Butman v. Hobbs , 35 Me. 227 ( 1853 )

Shepley, C. J.

— The proceedings in forming an issue were authorized by the provisions of the statute,' c. 119, <§> 33 and 34. After it had been formed, any amendment of it was a matter to be submitted to the judicial discretion of the Court.

A trustee may, in certain cases, be discharged, when from a disclosure of the facts it appears to be doubtful, whether he is indebted to the principal. Such a rule is not applicable to a case like the present, in which the trustee appears to be chargeable, unless this result can be avoided by proof of facts put in issue by him. When, by the provisions of the statute, the jury are in such cases to decide upon the truth of the allegations made, to procure a discharge those facts must be fully proved by the trustee. He is in a condition similar to that of a debtor, who must offer full proof of payment.

To establish the alleged fact, that the building was burnt fraudulently or by design on the part of the principal, the proof should be such as to satisfy the jury beyond a reasonable doubt. Thurtell v. Beaument, 1 Bing. 339; Thayer v. Boyle, 30 Maine, 475.

With respect to the allegation of gross negligence it may be observed, that the burden was upon the company to relieve itself from payment of a sum apparently due. When it proposed to do this by proof of gross negligence on the part of the person, to whom the money was payable, there is stronger reason for requiring full proof.

Iu the case of Aeby v, Rapelye, 1 Hill, 9, the defendant proposed to prove usury; and instructions were requested, that they would not be entitled to a verdict, unless they had established the usury beyond a reasonable doubt. This was refused ; and the jury were instructed that it was enough if they were satisfied of the fact of usury. The Court held, that proof of usury to satisfy a jury beyond a reasonable doubt and proof to satisfy them of the fact was substantially the same.

In this case no distinction was made at the trial between the proof required to establish the different allegations put in issue. In the admission of counsel respecting the burden of proof, no such distinction was made. The reason why the counsel and the Court made no such distinction, if any should have been made, may have been, that the testimony introduced did not require it. Under such circumstances there can be no just cause of complaint, that no such distinction was made in the instructions to the jury.

Exceptions overruled.

Wells, Howard and Hathaway, J. J., concurred.