quent events, it furnishes no grounds for exceptions unless specific
instructions are requested. Rice v. Perry, 61 — 145.
88. When testimony objected to is admissible for a special purpose
only, but is admitted without restriction or limitation it is erroneous.
Worthing v. Worthing, 64 — 335.
89. Where, in a trial, the statement of a third person was improp-
erly admitted in evidence against objection, and be was subsequently
called as a witness by the excepting party and testified to the truth of
the statement, which was not afterwards controverted, it was held
that the excepting party was not aggrieved. Tarr v. Smith, 68 — 97.
90. Exception does not lie to an instruction in the charge of a judge,
which was pertinent and proper upon the question he was presenting to
the jury, but which would have needed some qualification as applicable
to another point involved in the facts of the case, unless the attention of
the judge is called to such point by counsel at some stage of the trial.
Eaton V. Telegraph Co., 68—63.
91. A general exception to the entire charge will not be sustained
if any single proposition of the charge is correct. Macintosh v. -Bart-
lett, 67 — 130. Harriman v. Sanger, 67 — 442.
92. To be available upon exceptions, an objection to testimony must
• be specific — directed to a particular question or answer. Harriman
V. Sanger, 67 — 442.
250 EXCEPTIONS — EXECUTIONS.
93. It is no cause of exceptions tliat a requested instruction is not
given in the precise language of the request. Foye v. Southard, 64—
389.
94. In the trial of an action on an administrator's bond for an
alleged breach in knowingly omitting to inventory a certain sum of
money deposited in a savings bank and belonging to the estate, the
{)residing judge declined to instruct the jury, at the defendant's
request, that if they believed the testimony of a certain witness as to
what the intestate said and did when the bank-bbok was put into the
witness's hand, that transaction amounted to a gift of the money to two
certain persons ; but he did accurately state to the jury the law con-
cerning gifts ; held, that the defendant had no cause for exception.
JBourne v. Stevenson, 58 — 499.
X. Q-ENEEALLT.
95. If the judge leaves to the jury questions which it is his own
province to decide, and the jury come to a proper result, the verdict
will not be disturbed. Webb v. Port. <& Ken. It. JR. Co., 57—117.
96. Practice. Section 21, c. 77, R. S., 1871, providing that
exceptions deemed frivolous and intended for delay may be transmit-
ted to the chief justice, and argued in writing, does not apply to pro-
ceedings in the superior court for Cumberland county. Thorn v.
Mosher, 60—463.
97. Although the decision of the justice of the superior court, in
cases tried without the intervention of a jury, is conclusive as to mat-
ters of fact, yet when exceptions as to his ruling of the law are sus-
tained the effect is to re-open the whole case and give a new trial
both as to law and fact. Mosher v. Jewett, 63 — 84.
98. When exceptions to the rulings of a presiding judge trying a
case without the aid of a jury are sustained, a trial de novo follows,
unless it is otherwise expressly decided, and stated in the rescript.
Merrill v. Merrill, 65 — 79.
99. After exceptions have been allowed, the party in whose favor
the ruling was made may waive the ruling, and, with the consent of
the court, have the exceptions sustained at nisi prius. Bean v.
Ayers, 67—482.
See Teutstee Process, 41.
Wat, 67.
EXECUTIOlSrS.
I. OF ISSUING EXECUTIONS AND THEIR VALIDITY AND DIS-
CHARGE.
II. EXTENT UPON LAND.
(a) Genekaxly.
(b) Appeaisal.
(o) Desceiption of the land.
(d) Dblivbet of seizin.
(e) Recoed and ebtuen.
III. SALE OP EQUITIES OF REDEMPTION.
IT. LEVY ON PERSONAL PROPERTY.
EXECUTIONS. 251
I. OF ISSUING EXECUTIONS AND THEIE VALIDITY AND
DISCHARGE.
1. An execution, issued on a judgment rendered on default of an
absent defendant in a personal action, as provided in R. S., c. 82, § 3,
within one year after the rendition of such judgment, and without the
plaintiff's first giving bond to the defendant, as provided in § 4, is
void ; and so also is any levy upon real estate made under it, against
whomsoever it is adversely set up. Davis v. Stevens, 57 — 593.
See Public JjA-ws, 1877, c. 149.
2. The provision of statute requiring a bond before an execution
can be issued against an absent defendant does not apply when the
defendant is a non-resident, and has actual notice of the suit through
a personal service by an officer within the State, during its pendency.
Emery v. Legro, 63 — 357.
