(u) A note, payable in specific articles, or in cash or specific articles, not being a promissory note, and hence not negotiable, cannot be sued in the name of an assignee, unless the maker has expressly promised to pay it to such person.

(v) A promissory note, signed by two or more persons, contains a joint promise by all, or a joint and several promise. If the words are, "We promise to pay," the promise is joint, and all the signers, if alive and in the State, must be sued in one writ. If the words be, "We jointly and severally promise," &c., or, "I promise to pay," &c., and be signed by two or more, the promise is joint and several,39 and either, any, or all the signers may be sued. But if the payee of a joint and several note, signed by three, has sued one of the makers alone, and recovered judgment, he cannot afterwards maintain a joint action against the other two.40

(w) DEBT ON SIMPLE CONTRACTS.

The action for debt lies for a sum certain, whether it has been rendered certain by verbal or written contract, or by judgment, or by statute.41 As it may frequently be convenient to join in the same suit different causes of action, for some of which assumpsit will not lie, the following forms of declaration are introduced.

1. (On account annexed.) For that whereas the said (defendant), at - on the day of, A. D. was indebted to the plaintiff in the sum of dollars, according to the account annexed, to be paid to the plaintiff by the said (defendant), on request, which sum remaining unpaid by the said (defendant), an action hath accrued to the plaintiff to demand and recover of the said (defendant) the said sum; yet though requested, &c.

day of

2. (Consolidated count.) For that the said (defendant), at on the A. D. —, was indebted to the plaintiff in dollars, for [here state what the debt is for, as in assumpsit, which see], which moneys were to be paid to the plaintiff on request; whereby, and by the reason of the non-payment thereof, an action hath accrued to the plaintiff to demand and have from the said (defendant), the sums aforesaid, amounting in all to the sum of dollars; yet the said (defendant) has never paid any

of the same.

3. (On a promissory note between the original parties.) For that the said (defendant), at, on the day of, A. D. -, made his promissory note, and delivered the same to the plaintiff, and thereby, for value received, promised the plaintiff to pay him the sum of dollars on demand, and interest; and by reason of the non-payment thereof, an action hath accrued to the plaintiff to demand and have, from the said (defendant), the same; yet, &c.

38 Farnum v. Virgin, 52 Me. 576.-39 1 Pars. on Notes and Bills, 251.-40 Bangor Bank v. Treat, 6 Me. 207.-41 2 Greenl. on Ev., § 279.

(x) DEBT ON BOND.

day

4. (On bond.) For that the said (defendant), at-, on the of, A.D., by his writing obligatory of that date, sealed with his seal and here in court produced, bound and acknowledged himself indebted to the plaintiff in the sum of paid to the plaintiff on demand; yet, &c.

dollars, to be

(y) If the bond be lost or destroyed, and the plaintiff alleges the reason of its non-production in court, he must set out the substance of the condition in his declaration.42

(2) In actions of debt on bonds by and against surviving parties, and by and against executors and administrators, declarations may readily be made from the foregoing, commencing and closing as in corresponding cases in assumpsit.

(a) DEBT ON JUDGMENT.

5. (On justice's judgment.) For that the plaintiff, at - on the -day ol, A. D., before Josiah S. Hobbs, esquire, a trial justice for the county of Oxford, by the consideration of said justice recovered judgment against the said (defendant), for the sum of dollars debt or damage, and dollars cost of suit, as by the record thereof remaining appears;* which judgment† is in full force, and not reversed, annulled, or satisfied; whereby an action hath accrued to the plaintiff to have and recover of the said (defendant), the aforesaid sums of dollars, and - dollars, amounting in the whole to - dollars; yet the said (defendant) has never paid the same (nor any part thereof).

(On judgment rendered in another State.) [Same as 5 down to*, where insert],-a copy whereof duly authenticated, the plaintiff produces in court.

(On a judgment satisfied in part.) [Same as 5 down to †, where substitute the following]:-remains in full force and unsatisfied in part, to wit, for the sum of- dollars, although a writ of execution was issued thereon, which is returned to said court satisfied in part only, to wit, for the sum of dollars; whereby an action hath accrued to the plaintiff to have and recover of the said (defendant) the sum of dollars, with cents more for the writ aforesaid; yet the said (defendant), though thereto requested, has not paid either of the last two mentioned sums, but detains them.

(b) TRESPASS.

(Assault and battery.) For that the said (defendant), at -, on the day of, A. D., in and upon the plaintiff, with force and arms, made an assault, and him the said plaintiff then and there did beat, wound, and ill treat [here may be stated any special matter of aggravation], and other wrongs to the plaintiff, then and there did against the peace; to the damage, &c.

(c) To constitute a trespass on personal property, there must be a disturbance of the plaintiff's possession; by actual taking,

42 Waterman v. Dockray, 56 Me. 52.

a physical seizing, or taking hold of the goods, removing them from their owner, or by exercising a control or authority over them inconsistent with their owner's possession.48

day of

A. D.

(Trespass for taking and carrying away goods.) For that the (defendant), at, on the with force and arms, took and carried away the goods and chattels, to wit, two barrels of flour, then and there found, of the property of the plaintiff, and of great value, to wit, of the value of dollars, and converted the same to the use of the said (defendant), against the peace of the State; and to the damage, &c.

INDORSEMENTS OF WRITS.

