Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-01
! R'ESCR|PTS.
Exceptions Over-ru|ed in
Trover Action.
verdicts Set Aside in Som
erset Damage Suits.
Judgment for RockIand in Knox
County Pauper Case.

Another batch of re;cripts was
handed down by the law court Tues
day. Exceptions OF the defendant
were overruled in Il rescript drawn by
Associate Justice Albert NJ. Spear Of
Gardiner in the Cumberland county
case of Alice NJ. Toothaker vs. Apphia
c. Pencil, which is an action of tro-
Yer to recover the value of a building
removed by the defendant from the
plaintiffs lot on Great Island in the
town of HarpSWcH The ease came
before the law court on exceptions
from the superior court of Cumberland
county where the jury was instructed
to render a verdict for the plaintiff.
Judgment for the plaintiff is ordered
in Il rescript by Associate Justice AL
bert r. Savage of Auburn in the Knox
county case of William r. Cobb ct ais,
receivers. VS. Camden Savings Bank,
which is an action by the receivers to
recover possession of real estate sold
ON execution sale to the defendant,
said real estate having been seized
before the appointment of the re-
ceivers. Judgment for the defendant
is ordered in II rescript also drawn by
Associate Justice Albert NJ. Savage in
the York county tax ease of Edwin
r. Roberts VS. Mary A. Moulton,
which involves the establishing of
valid title under Il sale of real estate
for the non payment of taxes. The
rescriptS are as follows:
Cumberland County.
Alice NJ. Toothaker, V. Apphia c. PEN
nell. Rescript. Spear, J.
This case comes up on exceptions
from the Superior court for Cumber-
land county. The admitted facts show
that the plaintiff had a legal title to
certain lot of land on Great Island in
the town of Harpswell with the build
ing standing upon it, but erected after
the land was purchased. The de-
PENDANT claims that the building was
built with funds furnished by her and
was therefore personal property held
in trust by the plaintiff for her benefit.
The defendant without the knowledge
or consent of the plaintiff removed the
building from the plaintiffs lot to a
lot OF her own. across the way. The
plaintiff brought an action of trover
to recover the value of the building.
The issue was the title to the build
ing. AS the legal title was in the
plaintiff the court instructed the jury
to render a verdict for the plaintiff.
To this instruction the defendant eX-
cepted. We think the instruction
must be sustained.
After the verdict by the jury the de-
PENDANT filed the following special mo-
ton:
And the plaintiff further asks that
the verdict of the jury may be set
aside in said case and Il new trial
granted because the rights of the par
ties may be better determined and en-
forced by judgment and decree in
equity and ask the court on reasonable
terms to allow the pleadings struck out
at law and that plaintiff may plead in
equity and the cause may be heard
and determined as a cause in equity.
The motion was overruled and eXcep-
lions taken. The defendant instead of
filing his motion during. or at the
close Of the taking of the testimony,
chose to risk the chances of Il verdict
| in his favor. Having voluntarily
chosen his course he must abide by
the result. 1t would be a loose and
burdensome practice calculated to
| produce delay rather than dispatch to
allow judicial proceedings to be. thus
trifled with.
Nor was r. S. Chapter "a. Sec 1G,
intended to apply to a procedure like
the one before us. The attempted APP
plicatiOn would at once meet with in
surm0untable difficulties
a further examination of the statute
upon equitable defenceS would seem to
indicate that the defendant did not i'm
his motion bring himself within the
purvieW Of the statute In addition
to the foregoing inSurmountable diff
cultieS both the motion to set aside
the verdict and to transfer the case
from the Superior court to the equity
side of the Supreme judicial court were
matters addressed to the discretion OF
| the court and to his discretion no ex-
lceptinns lie. Therefore the entry must
| he.