Merrick v. Farwell

33 Me. 253

Opinion

Wells, J., orally.

— The plaintiff in review contends that the recognizance is void, because taken, not as on exceptions filed, but as on a supposed appeal. This position is not tenable. Exceptions operate, like an appeal, to transfer the action ; and the statute requires the recognizance to be taken “as in case of appeals.”

A tender is also relied upon. Was it seasonable ? By the common law, no valid tender could be made after a breach. And in that respect, our statute has made no change, applicable to cases on recognizance to prosecute an appeal. It was duty to pay the costs so soon as taxed. In this particular, there was neglect; and the tender was too late, even if a tender, made at the time of the taxation, could have availed, of which we give no opinion.

This Court having power to chancer, in cases of recognizance, a judgment for the defendant in review is to be entered for the penalty, $200, and for damages, $3,30 ; with full costs.