Charles Doe, of said Portland, esquire, administrator of the goods and estate of the said John Doe, and summon the said Charles Doe, as administrator as aforesaid, &c.

8. (Against a surviving administrator.) Same as above, with the insertion of the word "surviving" before "administrator." 9. (Against an executor.) Attach the goods and estate which were of John Doe (the testator), late of Portland, in the county of Cumberland, gentleman, deceased, in the possession of Charles Doe, of said Portland, esquire, executor of the last will and testament of the said John Doe, and summon the said Charles Doe in his said capacity, &c.

10. (Against an administrator with the will annexed.)

Same

as No. 7 to the word administrator, then,-administrator of the goods and estate which were of John Doe, at the time of his decease, with the last will and testament of the said John Doe annexed.

11. (Against an administrator de bonis non with the will annexed.) Administrator of the goods and estate which were of John Doe (the testator), at the time of his decease, with the last will and testament of the said John Doe annexed, not administered by Charles Doe, formerly executor of the said will, &c. 12. (Against a bank.) The president, directors, and company of the Atlantic Bank (or whatever its charter name is), a corporation established by law, and having its place of business in Portland, in the county of Cumberland.

13. (Against a corporation.) The Atlantic and St. Lawrence Railroad Company, a corporation established by law, having a place of business in Portland, &c.

14. (Against towns or counties.) (or county) of -, &c.

The inhabitants of the town

(m) In most instances the plaintiff may be described as the defendant is above.

1. (By an infant.) To answer unto Charles R. Roe, an infant under the age of twenty-one years, who sues this action by John Roe, of Portland, in the county of Cumberland, esquire, his next friend (or his father, or his guardian, as the case may be), 30

2. (By an idle person under guardianskip.)_ To answer unto Samuel Roe, of Iortland, in the county of Cumberland, who sues this action by Jacob Roe, of said Portland, esquire, his guardian, the said Samuel being under guardianship, to prevent his wasting his estate by idleness and excessive drinking,

&c.

3. (By an informer.) To answer unto John Roe, of Portland, in the county of Cumberland, laborer, who sues as well for the city of Portland aforesaid, as for himself.

(n) The kinds of actions usually commenced before trial justices are:

1. (Assumpsit.) In a plea of the case.

2. (Case.) In a plea of the case or trespass on the case. Actions in trover and for slander come under this plea.

3. (Covenant.) In a plea of covenant broken.

30a Boynton v. Clay, 58 Me. 236.

4. (Debt.) In a plea of debt.

5. (Replevin.) In a plea of replevin. 6. (Trespass.) In a plea of trespass.

(0) Every writ must contain a declaration wherein is set out the cause of action. The writ may contain one or more causes of action of the same nature, and each cause must be set out separately in what is called a count.

(p) DECLARATIONS IN ASSUMPSIT.

COMMON COUNTS.

1. (Money lent.) For that the said (defendant) at said on the day of, was indebted to the plaintiff in the sum of - dollars for money then lent by the plaintiff to the said (defendant) at his request]; and in consideration thereof, then and there promised the plaintiff to pay him that sum on demand; yet though requested, the said (defendant) has never paid the

same.

Any of the following causes may be substituted for that in the brackets:

2. (Account annexed.) According to the account annexed. 3. (Goods sold and delivered.) For goods then sold and delivered by the plaintiff to the said (defendant) at his request.

4. (Goods bargained and sold.) For goods then bargained and sold, by the plaintiff to the said (defendant) at his request.

5. (For money paid.) For money then paid by the plaintiff for the use of the said (defendant) at his request.

6. (For money received.) For money then received by the said (defendant) for the use of the plaintiff.

7. (Account stated.) For money found to be due from the said (defendant) to the plaintiff upon an account then stated between them.

