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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