82 Me. 419 | Me. | 1890
This case is between the holder of a Holmes note and an officer who attached a wagon upon which the Holmes note was secured. After the attachment, the holder of the note possessed himself of the wagon by a replevin writ against the officer.
One question is whether a Holmes note is so much of the nature of a chattel mortgage, that the holder cannot maintain an action of replevin for' the property against an attaching officer until he has given to the officer forty-eight hours’ notice in writing of his claim and the amount of it, as required by R. S., c. 81,
Then comes the question whether, in the present case, the necessity of a notice has been waived. When the case came up at the first trial, two questions of a technical character arose, and it appears that some discussion occurred between -the counsel and court in relation to the disposition of the questions. The two questions were whether the notice to the officer was necessary, and whether the note had been legally recorded or not. The counsel for the plaintiff contends that, as the first point stood in the way of a decision on the second point, being preliminary to it, the first point was expressly waived by counsel. The counsel for the defendant denies this and contends that there was no waiver and no intention on his part to admit any such thing. The counsel on both sides have testified about the matter and understand it differently. The presiding justice ruled that the record of the note in the town book of mortgages was not legal on account of informality, and ordered a nonsuit on that point. Exceptions were filed and sustained, and a new trial was ordered, as may be seen in Monaghan v. Longfellow, 81 Maine, 298.
Now, while we are not satisfied that the counsel for the defendant expressly consented to a waiver of any objection presented by him, nevertheless we are of opinion that the point has been in effect waived by the course of the trial. The counsel for defense examined the plaintiff’s bill of exceptions before they
Judgment for plaintiff for one cent damages and costs.