8. These counts may now, by the rules of practice, be consolidated into one, thus:

$1

was

9. For that the said (defendant), on the day of indebted to the plaintiff in the sum of dollars, for goods then sold and delivered by the plaintiff to the said (defendant), at his request; and in the sum of dollars for work then done, and materials for the same provided, by the plaintiff for the said (defendant) at his request; and in the sum of dollars for money then lent by the plaintiff to the said (defendant) at his request; and in the sum of dollars for money then paid by the plaintiff for the use of the said (defendant) at his request; and in the sum of — dollars for money then received by the said (defendant) for the use of the plaintiff; and in the sum of- · dollars for money found to be due from the said (defendant) to the

81 2 Greenl. on Ev. 85, note 4.

plaintiff, upon an account then stated between them; and, in consideration thereof, then and there promised the plaintiff to pay him the several moneys aforesaid upon demand; yet the said (defendant) has never paid any of said moneys, but wholly neglects to do so.82

10. (Against a surviving partner.) For that the said (defendant), and one Fichard Roe, whom the said (defendant) has survived, late copartners under the firm name of Richard Roe & Co., at, on the day of, in the lifetime of said Roe, was indebted, &c., [as above, closing as follows]: Yet neither Richard Roe & Co., in the lifetime of the said Roe, nor the said (defendant), since the death of the said Roe, has ever paid the same.

11. (By surviving partner.) For that the said (defendant), on the day of -, at -,was indebted to the plaintiff, and one Richard Roe, whom the plaintiff has survived, late copartners in trade, under the firm name of Richard Roe & Co., &c., [as above, closing as follows]: Yet the said (defendant) has never paid the same to the said Richard Roe & Co., during the lifetime of said Roe, nor since said Roe's death, to the plaintiff. 12. (Against an administrator or executor.) For that the said (deceased), in his lifetime, at, on the day of, was indebted, &c., as above, closing as follows]: Yet neither the said (deceased), in his lifetime, nor since his decease, has the said (administrator or executor), ever paid the same.

13. (By an administrator or executor.) For that the said (defendant), at , on the day of, was indebted to said (deceased), in his lifetime, in the sum of dollars, for money then lent by the said (deceased) to the said (defendant), at his request, and then and there promised to pay the said (deceased) the same sum on demand; yet he never paid the same to the said (deceased) in his lifetime, nor to the plaintiff since the death of the said (deceased.)

The foregoing forms may be readily changed to what are called quantum meruit and quantum valebant counts; as,

14. (Quantum meruit.) For that the said (defendant), at on the day of, in consideration that the plaintiff, at his request, had done and performed certain labor and services for him, promised the plaintiff to pay him on demand, so much money as he reasonably deserved to have therefor; and the plaintiff avers, that he reasonably deserved to have therefor the sum of lars, of which the defendant then and there had notice; yet he has never paid the same.

dol

15. (Quantum valebant.) For that the said (defendant), at on the day of, in consideration that the plaintiff had sold and delivered divers goods to the said (defendant), at his request, promised the plaintiff to pay him so much money as the said goods were then and there reasonably worth; and the plaintiff avers, that they were then and there reasonably worth the sum of -dollars; and in consideration thereof the defendant promised the plaintiff to pay him that sum on demand; yet he has never paid the same.

32 1 Chitty's Prec. 43.

(9) ON PROMISSORY NOTES.

16. (Payee against the maker, payable on demand.) For that the said (defendant), at —, on the day of, A. D., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him or his order (or bearer), [on demand, dollars, and interest]; yet, &c.

17. (Same against same, payable on time.) [Same as above down to the brackets, then add]: in three months, and interest; and the plaintiff avers, that the said three months have elapsed; yet, &c.

The words in italics must correspond with the note, as well as all other matters of description.

18. (Holder on a note payable to bearer.) [Same as 16 down to *, then add]: one John Roe (the payee), to pay him or bearer dollars on demand, with interest; and the said John Roe, thereafterwards, on the same day, transferred and delivered the said note, then and still unpaid, to the plaintiff, who thereby became the lawful bearer thereof; by reason whereof the said (defendant) became liable, and in consideration thereof, then and there promised the plaintiff to pay him the contents of said note, according to the tenor thereof; yet, &c.

19. (Payee against the maker on a note payable by instalments.) [Same as 16 down to *, then add]: pay him or order dollars with interest annually; payable dollars in three months, dollars in six months, and dollars in twelve months; yet, though the said three months have elapsed, and dollars have become due, the said (defendant) has not paid the same, &c.

