(x) In an action on a promissory note, brought by the indorsee who had taken it when overdue, the defendant filed his account against the payee, up to the time of the indorsement, in set-off; it was held, that it was competent for the plaintiff to exhibit proof of the payee's account against the defendant, or other repelling evidence against the off-set.83

(y) If, to an action upon a promissory note, given by the defendant to the plaintiff, the former file an account in set-off, the plaintiff may, in turn, file and prove an account in set-off to the defendant's demands.84

(2) There being no prescribed limitation as to the time for the plaintiff to file such an account, it should be received under such conditions as will effectually protect the defendant against surprise.84

24. When a demand is filed in set-off, the action cannot be discontinued without consent of the defendant. The statute of limitations is applicable to demands filed in set-off, as if actions were commenced on them at the date of the plaintiff's action.85

(a) In a suit upon a witnessed note, an account barred by the statute of limitations, but of about the same date with the note and larger in its amount, was filed in set-off; it was held, that, as a set-off, the law would not sustain it nor allow so much of it to be proved as to balance the note. Neither will the law appropriate the account to the payment of the note, nor presume, after any lapse of time, that the plaintiff had so appropriated it.86

25. When no balance is found due to either party, no costs are recoverable. The party recovering a balance recovers costs. No judgment for debt can be entered against a plaintiff when the demand sued was assigned to him before the suit was commenced, or for a balance due from another person.87

26. Similar proceedings in set-off may take place before municipal and police courts and trial justices, the demand in set-off being filed on the return day of the writ; but judgment cannot be rendered for a defendant for more than twenty dollars, exclusive of costs.88

Set-off of judgments and executions, see infra.89

83 Barney v. Norton, 11 Me. 350.-84 Boyd v. Bartlett, 54 Me. 496.-85 R. S. c. 82, § 59.-86 Nason v. McCulloch, 31 Me. 158.—87 R. S. c. 82, § 60.—88 R. S. c. 82, § 61.89 See ante, Chap. VI, § 30.

(b) FORMS OF PROCEEDINGS BEFORE PLEA.

1. Complaint for not entering action.

To J. S. H., a trial justice in and for the county of

:

Complains D. F. [defendant], of -, in said county [addition], that his goods were attached and he was summoned at the suit of P. L. [plaintiff], of· in said county [addition], to appear before you, at, in P-, in said county, this day of -, at o'clock in the noon, to answer unto the said P. L. [plaintiff] in a plea of And the said P. L., having neglected to enter his said action, the said D. F. [defendant] prays judgment for his costs in this behalf sustained. D. F., by his attorney,

Dated the day of —, A. D. —,

S. T.

It is well to annex the summons to the complaint as proof of the facts therein contained.

2. Form of justice's docket.

Jan. 1, 1871.

H. R.

JOHN DOE v. RICHARD ROE.
S. T. [attorney].

Sufficient space should be left under each entry to note any order in the progress of the case, also the judgment, appeal, recognizance, if any, and the dates of issuing and returns of executions. At least a space of four or five inches should be left.

The action should be numbered on the docket when entered, as well as all the papers filed in the case, and the name of each paper, with the names of the parties legibly written on their respective backs.

If the plaintiff be nonsuited, the entry may be

Plaintiff nonsuit.

Judgment for defendant for costs taxed at $

If the defendant be defaulted, the entry may be

3. Affidavit by attorney on loss of writ.

I, S. T., of an attorney and counselor at law, depose and say that the within instrument, made from original minutes in my docket, is, according to my best knowledge and belief, a true copy of the original writ, which was made by me [or correspond

ing thereto as near as may be]; that the original writ has been lost [or destroyed] without design on my part.

me.

[Date.]

[Signature.]

[Name of county], ss., [date]. Subscribed and sworn to before J. S. H., Trial Justice or J. P.

4. Affidavit of officer on copy of writ.

I, J. H., sheriff in and for the county of -, depose and say that the above return, made by me from original data in my possession, is, according to my best knowledge and belief, a true copy of my return made on the original writ.

[Official signature.] (Certificate of oath similar to the one above.)

5. Motion to dismiss.

[Name of county], ss. At a court holden before J. S. H., esquire, one of the trial justices in and for said county, this day of, A. D. —,

RICHARD ROE v. JOHN DOE.*

And now the said [defendant] comes and moves to dismiss the above-entitled action, because he says (that the damages demanded in the plaintiff's writ exceed the sum of twenty dollars, and that said action is not within the jurisdiction of the said justice). By his attorney, S. T. Instead of the clause within the parentheses, any other sufficient cause apparent on inspection may be inserted.

6. Motion to amend.

AMENDMENTS.

