Bean v. Ayers

• Decision Date: 07 February 1878
• Parties: GUSTAVUS S. BEAN v. ARIEL S. AYERS, et als.
• Court: Maine Supreme Court

67 Me. 482

GUSTAVUS S. BEAN v. ARIEL S. AYERS, et als.

Supreme Judicial Court of Maine.

February 7, 1878

ON EXCEPTIONS.

CASE upon the defendants' accountable receipt for 1945 spruce and hemlock logs attached by the plaintiff, as a deputy sheriff, upon certain writs, of which that in Sheridan v Ireland, 66 Me. 65, was one. The writ in this case is dated November 23, 1876, and was entered at the January term 1877, when the defendants filed a general demurrer to the declaration, which was joined by the plaintiff and overruled by the court. The defendants filed exceptions.

Under the entry of the exceptions on the docket, the court ordered the entry: " To be argued in thirty days by the defendants or else judgment for the plaintiff." Arguments were furnished accordingly, but were not sent around to the justices of the law court.

On the first day of the April term, 1877, upon the consent of the plaintiff's counsel that the exceptions be sustained, and without the consent of the defendants' counsel, the presiding justice ordered the entry to be made on the docket " Exceptions sustained." On the second day, against the defendants' objection the justice allowed the plaintiff to amend his writ by filing a second count, setting out that the plaintiff was a deputy sheriff; that as such by virtue of seventeen certain writs, dated August 14, 1872, returnable to the supreme judicial court then next to be held, & c., on the first Tuesday of October, 1872; in which writs the following named persons were plaintiffs and Daniel E. Ireland of, & c., and certain logs then in Penobscot river in said county were defendants, giving the names, the first of which was John Sheridan. The declaration then sets out that the plaintiff attached the logs, and at the request of the defendants delivered the logs to them, " and thereupon the said defendants executed under their hands and delivered to the plaintiff an agreement in words and figures as follows, to wit: " Penobscot ss. August 23, 1872." Then follows the receipt, ipsisimis verbis, closing with the signatures. Then follows: " Whereby the said defendants then and there became liable to return said logs to said plaintiff on demand, or on failure so to do, indemnify and save harmless," & c., but not alleging any promise. Then follows an averment of the entry of the writ, the recovery of the judgments, the demand and refusal to return the logs and failure to save harmless, to the damage, & c.

To this new declaration, the defendant demurred specially, assigning for causes:

" First, that no venue or place is alleged in the said new declaration, where the said agreement therein set forth, was made by the said defendants with the said plaintiffs, or where the said causes of action therein stated, or any of them, are supposed to have accrued.

Second, that no consideration is alleged in said new declaration, according to the settled and established form of expression and practice, or in any way alleged therein, for said agreement therein set forth as made by the said defendants, with said plaintiff, or for the said causes of action or any of them set forth in said new declaration, and claimed by said plaintiff therein against said defendants.

Third, that the legal purport and effect of said agreement set forth in said new declaration as made by said defendants with said plaintiffs, is not directly alleged in said new declaration, but that the said agreement is therein improperly set forth in words and figures, and that the liability and promise of said defendants thereon, by recital and reference, is in form and manner improperly, circuitously, indirectly, argumentatively and insufficiently alleged and set forth. And also that the said new declaration is in other respects uncertain, informal and insufficient."

The presiding justice after joinder overruled this demurrer and adjudged the new declaration or second count good; and the defendants alleged exceptions.

W. S. Clark, for the defendants.

L. Barker, T. W. Vose & L. A. Barker, for the plaintiff.

PETERS J.

The two questions first presented in the exceptions arose in this way: A demurrer was filed to the plaintiff's declaration and overruled. The defendants excepting to the ruling, the case was marked law. At the next term of the court, (at nisi prius ) and before the case was considered by the law court, at the instance of the plaintiff and with the consent of the justice presiding, an entry was made upon the docket that the defendants' exceptions were sustained and the declaration adjudged bad. The plaintiff then amended his declaration upon the payment of costs, and at his request the cause was ordered to be in readiness for trial or further proceedings at the same term, both rulings of the court being objected to by the defendants.

We think the plaintiff had the right to have the entry made, the court assenting. The act was no more nor less than a waiver by the plaintiff of a previous ruling in his favor. There was no possible use in going above to have exceptions sustained when the same result was tendered below. This point places the defendants in the inconsistent attitude of opposing the doing of that which they were seeking to have done.

To our minds, the other objection is not well taken. The statute provides that, " at the next term of the court in the county where the action is pending, after a decision on a demurrer has been certified, by the clerk of the district to the clerk of such county, and not before, judgment shall be entered on the demurrer, unless the costs are paid, and the amendment or new pleadings filed on the second day of the term." This provision does not apply in favor of these defendants. It only reaches the condition of the plaintiff. The section of the statute allowed the plaintiff time and opportunity to amend his declaration upon payment of costs. He could take all the time allowed or not as he pleased. It is the defeated party only who needs the grace extended by the statute. Judgment shall be entered " on the demurrer" if he does not comply with the conditions imposed upon his right to proceed. Here no certificate had come or was to come from the law court. The necessity of it had been obviated. The conditions having been complied with by the plaintiff, the cause was then in a position for further trial, neither side being entitled to delay as a matter of strict legal right.

The plaintiff having amended his declaration, and the defendants being ordered to again proceed, they demurred specially to the new declaration. This, as amended, counts upon a receipt given to the plaintiff, an officer, for the safe keeping of property attached by him on certain writs. The objections set down for demurrer are: That no venue is alleged; that no consideration for the undertaking of the defendants is set out; that the operation and effect of the written contract is not directly averred in the declaration; and that reciting (as here) a written contract in its precise words and figures instead of declaring upon its legal force and effect is improper pleading.

Is a venue alleged? In the contract, recited in the declaration in hæ c verba, the prefix " Penobscot ss." appears at its head, signifying the official character of the document. The count declares that the logs were attached in Penobscot river in " Penobscot county" by an officer of the county. No other place is named therein. This is enough. The objection is of only a formal and most technical kind. A venue was originally employed to indicate the county from which the jury was to come. With us that is a matter regulated by law. In the early days of the law it was not the practice to aver a venue in Massachusetts. (See 5 Mass. 96). Still, it is to be confessed that the allegation of the venue gives symmetry and dress to the forms employed by the pleader, and its use is to be commended.

The necessity of stating a venue, even as a matter of form, is rather reluctantly confessed by the authorities. It is enough to name a place in the county without naming the county. Martin v. Martin, 51 Me. 366. Or the county only may be named without naming any place within the county, whenever, as here, the jurors are to be awarded de corpore comitatus. Bac. Ab. Visne or Venue; and cases there collected. The statement of only the county is not enough, however, where the place at which the alleged act is done gives to a particular plaintiff or against a particular defendant the right of action. Vide authorities already cited. When a venue is once stated, all matter following is drawn to it and qualified by it. And it may be laid upon the margin of the declaration or be stated in the body of it. Slate v. Post, 9 Johns. 81. Many cases to this effect may be found in the later editions of Chitty's Pleadings, in the notes. In State v. Corson, 10 Me. 473, 476, it was held a venue was sufficiently stated in a declaration in scire facias on a recognizance in a criminal case, by an allegation therein that the respondent was ordered by the magistrate to appear before the court of Common Pleas for " " " Penobscot county."

The next objection is, that no consideration is alleged. If this defect exists, the objection...