Blackstone National Bank v. Lane , 80 Me. 165 ( 1888 )

Walton, J.

Action upon a promissory note, tried by the justice of the superior court without a jury, and brought into the law court on exceptions by the defendant. We fail to find any valid reason why the plaintiff is not entitled to judgment, as ordered by the justice of the superior court.

1. The objection that the defendant is sued in two capacities, and that there is, therefore, a misjoinder of counts, is not well founded. He is described in the note and in the writ as trustee of the estate of George E. Davis; but this is only descriptio persones. The note is binding upon the defendant in his private and individual capacity, and we think the action is against him in that capacity and no other.

2. The alleged variance between the declaration and the note offered in evidence is not well founded. There is a memorandum inserted in the note that it is to be held by the bank as collateral security for other notes, and this memorandum is not mentioned in the declaration, but we do not think this constitutes a variance.

3. The want of an averment in the declaration that payment of the note was demanded at the Blackstone bank, where it was made payable, is no objection to a recovery. A recovery under the money count can be had without such an averment, upon proof that such-a demand was in fact made ; and we think the evidence that such a demand was made was amply sufficient to justify the justice of the superior court in so finding; and he has so found. Whether such a demand was necessary, it is not necessary to determine.

4. Nor is the want of a venue in the first count in the writ any objection to a recovery. The plaintiff could recover if that couut was struck out of the writ. Besides, a venue in a transitory action is entirely useless. Venues in transitory actions were long ago abolished in England, and were declared unnecessay in Massachusetts more than half a century ago (24 Pick. 398, rule 45) ; and we think they should be allowed to become obsolete in this state. Of course these remarks are not applicable to local actions. In local actions, a proper venue is still necessary.

5. It seems to be true, as the defendant contends, that some irrelevant and immaterial evidence was admitted into the case ; but this evidence was entirely harmless, and furnishes no ground for a new trial. In fact, we find no valid ground for a new trial.

Exceptions overruled.

Peters, C. J., Virgin, Libbey, Foster and Haskell, JJ., concurred.