9. Every writ original, of scire-facias, of error, of audita querela, petition for writ of certiorari, for review, or for partition, and bill in equity, shall, before entry in court, be indorsed by some sufficient inhabitant of the State, when the plaintiff or petitioner is not an inhabitant thereof; and if pending such suit the plaintiff or petitioner removes from the State, such indorser shall be procured on motion of the defendant or other party to the suit; but if one of such plaintiffs or petitioners is an inhabitant of the State, no indorser shall be required except by special order of the court.44

(d) "A. B., by his attorney," is not a sufficient compliance with the statute for want of the attorney's name.15 Where the plaintiff's name was indorsed on his writ by the attorney, without adding his own as attorney, the plaintiff being, present and not objecting, and subsequently prosecuting the suit, the indorsement was held sufficient.46

(e) The statute indorsement of a writ is complete when the attorney, being a sufficient person, writes his name on the back of it under words "from the office of," previously printed there by the clerk; 47 or when the attorney thus writes his surname only. 48

10. If, pending any such suit or petition, any such indorser becomes insufficient or removes from the State, the court may require a new and sufficient indorser, the defendant consenting that the name of the original indorser shall be struck out; and such new indorser shall be liable for all costs from the beginning of the suit, as if he had been the original indorser; and if such new indorser is not provided, the action shall be dismissed and the defendant recover his costs.49

43 Holmes v. Doane, 3 Gray, 329, 330.-44 R. S. c. 81, § 6.—45 Harmon v. Watson, 8 Me. 286.-46 Stevens v. Getchell, 11 Me. 443.-47 Stone v. Mc Lanathan, 39 Me. 131; Richards v. McKenney, 43 Me. 177.-48 Sawtelle v. Wardwell, 56 Me. 146.49 R. S. c. 81, § 8.

CHAPTER IV.

WHO MAY SERVE WRITS.

1. Every sheriff and each of his deputies shall serve and execute, within his county, all writs and precepts issued by lawful authority, to him directed and committed, including those in which a town, plantation, parish, relig ious society, or school district, of which he is at the time a member, is a party or interested, but his legal fees for services shall first be paid or secured to him; and if they are not, when the process is delivered to him, he shall forthwith return it to the plaintiff or attorney offering it; or if sent to him by mail or otherwise, shall put it into the post-office within twenty-four hours, directed to the person sending it; otherwise he shall be deemed to have waived his right to his fees before service.1

For additional duties of sheriffs and deputies, see chapter XLIII, page 508.

(a) A deputy-sheriff may serve a writ upon a bank in which he is a stockholder.2

(b) The word "precept" includes execution.

(c) A sheriff, as such, cannot serve an execution on his deputy, although directed to him.*

(d) A sheriff and his deputies, in the office of sheriff intrusted to serve writs, constitute in legal analogies one office and one officer; and hence a sheriff cannot serve a writ on his deputy.4 Neither does the fact that the sheriff had served the writ on his deputy before the latter's appointment as a deputy, enlarge his right to serve the execution directed to him and placed in his hands after such appointment.*

2. Sheriffs and their deputies have the same authority, and the deputies are under the same obligation to serve, execute, and return all processes in their hands, when, for any cause, they cease to hold such office, as before; and official neglects or misdoings of a deputy after his principal is out of office, are a breach of such sheriff's bond.5

3. Every coroner shall serve and execute, within his

1R. S. c. 80, $9. Adams v. Wiscasset Bank, 1 Greenl. 361.- Morrill v. Cook, 31 Me. 120; Same v. Same, 35 Me. 207. Dane v. Gilmore, 51 Me. 544.5 R. S. c. 80, § 10.

county, all writs and precepts in which the sheriff of said county is a party, unless served by a constable, or while the office of sheriff therein is vacant, including those in which a town, plantation, parish, religious society, or school district, of which he is at the time a member, is a party or interested; and may lawfully serve, execute, and return any process in his hands when his term of office expires, or he is notified of the qualification of the sheriff of his county, after a vacancy.

(e) The word " 'party" has a technical signification in this section, and is he or they by or against whom a suit is brought, whether in law or equity. He is a party to the writ and the record, while all others who may be affected by the writ indirectly or consequentially, are persons interested, but not parties."

(ƒ) The service of a writ or other process does not come within the general duties of a coroner. His authority is special, depending upon a certain state of facts; and hence all the facts essential to the conferring upon him such authority must affirmatively appear in the writ or other process served by him,8

(g) The office of coroner is distinct from that of deputy-sheriff, and a person is not disqualified from acting as coroner by holding the office of deputy-sheriff.9 By act approved Feb. 17, 1872, it is provided that any precept against the deputy of a sheriff may be served by any other deputy of the same sheriff.10

4. A constable may serve, execute, and return upon any person in his town, or in an adjoining plantation, any process of forcible entry and detainer, or any writ or precept in a personal action, when the damage claimed does not exceed a hundred dollars, including those in which a town, plantation, parish, religious society, or school district, of which he is a member, is a party or interested; but before he serves any process, he shall give bond to the inhabitants of his town in the sum of five hundred dollars, with two sureties, approved by the municipal officers thereof, who shall indorse their approval on said bond in their own hands, for the faithful performance of the duties of his office, as to all processes by him served or executed; and for every process he serves before giving such bond, he shall forfeit not less than twenty, nor more than fifty dollars, to the use of any person suing therefor.11

6R. S. c. 80, § 42; Public Laws of 1872, c. 14. Walker v. Hill, 21 Me. 481.8 Carlisle v. Weston, 21 Pick, 535.-9 Colby v. Dillingham, 7 Mass. 475.--10 Public Laws of 1872, c. 14.-11 R. S. c. 80, § 43.