3. Under the authority of the supreme court to make alterations in
the forms of writs, it may, when a judgment is recovered payable in
coin, direct an execution to issue for the payment of the debt in coin,
and of the costs in legal tender currency. Stringer v. Ooombs, 62 — 160.
4. Variance. When a judgment, (decree for alimony) is for a
sum payable at a future day without interest, an execution for the
same sum with interest from the date of the judgment is not valid,
and will not sustain a levy. JPrescott v. Prescott, 62 — 428.
5. Against the Body. An execution issued upon a judgment
recovered on a prior judgment on a contract should not run against
the body when the debt recovered in the first judgment was less than
ten dollars. Kelley v. Morris, 63 — 57.
6. Against Town. The statute requires an execution against
a town to run against the real estate situated therein, and against
the personal property of its inhabitants. If issued only against real
and personal property owned by the inhabitants of the town, the
land of a non-resident proprietor cannot be legally sold thereon.
Hayford v. Everett, 68—505.
7. Trial Justice. The R. S. of 1871, c. 83, § 25, provide for the
issue, by a justice to whom the records of a deceased justice have
been delivered, of an execution upon any judgment rendered by such
deceased justice ; but that "no such first execution" shall issue after
one year from the time the judgment was rendered, unless on scire
facias. Held, that the words "such first execution" referred to the
first execution issued by the magistrate with whom the records of the
deceased justice were deposited, and not to the first execution issued
on the judgment; and that the justice to whom the records of the
deceased justice have been delivered, has no right to issue his first
execution (unless on scire facias) after one year from the time
the judgment was rendered. Brown v. Joy, 61 — 564.
8. Discharge. When the officer's return of a levy upon land
shows that the creditor refused to receive seizin and possession, and
the creditor himself certifies his refusal on the execution, the execu-
tion is not discharged by the levy. Bingham v. Smith, 64 — 450.
See Debt, 6, p. 157.
III. EXTENT UPON LAND.
(a) Geneballt.
(b) Appraisal.
252 EXECUTIONS.
(o) Description of the land.
(d) Delivebt op seizin.
(e) Eecoed and betuen.
(a) Generally.
9. A seasonable levy of the execution on real estate attached on
the writ, operates as a statute conveyance made at the date of the
attachment. First National Bank v. Redman, 57 — 405.
10. A levy upon real estate, made by virtue of an execution, issued
upon a judgment, wherein the debt or damage recovered exceeds the
amount of the ad damnum in the writ, is valid, but takes effect only
from the date of the levy. Morse v. Sleeper, 58 — 329.
11. The levy on land of an execution which is issued for a sum
greater than the judgment or decree upon which it is based, is void.
Frescott V. Prescott, 62—428.
12. Upon Land Feaudulentlt Conveyed. If the administrator
of an estate, decreed insolvent, assumes the defense of an action
pending against his intestate, and neglects to suggest the insolvency
upon the record, the execution, regularly issued upon the judgment
recovered against the administrator, may be levied on the real estate
of the intestate fraudulently conveyed by him. Wyman v. Fox, 59
—100.
13. If a person, having the legal title to real estate, incur a debt,
and subsequently convey his estate, in fraud of his creditor, to his
wife, who makes a similar conveyance thereof to her brother in trust
for herself, the creditor thus defrauded may extend his execution
issued upon the judgment recovered upon his debt upon the land thus
fraudulently conveyed, and perfect his title by a bill in equity against
the wife and her grantee. Jh.
14. If a creditor of a husband would hold real estate conveyed to a
wife by a bona fide grantee of the husband and paid for out of his
property he must do so in equity and not by a levy. Webster v. Fol-
som, 58—230.
See Equity, 30, p. 199.
15. Land held in Common. Under R. S., 1857, c. 76, § 7, a levy
upon the undivided portion of the debtor's real estate held in common
is valid, provided the return states the debtor's ownership of the part
taken, although the debtor actually owned a larger share. Morse v.
Sleeper, 58—329.
16. It is essential to the validity of a levy, made upon an undivided
PORTION of land, of which the debtor is seized in fee and in severalty,
that it appear by the return that the premises levied upon could not
be divided by metes and bounds without injury to the whole. Jb.
17. Simultaneous Levies. Three several creditors simultaneously
levied their three separate executions upon the land of the same
debtor, each taking an undivided fraction thereof, unitedly taking the
whole. It also appeared that the three levies did not take the whole
parcel of land, but only a divided portion of the whole, each levy
taking a fractional part of that portion — also that on the day of the
date of the officer's return, the debtor conveyed the portion left to
him in severalty, to a third person. Jleld, that the irregularity was
cured by the conveyance of the debtor and the levies were sustained.
