Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1915-05-26

We are q the opinion that the true
inference to be drawn from the IN.
questionable facts q that the tram
saction Ia question IVES not a mort
Ga9es but Z conditional saie II any
thing: The delay Of ninstseu years II
utterly Inconsistent with the conten-
ton that the deed absolute In form
was q mortgage. Men do not slumber
on their rights In this way. Maxwell
most certainly would have not ex-
pended his labor and applied his per-
sonal skill as an orchardist, to have
them both consumed in the INADEQUATE
return to be found, in an accounting.
and amount due for redemption. His
natural skill. the bestowal Of which
upon an orchard makes the difference
between a thrifty. good bearing tree
and a scrubby worthless one, so COM
monty contrasted. side by side, in ad-
jacent ownership. Maxwell will have
entirely lost. as he can recover nothing
for the prosperous condition of the or
chard. That he would have wasted
his entire time and energy, for the best
part OF his life. upon an orchard he
did not consider his own seems absurd
and preposterous. From the inherent
evidence Of the whole case. it is appar.
ent Maxwell never understood he was
giving a mortgage and accordingly no
such mutually Of understanding is
FOUND as Is necessary to establish
proof OF a mortgage.
Appeal sustained.
Bill dismissed with costs.
Received May oath. 1915.
Marshall G. Cole, libellant, We. LII
liam Cole. Rescript. Spear. J.
This case involves the trial Of a
libel for divorce and comes up on ex-
eeptions to the rulings Of the Judge of
the superior court, at Kennebec
county. on questions Of law
The first exception is based upon
the refusal Of the presiding judge to
grant a motion for continuance.
The second exception is based upon
the contention that it appeared upon
the face Of the papers that no legal
service Of the libel was made upon
the defendant and that consequently
the court had no Jurisdiction. This
contention is founded upon the fact
that the libel was inserted in a writ OF
attachment with an order to attach
property OF the value Of 500, while
the officers return shows that he made
a nominal attachment Of "a chip" In
other respects no complaint is made Of
the service.
The third exception Is founded upon
the contention that the writ declares
"in q libel for divorce" instead Of "a
plea Of libel for divorce" and that the
phrase in a plea or is necessary In
a writ Of attachment
The fourth exception is that the al
legation in the libel sets out an i'm
possible date Of marriage. it being
averred that three children were born
prior to the date Of the writ. But this
anachronism was clearly a clerical
error and amendable at the discretion
Of the court.
The fifth exception raises the ques-
ton Of pleading whether, under the
last clause Of section two, 1t is ne
cessary to allege the absence Of col
fusion. But this Is a matter OF proof
and not OF pleading.
The sixth question AYERS that the
writ fails to set forth the necessary
allegation that there was a lawful
marriage" The complaint of this al
legation is that the word lawful" is
omitted.
After these proceedings the defen-
dant filed a general demurrer. which
was joined and overruled by the pre-
| siding Judge. All the questions which
| are raised by the demurrer having been
| disposed Of in the foregoing excep-
lions the ruling must be sustained.
Exceptions overruled.
Received May oath, 1915.