City of Portland v. Rolfe , 37 Me. 400 ( 1854 )

ShepEey,. O. J.

—The exceptions' have reference only to* the authority to prosecute the suit in the name of the city-.That was a preliminary question to be decided by the Court-

The testimony of Stephen Frothingham, stating a. conversation in a meeting of the Mayor and Aldermen, was illegally received. “ It was shown, that the writ was made by direction of the Mayor and while the suit was pending,.it was,, by a vote in a regular meeting of the Mayor and Aldermen, approved. It was made their duty, by the fifth section of the Act approved June 2, 1851, c- 211, to commence suits in behalf of the city, against any persons guilty of a violation of any of the provisions of that Act, “ on being informed of the same and being furnished with proof of the fact-" The-purpose of this clause is fo declare under what circumstances, that duty should be imposed upon them. It was not necessary that such a state of facts as would require them to commence the suit, should be proved to the Court before.the suit could be prosecuted in the name of the city- There-having been sufficient legal testimony presented to the Court to require It to decide, that the suit was legally authorized! to be prosecuted, the decision was correct, and the defendant could not have been aggrieved- by the reception of illegal testimony to pfove to the Court, on a preliminary question, the same, facts proved by legal testimony.

Exceptions overruled.

Howard, Rice, Hathaway and! Cutting, J. J., concurred-