Ziittlewoodv. Wardwell, 67 — 212.
EXECUTIONS. 253
(b) Appraisal.
18. A levy upon the land of one of the several execution debtors
will be invalid unless the return show with certainty that the debtor,
whose estate has been taken, chose one of the appraisers, or neglected
to do so upon being duly notiiied. Morse v. Sleeper, 58 — 329.
19. When the officer's return shows that the debtor did not reside
in the county where the land was situate, and had no attorney there,
it need not show that the debtor neglected to choose an appraiser,
because the officer is not required to give him notice to choose one.
Bingham v. Smith, 64 — 450.
20. If the debtor refuses to choose an appraiser, the officer is not
obliged to wait until the expiration of the time stated in the notice,
but may immediately select one for him, and complete the levy.
Thomas v. Johnson, 64 — 539.
21. If the appraisers are induced, by the fraudulent misrepresenta-
tions of the creditor or his attorney, to exclude the buildings from the
valuation, or to appraise the land at less than its true value, on the
ground that there is doubt whether the debtor has any interest in the
property, it will avoid the levy in the hands of the creditor or any
party cognizant of the fraud when he took his title. Poor v. Larra-
bee, 58—543.
(c) Description of the land.
22. Where a levy describes land as "commencing at the southwest
corner of Peter McGown's lot," such point is to be found at the south-
west corner of land owned by Peter McGown, and not at the south-
west corner of land occupied by him, under a contract of purchase,
although the latter lot is generally known as and called the Peter
McGown lot. Young v. Mc Gown, 59 — 349.
(d) Delivery of seizin.
23. The creditor may refuse to receive seizin and possession with-
out assigning any reason. Bingham v. Smith, 64 — 450.
24. If seizin is not delivered to the creditor, or if he declines to
accept it, the levy is void, and another extent may be made upon the
same execution, without application to court, at any time before the
return day. lb.
(e) Record and return.
25. If, through the mistake of the register of deeds, the initial of the
appraiser's middle name is erroneously recorded, the record is suffi-
cient notice to put subsequent purchasers on their guard. Emery v.
ie^TO, 63-357. ^ ^ 6 y
See Attachment, 19, p. 46.
26. The creditor may relieve the officer of the duty of causing the
execution and return of the levy to be recorded by the register of
deeds, within three months after the levy. Thompson v. Goding, 63
— 425.
27. And if the judgment has been assigned, but the assignee author-
izes the judgment creditor to procure the levy to be made, choose an
appraiser, pay the expenses and receive delivery of seizin, and no
disclosure is made to the officer of the extent of the authority of the
254 EXECTTTIONS.
judgment creditor, and the officer, with the approval of the judgment
creditor, delivers the execution to the attorney, to be by him left for
registry, the officer is not liable for neglect to cause the execution to
be recorded. Ih,
28. A EECOED in the registry of deeds of a levy, designed to take a
part of lot 32, but describing a part of lot 29 upon the same plan and
survey, the description by metes and bounds perfectly fitting the one
parcel as â– well as the other, is not notice to a subsequent purchaser
from the execution debtor, that a part of 32 instead of a part of 29
was in fact taken by the levy. Jones v. McNarrin, 68 — 834.
See Equity, 61, p. 202.
ni. SALE OF EQUITIES OP KEDEMPTION.
29. It is not necessary that an officer's return of a sale of an equity
of redeeming land from a mortgage should specify the day or hour or
particular place of the sale. Townsend v. Meader, 58 — 288.
80. It is sufficient in this respect if it appear by the return that the
time required by the statute intervened between the time of giving
the notice and that of making the sale. lb.
31. Thus, a return of a sale of an equity of redeeming land situated
in Gardiner, is sufficient as to notice which recites that "on the first
day of September, 1858, I give notice in writing of the time and place
of sale to the within named" debtor, "in person, and I gave public
notice of the time and place by posting up notifications thereof in two
public places in . . . two adjoining towns, and also in a public
place in" Gardiner, "thirty days before the time of sale ; and I also
caused an advertisement of the time and place of sale to be published
three weeks successively before the day of sale in the Northern Home
Journal, a public newspaper printed in" Gardiner, "in said county ;
and afterwards, on the sixth day of October, at a public auction held
at the Gardiner hotel, in the city of Gardiner, I sold," etc. lb.
32. Thft holder of a junior mortgage of real estate may waive his
mortgage lien and sell on the execution issued upon a judgment
recovered on his mortgage debt, the debtor's right to redeem a senior
mortgage of the same property. Forsyth v. Rowell, 59 — 131.
