53 Me. 107 | Me. | 1865
This is an action on a policy of insurance by the defendants. The writ sets forth a loss within the terms of the policy, and that the defendants, " on the sixteenth day of November, had due notice and proof thereof, according to the conditions of the policy.”
By the 9th Rule of Court, 37 Maine, 570, "parties filing specifications of the nature and grounds of defence with the clerk, * shall, in all cases, be confined, on the trial of the action, to the grounds of defence therein set forth ; and all matters set forth in the writ and declaration, which are not specifically denied, shall be regarded as admitted for the purposes of the trial.”
When the cause came on for trial, the plaintiff had not been legally notified that he would be expected to prove notice of the loss. Indeed, he was entirely justified in regarding the allegations in the writ, in reference thereto, as admitted. Stevens v. Adams, 45 Maine, 611.
Specifications are amendable. If requested, it was within the discretion of the presiding Judge to have allowed their amendment. But the question of such allowance was for him and not for this Court.
The learned counsel for the defendants refers us to the requirements, as to notice, under the Act of 1861, c. 34, § 5. But the specifications do not refer to this section. No question in reference thereto was made at the trial.
By R. S., 1857, c. 82, § 26, no motion in arrest of judgment can be entertained after verdict. The objection now raised was not taken at nisi prius and is not properly before us.
It may well be doubted whether more was intended by c. 34, § 5, than that the preliminary proof therein set forth should, in all cases, be deemed sufficient to authorize the plaintiff to maintain his suit,. — for the language is — "no other preliminary proof of any kind shall be required before commencing an action,” &c. In other words this shall suffice. But it does not interdict the maintenance of the suit, when the notice required by the conditions of the policy has been given.
