Sanford v. Haskell , 50 Me. 86 ( 1863 )

The opinion of the Court was drawn up by

Davis, J.

The fence, built by plaintiff, was "adjudged sufficient” by the fence viewers, Nov. 10, 1858. The writ is dated Nov. 20, 1858. As " one month” had not expired "after demand,” the suit was prematurely brought. R. S., c. 22, § 4..

Nor will indebitatus assumpsit lie in such a case. There was no promise, express or implied. It should have been an action of the case, setting forth all the facts necessary to establish a legal obligation to build the fence, a neglect to do it, the construction of it by the plaintiff, the adjudication of its sufficiency, and the neglect of the defendants to pay therefor within one month after demand.

Plaintiff nonsuit.

Appleton, C. J., Cutting, Walton and Danpoetii, JJ., concurred.