Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-08-19
To Group Of Islands in Fox
Island Thoroughtare.
Motion for New Trial 0verruIed in
Eastport Herring Case.

Diy, Nilllc tic w e1foiiiiie,tCi' t'Nhey 80
vclves the question whether boat
load of herring transported from
Boothbay to PASSPORT was properly
cured.
Jesse z. Ames VS.. James w. Young;
James w. Young, in error VS.. Jesse Il.
Ames, on report.
Rescript, Spear, ].
The issue in this case is the title to
certain islands known as Cross Islands,
part of the Fox Island group situated
in PenObscot Bay. The plaintiff, Ames,
upon a writ of entry describing these
islands dated Dec. 4. 1901, recovered
judgment by default against the de-
PENDANT, Young, Mar. 2S, 1902. The
Judgment was duly recorded. On the
18th day of Nov 1907, the defendant,
Young, in the real action above de-
scribed, brought a writ of error against
the plaintiff in that action attacking
the service of the writ therein. The
writ of error was returnable and en-
tered at the January term of court 1908.
Later at the same term of court, the
plaintiff in error, moved to amend the
record Of the judgment in the real ac-
tor, as follows: Jesse E. AmeS, VS..
James w. Young. Case No. 543S Writ
of entry, March term 1902. Now comes
James w. Young, defendant in said
suit, and alleges that the record of
such case is erroneous and incomplete
in respect to the service upon said
defendant of the writ on said case"
Whereupon he does move the court
to amend said record where it speaks
of services, by adding to the words
"the writ is dated Dec 4, 1901, and was
served on the said defendant, Dec. 10,
1901" the following to wit: "in ac-
cordance with the endorsement upon
the writ in the case which is the fol-
lowing language: Dec. 10, 1901. Service
on the within writ is hereby acknow-
ledged' (Signed) W. l. Thompson, At
torney for James w. Young"
The court granted the motion and di-
rected an amendment to be made in
accordance Herewith, subject to the
plaintiffs objections and exceptions.
1t is the opinion of the court that the
writ of error as it now stands cannot
be sustained; that the record when
extended is the only evidence admissi-
BILE to show error, is now too well es-
tablshed to require citation; that the
record if erroneous may be corrected
by an amendment authorized by the
court and must be regarded as true
until such amendment is made, is also
well settled. The record cited in the
present writ of error shows a proper
service of the writ. The amendment
is entirely independent of the writ Of
error and seeks to establish a record
showing an improper service of the
writ in the real action. This amend
ment should have been made and in
corpOrated in the record before it was
rocited in the writ of error Assuming
arguendO, that the amended record
would show defective service of the
writ it was not the record attacked
by the writ of error. The amendment
was authorized and allowed after the
writ of error had been entered in court
and no amendment of the latter writ,
setting forth the amended record. was
presented or granted by the court.
This writ of error therefore must stand
or fall upon the record that it presents,
which shows legal service of the
writ
This being true the judgment by de-
fault in the real action against the de-
PENDANT. Young, of Mar. 2S, 1902, is
still valid and must be regarded as
r"s judicata as to the premises therein
described.
The case must be determined upon
the evidence presented and not upon
evidences which might hereafter be Of
Tered. Footman vs.. Stetson, 50 Maine,
al to no i,,o,, 70,
al whether the judgment is reversible
or not. 1t has become evidence in the
case, is unreversed and unreversible
as the case is presented. and must
stand as the judgment of the court.
Game VS.. Brigham, SO Maine, 80; Cole
VS.. Butler, As Maine, 403
On the oath of August 1906, Jesse f.
Ames, the plaintiff in the real action
alluded to, brought another writ of
entry for possession of the same prem
ises described in the judgment on de-
fault. The judgment in the first real
action having adjudicated that the
premises described in the second real
action were in the plaintiff. Ames. the
entry according to the stipulation in
the report must be.
Judgment for the plaintiff in the real
action. Judgment for the defendant
in the writ of error.
Edward Stevenson vs. George w.
Holmes.
Rescript, Spear. J.
This is an action in which the
plaintiff sought to recover of the de-
PENDANT the sum of $9270 for purchas-
ing and transporting a boat-load Of
herring from Boothbay Harbor to the
defendants wharf in PASSPORT.
The jury rendered a verdict for the
plaintiff for s93.73, the full amount
claimed with interest. The case
comes up on motion. The defendan.
admitted the purchase and conveyance
Of the herring by the plaintiff and the
reasonableness of the price charged
but claimed as a matter of law that
1t was the duty of the defendant, first
to procure a cargo of stringing her.
ring. and second, to exercise proper
care in sailing ,them so that they would
not deteriorate from decay on the voy-
age from~sBOothbay- to Eastport. At
the trial the defendant did not object
to the receipt of the herring upon the
first ground but did set up recoupment
in damages for the alleged want of
DIM