Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1915-10-23
IN CASES
FROM kENllEBEc
AND SAeADlHOc

Kennebec County-M Walter TObey
VS.. James r. B. Dinsmore-
Rescript, Spear. J.
This is an action of trespass quare
clausam, and turns upon the inquiry,
whether the plaintiff proved any title
to the locus. or in the last analysis.
possession at the, time Of the, alleged
trespass, as the defendant pleaded title
in himself
1t is a familiar rule that, under this
plea. the plaintiff must rely upon the
strength Of his own title. The case
was tried before single justice who
found in favor Of the plaintiff. At the
outset it may be said the defendant
proved no title in himself II there
fore comes to the inquiry whether there
was any evidence, upon which the sit
ting justice was authorised to ind
either title OF possession in the plain
tiff. We think there was.
It is quite clear that the plaintiff
was in possession of the locus claimed
by him at the time of the alleged tres
pass. Such inference being warranted.
Held Possession will sustain an action
against a mere trespasser.A
Exceptions overruled
Received Oct 81, 1915.
Sagadahoc County-Verson D. Coombs
VS. James E Hogan. Executor.
Rescript. Spear, J.
AS appears by the agreed statement,
this Is an action on an account annexed
brought by verson D. Coombs against
the goods and estate Of Hannah B. Ho-
gan, late Of Bath. in the county of Sag
adahoc.
AS appears by the writ, the officer
was directed to attach the goods and
estate which were Of Hannah B. Ho-
gan, late of Bath, in the county Of Sag
adahoc and State of Maine. deceased
in the possession Of James E. Hogan
Of said Bath, executor of the last will
and estate Of said Hannah B. Hogan,
to the value Of one thousand dollars.
and summon the said defendant in his
said capacity as executor"
A special appearance in this action
was entered by attorneys for the ex-i
ecutor of the last will and testament
of Hannah B. Hogan. who as it also
appears by the agreed statement is
James E. Hogan, of Portsmouth, in tn.
state Of New Hampshire
The first question at issue under the
agreed statement, is whether any de-
PENDANT is named in the writ. We are
unable to discover any good reason why
there is not. A reading of the declare
ton does not leave the least doubt upon
the mind, that the plaintiff has sued
the executor of the estate for hill
due from the estate to the plaintiff.
NO misunderstanding regarding this
question seems possible The objec-
ton therefore to the form of the plead
ing is purely technical and, if sus-
tanned, must be for want of statutory
requirement in the pleading The stat
Ute simply provides that an executor
may be sued, but prescribes no form
of action
The hrst inquiry to be made is. is an
executor, in an action against him. a
defendant? An affirmative answer is
irresistible. The estate is in the hands
OF the executor. He is the only person
against whom an action is authorized
or can be instituted for claim against
the decedent. Where only one executor
is named, he alone is the only indiyid-
uai who can represent the estate: who
can sue and be sued In such case:
~ 'ho e1.ecutoI- ana the person
named as executor. are always one and
'he same CD If the executor is a
oe1enaant the person named as execu-
tor is the same defendant.
The second question raised by the
oeiehdant rs without merit In accord
ance with the stipulations.
Case remanded to nisi for trial.
Received October 21 1915.