Curtis v. Downes , 56 Me. 24 ( 1868 )

Kent, J.

— This is a special action on the case against these defendants, selectmen of the town of Presque Isle, for not executing and delivering to the plaintiff a town order, according to the vote of the town.

The counsel for the plaintiff admits that he cannot recover unless it is established that the defendants acted wilfully and purposely, and therefore (legally) with malice.

There are several difficulties in the way of recovery by the plaintiff. The case was referred to the presiding Judge with the right to except in matters of law. It comes up on exceptions to the ruling of the Judge, (pro forma, as it is stated,) that "judgment be for the defendants.”

There is no statement of any ruling on any question of law. Certain facts are set forth as admitted before the Judge. According to the view of the counsel, before stated, the question of fact, on which the case turned, was whether the selectmen acted wilfully and maliciously. Now the Judge must have either decided this question in favor of the defendants, or he must have intended to refer this question of fact to us, as a law Court. If the former, no exceptions to such finding of facts can be allowed. If the latter, it is, to say the least, irregular; for wo are not usually, under a bill of exceptions, to determine controverted matters of fact. ' •

We see no question arising from any rulings as matter of law.

If we were called upon to determine whether, upon the facts agreed, the plaintiff had proved a wilful and malicious act or refusal on the part of the defendants, we should find great difficulty in establishing that proposition.

The town voted a bounty or gratuity to certain persons ; authorized and directed the selectmen to draw orders. The plaintiff presented to defendants prima facie evidence that he was one of the persons named in the vote, and made demand for the order; the selectmen, without asking for delay, and without assigning any reason, refused to give the order; and within ten days after, this suit was instituted. We could hardly pronounce, without other facts, that, as matter of law, the refusal and delay was wilful and malicious, or that it must necessarily be inferred as a fact that it was so. Exceptions overruled.

Appleton, C. J., Walton, Barrows and Daneorth, JJ., ■ concurred.