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those results grow, are enumerated, in determining a matter of jurisdiction, the court will suffer the entries to be corrected. Id. 4. When a judgment is rendered in an action of book account, part of the account having accrued before the first of January, 1839, and a part afterwards, the creditor cannot have an execution upon such judgment against the body of the debtor. Witt v. Marsh et al., 303 5. Where services are performed at the request of two, and the testimony is equally strong to prove a contract against both as against one, both are liable on such contract, and, in an action on book against one of the promissors, the nonjoinder of the other may be taken advantage of before the auditor. Smith v. Watson,

332

6. Where a payment has been made upon a promissory note, the party making it cannot maintain an action on book to recover therefor. Peach v. Mills, 371 7. If a note is sued, and the defendant claim that he has paid certain sums on the note, and this is found against him by the verdict of a jury, he cannot maintain an action on book to recover for such payments. Id. 8. Where property is taken forcibly from the possession of the owner, he cannot waive the tort and recover therefor in an action of book account. Id.

be charged on book, or there is to be a subsequent adjustment, an action may be maintained therefor, although it was in tended that the account was to be applied in payment. Id. 13. Where one employs another to purchase an article of property for him of a given description and price, and to pay for it, which is done, the price may be recovered in an action of book account, even where the vendor never accepted the delivery of the article. Paddock et al. v. Ames, 515

BOND.

1. A debtor takes a bond to a third person, for a deed of certain land, on his paying a sum therein mentioned, and erects buildings thereon. The interest of the debtor in the land may be levied on, unless such third person shows some legal or equitable claim thereto. Woods v. Scott et al.,

518 2. An attachment of such land is notice to the obligor in the bond of the claim of the creditor, and after that he could only be justified in deeding to the obligee. Id. 3. When, after such attachment, the obligor deeds the land to another for the benefit of the debtor, and receives notes or securities therefor, he holds them, after the payment of his own claims, for the benefit of the attaching creditor who has obtained a judgment and levied an execution on the land attached.

9. Where, in an action on book, the audi-
tor, after the hearing, held the case under
advisement, and afterwards reported in 4.
favor of the plaintiff and gave notice
thereof to the attorneys of the parties,
and the defendant's attorney informed
the defendant that the auditor had re-
ported against him, and the plaintiff, be-
lieving that no report had been made, or,
if made, was in favor of the defendant,
applied to the defendant to settle the
suit, and thereupon, without any disclo-
sure from the defendant of his knowledge
of the auditor's report, no inquiry being
made of him in relation thereto, each
party agreed to pay his own costs and
the plaintiff released the defendant from

Id.

If the person, in whose name the bond is taken, neither claims nor sets up any right to the premises, and there is no proof that he has any legal or equitable right or claim thereto as against the debtor, a decree will pass that the obligor pay whatever sum may be in his hands to the creditor. Id.

C

CHANCERY.

dence for the other. Cannon et al. v. Norton et al, 178

2. An answer, not responsive to the bill, setting up matter in defence or avoidance, must be proved.

all damages and costs,-it was held that 1. The answer of one defendant is not evisuch release was a bar to the action. Judd v. Blake et al., 410 10. No recovery can be had in the action on book where the contract is executory and unrescinded, though in part executed. Smith v. Smith, 440 11. Goods delivered in payment of a preexisting debt cannot be recovered for in an action on book, nor by plea in offset. Brooks&Co. v. Jewell, 470 12. But, when, from the nature of the contract,it is contemplated that goods should

Id. 3. Quære. Whether the want of parties to a bill can be taken advantage of on the hearing of an appeal from the chancellor.

Id. 4. When the want of parties is not insisted on by demurrer, or plea, it cannot be urged at the hearing, unless it manifestly

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7. Though improvements are made upon lands mortgaged by a third person, claiming neither under the mortgagee nor mortgagor, yet, if after this the mortgagee enters and occupies, he may be charged for rents that arise by reason of such im-2. provements. Merriam, adm'r, v. Burton et al., 501

8. The administrator is the person to bring a bill to redeem, instead of the heirs. Id. 9. The equity of redemption is not barred by a possession in the mortgagee for a shorter period than fifteen years, though there may be an embarrassment in taking the accounts. Id.

10. Exceptions to a master's report, addressed to the discretion of the chancellor, cannot be revised in this court, which sits as a court of error. Id

11. This court will not set aside the report

of the master because the accounts were not verified upon the oath of the party, as specified in the 41st rule of chancery practice. Id. 12. A debtor takes a bond to a third person for a deed of certain land, on his paying a sum therein mentioned, and erects buildings thereon. The interest of the debtor in the land may be levied on, unless such third person shows some legal or equitable claim thereto. Woods v. Scott et al.,

518 13. An attachment of such land is notice to the obligor in the bond of the claim of the creditor, and after that he could only be justified in deeding to the obligee. Id. 14. When, after such attachment, the obligor deeds the land to another for the benefit of the debtor, and receives notes or securities therefor, he holds them, after the payment of his own claims, for the benefit of the attaching creditor who has obtained a judgment and levied an execution on the lands attached. 15. If the person, in whose name the bond is taken, neither claims nor sets up any right to the premises, and there is no proof that he has any legal or equitable right or claim thereto as against the debtor, a decree will pass that the obligor pay whatever sum may be in his hands to the creditor.