[Same as No. 5 to *, then as follows]: and now the said P. L. [plaintiff] comes and moves to amend his writ by inserting_(or striking out, &c.). By his attorney, S. T. Amendments may be allowed as follows:

Plaintiff has leave to amend by adding a money count, or by inserting, &c., or by striking out, &c.

Amendments should always be made on a separate piece of paper, and not by interlineations or erasures. 7. Death of parties.

89

If during the pendency of an action either party dies," and the action does not survive, the entry in the justice's docket is simply

Dismissed by reason of death of -.

If the action does survive, the death of the party is suggested as follows:

89 Ante, p. 113, § 7.

Death of plaintiff [or defendant] suggested.

The executor or administrator may come in without notice if he chooses, when the entry will be,

[Name], administrator of P. L. [plaintiff or defendant], comes in and prosecutes [or defends].

If he does not voluntarily come in, the entry is,—

Leave to summon in administrator (or executor), granted. Summons issued.

8. Summons to administrator to come in and prosecute.

[Name of county), ss.

To the sheriff of the county of

or either of his deputies, or to

the constable of the town of [name of town where party lives or is], in said county, GREETING.

at

[L. S.] In the name of the State of Maine you are commanded to summon C. D., of—, in said county, gentleman, as he is administrator of the estate [or executor of the last will and testament] of John Doe, late of, deceased (if he may be found in your precinct), to appear before me, J. S. H., a trial justice in and for said county, at a court to be holden before me, at my dwellinghouse in on the day of, A. D. —, o'clock in the -noon, to prosecute a suit commenced by the said John Doe in his lifetime, against Richard Roe, of in said county, laborer, which is now pending before me as said justice, in a plea of · [here insert the declaration]. To the damage of the said [plaintiff, as he therein says, in the sum of twenty dollars. Hereof fail not, and make due return of this summons, and of your doings thereon, at and before the said time of trial.'

*

Witness J. S. H. esquire, at —, in said county, the day of -, in the year of our Lord one thousand eight hundred and J. S. H., Trial Justice.

Service of this is same as that of an original summons.

9. Summons to administrator of defendant.

[Same as No. 8 to the *, changing name of parties, then] then and there to answer unto John Doe, of, in said county, gentleman, and to take upon himself, as such administrator, the defense of an action now pending before me, wherein the said John Doe is plaintiff and the said Richard Roe is defendant, commenced in the lifetime of the said [defendant], wherein the said plaintiff declares as follows: [here insert the declaration, and close as in No. 8].

Service as before.

10. Motion of husband to be joined, on marriage of feme-sole plaintiff.

[Same as No. 5 to the names of parties, then insert names of parties and proceed as follows]: and now John Doe comes and shows that since the commencement of this action the said [plaintiff] hath intermarried with him, to wit, at ——, on --, and is now his lawful wife; wherefore he prays to be allowed to be joined with her as party plaintiff, and prosecute this suit to final judgment. [Signature.]

11. Order of notice on absent defendant.

[Name of County), ss. At a court holden before J. S. H., esquire, a trial justice in and for said county, on the day of —,

A. D.

RICHARD ROE v. JOHN DOE.

In a plea of [here insert the declaration], as appears by the writ in this action. And now it appearing to said justice that this action was commenced by attachment of the defendant's property, and that at the time of the service of this writ, said [defendant] was not an inhabitant of this State, and had no tenant, agent, or attorney within the State, and that no personal service has been made upon said [defendant].

IT IS ORDERED, that notice be given to said [defendant] to appear at a justice court to be holden before me at my office in-, in said county, on the day of, A. D. —, at - o'clock in the

noon, to show cause, if any he has, why judgment should not be rendered against him in said action; and that said notice be given by forwarding to said [defendant] by mail at Boston, in the State of Massachusetts, an attested copy of this order, days at least before the day of said court (or by publishing in the [name of newspaper] three weeks successively, the last publication to be days at least before the day of said court, an attested copy of this order). J. S. H., Trial Justice.

12. Affidavit of notice.

I, S. T., on oath declare, that on the day of , A. D., I deposited in the post-office at -, in the county of -, an attested copy of the within order, with postage paid thereon, directed to John Doe, Boston, Mass.

me.

STATE OF MAINE.

S. T.

[Name of County], ss., [date]. Subscribed and sworn to before A. B., Justice of the Peace. If the notice is by publication, it must be proved by a production of the papers in which it is printed.

13. Offer to be defaulted.

[Same as No. 5 to *, then] and now the said action being a personal action, the said [defendant] comes and offers to be defaulted therein for the sum of dollars; and prays that this offer with its date be entered of record, and that a time for its acceptance be ordered by the court. JOHN DOE.

14. Motion for leave to bring money into court.