Vickery v. Sherburne

Supreme Judicial Court of Maine

Vickery v. Sherburne

20 Me. 34

DecidedJune 15, 1841

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This text of 20 Me. 34 (Vickery v. Sherburne) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vickery v. Sherburne, 20 Me. 34 (Me. 1841).

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Opinion

By the Court,

As the question here raised may be one of frequent occurrence in practice, it may be desirable that the views of the Court on this point should be known. This was an action of replevin before the Municipal Court for the city of Bangor. The general issue was there pleaded, and judgment being rendered in that Court in favor of the defendant, an appeal was taken. At the trial in the District Court, the defendant intending to avail himself of a license, offered to prove the property replevied, to be in one Samuel Sherburne. The error on his part was, that he had not resorted to a brief statement in the Municipal Court, in which event the evidence would have been admissible. According to former decisions, the ruling of the Court below was correct. It has .been settled by decisions in Massachusetts, by their Court, in the construction of a statute similar in its language to our own (St. 1821, c. 76, $ 12) in the case of Holmes v. Wood, 6 Mass. R. 3, that under the plea of non cepit, the taking only can be controverted. That construction must be followed here. The defendant having filed no special plea, the evidence offered was inadmissible by virtue of St. c. 76, § 12. He can derive no aid from the provisions of St. 1831, c. 514, by which special pleading was abolished, inasmuch as having neglected to file the brief statement required by that act, he has not brought himself within its provisions. It is not necessary to determihe in this case whether the latter repeals the former statute and we leave that point undetermined.

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By the Court,

As the question here raised may be one of frequent occurrence in practice, it may be desirable that the views of the Court on this point should be known. This was an action of replevin before the Municipal Court for the city of Bangor. The general issue was there pleaded, and judgment being rendered in that Court in favor of the defendant, an appeal was taken. At the trial in the District Court, the defendant intending to avail himself of a license, offered to prove the property replevied, to be in one Samuel Sherburne. The error on his part was, that he had not resorted to a brief statement in the Municipal Court, in which event the evidence would have been admissible. According to former decisions, the ruling of the Court below was correct. It has .been settled by decisions in Massachusetts, by their Court, in the construction of a statute similar in its language to our own (St. 1821, c. 76, $ 12) in the case of Holmes v. Wood, 6 Mass. R. 3, that under the plea of non cepit, the taking only can be controverted. That construction must be followed here. The defendant having filed no special plea, the evidence offered was inadmissible by virtue of St. c. 76, § 12. He can derive no aid from the provisions of St. 1831, c. 514, by which special pleading was abolished, inasmuch as having neglected to file the brief statement required by that act, he has not brought himself within its provisions. It is not necessary to determihe in this case whether the latter repeals the former statute and we leave that point undetermined.

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20 Me. 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vickery-v-sherburne-me-1841.

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