Id.

Id.

3.

4.

CONSIDERATION.

Where the plaintiff took a note against two debtors and also a note against one of the same debtors, and, at the time of taking them, agreed, in writing, to give up the latter note to the maker on his paying the note signed by both debtors, and further agreed to give thirty days notice before he called for the money, it was held that the agreement to give such notice was without consideration, and that the plaintiff might maintain an action upon the note signed by one of the debtors, the other note not being paid, without giving notice. Card v. Curtis,

236 The inference to be drawn from such agreement is that both notes were given as security for the same debt. Id. A purchase of a right of redemption, under an agreement to pay a certain sum if the purchaser succeeds in obtaining a decree, permitting him to redeem the premises, or nothing if he fails in obtaining such decree, is illegal and void in a case where the person in possession has been in possession for a long time under a deed of warranty, intended to convey the fee of the land. Wright v. Whitehead et al.,

268

An allegation that, on &c., in consideration that the plaintiff, at the defendant's request, had then and there delivered to the defendant a certain horse in exchange for a certain other horse, the defendant then and there promised that the latter horse was sound, is an averment that the warranty was given at the time of the exchange, and shows a sufficient consideration for the promise.296 5. It seems that a forbearance to bid at a Wightman v. Carlisle, public auction, for the sale of the support of the paupers of a town, is a valuable consideration for a note given for such forbearance. Noyes v. 384 But such a transaction is contrary to Day, public policy and the note is, therefore, void. Id.

6.

CONSTABLE.

See Towns, 3, 4.

CONSTRUCTION OF TERMS.

See CONTRACT, 1,19.

CONTRACT.

1. After verdict and motion in arrest of
judgment, equivocal terms will be un-
derstood in that sense which is most fa-
vorable to sustaining the verdict,if equal-
ly consistent with the contract and cir-
cumstances of the case. Manwell, adm'r,
v. Estate of Manwell,
14
2. The effect of a contract in writing may
sometimes depend so much upon the cir-
cumstances attending its execution as to
require the intervention of a jury to de-
termine its construction, under proper
instructions from the court; but, under
ordinary circumstances, the effect of ev-
ery contract in writing is a question of
law. Roberts v. Button et al.,
3. A purchase of a right of redemption,
under an agreement to pay a certain sum
if the purchaser succeeds in obtaining
a decree, permitting him to redeem the
premises, or nothing if he fails in obtain-
ing such decree, is illegal and void in a
case where the person in possession has
been in possession for a long time under
a deed of warranty, intended to convey
the fee of the land. Wright v. Whitehead
et al.,

195

268

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4. In construing contracts, courts will en- 4. Members of a society organized with deavor to avoid what is unequal, unreasonable, and improbable, if this can be done consistently with the words of the contract. Royalton v. R. & W. Turnpike Co.,

corporate powers, under the statute for the support of the gospel, are not competent witnesses, at common law, for the corporation; and it is not a case within the act passed in 1816, making, in certain cases, corporators witnesses. Id. 5. Towns and turnpike corporations have almost an unlimited discretion in regard to entering into contracts for building roads and bridges, and keeping them in repair, and may contract to pay a gross sum, at once, or by instalments or an annuity. Royalton v. R. & W. Turnpike Co.,

311 5. Towns and turnpike corporations have almost an unlimited discretion, in regard to entering into contracts for building roads and bridges, and keeping them in repair, and may contract to pay a gross sum, at once; or by instalments, or an annuity. Id 6. The powers of the directors of private corporations, to bind them by contracts, depend exclusively upon the charter and 6. The powers of the directors of private by-laws (or statutes) of such corporations respectively.

Id.

7. Where a contract is made by one person, which in some sense ultimately concerns others, the question, whether the one contracting is personally bound by stipulations contained in it, is one of intention mainly. Hinsdale v. Partridge, 1. 547

8. In such case, if the party contracting have no authority from the principal to make such contract on his behalf, or if the other party knowing all the facts consent to look to his credit, or if he require the assurance of the agent, he will be personally liable upon the contract. Id.

9. The construction of a contract depends upon its terms, the subject matter, and

2.

3.

311

corporations, to bind them by contracts, depend exclusively upon the charter and by-laws (or statutes) of such corporations respectively.

COST.

Id.

When two suits are pending to recover the same debt, and a judgment is rendered in one and paid, this cannot be pleaded in bar of the other without payment of the cost. Stevens v. Briggs, 44 Payment after suit commenced cannot be pleaded in bar unless it is a payment of the cost of the suit. In such a case the plaintiff may recover nominal damages. Id.

A judgment cannot be rendered for a plaintiff to recover cost, only, unless

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1. A conveyance by the husband, shortly
before his death, of all his property, both
real and personal, to his children, with-
out any valuable consideration, and with
the intent to defeat his wife of her dower
and her share of the personal estate, se-
curing at the same time to himself the
possession, use and control of it during
his life, is fraudulent against the claims
of the wife, and will be set aside. Thayer
107
v. Thayer et al.,

2.