20. (Payee against the maker on a note payable, with interest annually, for the recovery of interest, principal not due.) [Same as 16 down to * then add to pay him or order dollars, in three years, with interest annually; and the plaintiff avers that two years of the said three years have elapsed, yet the said (defendant) has never paid the interest of the said dollars, nor any part thereof, for the said two years, but refuses, &c.

21. (Against a surviving signer.) For that the said (defendant), and one John Roe, then living, but since deceased, at, on theday of, A. D.-, by their promissory note, of that date, by them signed, for value received, promised the plaintiff to pay him or order dollars, on demand, and interest; yet neither the said (defendant) and said Roe, in the lifetime of said Roe, nor said (defendant) since said Roe's death, have ever paid the same.

22. (By surviving payee.) For that the said (defendant), at-, on the day of, A. D., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff, and one John Roe, then living, but since deceased, to pay them or order dollars on demand, with interest; yet the said (defendant) has never paid the same to the plaintiff and said Roe, in the lifetime of said Roe, nor since said Roe's death, to the plaintiff.

23. (By an administrator.) For that the said (defendant), at-, on the day of, A. D. -, by his promissory note of that date, by him signed, for value received, promised the said (deceased)

to pay him or his order dollars, and interest on demand; yet the said (defendant) never paid the same to the said (deceased) in his lifetime, nor since the death of the said (deceased), to the plaintiff.

24. (Indorsee against the maker.) For that the said (defendant), at, on the day of, A. D. -, by his promissory note, of that date, by him signed, for value received, promised one Charles Roe (the payee), to pay him or order dollars and interest, on demand; and the said Roe thereafterwards, to wit, on the same day, indorsed and delivered the said notes to the plaintiff, by reason and in consideration whereof the said (defendant) then and there promised the plaintiff to pay him the same sum, according to the tenor of said note.

(r) An owner of a negotiable promissory note, indorsed in blank, may maintain an action thereon in the name of any third person who consents thereto.33

25. (Indorsee against indorser.) For that one John Roe, at —, on the day of, A. D. —, by his promissory note of that date, by him signed, for value received, promised the said (defendant) to pay him or his order, dollars and interest, on demand; and the said (defendant) thereafterwards, to wit, on the same day, indorsed and delivered the said note to the plaintiff, and the plaintiff thereafterwards, to wit, on the day of, A. D. —, at , presented the said note, when due and payable, to the said John Roe for payment, who then and there neglected to pay the same, whereof the said (defendant) then and there had notice, and in consideration thereof promised the plaintiff to pay him the same sum and interest; yet, &c.

(s) A promissory note must contain a promise to pay a fixed and certain sum of money absolutely and unconditionally; and if it provides for the performance of some other act, or in the alternative, it thereby loses a distinctive quality of a promissory note. Hence a note payable in specific articles, or in the alternative, is not negotiable, and the statute of limitations will bar an action six years after its maturity, notwithstanding it may have been witnessed.35 No particular form of words is necessary to constitute a promissory note. It is sufficient if the instrument, fairly construed, contain a promise upon consideration, which, from the time of making it, cannot be complied with, or performed without the payment of money to the party holding it. A writing expressed in the words following, and signed by the maker, viz.: "Due John Roe or order, twenty dollars on demand," constitutes a negotiable promissory note. So does “A. B., Cr. By labor 163 days, at $4 per day, $67. Good to bearer, W. V." 36a

(t) A note payable in cash or specific articles on demand, is the evidence of a promise in the alternative; and a demand of payment before suit is brought is necessary, that the maker may elect the mode of payment. And since a demand is necessary, it must be alleged and proved in order to sustain the action.

33 Patten v. Moses, 49 Me. 255; Demuth v. Cutler, 50 Me. 298.-34 Dennett v. Goodwin, 32 Me. 44; Bunker v. Athern, 35 Me. 364: Dodge v. Emerson, 34 Me. 96.35 Dennett v. Goodwin, supra.-86 Carver v. Hayes, 47 Me. 257.-36á Hussey V. Winslow, 59 Me. 170.-37 Stevens v. Adams, 45 Më. 611.