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pose of levying such execution upon the reside, for the benefit of the plaintiff and
property, such declaration is bad on de- the treasurer of that county.

Id.
murrer.

Id. 3. A joint action against the fraudulent

grantor and grantee, to recover the pen-
EXCEPTIONS.

alty, cannot be maintained, and if both

are joined as defendants and a verdict is
1. Under the revised statutes, bills of ex obtained against them, judgment will be
ceptions must be filed with the clerk of arrested.

Id.
the county court within thirty days from

See DowER.
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

GUARANTY.

557
3. Under the revised statutes, it is suffi- 1. A guaranty that a note, payable at a fu.
cient if the bill of exceptions is signed

ture day, « is due and that the maker
by the chief judge of the county court.

has nothing to file against it," is to be

considered as referring to the time when
4. The party demurring in the county the note arrives at maturity. Adams v.

court will open the argument in this Clarke,
court, although the other party brought 2. The statute of limitations does not com.
up the case on exceptions.

mence running on such guaranty until

the note becomes due.
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
FRAUDS, STATUTE OF. of them, and of his intention to avail

himself of them, in a case where there
Though an entire contract for the sale of

is no extension of credit given the ma-
real and personal estate may be required

ker of the note by reason of the warran.

147
to be in writing, so as to be operative as

ty. Russell v. Buck,
to the personal property ; yet, where the

4. One (not the payee) who writes his
possession of the real estate has been

name in blank on the back of a nego-
taken under the parol agreeinent, im-

tiable promissory note, may always show,
provements made, and a part of the con-

by parol, the extent of his contract.
sideration paid, the vendor cannot insist

Sanford v. Norton,
upon the statute of frauds to avoid the

avoid the 5. If it be a mere collateral guaranty, he
whole contract, and recover for the per-

is entitled to reasoable notice of the de.
sonalty in the same manner as if it had

fault of the principal debtor, and if he
gone into the hands of the defendant

do not receive it, he is exonerated to the
without a special agreement. Smith v.

extent of the loss he thereby sustains.
Smith,

Id.
440

6. Such guaranty, as between the parties,
FRAUDULENT CONVEYANCES.

is not negotiable.
17. If it be negotiated, as part of the orig-

inal contract, to a bona fide holder, for
1. An action to recover the penalty for bei

value; Quære- Whether the guarantor
ing a party to a fraudulent conveyance

will be holden as a joint promissor. Id.
cannot be maintained in the courts of this 18. Upon the defendant proving the nature
state if the conveyance was made in an-

of his contract to have been a guaranty,
other state. Slack, 9. t. v.Gibbs et. al. 357

merely, it is at all events incumbent
2. Under the statutes in force previously

upon the holder of the note to show that
to the passage of the revised statutes, if

he gave value for it, before he can claim
a fraudulent conveyance is made in one

any advantage above the person to
county and the party aggrieved and the

whom the guaranty was made. Id.
parties to such conveyance all reside in
another county, the action may be
brought in the county where the parties

Id.

ntanodinu

HUSBAND AND WIFE.

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HIGHWAYS.

The lands of a married woman may be set

off, during coverture, in satisfaction of
1. A land owner, through whose land a an execution issued upon a judgment
public road has been laid out by the se

against her and her husband, founded on
lecimen, cannot legally commence pro-

a contract executed by her previously to
ceedings before a justice of the peace,

340

her marriage. For v. Hatch,
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. Emer-

INDICTMENT.
son & wife v. Town of Reading, 279
2. If such land owner commences such 1. Where an indictment commenced thus;
proceedings before such certificate is The grand jurors within and the body
left in the town clerk's office for record,l of the county,' &c.,-it was held, on mo-
and causes his damages to be assessed, tion in arrest, that the omission of the
and the justice issues his order therefor, word for, after the word "and,' did not
the proceedings are void, although the vitiate the indictment. Slate v. Brady,
adverse party was duly notified. Id.

