Massachusetts rule in Maine

1932It is in evidence, and assented to by counsel as the law of these cases, that, under the Massachusetts rule, the burden was upon the' plaintiffs to establish the gross negligence of the defendant as held in Massaletti v. Fitzroy, 228 Mass., 487 , 118 N. E,. 168.

1932It is in evidence, and assented to by counsel as the law of these cases, that, under the Massachusetts rule, the burden was upon the' plaintiffs to establish the gross negligence of the defendant as held in Massaletti v. Fitzroy, 228 Mass., 487 , 118 N. E,. 168.

1930By agreement and stipulation the case was tried under the Massachusetts rule with the burden on the plaintiff of establishing the gross negligence of the defendant, as defined in Altman v. Aronson et als, 231 Mass., 588 ; Burke v. Cook, 246 Mass., 518 ; and Massaletti v. Fitzroy, 228 Mass., 487 , and her own due care, as defined in Shultz v. Old Colony Street Railway Co., 193 Mass., 309; Oppenheim v. Barkin, 262 Mass., 281 ; Lambert v. Eastern Massachusetts Street Railway Co., 240 Mass., 495 .

1930By agreement and stipulation the case was tried under the Massachusetts rule with the burden on the plaintiff of establishing the gross negligence of the defendant, as defined in Altman v. Aronson et als, 231 Mass., 588 ; Burke v. Cook, 246 Mass., 518 ; and Massaletti v. Fitzroy, 228 Mass., 487 , and her own due care, as defined in Shultz v. Old Colony Street Railway Co., 193 Mass., 309; Oppenheim v. Barkin, 262 Mass., 281 ; Lambert v. Eastern Massachusetts Street Railway Co., 240 Mass., 495 .

1997Cf. Scarpa v. Dubois, 38 F.3d 1 , 7 n. 4 (1st Cir.1994), cert. denied, 513 U.S. 1129 , 115 S.Ct. 940 , 130 L.Ed.2d 885 (1995) (Massachusetts standard for determining ineffective assistance of counsel, from which Maine test arose, is “functionally identical” to Strickland test). [¶ 16] The court erred when it stated that a defendant must demonstrate that counsel’s performance fell lower than that which is below an ordinary fallible attorney.

1997Cf. Scarpa v. Dubois, 38 F.3d 1, 7 n.4 (1st Cir. 1994) (Massachusetts standard functionally identical to Strickland test). [II35] The “measurably below” language set forth in Lang , thus, has been given a rich, context-based, functional definition by common law, case-by-case development.

1997Cf. Scarpa v. Dubois, 38 F.3d 1 , 7 n. 4 (1st Cir.1994), cert. denied, 513 U.S. 1129 , 115 S.Ct. 940 , 130 L.Ed.2d 885 (1995) (Massachusetts standard for determining ineffective assistance of counsel, from which Maine test arose, is “functionally identical” to Strickland test). [¶ 16] The court erred when it stated that a defendant must demonstrate that counsel’s performance fell lower than that which is below an ordinary fallible attorney.

1997Cf. Scarpa v. Dubois, 38 F.3d 1 , 7 n. 4 (1st Cir.1994), cert. denied, 513 U.S. 1129 , 115 S.Ct. 940 , 130 L.Ed.2d 885 (1995) (Massachusetts standard for determining ineffective assistance of counsel, from which Maine test arose, is "functionally identical" to Strickland test). [¶ 16] The court erred when it stated that a defendant must demonstrate that counsel's performance fell lower than that which is below an ordinary fallible attorney.

1997Cf. Scarpa v. Dubois, 38 F.3d 1 , 7 n. 4 (1st Cir.1994), cert. denied, 513 U.S. 1129 , 115 S.Ct. 940 , 130 L.Ed.2d 885 (1995) (Massachusetts standard for determining ineffective assistance of counsel, from which Maine test arose, is “functionally identical” to Strickland test). [¶ 16] The court erred when it stated that a defendant must demonstrate that counsel’s performance fell lower than that which is below an ordinary fallible attorney.

1997Cf. Scarpa v. Dubois, 38 F.3d 1 , 7 n. 4 (1st Cir.1994), cert. denied, 513 U.S. 1129 , 115 S.Ct. 940 , 130 L.Ed.2d 885 (1995) (Massachusetts standard for determining ineffective assistance of counsel, from which Maine test arose, is "functionally identical" to Strickland test). [¶ 16] The court erred when it stated that a defendant must demonstrate that counsel's performance fell lower than that which is below an ordinary fallible attorney.

1997Cf. Scarpa v. Dubois, 38 F.3d 1 , 7 n. 4 (1st Cir.1994), cert. denied, 513 U.S. 1129 , 115 S.Ct. 940 , 130 L.Ed.2d 885 (1995) (Massachusetts standard for determining ineffective assistance of counsel, from which Maine test arose, is “functionally identical” to Strickland test). [¶ 16] The court erred when it stated that a defendant must demonstrate that counsel’s performance fell lower than that which is below an ordinary fallible attorney.

