1. Under the revised statutes, bills of ex-
ceptions must be filed with the clerk of
the county court within thirty days from
the rising of that court, and, if they are
not so filed, they cannot be entertained
in the supreme court. Higbee v. Suttons,
and Shattuck v Oakes,
555-6
2. In actions in favor of the treasurer of
the state, on recognizances, either party
may bring the case into this court on
exceptions to the decision of the county
court. State Treasurer v. Merrill et al
557
3. Under the revised statutes, it is suffi-
cient if the bill of exceptions is signed
by the chief judge of the county court.
Id.
4. The party demurring in the county
court will open the argument in this
court, although the other party brought
up the case on exceptions.
1. A guaranty that a note, payable at a fu-
ture day, "is due and that the maker
has nothing to file against it," is to be
considered as referring to the time when
the note arrives at maturity. Adams v.
Clarke,
The statute of limitations does not com-
mence running on such guaranty until
the note becomes due.
Id.
4. It is no waiver of a defence, on the part
of the warrantor of a note, that he is
advised, after giving the warranty, of a
state of facts which will be a defence for
him, and omits to give the holder notice
of them, and of his intention to avail
himself of them, in a case where there
is no extension of credit given the ma-
ker of the note by reason of the warran-
ty. Russell v. Buck,
Though an entire contract for the sale of
real and personal estate may be required
to be in writing, so as to be operative as
to the personal property; yet, where the 4.
possession of the real estate has been
taken under the parol agreement, im-
provements made, and a part of the con-
sideration paid, the vendor cannot insist
upon the statute of frauds to avoid the
whole contract, and recover for the per-
sonalty in the same manner as if it had
gone into the hands of the defendant
without a special agreement. Smith v.
Smith,
1. An action to recover the penalty for be-
ing a party to a fraudulent conveyance
cannot be maintained in the courts of this
state if the conveyance was made in an-
other state. Slack, q. t. v. Gibbs et. al. 357
2. Under the statutes in force previously
to the passage of the revised statutes, if
a fraudulent conveyance is made in one
county and the party aggrieved and the
parties to such conveyance all reside in
another county, the action may be
brought in the county where the parties
One (not the payee) who writes his
name in blank on the back of a nego-
tiable promissory note, may always show,
by parol, the extent of his contract.
Sanford v. Norton,
If it be a mere collateral guaranty, he
is entitled to reasoable notice of the de-
fault of the principal debtor, and if he
do not receive it, he is exonerated to the
extent of the loss he thereby sustains.
Id.
6. Such guaranty, as between the parties,
is not negotiable.
Id.
7. If it be negotiated, as part of the orig-
inal contract, to a bona fide holder, for
value; Quære-Whether the guarantor
will be holden as a joint promissor. Id.
Upon the defendant proving the nature
of his contract to have been a guaranty,
merely, it is at all events incumbent
upon the holder of the note to show that
he gave value for it, before he can claim
any advantage above the person to
whom the guaranty was made.
The lands of a married woman may be set
off, during coverture, in satisfaction of
an execution issued upon a judgment
against her and her husband, founded on
a contract executed by her previously to
340
her marriage. Fox v. Hatch,
1. A land owner, through whose land a
public road has been laid out by the se-
lectmen, cannot legally commence pro-
ceedings before a justice of the peace,
for the assessment and recovery of dam-
ages, under the act relating to highways,
passed November 15, 1820, until after
the selectmen shall have left in the town
clerk's office, for record, their certificate
that the road has been opened.
son & wife v. Town of Reading,
2. If such land owner commences such 1.
proceedings before such certificate is
left in the town clerk's office for record,
and causes his damages to be assessed,
and the justice issues his order therefor,
the proceedings are void, although the
adverse party was duly notified.
3. A certificate of the selectmen, lodged 2.
with the town clerk for record, is the
legitimate evidence that a road has
been opened and devoted to public use.
Blodget v. Town of Royalton,
288
4. Towns are liable for damages occasion-
ed by the insufficiency of any highway
which they adopt, either by leaving it
open for travel and shutting up other
highways, or by setting it in the rate
bill of the highway surveyor.
Id.