353
3. A certificate of the selectmen, lodged 2. An allegation, in an indictment for bur-

with the town clerk for record, is the glary, that the respondent broke and en-
legitimate evidence that a road hastered the dwelling-house of one person,
been opened and devoted to public use. ! with intent to steal his goods, and, hav-

Blod yet v. Town of Royalton, 288 ing so entered, stole and carried away
4. Towns are liable for damages occasion. the goods of another person then and

ed by the insufficiency of any highway there being found, is not a misjoinder of
which they adopt, either by leaving it offences.
open for travel and shutting up other
highways, or by setting it in the rate INFANTS AND INFANCY.

bill of the highway surveyor. Id.
5. An indictment against a town for not 1. If an action be brought against several

repairing a highway, and a conviction defendants, one of whom is an infant,
thereon, is evidence that such highway and the case is tried without the appear-
has been adopted by the town. If such ance of any guardian for the infant, and
highway is insufficient, the town is re. appealed to the county court, and judg.
ponsible to individuals who may thereby ment there affirmed, in the same manner,
sustain damages.

Id. and execution issued, it affords no ground
6. What constitutes an opening of a high of audita querela. Chase v. Scott, 77

way is a question of law, and it is error 2. The appropriate remedy in such case is
in the conrt to leave that question to the by writ of error.

Id.
jury to determine, without instructing 3. Where an adult hired a minor to work
them as to the law.

Id. for him by the month, and the minor la-
7. The consent of the selectinen that a bored a given time and received of the

person may travel on any road, or their adult certain articles of property on ac.
knowledge that the traveller supposes it count of his labor, it was held ihat the
to be a public highway, does not render minor could not retain the property so
a town liable for injuries happening received, and recover the full value of
thereon, unless they have done some act his services. Taft & Co. v. Pike, 405

recognizing it as a public highway. Id. 4. In such case the articles received by the
8. The selectmen may agree with the minor should be allowed against him for

owner of land on the amount of damages | what they are reasonably worth, without
to be paid to him before opening a road regard to the contract of the minor. Id.
through his land, and draw an order 5. Interest, on an account, not allowed
therefor. Battles v. Braintree, 3487 against a minor.

Id.
9. The owner of the land is not precluded 6. Infancy is a good bar to an action found.

from claiming damages by reason of any ed upon a false and fraudulent warranty
parol agreement made between his gran. upon the sale of a horse. West v. Moore,
tor and the selectmen, waiving damages,

447
if the road has not been opened in the
manner pointed out by statute.

INSOLVENT ESTATE.
See CostRACT, 5.

See Probate Court, 1.
VOL. XIV. W. R. IV.

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33

INTEREST.

are joined as defendants and a verdict is

obtained against them, judgment will be
1. Where a promissory note is made in arrested. Slack, q.t. v. Gilbs et al , 357

Canada and indorsed in this state, in
both of which places the rate of interest

JUDGMENT.
is six per cent. and payable at a day cer-
tain in the state of New York, where the An action of assumpsit will not lie opon
rate of interest is seven per cent, and not the judgment of another of the American
paid when due-both the makers and the states. The declaration must be in debt,
indorsers are liable to pay seven per cent. counting upon the judgment as a record.
interest, as damages, for such delay. Boston India Rubber Factory v. Hoit, 92

Pecks et al. v. Mayo et al.,
2. Interest, on an account, not allowed JUDGMENT non obstante deredicto.
against a minor. Taft & Co. v. Pike, 405

Where the complaint, in an audita querela,
IMPRISONMENT FOR DEBT. is traversed, and a verdict found for the

complainant, the court cannot render
1. When a judgment is rendered in an ac judgment for the defendant, notwith-

tion of book account, part of the account standing the verdict. French v. Steele,
having accrued before the first of Janu-

479
ary, 1839, and a part afterwards, the
creditor cannot have an execution upon

JURISDICTION.
such judgment against the body of the
debtor. Witt v. Marsh et al., 303 1. The supreme court have not jurisdiction
2. If an execution is issued in such case of a petition to set aside a default entered

against the body, and the debtor is com-! in the county court. Adams et al. v.
mitted to prison thereon and gives a jail Howard,

158
bond, such bond is void, and the defend. 2. In an action for a breach of warranty,
ants, in defence of a suit on the bond, on the sale of a horse, in two counts, al.
may give in evidence the illegality of leging, in each count, that the plaintiff
such execution.