1997Cf. Scarpa v. Dubois, 38 F.3d 1 , 7 n. 4 (1st Cir.1994), cert. denied, 513 U.S. 1129 , 115 S.Ct. 940 , 130 L.Ed.2d 885 (1995) (Massachusetts standard for determining ineffective assistance of counsel, from which Maine test arose, is "functionally identical" to Strickland test). [¶ 16] The court erred when it stated that a defendant must demonstrate that counsel's performance fell lower than that which is below an ordinary fallible attorney.

1970Our Court, in State v. Doran, 1904, 99 Me. 329 , 59 A. 440 , has approved the Massachusetts doctrine that in such cases a general intent to steal goods completes the offense and the averment of such intent without more, i. e., in general terms, is sufficient.

1970Our Court, in State v. Doran, 1904, 99 Me. 329 , 59 A. 440 , has approved the Massachusetts doctrine that in such cases a general intent to steal goods completes the offense and the averment of such intent without more, i. e., in general terms, is sufficient.

1970Winslow v. Tibbetts, 1932, 131 Me. 318 , 162 A. 785 .

1970Winslow v. Tibbetts, 1932, 131 Me. 318 , 162 A. 785 .

1968Jackson v. Denno, supra, footnote at page 386, 84 S.Ct. at page 1786 , 12 L.Ed. at page 924.

1968Jackson v. Denno, supra, footnote at page 386, 84 S.Ct. at page 1786 , 12 L.Ed. at page 924.

1968We have followed the Massachusetts rule in Maine and as we have already applied the rule of Jackson prospectively in State v. Merrow, 161 Me. 111 , 208 A.2d 659 (1965), where we examined its requirements in detail, it will be sufficient for these purposes to describe it as one under which the trial judge conducts a hearing in the jury’s absence on the question of voluntariness of the confession.

1968We have followed the Massachusetts rule in Maine and as we have already applied the rule of Jackson prospectively in State v. Merrow, 161 Me. 111 , 208 A.2d 659 (1965), where we examined its requirements in detail, it will be sufficient for these purposes to describe it as one under which the trial judge conducts a hearing in the jury’s absence on the question of voluntariness of the confession.

1967The practice in Massachusetts in courts of general jurisdiction was that described in Dowdican’s Bail (supra).

1967The practice in Massachusetts in courts of general jurisdiction was that described in Dowdican’s Bail (supra).

1967As described in Marks v. Wentworth, (1908) 199 Mass. 44 , 85 N.E. 81 the Massachusetts rule permitted courts, with the defendant’s consent, after verdict or guilty plea to file without sentence.

1967As described in Marks v. Wentworth, (1908) 199 Mass. 44 , 85 N.E. 81 the Massachusetts rule permitted courts, with the defendant’s consent, after verdict or guilty plea to file without sentence.

1959See Blair v. Blair, 122 Me. 500 , 122 A. 902 ; Trust Co. v. Dudley, 104 Me. 297 , 72 A. 166 ; Weld v. Putnam, 70 Me. 209 . *416 The real point in issue is whether that proportion of the net income derived from property subsequently used in payment of debts, legacies and expenses shall be considered income for the life beneficiary (the Massachusetts rule), or added to the principal of the residue (the New York rule).

1959See Blair v. Blair, 122 Me. 500 , 122 A. 902 ; Trust Co. v. Dudley, 104 Me. 297 , 72 A. 166 ; Weld v. Putnam, 70 Me. 209 . *416 The real point in issue is whether that proportion of the net income derived from property subsequently used in payment of debts, legacies and expenses shall be considered income for the life beneficiary (the Massachusetts rule), or added to the principal of the residue (the New York rule).

1959See Blair v. Blair, 122 Me. 500 , 122 A. 902 ; Trust Co. v. Dudley, 104 Me. 297 , 72 A. 166 ; Weld v. Putnam, 70 Me. 209 . *416 The real point in issue is whether that proportion of the net income derived from property subsequently used in payment of debts, legacies and expenses shall be considered income for the life beneficiary (the Massachusetts rule), or added to the principal of the residue (the New York rule).

1959See Blair v. Blair, 122 Me. 500 , 122 A. 902 ; Trust Co. v. Dudley, 104 Me. 297 , 72 A. 166 ; Weld v. Putnam, 70 Me. 209 . *416 The real point in issue is whether that proportion of the net income derived from property subsequently used in payment of debts, legacies and expenses shall be considered income for the life beneficiary (the Massachusetts rule), or added to the principal of the residue (the New York rule).

