The statute was evidently intended to bar only actions for verbal representations, made with the intent that the person converning whom they are made may obtain credit, money or goods thereupon. Norton v. Huxley, 13 Gray, 287. Or should the plaintiff be able to show that he parted with his money in consequence Lawler v. Androscoggin Railroad Co. of representations made by Oliver himself, of which the defendant had knowledge, concurring and conspiring with Oliver, in such case the defendant might be liable in tort, or for money had and received, the plaintiff waiving the tort. See Knapp v. Hobbs, 50 N. II. 476, a case in some of its features resembling the case at bar Richardson v. Kimball, 28 Me. 476. Or should it appear that the representations relied upon, if made by the defendant, related to the nature, character and title of the mill property of Oliver, rather than to his general character and credit, pecuniarily, then an interesting question would arise, upon which judicial opinion is somewhat divided, whether or not the action can be maintained on that account. All these hypotheses of fact have some semblance of foundation, at least, in the evidence reported. See Browne on Statute of Frauds, §§ 182, 183; Medbury v. Watson, 6 Metc. 246; Swann v. Phillips, 8 Ad. & Ell. 457; Lyde v. Barnard, Tyrw. & Gr. (Exch.) 250. Exceptions sustained. APPLETON, C. J., CUTTING and DICKERSON, JJ., concurred. LAWLER V. ANDROSCOGGIN RAILROAD COMPANY. (62 Me. 463.) Master and servant — injury to servant by negligence of co-servant. - A declaration alleged that plaintiff was employed as a laborer, in repairing a culvert for defendants, which was in a dangerous condition; that the danger was unknown to him, but known to defendants' agent and roadmaster in charge of the repairs; and that defendants, by their agent and roadmaster, so negligently conducted the repairs that plaintiff was injured. Held, that the declaration was insufficient, because there was no allegation of negligence on the part of the defendants in selecting competent servants, nor that the injury was caused by the dangerous condition of the culvert. Defendants' roadmaster and plaintiff must be deemed fellow servants. (See note, p. 495). A CTION on the case for injuries received by plaintiff, while employed by defendants in repairing a culvert. The declaration alleged in substance that the plaintiff was employed as a laborer Lawler v. Androscoggin Railroad Co. by defendants, a railroad company, in repairing a culvert which was in a dangerous condition; that he was not aware of the danger, but defendants' agent and roadmaster well knew such danger; and that defendants, by their agent and roadmaster, so carelessly and negligently managed, conducted and supervised the making of the repairs, that an overhanging mass of stone and earth fell upon plaintiff, seriously injuring him. A demurrer to this declaration was sustained, and plaintiff excepted. Bradbury & Bradbury and Record & Hutchinson, for plaintiff. It was unnecessary to allege negligence in defendants, except in a general way. Hilliard on Remedies for Torts, 227; Indianapolis v. Keiley, 23 Ind. 133; Chicago v. Carter, 20 Ill. 370. The roadmaster was acting for defendants. Shearman & Redfield on Neg. 113, § 87, and cases cited; Goddard v. Grand Trunk R'y, 57 Me. 223; S. C., 2 Am. Rep. 39. The roadmaster and the laborers were not fellow-servants. Shearman & Redfield on Neg. 127, § 102. Frye, Cotton & White, for defendants. A servant can only recover of his master for an injury when it was caused by the direct act of the master, or by his negligence in hiring an incompetent person to carry on the work, through whose incompetency the accident occurs. Therefore such negligence must be stated in the declaration, or it will be bad on demurrer. Schouler on Dom. Rel. 642; Shearman & Redfield on Neg., § 90; Redfield on Railways, 518, § 131; 2 Hilliard on Torts, 470, § 25; Carle v. B. & P. C. & R. R. Co., 43 Me. 270; Buzzell v. Laconia Co., 48 id. 113; Beaulieu v. Portland Co., 48 id. 295; Hayes v. Western R. R. Co., 3 Cush. 270; Albro v. Agawam Co., 6 id. 75; King v. B. & W. R. R. Co., 9 id. 112; Gilshannon v. Stony Brook R. R. Co., 10 id. 228; Seaver v. B. & M. R. R., 14 Gray, 466, and many other cases. It makes no difference whether the servants are of the same grade or not. Beaulieu v. Portland Co., supra. APPLETON, C. J. It is well settled in this State that a servant who is injured by the negligence or misconduct of his fellow-servant cannot maintain an action against his master for such injury. Carle v. B. & P. C. R. R. Co., 43 Me. 269; Beaulieu v. Portland Co., 48 id. 291. "The rule," observes EARLE, C. J., in Tunney v. Midland Railway Co., Law Rep., 1 C. B. 291, "has been settled by |