1. Transient poor, falling within the elev- enth section of the act of 1797, do not come within the twentieth section, re- quiring an order for their support, in order to bind the town beyond five dol- lars, and especially in a case in which the town had, by their committee, al- lowed an account for supporting such poor beyond the sum of five dollars, had made provision by vote for the payment, and had made such account the ground of a claim against the town, where the transient pauper had her legal settle- ment, which they had compromised. Harrington v. Alburgh. 2. Where a person resided in a town eight years in successiou from the first day of April, 1817, and his list that year, exclu- sive of his poll, and for each of the four years next thereafter, exceeded sixty
dollars, it was held that the list of 1817 could not be reckoned as one of the lists necessary to gain a settlement in such town under the fourth section of the act, passed November 4, 1817, providing that a person may gain a settlement, if his rateable estate, besides his poll, shall be set in the list at the sum of sixty dollars or upwards, for five years in suc- cession, the list of 1817, having been made previously to the passage of the act. Manchester v Dorset, 224
3. Where such person, after the passage of the act of 1820, relating to the grand list, was possessed of property sufficient to have produced a list exceeding sixty dollars, under the listing laws previously in force, but, under the act of 1820, the list of such person's property was below sixty dollars, it was held that such re- duced list operated to prevent the gain- ing of a settlement by such person, under said act of 1817, although his list for the four previous years exceeded that Id.
Where the overseers of the poor of a town, by contract with a poor person, received from him a horse, towards in- demnifying the town in yielding him a support, it was held the property of the horse vested in the town and they might sue for him. Town of Lyndon v. Bel-
And that the pauper, being in a dis- tressed condition and in need of relief, had a right so to dispose of the horse, be- ing of little value, and his creditors could not impeach the transaction, as without consideration. Id.
6. It was also held that there having been a general and substantial change in the possession of the property, the sale was not rendered fraudulent per se, though the overseers had permitted the pauper to ride the horse a short distance in two or three instances, and though, on one of these occasions, the property was at- tached, Id.
1. A physician cannot recover of a brother of an insane person for medical attend- ance, &c., rendered the latter, at the request of such brother, unless there was an employment under such circum- stances as to show an intention on the part of such brother to pay for the ser- vices, and so understood by him and the physician. Smith v. Watson, 332 2. The employment of a physician, and a promise to pay him for his services, made on the Sabbath, is not prohibited by statute. Id.
1. A plea in bar which sets up a parol agreement, made at the same time when a note, absolute upon its face, was given, that it should only be payable upon a contingency, is insufficient to bar an ac- tion on the note. Hatch v. Hyde et al. 25 2. A plea in bar which denies the original cause of action, as a want of considera- tion, amounts to the general issue, and is ill on special demurrer 3. A plea in abatement, that H. F., by whom the writ was served, was not, at the time of making the service, duly authorized and qualified to serve the writ, is ill. Crane v. Warner, 40 4. When two suits are pending to recover the same debt, and a judgment is ren- dered in one and paid, this cannot be pleaded in bar of the other without pay- ment of the cost. Stevens v. Briggs, 44 5. Payment after suit commenced cannot be pleaded in bar unless it is a payment of the cost of the suit. In such a case a plaintiff may recover nominal damages.
6. A declaration, declaring upon a note payable in fulled cloth,' is supported by a note payable in woolen fulled cloth,' and the legal effect of its being payable at its cash price, is the same as if payable at its cash value. Wead v. Marsh, 80 7. Where the plaintiff, in his plea to a dec- laration in offset, alleged that the debt in suit was assigned to an attorney and that such attorney had a lien thereon for costs, and the defendant, in his replica- tion, traversed the allegation by alleging that there was no such lien or assign- ment to the defendant's knowledge, and it appeared that no notice of the lien and assignment was necessary to protect the rights of the attorney,-it was held, that such traverse presented an immaterial issue. Walker v. Surgeant,
8. Duplicity in a plea cannot be taken ad- vantage of on a general demurrer. Id.
19. Where damages are claimed, for the breach of a special contract, the declara- tion must count upon the contract. Roy- alton v. R. & W. Turnpike Co., 311
10. The common counts will avail in such cases only where the terms of the special contract have been fully performed, on both parts, and nothing remains but the simple duty of paying for money, labor, or goods, as the case may be. 11. It is not always sufficient to describe a contract in the terms in which the con- tract, itself, is expressed.
