26 Me. 18 | Me. | 1846
The opinion of the Court was drawn up by
— This cause is brought before us under the belief, entertained by the parties, that it comes within the act of 1845, ch. 172, which provides^ that “whenever it shall happen in the trial of any cause in the District Court, that any one or more questions of law arise, it shall be lawful for the Judge, with the consent of the parties* to draw up a report of the case, presenting the • legal points for decision, and containing such stipulations as the parties may make, relative to the disposition of the case by nonsuit, default or otherwise and that the same shall be transferred to this Court for decision.
It will be important, in the first place, to ascertain the true intent and meaning of the Legislature, as contained in this enactment. Was it intended, that a cause in which some incidental and incipient question might arise, should, thereupon,
But there are other weighty objections to our taking cognizance of it. The writ originally contained but one count; and that was on an alleged agreement, on the part of the defendant, with the plaintiffs, to become insurer by a policy to be effected on the schooner Oxford. Before issue was joined a motion was made for leave to amend by declaring upon a policy as actually made 'for the purpose. This motion was neither granted nor refused; and yet the cause was allowed to proceed to trial, seemingly as if it had been made. And the case states, that it was agreed between the parties, if this Court should be of opinion, that the amendment was admissible, it should be considered as having been made. By the statute it would seem that it was in contemplation, that a trial should be had in the District Court, and that questions of law might arise therein, on which a final decision would depend. Can a cause, when such an amendment was proposed, and undecided upon, be considered as proceeding to trial; especially if the maintenance of the cause depended upon its introduction ? It is difficult to perceive why the amendment should not have been admitted. Barker & al. v. Burgess & al. 3 Metc. 273. And if admitted, it might have constituted the only basis upon which the action could have been maintained; and very clearly the only foundation for the question, which it is said, in the latter part of the report, the parties had agreed, alone, to submit to our decision, viz: “ whether a contract of insurance was effected.”
But the graver objection to our taking cognizance of the cause is, that the question, as to the efficacy of the contract, is one not of law purely, but a mixed question of law and fact.
On the whole, therefore, we cannot regard the question, intended to be submitted to us, as one of law unmixed with matter proper for the consideration of the jury; and the cause must be dismissed from our jurisdiction.