Deane v. Washburn , 17 Me. 100 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

The fifth article in the warrant for the town meeting in Paris, under which the defendant was chosen constable, was, “ to choose overseers of the poor, and all other town officers, for the year ensuing.” It is urged, that this did not warrant the choice of a constable. The act regulating town meetings, and the choice of town officers, stat. 1821, c. 114, § 1, authorizes the election of certain officers described, in which constables are not included, and then provides for “ other usual town officers.” Upon this point, the warrant is not more general than the statute. A constable is an ancient town officer, not only usually, but universally elected; and in our judgment, the warrant did authorize the election of a constable, in the case before us.

The justification, upon which the defendant relies, is controverted upon the ground, that what remained, after satisfying his legal demand upon the plaintiff, was not paid or tendered to him. If proof of such payment or tender was necessary in defence, it has been sufficiently made out. In the return of the defendant upon his warrant, which is prima facie evidence, according to the case of Kendall & al. v. White & al., 13 Maine R. 245, it is stated, that the overplus was tendered to the plaintiff on the day of the sale. As further proof of the fact a witness testified, that he saw the defendant on that day tender to the plaintiff a sum of money in bank bills, as the overplus in his bands, beyond the amount of the tax and charges. The tender, not being accepted, must be taken to have been refused, which the return expressly states. But no objection was made as to the amount tendered, or the kind of money. It has been long settled, that a tender in bank bills is good, if not objected to on that ground. Hoyt v. Byrnes, 2 Fairf. 479, and the cases there cited. So where a tender is refused, it will be deemed sufficient, although a greater sum is offered, and change required in return. 3 Stark. Ev. 1395. The witness did not count the money, nor did he see any change tendered ; but what he did see, with the constable’s return, is evidence that enough was tendered; especially as it was not accepted, and no objection made, on the ground of any alleged deficiency. A paper was offered to the plaintiff at the time of the tender, which the jury might well understand, to have been an account in writing of the sale and charges.

It is objected, that no sufficient evidence was adduced, that the school district was legally created. It appears that certain persons named, with their estates, were set off into a separate school district. Had the persons only been named, the limits of the district would not have been defined. But they are defined by their estates. If this had been done, in the district in question, in Withington v. Eveleth, 7 Pick. 106, cited for the plaintiff, it is fairly deducible from that case, that it would have been held sufficient. There is no proof that the estates were not contiguous, or that the limits were uncertain. Other exceptions, equally untenable, taken at the trial, have not been pressed for the plaintiff in argument.

Exceftions overruled.