12. If the contract be equivocal, or obscure, its obligations should be described in the language of the law, (with certainty to a common intent,) to avoid the consequen- ces of a demurrer, or motion in arrest. Id. But if the contract be described in the terms of the contract itself, it is no vari-
describing themselves as heirs were in fact the heirs of the person deceased. Bell, adm, v. Barrons, 307 4. Where one has claims of title to land by deed or other writing,and from time to time continues to enter upon the same, and to do acts, which, in connection with his avowed object, at the time of doing them, evince an intention to use the land as his own, this will be construed a pos- session of the land in such person, to the extent of his written claim of title. Spear v. Ralph, 400 5. If such acts be done by one who has contracted to purchase the land, and has entered upon it, by consent of the per- son holding a written claim of title, then they constitute a possession in the ven- dor, 6. Cutting a road upon land with a view to get timber, or to fell trees in order to clear and cultivate land, constitutes, in connection with a written claim of title, a constructive possession to the whole tract described. Id.
4. In actions in favor of the treasurer of the state, on recognizances, either party may bring the case into this court on ex- ceptions to the decision of the county court. State v. Merrill et al.,
5. Under the revised statutes, it is suffici- ent if the bill of exceptions is signed by the chief judge of the county court. Id. 6. The party demurring in the county court will open the argument in this court, although the other party brought up the case on exceptions. Id. 7. 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 evi- dence. Minkler v. Estate of Minkler, 558 In petitions for new trials of actions tried in the county court, it is not ne- cessary that the petitioner should give security for costs to the adverse party, on issuing the citation, as is required on the issuing of writs of summons. Durkee v. Marshall,
1. On an information and scire facias a- gainst a corporation to vacate their char- ter, and a verdict, finding the facts charged to be true, and a memorial, pro- fessing to show cause against a judg- ment of forfeiture, the counsel for the memorialists will open the argument. State v. President, Directors and Com- pany of the Bank of Windsor, 2. The time, within which a plea in offset, in an action on book account, shall be filed in the county court, rests solely in the discretion of that court, and their determination in regard to it cannot be revised in this court. Ainsworth v. 563
Drew, 3. 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. Sut- tons,
9. On a petition for a new trial, this court will not proceed to the hearing upon the merits until furnished with a proper- ly authenticated copy of the minutes of the judge who tried the case in the county court, or evidence showing that such copy has been applied for and could not be obtained, in which case, only, will the court dispense with such copy and admit the affidavits of the attorneys, as to what passed at the trial, 10. When a judgment has been rendered against a party, in the county court, - by default, this court cannot, on petition, grant a trial in the action. Adams v. Howard,
560 11. Where a party, intending to take an appeal from a decree of the chancellor at the term when it was made, neglected to do so, and, at the next term thereafter, the chancellor allowed the appeal, it was held that the appeal was irregularly taken and it was therefore dissmissed. v. Dyke et al.,
1. If a testator execute his will, and the I will is not to be found at the time of his decease, this raises a presumption of his having destroyed it with intent to revoke it. Minkler et al. v. Estate of Mink- ler, 125
2. But this is a presumption of fact, merely, which may be encountered by contrary proof, and the will thus established. Id.
