Moore v. Lothrop , 1883 Me. LEXIS 126 ( 1883 )

Barrows, J.

That the defendants bound themselves to the Probate Judge as alleged in the declaration, was a traversable fact, and the declaration is defective in not alleging the precise day on which they did it. Platt v. Jones, 59 Maine, 232, 241, and authorities cited; Gilmore v. Mathews, 67 Maine, 520; Gray v. Sidelinger, 72 Maine, 114; Serjeant Williams says in note (3) to Mellor v. Walker, Williams’ Saunders, yol. 2, p. 5b. that " if the day in the declaration be material as in an action upon a bond, bill of exchange, promissory note, and the like, the plaintiff, in his replication, cannot vary from the day without a departure. See as to parol contracts, Little v. Blunt, 16 Pick. 365. But notwithstanding this, the pleader need never be at a loss in declaring upon a probate bond whether it bears date of a specific day or not'.

The obligors bind themselves on the day when the bond is accepted and approved by the Probate Judge, and the day on which his court was held at which the bond was presented and approved may always be ascertained by the record.

It will always be safe to allege that the obligors bound themselves on that day, if the descriptive allegations as to the date mentioned in the bond are carefully made conformable to the fact.

The pro forma ruling (probably made without seeing the papers) was erroneous, and the exceptions and demurrer must be sustained; but the plaintiff may have leave to amend upon payment of costs according to the statute.

Exceptions sustained.

AppletoN, C. J., DaNforth, Virgin, Libbey and Symohds, JJ., concurred.