same signification; and an indictment, which charges a respondent with
having uttered a counterfeit "bank note," is sufficient, within that section.
Ib.
9. Under the fourth section of chapter 96 of the Revised Statutes, the uttering,
passing and giving in payment a counterfeit bank bill are distinct offences; and
an indictment for uttering and passing such bill, averring the knowledge of
the respondent that the bill was counterfeit, is sufficient, though it do not al-
lege that the respondent uttered and passed it as a true bill. 1b.
10. The allegation, in an indictment for passing a counterfeit bank bill, that the
bill passed "was made in imitation of, and did then and there purport to be,
a bank note for the sum of five dollars, issued by the President, Directors and
Company of the Bank of Cumberland, by and under the authority of the
Legislature of the State of Maine," is merely an allegation that the bill was
fictitious, and is not an attempt to set forth the bill according to its legal ef-
fect and purport, in such way as to lay the foundation for a variance be-
tween the allegation and the terms of the bill. Ib.
11. It is discretionary with the Supreme Court, after they have adjudged an
indictment sufficient upon demurrer, to allow the respondent to plead anew,
and remand the case to the county court for trial, or not. Ib.
12. If resistance be made to the making of an aattachment, the persons resist-
ing will not be allowed, on trial of an indictment against them therefor, to
prove, in defence, that the process, upon which the attachment was about
being made, was sued out by connivance of the plaintiff and defendant
therein and of the officer, and was intended to be used by them for the
purpose of placing the property attached, which belonged to one of the re-
spondents, in the hands of insolvent and irresponsible persons, so as to de-
prive the owner of his property, or fraudulently compel him to pay money
in order to regain the possession of it. State v. Buchanan, et al., 573.
13. An indictment, which alleged, in the first count, that the respondent made
an assault upon one Smith, the said Smith "then and there being sheriff of said
county of Addison," and which charged him, in the second count, with having
"hindered and impeded a civil officer, under the authority of this State, to
wit, Adnah Smith, sheriff of the county of Addison aforesaid," and which
alleged, in both counts, that the said Smith was, at the time, in the "execution
of his said office," was held to allege, with sufficient certainty, in both counts,
that said Smith was sheriff of Addison county. State v. Hooker, 658.
14. And if it be alleged, in such indictment, that the sheriff, at the time of the
said assault and impeding, had in his hands a writ of execution against the re-
spondent, which issued on civil process, and that he was about to execute the
same by arresting thereon the body of the respondent, it is not necessary
to allege that he had demanded of the respondent payment of the sum due
on the execution. Ib.
15. And where it was alleged in the indictment, in such case, that the execution
was dated the 27th of September, and that it was delivered to the sheriff
while it was in full life, on the 6th day of October, and that it was attempted
to be served on the 7th day of November, and that it was made returnable in
sixty days from its date, it was held that it sufficiently appeared that the ex-
ecution was delivered to the sheriff within sixty days after its date, and that
the sheriff attempted to execute it within its life. Ib.
16. And the allegation that the said Smith was in the execution of his duty as
sheriff, and that, for want of property, on which to levy the execution, he
attempted to serve and execute said writ of execution, as he was therein
commanded, by arresting the body of the respondent, and that the respondent
then and there, well knowing that said Smith was sheriff of the county of Ad-
dison, and that he then and there had said writ of execution to serve and exe-
cute and was then and there attempting to serve and execute the same, did
then and there impede and hinder the said Smith, while attempting to serve
and execute said writ of execution, was held as sufficiently averring that the
sheriff had the execution in his hands at the time the resistance was made.
Ib.
17. And it is unnecessary to allege, in such indictment, the place, at which the
execution was delivered to the sheriff. Ib.
18. And, after a general verdict of guilty, it is no objection to the indictment, on
motion in arrest, that offences of different grades, and requiring different
punishments, are charged in the different counts. If any one or more of the
counts are sufficient, the court will render judgment upon such counts; and
if all the counts are sufficient, judgment will be rendered upon the count
charging the highest offence. Ib.