Id. 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
JAIL BOND.

action. Wightman v. Carlisle, 296

See Book Account, 1, 2, 3.
If an execution is issued against the body,

on a judgment rendered in an action of JUSTICE OF THE PEACE.
book account, part of the account having
accrued before the first of January, 1839, 1. A person holding the office of postmas.
and a part afterwards, and the debtor is ter is eligible to an executive or judicial
committed to prison thereon and gives a office in the state, but cannot hold them
jail bond, such bond is void, and the del both at the same time. McGregor v
fendants, in defence of a suit on the Balch et al.,

428
bond, may give in evidence the illegality 2. If a justice of the peace exercises the
of such execution. Witt v. Marsh et al.,

office at the same time he holds the office
of postmaster, he will be removed on a

quo warranto, and it seems that, in a suit
JOINDER OF PARTIES.

against him for acting as justice, he

could not justify under his appointment
1. Where services are performed at the re- as justice.

Id.
quest of two, and the testimony is equally 13. But such person is a justice de facto, and
strong to prove a contract against both all his acts as such, before removal, are
as against one, both are liable on such valid between third persons. Id.
contract, and, in an action on book | 4. In a suit to which he is not a party, his
against one of the promissors, the non-l appointment or eligibility cannot be tried
joinder of the other may be taken advan-

or determined.

Id.
tage of before the auditor. Smith v. 5. It is no ground of a plea in abatement
Watson,

| as to the jurisdiction, that the magistrate,
2. A joint action against the fraudulent at the time of issuing the writ and trying
grantor and grantee, to recover the pen-

the case, was a postmaster.

Id.
alty, cannot be maintained, and if both

See JURISDICTION, 2.

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assigns the judgment, the lien does not
attach to the clain in the hands of the
assignee. Beech v. Canaan,

485
LESSOR AND LESSEE.

LIMITATION, STATUTE OF.
1. Where one person, in terms, leases a

portion of an entire farm, the rent to be 11. The statute of 1832, in regard to the
paid in a specified proportion of the pro-

limitation of actions, providing that if
duct of the whole farın, the remaining any person shall go from this state be-
portion being the property of the lessee,

fore the cause of action shall be barred,'
and the lessee expressly stipulating to

the time of such absence shall not be
deliver such rent at a time and place

reckoned in determining the time within
named, he must sever that portion of the

which such cause of action shall be
products which constitutes the rent, from

barred, was not intended to operate upon
the mass, or he will be liable upon his causes of action, which were then clearly
contract for the entire sum. Manwell, barred by the operation of the previous

adm'r, v. Estate of Manwell, 14 statutes of limitation. Lowry v. Keyes, 66
2. Where the owner of cattle leased them, 2. It would seem that one who cuts a canal
with a farm, for four years, under an

through his own land, and erects mills,
agreement that, at the expiration of the and diverts a portion of a stream from its
four years, the lessee might either return

accustomed channel, upon the land of
the cattle or pay a stipulated price for

another, and is suffered to do this by the
them, and the lessee sold the cattle be proprietor below, for fifteen years, there-
fore the four years had expired, it wus by acquires the right to do it. Norton v.
held, that such sale determined the les. Volentine,

239
see's right of possession, and that the 3. Quære.-How far does he thus oblige
owner might maintain trover for the cat. I himself to continue such artificial flow
tle against both seller and purchaser of water?
Grant v. King et al.,

367 4. In an action on a promissory note, where
3. In such case, no demand is necessary

the maker, after the statute of limitations
of either seller or purchaser to perfect

had run, said it was a just debt and
the plaintiff's right of action, if the pur ought to have been paid, but he became
chaser has converted the property to his poor and could not pay it, but that he
own use.

Id. would pay one-half of it at a future pe-
4. The rule of damages, in such case, is to

riod if the payee would give up the note;
give the value of the cattle at the time Held that such acknowledgment did not
of the sale, with interest.

Id. take the case out of the statute of limita-
tions. Cross v. Conner,

394
LEX LOCI.

See GUARANTY, 2.

Id.

