Bolster v. Inhabitants of China

• Decision Date: 31 May 1877
• Citation: 67 Me. 551
• Parties: DAVID B. BOLSTER v. INHABITANTS OF CHINA, appellants.
• Court: Maine Supreme Court

67 Me. 551

DAVID B. BOLSTER v. INHABITANTS OF CHINA, appellants.

Supreme Judicial Court of Maine.

May 31, 1877

ON EXCEPTIONS.

ASSUMPSIT originally before a trial justice, on account annexed, for medical attendance, $16.50 " being for his professional services as a physician, and taking care of, attending and furnishing to Seth Hallowell, pauper of said town of China," etc.

The judgment before the trial justice was for the plaintiff; and the defendants appealed.

At the trial in this court the plaintiff moved to amend by inserting a count, under R. S., c. 24, § 32, as follows:

" Also for that one Seth Hallowell at said China, to wit, at said Augusta, in the county of Kennebec aforesaid, on the 27th day of April, A. D. 1873, a pauper, had his legal settlement in said China, and fell into distress and stood in need of immediate relief and medical attendance and medicine, of which the selectmen and overseers of the poor of said town were then and there duly notified and requested to provide for said pauper and to pay the expense of necessary nursing, medical attendance and medicine; and the said medical attendance and medicine in the account annexed were then and there necessary for the immediate relief and comfort of said Hallowell. And the said plaintiff then and there, at the instance and upon notice to the selectmen and overseers as aforesaid, rendered his professional services as a physician and furnished necessary medicine to said Hallowell, for which services and medicine sixteen and 50-100 dollars is a reasonable compensation. Whereby said town became liable and in consideration thereof then and there promised the plaintiff to pay him the same on demand."

The judge ruled as matter of law that the amendment could be allowed without terms and it was so made. To which ruling the defendants alleged exceptions.

W. S Choate, for the defendants, cited authorities under various positions taken. Rowell v. Small, 30 Me. 30. Rules of Court, V. Maberry v. Morse, 43 Me. 176. State v. Folsom, 26 Me. 209. Rand v. Webber, 64 Me 191. Matthews v. Blossom, 15 Me. 400. Frye v Atlantic & St. Lawrence, 47 Me. 523.

O. D. Baker, for the plaintiff.

The amendment was rightly allowed. R. S., c. 82, § 9. Brewer v. East Machias, 27 Me. 489. Solon v. Perry, 54 Me. 493.

Where a court has power to allow an amendment upon terms in their discretion, that includes the power to say what terms, and when they have passed upon the terms, even if they say there shall be no costs, it is not reviewable.

The amendment, we say, was of form; but if of substance the ruling was right.

BARROWS J.

The amendment sets out with somewhat more formality the grounds of a claim, the nature and amount of which were distinctly made known to the defendants by the writ as it was originally made. Its allowance was clearly within the power of the presiding judge as defined by our statutes, rules of court, and decisions respecting amendments. Brewer v. East Machias, 27 Me. 489. Solon v. Perry, 54 Me. 493.

The burden of the defendants' complaint seems to be that the presiding judge ruled as matter of law that he had the power to allow it without imposing terms upon the plaintiff, and thereupon did so. The defendants say this is an infringement of Rule V (Reg. Gen.); that this amendment is matter of substance,...