19. If a hearing be had before a magistrate, upon the complaint of a town grand
juror charging a person with the commission of a crime, and the respondent
be, by the magistrate, bound over for trial by the county court, and an in-
dictment be found against him, and, before a trial is had upon the indictment,
a witness, who testified before the magistrate, dies, evidence may be received,
on trial upon the indictment, to prove what that witness testified before the
magistrate. Ib.
20. And it is not necessary, on such trial, to prove the exact language used by
the witness in giving his testimony before the magistrate; it is sufficient, if
the substance of his testimony, as there given, be detailed. Ib.
21. If a sheriff, in attempting to execute a writ of execution on civil process,
which is delivered to him to be levied, break open the outer door of the
dwelling house of the execution debtor, where the debtor then is, with a
view of arresting the body of the debtor on the execution, such act is unlaw-
ful; and if, after the sheriff has entered the house, the debtor forcibly resist
the attempt of the sheriff to arrest him, and commit an assault and battery
upon the sheriff, an indictment will not lie against the debtor for so doing.
Ib.
DAMAGES, See CONTRACT 14; RECOGNIZANCE 7; TRESPASS 8.
1. Where, in an action brought before a justice of the peace upon a judgment
for less than $100, but which, with the interest upon it, would exceed $100
the declaration described the judgment correctly, and concluded, generally,
"to the damage of the plaintiff, as he says, one hundred dollars,” and in the
county court the plaintiff filed a new declaration, claiming to recover the
debt only, and making no claim for damages, it was held that the action should
not be dismissed for want of jurisdiction in the justice before whom it was
originally commenced. Parkhurst v. Spalding, 527.
DEBTOR AND CREDITOR, See ASSIGNMENT.
DECLARATION, See PLEADING.
DECLARATION IN OFFSET, See Book ACCOUNT 9, 10, 11.
1. The heir of an intestate has, immediately on the death of the ancestor, a
vested interest in his estate, which may be conveyed by deed. Hyde v. Bar-
ney, 280.
2. If the heir be a feme covert, her husband has an interest in the real estate, as
tenant by the curtesy, which may be conveyed, or which may be taken for
his debts. Ib.
3. When there is no latent ambiguity in a deed, the intention of the parties
must be ascertained from the instrument itself, and cannot be shown by parol
evidence. Pingry v. Watkins, 379.
DEMAND, See PROMISSORY NOTES 1, 6; TENDER 2.
1. When a deposition is taken ex parte, the magistrate must certify the reason
why the other party was not notified; and the court cannot judicially take
notice of any facts, as a reason for omitting to notify the party, which do not
appear from the certificate. Hopkinson, Adm'x, v. Watson et ux., Adm'rs, 91.
2. The omission, in the certificate, of the initial letter of the middle name of a
party is no reason for rejecting the deposition, when the party is, in other
respects, correctly described. Ib.
3. In the caption of a deposition all parties, both plaintiffs and defendants,
must be individually and correctly named. Haskins v. Smith et al., 263.
4. Where a deposition was taken and filed, to be used as evidence in a suit, and
the original deposition was destroyed by accident, it was held that a copy of
the deposition, the witness being still living,-could not be used as evi-
dence on the trial. Follett et al. v. Murray et al. & Tr., 530.
1. Under a clause in a devise, which provides that the devisees may have, use
and possess during their natural lives certain premises described, they pay-
ing the rents and taxes thereon, the devisees take an estate for life, which it
is competent for them to assign, or convey. Nason v. Blaisdell, 216.
DWELLING HOUSE, See EXECUTION 5.
1. An administrator may maintain an action for the recovery of the possession
of real estate, for the use of the heirs, until after a decree of distribution has
been made by the probate court. And in this respect it makes no difference
whether the descent was cast under the statute of 1797, or under the statute
of 1821. Mc Farland, Adm'r, v. Stone, 165.
2. But the administrator can only recover, in such case, according to the rights
of the heirs at the commencement of the action; and if the rights of some
of the heirs are barred by the statute of limitations, and the rights of others
are saved by their being under certain disabilities, the recovery will be of
those shares, only, which are not lost. Ib.