5. An indictment against a town for not 1.
repairing a highway, and a conviction
thereon, is evidence that such highway
has been adopted by the town. If such
highway is insufficient, the town is re-
ponsible to individuals who may thereby
sustain damages.
6. What constitutes an opening of a high-
way is a question of law, and it is error
in the court to leave that question to the
jury to determine, without instructing
them as to the law.
7. The consent of the selectmen that a
person may travel on any road, or their
knowledge that the traveller supposes it
to be a public highway, does not render
Where an indictment commenced thus;
The grand jurors within and the body
of the county,' &c.,-it was held, on mo-
tion in arrest, that the omission of the
word for, after the word and,' did not
vitiate the indictment. State v. Brady,
An allegation, in an indictment for bur-
glary, that the respondent broke and en-
tered the dwelling-house of one person,
with intent to steal his goods, and, hav-
ing so entered, stole and carried away
the goods of another person then and
there being found, is not a misjoinder of
offences.
Id.
If an action be brought against several
defendants, one of whom is an infant,
and the case is tried without the appear-
ance of any guardian for the infant, and
appealed to the county court, and judg-
ment there affirmed, in the same manner,
and execution issued, it affords no ground
of audita querela. Chase v. Scott, 77
The appropriate remedy in such case is
by writ of error.
Id.
Where an adult hired a minor to work
for him by the month, and the minor la-
bored a given time and received of the
adult certain articles of property on ac-
count of his labor, it was held that the
minor could not retain the property so
received, and recover the full value of
his services. Taft & Co. v. Pike,
town liable for injuries happening
thereon, unless they have done some act
recognizing it as a public highway. Id. 4.
8. The selectmen may agree with the
owner of land on the amount of damages
to be paid to him before opening a road
through his land, and draw an order 5. Interest, on an account, not allowed
therefor. Battles v. Braintree,
1. Where a promissory note is made in
Canada and indorsed in this state, in
both of which places the rate of interest
is six per cent. and payable at a day cer-
tain in the state of New York, where the
rate of interest is seven per cent, and not
paid when due-both the makers and the
indorsers are liable to pay seven per cent.
interest, as damages, for such delay.
Pecks et al. v. Mayo et al.,
33
2. Interest, on an account, not allowed
against a minor. Taft & Co. v. Pike, 405
1. When a judgment is rendered in an ac-
tion of book account, part of the account
having accrued before the first of Janu-
ary, 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
2. If an execution is issued in such case
against the body, and the debtor is com-
mitted to prison thereon and gives a jail
bond, such bond is void, and the defend-
ants, in defence of a suit on the bond,
may give in evidence the illegality of
such execution.
In an action for a breach of warranty,
on the sale of a horse, in two counts, al-
leging, in each count, that the plaintiff
had been put to great charges and ex-
penses in keeping the horse, to wit, one
hundred dollars,' the declaration conclu-
ding to the damage of the plaintiff one
hundred dollars,'-it was held that a jus-
tice of the peace had jurisdiction of the
action. Wightman v. Carlisle, 296
See Book ACCOUNT, 1, 2, 3.
It is no ground of a plea in abatement
as to the jurisdiction, that the magistrate,
at the time of issuing the writ and trying
the case, was a postmaster.
Id.
See JURISDICTION, 2.
1. Where one person, in terms, leases a
portion of an entire farm, the rent to be 1.
paid in a specified proportion of the pro-
duct of the whole farin, the remaining
portion being the property of the lessee,
and the lessee expressly stipulating to
deliver such rent at a time and place
named, he must sever that portion of the
products which constitutes the rent, from
the mass, or he will be liable upon his
contract for the entire sum. Manwell,
adm'r, v. Estate of Manwell,
2. Where the owner of cattle leased them,
with a farm, for four years, under an
agreement that, at the expiration of the
four years, the lessee might either return
the cattle or pay a stipulated price for
them, and the lessee sold the cattle be-
fore the four years had expired, it was
held, that such sale determined the les-
see's right of possession, and that the
owner might maintain trover for the cat-
tle against both seller and purchaser.