1. As a general rule those incidents of a

contract, which concern its force and
validity, as well as its performance, and

M
damages for non performance, will be
determined by the law of the place of MONEY HAD AND RECEIVED.

payment. Pecks et al. v. Mayo et al., 33
2. Where a note is made negotiable, and Although a postmaster, who receives a

the payment of it guarantied in the state letter, containing money, which is lost
of New York, the ler loci governs the through his want of ordinary care is lia-
liabilities of the parties. Russell v. Buck, ble to a special action on the case, for

147 such neglect, he is not liable to an action

for money had and received, unless he
LIEN.

put the money to his own use. Danforth
v. Grant,

283
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.

MORTGAGE.
But such lien will not be protected against
pre-existing rights of third persons.-11. Where a mortgagee gave public notice
Walker v. Sargeant,

247 of the sale of the mortgaged premises at
2. Though an attorney may have a lien for auction and engaged to give a title of

costs, &c., which the court, after notice, warranty and immediate possession, and
might protect, yet, when he sues his cli the mortgagor consented to such sale
ent, and obtains judgment therefor andl and aided and assisted in circulating nu.

tice thereof and received the amount of copy has been applied for and could not
the purchase money, and the purchaser be obtained, in which case, only, will
went into possession and made large im-1 the court dispense with such copy and ad.
provements; it was held that the mort. mit the affidavits of the attorneys, as to
gagor could not afterwards redeem the what passed at the trial,

Id.
premises, nor compel the purchaser to 5. When a judgment has been rendered
account for the rents and profits. Wright against a party, in the county court, by
v. Whitehead, et al.

268 default, this court cannot, on petition,
2. Though improvements are made upon grant a trial in the action. Adams et al.
lands mortgaged by a third person, claim v. Howard,

560
ing neither under the mortgagee nor
mortgagor, yet, if after this the mort.

See Default, 1.
gagee enters and occupies, he may be
charged for rents that arise by reason of
such improvements. Merriam, adm. v.

NOTICE.
Barton, et al.

501
3. The administrator is the person to bring ,

A to bring 1. A notice to take testimony, under a
a bill to redeem, instead of the heirs. Id.

commission, must specially name the
4. The equity of redemption is not barred |

time and place of taking. Adm. of Mil-
by a possession in the mortgagee for a

ler v. Freeman,

138
shorter period than fifteen years, though

2. When the statute requires seven days
there may be an embarrassment in taking

notice of the meetings of sehool districts,
the accounts.

a notice dated on the first day of the

month, and the meeting held on the
MOTION IN ARREST.

seventh, is not sufficient. Hunt v. School
district No. 20, Norwich,

300
See Audita QUERELA, 4, 5.

3. 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
nscessary. Johnson v. Rice.

391
NEW TRIAL.

Id.

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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-

OFFICER.
money is where the newly discovered
testiniony is to the same fact litigated at 1. A stranger to the process cannot object
the former trial, but is not cumulative I that the execution was directed to an im-
when it is to a different fact. Kirby v. proper officer. Crane v. Warner, 40
Waterford,

414 2. Held,-in a suit against an officer for
2. Where a case comes to this court on not taking bail, the debtor having ab-

exceptions to the decision of the county | sconded that the officer was liable for
court of questions of law, this court can the full amount of the debt, there being
not entertain a motion for a new trial on no proof of the debtor's insolvency, Id.
the ground of new-discovered evidence. 3. Officers, attaching property on mesne

Minkler y. Estate of Minkler, 558 process, are not liable for the property,
3. In petitions for a new trial of actions if it is taken from

if it is taken from them witi

them without any
tried in the county court, it is not neces. want of ordinary care on their part.
sary that the petitioner should give se Bridges v. Perry,

262
curity for costs to the adverse party, on 3. Officers, under such circumstances, are
issuing the citation, as is required on the only liable for the same degree of dili-
issuing of writs of summons. Durkee gence in keeping the property as other
v. Marshall,
559 bailees for pay.

Id.
4. On a petition for a new trial, this court 15. In an action of trespass or trover against

will not proceed to the hearing upon the an officer for taking the property of the
merits until furnished with a properly plaintiff, though taken by virtue of a
authenticated copy of the ininutes of the legal process against another, and as his
judge who tried the case in the county property, yet, but twelve days notice is
court, or evidence showing that such necessary. Johnson v. Rice,

Id.

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