3. And in such case, the defendant having acquired a title by possession as
against some of the heirs, the remaining heirs, whose rights are saved from
the operation of the statute, will be tenants in common with the defendant.
Ib.
4. A disability, to save the operation of the statute of limitations in regard to
real estate, must exist in the heir at the time the right, or title, first descends
to him. Hence successive disabilities, though existing in the same person,
cannot exempt his right from the operation of the statute. Ib.
5. The doctrine of presumptive grants cannot be applied to a case, which is
within either the enacting or saving clause of the statute of limitations; it
applies only to cases which are not strictly within the statute. Ib.
6. In case of tenancy in common of real estate, the right of part of the tenants
to recover in ejectment is not affected by the fact that the rights of their co-
tenants are barred by the operation of the statute of limitations. Ib.
7. Any entry upon land, which puts in operation the statute of limitations
against him whose right is superior, creates an ouster. Ib.
8. It seems, that in ejectment, where the defence is adverse possession founded
on claim of title, the statute of limitations will bar all claim for the recovery
of the rents and profits, which accrued more than six years prior to the com-
mencement of the plaintiff's action. Ib.
9. A deed of land from one out of possession, which is void, under the statute
of 1807, by reason of the adverse possession of a third person, will not affect
the right of the grantor in such deed to maintain an action of ejectment
against such third person. Nason v. Blaisdell, 216.
10. Where the plaintiff, in an action of ejectment, proved that he had good title
to the demanded premises, as against the defendants, who were strangers in
possession of the premises, and, after the testimony on the part of the plain-
tiff was closed, and during a recess taken by the court, the defendants pro-
cured and put upon record an assignment to themselves of an outstanding
mortgage of the premises, executed by the grantor of the plaintiff to a third
person, which had become absolute through non-performance of the condi-
tion thereof, and the plaintiff thereupon, before the trial was resumed, ten-
dered to the defendants the amount due upon said mortgage, and brought
the money into court, and, after the mortgage deed and assignment had been
given in evidence by the defendants, offered to prove the fact of the tender, it
was held that that evidence should be received by the court, and that the
effect of the tender was to deprive the defendants of the right to defend under
the mortgage deed. Downer v. Bowman et al., 417.
11. The defendant, in an action of ejectment, is liable, if he were in possession
of the demanded premises at the time of the commencement of the plaintiff's
action; and for this purpose the time of the service of the writ is to be
treated as the commencement of the action. Mc Daniels v. Reed et al., 674.
12. And actual possession by the defendant is not necessary; it is sufficient if the
defendant have a deed of the premises, which has been recorded in the town
clerk's office of the town where the land lies, and claims to have purchased
the premises. Ib.
13. So the plaintiff, in ejectment, must also have a right of action at the time
of final judgment. If, therefore, the action be founded upon a mortgage, and
the defendant, at any time before final judgment, tender to the plaintiff the
amount due upon the debt secured by the mortgage and the costs in the
action of ejectment, the plaintiff's right of action upon the mortgage is ta-
ken away, and he can no longer claim judgment in his favor in the eject-
ment. Ib.
14. And if the plaintiff, in such case, claim title to the demanded premises by
virtue of several mortgage deeds, which describe distinct parcels of land, and
were given to secure distinct debts, the tender may be made of the amount due
upon the debts secured by part of the mortgage deeds, and the plaintiff's right
of action, as to the premises described in those deeds, will thereby be taken
away; and it makes no difference, in this respect, whether the deeds were
originally executed to different individuals, and have come to the present
plaintiff by assignment, or, Per HEBARD, J., whether they were all originally
given to the plaintiff. 16.
15. And it is not necessary, that the defendant, in such case, having made a
legal tender, should show that the tender has been kept good, and bring the
money into court; it is sufficient, to entitle him to a recovery, for him to
prove the making of the tender, and the refusal, on the part of the plaintiff,
to receive it. Ib.
ERROR, See AUDITA QUERELA.
1. An execution debtor is estopped from denying, on habeas corpus, the existence,
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