Grant v. King et al.,
367
3. In such case, no demand is necessary
of either seller or purchaser to perfect
the plaintiff's right of action, if the pur-
chaser has converted the property to his
The statute of 1832, in regard to the
limitation of actions, providing that if
any person shall go from this state be-
fore the cause of action shall be barred,'
the time of such absence shall not be
reckoned in determining the time within
which such cause of action shall be
barred, was not intended to operate upon
causes of action, which were then clearly
barred by the operation of the previous
statutes of limitation. Lowry v. Keyes, 66
It would seem that one who cuts a canal
through his own land, and erects mills,
and diverts a portion of a stream from its
accustomed channel, upon the land of
another, and is suffered to do this by the
proprietor below, for fifteen years, there-
by acquires the right to do it. Norton v.
Volentine,
In an action on a promissory note, where
the maker, after the statute of limitations
had run, said it was a just debt and
ought to have been paid, but he became
poor and could not pay it, but that he
would pay one-half of it at a future pe-
riod if the payee would give up the note;
Held that such acknowledgment did not
take the case out of the statute of limita-
tions. Cross v. Conner,
394
Although a postmaster, who receives a
letter, containing money, which is lost
through his want of ordinary care is lia-
ble to a special action on the case, for
such neglect, he is not liable to an action
for money had and received, unless he
put the money to his own use. Danforth
v. Grant,
1. An attorney has a lien upon a judgment
in favor of his client and upon his client's
papers, for his costs and disbursements.
But such lien will not be protected against
pre-existing rights of third persons.1.
Walker v. Sargeant,
2. Though an attorney may have a lien for
costs, &c., which the court, after notice,
might protect, yet, when he sues his cli-
ent, and obtains judgment therefor and
Where a mortgagee gave public notice
of the sale of the mortgaged premises at
auction and engaged to give a title of
warranty and immediate possession, and
the mortgagor consented to such sale
and aided and assisted in circulating no-
tice thereof and received the amount of
the purchase money, and the purchaser
went into possession and made large im-
provements; it was held that the mort-
gagor could not afterwards redeem the
premises, nor compel the purchaser to
account for the rents and profits. Wright
v. Whitehead, et al.
268
2. Though improvements are made upon
lands mortgaged by a third person, claim-
ing neither under the mortgagee nor
mortgagor, yet, if after this the mort-
gagee enters and occupies, he may be
charged for rents that arise by reason of
such improvements. Merriam, adm. v.
Barton, et al.
501
3. The administrator is the person to bring
a bill to redeem, instead of the heirs. Id.
4. 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.
See AUDITA QUERELA, 4, 5.
A new trial may be granted in a pauper
case where the testimony is newly dis-
covered and not cumulative, and will
change the verdict, and the parties have
not been negligent. Cumulative testi-
money is where the newly discovered
testimony is to the same fact litigated at
the former trial, but is not cumulative
when it is to a different fact. Kirby v.
Waterford,
414
2. Where a case comes to this court on
exceptions to the decision of the county
court of questions of law, this court can-
not entertain a motion for a new trial on
the ground of new-discovered evidence.
Minkler v. Estate of Minkler,
3. In petitions for a new trial of actions
tried in the county court, it is not neces-
sary that the petitioner should give se-
curity for costs to the adverse party, on
issuing the citation, as is required on the
issuing of writs of summons. Durkee
v. Marshall,
4. On a petition for a new trial, this court
will not proceed to the hearing upon the
merits until furnished with a properly
authenticated copy of the minutes of the
judge who tried the case in the county
court, or evidence showing that such
A stranger to the process cannot object
that the execution was directed to an im-
proper officer. Crane v. Warner, 40
Held,-in a suit against an officer for
not taking bail, the debtor having ab-
sconded-that the officer was liable for
the full amount of the debt, there being
no proof of the debtor's insolvency, Id.
Officers, attaching property on mesne
process, are not liable for the property,
if it is taken from them without any
want of ordinary care on their part.
Bridges v. Perry,
Officers, under such circumstances, are
only liable for the same degree of dili-
gence in keeping the property as other
bailees for pay.
5. In an action of trespass or trover against
an officer for taking the property of the
plaintiff, though taken by virtue of a
legal process against another, and as his
property, yet, but twelve days notice is
necessary. Johnson v. Rice,
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