33. A sheriff's deed of an equity of redemption is good against the
debtor or a subsequent purchaser with notice, though not recorded
within three months after the sale. JSbbbs v. Walker, 60 — 184.
34. There is no legal necessity of returning the execution to the
clerk's office within any definite time in order to make the sale of the
equity valid against a subsequent purchaser. The registry of deeds
discloses the state of the title. True v. Emery, 67 — 28.
85. Two several creditors made simultaneous attachments of an
equity of redemption. By virtue of the attachments, upon executions
afterwards obtained, the equity was sold in moieties at the same time
to the same bidder, by the officer holding both executions, one undi-
vided half thereof upon one execution, and the other half upon the
other. Held, that the sales could be upheld. lb.
36. It seems that in such case the notice of the sale, the whole
equity should be advertised for sale on each execution. lb.
37. If the debtor redeems from one sale only he becomes a tenant
in common with the purchaser. lb.
EXECUTOES AND ADMINISTEATOES. 255
38. If the debtor then pays up the entire mortgage he has an equit-
able lien upon the half not his own for the sum be may advance upon
it. lb.
39. When an oflBcer in his return of the sale of an equity of
redemption states that he published in a certain newspaper the notice
which the statute requires to be given, it is not competent for the
debtor, or any one claiming under him, to contradict the return by
the production of the newspaper showing it to be untrue. lb.
IV. LEVY ON PEKSONAL PEOPERTY.
40. A sale by an officer under a legal precept of the personal prop
erty of a stranger to the process conveys no title to the vendee'
Coombs V. Gordon, 59 — 111.
41. At an adjourned sale the officer must post up public notice of
the time and place forty-eight hours prior thereto, in two or more
public places in the place of sale, or the sale will be void. Hayes v.
Buzzill, 60—205.
42. At a sale on execution of certain rails and sleepers, forming a
side track connected with the main track of a railroad company, the
officer standing on the track gave a formal delivery to the purchaser,
who accepted them, but they were not removed, nor did the officer
move them from their position after or at the time of the seizure.
Seld, that the proceedings were sufficient to pass the title to the pur-
chaser. Fifield V. Maine Central JR. H. Co., 62 — 77.
43. Monet. An officer, who has collected money on an execution,
cannot apply it in satisfaction of another execution, although the
latter is against the party for whom the money was collected, and
both executions are in the officer's hands for collection at the same time.
JBardy v. Tilton, 68—195.
See Bankeitptct, 4, p. 56.
CoEPOKATioisr, p. 129.
EXECUTORS AND ADMINISTRATOES.
I. POWEES, DUTIES AND LIABILITIES.
(a) What pbopeety passes to the administbatob.
(b) POWEBS.
(c) Duties.
(d) Liabilities.
II. PEOCEEDINGS WHEN AN ESTATE IS SOLVENT.
(a) Exorbitant claims.
(b) Sale op lajtd.
(o) Accounts.
III. INSOLVENT ESTATES.
IV. BOND.
V. ACTIONS.
(a) By administbatobs.
(b) Against administeatobs.
(c) Or THE APPBABANCE OP THE ADMINISTEATOE APTEE THE
DEATH OF A PARTY TO A SUIT.
VL GENERALLY.
256 BXECTJTOES AMD ADMHSriSTEATOES.
I. POWERS, DUTIES AND LIABILITIES.
(a) What property passes to the administrator.
1. The administrator of an intestate estate is the only party who is
entitled to collect money due on a policy of insurance upon the life
of the intestate. Xee v. Chase, 58—432. See Cragin v. Cragin, 66
—518.
2. Lais'd Damages. If land, which was of an intestate, be taken
for public uses, prior to his decease, his administrator is entitled to
damages ; but the heirs cannot petition for increase, for they have no
interest. Neal v. Knox d> Lincoln H. R. Co., 61 — 298.
3. If taken after his decease, it is the heirs' land, and the adminis-
trator has nothing to do with the damages. lb.
4. The BENTS AND PEOPiTS of the real estate of an insolvent debtor,
until it is sold for the payment of debts, belong to the heirs and not
to the administrator. Kimball v. Sfwmner, 62—305.
5. In such case the administrator can not deduct from the rents
collected by him, sums paid for insurance, or to discharge mechanics'
liens, or for annuities charged upon the real estate, there being no
judgments to enforce, or any possession taken or claimed on account
of them. Ih.
6. Unhaevbsted ceops go to the devisee of the land and not to the
executor. Dennett v. Hophinson, 63 — 350.
