
    Maine Central Railroad vs. Coggins & Lapier.
    January Term, 1898.
    Present: Ross, C. J., Rowell, Tyler, Mdnson, Start and Thompson, JJ.
    
      V. S. 1298, sub. III. — Appeal prom Justice — Pleading in Excuse that Defendant Acted as Public Officer.
    
    That clause of Y. S. 1298, sub. III., which entitles the defendant to an appeal from the judgment of a justice when he pleads in good faith, in excuse or justification, that he was acting as a public officer, does not apply to a case where the defendant makes the claim for the first time after judgment, although within the two hours allowed for the taking of appeals.
    Petition for appeal from the judgment of a justice. Heard upon petition and agreed case at the June Term, 1897, Caledonia County, Taft, J., presiding.
    Petition dismissed. The petitioner excepted.
    
      Harry Blodgett for the petitioner.
    
      Harland B. Howe, Bates, May & Stmonds with him, for the petitionees.
   Rowell, J.

This is a petition for an appeal from the judgment of a justice. The action was trover for a mileage ticket. Neither the ad damnum in the writ, nor the sum demanded by the declaration, nor the specifications or exhibits of the plaintiff on trial, exceeded twenty dollars; and the verdict and judgment werefor $18.05 damages and $13.20 costs. The ticket contained a contract that it was good only for the person in whose name it was issued, and that if presented by any other person, the right to any remaining rides to which the purchaser might have been entitled, should be forfeited, and the conductor be authorized to take it up and return it to the general ticket office as forfeited. The ticket was presented by a person other than the one in whose name it was issued, whereupon the conductor took it up, pursuant to the contract, and that was the alleged conversion.

After verdict and judgment, the petitioner, the defendant in the action, claimed in good faith that in operating its road it was a public officer, and was acting as such, as well as within the contract, in taking up the ticket, and therefore prayed for an appeal, which was denied, for that the action was not appealable.

The petitioner claims that the case comes within that exception of the statute which makes an action appealable, though not otherwise so, if the defendant in good faith pleads in excuse or justification that he was acting as a public officer. But it does not appear that the petitioner so pleaded, nor that it put its defence on that ground, but on the ground that the contract justified the act, and that is the ground it takes here. The claim that the petitioner was acting as a public officer was first made, as far as appears, when an appeal was prayed for. Hence it is not necessary to decide whether it was a public officer within the meaning of the statute, nor the effect of claiming that character in good faith, for the want of the requisite plea makes the claim unavailable as a ground of appeal.

Judgment affirmed.  