1. In simple contracts, executed by agents, if the agent exceeds his authority, he thereby binds himself, although he ex- ecute the contract in the name of the principal. Roberts v. Button et al., 195 2. So, too, if the credit is given to the agent, and he expressly consent to bind himself, Id. 3. But if he have authority to bind the the principal, and the credit is given to the principal, and the promise is made on behalf of the principal, the agent is not liable, Id. 4. Where the agent exceeds his authority in contracts under seal, in many cases, the more appropriate remedy is by a special action on the case,
Where two persons, one being principal and the other surety, executed a note for money borrowed, and the principal, with- out the knowledge of the surety, agreed to pay nine per cent. interest for the money, and afterwards made a payment of interest at that rate, and the sum paid was indorsed on the note, generally; it was held that the surety was not there- by discharged from his liability to pay the note. Richmond v. Standclift et al., 258
vised, 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 maker of the note by reason of the warranty. Russell v. Buck. 147
2. In the state of New York the law seems to be settled, that a negotiable note, in- dorsed by the payee, as a security or in payment of a precedent debt, is not trans- ferred in the due course of trade, so as to preclude the maker from setting up such matter in defence against the hol- der, as he might have done against the payee.
Where a note is made negotiable, and the payment of it guarantied in the state of New York, the lex loci governs the liabilities of the parties. Id.
One, (not the payee) who writes his name in blank on the back of a negotia- ble promissory note, may always show, by parol, the extent of his contract. Sandford v. Norton, 228 5. If it be a mere collateral guaranty, he is entitled to reasonable notice of the default of the principal debtor, and if he do not receive it, he is exonerated to the extent of the loss he thereby sus- tains. Id.
Where mutual claims are allowed by com- missioners in favor of and against an es- tate represented insolvent,and the admin- 9. istrator, within twenty days after the return of the commission to the probate court, files objections to the allowance against the estate, and the creditor does not prosecute his claim against the estate at the term of the county court next after the filing of such objections, and the ad- ministrator does not procure an affirm- ance of the allowance in favor of the estate at that term, he cannot have such affirmance at any subsequent term of the court. Allen, adm'r, v. Fletcher et al. 274
1. It is no waiver of a defence, on the part of the warrantor of a note, that he is ad-
Such guaranty, as between the parties, is not negotiable.
If it be negotiated, as part of the orig. inal contract, to a bona fide holder, for value; Quare-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 up- on 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 maker of a promissory note, paya- ble on demand to one or order, is liable as trustee of the person for whose bene- fit the note was taken, when it is shown the note remained in his hands two months after its date. Camp v. Scott & trustee,
10. Quare-Whether a note, payable on demand, is not to be considered overdue in the same time within which it should be presented for payment in order to charge an indorser.
11. If so, then if the parties reside in the same village or town, it should be pre- sented on the day following the date; and if in different towns, the present- ment should be made in the due course of the mail. Id.
parties all reside in the same vicinity, is to be considered overdue in two months. Id.
13. 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, 14. The defendant, to pay a note payable in the month of February, in good well- finished plows, on the last day of the pre- ceding January, set apart, at the place of payment, plows of the description re- quired, sufficient to pay the note, marked with plaintiff's name, and the plows re- mained at that place in the same condi- tion, for the purpose of paying the note, from that time through the month of February, and it was held that a second turning out of the property, in direct terms, in the month of February, would be a useless act, and not required to bar an action on the note, and that the prop- erty in the plows vested in the plaintiff and the note was thereby paid. Id. 15. If, after this, the plows were still per- mitted to remain at the same place, it could not affect this question, though the property might afterwards have been damaged, or carried away by some one, through the negligence of the defend- Id.
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 improvements; 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
1. Where, in an action on book, the audi- tor, after the hearing, held the case under advisement, and afterwards reported in favor of the plaintiff and gave no- tice thereof to the attorneys of the par- ties, and the defendant's attorney in- formed the defendant that the auditor had reported against him, and the plain- tiff, believing 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 disclosure 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 de- fendant from all damages and costs,-it was held that such release was a bar to the action. Judd v. Blake et al., 410 2. The release of a judgment creditor, to a judgment debtor, of the judgment implies a satisfaction, and is a good de- fence for the town when sued by the judgment creditor for neglect of the constable in taking insufficient bail. Beech v. Canaan, 485
3. It is not sufficient to avoid the effect of a release, to show that the suit was brought for the benefit of another, and this known to the person taking the re- lease. An assignment of the claim is necessary. Id.
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