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1940In Roberson v. Draney, supra, the court in a dictum, 53 Utah, page 272, 178 P., 35 , follows the Massachusetts doctrine but holds that a plaintiff to be entitled to relief under it must show either an injury to his property rights by reason of the acts complained of, or that the corporation has suffered a tangible wrong.

1940In Roberson v. Draney, supra, the court in a dictum, 53 Utah, page 272, 178 P., 35 , follows the Massachusetts doctrine but holds that a plaintiff to be entitled to relief under it must show either an injury to his property rights by reason of the acts complained of, or that the corporation has suffered a tangible wrong.

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1940Beal v. Smith, 46 Cal. App., 271 , 189 P., 341 ; Parker v. Boyle, 178 Ind., 560 , 99 N. E., 986 ; Datillo v. Roaten Creek Oil Co., 222 Ky., 378 , 300 S. W., 854 ; American Forging and Socket Co. v. Wiley, 206 Mich., 664 , 173 N. W., 515 ; Allenhurst Park Estates, Inc. v. Smith, 101 N. J.

1935In Alford v. Richardson, supra, on page 321, appears a quotation from Corkery v. Dorsey, supra, but ,we, do .not consider that the Massachusetts rule is for that reason, adopted in Maine.

1935In Alford v. Richardson, supra, on page 321, appears a quotation from Corkery v. Dorsey, supra, but ,we, do .not consider that the Massachusetts rule is for that reason, adopted in Maine.

1934Davenport v. Shants, 43 Vt., 546 ; Buzzell v. Cummings, 61 Vt., 213, 218 , 18 Atl., 93 ; Page v. Edwards, 64 Vt., 124 , 23 Atl., 917 .” The Vermont case, thus, having specifically stated that it did not adopt the Massachusetts rule and that Vermont made an exception in favor of the conditional sale vendor, then further said: “The exception carried to its logical result, exempts the annexations in question from the mortgage.” It is to be noted that the annexations in question in the Vermont case were those made not by the mortgagor but by Tucker, the lessee of the mortgagor.

1934Davenport v. Shants, 43 Vt., 546 ; Buzzell v. Cummings, 61 Vt., 213, 218 , 18 Atl., 93 ; Page v. Edwards, 64 Vt., 124 , 23 Atl., 917 .” The Vermont case, thus, having specifically stated that it did not adopt the Massachusetts rule and that Vermont made an exception in favor of the conditional sale vendor, then further said: “The exception carried to its logical result, exempts the annexations in question from the mortgage.” It is to be noted that the annexations in question in the Vermont case were those made not by the mortgagor but by Tucker, the lessee of the mortgagor.

1934Davenport v. Shants, 43 Vt., 546 ; Buzzell v. Cummings, 61 Vt., 213, 218 , 18 Atl., 93 ; Page v. Edwards, 64 Vt., 124 , 23 Atl., 917 .” The Vermont case, thus, having specifically stated that it did not adopt the Massachusetts rule and that Vermont made an exception in favor of the conditional sale vendor, then further said: “The exception carried to its logical result, exempts the annexations in question from the mortgage.” It is to be noted that the annexations in question in the Vermont case were those made not by the mortgagor but by Tucker, the lessee of the mortgagor.

1934Davenport v. Shants, 43 Vt., 546 ; Buzzell v. Cummings, 61 Vt., 213, 218 , 18 Atl., 93 ; Page v. Edwards, 64 Vt., 124 , 23 Atl., 917 .” The Vermont case, thus, having specifically stated that it did not adopt the Massachusetts rule and that Vermont made an exception in favor of the conditional sale vendor, then further said: “The exception carried to its logical result, exempts the annexations in question from the mortgage.” It is to be noted that the annexations in question in the Vermont case were those made not by the mortgagor but by Tucker, the lessee of the mortgagor.

1934The maxim ‘Expressio unius est exclusio alterius’ may be pertinently invoked.” The Massachusetts rule, so-called, is based upon a conception of the common law, prevalent up to the publication of Tyler v. Wilkinson, supra, discarded since by the courts both of England and America, and negatived by Chancellor Kent.

1934The maxim ‘Expressio unius est exclusio alterius’ may be pertinently invoked.” The Massachusetts rule, so-called, is based upon a conception of the common law, prevalent up to the publication of Tyler v. Wilkinson, supra, discarded since by the courts both of England and America, and negatived by Chancellor Kent.

1934“A mill owner can at any time appropriate for raising and maintaining a head of water for working his mill so much space in the river valley as has not already been appropriated by some other mill owner for his own mill.” Fibre Co. v. Electric Co., 95 Me., 318, 49 A., 1095 .

1934“A mill owner can at any time appropriate for raising and maintaining a head of water for working his mill so much space in the river valley as has not already been appropriated by some other mill owner for his own mill.” Fibre Co. v. Electric Co., 95 Me., 318, 49 A., 1095 .