Though the wife separate from the hus-
band by reason of family discord, yet
such separation is no forfeiture of her
right of dower and her share of the per-
sonal estate, though she may have no
justifiable cause of separation.

Id.
3. Where a person, seized of lands, for the
consideration of one dollar and for love
and affection, executed a deed conveying
the lands to his brother, and afterwards
delivered the deed to a third person to
be by him kept until after the grantor's
death, and then to be delivered to the
grantee, and the grantor retained posses-
sion of the lands during his life, and af-
ter the death of the grantor the deed was
delivered to the grantee, and a part of
the lands so deeded were afterwards set
off to the widow of the grantor, under an
order of the probate court, as her dower
in the real estate of the grantor; it was
held that such deed did not operate to
convey the lands, so as to deprive the
widow of her dower therein.
Ladd,

E

EJECTMENT.

Ladd v.
185

A trustee may recover,in ejectment, against
his cestui que trust. Beach v. Beach, 28

EVIDENCE.

1. The certificate of the clerk of the proper
office, upon a deed, that the same has
been duly recorded, is sufficient to enti-
tle it to be used as evidence, and the
effect of the evidence is not defeated by
producing a copy of such record, duly
certified, showing that the clerk did not
correctly record the deed, especially
where such error does not affect the in-
terest of the person against whom the
evidence is offered. Manwell, adm'r, v.
Estate of Manwell,

14
2. When individuals hold themselves out
as a society with corporate powers, hold
meetings as such, and, in one, duly
called, employ a person to render ser-
vices for them, they cannot require such
person to prove, by their incorporation
or written constitution, that they are em-
powered to act as they have assumed to
do. Stone v. Cong. Soc. Berkshire, 86
3. Members of a society organized with
corporate powers, under the statute, for
the support of the gospel, are not com-
petent witnesses, at common law, for the
corporation; and it is not a case within
the act passed in 1816, making, in cer-
tain cases, corporators witnesses. Id.
4. Held, that the admission of L. against
his title to a yoke of oxen, that they be-
longed to R., under whom the plaintiff's
claimed, were not evidence against S.
who, as sheriff, had attached them as be-
longing to L., though made before the
attachment and while L. was in posses-
sion. Hines & Kellogg v. Soule,
5. Where it was attempted to be proved
that a partnership existed between two
persons as innkeepers, &c., by the ad-
mission of one of the alleged partners,
and by the course and circumstances of
their business and their joint use of the
property, connected with the tavern-
house, it was held that an assignment of
the tavern furniture and accounts, by the
other alleged partner, to a third person,
for the payment of the assignor's debts,
might be given in evidence as tending to
rebut the testimony on the part of the
plaintiff, and to show that the alleged
partners had not been in the joint receipt
of the income of the tavern. Callender
v. Sweat et al.,
160
6. A certificate of the selectmen, lodged
with the town clerk for record, is the
legitimate evidence that a road has been
opened and devoted to public use. Blod-
get v. Town of Royalton,

99

288

7. An indictment against a town for not
repairing a highway, and a conviction
thereon, is evidence that such highway
has been adopted by the town.

Id.

8. Where, in an ancient deed, conveying
several lots of land, the grantors de-
scribed themselves as heirs of a deceased
person who owned the lands at the time
of his decease, and the grantee of such
heirs conveyed different lots of the same
lands to different persons, who continued
for thirty or forty years in quiet posses-
sion, such sale and possession is proper
testimony to prove that the persons so
describing themselves as heirs were in
fact the heirs of the person deceased.
Bell, adm'r, v. Barrons,
307

9. Before evidence of the contents of a
writing should be admitted in evidence,
it should be shown that inquiry has been
made, at the place, and of the person,
where, or with whom, it was last depos-
ited. Royalton v. R. & W. Turnpike Co.

311

10. In an action of covenant broken, upon
a covenant against incumbrances, in
which the defendant pleaded that he had
kept and performed his covenant, and
issue joined, evidence tending to prove
that the defendant had paid, before the
commencement of this suit, a mortgage
outstanding at the time of the execution
of his deed, is not pertinent to the issue,
and for this cause not admissible to sup-
port it. Judevine v. Pennock,
11. A note, payable in good well-finished
plows, is not to be controlled by parol
evidence, showing that it was also agreed,
when the note was given, that if there
should be improvements in the pattern
the holder of the note should be entitled
to have plows of the improved pattern.
Gilman v. Moore,
457

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438

1. Where a debtor, in an appealed suit,
tendered a judgment by confession, in
pursuance of the act in addition to the
justice act, passed in 1821, for more than
fifty-three dollars damages;-Held, that
the execution, issued upon such judg-
ment, should have been made returnable
in one hundred and twenty days. Jame-
son v. Paddock et al.,
491
2. When such execution issued returnable
in sixty days, it was held to be irregular,
and the lien on the property attached up-
on the writ was lost.

Id.
3. If a sheriff declare on a receipt for prop-
erty attached, setting forth the recovery
of a judgment and the issuing of an
irregular execution thereon, and a de-
mand of the property only for the pur-

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