Stanton v. Hatch , 52 Me. 244 ( 1863 )

The opinion of a majority of the Court was drawn by

Appleton, C. J.

By R. S. of 1860, c. 164, § 8, "No judgment of any trial justice shall be considered regular unless he shall be present with the plaintiff’s writ at the place appointed for trial, within one hour after the. time set in such writ, or unless the case be continued by some justice pursuant to the provisions of the Revised Statutes.”

The writ in this case was returnable before Moses Whittier, Esq., a trial justice of Kennebec county, "at his dwellinghouse, to wit, at his office in Readfield, in said county.” Prom the record of the magistrate, it appears that the action was entered before him at his office, being the office of Emery O. Bean, in Readfield, "a place separate and at a short distance from my (his) dwellinghouse in said Readfield.”

The record shows that the action was not entered at the place appointed for trial, if that place was the dwelling of the magistrate, nor was said justice there, nor was the action continued by any other justice, nor was there an adjournment from the place designated to that where the trial was had.

The office of a videlicet, among other things, is, "to particularize that which was before general, and to explain that which is indifferent.” 1 Chitty’s PL, 350, note. But the place of trial is not a matter indifferent or which can be so regarded.

The place of trial was at the dwellinghouse of the magistrate before whom the trial was to be. The writ not having ever been entered there, the cause, according to the provision of the statute, as well as to the whole course of authorities on the subject, was discontinued. Martin v. Fales, 18 Maine, 23; Spenser v. Perry, 17 Maine, 413.

Judgment for the defendant.

Davis, Walton, Dickerson and Danforth, JJ., concurred.