7. As against the heirs at law they go to the executor. lb.
8. One of the heirs of an intestate, having a savings bank book of
the intestate in his hands, and also an order from all the heirs to draw
the money from the bank, must draw the money promptly under the
order. As against an administrator subsequently appointed, he can
not sustain any claim to the book or to the money. Soynton v.
Payrow, 67—587.
9. Nor can he sustain any claim upon the funds to secure him for
advances made to the heirs upon the strength of the order. lb.
(b) Powers.
10. The executor has no authority to pay from the general fund of
the estate, the expenses of repairs, taxes, and insurance, upon real
estate devised to the executor in trust for the use of the widow, and
in her occupancy. Stevens v. Burgess, 61 — 89.
11. A voluntary release of an easement by an administrator does
not bind the estate nor the heirs of the intestate. Mowe v. Stevens,
61—592.
12. A contract between a minor and his master whereby the former
paid his bounty money to the latter in consideration of his consent to
the minor's enlistment, may, after the minor's decease, intestate, be
rescinded by the administrator of his estate, and the money recovered
back. Dinsmore v. Webber, 59 — 103.
(c) Duties.
13. Where a testator devises his property, subject to the charge of
furnishing maintenance to his widow, it becomes the duty of the
executor to see that the needful support in accordance with the provi-
EXECUTOES A2JD ADMINISTEATOBS. 257
sions of the will, if not furnished by the devisees, be supplied and
proper contribution from any delinquent devisee enforced. Pettingill
V. Pettingill, 60—411.
14. The duties and liabilities of an executor, upon his decease,
devolve upon the administrator with the will annexed, and not upon
the executor of the executor. Prescott v. Morse, 6 1 1 22.
15. Whenever any interest in the nature of a trust, or any duty
implying a trust, is created by a will, and there is no special designa-
tion of any person as trustee, it is incumbent upon the executor as
such to administer the estate according to the provisions of the will.
Fettingill v. Pettingill, 60 — 411. Nutter v. Vickery, 64 — 490.
(d) Ziiabilities.
16. An executor, as such, is not liable for a trespass. Plimpton v.
Richards, 59 — 115.
17. An action will not lie against executors, as such, for damages
caused by their raising a dam on a stream, whereby plaintiff's mill was
flowed, when the dam and the land on which it was situated had,
under the will of the testator, become vested in the defendants as
trustees. Ih.
18. Services rendered to an executor, m his ofiicial capacity, in the
settlement of the estate, do not constitute the person rendering them
a creditor of the estate. His claim is against the executor person-
ally. Baker v. Moor, 63—443.
See Post, 40, 78. Estoppbl, 25, p. 216.
II. PROCEEDINGS WHEN AN ESTATE IS SOLVENT.
(a) ExOBBITAifT CLAIMS.
(b) Sale op land.
(o) Accounts.
(a) Exorbitant claims.
19. Where the administrator appeals from the decision of commis-
sioners appointed to decide upon a claim against an estate, but fails
to complete the appeal by giving notice to the creditor within thirty
days after the acceptance of the report, in accordance with R. S.,
1871, c. 66, § 11, the decision of the commissioners become final.
Palmer v. Palmer, 61 — 236.
20. In case of a solvent estate the creditor is then entitled to an
execution upon filing a certified copy of the report with the clerk of
courts. Ih.
21. It is a sufficient compliance with the provisions of R. S., 1871,
c. 82, § 131, requiring a certified copy of the report of commissioners
allowing a claim against a solvent estate to be filed in the office of the
clerk of courts, upon making application for an execution, if the order
of acceptance by the probate court, referring to and making the report
a part of the order, and duly filed, is certified. Ih.
22. The report of commissioners upon exorbitant claims, not ap-
pealed from, is conclusive and final. Rogers v. Rogers, 67 — 456.
28. Nor can such claims, when rejected by the commissioners, be
filed in set-off in a suit by the administrator. Ih.
17
258 EXECTTTOES AND ADMINISTEATOKS.
24. The adjudication of commissioners appointed to decide upon
an alleged exorbitant claim, not appealed from, is conclusive as to
the right of the claimant to the amount allowed as long as the admin-
istration of the estate remains incomplete. Hall v. Merrill, 67 — 112..
25. When an administrator alleges a claim to be exorbitant, and
petitions for the appointment of commissioners, it is competent for
the claimant to acknowledge notice of the petition. Ih.
26. An administrator may acknowledge notice of the time and place
of the meeting of commissioners appointed to decide upon claims
alleged to be exorbitant. Ih.
27. The fact that both administrator and claimant acknowledge